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Appreciation – Police officers – Their evidence cannot be rejected simply because they were members of the preventive or raiding party if no hostility or animus is attributable to the police officers concerned. (Ian Roylance Stillman Vs State of H.P.) 2002(3) Criminal Court Cases 417 (H.P) 

Appreciation – Witness called by prosecution permitted to be cross examined by prosecution – Such a witness loses credibility and cannot be relied upon by the defence. (Ian Roylance Stillman Vs State of H.P.) 2002(3) Criminal Court Cases 417 (H.P) 

Audio Cassettes – Admissibility in evidence – Evidence to be admitted provisionally subject to right of parties to pursue their objections at final stage of hearing of proceeding – Parties shall be entitled to cross-examine witness in respect of said evidence without prejudice to their right to pursue their objections. (Boman P.Irani Vs Manilal P.Gala) AIR 2004 Bombay 123

Question put to plaintiff in cross examination as to whether payment was made voluntarily – Held, this amounts to implied admission of the payment made by the plaintiff. (Louiz Vs Augustin) 2004(3) Civil Court Cases 464 (Kerala)

FIR – Name of witnesses not mentioned in FIR – By itself not a ground to doubt their evidence. (Raj Kishore Jha Vs State of Bihar & Ors.) 2004(1) Criminal Court Cases 213 (S.C.)

Accused visiting house of deceased to demand return of money – Quarrel arose – In course of quarrel accused causing fatal injuries with knife on shoulder and neck of deceased – Knife not recovered – No material to show that accused brought knife along with him – Crime committed without premeditation – Act though done with knowledge that it was likely to cause death but without intention to cause death – Conviction altered from S.302 to S.304 Part II – Sentence reduced from life imprisonment to seven year RI and fine of Rs.20,000/- to be paid to daughter of deceased. (Prakash Vs State) 2003(1) Criminal Court Cases 37 (Karnataka) 

Interested and injured witnesses – Their evidence corroborated by medical evidence – There is no rule that such evidence should not  be admitted unless there is corroboration by third party or independent witness. (State Vs Sheku alias Shekhara Poojary) 2002(3) Criminal Court Cases 640 (Karnataka) 

Murder – Death of young housewife within her house – Medical evidence that death was homicidal and not suicidal – No evidence, either direct or circumstantial – Suspicion, however, grave cannot be a substitute for proof through evidence beyond reasonable doubt which is requirement to sustain conviction – Held, in absence of such evidence, accused to be given benefit of doubt – Order of acquittal not to be interfered with. (State by Mico Layout Police Station Vs Devaraj alias Ramashankarappa) 2002(3) Criminal Court Cases 693 (Karnataka) 

Murder – Injuries suffered by accused on a vital part of the body – Injuries suffered serious and could not be self inflicted – Failure of prosecution to explain injuries – Plea of self defence not taken by accused – Held, omission on part of accused to take plea of self defence does not relieve burden of prosecution to prove case beyond reasonable doubt – Accused entitled to benefit of doubt and order of acquittal not to be interfered with. (State by Hukeri Police Vs Bhimraj Ramappa Naik) 2002(2) Criminal Court Cases 37 (Kant.)

Murder – Conviction – Appreciation of evidence – Allegations against appellants that they gave beating to deceased and he died on the spot – Testimony of two eye-witnesses found trustworthy and reliable – Corroborated by testimony of other witnesses – Land dispute between the parties – Medical evidence showed that 23 injuries including fractures and haematomas were sufficient in ordinary course of nature to cause death – No error found in the judgment passed by Court below. (Anda Ram & Anr. Vs State) 2005(2) Criminal Court Cases 528 (Rajasthan)

Witness not disclosing fact for days – By itself not a ground to discard his evidence – Different persons react differently to a given situation – There is no rule of human reaction on basis of non-conformity wherewith piece of evidence may be discarded. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal Court Cases 95 (Kant.)

FIR – Name of witnesses not mentioned in FIR – By itself not a ground to doubt their evidence. (Raj Kishore Jha Vs State of Bihar & Ors.) 2003(2) Apex Court Judgments 656 (S.C.)

Criminal trial – Defence witness – Evidence of defence witness not to be ignored – Like any other witnesses, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness particularly when he attempts to resile and speak against records and in derogation of his earlier conduct and behaviour – If after doing so, Court finds it to be untruthful, there is no legal bar in discarding it. (Banti @ Guddu Vs State of Madhya Pradesh) 2003(2) Apex Court Judgments 608 (S.C.) : 2004(1) Criminal Court Cases 27 (S.C.)

Evidence – Rule of corroboration – One piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. (State of Punjab Vs Parveen Kumar) 2005(1) Criminal Court Cases 325 (S.C.)

Evidence of eye-witness – Court should take proper care while examining the evidence of eye-witnesses and particularly the relative witnesses – If evidence of such witnesses found is found full of contradiction, the variance in evidence is of material nature and the evidence is not trustworthy then it should be discarded. (Anda Ram & Anr. Vs State) 2005(2) Criminal Court Cases 528 (Rajasthan)

Eye Witness – Expert Witness – Doctor –  When evidence of eye witness is truthful and credible opinionative evidence of doctor cannot wipe out the effect of eye witness evidence. (Main Pal & Anr. Vs State of Haryana & Ors. ) 2004(2) Criminal Court Cases 746 (S.C.)

Investigating Officer – Non examination – Does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of eye witnesses – It is always desirable for prosecution to examine the Investigating Officer. (Raj Kishore Jha Vs State of Bihar & Ors.) 2003(2) Apex Court Judgments 656 (S.C.) : 2004(1) Criminal Court Cases 213 (S.C.)

Part of testimony of a witness if unsafe to rely, it cannot be discarded in its entirety – Court after consideration of all the relevant circumstances has to come to a conclusion which part of the testimony of the witness to accept and which to reject. (Balwinder Singh alias Gudu Vs State of Punjab) 2002(1) Criminal Court Cases 201 (P&H)

Pleading of false facts – Statement on oath contrary to own pleading – Held, evidence of such party cannot be relied upon. (M/s Omprakash Har Narain & Sons & Ors. Vs Vijaya Bank Ltd.) 2003(1) Civil Court Cases 4 (Rajasthan) 

Proof of title – Entries in Municipal record – An entry in municipal record is not evidence of title – The entry shows the person who is held liable to pay the rates and taxes to the municipality. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Suit based on title – Plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

When defendant himself is not in a position to prove the fact, his witnesses cannot improve the case. (M/s Omprakash Har Narain & Sons & Ors. Vs Vijaya Bank Ltd.) 2003(1) Civil Court Cases 4 (Rajasthan) 

Witness – Conduct – Unusual conduct – Appreciation of evidence – Every person cannot act or react in a particular or very same way and it would depend on mental setup, extent and nature of fear and spot reaction to be seen in totality of circumstances. (Main Pal & Anr.  Vs  State of Haryana & Ors. ) 2004(2) Criminal Court Cases 746 (S.C.)

‘Proved’, ‘disproved’ and ‘not proved’ in civil or criminal case is one and the same – A fact is said to be ‘proved’ when, if 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 – A fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Wound certificate – Non examination of doctor – Not fatal where defence not disputing wound certificate – Examination of doctor is more important from angle of defence as it is open to defence to question correctness of wound certificate and of entries in official records by examining doctor – Acquittal on ground of non examination of doctor is not sustainable in law. (State Vs Sheku alias Shekhara Poojary) 2002(3) Criminal Court Cases 640 (Karnataka) 

Witness – Relative – Mere relation does not affect the credibility of witness – Expert Witness – Doctor – Court to critically examine the same and find whether same is credible and cogent. (Main Pal & Anr.  Vs  State of Haryana & Ors. ) 2004(2) Criminal Court Cases 746 (S.C.)

Wound certificate – Issued by doctor in discharge of his official duties – Held, is a public document, contents of which are admissible in evidence – Can be tendered in evidence. (State Vs Sheku alias Shekhara Poojary) 2002(3) Criminal Court Cases 640 (Karnataka)

Defendant appeared as a witness – As his defence was struck off as such his statement discontinued and closed – Plaintiff had no opportunity to cross examine the defendant – Incomplete evidence cannot be treated as evidence and no adverse inference can be drawn due to absence of cross-examination. (Raees Ahmed  Vs Shrigopal Prakash) 2003(1) Civil Court Cases 666 (Rajasthan) 

Sole eye witness who was accompanying deceased at time of incident – Corroborated by evidence of doctor who had conducted autopsy and further corroborated by other witnesses – Conviction based on such evidence is to be held proper. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal Court Cases 95 (Kant.)

“May presume” & “Shall presume” – Presumptions falling under the former category are compendiously known as “factual presumptions” or “discretionary presumptions” and those falling under the latter as “legal presumptions” or “compulsory presumptions” – Expression “shall be presumed” employed in Section 4(1) of the Act has the import of compulsion. (State of Andhra Pradesh Vs V.Vasudeva Rao) 2004(1) Criminal Court Cases 137 (S.C.)

Date of birth – Entry in school register – Is admissible but not conclusive proof of date of birth or age of a person. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Rape of married woman – She immediately narrated entire occurrence to her mother-in-law – This evidence is admissible under S.6 of Evidence Act. (Gajjan Singh Vs State of Haryana) 2003(2) Criminal Court Cases 206 (P&H)

Robbery – Accused declining to participate in test identification parade – Accused produced in Court ‘baparda’ (with face muffled) – Testimony of witnesses identifying accused in Court on the very next day of his arrest – Held, reliable. (Munna Vs State (N.C.T. of Delhi)) 2004(2) Apex Court Judgments 201 (S.C.)

Admissibility of statement of fact on account of spontaneity and immediacy – Rape of 14 years girl – Victim reached home and narrated incident to her mother and committed suicide within half an hour – Statement of mother is relevant piece of evidence. (Sunil Kumar Arjun Das Gupta Vs State of Madhya Pradesh) 2003(1) Criminal Court Cases 245 (M.P.) 

Murder – By husband of his estranged wife who had left him and was living with her parents – Fact that deceased wife had some time before her death, had secured order for maintenance in her favour and that she had also filed complaint of offence of bigamy against her husband, establishes motive of husband to finish her off – It is immaterial whether motive attributed to accused is too remote or inadequate to fix charge of murder when there is direct, clear and convincing evidence of crime. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal Court Cases 95 (Kant.)

Absconding after incident – May lend some weight to other evidence establishing the guilt of accused but by itself it is hardly an evidence of guilt. (Panchu @ Panchanan Mohapatra Vs State of Orissa) 2003(2) Criminal Court Cases 139 (Orissa) 

Motive – Case based on circumstantial evidence – Motive – Lends corroboration to prosecution case but absence or non-proof of it will not create a doubt on the case if circumstantial evidence is reliable and trustworthy. (Kamala Muniratnam & Anr. Vs State of A.P.) 2004(1) Criminal Court Cases 829 (A.P.)

FIR lodged by accused – The fact of his giving the information to the police is admissible against him as evidence of his conduct u/s 8 of Evidence Act and to the extent it is non-confessional in nature, it is also relevant but the confessional part of FIR by the accused to police officer cannot be used at all against him in view of the ban of S.25 of Evidence Act. (Bandu Yedu Metkari Vs State of Maharashtra) 2002(2) Criminal Court Cases 592 (Bombay)

FIR lodged by accused himself and gave details as to how the incident in question took place – Trial Court held the part of facts disclosed in FIR as admissible and not confessional in nature and relying upon the same besides motive and other evidence convicted the accused – Held, the only admissible circumstances in FIR were the motive of the crime, relationship of accused with his sister PW 6, her presence in the house at the time of commission of crime and presence of blood stains on the clothes of accused seized by the police when accused had gone to lodge FIR – Rest of the contents of FIR being confessional in nature could not be used against the accused – In the circumstances conviction and sentence set aside. (Bandu Yedu Metkari Vs State of Maharashtra) 2002(2) Criminal Court Cases 592 (Bombay) 

FIR – Admissible and inadmissible part – After excluding inadmissible part there is no legal bar against using the admissible part of the first report in evidence for the purpose of appreciating the other evidence led by the prosecution, likewise the factum of lodging of the first report by the appellant, on the date and time which is not in dispute. (Guman Mal Vs State of Rajasthan) 2003(2) Criminal Court Cases 330 (Rajasthan)

Murder – Test identification parade – Accused named in FIR but PW did not name him before police – No test identification parade held – PW examined in Court after 2-1/2 years and identified the accused in Court – Held, accused cannot be convicted on belated identification. (Dana Yadav @ Dahu & Ors. Vs State of Bihar) 2003(1) Criminal Court Cases 706 (S.C.)

Test identification parade – Evidentiary value – Whole idea of test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source – Test is done to check upon their veracity – Main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime – Identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act – It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused – This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade – If circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. (Munshi Singh Gautam (D) & Ors. Vs State of M.P.) 2005(1) Criminal Court Cases 645 (S.C.)

Dacoity with murder – Evidence of neighbour that he went to place and remained there for 2-3 minutes and flashed torch at dacoits to identify them – Evidence not believable – Witness was concerned with his own safety and could not dare to flash torch light on armed dacoits. (Umesh Kamat Vs State of Bihar) 2005(1) Criminal Court Cases 923 (S.C.)

Gold ornaments – Identification – Female kin of deceased female is in a better position than a male kin to identify the jewellery or ornaments worn by a woman. (Gade Lakshmi Mangraju alias Ramesh Vs State of Andhra Pradesh) 2002(2) Criminal Court Cases 715 (S.C.)

Identification of accused – Photographs – If during the course of investigation witness gives identifying features of assailants the same could be confirmed by I.O. by showing the photographs of the suspect but I.O. should not first show a single photograph but should show more than one photograph of the same person, if available – If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance. (Gopalakrishnan Vs Sadanand Naik) 2005(1) Criminal Court Cases 515 (S.C.)

Identification of accused – Photographs – Offence u/ss 143, 147 and 304 Part II IPC – Investigating Officer procured the album containing the photographs with the names written underneath and showed this album to the eye witnesses and recorded their statements u/s 161 Cr.P.C. – Procedure adopted by police not justified under law – Conviction set aside. (Gopalakrishnan Vs Sadanand Naik) 2005(1) Criminal Court Cases 515 (S.C.)

Identification parade – Falls within the realm of investigation as such it is required to be held during the investigation of the case. (Raju Gurung Vs State) 2002(2) Criminal Court Cases 335 (P&H)  

Identification – Substantive evidence is identification in Court and test identification parade provides corroboration to identification of witness in Court – Weight which is to be attached to evidence of identification in Court not preceded by test identification parade is a matter for Courts of fact to examine. (Malkhansingh & Ors. Vs State of Madhya Pradesh) 2003(3) Criminal Court Cases 206 (S.C.) : 2003(2) Apex Court Judgments 331 (S.C.)

