INDIAN EVIDENCE ACT, 1872 Section 144 : Evidence as to matters in writing Any witness may be asked, whilst under

examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.--A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. Illustration The question is, whether A assaulted B. C deposes that he heard A say to D-- "B wrote a letter accusing me of theft, and I will be revenged on him". This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter. INDIAN EVIDENCE ACT, 1872 Section 144 : Evidence as to matters in writing Any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.--A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. Illustration The question is, whether A assaulted B. C deposes that he heard A say to D-- "B wrote a letter accusing me of theft, and I will be revenged on him". This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

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Section 144 : Evidence as to matters in writing Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given, until such document is produced, or until facts have been proved which entitled the party who called the witness to give secondary evidence of it. Explanation.-- A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Abstract

The story of the Klein-Waardenburg syndrome begins with the presentation before the Swiss Society of Genetics in Geneva in August 1947 of a 10-year-old girl, who showed, in addition to deafmutism, partial albinism of the hair and over the whole body, dystopia canthorum, blue hypoplastic irides, broad and prominent nasal root, absence of the frontonasal angle, and blepharophimosis. Waardenburg, impressed by the complex clinical picture of our proposita whom he saw in Geneva in 1948, subsequently undertook a systematic investigation in several Dutch institutions for the deaf. He was able to confirm from his study that several manifestations of our patient, principally the palpebro-irido-auditory complex, represented a well-defined syndrome transmitted as a dominant trait with variable penetrance and expressivity. Since arthromyodysplasia did not figure among the clinical signs of his patients, Waardenburg suggested at first the possibility of either a homozygous state of the same mutation or the effect of a different allele as the cause of the accompanying gross skeletal and muscular defects. However, later on he completely questioned the nosologic placement of our case within the framework of his syndrome, having never encountered such extensive bone anomalies in more than one hundred observations. Meanwhile four other cases with similar hypoplastic upper limb anomalies have been recorded and show an astonishing degree of resemblance to our original proposita with regard to specific bone alterations and their location. However, until recently there were still no observations concerning the inheritance of this complex syndrome. The follow-up examination of a French family where the father manifested the complete KleinWaardenburg syndrome including muscular and skeletal defects of the upper limbs, and his 12year-old son who had apparently a typical Waardenburg syndrome (but with Sprengel deformity), enabled for the first time the postulation of a common genetic basis for both types with an autosomal-dominant inheritance of incomplete penetrance and variable expressivity. Further investigations are however needed before this type of inheritance can be considered as firmly established for the KleinWaardenburg syndrome.
http://onlinelibrary.wiley.com/doi/10.1002/ajmg.1320140205/abstract

INDIAN EVIDENCE ACT, 1872 Section 3 - Interpretation clause SYNOPSIS 1. Unless a contrary intention appears from the context 2. Court 3. A Commission of Inquiry is not a court 4. Family Court and Evidence Act 5. Includes, means and includes 6. Facts 7. Relevancy and admissibility 8. Facts in issue 9. Facts in issue and issues of fact 10. Document

11. Tape-records of speeches are "documents" 12. Document Procured by illegal means 13. Evidence 14. Recording of video conferencing 15. Entries in diaries and in loose sheets 16. Three kinds of police dogs 17. Types of evidence 18. Direct and circumstantial evidence 19. "Evidence" envisaged under section 319, Cr. P.C. 20. Quality of evidence in Criminal trials 21. Testimony of an accomplice is evidence under section 3 22. Retracted confession of a co-accused 23. Probative value of evidence 24. Strength of prosecution case 25. Affidavit 26. Evidence by affidavit in advance of defence witness 27. Hearsay evidence 28. What is proof 29. Proof: proved, disproved, not proved 30. "Proved"-"Not Proved" 31. Not proved 32. Difference between 'not proved' and 'false' 33. Fact 'not proved'-'disapproved' 34. Evidence and proof-"matters before it" 35. Prima facie case 36. Proof in civil and criminal cases 37. Standard of proof: in civil and criminal cases 38. Allegation of corrupt practice must be proved as strictly as a criminal charge 39. High standard of proof for punishment 40. Proof beyond reasonable doubt 41. Reasonable doubt 42. Benefit of doubt 43. Conviction of an innocent person 44. Exaggeration to rule of benefit of doubt 45. Necessary to explain the injuries on the person of the accused 46. Omission to send blood stained earth for chemical examination 47. Presumption of innocence 48. Acquittal of co-accused not entitling others to acquittal 49. Burden on accused-(see sections 105, 106-Benefit of doubt) 50. Suspicion is not legal evidence 51. Corpus delicti 52. Principle falsus in uno falsus in omnibus 53. Circumstantial evidence in criminal cases 54. Circumstantial evidence 55. Guiding principles of circumstantial evidence 56. Explanation of the accused 57. False explanations 58. False denials 59. Special rules of proof in criminal trial 60. Legal proof and moral conviction; conjectures and suspicion 61. National Security Act, section 3(2) and Criminal Procedure Code, sections 156, 172 62. Constitution of India, Article 136

