APPRECIATION OF EVIDENCE ON CRIMINAL SIDE
‘Fiat Justitia’ is the motto of the Court. It is a Latin phrase, which means ‘ Let Justice be done’. Appreciation of evidence involves weighing the credibility and reliability of the evidence presented in the case. According to Bentham, ‘evidence’ is any matter of facts, the effect, tendency or design of which is to produce in the mind, a persuasion, affirmative or dis-affirmative, of the existence of some other matter of fact. Under section 3 the Indian Evidence Act,1872 ‘evidence’ means and includes all statements, which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and all documents including electronic records produced for the inspection of the Court. The standard of proof in Criminal cases is not the same as in the Civil. Importantly, in criminal cases, the burden of proving the guilt of an accused is upon the prosecution. It must stand by itself. Essentially, accused need not establish his case beyond all reasonable doubt. Of course, in some cases, where the burden of proof relating to a fact in issue in a case is on the accused, the stand of proof required of him is not the same as is required from the prosecution. This proposition of law is no more res-integra. Upon such proof as is adduced, if there is a real and reasonable doubt as to his guilt, the accused is entitled to the benefit of doubt. The law always requires that the conviction should be certain and not doubtful. If the evidence on record establishes the truth of the charge and satisfies the reason and judgment of the Court such evidence must be taken to have proved the charge beyond all reasonable doubt justifying conviction. How to appreciate evidence in a criminal case is explained in Sardul Singh vs. State of Haryana, AIR 2002 SC 3462).
Appreciation of the evidence of the injured witnesses:-
In the case of State of Gujarat Vs. Bharwad Jakshibhai and others,1990 CrLJ 2531¬ “For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
Some useful rulings for daily reference of Judicial Officers and Advocates:-
First Information Report :
Rotash vs.State of Rajasthan [(2006) 12 SCC 64]; Baldev Singh vs. State of Punjab – (1990) 4 SCC 692; Ishwar Singh vs. State of U.P – AIR 1976 SC 2423; State of H.P. V. Gian Chand (2001) 6 SCC 71; Dilawar Singh V. State of Delhi reported in 2007 (12) SCC 641; Animireddy Venkata Ramana vs. Public Prosecutor, High Court of Andhra Pradesh – (2008) 5 SCC 368.
Case diary :- Hari Yadhav vs State of Bihar 2008 Cri.L.J. 821; – Bachan Singh vs. State of Bihar – (2008) 12 SCC 23;
Witnesses:- Hostile Witness- –Vikramjit Singh alias Vicky vs. State of Punjab – 2006 AIR SCW 6197; Inimical witness – Kallu alias Masih vs. The State of Madhya Pradesh – 2006 AIR SCW 177; Interested and partisan witness- – Mallanna V. State of Karnataka reported in (2007) 8 SCC 523.; Non-Examination of independent witnesses- Jarnail Singh V. State of Punjab reported in 2009 (1) Supreme 224; Solitary witness – State of Rajasthan V. Om Prakash (2007 (12) SCC 381; Vadivelu Thevar case (AIR 1957 SC 614) ;
Sahib singh vs. State of Haryana (AIR 1997 SC 3247) ; Satbir Singh V. State of Punjab (1977 (2) SCC 263; Nishi Kant Jha vs. State of Bihar (AIR 1969 SC 422); Devku Bhikha vs. State of Gujarat – 1995 AIR SC 2171; Ram Chandra vs. State of U.P. (AIR 1957 SC 381); Bishnu Prasad Sinha V. State of Assam (2007 (11) SCC 467); Vilayuda Pulavar vs State 2009(14) SCC 436; Ram Prakash vs. State of Punjab – AIR 1959 SC 1.
Extra – judicial confession :– State of Punjab vs. Bhajan Singh – AIR 1975 SC 258; Siva Kumar vs. State – 2006 (1) SCC 714; – Narayan Singh and others vs. State of M.P. – AIR 1985 SC 1678; Maghar Singh vs. State of Punjab – AIR 1975 SC 1320; Gura Singh v. State of Rajasthan (2001 (2) SCC 205); Jaswant Gir V. State of Punjab (2005 (12) SCC 438); Chattar Singh and Anr. V. State of Haryana reported in 2008 (8) Supreme 178.