Photographs – Without negatives – Are inadmissible in evidence. (Arun Balakrishnan Iyer & Anr. Vs M/s Soni Hospital & Ors.) 2004(2) Civil Court Cases 183 (Madras)

Robbery – Test identification parade – Accused arrested, kept in muffled face and produced before Court next day – Accused refused to participate in Test Identification parade – In such a case identification of accused by P.W. for the first time in Court, relied upon. (Munna Vs State (N.C.T. of Delhi)) 2004(1) Criminal Court Cases 277 (S.C.)

Sniffer dogs – Criminal Courts need not bother much about the evidence based on sniffer dogs. (Gade Lakshmi Mangraju alias Ramesh Vs State of Andhra Pradesh) 2002(2) Criminal Court Cases 715 (S.C.) 

Test identification parade – Conducted after one month of arrest – In between accused produced in Court for remand – No effort made to conceal his identity – In absence of corroborative evidence, implicit reliance on identification made at the test identification parade cannot be made. (Kansa alias Kansraj  Vs State of U.P.) 2002(2) Criminal Court Cases 629 (All.)

Test identification parade – In the absence of identification in Court at the time of tendering evidence the results of test identification parade are of little value. (Umesh Kamat Vs State of Bihar) 2005(1) Criminal Court Cases 923 (S.C.)

Test identification parade – Not a substantive piece of evidence – It is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. (Ayyub etc. Vs State of U.P.) 2002(2) Criminal Court Cases 485 (S.C.)

Murder case involving two accused – Finger prints of accused No.2 found at scene of occurrence – Plea that prosecution failed to prove that finger prints used for comparison were that of accused No.2 cannot be raised by 1st accused, when accused No.2 has not challenged the evidence. (Gade Lakshmi Mangraju alias Ramesh Vs State of Andhra Pradesh) 2002(2) Criminal Court Cases 715 (S.C.) 

Conspiracy to murder – Confession of co-accused – If prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all – Confession recorded long after the offence when conspiracy had culminated – S.10 of Evidence Act cannot be pressed into service. (Jayendra Saraswathi Swamigal Vs State of Tamil Nadu) 2005(1) Criminal Court Cases 760 (S.C.)

Earlier judgments – Admissibility in evidence – Injunction suit against Wakf Board claiming suit property as their own – Suit property same property in respect of which earlier suits were filed – In the said suit predecessor-in-interest of defendants admitted the suit property as Wakf property – One of the plaintiffs was a party to the earlier suit – Those judgments held the properties as Wakf properties – Held, earlier judgments are admissible in evidence – Suit for injunction therefore liable to be dismissed. (Andhra Pradesh Wakf Board Vs Syed Jalaluddin Sha ) 2004(3) Civil Court Cases 469 (A.P.)

Statement made by a party in an earlier litigation – Is relevant against the party making such a statement but if other persons were not party, then it cannot be binding on their rights. (Pritam Kaur Vs Chanan Singh & Anr.) 2003(3) Civil Court Cases 494 (P&H) 

Statement by a person against his own interest – Generally such a statement is accepted as correct because it is treated as admission within the meaning of Ss.17 & 18 of Evidence Act. (Gurinder Singh & Ors. Vs Kundan Lal) 2005(2) Civil Court Cases 128 (P&H)

Admission – In earlier maintenance proceedings marriage stated to be already dissolved – Dissolution of marriage not in issue in those proceedings – Opposite party in present case not a party in earlier proceedings – Held, statement so made cannot be taken as admission. (Mallika Begum Vs Asha Begum) 2003(1) Civil Court Cases 16 (A.P)  

Agreement to sell – Vendor admitting in agreement, affidavits and other papers about delivery of possession made to purchaser on date of agreement – Heavy burden lies on vendor to show that said admission was not correct – Admission coupled with the fact that heavy amount was paid to vendor on the date of agreement for immediately vacating the property – It is a strong circumstance that possession of property was delivered on date of agreement – It does not lie in the mouth of vendor to say that recital in agreement regarding delivery of possession in the agreement was for sake of papers only. (M/s Chetak Constructions Limited Vs Om Prakash & Ors.) 2003(3) Civil Court Cases 477 (M.P.) 

Confession – Must be free from threat, duress or inducement at the time of making the confession – On the evidence and the circumstances in a particular case Court should be satisfied that there was not threat, inducement or promise, though the said fact is not strictly proved – As a rule of prudence Court should look to corroboration from other evidence – There need not be corroboration in respect of each and every material particular – Court should have assurance from all angles that the retracted confession, was, in fact, voluntary and it must have been true. (Parmananda Pegu Vs State of Assam) 2005(1) Criminal Court Cases 522 (S.C.)

Murder of wife – Extra judicial confession made orally to witness who lodged FIR – No mention of extra judicial confession in FIR by witness but disclosed by him subsequently in his deposition before Court – Non disclosure of extra judicial confession at earliest point of time casts serious doubt of credibility of witness – Such extra judicial confession, held, cannot, be acted upon without same being corroborated from independent source. (State by Madhugiri Police Vs Puttarnagappa) 2002(2) Criminal Court Cases 324 (Karnataka) 

Confession of co-accused – Cannot be treated as substantive evidence – Can only be used to lend assurance to the other independent evidence sufficient for sustaining a conviction. (Kamala Muniratnam & Anr. Vs State of A.P.) 2004(1) Criminal Court Cases 829 (A.P.)

Confession – Means admission of  crime by the accused charged with a crime – Such confession is an evidence against the maker of it. (Amrush Barla Vs State of Orissa) 2003(2) Criminal Court Cases 717 (Orissa) 

Confession – Retracted – Retracted confession may form the legal basis of conviction if Court is satisfied that it was true and voluntary – Retraction if found to be an after thought the same should not weigh with the Court. (Amrush Barla Vs State of Orissa) 2003(2) Criminal Court Cases 717 (Orissa) 

Confession – Statement given by accused to Village Administrative Officer after commencement of investigation – Though admissible in evidence but it is a very weak piece of evidence. (Pachamuthu Vs State) 2004(2) Criminal Court Cases 09 (Madras)

Extra judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court – Confession will have to be proved like any other fact – Test of credibility – Analysed. (State of Rajasthan Vs Rajaram) 2003(2) Apex Court Judgments 398 (S.C.)

Extra judicial confession – Conviction can be based on extra judicial confession if it is made voluntarily and truthfully to a trustworthy unbiased person – Extra judicial confession to be relied on as against an accused must be clear, unambiguous and unmistakably conveyed that accused had committed the crime. (Mary Mathew Vs State of Kerala) 2002(1) Criminal Court Cases 310 (Kerala)

Extra judicial confession – Is very weak piece of evidence and it should be looked into very cautiously and in absence of any corroboration it will be always unsafe to rely upon such evidence for convicting an accused. (Ashoke Giri & Anr. Vs State of West Bengal) 2005(2) Criminal Court Cases 314 (Calcutta)

Extra judicial confession – It is a weak piece of evidence for conviction – Such evidence deserves strict scrutiny – Strong circumstantial evidence can get strength from extra judicial confession. (Kalpana Mazumdar Vs State of Orissa) 2002(3) Criminal Court Cases 363 (S.C.) 

Extra judicial confession – Value – Depends upon the reliability of the person to whom it is made, interval between the occurrence and the confession, reproduction of the exact words of the person making confession to the crime, and the follow up action which the person to whom the confession made. (Kamala Muniratnam & Anr. Vs State of A.P.) 2004(1) Criminal Court Cases 829 (A.P.)

Judicial confession – Even retracted confession can solely form basis of conviction if it is found to be true and voluntary. (Mitra Prasad Rai Vs State of Sikkim) 2004(4) Criminal Court Cases 601 (Sikkim)

Confession – Extra judicial confession – Cannot be called a weak piece of evidence if it withstands the tests (i) Is the witness proving the confession generally credible? (ii) Is his relation with the accused of such nature that the latter could confide in him? (iii) Is there any motive for the witness to implicate the accused falsely (the witness might be trying to save himself or some one else by laying the blame on the accused)? and (iv) Is the confessional statement consistent with other facts and circumstances brought on record? (Nachika Deruku Vs State of Orissa) 2003(3) Criminal Court Cases 268 (Orissa) 

Extra judicial confession – If true and voluntary can be relied upon by Court to convict accused. (K.Kunhaman @ Kunhiraman Vs State of Kerala) 2003(2) Criminal Court Cases 338 (Kerala)

Confession – Admission of guilt to police – Not admissible in evidence because it may be in the nature of confession and would be hit by S.24 – However, S.27 of Evidence Act carves out an exception to the general rule by making only that part of the statement admissible which has led to the recovery because recovery itself would ensure the veracity of the statement excluding the falsehood. (Surjit Singh & Ors. Vs State of Punjab) 2005(1) Criminal Court Cases 729 (P&H)

Extra judicial confession – Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. (State of Karnataka Vs M.N.Ramdas) 2002(3) Criminal Court Cases 587 (S.C.) 

Extra judicial confession – Murder – Accused immediately revealing fact to a stranger like PW2 – Confession may not be consistent with ordinary human conduct but on that account there should not be astute reluctance on part of Court to accept extra judicial confession – Court will however be on guard to get assurance of truth of corroborative evidence. (State of Karnataka Vs M.N.Ramdas) 2002(3) Criminal Court Cases 587 (S.C.) 

FIR – Given by accused in nature of confession – It cannot be used against the accused in evidence. (Naresh Vs State of M.P.) 2003(2) Criminal Court Cases 595 (M.P.) 

Confession – Recovery of contraband effected by custom officer – Statement of accused recorded by custom officer – Absolute bar of S.25 Evidence Act is not application to Custom Officer as he is a person other than a Police Officer – Court has just to see as to whether the inculpating portions were made voluntarily or whether they were made on account of duress, coercion or physical threat etc. (Mohinder Singh alias Minda Vs Inspector Customs)    2003(2) Criminal Court Cases 475 (P&H)

First information report given by accused which amounts to confessional statement –  Perusal of contents of first information report for the accused is permissible – Explanation for murder in a confession by the accused to police in a first information report can be relied on to prove motive or provocation with a view to extenuate the offence or sentence i.e. there is no bar to a confession in first information being used in favour of the accused. (Madhavgir  Vs State of Maharashtra) 2005(1) Criminal Court Cases 722 (Bombay)

Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25 of the Evidence Act – No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by section 27 of the Evidence Act. (Bandu Yedu Metkari Vs State of Maharashtra) 2002(2) Criminal Court Cases 592 (Bombay) 

Recovery of weapon at the instance of accused – Accused specifically saying that he concealed the weapon himself – Recovery of weapon held admissible in evidence. (State of M.P. through C.B.I etc. Vs Paltan Mallah & Ors. etc.) 2005(1) Criminal Court Cases 899 (S.C.)

Confession – Admission of accused before the Customs Authorities – Such admission is not hit by either Section 25 or Section 26 – Effect of such admission was relevant factor. (Union of India Vs Munna) 2005(1) Criminal Court Cases 100 (S.C.)

Fire arm – Place of recovery already brought to knowledge of I.O. by informer – Statement recorded u/s 27 Evidence Act is inadmissible in law – Once the place of recovery is in the knowledge of the Investigator, then recording the statement u/s 27 of Evidence Act is a futile exercise – Investigator without recording the statement of accused can interrogate him and can effect the recovery. (Chanan Singh Vs The State of Punjab) 2003(3) Criminal Court Cases 29 (P&H) 

Recovery of arms – Disclosure statement in presence of official witnesses and an independent witness – Independent witness if not produced, impinges upon the truth of prosecution case – Prosecution will have to satisfy the conscience of the court as to why the independent witness was not put forth to support the recovery. (Jarnail Singh Vs State of Punjab) 2002(1) Criminal Court Cases 218 (P&H)

Disclosure statement – Recovery of dead body on the basis of information already known – Section 27 of the Evidence Act has no application. (State of Haryana Vs Jagbir Singh & Anr.) 2004(1) Criminal Court Cases 296 (S.C.)

Evidence Act, 1872, S.27 – Stolen wood – Recovery of – On basis of disclosure statement of accused u/s 27 of Evidence Act – Independent witness not joined – S.27 does not require that recovery be conducted in presence of independent witnesses. (Surjit Singh & Ors. Vs State of Punjab) 2005(1) Criminal Court Cases 729 (P&H)

“Fact discovered” – On interrogation accused made statement that “I have kept fire-arm concealed behind the old house in a heap of wood” – Fact discovered is not the gun but fact discovered is that accused had concealed the gun behind old house under heap of wood. (Pandurang Kalu Patil Vs State of Maharashtra) AIR 2002 S.C. 733

Applicability of S.27 of Evidence Act – Conditions or requirements for applicability are : (1) The  fact must have been discovered in consequence of the information received from the accused; (2) The person giving the information must be accused of an offence; (3); He must be in custody of a police officer; (4) Only that portion of the information which relates strictly to discovery can be prove and the rest is irrelevant; (5) The discovery of fact must relate to the commission of some crime; (6) Before the statement is proved somebody must depose that some articles was discovered in consequence of the information received from the accused.(Deepak & Anr. Vs State of Rajasthan) 2003(3) Criminal Court Cases 484 (Rajasthan) 

Applicability of the provision – To attract S.27 four conditions necessary are: (1) Discovery of fact, albiet a relevant fact in consequence of the information received from a person accused of an offence;  (2) Discovery of such fact must be deposed to; (3) At the time of receipt of the information, the accused must be in police custody and the information must be voluntarily made and true; (4) Last and the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered, is admissible and the rest of the information has to be excluded – Word “distinctly” means “directly” “indebeatebly” “strictly” and “unmistakably”. (Chunia Vs State of Rajasthan) 2004(1) Criminal Court Cases 458 (Rajasthan)

Conditions for applicability of the provision are : (1) The fact must have been discovered in consequence of the information received from the accused; (2) The person giving the information must be accused of an offence; (3) He must be in custody of a police officer; (4) Only that portion of the information which relates strictly discovery can be proved and the rest is irrelevant; (5) The discovery of fact must relate to the commission of some crime and (6) Before the statement is proved somebody must depose that some article was discovered in consequence of the information received from the accused. (Prithviraj Vs State of Rajasthan) 2004(3) Criminal Court Cases 111 (Rajasthan)

Delay in discovery of weapon at instance of accused – Amount of delay could have fatal consequences because of unexplained delay. (Bhalchandra Namdeo Shinde Vs State of Maharashtra) 2003(3) Criminal Court Cases 193 (Bombay) 

Disclosure statement – Not required to be recorded when he was to be interrogated and was not accused in any case. (Karnail Singh Vs State of Punjab) 2003(3) Criminal Court Cases 474 (P&H) 

Discovery of fact – Prosecution must prove that information given by accused has led to discovery of some fact stated by him. (Arun Dharma Chavhan Vs State of Maharashtra) 2002(1) Criminal Court Cases 162 (Bom.)

Dowry death – Disclosure statement – Upon disclosure statement earrings, hair clip, pieces of bangles belonging to deceased recovered from the well – These articles are of common use and can be found out in any house. (State of Rajasthan Vs Teg Bahadur) 2005(1) Criminal Court Cases 49 (S.C.)