63. Wakf, Muslim law 64. Credibility of evidence 65. Impact of acquittal of one witness 66. Complainant, a tenant of deceased 67. Criticism of Post-mortem report 68. Non-explanation of injuries 69. Formally proving the letters in evidence 70. Proof of unlawful possession 71. Unregistered lease 72. Doubt 73. Omission Comments 1. Unless a contrary intention appears from the context Generally a term or expression which occurs in different places in the same Act has the same meaning, as it would be unreasonable to hold that the Legislature used the same work in different sense in the same Act. 1 Therefore, the terms defined in the interpretation clause have ordinarily the same meaning wherever used in the Act. 2 If, however, the context affords a clear indication that a term is used there in a sense different from the one assigned to it by the interpretation clause; because a definition in the interpretation clause is controlled by subsequent and express provisions on the subject matter of same definition.3 Therefore, definitions of words and expressions in the interpretation clause are subject to the qualification "unless a contrary intention appears from the context". The definitions given in the Evidence Act are for the purposes of Act alone.4 But, even if no such words are inserted, little weight attaches to the omission, for some such words are to be implied in all statutes where expressions, which are interpreted by a definition clause, are used in a number of sections with meaning sometimes of a wide and sometimes obviously limited character. 5 2. Court Term "Court" in section 3 includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This is, perhaps, the only Indian Statute in which the expression "Court" is defined. But this definition is by no means exhaustive and is framed for the purpose of the Act itself and should not, however, be extended beyond its legitimate scope.6 A Court is an agency created by the sovereign for the purpose of administering justice. 7 In order to constitute a court, State's sovereign judicial powers must be conferred on it by a statute for deciding the dispute in a judicial manner so as to decide the rights of the parties in a definitive judgment. To decide a dispute in a judicial manner and declare the rights of the parties in a definitive judgment is essential sine qua non of a court. The decision in a judicial manner contemplates that parties are entitled as a matter of right (i) to be heard in support of their claim; and (ii) to adduce evidence in proof of it; and (iii) to decide the matter on consideration of evidence in accordance with law.8 This definition of the word "Court is not exhaustive,9 and is meant for the purposes of Evidence Act alone.10 What authorities can be said to constitute courts had been frequently raised before the Supreme Court and formed the subject matter of several of its decisions. In the case of Ramraov. Narayan,AIR 1969 SC 724: 1969 Cr LJ 1069, the Supreme Court was considering the question whether the Registrar's nominee under Maharashtra Cooperative Societies Act is a Court within the meaning of section 195 of the old Code and answered that question in the negative. In that decision the Supreme Court surveyed many of its earlier decisions and held that a person or body would constitute a court only when it is entrusted with the judicial power of a State. According to the Supreme Court in Virinder Kumar, AIR 1956 SC 153: 1956 Cr LJ 326, what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to

decide dispute in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. The trend of decisions of the Apex Court suggests that the pronouncement of a definitive judgment is considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a Court in the strict sense of the term. 11 A Commissioner appointed under the Civil Procedure Code or the Criminal Procedure Code is legally authorized to take evidence and is, therefore, a "Court";12 but an arbitrator, though authorized to take evidence,13 is expressly excluded from the definition of "Court".14 A Commissioner appointed under the Public Servants (Inquires) Act is a Court within the meaning of section 3 of the Contempt of Courts Act. 15 As the word "Court" includes all Magistrates, it is clear that a Committing Magistrate or a Magistrate recording the statement of a witness under section 166, Criminal Procedure Code, is a "Court". In a trial held by a judge with a jury, the jury is a "Court". 16A Registrar or a Sub-Registrar is not a Court for the purposes of section 195,17 Criminal Procedure Code,18 but because in proceedings under sections 73 and 74 of the Registration Act a Registrar has the power to take evidence,19 he would, when acting under section 75 of the Registration Act, be a "Court" within the meaning given to this term by the Evidence Act. A Collector or Deputy Collector acting under the Land Acquisition Act has no power to administer an oath and is not, therefore, a "Court".20 The definition of the word "Court" in the Evidence Act has been framed only for the purpose of that Act which under section 45. An Income Tax Officer, though authorized to examine witnesses on oath is not a Court. 21 The question whether an Income Tax Officer is a court for the purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973 was more a question of interpretation than one of express enactment after the amendment of section 136 of the Income Tax Act, 1961 by section 28 of the Finance Act, 1985. In view of the change in law, an Income Tax Officer cannot be regarded to be a court for the purposes of section 195(1)(b). 22 Affidavit not made evidence under new Cr. P.C. 1973. Order of Sessions Judge for ignoring affidavit upheld.23 Revenue Officers cannot be said to be court.24 Rent Controller acting under the A.P. Buildings (Lease, Rent and Eviction) Control Act is a Court as he is authorized to record evidence under Rule (2) of the Rules framed therunder.25 The authority under the Payment of Wages Act is not a Civil Court, but definition of court under section 3 of the Evidence Act is an inclusive one and only for the purposes of Act.26 The words 'Court' and judge are frequently used interchangeably. They are not stricto sensesynonymous. A court cannot exist without a judge, and the power to create a court embraces the power to create the office of judge thereof. 27 Under sub-section (2) of section 144, the Executive Magistrate can pass an ex parteorder only in case of emergency or in case where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed. But the function of the Executive Magistrate does not cease with the ex parteorder. Under subsections (5) and (7), it is his duty to investigate into the respective claims of the parties and alter or rescind the order already passed so as to give protection for the exercise of rights possessed by any person and for that purpose to take action against others likely to interfere with the exercise of such rights. In view of the nature of the provisions of section 144(2) enacted in the context of an overriding emergency, there is no contravention of principles of natural justice in passing an order ex parte, and the party aggrieved by the ex parteorder can approach the Executive Magistrate by filing an application under section 144(5) and where an application under sub-section (5) is received, the Magistrate under sub-section (7) is to afford to the applicant opportunity of appearing and showing cause against the order and if the applicant offers evidence to show cause against the