Inquest Report:- State of U.P vs. Abdul (AIR 1997 SC 2512); Radha Mohan Singh vs. State of U.P – (2006) 2 SCC 450; Suresh Rai vs. State of Bihar (AIR 2000 SC 2207); State Rep. by Inspector of Police, Tamil Nadu V. Rajendran & Ors. reported in 2008 (8) Supreme 188; Satbir Singh Vs State of Uttar Pradesh, AIR 2009 SC 2163;
Statements recorded under sections 161 and 164:– State of U.P vs. M.K. Anthony – AIR 1985 SC 48; Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999 SC 3255); Sunil Kumar and others vs. State of M.P. reported in AIR 1997 SC 940; Rajendra singh vs. State of U.P – (2007) 7 SCC 378; Gurnam Kaur vs. Bakshish Singh and others – AIR 1981 SC 631.
Dying declaration:- P.Mani vs. State of T.N. reported in (2006) 3 SCC 161; Laxman V. State of Maharashtra (2002 SCC (Cri.) 1491); Samadhan Dhudka Koli V. State of Maharashtra reported in 2008 (8) Supreme 719; S.Panneerselvam vs State of Tamil Nadu 2008 Cri.L.J 3531.
Common Intention and Common Object:- Kirpal and others vs. State of Uttar Pradesh – AIR 1954 SC 706; Maqsoodan and others vs. State of U.P. – AIR 1983 sc 126; – Shri Kishan and others vs. State of U.P. – AIR 1972 SC 2056; Chittarmal vs. State of Rajasthan – AIR 2003 SC 796; Sivappa and others vs state of Karnataka 2008 Cri.L.J 2992; Surinder Singh V. State of Punjab – 2006 AIR SCW 5454.
Suresh Chandra Bahri vs. State of Bihar – AIR 1994 SC 2420; K.R. Purushothaman vs. State of Kerala – AIR 2006 SC 35; Mohd. Khalid vs. State of W.B. (2002) 7 SCC 334
Test Identification Parade:– Budhsen vs. State of U.P. – AIR 1970 SC 1321; State of Maharashtra vs. Sukhdev Singh – AIR 1992 SC 2100; –Kanan and others vs. State of Kerala – 1980 MLJ (Cri) 1; State of Maharashtra vs. Sukhdev Singh – AIR 1992 SC 2100; State of Goa vs. Sanjay Thakran – 2007 (2) SCC (Cri) 162; Budhsen vs. State of U.P. – AIR SC 1321; State of M.P. vs. Makhan – (2008) 10 SCC 615.
Expert opinion:- S. Gopal Reddy vs. State of Andhra Pradesh (AIR 1996 SC 2184); Amarsingh Ramjibhai Barot vs. State of Gujarat (2005 (7) SCC 550; Mohar Singh and others vs. State of Punjab – AIR 1981 SC 1578; State of Punjab vs. Hakam Singh – (2005) 7 SCC 408; – Anwarul Haq vs. State of U.P. – (2005) 10 SCC 581; The State of Gujarat vs. Vinaya Chandra Lal Pathi – AIR 1967 SC 778; – Mohd. Aman and another vs. State of Rajasthan – AIR 1997 SC 2960; Mahabir Prasad Verma vs. Dr. Surinder Kaur – (1982) 2 SCS 258; Anvaruddin and others vs. Shakoor and others – AIR 1990 SC 1242; Abdul Razak Murtaza Dafadar vs. State of Maharashtra – AIR 1970 SC 283.
DNA Test :-Banarsi Dass vs. Teeku Dutta – (2005) 4 SCC 449; Amarjit Kaur vs. Harbhajan Singh – (2003) 10 SCC 228.
Sarbir Singh vs. State of Punjab – 1993 Supp (3) SCC 41; Padala Veera Reddy v. State of A.P. [1989 Supp (2) Supreme 706]; Gade Lakshmi Mangraju alias Ramesh vs. State of Andhra Pradesh – AIR 2001 SC 2677; Joseph vs. State of Kerala – (2000) SCC (Cri) 926; Reddy Sampath Kumar vs. State of A.P. – (2005) 7 SCC 603; Ponnuswamy vs State of Tamil Nadu 2008 Cri . L. J 2563;.
Conduct of witness and Conduct of accused:
Joseph vs. State of Kerala – 2003 SCC (Cri) 356; – Maha Singh vs. State (Delhi Administration) – AIR 1976 SC 449; Harbans Lal vs. State of Punjab – 1996 SCC (Cri) 312; State of Orissa vs. Brahmananda – AIR 1976 SC 2488.
What is the accused required to prove if he wants to claim the benefit of the exception?