Extra judicial confession – In order to make an extra judicial confession a reliable evidence it has to be shown that the same was voluntary. (State of Haryana Vs Jagbir Singh & Anr.) 2004(1) Criminal Court Cases 296 (S.C.)

Information furnished by an accused in his confession statement that he had handed over the stolen articles for disposal to another accused is admissible in evidence provided truth of that information is established. (Ayyappan Vs State of Kerala) 2004(4) Criminal Court Cases 315 (Kerala)

Recovery from a place accessible to all at the instance of accused – Would not diminish evidentiary value – If the articles hidden are not visible to others, then it is immaterial whether the concealed place is accessible to others or not. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal Court Cases 95 (Kant.)

Recovery of incriminating materials – Goes a long way in establishing the guilt of the appellant. (Araque Lutifi @ Dazy Vs State of Orissa) 2003(1) Criminal Court Cases 508 (Orissa) 

Weapons of offence – Seizure – Not seized on the statements of the accused persons and none of the same sent for chemical examination – Such seizure from the houses of the accused persons is of no consequence. (Pramod Kumar Khadamsingh & Ors. Vs State of Orissa) 2002(3) Criminal Court Cases 244 (Orissa) 

Murder – Discovery of weapon alleged to have been used to commit crime – Discovery made as consequence of statement made by accused person in police custody – Seizure Panch who had signed seizure memo turning hostile – No ground to discard evidence of I.O. who recorded statement of accused and discovered weapon – It is for accused to show that evidence is unreliable. (Boraiah alias Pujari Boraiah Vs State ) 2004(2) Criminal Court Cases 490 (Karnataka)

Statement recorded u/s 108 of Customs Act – Admissible in evidence but by virtue of S.30 Evidence Act it is not a substantive piece of evidence. (Tarlochan Singh Vs The Assistant commissioner, Customs) 2003(1) Criminal Court Cases 184 (P&H) 

 Confession of co-accused – Cannot be treated as substantive evidence – It can be pressed into service only when Court is inclined to accept other evidence and feels the necessity of seeking of an assurance in support of its conclusion deducible from the said evidence. (Mothilal Vs State) 2002(3) Criminal Court Cases 346 (Karnataka) 

Extra judicial confession – By co-accused – Can be admitted in evidence only as a corroborative piece of evidence – In absence of any substantive evidence against accused persons, the extra judicial confessional allegedly made by co-accused loses its significance and there cannot be any conviction based on such extra judicial confession. (State of M.P. through C.B.I etc. Vs Paltan Mallah & Ors. etc.) 2005(1) Criminal Court Cases 899 (S.C.)

Dying declaration – Declarant with burn injuries brought to hospital and at time of admission cause of burns recorded as “accidental” – Subsequent recording of dying declaration before 24 hours of death, implicating her husband and her mother-in-law as persons who set her on fire – Charges framed on basis of dying declaration – Dying declaration not containing doctor’s certificate that declarant was mentally fit and balanced to make such statement – Evidence of independent witnesses suggesting that declaration may not be true – Held, where evidentiary value of dying declaration has been watered down considerably, in absence of any other evidence to corroborate it, such dying declaration cannot be made sole basis of conviction. (State By Circle Police Inspector, Ranebennur Vs Basavaraj & Anr.) 2002(2) Criminal Court Cases 192 (Karnataka) 

Murder – Dying declaration – Conviction solely on that basis – Dying declaration before Judicial Magistrate – Statement of Magistrate that deceased was in fit condition to make statement – No certificate of doctor to this effect though he was available – Held, dying declaration could not be relied up – Conviction set aside. (Panchdeo Singh Vs State of Bihar) 2002(2) Criminal Court Cases 602 (S.C.)

Dowry death – Charge of murder – Dying declaration – Recorded by police constable 12 days before death – No certificate from doctor regarding condition of patient to make such declaration – No explanation as to why declaration in form required under law could not be obtained – Such dying declaration cannot be relied upon – In absence of reliable evidence, accused, held, are entitled to benefit of doubt – Order of acquittal cannot be interfered with. (State  Vs Mallesha)     2002(3) Criminal Court Cases 522 (Karnataka) 

Autopsy – Doctor who conducted autopsy could not  be produced without delay and expense – Trial Court admitted post mortem report into evidence – No illegality or irregularity committed by trial Court. (Kanista Barik Vs State of Orissa) 2002(2) Criminal Court Cases 148 (Ori.)

Autopsy report – Doctor who conducted autopsy not examined – Autopsy report can be admitted into evidence. (Basu Harijan Vs State of Orissa) 2003(3) Criminal Court Cases 170 (Orissa) 

Dying declaration – 85% burn injuries – Percentage of burns suffered is not determinative factor to affect the credibility of dying declaration – Credibility factor depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors – Percentage of burns alone would not determine the probability or otherwise of making dying declaration. (P.V.Radhakrishna Vs State of Karnataka) 2003(2) Apex Court Judgments 311 (S.C.)

Dying declaration – Answer to queries given by husband of deceased – Deceased affirmed the answer – In true sense it cannot be called a dying declaration. (Suchand Pal Vs Phani Pal & Anr.) 2004(2) Criminal Court Cases 292 (S.C.)

Dying declaration – Certificate of doctor that “patient is conscious while recording the statement” – Held, it is not in accordance with legal position – Certificate should be that at the time of recording dying declaration injured was in a fit state of mind – In medical science, two stages namely conscious and a fit state of mind are distinct and are not synonymous – One may be conscious but not necessarily in a fit state of mind. (Rajendra Vs State of Rajasthan) 2003(1) Criminal Court Cases 254 (Rajasthan) 

Dying declaration – Conviction can be based on the uncorroborated dying declaration of the deceased if it is truthful and that the person recording  dying declaration is satisfied that the dying man is making a voluntary and consistent statement with normal sense of understanding – It is sacred duty of Court while examining dying declaration to ensure that deceased was in a fit mental condition and was not under any pressure from any source. (Mamta  Vs State of Punjab) 2003(1) Criminal Court Cases 578 (P&H) 

Dying declaration – Conviction can be based solely on the dying declaration if there is sufficient evidence to show that the deceased gave the said statement in a fit state of mind – Non examination of doctor on question of fitness of declarant is not fatal. (Boina Mallaiah Vs State of A.P.) 2003(2) Criminal Court Cases 617 (A.P.) 

Dying declaration – Conviction solely on that basis – Noting of statement of mind of declarant by Doctor is essential requirement for prosecution to prove – Mere certificate by even a doctor at the end of the declaration that the patient is conscious while recording the statement is not sufficient. (Panchdeo Singh Vs State of Bihar) 2002(2) Criminal Court Cases 602 (S.C.)

Dying declaration – Cryptic dying declaration is an indication of its genuineness. (Sher Singh & Ors. Vs State of Punjab) 2005(2) Criminal Court Cases 261 (P&H)

Dying declaration – Deceased admitted in hospital with burn injuries – Mother of deceased was with her for 10 minutes exclusively – Dying declaration recorded after 5 hours – When others had opportunity to influence the mind of deceased then no reliance can be placed on dying declaration. (Smt.Batool Vs State of Rajasthan) 2003(2) Criminal Court Cases 320 (Rajasthan) 

Dying declaration – Entries in diary and certain statements recorded on a micro cassette – Entries in diary and representation submitted apprehending danger at hands of industrialist were in general terms – Even though name of some accused persons mentioned in the diary and in the cassette, that is not admissible as the entries in diary and cassette do not refer to any event which ultimately was the cause of his death – To be admissible u/s 32 of the Act, statements should be either to the cause of death or any of the circumstances which led to his death. (State of M.P. through C.B.I etc. Vs Paltan Mallah & Ors. etc.) 2005(1) Criminal Court Cases 899 (S.C.)

Dying declaration – Evidentiary value – (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration; (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration; (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration; (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence; (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected; (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction; (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected; (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth; (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail; (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon; (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.  (P.V.Radhakrishna Vs State of Karnataka) 2003(2) Apex Court Judgments 311 (S.C.)

Dying declaration – Evidentiary value – Law summed up :- (1) It is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration; (2) Conviction based on dying declaration against the correctness of which no cogent reasons have been given or suggested, is sustainable in law; (3) Though dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated – Court must look out for corroboration unless it comes to the conclusion that a dying declaration suffers from an infirmity; (4) Dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction; (5) There is no format as such of dying declaration; (6) Where conviction is solely based on dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it; (7) In the absence of medical certificate that injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. (Panchdeo Singh Vs State of Bihar) 2002(2) Criminal Court Cases 602 (S.C.)

Dying declaration – Fit to make dying declaration certified by doctor who conducted the post mortem – Deceased had 95% burn injuries and she was put on oxygen the moment she was brought to hospital and continued on oxygen till she died – In such a situation it is difficult to believe that she could have made a dying declaration when she was not capable of breathing by herself – She died within half an hour of making the dying declaration – Held, dying declaration is not a genuine document. (Kamalakar Nandram Bhavsar & Ors. Vs State of Maharashtra) 2003(2) Apex Court Judgments 674 (S.C.)

Dying declaration – If the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that it is not certified by the doctor as to the condition of the declarant to make the dying declaration. (P.V.Radhakrishna Vs State of Karnataka) 2003(2) Apex Court Judgments 311 (S.C.)

Dying declaration – In absence of the dying declaration recorded by the Magistrate being verified by the Doctor that the patient was in a conscious condition, no reliance can be placed on such dying declaration. (Rajendrasinh Bahadursinh Zala Vs State of Gujarat) 2004(1) Criminal Court Cases 423 (Gujarat)

Dying declaration – In law there is no bar in acting on a part of the dying declaration but it has to pass the test of reliability. (Narain Singh & Anr. Vs State of Haryana) 2004(4) Criminal Court Cases 593 (S.C.)

Dying declaration – In some other language – Translated in English by person recording the same, though he admitted that he knew that other language also – Person recording statement admitted that deceased was surrounded by many attendants who were talking with deceased – Fact that he had entire statement of deceased in other language and keeping same in memory, he wrote it down in English – Not mentioned in dying declaration – No bed-head ticket taken out in which treatment and condition of patient was recorded – Fact that deceased had stated that his statement could be considered as his dying declaration, cannot be believed – Entire story of recording dying declaration was doubtful. (Kajal Sen Vs State of Assam) AIR 2002 S.C. 61

Dying declaration – It is rarely to be found in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in Injury Report and Postmortem Report. (State of Uttar Pradesh Vs Ram Sewak & Ors.) 2003(1) Apex Court Judgments 715 (S.C.)

Dying declaration – Made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement – The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death – However, dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable and it is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination – Dying declaration if found reliable can form the base of conviction. (Narain Singh & Anr. Vs State of Haryana) 2004(4) Criminal Court Cases 593 (S.C.)

Dying declaration – Made to younger brother and co-villager – Both consistent with each other and nothing elicited from their mouth to discredit them or discard their testimony from consideration – Held, they cannot be said to be partisan or interested witnesses and their statements are not tainted with interestedness. (Ladga Majhi Vs The State of Orissa) 2002(2) Criminal Court Cases 350 (Orissa) 

Dying declaration – May form the sole basis for conviction without independent corroboration if it stands the tests viz. (1) The person making it had the opportunity of identifying the person implicated; (2) It is thoroughly reliable and free from blemish; (3) The maker of the statement was in a fit state of mind; (4) Voluntarily made the statement on the basis of personal knowledge without being influenced by others; and (5) The Court, on strict scrutiny, finds it to be reliable. (Mst.Amina Vs State of Rajasthan) 2003(1) Criminal Court Cases 436 (Rajasthan) 

Dying declaration – Mental condition – Can be inferred in a case of peculiar facts and circumstances – Such circumstances can at least be used as supporting evidence about the mental condition alongwith other evidence available on record. (Dhanraj & Ors. Vs State of Maharashtra) 2003(2) Apex Court Judgments 167 (S.C.)

Dying declaration – Murder – Deceased died of burn injuries – Injuries happened to be 95% – Executive Magistrate recorded dying declaration for 45 minutes – Doubtful whether for 45 minutes patient in that serious condition could go on responding to questions to the extent of minute details. (State of Maharashtra Vs Sanjay) 2005(1) Criminal Court Cases 603 (S.C.)

Dying declaration – Not true and voluntary and a manufactured one to implicate the accused – Reliance cannot be placed on such dying declaration. (Pramod Kumar Khadamsingh & Ors. Vs State of Orissa) 2002(3) Criminal Court Cases 244 (Orissa) 

Dying declaration – Oath is not required – Presence of a Magistrate is not absolutely necessary – When such statement is recorded by a Magistrate there is no specified statutory form for such recording – It is essential that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind – If Magistrate proves by his testimony that declarant was fit to make the statement even without examination by the doctor declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful – Certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. (Laxman  Vs State of Maharashtra) 2003(1) Criminal Court Cases 01 (S.C) 

Dying declaration – Oral – Can form basis of conviction in a given case but such dying declaration has to be trustworthy and free from every blemish and inspire confidence. (Natha Vs State of Madhya Pradesh) 2003(2) Criminal Court Cases 26 (M.P.) 

Dying declaration – Parcha bayan can in a given case be taken as dying declaration. (Mst.Amina Vs State of Rajasthan) 2003(1) Criminal Court Cases 436 (Rajasthan) 

Dying declaration – Principles governing – Analysed. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does contain the details as the occurrence it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.  (Muthu Kutty & Anr. Vs State by Inspector of Police, Tamil Nadu) 2005(1) Criminal Court Cases 859 (S.C.) : 2005(1) Apex Court Judgments 389 (S.C.)

Dying declaration – Recorded by doctor – If declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration.   (Kanaksingh Raisingh Rav Vs State of Gujarat) 2003(1) Apex Court Judgments 14 (S.C.) : 2003(1) Criminal Court Cases 285 (S.C.) 

Dying declaration – Recorded by Magistrate – Absence of medical certificate that injured was in a fit state of mind at the time of making declaration – Magistrate categorically stated in his evidence that the declarant was in a fit state of mind – Held, dying declaration can be acted upon. (Laxman  Vs State of Maharashtra) 2003(1) Criminal Court Cases 01 (S.C) 

Dying declaration – Recorded by Magistrate – Doctor certified that deceased was fit to make statement  and doctor appended certificate at the foot of statement that deceased remained conscious throughout her statement – Absence of words ‘fit state of mind’ would not render the declaration unacceptable. (Radhey Sham Vs State of Punjab) 2003(1) Criminal Court Cases 222 (P&H) 

Dying declaration – Recorded by Magistrate in presence of doctor who endorsed the statement that victim was in fit conscious state of mind – Non examination of doctor who recorded endorsement on dying declaration – Not fatal to prosecution case when Magistrate had satisfied that deponent was in a fit condition to make the statement. (Shaik Nurjahan Vs State of A.P.) 2004(3) Criminal Court Cases 348 (A.P.)