continuance of the ex parteorder, it will be his obvious duty to hold an inquiry, and without holding that inquiry he cannot anticipate what the nature of the evidence would be and confirm his ex parteorder. If he rejects the application wholly or in part, he shall have to record in writing the reasons for so doing. Taking of evidence by the Executive Magistrate in a proceeding under section 144 cannot, thus, be ruled out altogether. It is true, that according to the decision in Gulam Abbas'scase reported in AIR 1981 SC 2198: 1981 Cr LJ 1835, an order under section 144, Cr. P.C. cannot be said to be a judicial or a quasi-judicial order and can also be said to be an order passed in exercise of the executive function of the Magistrate so as to be amenable to the writ jurisdiction under Article 32 of the Constitution for enforcement of fundamental rights. It is also true that an order under section 144 is not intended to be permanent or semi-permanent in character. But it does not necessarily lead to the conclusion that the Executive Magistrate cannot be a criminal Court in relation to a proceeding under section 144 even for the limited purpose and within the meaning of section 195(1)(b)(i) of the Code of Criminal Procedure. It is true that an Executive Magistrate exercising jurisdiction under section 144, Cr. P.C. may not satisfy all the tests or fulfill all the criteria which are accepted by the Supreme Court as such for determining whether he is a court or not, and in that sense the executive Magistrate may not be termed as a Court in the strict sense of the term. But then, there is nothing in the Code itself to warrant a conclusion that he cannot be a Court within the meaning of section 195(1)(b)(i) of the Code. Unlike the previous Code of 1898, section 6 of the present Code has expressly recognised the Executive Magistrate as a criminal Court. He is to be deemed to be an inferior criminal court within the meaning of section 397, Cr. P.C. and amenable to the revisional jurisdiction of both the High Court and the Sessions Judge. Thus, the Executive Magistrate exercising jurisdiction under section 144, Cr. P.C. can be designated as a "Court" at least for the limited purpose and within the meaning of section 195(1)(b)(i).28 3. A Commission of Inquiry is not a court A Commission of Inquiry is not a court, properly so called. A Commission is obviously appointed by the appropriate government 'for the information of its mind' in order for it to decide as to the course of action to be followed. It is, therefore, a fact-finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a court. Thus, a Commission of Inquiry constituted under section 3 of the Commissions of Inquiry Act, 1952, is not a "Court" for purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973.29 4. Family Court and Evidence Act Family Court30 shall be deemed to be a Civil Court so far as proceeding under Chapter IX of Cr. P.C., are concerned, the provisions of the Cr. P.C. have been made applicable. Parties before the Family Court are entitled to be heard in support of their case and are also entitled to adduce evidence in order to prove their claim. They can cross-examine each other and adduce evidence. 5. Includes, means and includes When a definition uses the word 'includes' it is enumerative and not exhaustive. 31 When the words used are "means" and "includes", the definition is intended to be exhaustive. 32 6. Facts The Actadopts Bentham's classification of facts into "physical" and psychological" facts.