Answer for this question is succinctly explained in Harbhajan Singh vs State Of Punjab: 1966 AIR 97, 1965 SCR (3) 235. Where accused claims exemption under a general exception or a special exception under Penal law, it will be sufficient if he succeeds in proving preponderance of probabilities. In this connection, it may be relevant to refer to the observations made by Hon’ble Supreme Court held in Harbhajan Singh’s (supra), it was observed that where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds “in proving a preponderance of probability.” As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.
Extraneous factors and elements:-
Extraneous fact is nothing but unconnected, and inappropriate fact; it is nonessential, rather it is superfluous. Extraneous factors and elements must always be kept out of mind while judging the guilt. As was pointed out in Palvinder Kaur vs. State of Punjab, AIR 1952 SC 354, Life and liberty of persons cannot be put in jeopardy mere suspicions, howsoever strong, and they can only be deprived of these the basis of definite proof. Judicial officer should never import his own knowledge of facts or of the charcter of the witnesses into the case nor refer to matters which come to his knowledge from other sources. Personal impressions should not find place in judicial orders. Judicial officer should not be moved by hearsay evidence either and should not allow it to be brought on record.
Evidence should be weighed but not counted:–
Undeniably, the evidence of witnesses has to be weighed and tested whatever their numerical strength be. If the case against the accused rests on the evidence only of a single witness to the crime and his testimony is entitled to full credit, that evidence would be sufficient to sustain conviction. The question of corroborative evidence would not then arise at all. A fortiori, Section 134 of the Evidence Act enacts that no particular number of witnesses is required for proof of any fact. In Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614 it was observed on Page 619, as under:- “Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation, In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.”
Evidence must conform to ordinary human conduct, natural course of events and probabilities of the transaction:- The task of a judicial officer is generally commonsensical and judicious. The object and the phenomenon of hearing evidence is to enable and walk through the Court to form its belief in the truth or otherwise of the alleged occurrence and of the guilt of the accused. Belief can be precipitated and engendered only if the said facts accord with reason and commonsense. In this connection, it is worthy of being noted, as said by the Supreme Court in Chaturbhuj Pande v. Collector, (AIR 1969 SC 255) that:
“The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life,”
The discovery of any fact can be had either by direct perception or by inference. Judicial officers have , of necessity, to infer the truth or otherwise from the testimony of the persons who are said to have knowledge thereof by direct perception. However, whether their testimony I worthy acceptance has to be judged, regrd being had to the circumstances under which they observed, the state of their observation, whether casual, disturbed, or distracted, their power of observance, the elasticity of their inpressions, facility of description and possible lapse of memory. Allowance also must be made for possible distortion of the story and even lying.
In judging the credibility of the witnesses, the demeanour of witnesses, their position, character and antecedents also are to be taken into consideration:-
To judge truth or falsehood of testimony of a witness, judicial officer must adjudge the demeanour of witness, his position, character, and antecedents and his possible and probable motive for giving evidence.. In this background, it is congruous to refer to Section 280 of Code of Criminal Procedure, 1973. It reads as infra:
Section 280. Remarks respecting demeanour of witness
When a presiding Judge or Magistrate has recorded the evidence of a witnesses, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.
If a judge minutely and skillfully observe the demeanour of the witness, while a witness is under examination, it would give an important clue to the nature of his evidence However, every judicial officer has to be cautious in making remarks or judging the credibility of the witness on the basis thereof. However, it is not unsual that uneducated witnesses or those who are not accustomed to te ways of the Court do in their confusion of thought create discrepancies under severe test of cross-examination. But on that accourt of their story, if honest and substantially true, should not be rejected.
Testimonies of partisan or interested or relatives:
It is well-settled law that evidence given by witnesses should not be discarded merely on th ground that it is evidence of relations or partisan or interested witnesses. See. Namdeo vs State Of Maharashtra (2007) (Appeal (crl.) 914 of 2006).The Hon’ble Apex Court reported in AIR 1965 SC Page 202 (Masalti vs. State of U.P.), wherein also the Apex Court gave a caution to the trial courts regarding acceptance of evidence in cases where several accused persons are involved. Masalti’s case (supra) was subsequently followed in several cases including the case of (Busi Ketesara Rao vs. State of A.P) as reported in (2012) 12 SCC 711 wherein the Apex Court in Paragraph 13 laid down in clear terms,-
“It is clear that when a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal test is that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident in question.”
Eye witness:- In Darya Singh & Ors vs. State of Punjab, (1964) 3 SCR 397 :AIR 1965 SC 328, the Hon’ble Supreme Court held that evidence of an eye witness who is a near relative of the victim, should be closely scrutinized but no corroboration is necessary for acceptance of his evidence.