Dying declaration – Recorded by Police Officer – Doctor opined that deceased was in a fit state of mind to make the statement but present when statement was recorded and that the said statement was signed by deceased in token of its correctness – Adds credibility to the same. (Vidhya Devi & Anr. Vs State of Haryana  ) 2004(4) Criminal Court Cases 61 (S.C.)

Dying declaration – Recorded by police official in presence of doctor – Deceased had sustained 80 to 85% ante mortem burns – No material to show that dying declaration was result of product of imagination, tutoring or prompting – It appeared trustworthy and had credibility – Courts below were justified in pacing reliance on it for convicting appellant. (P.V.Radhakrishna Vs State of Karnataka) 2003(2) Apex Court Judgments 311 (S.C.)

Dying declaration – Reliability – Statement may be brief or longish but deceased must be in a fit state of mind and capable of making a statement at the point of time when dying declaration was made or recorded – If Court entertains grave doubts as to physical fitness and mental state to make the statement, Court may in the absence  of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. (Ladga Majhi Vs The State of Orissa) 2002(2) Criminal Court Cases 350 (Orissa) 

Dying declaration – Serious doubt as to whether the victim has at all made any dying declaration or that he was in a position to make any such dying declaration in view of the seriousness of injury which resulted in fracture of left temporal and parietal bone and caused laceration of brain also – Not believable that victim made any dying declaration. (Prithvi Raj Vs State of Rajasthan) 2003(2) Criminal Court Cases 587 (Rajasthan) 

Dying declaration – Should be in question answer form – In case it is not so recorded but is otherwise held to be proved, no successful challenge can be made by the defence on this score. (Bimal Kumar Vs State of Punjab) 2005(2) Criminal Court Cases 456 (P&H)

Dying Declaration – Suicide – Two dying declarations – In first dying declaration only a general allegation against mother in law – Second dying declaration recorded by a Head constable after 5 minutes of first dying declaration – Allegation of harassment against husband and mother in law – Dying declarations not consistent – Not safe to rely on them without corroboration. (Lella Srinivasa Rao  Vs  State of Andhra Pradesh ) 2004(2) Criminal Court Cases 390 (S.C.)

Dying declaration – To be admissible in evidence it is not necessary that maker of statement at the time of making statement should be under shadow of death or should entertain the belief that his death was imminent. (State of Haryana Vs Mange Ram & Ors.) 2003(1) Apex Court Judgments 135 (S.C.) : 2003(1) Criminal Court Cases 372 (S.C.)

Dying Declaration – Two dying declaration – First one by Magistrate and second by Police officer – Magistrate taking precaution of sending relatives of deceased out of room – No such precaution taken by police officer – Court to consider each of them in its correct prospective and satisfy itself which one of them reflects the true state of affairs – Dying declaration made before magistrate relied on. (Nallam Veera Stayanandam & Ors.  Vs.  The Public Prosecutor, High Court of A.P. ) 2004(2) Criminal Court Cases 269 (S.C.)

Multiple dying declarations – Court has to scrutinize all the declarations available and has to arrive at a conclusion whether such declarations inspire confidence for the purpose of convicting the accused – Earliest version may have to be given due weight. (Golla Hanumanthu Vs State of A.P.) 2005(2) Criminal Court Cases 327 (A.P.)

Multiple dying declarations – Earliest oral dying declaration that deceased had told PW1 that incident happened when she was making an attempt to light the stove – Except that nothing more had been stated – Held, subsequent versions in improved form definitely are doubtful. (Golla Hanumanthu Vs State of A.P.) 2005(2) Criminal Court Cases 327 (A.P.)

Oral dying declaration – Is a weak evidence – In absence of any independent corroboration it cannot be relied upon. (Birsa Munda & Anr. Vs State of Jharkhand) 2002(3) Criminal Court Cases 619 (Jharkhand) 

Oral dying declaration – Should be proved strictly and in a cogent and convicting and satisfactory manner and much more so when Court has to act upon it for convicting accused on its basis. (Mudavath Hema Naik & Anr. Vs State of A.P.) 2004(1) Criminal Court Cases 91 (A.P.)

Post mortem report – Non examination of doctor who conducted autopsy over the dead body – Attendance of doctor could not be procured – Post mortem report is admissible in evidence. (Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa) 

Suit for cancellation of sale deed alleging that defendants got it executed from his father ‘S’ by playing fraud – Plaintiff filed family register maintained under Panchayat Raj Act, indicating that plaintiff is son of ‘S’ and also certified copy of Will of ‘S’ wherein it is indicated that plaintiff is son of ‘S’ – Statement of ‘S’ in Will is admissible in evidence – Plaintiff has locus standi to file suit – Illustration (k) of S.32 and not S.32(5) and (6) of Evidence Act apply. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Two dying declarations – Materially different versions given with regard to actual occurrence and role played by each accused in two dying declarations, one recorded by police and other by Magistrate – Held, it could not be made basis for conviction. (Battina Govindamma & Ors. Vs State of A.P.) 2002(3) Criminal Court Cases 570 (A.P) 

Two dying declarations – One recorded by Police and second by Magistrate – Glaring contradictions in the two dying declarations – Even the motives given in two dying declaration entirety different – Held, contradictions create a doubt as to whether the injury suffered by deceased was really because of the act of the accused or was a figment of the imagination of the deceased. (Chinnamma Vs State of Kerala) 2004(4) Criminal Court Cases 16 (S.C.)

Dying declaration – Once the Court comes to the conclusion that the declaration is a truthful version, there is no question of further corroboration. (Sakhari Alias Shakuntala Mundala Nayak Vs State of Maharashtra) 2004(3) Criminal Court Cases 420 (Bombay)

Dying declaration – Recording of – Deceased knew Hindi language only – Magistrate asked questions in English and doctor translated it – Deceased gave answers in Hindi – Both Magistrate and doctor had working knowledge of Hindi – Magistrate noted gestures of deceased – Possibility of any tutored statement ruled out – Dying declaration relied on. (B.Shashikala Vs  State of Andhra Pradesh) 2005(2) Criminal Court Cases 540 (S.C.)

Rape – Girl aged committing suicide within an hour of rape – Prosecutrix narrated the incident to her mother – Statement of victim is admissible – S.32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death – Conviction u/s 306 and 376 IPC upheld. (Sunil Kumar Arjun Das Gupta Vs State of M.P.) 2003(1) Criminal Court Cases 124 (M.P.) 

Both the provisions are exception to the general principle that best should be direct – Section 32 renders statement of relevant facts made by a person, who is dead, or who cannot be found or who has become incapable of giving evidence, etc., admissible in evidence as to the relevant facts when it relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute raised – Section 33 provides the conditions necessary to be satisfied to admit as secondary evidence testimony given by a witness in a former judicial proceeding or before any person authorized by law to take it for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party – The statement as to any fact in issue or relevant fact to be admissible as an admission must be such as are relevant and may be proved against the person, who makes them or his representative in interest and not on behalf of the person, who makes them, unless when it is of such a nature that if the persons making it were dead, it would be relevant as between third person under Section 32. (Mahila Bajrangi (dead) through L.Rs. & Ors. Vs Badribai & Anr.) 2003(1) Apex Court Judgments 104 (S.C.)

Suicide by wife – Cruelty by husband – Suicide note in handwriting of deceased, found in jacket of deceased, recovered at time of inquest – Suicide note implicating husband as person responsible for her committing suicide – Rejection of suicide note as “plant” and also on ground that handwriting was identified by deceased’s father and other relatives who were interested and unreliable witnesses – Rejection of suicide note, which is in nature of dying declaration not justified in background of cruel treatment meted out to deceased, as evidenced by depositions of other witnesses – Acquittal of accused on ground that demand for dowry was not proved is erroneous, as “cruelty” is wider and is not confined to dowry harassment – Order of acquittal, reversed. (State by Kamakshipalya Police, Bangalore Vs Maregowda & Ors.) 2002(1) Criminal Court Cases 141 (Kant.)

Dying declaration – Maker of proported dying declaration when survives – Statement is not one u/s 32 Evidence Act – It is a statement in terms of S.164 Cr.P.C. and can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction. (State of U.P. Vs Veer Singh & Ors.) 2004(4) Criminal Court Cases 48 (S.C.)

Applicability of the provision –  There are three pre-requisites and they are (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (iii) that the questions in issue in both the proceedings were substantially the same – In the absence of any of the three pre-requisites Section 33 of the Act would not be attracted. (Sashi Jena & Ors. Vs Khadal Swain & Anr.) 2004(1) Apex Court Judgments 528 (S.C.)

Account books – Loos sheets – Are not books of account kept in regular course of business. (M.Krishna Rao Vs M.L.Narasikha Rao) AIR 2003 A.P. 498

Books of accounts – Entries – Proved by official staff – Neither objected nor evidence produced to doubt correctness of those entries – Held, said entries are admissible in evidence. (Kulamani Mohanty Vs Industrial Development Corporation of Orissa Ltd.) AIR 2002 Orissa 38

Books of account – Loose sheets contained in files are not books of account. (M.Krishna Rao & Anr. Vs M.L.Narasikha Rao & Ors.) 2004(2) Civil Court Cases 265 (A.P.)

Entries in books of account – Numerous entries extending over a large number of years – Defendant neither disputed any entry nor cross examined the witnesses of the account books – Held, statement of witnesses produced by plaintiff are sufficient to fix the defendant with liability. (State Bank of India Vs. M/s.H.Satish Hosiery Factory, Modhopuri & Anr.) 2004(2) Civil Court Cases 553 (P&H)

Entries in books of account – Proof – Parties having business transaction with each other – Entries made in books of account sufficiently supported by evidence of ST form which could not be forged or procured – Held, entries in books of account rightly considered as relevant by Courts below. (M/s Roshan Industries & Ors. Vs M/s Mohan Lal) 2005(1) Civil Court Cases 243 (P&H)

Entry in books of account – By itself not sufficient to charge any person with liability – Some further evidence to establish the entries is desirable and highly essential to establish the debt – An entry in ledger that a certain sum was paid to defendant is not by itself sufficient to establish the payment unless supported by any receipt or voucher to that effect. (N.Satyanarayana Raju Vs Chekuri Gopalakrishnaraju) 2004(2) Civil Court Cases 636 (A.P.)

Entries in books of record made by a person who is dead – S.32(2) is attracted according to which the statement made by a dead person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business etc. is by itself relevant. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Admissibility of a document under section 35 – Three conditions to be satisfied viz. (1) Entry that is relied on must be one in a public or other official book, register or record; (2) It must be an entry stating a fact in issue or relevant fact; and (3) It must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. (Partap Singh Vs State of Jharkhand & Anr.) 2005(2) Criminal Court Cases 334 (S.C.)

Age – Birth entries in School register – Evidentiary value – No reliable evidence to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person – Entry is not of much evidentiary value. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Date of birth – Entry in school register – Entry is relevant and admissible but entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. (Partap Singh Vs State of Jharkhand & Anr.) 2005(2) Criminal Court Cases 334 (S.C.)

Entry in birth and death register – Incorporated in register kept and maintained by competent authority – Admissible in evidence. (Chitru Devi Vs Ram Dei) AIR 2002 H.P. 59

Entry in public record – To be considered subject to relevancy and by assessing evidence as a whole and not in isolation. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Revenue entries – Presumption of truth – No rebuttal – Reliance can be placed on revenue entries. (Dumnu Ram Vs Madan Lal) AIR 2002 HP 141

Voters list – Prepared by competent official of election department in discharge of his official duty – Not challenged by plaintiff before competent authority in any proceedings – Voters list is admissible in evidence. (Chitru Devi Vs Ram Dei) AIR 2002 H.P. 59

Judgment by a matrimonial Court – It is a judgment in rem and is binding on the whole world – The declaration given in such judgments conferring a status or taking it away is a conclusive proof of that legal character. (M/s Sachdeva Rice Mills Vs Smt.Raj Anand) 2003(1) Civil Court Cases 582 (P&H) 

Judgment of criminal court – Finding of fact – Not relevant in civil suit except to prove acquittal or conviction – Civil Court has to reach its own conclusion as to commission or non commission of act giving rise to claim in suit. (Nawab Deen Vs Sohan Singh) AIR 2002 HP 143

Age – Proof – Opinion of doctor – Doctor is not always truthful – Opinion of doctor is not conclusive – It being opinion evidence as such it has to be judged along with other evidence. (Kamlesh Vs State of Uttar Pradesh) 2003(1) Criminal Court Cases 93 (Allahabad) 

Ballistic expert – Report – Admissibility – Identifiable marks on pellets – Recovery of 12 bore country made pistol, 13 live cartridges 12 bore, one foreign made pistol, 6 live cartridges and a motorcycle – Three pellets extricated from body during post mortem – Ballistic expert conducted detailed laboratory test fires and microscopic examination – Opinion given that three lead pellets marked must have been fired from a 12 bore country made pistol – He deposed that he had prepared the report on basis of microscopic examination and he had also taken photographs of the pellets – Held, in case of country made pistol, ballistic expert can found identifying marks on pellets – Failure to produce micro-photographs is not fatal when expert has given convincing reasons to support his opinion. (State of M.P. through C.B.I etc. Vs Paltan Mallah & Ors. etc.) 2005(1) Criminal Court Cases 899 (S.C.)

Divergent reports of two Handwriting experts – Court is justified in ignoring the reports and placing reliance on the testimony of attesting witnesses and the scribe. (Balbir Singh  Vs Sarup Singh & Ors.) 2004(2) Civil Court Cases 186 (P&H)

Expert – His opinion that defendant on reverse of pronote whereunder last payment was made, was forged one – Expert not appearing as witness and not subject to cross examination – His report alone cannot be treated as evidence. (Sri Balaji Traders Vs Ponnuri Lakshmaiah) AIR 2002 A.P. 234

Expert – Opinion – Value – Opinion of Handwriting expert need not be taken into consideration when there is direct and trustworthy evidence in proof of the disputed document – However, expert’s evidence assumes importance when there are serious doubts about the credibility of the direct witnesses. (Bolisetti Venkateswara Rao Vs Nadakuditi Venkateswara Rao) 2003(1) Civil Court Cases 36 (A.P.) 

