West Bengal Judicial Academy

Supreme Court Judgments on Evidentiary Issues

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1. Dying declaration guiding principles
2. Where there is a conflict between a conclusive proof and a proof based on scientific investigation, the latter must prevail over the former
3. Examination of deaf and dumb witness
4. It is not the plurality of the dying declaration but the reliability thereof that adds weigh to the prosecution case
5. If the evidence relating to extra-judicial confession is found credible after being tested it can solely form the basis of conviction
6. The evidence of the eye witnesses should not be rejected solely on the ground that they are close relatives and interested witnesses
7. What is the nature and manner of admission of electronic records
8. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes
9. An apology tendered is not to be accepted as a matter of course and the court is not bound to accept the same. The court is competent to reject the apology and impose the punishment recording reasons for the same
10. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is partially reliable
11. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance
12. The party sought to produce secondary evidence must establish for the non-production of primary evidence
13. It is well settled in law that discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness
14. The tests to be clearly established when prosecution relies on circumstantial evidence
15. Despite the consequences of a DNA test, this court has concluded, that it was permissible for a court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties
16. Mere change of counsel cannot be ground to recall the witnesses
17. In view of the definition of  DOCUMENT in Evidence Act, and the law laid down by this court, we hold that the compact disc is also a document.
18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a  presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act
19. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that it means facts that are pre-eminently or exceptionally within his knowledge
20. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death
21. The cross-examination is a matter of substance not of procedure one is required to put one’s own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed.
22. So far as principle of estoppel is concerned, it operates against the party and not the Court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted
23. The doctrine of promissory estoppel is a doctrine whose foundation is that an unconscionable departure by one party from the subject matter of an assumption which may be of fact or law, present or future, and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. And the relief to be given in cases involving the doctrine of promissory estoppels contains a degree of flexibility which would ultimately render justice to the aggrieved party
24. This court had clearly laid down that the each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider the each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs
25. Law as to when in a case of circumstantial evidence charge can be said to have been established
26. The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile
27. It is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable
28. This court had clearly laid down that the each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider the each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs
29. Law as to when in a case of circumstantial evidence charge can be said to have been established
30. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration
31. The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile
32. It is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable
33. The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English Law, as an exception to hearsay rule. The rationale behind this Section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the Section are “...so connected... as to form part of the same transaction”.
34. We are also of the view, that the principle of estoppel/promissory estoppel, is not applicable in a situation, where the original position, which the individual enjoyed before altering his position (by opting, or deemingly opting - for being governed by ‘the 1999 Scheme’) can be restored. For the instant proposition, reference may be made to the judgment in Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196.
35. It becomes clear from a perusal of the abovementioned case law that while the evidence of an accomplice can be used to convict an accused, as a rule of prudence, the Court must first ensure that the testimony of the accomplice is corroborated in material particulars by adducing independent evidence. It is also a well settled position of law that the evidence of two accomplices cannot be used to corroborate with each other, as held in the case of R v.Baskerville. The same position of law has been reiterated and adopted in India in a catena of cases.
36. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much 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. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhatisgarh).
37. The evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above.
38. Where the prosecution case rests upon the evidence of a related witness, it is well-settled that the court shall scrutinize the evidence with care as a rule of prudence and not as a rule of law. The fact of the witness being related to the victim or deceased does not by itself discredit the evidence.
39. Presumptions are of two kinds, rebuttable and irrebuttable. Normally any presumption is rebuttable unless the legislature creates an irrebuttable presumption. It is a different question – whether an irrebuttable presumption could be created by a non-sovereign law-making body? That question has not been argued before us and, therefore, we do not examine that proposition.
40. Evidence Act 1872- Ss. 3 to 9, 65-A, 65-B and 62- Electronic Evidence-Standard of proof, authenticity and admissibility
41. Evidence Act 1872 - S. 65-B (4) r/w Ss, 65-(B)1 & 65 (A) and S. 22-A