The evidentiary value of a related witness :– In the matter of Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, the Hon’ble Supreme Court laid down the law relating to the evidentiary value of a related witness by observing thus:
“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” (Also See. Mahender Singh vs State (Govt. Of Nct Of Delhi) (2010) CRIMINAL APPEAL NO.96/1997; The Hon’ble Delhi High Court Ruling ).
Partisan witnesses:– The testimony of partisan witness in factious cases must be scrutinized with more than ordinary care and accepted with due caution. A partisan witness merely means a person who is interested in the prosecution and in bribery cases in the successful laying of a trap and in the successful prosecution of the alleged bribe-taker. In other cases also there may be interested witnesses. (See Shiv Bahadur Singh Vs. State of Vindhya Pradesh, AIR 1954 SC 322. See also. Ambalal Motibhai Patel vs State: AIR 1961 Guj 1).
The Rule of Best Evidence should never escape one’s attention in evaluating evidence:-
In attaching weight and value to the evidence , the Court should also see why the best evidence which could be produced by the Prosecution was not so produced. If the best evidence is to produced, it does not mean that the other evidence admissible in law should be rejected forthwith. ‘Section 91 of Indian Evidence Act,1872 applies to all documents, whether they purport to dispose of rights or not, whereas Sec. 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Sec. 92 the application of which is confined only to bilateral documents Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is no doubt that Sec. 92 does not apply to strangers who are not bound or affected by the terms of the document.’ ( See Sh. Parkash Chand Khanna vs Sh. J.C. Khanna (2008), CS(OS) 726/2007, Delhi High Court ruling. )
Child witness:- It is well settled that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. (See Durgalal vs State Of Rajasthan: 2001 CriLJ 3652). This was so held by their Lordships of the Privy Council in Mohmed Sugal Esa Mamasan Rer Alalah Vs. King, ((1946) 48 BOMLR 138). The same view was laken by their Lordship of the Hon’ble Supreme Court in Rameshwar Kalyan Singh vs. State of Rajasthan ( AIR 1952 SC 54), and later on, in so many cases.
Evidence of Accomplice:-
Our Indian Evidence Act provides that an Accomplice shall be a competent witness. Evidence of an Accomplice can be used to convict an accused.
Section 133 in The Indian Evidence Act, 1872
133. Accomplice.—An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
This provision thus places no limitation on the acceptance of the testimony of an accomplice against accused merely on the ground that he is an accomplice. Further, it does not impose any condition or correlation for purposes of conviction. See Bhubon Sahu v. The King, (AIR 1949 PC 257); K. Hashim vs State Of Tamil Nadu (2004), Appeal (crl.) 185 of 2004).
Nature and extent of corroboration wherever it is required by law should always be kept in mind:-
In all cases where corroboration is required, the nature and extentt of corroboration that the Court should look to must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charge. There can, therefore, be no set formula which may be of universal application. In Halsbury’s Laws of England-IV Edn.-Vol. II-page 268-this proposition is stated thus: “The word ‘corroboration’ is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other evidence .. ” (See the ruling of Hon’ble Court in Balwant Kaur vs Union Territory Of Chandigarh,: 1988 AIR 139, 1988 SCR (1) 745. The principles as to this aspect are succinctly laid down Rex v. Baskerville (1916 (2) KB 658). In Rex v. Baskerville (supra), it was observed that the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if there is merely a circumstantial evidence of his connection with a crime. In this case pf Rex v. Baskerville (supra), In Halsbury’s (IV Edition Vol. II para 454) the following passage obtains: “Corroboration of a witness’s testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged. It must be evidence which implicates him, that is which tends to confirm in some material particular not only that the offence was committed, but also that the defendant committed it”.
As to independent nature of the corroboration, His Lordship Chief Justice observed in Bhaskerville case: ” .. Again, the corroboration must be by some evidence other than that of an accomplice, and therefore one accomplice’s evidence is not corroboration of the testimony of another accomplice: Rex v. Noakes .. ” (See also  2 K.B. 658 ). As Lord Reading says–
“Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.”
All that is required is that there must be “some addi- tional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasona- bly safe to act upon it.”
Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testi- mony of the accomplice or complainant that the accused committed the crime. This does not mean that the corrobora- tion as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that–
“a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all…It would not at all tend to show that the party ac- cused participated in it.”
Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.
Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, “many crimes which are usually committed between accomplices in secret, such as incest, offences with females” (or unnatural offences) “could never be brought to justice.” (See Rameshwar vs The State Of Rajasthan : 1952 AIR 54, 1952 SCR 377).
Former statement of a witness may be used as corroboration of his testimony:-
The answer to that is to be found in Section 157 of the Evidence Act which lays down the law for India. Section 157 states that—
“In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”
The section makes no exceptions, therefore, provided the condition prescribed, that is to say, “at or about the time etc. ,” are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration. (See Rameshwar’s case (supra)).
The Probative value of evidence of the complainant or the prosecutrix in sexual offences:-
To understand the aspect of corroboration, reference may be had to a long chain of decisions, some of which are Rameshwar 1952 SCR 377, Sidheshwar Ganguly AIR 1958 SC 143, Madhoram & Anr. (1973) 1 SCC 533, State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990) 1 SCC 550, Madam Gopal Kaddad (1992) 3 SCC 204 Shri Narayan AIR 1992 (3) SCC 615, Karnel Singh 1995 (5) SCC 518, Bodhisattwa Gautam 1996 (1) SCC 490 and Gurmit Singh’s case. Referring to these rulings, in State Of Rajasthan vs N. K. Accused, the Hon’ble Apex Court observed as follows: ‘We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words :- . If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
The value of evidence of trap witnesses in cases relating to bribery:-
In Vemireddy Satyanarayana Reddy and Ors. Vs. State of Hyderabad, AIR 1956 SC 379, Supreme Court held that :- “What law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy the reasonable minds that the man can be regarded as a truthful witness.” In this case, it was further held: ‘What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.’ (See also Brannan Vs. Peek, 1947 (2) All.E.R. 572; State of Bihar Vs Basawan Singh (1958) SC 500; Ramanalal vs. State of Bombay, 1960 SC 961; Ramjanam Singh Vs. The State of Bihar, (1956 SC 643 at page 651)).
Contradiction and Discrepancies have to be carefully judged. How far they are material:
It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. But, as has been observed in Ugar Ahir Vs. State of Bihar, AIR 1965 SC 277, the Court cannot obviously disbelieve the substratum of the prosecution case or the material part of the evidence and reconstruct a story of its own out of the rest. (See Guljara Singh vs State Of Rajasthan : AIR 1971 Raj 68.)
If the evidence of a witness is partly false, would the evidence be discarded as a whole? This is embodied in the maxim “falsus in uno fal-sus in omnibus”. The answer to this was admirably presented in Sukha v. State of Rajasthan (S), AIR.1956 SC 513. Mr. Justice Bose speaking for the Court put it as follows: The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness’s evidence is disbelieved, it is unsafe to act on the rest of his testimony. The answer is equally hackneyed, namely, that Judges of fact have the right to do this. (This principle is observed in State vs Sashibhusan Harichandan And Anr : 1963 CriLJ 550).
Two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation:
The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutors duty to the court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court. (See Hukam Singh And Ors vs State Of Rajasthan, (2000). Hon’ble Apex Court ruling).
A four Judge Bench of the Hon’ble Apex Court has stated the above legal position thirty five years ago in Masalti vs. State of Uttar Pradesh, [AIR 1965 SC 202]. It is contextually apposite to extract the following observation of the Hon’ble Bench: It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court.
Circumstantial evidence is of considered help in determining the guilt:–
Circumstantial evidence is sometimes of very great importance. It proves links in a chain of facts which go to establish the guilt of the accused. where there is no direct evidence and the proof is made to rest on circumstantial evidence, the principles should be kept in view in judging the guilt of accused. “2009 (1) Crimes 11 (SC), Chattar Singh & Anr. vs. State of Haryana”, panch-sheel of circumstantial evidence has been reiterated, that :-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(See also Anant Chinataman Lagu Vs. State of Bomaby, AIR 1960 SC 500; Givinda Reddy Vs State of Mysore, AIR 1960 SC 29; Charan Singh Vs. State of U.P., 1967 SC 520; Hanumant Govind Nargundkar Vs. State of M.P., 1952 SC 343.)