Clause (1) with illustrations (a), (b) and (c) refers to "physical" facts, i.e., external facts which can be perceived by the five best-marked senses of man; clause (2) and illustrations (d) and (e) refer to "psychologial" facts, i.e.,internal facts which cannot be so perceived but of which a man is conscious, e.g.,intention, knowledge, good or bad faith, felling or opinion. Physical facts are capable of direct as well as indirect proof, i.e.,they can be proved either, by the testimony of persons who are favourably situated to perceive them or by proof of other facts which either make their existence probable or are inconsistent with any hypothesis other than that of their existence. Psychological facts, however, generally cannot be proved by direct evidence33 as the only direct evidence concerning them which is available is the confession of the person who is conscious of them. But, like physical facts, they can be proved by circumstantial evidence. "What passes in the mind of man is not scrutable by any human tribunal; it is to be collected from his acts." If A fires at B,the act of firing is a 'physical' fact and can be proved by the evidence of a person who saw the occurrence or by circumstantial evidence; but the intention or the object with which Bis fired at cannot be proved by any direct evidence other than the statement of the person who fired. It can, however, be proved by circumstantial evidence, i.e., by proof of facts from which a reasonable inference as to that intention or object may be drawn. The Court takes cognizance only of those facts which appear on the record.34 An inference arrived at by a process of ratiocination cannot be regarded as a fact within the meaning of the expression in section 3 of the Indian Evidence Act, 1872. (1) The state of a man's mind is as much a fact as the state of his digestion. (2) Facts in the act includes35 Factum Probandum, i.e.,the principal fact to be proved, and36 Factum Probans, i.e., the evidentiary fact from which the former follows immediately or by inference. In R. Puthunainar Alhithan v. P.H. Pandian, AIR 1996 SC 1599 it has been held that to draw an inference that a fact in dispute has been established, there must exist on record some direct material facts or circumstances from which such an interference could be drawn. 7. Relevancy and admissibility The expressions "relevancy" and "admissibility" are often used as synonyms, but their legal implication are distinct and different. Facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an Advocate and his client though relevant are not admissible, so also, facts which are admissible may not be relevant for example, question permitted to be put in crossexamination to test the veracity or impeach the credit of witnesses, though not relevant are admissible.37 8. Facts in issue The distinction between facts in issue and relevant facts is of fundamental importance and must be thoroughly comprehended in order to understand and appreciate the scheme of the Act. Sir James Fitzjames Stephen, who framed the Act, in his Introduction to the Act thus defines facts in issue:-"They may by themselves, or in connection with other facts, constitute such a state of things that the existence of the disputed right or liability would be a legal inference from them. From the fact that A is the eldest son of B,there arises of necessity the inference that A is, by the law of England, the heir-at-law of B, and that he has such rights as that status involves. From the fact that A caused the death of B under certain circumstances, and with a certain intention or knowledge there arises of necessity the inference that A murdered B, and is liable to the punishment provided by law for murder. Facts thus related to a proceeding may be called facts in issue unless their existence is undisputed.38 The definition of facts in issue in the Act is merely a paraphrase of Stephen's definition in the Introduction. The substantive law of a country defines the rights and liabilities of its citizens in the form of certain abstract propositions or formulae, and the object of every suit or other judicial proceedings is to ascertain whether the right

claimed, or the liability sought to be enforced by one person against another, does or does not exist. A party to a litigation seeking to enforce a right or a liability against his opponent, in order to obtain a verdict in his favour by a tribunal, has to establish all such facts as go to constitute that right or liability. These "necessary constituents" of a right or liability are called "facts in issue" if their existence is asserted by one party and is denied by the' other. In, other words, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a defendant may prove in order to defeat the plaintiff's suit, becomes a fact in issue, if the parties are not agreed as to its existence or non-existence. Therefore the answer to the question what are the facts in issue in a particular case depends on the rule of the substantive law which is applicable to the case and on that rule of procedure which deals with the framing of issues of fact. 39 In criminal cases there is no such facts as constitute the offence, their non-existence being presumed. Hence all the 'ingredients' of the offence which is charged against the accused are "facts in issue" in a criminal trial the substantive civil law of India has not yet been completely codified. It is contained partly in some of the legislative enactment's, e.g., the Transfer of Property Act and the Indian Contract Act partly in rules of Hindu and Mohammedan Laws, and partly in rules of custom by which the parties are governed; and where there is no express provision on the point in any of these, the Judge has to decide according to the dictates of justice, equity and good conscience. Unlike the substantive civil law, the criminal substantive law of India has been thoroughly codified in the Indian Penal Code and a number of "special" and "local" Penal Statutes. The facts in issue are those facts which are necessary to prove or disprove, to establish or refute a case. Facts in issue are normally clear from the pleadings and are a matter for the judge to determine. Facts in issue must normally be proved by evidence.40 Facts in issue are distinguishable from "collateral facts" which affect the proof of facts in issue. 41 9. Facts in issue and issues of fact Under Order XIV, rule 1, of the Civil Procedure Code the Court has to frame issues on all disputed facts which are necessary for the decision of a case. Issues arise when a material proposition of fact is affirmed by one party and denied by the other. "Material propositions of fact are those propositions of fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence."42 Issues thus recorded are called issue of fact in they are generally recorded in interrogative form. The subject-matter of an issue of fact is always a fact in issue and what, when described in the language of the EvidenceAct, is a "fact in issue" becomes, when described in the language of the Civil Procedure Code, an "issue of fact." Order XIV, rule 1(2) of the Civil Procedure Code is, therefore, merely a paraphrase of the definition of "facts in issue" in section 3 of the Evidence Act. 10. Document Oneof the essential elements of due execution of a document is that the document should be signed by the party or parties associate with it. The words "intended to be used or which may be used" in the definition necessarily imply that the document has to be used by some party against another. If it is to be so used, then there should be intrinsic evidence in the document itself of some particular party or parties being associated with the same.43 A document need not necessarily be something which is signed, sealed or executed.44 It must be proved.45 11. Tape-records of speeches are "documents" The tape-records of speeches are "documents", as defined by section 3 of the Evidence Act, which stand on no different footing than photographs, and they are admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded has to be proved by the maker of the record