Expert evidence – Opinion without reasons is not conclusive – Opinion without reasons should be corroborated either by clear or by circumstantial evidence – If opinion is very sound, it may be accepted without corroboration. (Lala Ram Vs State of Rajasthan) 2003(3) Criminal Court Cases 212 (Rajasthan) 

Expert opinion – Not binding on Court – Court does not become functuous officio to draw conclusion if expert has also given opinion or finding. (Thyseen Vs Steel Authority of India) AIR 2002 Delhi 255

Expert opinion – Two divergent opinions by two experts – One expert gave cogent reasons that document is forged – Reasons given by another expert not cogent – Court is entitled to rely upon opinion of  expert giving cogent reasons. (Balwinder Kaur Vs Bawa Singh) AIR 2002 P&H 378

Finger print expert – Three pronotes alleged to be executed by petitioner on different dates – Attesting witnesses supported said case of plaintiff – Defendant asserted that three promissory notes were executed on same day – Filed application for sending up of said promissory notes to Finger Print Expert – Evidence of expert cannot override positive evidence of attesting witnesses – Order dismissing said application – Proper. (Uttamchand Sarma Vs Jasti Chinna Veerabhadra Rao) AIR 2004 A.P. 225

Handwriting – Expert opinion – Cannot be rejected on ground that he is remunerated witness or that it is based on imperfect science. (Ameer Mohammed Vs Barkat Ali) AIR 2002 Rajasthan 406

Handwriting expert – If not examined as a witness – No value or weightage can be given to his opinion. (Bapurao & Ors. Vs State of Maharashtra) 2004(1) Criminal Court Cases 483 (Bombay)

Handwriting expert – There is no rule of law that opinion evidence of handwriting expert must never be acted upon, unless substantially corroborated – As human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination,  the acceptability or  creditworthy  of the same depends. (Alamgir Vs State (NCT, Delhi)) 2003(1) Apex Court Judgments 66 (S.C.)

Medical evidence – – Medical evidence and oral evidence – Contradiction – Appreciation – It is trite law that when oral evidence is credible and cogent, medical evidence is contrary, is inconsequential – Only when the medical evidence totally improbabilises the oral evidence, adverse inference can be drawn. (Anil Kumar Vs State of U.P.) 2005(1) Criminal Court Cases 01 (S.C.)

Thumb impression – Science of identification – The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. (Parukutty Amma Vs Thankam Amma) 2004(2) Civil Court Cases 33 (Kerala)

Opinion u/s 45 is by an expert by a scientific comparison whereas opinion u/s 47 is on the basis of familiarity resulting from frequent observations and experiences – In both cases Court is required to satisfy itself by such means as are open to conclude that opinion may be acted upon – Irrespective of opinion Court can compare the admitted writing with disputed writing  and can come to its own independent conclusion – Ordinarily Ss.45 & 73 are complementary to each other – Evidence of Handwriting expert need not be invariably corroborated.   (Lalit Popli Vs Canara Bank & Ors.) 2003(1) Apex Court Judgments 383 (S.C.)

“Witness against himself” – Giving of finger-impressions or specimen writing or signature by an accused person – Cannot be said to be a witness against himself – Thus Court can ask an accused to give his thumb impression. (Maya Bansal Vs State of Raj.) 2003(2) Criminal Court Cases 210  (Rajasthan)

Expert opinion – Cannot be disrespected unless some more material and/or some contrary evidence and/or report is placed on record by contesting party – Where there was expert opinion on record and said expert opinion was duly  proved by examining the expert himself, said expert opinion cannot be discarded. (Vasanta  Vs Walmik ) 2005(1) Civil Court Cases 168 (Bombay)

Thumb impression or specimen signatures for comparison – Court can exercise power at instance of complainant during trial but not at stage of investigation. (Maya Bansal Vs State of Raj.) 2003(2) Criminal Court Cases 210  (Rajasthan) 

Relationship – Proof – To be proved by examining such witnesses who had exclusive knowledge of relationship of the parties and any other documentary evidence – No witness examined showing that marriage was solemnised between the parties or that they had seen both of them living as husband and wife – Birth of two children showing them to be born to them is not sufficient to establish the marriage. (Amar Kaur Vs Dhanna Singh & Ors.) 2004(2) Civil Court Cases 176 (P&H)

Suit for cancellation of sale deed alleging that defendants got it executed from his father ‘S’ by playing fraud – Allegation by defendant that plaintiff is not son of ‘S’ and his mother ‘K’ was not second wife of ‘S’ – This fact is required to be proved by defendants themselves – Plea that plaintiff is required to prove by producing relatives of ‘S’ to prove factum of marriage – Not tenable – Plaintiff is not required to give evidence u/s 50 of the Act. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Issue of adoption – Deposition by cousin of person who adopted, family priest and family barber that giving and taking ceremony took place at residence of natural father – Witnesses having special means of knowledge, their evidence held relevant on issue of adoption. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Bad character – Evidence of bad character of accused cannot be adduced unless the accused leads the evidence of good character – This prohibition does not apply in a case where bad character of any person is itself in issue. (Prithvi Singh Vs State of U.P.) 2002(3) Criminal Court Cases 36 (Allahabad) 

Admission in written statement – Certified copy of written statement filed in earlier suit produced – Admission in written statement is admissible u/s 58 and cannot be discarded on ground that certified copy of written statement is not public document under S.65. (Raman Pillai Krishna Pillai Vs Kumaran Parameswaran) AIR 2002 Kerala 133

Document – Proof – Once the document is proved then it is not obligatory upon that party to lead further evidence to prove the contents of the document – Onus is then on the other party to lead cogent and proper evidence, documentary or otherwise to show that the contents of the document were incorrect or that they have been in possession prior or after execution of that document. (Hoshiar Singh Vs Ram Kumar & Ors.) 2004(3) Civil Court Cases 186 (P&H)

Secondary evidence – Document not stamped and unregistered – Secondary evidence disallowed – Held, it would be premature for trail Court to go into said question. (Swaran Singh Vs Narinder Kaur) AIR 2002 P&H 40

Secondary evidence – Photostat copy – Can be received as secondary evidence unless its authenticity is doubtful and if the party having possession of original fails to produce it in spite of issuing notice. (Amangenti Prameela & Anr. Vs P.Venkat Reddy (Died) per LRs. & Ors.) 2004(2) Civil Court Cases 465 (A.P.)

Secondary evidence – Proof of Will – Proof of carbon copy of Will by secondary evidence as original alleged to be destroyed by opposite party – Carbon copy not bearing signatures of testator and attesting witnesses – Cannot be considered as true copy of original – Secondary evidence can be allowed only when original is proved to have been lost or misplaced – Where execution of Will itself is not proved, question of proving its existence by means of secondary evidence does not arise. (K.P.Krishnakumar Vs Smt.Radhalakshmi Amma) 2005(1) Civil Court Cases 21 (Karnataka)

Sale deed – Loss of original – Certified copy – Without taking any steps for production of the original or laying the foundation for secondary evidence, production of a certified copy by itself is not admissible in evidence. (Hadiani Debi alias Tiki Devi Vs Kailash Panda & Ors.) 2004(2) Civil Court Cases 211 (Orissa)

Secondary evidence – A copy of unstamped document, which is required to be stamped – Cannot be proved by way of secondary evidence. (Akkam Laxmi Vs Thosha Bhoomaiah) 2003(1) Civil Court Cases 452 (A.P.) 

Secondary evidence – Agreement to sell – Original with vendor – Copy given to vendee lost – Photostat copy produced in suit for specific performance – Could be admitted as secondary evidence. (L.S.Sadapopan Vs K.S.Sabarinathan) AIR 2002 Madras 278

Secondary evidence – Agreement to sell – Photostat copy – Can be received as secondary evidence subject to satisfaction of conditions laid down in the provision – Person intending to adduced secondary evidence has to prove to the satisfaction of Court, the existence, condition, or contents of the original – For this purpose independent evidence has to be adduced to show that the document in its original form existed, as to its contents and obviously, the availability of it with a particular individual – Mere assertion is not sufficient. (Trilokchand Jain Vs Gurrapu Rajamouli & Anr.) 2004(3) Civil Court Cases 406 (A.P.)

Secondary evidence – Agreement to sell – Suit for specific performance – Defendant failed to produce original agreement in his possession – Defendant could not prove that original document was lost and he had lodged complaint with police – Plaintiff is entitled to tender photocopy of agreement. (Dwarika Prasad Bajpai Vs Kedar Prasad Bajpai) AIR 2004 Calcutta 204

Secondary evidence – Can be allowed if there is loss or destruction of the document – Such permission of the Court to lead secondary evidence is summary in nature and the party propounding the document has to prove the factum of execution of the document during the course of trial. (Ved Parkash  Vs Rattan Lal Aggarwal) 2005(1) Civil Court Cases 103 (P&H)

Secondary evidence – Compromise submitted in police station – Attested copy issued – MHC summoned who stated that original compromise is not traceable – Compromise neither pleaded in plaint nor in replication – Name of ASI of Police Post not given to whom it was submitted – Copy of DDR not placed on record – Held, if original document was not in existence at any stage secondary evidence cannot be allowed. (Ram Diya Vs Brij Mohan) 2005(1) Civil Court Cases 369 (P&H)

Secondary evidence – Document in possession of a person not party to the suit – No evidence that document is in possession of that person – Serving of notice to that person to produce the document – Failure of that person to produce the document – In such an eventuality clause (b) of S.65 is attracted –  Secondary evidence can be allowed when it is proved by independent evidence as to the existence, condition or contents of the original. (Trilokchand Jain Vs Gurrapu Rajamouli & Anr.) 2004(3) Civil Court Cases 406 (A.P.)

Secondary evidence – Existence of document and that despite notice it is not  produced by the party in whose custody the document is kept is a sine qua non for allowing secondary evidence. (Hari Singh Vs Shish Ram) 2003(1) Civil Court Cases 554 (P&H)  

Secondary evidence – Existence of document and that it is capable of being proved by secondary evidence is a must – Proper foundation is also required to be laid to establish right to adduce secondary evidence. (P.K.Gupta Vs Varinder Sharma) AIR 2002 P&H 342

Secondary evidence – Photostat copy of agreement produced and plea raised that original is in possession of defendant – Defendant raising plea that agreement is fabricated by plaintiff and he deliberately produced photostat – Rejection of application – Held, summary rejection of application without affording opportunity to both parties to adduce evidence regarding existence, condition or contents of document, not proper – Court directed to decide application afresh after affording opportunity to parties. (P.K.Gupta Vs Varinder Sharma) AIR 2002 P&H 342

Secondary evidence – Photostat copy of minutes of Panchayat – Not admissible in absence of notice to produce it under S.66 of Act. (Hemant Kumar Agrahari Vs Smt.Lakshmi Devi) AIR 2004 Allahabad 126

Secondary evidence – Registered mortgage deed – Original is required to be with the plaintiff – Plaintiff not able to locate the same – Secondary evidence allowed. (Ved Parkash  Vs Rattan Lal Aggarwal) 2005(1) Civil Court Cases 103 (P&H)

Secondary evidence – Registered mortgage deed – Certified copy –  Cannot be held to be a public document certified copy of which can be produced in evidence as secondary evidence in terms of S.65(f) of Evidence Act. (Ved Parkash  Vs Rattan Lal Aggarwal) 2005(1) Civil Court Cases 103 (P&H)

Secondary evidence – Certified copy of Will – Plaintiff never received original will – S.65(a) not applicable – Consequently S.66 also not required to be followed – Certified copy of Will is admissible in evidence for purpose of proving contents of original document in view of Ss.63(1), 65(f) and S.79 Evidence Act r/w S.57 Registration Act. (Hameed & Ors. Vs Kanhaiya) 2005(1) Civil Court Cases 146 (Allahabad)

Secondary evidence – Photostat copy – Not admissible in evidence in absence of notice u/s 66 of Evidence Act. (Hemant Kumar Agrahari & Anr. Vs Smt.Lakshmi Devi & Anr.) 2004(2) Civil Court Cases 50 (Allahabad)

Secondary evidence – Rent note – In earlier ejectment petition landlord had admitted that the demised shop had been given on rent on the basis of a rent note – Death of landlord – Question of serving notice on him to produce the original rent note therefore could not arise – Secondary evidence allowed. (Ashok Kumar Vs Sukhvarsha Diwan) 2003(2) Civil Court Cases 491 (P&H) 

Endorsements made at the time of registration are relevant to the matters of registration only – On account of registration of a document presumption as to correctness or regularity of attestation cannot be drawn. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Attesting witness – When sole attesting witness who is alive and aged gave evidence evasively and purposely against the attestation, other evidence can be adduced to prove execution of the document. (Parukutty Amma Vs Thankam Amma) 2004(2) Civil Court Cases 33 (Kerala)

Document – Proof – Document required to be attested is to be proved by examining atleast one attesting witness – However, when execution of a document is not denied it is not necessary to prove the document by examining any scribe or attesting witness or the executant, more so in respect of a registered document. (G.Ramaiah (Dead) by LRs. Vs Muthyala Prakash & Anr.) 2004(2) Civil Court Cases 334 (A.P.)

Partition deed – Not compulsorily attestable – S.68 Evidence Act is not applicable to Partition Deeds. (K.Chinna Thimma Reddi Vs K.A.Venkatarami Reddi (Died) & Ors.) 2004(2) Civil Court Cases 698 (A.P.)

Registered document – A document by law required to be attested is required to be proved in accordance with S.68 of Evidence Act – Mere registration does not dispense with the need of proving execution and attestation. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Registered document – Proof – Registrar as a witness – When Registrar of Deeds satisfies the requirements of an attesting witness he must be called in the witness box to depose to the attestation – Evidence of Registrar is to be appreciated and evaluated like the testimony of any other attesting witness. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Registrar – Attesting witness – A Registrar of deeds before he be termed an attesting witness has to be called in the witness box – Court must feel satisfied by his testimony that what he did satisfies the requirement of an attesting witness. (Bhagat Ram & Anr. Vs Suresh & Ors.) 2004(1) Apex Court Judgments 80 (S.C.) : 2004(2) Civil Court Cases 297 (S.C.)

Will – One attesting witness examined who admitted his signatures but pleaded ignorance of its facts – Provision for proof of execution of Will by other independent evidence – Provision can be pressed into service only when both attesting witnesses deny knowledge of execution of Will – When only one attesting witness examined denies knowledge of execution of Will and other attesting witness is not called at all to testify, provision cannot be pressed into operation. (Robert D’Mello Vs Henry D’Mello & Anr.) 2003(3) Civil Court Cases 396 (Karnataka) 

Love letters – Proof of handwriting of prosecutrix – Court can direct any person present in Court to give his handwriting for comparison with the writing alleged to have been written  by such person – Order of trial Court declining request of accused for an order of specimen handwriting of prosecutrix cannot be sustained and the same quashed. (Ram Dev Vs State of Rajasthan) 2005(2) Criminal Court Cases 717 (Rajasthan)

Cheque – Name, date and amount alleged to be put by complainant and complainant denied this suggestion – Accused moved an application for comparison of his handwriting with the disputed handwriting on the cheque – Court instead ordering comparison of handwriting of complainant with the disputed handwriting on cheque – Held, Magistrate has committed no illegality or irregularity. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)

Cheque – Name, date and amount alleged to be put by the complainant and complainant denied this suggestion – Court directing for comparison of handwriting of complainant with the disputed handwriting on the cheque – Held, Magistrate has committed no illegality or irregularity. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)

“Any person” – Covers all the persons including complainant as well as accused who is present in Court. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)

Direction for giving specimen signatures – Direction u/s 73 cannot be given for the purpose of enabling the opposite party to use the specimen handwriting or signature as evidence against the person who has given it. (Bhaskaran Vs Sankaran) 2003(1) Criminal Court Cases 470 (Kerala) 

Disputed signatures – Comparison by Court – It is not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other – Prudent course is to obtain the opinion and assistance of an expert. (Jyothis Kuries and Loans Vs George Jose) 2004(2) Civil Court Cases 200 (Kerala)

Expert – Rejection of evidence on ground that expert had no qualifications – Not proper. (Nallabothu Vs Garre) AIR 2003 A.P. 201

Expert evidence – Direct and circumstantial evidence lending support to evidence of export – Expert evidence well supported by cogent reasons – Finding by Court that document was forged one without taking into consideration expert evidence on ground that he spoke about natural variations in between disputed and admitted signatures and thus did not give correct opinion – Cannot be accepted. (Nallabothu Purnaiah Vs Garre) AIR 2003 A.P. 201

Handwriting or thumb impression – Opinion of an expert – Even when the assistance of an expert is obtained it is for the Court to make its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. (Bhaskaran Vs Sankaran) 2003(1) Criminal Court Cases 470 (Kerala) 

Signatures – Comparison – Matter pending in Court – Court can send documents for comparison of signatures u/s 73 of the Evidence Act. (Naresh Batra Vs State of U.T., Chandigarh) 2003(1) Criminal Court Cases 289 (P&H) 

Specimen signatures – Magistrate cannot direct a person to give specimen signatures while case is under investigation. (State of Haryana Vs Jagbir Singh & Anr.) 2004(1) Apex Court Judgments 57 (S.C.) : 2004(1) Criminal Court Cases 296 (S.C.)