The Significance of Evidence of Motive:
Motive is the reason which induces and actuates a man to do a certain act. It is a sense of injury or a long cherished feeling of resentment which induces a person to commit an offence. Therefore, motive is relevant under Section 8 of Indian Evidence Act. However, motive, though an important factor, adequacy or absence of motive may not affect the merits of a case, if there is positive evidence as to the crime which brings home the guilt of the accused. In Surinder Pal Jain vs Delhi Administration: 1993 AIR 1723, the Hon’ble Supreme Court held that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. In this context, it is advised to refer to the rulings of Kundula Bala Vs. State of Andhra Pradesh, 1993 Cr.L.J 1635 SC; Rajendra Kumar Vs. State of Punjab, AIR 1966 SC 1322; State of M.P. Vs. Dhirendra Kumar, AIR 1997 SC 318; Gurmej Singh Vs. State of Punjab, AIR 1992 SC 214 to know the significance of evidence of Motive.
Confession and their value:–
In Nand Kumar vs. State of Rajasthan, 1963(2) Cri LJ 702 (SC) where it was. held that “Courts ordinarily consider it unsafe to convict any accused person on the basis of the retracted confession except where the truth of such confession is established by corroboration”. In the case of Nathu v. State of Uttar Pradesh – AIR 1956 SC 56, it is observed by the Supreme Court with regard to confessions that the prolonged custody immediately preceding the making of the confessions is sufficient, unless it is properly explained, to stamp it as involuntary. The Supreme Court has also observed in that case that where the Courts below have, in coming to the conclusion that the confession of the accused was voluntary, failed to note that the C.I.D. Inspector had offered no explanation for keeping the accused in prolonged custody immediately preceding the making of the confession, which matter the prosecution had to explain if the confession was to be accepted as voluntary the Supreme Court would, even in exercise of the powers conferred by Article 136 of the Constitution of India, interfere with the finding of the Lower Courts in the special appeal.
Extra Judicial Confession:–
As to the extra-judicial confession, two questions arise: is it voluntary, and, if so, is it true ? when the Court is satisfied that extra-judicial confession is both voluntary and true, it can e accepted. To accept an extra –judicial confession, the Court should satisfy the following important aspects:
1. What were the circumstances under which it was made or in what manner was it obtained?
2. Was the confession made by accused voluntary?
3. What was the reason for the accused to have confided in the witness who proves it and to have made a clean breast of his actions?
4. Did the witness truly understand the sense of what was stated to him, or is there any room for a mistake or misapprehension?
5. Have the words uttered by the accused been correctly reproduced or is the witness improving on the statement which was made to him?
6. Has the witness any personal motive to depose falsely against the accused, or have the police, in their eagerness to prove the commission of a crime, put up that witness to prove a confession.
(See also Arya Abhushan Bhandar And Another vs Union Of India And Others: 1998 (3) AWC 1651); Ratan Gond Vs. State of Bihar, AIR 1959 SC 18; Mulk Raj Vs. State of M.P, air 1956 sc 902).
What value to be attached to confessional statements of co-accused:-
How far and in what way the confession of an accused person can be used against a co-accused ? This question was considered by the Hon’ble Apex Court in Kashmira Singh vs State Of Madhya: 1952 AIR 159. It is not evidence in the ordinary sense. the Privy Council say in Bhuboni Sahu v. The King ( (1949) 51 BOMLR 955) “It does not indeed come within the definition of” ‘evidence’ contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination.” The Hon’ble Privy Council held that section 30 of the Indian Evidence Act seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 8 of the Evidence Act. See also Nathu vs. State of U.P., 1956 SC 56; Balbeer Singh Vs State of Punjab, 1956 SC 216.
From the above, it is profit worth to sum up that to arrive at a just conclusion, the evidence on record has to be properly and carefully weighed and valued. Conflicting versions with seeming realities make the task of appreciation of evidence all the more difficult. Judicial officer has ot bring to bear on facts elicited a fair amount of common sense, shrewdness, his knowledge and experience, taking into consideration at the same time the ordinary course of events and human conduct. Sometimes, acquittal in several cases is based on an erroneous impression. Of course, acquittal in most of the cases is based on the application of benefit of doubt. Care must, therefore, be taken in sifting the evidence. Fiat Justitia must be the motto of the Court. Circumstantial evidence is sometimes of very great importance. Motive is the reason which induces and actuates a man to do a certain act. Deliberate and voluntary confessions of guilt, if clearly proved, are amongst the most effectual proofs in the Law.the evidence of conduct unless, it is traceable to the conscious guilt of the accused is not of much consequence. Facts based on direct observation are perceived facts. The previous statement of a witness may be corroboration of the evidence of the witness. The evidence of child witness should be accepted with due care and caution. I may conclude this article with an observation that the determination of guilt of an accused should be based on legal evidence brought on record and not on outside material.