and satisfactory evidence, direct or circumstantial, has to be there so as to rule out possibilities of tampering with the record. (c) The subject matter recorded has to be shown to be relevant according to rules of relevancy found in the Evidence Act.46 12. Document Procured by illegal means There is no bar to admissibility of a document which is procured by illegal means if it is relevant and its genuineness is proved. But, while examining its genuineness, the circumstances under which it came to be produced into Court have to be taken into consideration.47 13. Evidence The word "evidence" signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate proof....The fact sought to be proved is called the principal fact; the fact which tends to establish it, the evidentiary fact (Best). In English Law, the word " evidence" sometimes means the words uttered and things exhibited by witnesses before a Court of Justice. At other times, it means the facts proved to exist by those words or things and regarded as the groundwork of inference as to other fittest not so proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to the matter under inquiry.48 In the Act, however, the word has been assigned a more definite meaning and is used only in the first of these senses. As thus used, it signifies only the instrument by means of which relevant facts are brought before the Court ( viz., witnesses and documents) and by means of which the Court is convicted of these facts. 49 Therefore matters other than the statements of witnesses and documents produced for the inspection of the Court, e.g., a confession or statement of an accused person in the course of a trial.50 Statements made by parties when examined otherwise than as witnesses, demeanour of witnesses,51 the result of local investigation or inspection,52 and material objects other than documents such as weapons, tools, stolen property, etc., are not "evidence" according to the definition given in the Act. These are, however, matters which the Court may legitimately take into consideration. The definition of " evidence" must be read together with the definition of "proved"; and the combined result of these two definitions in that "evidence", as defined by the Act, is not the only medium of proof and that in addition to it, there are a number of other "matters" which the Court has to take into consideration when forming its conclusions.53 A statement recorded under section 164, Cr. P.C.54 is not evidence within the meaning of this definition.55 So also a confession of an accused is not evidence in the ordinary sense of the term.56 Entire evidence of hostile witness does not get excluded or rendered unworthy of consideration.57 In the matter of appreciation of the powers of the appellant court are as wide as that of the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused".58 Evidence is generally divided into three categories (1) oral or personal, (2) documentary, (3) material or real. But the fact only recognizes the first two categories. Real or material evidence is supplied by material objects for inspection of the Court, e.g.,weapon of offence or stolen property. Evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing.59 14. Recording of video conferencing The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself for recording the evidencethrough video conferencing.60 15. Entries in diaries and in loose sheets

An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Thus, when the alleged diaries are not records of the entries arising out of a contract. They do not contain the debits and credits. They can, at the most, be described as a memorandum kept by a person for his own benefit, which will enable him to look into the same whenever the need arises to do so for his future purposes. Admittedly, the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries therein are on monthly basis. Even the names of the persons to whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to? Thus, it can be said that the said diaries are not books of account within the ambit of section 34 of the Evidence Act. Therefore, the entries in the books of account by themselves are not sufficient enough to fasten the liability on the head of a person against whom they are produced. They are not a substantive piece of evidence. The said entries in the books of account can be used only by way of corroboration to other pieces ofevidence, which is led by a party. Admittedly there is no evidence with the prosecution besides the alleged entries in the diaries and in the loose sheets as conceded by the learned counsel for the C.B.I. Thus, the alleged entries in the books of account by themselves are of no avail to the prosecution. 61 16. Three kinds of police dogs There are generally three kinds of police dogs, namely, (i) tracker dogs, (ii) patrol dogs, and (iii) sniffer dogs. Hounds belonging to certain special breeds are imparted with special training and they are capable of leading investigating agency to very useful clue for detection of crime. English Courts are treating such evidence as admissible. In Canada and Scotland evidence based on detection of crime through police is admissible, but in the U.S.A. and India such admission of evidence is not uniform.62 17. Types of evidence (1) Primary and Secondary-Itmay be oral or documentary. Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered by his senses. It is called direct evidence as opposed to hearsay (Section 60). As a rule hearsay evidence is not admissible, but there are some exceptional cases of hearsay evidence which are admissible. Such exceptional cases of hearsay evidence are examples of secondary oral evidence or indirect evidence (e.g.,sections 32, 33). Primary documentary evidence is the evidence of the original documents (Section 62), while secondary documentary evidence is the evidence of copies, etc., of documents which are admissible under certain circumstances. (Sections 63, 65). (2) The Best Evidence or the original evidence means the primary evidence. The Best Evidence Rule excludes secondary evidence. (3) Real and personal. (4) Oral and documentary (see definition of Evidence) (5) Direct and indirect (hearsay). The word direct evidence is used in two senses (a) as opposed to hearsay evidence, (b) as opposed to circumstantial evidence. In the first sense directevidence is the evidence of a fact actually perceived by a witness with his own senses or an opinion held by him, while hearsay evidence is, e.g.,what someone else had told the witness to have seen or heard by him. In section 60 the word 'direct' is used in contradistinction with 'hearsay' evidence. 18. Direct and circumstantial evidence English text-writers divide evidence into (a) direct or positive evidence and (b) indirect