Specimen writing for comparison – Cannot be ordered when case is at the stage of investigation – Direction for specimen writing can only be issued when an inquiry or trial is pending in Court. (Karamjit Singh Vs State (U.T.) Chandigarh) 2005(1) Criminal Court Cases 910 (P&H)

Specimen writing – Court can direct any person present before it to write any words or figures for comparison of words or figures so written with any words or figures alleged to have been written by such person or for sending to handwriting expert – However, there is no element of compulsion under the provision of S.73 Evidence Act. (Jai Prakash Vs State of Rajasthan & Anr.) 2005(2) Criminal Court Cases 690 (Rajasthan)

Writing – Comparison – Court in a pending proceeding can direct any person present in Court to give specimen writing for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. (Ram Dev Vs State of Rajasthan) 2005(2) Criminal Court Cases 717 (Rajasthan)

Specimen handwriting – During investigation – Direction of Court to accused to give handwriting in course of investigation to enable investigating agency to compare such writing – Can be made under provision of S.164 Cr.P.C. – Section 73 of Evidence Act is no impediment – Handwriting opinion so obtained during investigation can be read into evidence despite the bar created by S.73 of Evidence Act. (Sanjay Goel Vs State of U.P.) 2002(1) Criminal Court Cases 439 (All.)

Disputed signatures – Comparison by Judge – Subject of handwriting law is intricate and highly scientific in its approach – There are men specially trained and competent to express opinions on the disputed signatures – Judge should not take upon himself the task of comparing the signatures – Prudent course is to obtain opinion and assistance of an expert. (Veerabhadrappa Vs The Manager, State Bank of Mysore ) 2005(1) Civil Court Cases 67 (Karnataka)

Power of attorney – Registered – Certified copy – Not a public document within meaning of S.74 – Hence inadmissible in evidence. (Bidhan Paul Vs Paresh Chandra Ghosh) AIR 2002 Gauhati 46

Public document – Is admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2004(2) Civil Court Cases 01 (S.C.) : 2003(2) Apex Court Judgments 614 (S.C.)

Assessment order – Certified copy – Per se admissibility – Assessment order is a public document and certified copies of public documents are per se admissible in evidence. (Harbans Lal Vs Leena Rani) 2002(1) Criminal Court Cases 599 (P&H)

Birth and death register entry – Can be proved by filing certified copy. (Maha Singh & Ors. Vs Bakhtawari) 2003(1) Civil Court Cases 682 (P&H) 

Birth entry – Name of daughter not mentioned – Immaterial as normally a child is named later on. (Maha Singh & Ors. Vs Bakhtawari) 2003(1) Civil Court Cases 682 (P&H) 

Public document of foreign country – Can be proved by a copy certified by the legal keeper thereof with a certificate either of a Notary Public or an Indian Counsel or a Diplomatic Agent – Such document fulfills the requirements of S.78(6). (Mehnga Singh & Ors. Vs Gurdial Singh & Ors.) 2004(2) Civil Court Cases 525 (P&H)

General Power of attorney – Executed by a person residing outside India – Duly authenticated by a Notary Public – Fulfills the requirement of S.33 Registration Act – It does not require registration in India – Its original or certified copy is admissible in evidence and attaches a rebuttal presumption of its valid execution. (Chanan Kaur alias Channo Vs Pakhar Singh & Ors.) 2004(2) Civil Court Cases 225 (P&H)

Maps or plans – Made for purpose of any cause must be proved by the person who has prepared them. (Ushabai  Vs Wasudeo & Ors.) 2004(3) Civil Court Cases 94 (Bombay)

Maps or plans – Made for the purpose of any cause  – Must be proved to be accurate – Onus of proving that such a map is accurate lies on the party who produced it. (Kishanlal Maniklal Rathi Vs Dinkar Yashwant Patil) 2004(2) Civil Court Cases 456 (Bombay)

 Document more than 30 years old – Presumption – Document executed in the year 1928 alleged to be proof of fact that marriage had been placed between defendant and a certain person and not between defendant and plaintiff’s father – Failure of plaintiff to prove that said document was produced from proper custody – Document produced for first time in first appeal – Evidence not produced as to how document came in her custody – Document not admissible. (Chitru Devi Vs Ram Dei) AIR 2002 H.P. 59

Thirty years old document coming from a proper custody – Presumption as to its due execution arises under Section 90 Evidence Act. (Sunehri Devi  Vs Lachhmi) 2004(3) Civil Court Cases 45 (P&H)

Insufficiently stamped document – Secondary evidence – Once original document is found not admissible in evidence then secondary evidence by way of oral evidence of Xerox copy of such document cannot be allowed to be received – Allowing party to confront Xerox copy of such document to witnesses is not permissible. (Lakshmamma Vs Riyaz Khan) AIR 2003 Karnataka 197

Dimensions of the area not mentioned in the document – Parole evidence with regard to furnishing particulars and dimensions – Are admissible. (Bhagwana Vs Mohinder Dass) 2005(1) Civil Court Cases 71 (P&H)

Document whether a mortgage deed or rent deed – Court can examine the realintention of the parties executing a document and the nature and intent of the transaction can be gathered by Court from the terms of the document itself. (Banarsi Dass Vs Gian Chand) 2005(1) Civil Court Cases 292 (P&H)

Agreement for sale – Oral evidence can be given to show that actual transaction was loan transaction and not as agreement for sale. (K.Bhaskaran Nair Vs Habeeb Mohammed) AIR 2002 Kerala 308

Registered adoption deed – Recitals clearly indicated that adoption took place on the date mentioned in the deed – Oral evidence to show that adoption took place on different date – Not admissible. (M.D.Gopalaiah Vs Smt.Usha Priyadarshini) AIR 2002 Karnataka 73

When a document is silent, the existence of any separate oral evidence which is not inconsistent with the terms incorporated in the document, may be proved. (Bhagwana Vs Mohinder Dass) 2005(1) Civil Court Cases 71 (P&H)

Construction of documents with the aid of extrinsic evidence – (1) Where the language used is on its face ambiguous or defective so as to render the meaning unintelligible or where the language though intelligible creates an obvious uncertainty of the meaning, extrinsic evidence is wholly inadmissible because it is a patent ambiguity; (2) where the language used is quite plain and intelligible but some difficulty arises in applying it to existing facts, for example, when a description is partly correct and partly incorrect, parol evidence is admissible to identify the subject matter; (3) where the language used is such that part of a description applies to one subject matter and part to another, but the whole does not apply correctly to either, parol evidence is admissible; (4) where the language used is plain and intelligible and applies equal to two or more persons or two or more things and it is necessary to ascertain to which person or thing the words were intended to apply, parol evidence is admissible;  (5) in construing the document, the intention must be gathered from the document itself-  However, if there is ambiguity in the language used in the document, it is permissible to look to surrounding circumstances to gather the intention, such as user or possession and enjoyment; Categories (2), (3) and (4) pertain to latent ambiguity. (Pradeep Kumar Vs Mahaveer Pershad) 2003(2) Civil Court Cases 586 (A.P.) 

Burden of proof and onus of proof – There is difference between the two – Initial onus of proof is always on plaintiff – If plaintiff discharges that onus and makes out a case which entitle him to the relief, the onus shifts on the defendant to prove the circumstances, if any, which would disentitle the plaintiff to that relief. (Augur Nath Vs Kishan Chand) 2003(2) Civil Court Cases 208 (P&H) 

Agreement to sell – Subsequent agreement between parties superseding previous agreement – Plea by vendee that subsequent agreement was got executed by playing fraud or in ignorance his signatures were obtained – Burden to prove same is on vendee. (Smt.Sunder Bai & Ors. Vs Nonit Ram) 2004(2) Civil Court Cases 173 (M.P.)

Burden of proof – When a person is bound to provide the existence of any fact, it is said that the burden of proof lies on that person. (K.Mani Vs Elumalai) 2003(3) Civil Court Cases 247 (Madras) 

Burden of proof – Matter pleaded by plaintiff and controverted by defendant – Has to be positively proved by plaintiff and not negatively disproved by defendant. (Heirs Kantilal Purshottamdas Patel Vs Dahiben Jagdish Rathod) AIR 2003 Gujarat 82

Burden of proof – When both parties have adduced evidence, the question of onus of proof becomes academic. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Burden of proof and onus of proof – Burden of proof lies upon a person who has to prove the fact and which never shifts – Onus of proof shifts – Such a shifting of onus is a continuous process in the evaluation of evidence. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Suit based on title – In a suit for possession based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Accused abducted deceased and they were last seen in the company of deceased – It is for accused to establish as to how injuries were caused. (Kumar @ Kumarasamy & Ors. Vs State) 2004(4) Criminal Court Cases 714 (Madras)

Private defence – Burden of proof – Is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police, T.Nadu) 2002(3) Criminal Court Cases 676 (S.C.) 

Private defence – Not required to be proved by calling evidence – It can be established by reference to circumstances transpiring from the prosecution evidence itself. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police, T.Nadu) 2002(3) Criminal Court Cases 676 (S.C.) 

Private defence – The defence pleaded must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling any further reasonable apprehension, from the attacker. (Sekar @ Raja Sekharan Vs State rep. by Inspector of Police, T.Nadu) 2002(3) Criminal Court Cases 676 (S.C.) 

Statement of accused recorded u/s 313 Cr.P.C. – Court can consider admissions made by accused as his explanation u/s 106 of Evidence Act. (State of Maharashtra Vs Shivaji Anandrao Chede) 2003(2) Criminal Court Cases 538 (Bom.)

Burden of proof – Any fact especially within the knowledge of a person, the burden of proving that fact is upon him. (Sushil Kumar Vs Rakesh Kumar) 2003(2) Apex Court Judgments 690 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Non production of best evidence – Party in possession of best evidence within his knowledge to produce the same, if does not produce – Adverse inference can be drawn against him. (A.S.Rathinam Vs A.S.Ponnammal) 2003(3) Civil Court Cases 86 (Madras) 

Death – Presumption after expiry of seven years – Date of death has to be proved in same manner as any other fact is proved. (Eliamma Simon Vs Seven Seas Transportation Ltd.) AIR 2002 Kerala 219

Missing person – Presumption does not automatically arise as to exact date of death of missing person – Presumption cannot be drawn of death of missing person as the date that immediately followed the lapse of seven years from date of  his disappearance. (Eliamma Simon Vs Seven Seas Transportation Ltd.) AIR 2002 Kerala 219

Death – Presumption as to date/time of death – Cannot be drawn in respect of person not heard of for seven years – But, can be inferred on basis of evidence, factual or circumstantial – Onus of proving that person was alive/dead on particular date/time is upon the person who asserts it – S.108 is exception to rule enacted in S.107 relating to presumption of human life for thirty years. (L.I.C. of India Vs Anuradha) 2004(1) Apex Court Judgments 715 (S.C.)

Relationship of landlord and tenant and title of landlord denied – Burden lies on defendant to prove absence of relationship of landlord and tenant and also to prove that plaintiff is not the owner. (Raees Ahmed  Vs Shrigopal Prakash) 2003(1) Civil Court Cases 666 (Rajasthan) 

Fraud, misrepresentation or undue influence – Onus of proof – Burden of proof is on the party who so alleges – But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position. (Krishna Mohan Kul @ Nani Charan Kul & Anr. Vs Pratima Maity & Ors.) 2003(2) Apex Court Judgments 368 (S.C.)

Child – Legitimacy – Where marriage is itself disputed, presumption of legitimacy in favour of child cannot be drawn. (Bommi & Anr. Vs Munirathinam) 2004(3) Civil Court Cases 276 (Madras)

Child – Paternity – Birth of child during continuation of marriage is a conclusive proof of legitimacy – Burden of proof is on the person who asserts illegitimacy. (M/s Sachdeva Rice Mills Vs Smt.Raj Anand) 2003(1) Civil Court Cases 582 (P&H) 

DNA test – Husband excluded from possible paternity of the child – Is of no consequence unless presumption u/s 112 of Evidence Act is not displaced by husband by proving non access. (Sajitha Vs State of Kerala) 2003(1) Civil Court Cases 78 (Kerala) 

DNA test – Husband excluded from possible paternity of the child – Is of no consequence unless presumption u/s 112 of Evidence Act is not displaced by husband by proving non access. (Sajitha Vs State of Kerala) 2003(1) Criminal Court Cases 24 (Kerala) 

Paternity and maternity both denied – Presumption u/s 112 is not applicable. (Madhulika Verma Vs Prabhawati Verma) 2003(3) Civil Court Cases 234 (M.P) 

Suicide within seven years of marriage – Evidence showing assault by accused on deceased on the date of incident supported by other circumstances leading to conclusion that being unable to bear the brunt, young wife ended her life – Conviction cannot be interfered with. (Abani Goswami @ Jitu Goswami Vs State of Assam) 2003(3) Criminal Court Cases 438 (Gauhati) 

If wife is subjected to cruelty or torture and commits suicide within 7 years of her marriage, Court may presume that husband abetted suicide. (Murugesan @ Subramaniam Vs State) 2002(2) Criminal Court Cases 657 (Madras)

Dowry death – Presumption – Burden of Proof – Presumption would arise only after prosecution establishes death within seven years – Initial burden of proof is on prosecution – Onus put on accused to prove date of marriage not proper – Conviction set aside. (Baljeet Singh and Another  Vs.  State of Haryana ) 2004(2) Criminal Court Cases 468 (S.C.)