or circumstantial evidence. Direct evidence is that which goes expressly to the very point in question and which, if believed, proves the point in question without aid from inference or reasoning, e.g.,the testimony of an eye-witness to murder.63 Indirect or circumstantial evidence, on the other hand, does not prove the point in question directly, but establishes it only by inference. Thus, if Awere tried for the murder of B,evidence of the fact A had a motive to murder Band that, at the time Bwas murdered A, with a drawn sword, was seen going towards the place where B was murdered and, shortly afterwards, was seen returning from the place with his clothes stained with blood, would be indirect or circumstantialevidence. According to section 5 of the Act, evidence may be given in a proceeding of the existence or non-existence of facts in issue and of such other facts as are declared to be relevant by the Act. If the evidence relates directly to the existence or non-existence of a fact in issue, the evidence is direct; but if it relates to the existence or non-existence of only a relevant fact, it is indirect or circumstantial. Direct evidence, as thus understood, should not be confused with the sense in which this term is used in section 60 of the Act. In section 60 the term "direct evidence" is used as opposed to "hearsay" evidence and not as opposed to "circumstantial" evidence, and therefore, in the sense in which this term is used in that section, circumstantial evidence must always be "direct", i.e.,the facts from which the existence of the fact in issue is to be inferred must be proved by "direct" 'and not by "hearsay" evidence. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence.64 For proof by circumstantial evidence four things are essential:(i) That the circumstances from which the conclusion is drawn be fully established. (ii) That all the facts should be consistent with the hypothesis. (iii) That the circumstances should be of a conclusive nature and tendency. (iv) That the circumstances, should, to moral certainty actually exclude every hypothesis but the one proposed to be proved.65 According to the Supreme Court it is an effect to say that "what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond 'shadow of doubt'. In the first place, 'shadow of doubt', even in cases which depend on direct evidence is shadow of 'reasonable' doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt". 66 In case where two of the accused persons had intentionally caused death of the deceased, there is no reason to discard evidence of witnesses.67 In a prosecution for bribery the fact that money had been recovered from the bushshirt of the appellant, was, by itself held to be not sufficient, for convicting him, when the substantive evidence led to prove the offence was found to be not reliable. 68 The rule that facts are provable by circumstances as well as by direct testimony, has a considerable effect in preventing guilty or dishonest parties from tampering, or making way with witnesses and other instruments of evidence, which they would be more likely to do, if they knew that the only evidence which the law would receive against them was contained in a few easily-ascertained depositories.69 "The sentence of the law to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. It converts into a permanent final judgment 70what might otherwise be a transient sentiment. The infliction of punishment by law gives definite

expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular is distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. This close alliance between criminal law and moral sentiment is in all ways healthy and advantageous to the community"..... Stephen. It is well-settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because pedestrian or resident of the vicinity has not been cited as witness will be no ground throw away the otherwise reliable testimony of the eyewitnesses which is natural and inspires confidence.71 It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly.72 19. "Evidence" envisaged under section 319, Cr. P.C. Once the Sessions Court records a statement of the witness, it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under section 319 Cr. P.C. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under section 319 should be exercised or not. Sub-section (1) of section 319 itself provides that in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. Further, in case of enquiry there may not be any question of cross-examining the witness. In State of Himachal Pradesh v. Surinder Mohan, (2000) 2 SCC 396: 2000 SCC (Cri) 400, the Court dealt with the contention that before granting pardon under section 306 Cr. P.C., the accused should be permitted to cross-examine such person whose evidence is recorded by the Magistrate. The Court negatived the said contention by holding that at the time of investigation or enquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examine would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, under section 200, Cr. P.C., when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the enquiry, the accused has no right to be heard and, therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for crossexamination and thereafter during trial if he is examined and cross-examined, then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial. Similar would be the position under section 319, Cr. P.C. Hence, the term "evidence" as used in section 319 of the Criminal Procedure Code would not mean evidence, which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in sub-section (1) is used in a comprehensive and broad sense, which would also include the material collected by the investigating officer and the material, or evidence, which comes before the court and from which the court can prima facie conclude that the person not arraigned before he is involved in the commission of