Dowry death – Presumption – Ingredients to raise presumption – Presumption would arise only after prosecution establishes death within seven years otherwise than in normal circumstances and – Soon before death deceased was subjected to cruelty or harassment in connection with demand of dowry by persons accused of offence – No presumption can been drawn without establishment of both the ingredients. (Baljeet Singh and Another  Vs.  State of Haryana ) 2004(2) Criminal Court Cases 468 (S.C.)

Dowry death – ‘Soon before’ – It is a relative term and it depends upon circumstances of each case and no strait jacket formula can be laid down – It would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question – There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death – If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. (Hira Lal & Ors. Vs State (Govt. of NCT) Delhi) 2003(3) Criminal Court Cases 187 (S.C.) 

Un-natural death in husband’s house within three months of marriage – Explanation of husband that deceased was pregnant and felt dejected due to miscarriage and that he could not bring a suit of her choice on occasion of marriage of niece – Explanation not acceptable – These incidents are not sufficient for a young girl to end her life – Conviction upheld. (Krishan Kumar Vs State of Haryana) 2003(2) Criminal Court Cases 243 (P&H) 

Un-natural death in husband’s house within three months of marriage – Has to be explained by husband on some reasonable hypothesis. (Krishan Kumar Vs State of Haryana) 2003(2) Criminal Court Cases 243 (P&H) 

Dowry death – Husband harassed wife as demand of Rs.40,000/- not met – Deceased committed suicide by taking poison – Presumption is that it was dowry death – Statement of defence witness that relations between husband and wife were normal – Not believed as outsiders may not know what is happening inside home. (Rameshwar Dass Vs State of Punjab) 2002(3) Criminal Court Cases 154 (P&H) 

Suicide by woman – Charge of cruelty against husband and in-laws – Gap of four years between incident of cruelty and commission of suicide – Held, there is no nexus between two and presumption, consequently, cannot be made – Acquittal is justified. (State Vs Srikanth) 2002(3) Criminal Court Cases 554 (Karnataka) 

Brothers, sisters living separate and aged parents of husband are generally roped in litigation for demand of dowry – Court while framing charge should be very cautious – Charge should be framed when there is cogent and convincing evidence – If on the face of complaint it shows that complaint is false, charge should not be framed. (Mukesh Rani Vs State of Haryana) 2002(2) Criminal Court Cases 123 (P&H)

Dowry death and abetment of suicide by married women – Framing of charge – Alternative charges for both offences must be framed, as both involves element of presumption under Sections 113-B and 113-A of the Evidence Act. (State by Kamakshipalya Police, Bangalore Vs Maregowda & Ors.) 2002(1) Criminal Court Cases 141 (Kant.)

Failure to cross examine on a vital issue – Adverse inference will be drawn. (Mehnga Singh & Ors. Vs Gurdial Singh & Ors.) 2004(2) Civil Court Cases 525 (P&H)

Question as to payment made by plaintiff – Defendant did not examine himself to controvert the oral evidence of plaintiff in this respect – Court can draw adverse inference against the defendant. (Louiz Vs Augustin) 2004(3) Civil Court Cases 464 (Kerala)

Adverse inference – Be drawn against a party who suppresses and does not produce original documents. (Indian Bank, Chittoor Vs V.R.Venkataraman & Ors.) 2004(2) Civil Court Cases 491 (A.P.)

Adverse inference – Party not entering into witness box – Adverse inference can be drawn against him. (Krishna Devi & Ors. Vs Amarjit & Ors.) 2004(2) Civil Court Cases 593 (P&H)

Adverse inference – Suit for partition as adopted son – Issue of adoption – Fact that natural father though alive not examined to prove factum of adoption – Non examination does not amount to suppressing material evidence in absence of proof that examination of natural father would have been detrimental to case of plaintiff. (Bhami Bewa Vs Krushna Chandra Swain @ Gochhayat & Ors.) 2004(2) Civil Court Cases 543 (Orissa)

Document if pleaded but not produced – Non production of such document would give rise to drawl of an adverse inference to the effect that had such document been produced, the same would have gone against his interest. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Existence of a fact – Presumption – Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened – In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. (State of Andhra Pradesh Vs V.Vasudeva Rao) 2004(1) Criminal Court Cases 137 (S.C.)

Notice – Sent under Certificate of Posting – There is presumption that notice was received by the addressee. (C.E.I. Consultancy Vs M/s Modi World Infotech) 2002(3) Criminal Court Cases 218 (A.P.) 

Party not entering into witness box – Presumption has to be drawn that the version raised in pleading is not true. (Indian Bank, Chittoor Vs V.R.Venkataraman & Ors.) 2004(2) Civil Court Cases 491 (A.P.)

Prevention of Corruption Act, 1988, S.20 – Presumption – Scope and Ambit – Presumption is not the final conclusion – But could be final if it remains undisturbed – Presumption in law of evidence is a rule indicating the  stage  of shifting the burden of proof – However,  as  a caution of prudence it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. (State of Andhra Pradesh  Vs  C.Uma Maheswara Rao & Anr. ) 2004(2) Criminal Court Cases 791 (S.C.)

When an application is filed but not pressed it leads to an inference that applicant was not interested in the said application. (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H)

Man and woman living together – Long cohabitation – Children born out of cohabitation – Presumption of marriage arises – Burden to prove lies on the person who alleges their matrimonial status. (Neelavva Vs Divisional Controller) AIR 2002 Karnataka 347

Signature – Admitted – Presumption arises that it is executed by signatory – Presumption is not applicable when language of document is not known to executant – Burden lies on other party to prove that contents of document were explained to executant and he affixed his signature on being aware of its contents. (B.R.Koteshwara Rao Vs G.Rameshwari Bai) AIR 2004 A.P. 34

Rape – Consenting party – Deposition of prosecutrix that she was subjected to sexual intercourse against her will and without her consent – Held, it is for the accused to prove that prosecutrix was consenting party. (Akhtar Vs State of Haryana) 2002(2) Criminal Court Cases 64 (P&H)

Rape – Testimony of prosecutrix not suffering from any infirmity – In such a case Court will presume that victim did not consent. (Devinder Vs State of Haryana) 2003(2) Criminal Court Cases 673 (P&H) 

Rape – Gang rape – Consent – In gang rape if the prosecutrix states that she did not consent to sexual intercourse then Court is to presume that she did not consent. (Kuldip Singh & Anr. Vs State of Punjab)  2003(3) Criminal Court Cases 104 (P&H)

Promise to marry – Intercourse with consent of prosecutrix – Absence of consent – Burden is on prosecution to prove absence of consent – Of course, position is different if case is covered by S.114-A of Evidence Act – Consent or absence of it can be gathered from the attendant circumstances – Previous or contemporaneous acts or the subsequent conduct can be legitimate guides. (Deelip Singh @ Dilip Kumar Vs State of Bihar) 2005(1) Criminal Court Cases 655 (S.C.)

Rape – When sexual intercourse by the accused is proved, the Court shall presume that victim was raped and she did not give consent for sexual intercourse. (Rajendran & Ors. Vs State of Tamil Nadu) 2003(1) Criminal Court Cases 290 (Madras) 

Res judicata and estoppel – Res judicata debars Courts from exercising its jurisdiction – Doctrine of estoppel can be invoked against party – Doctrine of res judicata creates Estopper by Accord. (Bhanu Kumar Jain Vs Archana Kumar & Anr.) 2005(1) Apex Court Judgments 121 (S.C.) : 2005(1) Civil Court Cases 725 (S.C.)

Age – Mentioned in bail application to take benefit of minority – Cannot be totally ignored – A person is not expected to take false ground regarding his age before the Court – Whether it was accepted or not is immaterial – The maker of it is bound by the same and he cannot be permitted to take advantage of his own wrong. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Date of birth – Horoscope – If maker of the horoscope is not produced nor it is proved to be prepared in due course of time and events, cannot be looked in evidence to prove date of birth. (Sushil Kumar Vs Rakesh Kumar) 2003(2) Apex Court Judgments 690 (S.C.) : 2004(2) Civil Court Cases 63 (S.C.)

Parties cannot be permitted to rely upon a part of a document and at the same time raise a contention that the same is inadmissible. (Sushil Kumar Vs Rakesh Kumar) 2004(2) Civil Court Cases 63 (S.C.) : 2003(2) Apex Court Judgments 690 (S.C.)

Estoppel – A person inducted as tenant by appellant – He is estopped from attorning any other as landlord. (R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P.Temple & Ors.) 2003(2) Apex Court Judgments 614 (S.C.) : 2004(2) Civil Court Cases 01 (S.C.)

Relationship of landlord and tenant – Denial by tenant – Auction sale by Municipal Council – Tenant attorned purchaser and making payment of rent – Till the auction sale is set aside it cannot be said that purchaser did not acquire a valid title – Sale effected by purchaser in favour of respondents not suffering from any infirmity – Tenant is estopped from denying the relationship of landlord and tenant. (Sheikh Noor Vs Sheikh G.S.Ibrahim) 2003(3) Civil Court Cases 286 (S.C.) : 2003(2) Apex Court Judgments 158 (S.C.)

Tenant is estopped from denying that the landlord did not have valid title to the property rented out to him. (Darshan Kumar Vs Mahesh Kumar) 2003(3) Civil Court Cases 671 (P&H) 

Waiver – Is a question of fact which has to be established by parties who wish to rely upon such principle. (Jagjit Singh Bains Vs Brij Mohan Sharma) 2003(3) Civil Court Cases 614 (P&H) 

Child – Abduction of child of 10 years for ransom – Accused gave injuries and threw the child when he became unconscious – Accused convicted and sentenced to life imprisonment mainly on statement of child – Child could not be shattered in cross examination – Court found him fit to make statement after putting questions – There is no bar for Court to act upon the testimony of a child witness. (Ajay Kumar Vs State of Punjab) 2003(1) Criminal Court Cases 554 (P&H) 

Rape – Competent Witness – Appreciation of evidence – Rural and illiterate witness – Victim not an intelligent girl, had passed out in class 3 on third attempt – Her Mother a rustic woman and illiterate – To examining their evidence with microscopic approach would be insult to justice – Approximate dates or periods given – Evidence relied. (State of Himachal Pradesh Vs Shree Kant Shekari) 2005(1) Criminal Court Cases 158 (S.C.)

Rape – Of child aged 5/6 years – Victim was under great trauma and this could be reason that after a lapse of 15/16 months of the incident she was not in a position to even raise a finger of accusation towards the appellant – Conduct of victim does not create any doubt in the mind of Court so far as involvement of accused is concerned – Case otherwise proved by eye witnesses – Conviction upheld. (Kapoor Singh alias Kapoora Vs State of Haryana) 2005(2) Criminal Court Cases 692 (P&H)

Rape – Victim dumb, deaf and mentally retarded – At time of medical examination doctor considered victim to be a person who was in a position to understand the writing relating to consent – Nothing on record to indicate that she was not a person who could understand questions put to her or give rational answers – The authority to decide whether such a person is competent witness is Court – Non examination of victim would deprive defence of right of cross-examination – Accused acquitted. (Suresh  Vs State of Maharashtra) 2004(1) Criminal Court Cases 326 (Bombay)

Rape of 5 years child – Statement of child witness natural, true and voluntary and supported by Medical evidence – There was no motive to make false statement – A father would never expose his daughter to ignominy except when unavoidably necessary – Conviction and sentence of life imprisonment, upheld.  (Malkiat Singh Vs State of Punjab) 2005(2) Criminal Court Cases 269 (P&H)

Rape of child aged 5 years – Statement of victim not recorded during investigation and she not named as a witness in the list of prosecution witnesses – Victim brought in witness box at the instance of Court – Opportunity to cross examine given – Lacuna, if any, in not recording statement of victim at Investigation stage does not make any difference as proper opportunity was given to defence to cross examine the victim. (Malkiat Singh Vs State of Punjab) 2005(2) Criminal Court Cases 269 (P&H)

Child witness – A competent witness to depose – Court can convict an accused on the basis of evidence of a child witness if Court finds that child witness has the capacity of understanding and gives truthful answers – However, the rule of prudence is to seek corroboration to the evidence of child witness before it is made foundation for conviction – A child witness is susceptible to being tutored and because of tutoring he is so much impressed that he begins to believe that what is tutored to him is the truth – Court, therefore has to be extremely cautious while accepting the evidence of the child witness. (Baban Bakayya Attre Vs State of Maharashtra) 2002(1) Criminal Court Cases 341 (Bom.)

Child witness – Before recording statement, Court put questions and satisfied itself with the rational answers given – When answers given are intelligible and rational then child witness is competent to depose before the Court. (Ajay Kumar Vs State of Punjab) 2003(1) Criminal Court Cases 554 (P&H) 

Child witness – Decision whether child witness has sufficient intelligence primarily rest with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. (Ratansinh Dalsukhbhai Nayak Vs State of Gujarat) 2004(1) Criminal Court Cases 416 (S.C.)

Child witness – Evidence Act does not prescribe any particular age as determinative factor to treat a witness to be a competent one  – A child of tender age can be allowed to testify if he had intellectual capacity to understand questions and gives rational answers thereto. (Ratansinh Dalsukhbhai Nayak Vs State of Gujarat) 2004(1) Criminal Court Cases 416 (S.C.)

Child witness – Evidence of child witness not to be per se rejected – However Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (Ratansinh Dalsukhbhai Nayak Vs State of Gujarat) 2004(1) Criminal Court Cases 416 (S.C.)

Child witness – Is a competent witness – Court should look for corroboration to ensure that the child witness has not deposed under the influence of any person because of his tender age – If Court comes to the conclusion that the testimony of the child witness inspires confidence and has not been shaken in cross-examination and finds corroboration from other circumstances then there is no bar for Court to act upon the testimony of a child witness. (Ajay Kumar Vs State of Punjab) 2003(1) Criminal Court Cases 554 (P&H) 

Child witness – When a child witness gives answers fearlessly, intelligently and boldly and gives minute details of the occurrence and withstood the cross-examiantion, the credibility of such a child witness cannot be discarded on the ground of being a child. (Pawan Kumar Vs State of Haryana) 2004(2) Criminal Court Cases 768 (P&H)

Power of attorney holder – There is no embargo for a power of attorney holder to appear as a witness – Power of attorney holder whether has personal knowledge about the controversy or not is a question which can be thrashed out by cross-examining him and only if it is found that power of attorney holder had no personal knowledge about the facts in controversy, the evidentiary value of his deposition can be whittled down. (Raees Ahmed  Vs Shrigopal Prakash) 2003(1) Civil Court Cases 666 (Rajasthan) 

Rape victim – Deaf and dumb – Statement recorded by signs without assistance of an expert – Her testimony cannot be discarded solely on the basis of non assistance by an expert in recording her statement – Victim had narrated incident to her mother and brother immediately and they supported the version of prosecutrix – Victim was a married lady having three children – Absence of injury in her private parts not a reason to disbelieve her – No material to draw any inference as to her consent or that her testimony was unnatural or improbable – Conviction and sentence calls for no interference. (Deshraj Vs State of Rajasthan) 2005(2) Criminal Court Cases 264 (Rajasthan)

Deaf and dumb witness – Prayer for cross examination of such witness in presence of expert – Declined by trial Court – Permission given to cross examine the witness,  by himself putting questions in the language of signals, so as to elicit answers. (Nar Khan Vs State) 2002(1) Criminal Court Cases 438 (Raj.)

Deaf and dumb witness – Statement recorded by signs without assistance of an expert – Held, there is no reason to discard her testimony solely on the basis of non assistance by an expert in recording her statement. (Deshraj Vs State of Rajasthan) 2005(2) Criminal Court Cases 264 (Rajasthan)

Deaf witness – Can be examined on Commission as is provided u/s 119 of the Evidence Act. (Kamla Bakshi Vs Union of India & Ors.) 2004(3) Civil Court Cases 145 (J&K)

Dialogue between husband and wife is inadmissible – However what is witnessed by wife is admissible in evidence as witnessing a thing is not communication. (Bhalchandra Namdeo Shinde Vs State of Maharashtra) 2003(3) Criminal Court Cases 193 (Bombay) 

State case and private complaint on basis of same incident – Witness facing trial in private complaint only – Even if he is compelled to depose as witness in State case that would not amount to compulsion to give evidence against himself. (State of Maharashtra Vs Balasaheb @ Ramesh Laxman Deshmukh) 2002(1) Criminal Court Cases 271 (Bom.)

Accomplice – Accomplice means an associate in crime – Accomplice is a  competent witness against accused – A person who is under threat of death or other form of pressure cannot be considered a willing participant in crime and thus an accomplice – Principles regarding testimony of an approver and his corroboration – Enumerated. (Babu Lal Kahar Vs State of Bihar) 2003(2) Criminal Court Cases 684 (Patna) 

Accomplice – Conviction of an accused on the testimony of an accomplice cannot be said to be illegal but Court will as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. (K.Hashim Vs State of Tamil Nadu) 2005(1) Criminal Court Cases 635 (S.C.)

Accomplice – Is a competent witness to give evidence -However conviction cannot be based on uncorroborated testimony of approver – Nature and extent of such corroboration depends upon facts of each case – Where confession made by approver is self exculpatory, no reliance can be placed on evidence of such approver. (Banwari Lal Vs State of Himachal Pradesh)  2003(3) Criminal Court Cases 36 (H.P.) 

No particular number of witnesses is required for proof of any fact – Evidence has to be weighed and not counted – Conviction can be based on evidence of one credible eye witness. (Kishan Singh Vs The State of Rajasthan) 2002(3) Criminal Court Cases 237 (Rajasthan) 

Nature of document disputed – When finding as to nature of documents is to affect the rights of either party either way then Court to allow parties to adduce evidence during trial,  after receiving the disputed document with an endorsement ‘subject to admissibility’, on all issues including the nature of the disputed document. (Idamakanti Ananthamma  Vs Idamakanti Ramanamma) 2003(2) Civil Court Cases 86 (A.P.) 

Co-defendant – Cross examination – Condition precedent for giving an opportunity to cross examine co-defendant is that there exists a conflict of interest between them and if there is no conflict of interest then such an opportunity need not be given. (M/s Ennen Castings (P) Ltd. Vs M.M.Sundaresh) 2003(3) Civil Court Cases 526 (Karnataka) 

Cross examination – A party which fails to avail of the opportunity to cross-examine at the appropriate stage is precluded from taking the plea of non-observance of principles of natural justice at a later stage. (Daroga Singh & Ors. Vs B.K.Pandey) 2005(1) Criminal Court Cases 442 (S.C.)

Defence witness – Not cross examined as post of P.P. was not manned – Held, it is not a statement in the eye of law and it is not admissible in evidence. (Anwar Ali Vs State of Rajasthan) 2003(1) Criminal Court Cases 531 (Rajasthan) 

No cross-examination of a witness of facts stated by him in his examination – Inference to be drawn is that the statement of the  witness was not contested.  (Jaswinder Singh & Ors. Vs Kartar Singh & Ors.) 2004(3) Civil Court Cases 80 (P&H)

Proforma defendant – Cross examination – A proforma defendant has no right to examine either adversely or friendly plaintiff’s witnesses – Nor he has any right to bring his own witnesses and cross examine adversely defendant’s witnesses – Moreso when proforma defendant has not filed any written statement. (State of West Bengal Vs Smt.Rama Devi) 2003(1) Civil Court Cases 48 (Calcutta) 

Cross examination by co-defendant – Can be allowed when rights of co-defendant are in conflict. (M/s Ennen Castings (P) Ltd. Vs M.M.Sundaresh) AIR 2003 Karnataka 293

Proforma defendant – Has no right to examine either adversely or friendly plaintiff’s witnesses – Nor he has any right to bring his own witnesses and cross examine adversely defendants witnesses – Moreso when he has not filed any written statement. (State of West Bengal Vs Rama Devi) AIR 2002 Calcutta 235

Re-examination – Object – It is for the purpose of reconciling any discrepancies that may exist between examination-in-chief and cross-examination or for the purpose of removing or diminishing any suspicion that the cross-examination may have cast on the evidence in-chief  or to enable the witness to state the whole truth as to matters which have only been partially dealt with in cross-examination. (Subhash Chandra Vs The State of Rajasthan) 2002(2) Criminal Court Cases 597 (Rajasthan) 

Re-examination – Opposite party with permission of Court has right to further cross examine upon the matter. (Subhash Chandra Vs The State of Rajasthan) 2002(2) Criminal Court Cases 597 (Rajasthan) 

Re-examination – Star witness in murder trial – In later part of his cross-examination stating in favour of accused – Matter being grave it is proper on part of prosecutor to seek re-examination of witness by way of explanation – Improper to reject prayer for re-examination by the Court. (Subhash Chandra Vs The State of Rajasthan) 2002(2) Criminal Court Cases 597 (Rajasthan) 

Suggestions made in cross examination of prosecution witnesses – May be called into aid only to lend assurance to prosecution case. (Rajesh Namdeo Mhatre Vs State of Maharashtra) 2003(1) Criminal Court Cases 55 (Bombay) 

Hostile witness – At the stage of cross examination by defence witness declared hostile – Prosecution allowed to cross examine the witness – Accused is entitled to cross-examine the witness to the extent the witness in the cross-examination done by the Public Prosecutor has contradicted himself in relation to the statements/admissions made by him in the examination-in-chief. (Pradhan Vs State of Maharashtra ) 2005(2) Criminal Court Cases 476 (Bombay)

Cross examination – Need not to be confined to the facts to which the witness testified on his examination in chief. (Nasir Khan & Anr. Vs State of Chhattisgarh)   2003(2) Criminal Court Cases 271 (Chhattisgarh) 

Two set of defendants – Set of defendants opposing to the plaintiff’s case most be allowed to cross examine the plaintiff’s witnesses after the other set of defendants have cross examined. (Chandra Sekhar Pattjoshi Vs Jogendra Pattjoshi & Ors.) 2004(2) Civil Court Cases 09 (Orissa)

Cross examination partly held – Death of defendant in meantime – His evidence is not inadmissible – There is no provision in law that if a witness is not cross-examined either in full or in part his evidence would be absolutely inadmissible – How much weight such evidence carries is to be decided considering other facts and circumstances surrounding it – Provisions of S.33 are not applicable to such a case. (Dever Park Builders Pvt.Ltd. & Ors. Vs Smt.Madhuri Jalan) 2003(1) Civil Court Cases 598 (Calcutta) 

Witness – Not fully cross examined – Death of witness – His evidence would not be inadmissible – How much to be attached shall be decided considering other facts and circumstances surrounding it. (Dever Park Builders Pvt.Ltd. Vs Madhuri Jalan) AIR 2002 Calcutta 281

Cross examination – Written statement not filed – Still party has right to cross examine witnesses of plaintiff and to participate in the process of hearing – However, the scope of cross-examination cannot be permitted to travel beyond limited object of pointing out falsity or weakness of plaintiff’s case and in any case, it cannot be converted into presentation of defence theory. (Suryabhan Vs Shobha Bhimrao Pawar) 2003(2) Civil Court Cases 155 (Bombay) 

Prosecution witness can only be contradicted with statement recorded u/s 161 Cr.P.C. – Defence witness cannot be contradicted or corroborated either by prosecution or defence with aid of a statement recorded u/s 161 Cr.P.C. (State of Kerala  Vs Ramachandran) 2002(3) Criminal Court Cases 534 (Kerala) 

Cross examination of witness with previous statement – There is no prohibition imposed by S.145 for contradicting the witness from his previous statement recorded otherwise  than during investigation under S.162 Cr.P.C. (Jagdish Chamriya Barela Vs State of M.P.) 2002(3) Criminal Court Cases 361 (M.P.) 

Contradictions – Provision of S.145 Evidence Act is applicable only when same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding – Witness cannot be contradicted by the statement of another witness – Evidence of a witness cannot be demolished by referring to the evidence of other witnesses. (Chaudhari Ramjibhai Narasangbhai Vs State of Gujarat & Ors.) 2004(1) Criminal Court Cases 500 (S.C.)

Discrediting PW – Defence version not put to PW in cross examination – No credence can be given to defence evidence. (Majid Vs State of Haryana) 2002(2) Criminal Court Cases 499 (S.C.)

Previous statement – Disowning by witness – Witness should be cross examined by inviting his attention to those parts of it which are to be used for the purpose of contradicting him – Unless done so testimony of a witness will not be vitiated. (Raj Kishore Jha Vs State of Bihar & Ors.) 2004(1) Criminal Court Cases 213 (S.C.) : 2003(2) Apex Court Judgments 656 (S.C.)

Statement recorded u/s 164 Cr.P.C. by a committal Court – It is a previous statement and can be made use by the defence for the purpose of contradiction and for the purpose of impeaching the credibility of the evidence given by the witness. (Criminal Procedure Code, 1973, S.164). (Allaudin Vs State of Assam) 2004(3) Criminal Court Cases 130 (Gauhati)

Witness – Contradiction with previous statement – Even in civil cases a witness can be contradicted with his statement recorded u/s 162 Cr.P.C. (Jagdish Chamriya Barela Vs State of M.P.) 2002(3) Criminal Court Cases 361 (M.P.) 

Witness – Impeaching credit – Former statement – Unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. (Bhanwari & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 114 (Raj.)

‘Previous statement made in writing or reduced into writing’ – Does not expressly refer to a statement made or recorded either under Section 161 or 164 Cr.P.C. – The statement made in writing or reduced into writing need not be before any authority as such. (State Vs P.Seshagiri Rao & Anr.) 2002(1) Criminal Court Cases 317 (A.P.)

Witness – Impeaching credit – A witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court by calling his attention to those parts of it which are to be used for the purpose of contradiction. (Bhanwari & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 114 (Raj.)

Witness – Former statement – Contradiction – Unless former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness since there are bound to be some discrepancies between the narrations of different witnesses or as between two statements of the same witness. (Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.)

A portion of evidence not consistent with statement u/s 161 Cr.P.C. and witness declared hostile – There cannot be total rejection of the evidence – Portion which is in favour of the prosecution or the accused may be accepted but the same shall be subject to close scrutiny. (Gurpreet Singh Vs State of Haryana) 2003(1) Criminal Court Cases 128 (S.C.) 

Hostile witness – Accused gave answers in favour of defence during cross examination – When the witness had not stuck to the stand in examination-in-chief and no permission was taken then, order declining permission calls for no interference. (State of Bihar Vs Lalu Prasad @ Lalu Prasad Yadav) 2002(3) Criminal Court Cases 317 (S.C.) 

Hostile witness – Court not to straightaway discard their evidence – If evidence of hostile witness is found to be consistent with theories put for, either by prosecution or defence same can be made use of by either side.  (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka)

Hostile witness – Entire evidence of a hostile witness is not effected. (Aman Kumar & Anr. Vs State of Haryana) 2004(2) Criminal Court Cases 212 (S.C.)

Hostile witness – Evidence of a hostile witness not to be totally rejected – It can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence may be accepted. (State of Rajasthan Vs Teg Bahadur) 2005(1) Criminal Court Cases 49 (S.C.)

Hostile Witness – Evidentiary value – If a witness is declared hostile it does not result in the automatic rejection of his evidence –  Evidence of a hostile witness if it finds corroboration can be taken into account while judging the guilt of an accused. (Lella Srinivasa Rao  Vs  State of Andhra Pradesh ) 2004(2) Criminal Court Cases 390 (S.C.)

Hostile witness – His evidence remains admissible in evidence – Conviction can be based upon the testimony of such witness. (Boina Mallaiah Vs State of A.P.) 2003(2) Criminal Court Cases 617 (A.P.) 

Hostile witness – Merely because plaintiff’s witness did not support him, it cannot be said that he is a hostile witness and speaking falsehood – Evidence of hostile witness need not be rejected in toto. (C.Sesha Reddy Vs T.Basavana Goud) 2004(2) Civil Court Cases 23 (Karnataka)

Hostile witness – Part of testimony – Can be relied if it is creditworthy. (Boina Mallaiah Vs State of A.P.) 2003(2) Criminal Court Cases 617 (A.P.) 

Hostile witness – Reliance on evidence of such a witness – Three aspects to be borne in mind : (a) The court must look  for evidence which is advantageous to the parties; (b) That the Court must be extremely cautious and circumspect before accepting the evidence of a hostile witness; and (c) That it must look for corroboration of the version from other reliable evidence. (Lingu S/o Dharma Meshram Vs State of Maharashtra) 2004(1) Criminal Court Cases 551 (Bombay)

Hostile witness – Testimony of a hostile witness does not completely efface to the ground – Such evidence is admissible in the trial and there is no legal bar to base a conviction upon the testimony if corroborated by any other reliable witness. (Natabar Aunria Vs State of Orissa) 2003(2) Criminal Court Cases 531 (Orissa) 

Credit of a witness can be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. (Majid Vs State of Haryana) 2002(2) Criminal Court Cases 499 (S.C.)

Witness – Impeaching credit of witness – U/s 145 the credit of a witness can be impeached (1) by cross examination of his previous statement without such writing being shown to him (2) If to contradict by recitals, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. (Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.)

Hearsay evidence – For its admissibility prosecution is required to establish that the version given by eye-witnesses was at or about the time when the fact took place – If the version of the eye witness is at the time of the incident, there is no difficulty in applying S.157 of the Evidence Act but in either case the only thing required is to have carefully examined the version. (Tarachand Vs State of Rajasthan)  2002(1) Criminal Court Cases 327 (Raj.)

Previous statement of a particular witness – Can be used to corroborate only his own evidence during trial and not evidence of other witnesses. (Sashi Jena & Ors. Vs Khadal Swain & Anr.) 2004(1) Apex Court Judgments 528 (S.C.)

Examination of Investigating Officer – Refreshing memory from case file -Investigating Officer can refresh his memory from case file and same is not contrary to law. (Harchanda    Vs State of Rajasthan   ) 2004(2) Criminal Court Cases 296 (Rajasthan)