the crime.73 20. Quality of evidence in Criminal trials The Supreme Court observed that in the present case though P.W. 3 has deposed that 10-15 persons were in the vicinity at the time of the occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eye-witness to the occurrence. Having examined all the eye-witnesses even if other persons present nearby were not examined the evidence of the eye-witness cannot be discarded. The Supreme Court held that the courts are concerned with quality and not quantity of evidence and in a criminal trial conviction can be based on the sole evidence of a witness if it inspires confidence. 74 In State of Punjab v. Karnail Singh, AIR 2003 SC 3609, it has been held that merely because one of the witnesses stated that he was not aware of the illicit relationship, that does not any way elitute the evidentiary value of the evidence of other witnesses who have spoken about such illicit relationship. Discussing the evidentiary value of a deposition in dacoity case the Supreme Court observed that the investigating officer has stated in his evidence that immediately on being informed he had gone to the village and at that time he had noticed that the lights on both the electric poles were burning. This part of hisevidence has remained unchallenged in cross-examination. It was no body's case that the light was so insufficient that from a distance of 30 paces a person standing near the electric pole could not be identified. The reason given by the High Court that because the dacoits were wearing khaki uniforms and were wearing hats they could not have been identified appears to be more in the nature of a surmise, as it was not even suggested to any witness that because of the hats worn by the dacoits there was shadow on their faces and, therefore, it was not possible to recognise them. The Court added that it was difficult to appreciate the reasoning of the High Court. If the witnesses were able to recognise the colour of the clothes worn by the dacoits, surely they could have recognised their faces also of those who were known to them. The accused had come from the north-western direction and even if it is assumed that their caps could have cast shadow over their faces while they were passing by the north-western electric pole then light from the other pole would have fallen on their faces. The court added that the High Court was wrong in discarding the evidence of the eye-witness on the ground that his conduct in going to the tube-well of the deceased and then to the Police Station was unnatural.75 Discussing the evidentiary value of a deposition of the defence was to show that this witness was not travelling by that bus as he stood contradicted when he stated that he was returning after purchasing "Gwarsa" fertiliser whereas the bill produced by him discloses that he had purchased urea on that day. This discrepancy in his evidence cannot be regarded as sufficient to doubt his presence in the bus.76 21. Testimony of an accomplice is evidence under section 3 In Haricharan, AIR 1964 SC 1184: (1964) 2 Cr LJ 344: (1964) 6 SCR 623, Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement, which has now become virtually a part of the law that it is corroborated in material particulars. The Supreme Court has, in a series of cases, expressed the same view as regards accomplice evidence.77 22. Retracted confession of a co-accused A retracted confession of a co-accused does not constitute substantive evident within the meaning of section 3 of the Indian Evidence Act. It can only be taken into account by the Court in arriving at its conclusion. Its value, however, depends on the facts and circumstances of each case.78 23. Probative value of evidence

Clarifying the phrases "relevancy" and "admissibility" and the distinction between these two terms as well as the meaning of "probative value of evidence" the Supreme Court observed that more often the expression "relevancy and admissibility" are used as synonyms but their legal implication are distinct and different for often facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an advocate and his client though are not admissible. Similar is the case with facts which are admissible but may not be relevant, for example questions permitted to be put in cross-examination to test the veracity or impeach the credit of a witness, though not relevant are, admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.79 24. Strength of prosecution case The case of the prosecution should rest on its strength and not on the absence of explanation on plausible defence by the accused.80 25. Affidavit Affidavit are not included in the definition of 'evidence' in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. 81 The affidavits, though, are not included in section 3 of Evidence Act, the same can be used as evidence, if the law specifically permits certain matters to be provided by affidavit.82 26. Evidence by affidavit in advance of defence witness Practice adopted by the defence side in getting the affidavits of the witnesses in advance is deprecated, because it amounts to an attempt aimed at dissuading the witnesses from speaking the truth before the Court. Such affidavits are either cooked up or obtained by fraud. Thus, this type of interference in the criminal justice cannot be encouraged.83 27. Hearsay evidence "Hearsay evidence is evidence given by a testifying witness of a statement made by some other person, when such evidence is tendered to prove the truth of the statement. Such evidence is not admissible save as provided by the Civil Evidence Act, 1968 which provides for the admission of first hand hearsay statements subject to compliance with procedural rules and preserves a number of common law exceptions to the rule against hearsay".84 Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. 85 28. What is proof "Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty or burden of showing to the court what conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations; but the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court. 86 The word 'proof' seems properly to mean anything which serves, immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact are generally our senses, the testimony of witnesses, documents and the like. (Best, section 10). Absolute certainty is seldom to be had in human affairs. Mathematical Science alone admits of absolute proof. Hence proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a conclusion. 87 In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 it has been held that the word "proof" is not to be understood in the sense it is defined in the Evidence Act, 1872, because evidence proof of the fact depends upon the degree of probability of its having existed. Fletcher Moulten LJ in Hawkins v. Powells Tillery Steam Coal Company Ltd., (1911) 1 KP 988 said "Proof does not mean proof to rigid mathematical

demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion." 29. Proof: proved, disproved, not proved88 This clause indicates the degree of certainty which is required to treat a fact as proved, and is so worded as to provide for two conditions of mind; first, that in which a man feels absolutely certain of a fact, in other words "believes it to exist," and, second, that in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence.89 What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him.90 The proof of a fact depends not upon the accuracy of statements but upon the probability of its having existed.91 Absolute certainly in this work-a-day world is seldom to be had in the affairs of life, and we are frequently obliged to act on degrees of probability which fall very short of it.92 What is required, in a legal trial, is not absolute certainty. All that is required is material whereon the Court can reasonably act upon the supposition that a fact exists.93 It is useless to speculate on possibilities or probabilities. There are varieties of possibilities and in the absence of reliable evidence it is wrong to take the view that one possibility is more probable than the other.94 The test of whether a fact is proved is such degree of probability as would satisfy the mind of a reasonable man as to its existence; absolute or conclusive proof is not necessary. 95 The standard of certainty required is that of a prudent man acting in grave and important concerns of his own.96Except where artificial probative value is assigned to certain facts by presumptions, the Act affords no guidance on the question whether one fact is or is not sufficient to prove another fact. On this point, the Judge like a prudent man has to use his own judgment and experience and cannot be bound by any rule except his own judicial discretion.97 No hard and fastrule can be laid down as to what inference can be drawn from a certain circumstance. The cumulative effect of all the circumstances established by evidence and the nature of these circumstances have to be taken into consideration and then it has to be judged whether, having regard to the ordinary course of human conduct, it is safe to presume that the offence was committed by the accused. 98 The definition of the word "disproved" is merely a converse proposition of the definition of the word "proved".99 30. "Proved"-"Not Proved" Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under section 3, Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.100 Section 3 provides that a fact is said to be 'proved' when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; a fact is said to be 'disproved' when, after considering the matter before it, the Court either believes it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; a fact is said to be 'not proved' when it is neither proved nor disproved.101 In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 (748), para 37, the Supreme Court had held that: "... inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to

one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which to infer the other fact, which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made, the method of inference fails and what is left is mere speculation or conjecture." Therefore, to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference could be drawn. The standard of proof required cannot be put in a strait-jacket formula. No mathematical formula can be laid on the degree of proof. The probative value could be gauged from the facts and circumstances in a given case. An inference from the proved facts must be so probable that if the court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective facts, direct or circumstantial.102 Suspicion by itself however strong it may be, is not sufficient to take place of proof and warrant a finding of guilt of accused.103 31. Not proved It indicates a state of mind between two states of minds "proved and disproved", when one is unable to decide how the matter precisely stands. It negates both proof and disproof.104 A fact may be orally admitted in Court. The admission would not come within the definition of the word 'evidence' as given in this Act, but still it is a matter which the Court before whom the admission was made would have to take into consideration in order to determine whether the particular fact was proved or not. 105 32. Difference between 'not proved' and 'false' The Supreme Court observed that the appellants seek to place reliance on that portion which has been quoted hereinbefore where the High Court proceeds by saying even assuming it to be so. This part of the case falls away from the written agreement of sale which would be admissible under section 92 of the Indian Evidence Act. The Supreme Court added that there is difference between 'not proved and 'false'. 106 33. Fact 'not proved'-'disapproved' The Supreme Court observed that a fact which is not proved does not necessarily mean it is a false one. Section 3 of Evidence Act gives definitions of various words and expressions. The expression 'proved' is followed by the definition of "disapproved". A fact is said to be "not proved" when it is neither proved nor disapproved. This is followed by the definition of 'disapproved'. A fact is said 'not proved' when it is neither proved nor disapproved. On the other hand, a fact is said to be disproved when, after considering matters before it, the court either believes that it does not exist or considers its nonexistence so probable that a prudent man, ought under the circumstances of the particular case to act upon the, supposition that it does. The word 'disapproved' is normally said to be a false thing. It will thus be seen that a fact not proved is not necessarily a fact disproved. A fact which is not proved may be true or may be false. A doubt lingers about its truth. Merely because it is not proved, one may jump to the conclusion that it is disproved. A fact is disproved normally by the person who claims that an alleged fact is not true. For disproving a fact the burden is always on the person, who alleges that the fact is not true.107 34. Evidence and proof-"matters before it" Though the evidence of a fact and proof of a fact are not synonymous.108 the term

"proof" is often confounded with "evidence," and applied to denote the medium of proof, whereas in strictness it marks merely the effect of evidence.109 "When the result of evidence is assent to the proposition or event which is the subject-matter of inquiry, such proposition or event is said to be proved". 110 Evidence, therefore, differs from proof as cause from effect. Decree based solely on affidavits cannot be treated as decree based on evidence.111 As has been already noticed, proof is not the result of " evidence" alone. "Evidence", is only one of the media of proof and in addition to " evidence," the Court, when forming its conclusions, has to take into consideration a number of other matters which are not evidence" in the sense given to this term by the Act, e.g., admissions of the parties, the result of local inspection, the presumptions arising in the case and facts of which Courts take judicial notice. Court should not attach undue importance to discrepancies, when they do not go to root of the matter and shake the version of the witness. 112 The definition of 'proved' does not enable the Court to take into consideration matters, including statements, the use of which is statutorily barred,113 such as statements made before a Police Officer in the course of investigation, videsection 162 Cr. P.C.114Motive need not be established, in case of direct evidence.115 35. Prima facie case A prima faciecase is not the same thing as "proof' which is nothing but belief according to the conditions laid down in the Act. It is a fallacy to say that because a magistrate has found a prima faciecase to issue process, therefore, he believes the case to be true in the sense that the case is proved.116 But depends on the, credibility of witness, and their evidence,117 cannot be rejected as they are partisan witnesses.118 36. Proof in civil and criminal cases There is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition is that of a person of prudence and practical good sense. 'Proof' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence, which may be sufficient to regard a fact, as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction.119 The rules of evidence for civil and criminal cases are, in general, the same; 120 but some provisions in the Act are peculiar to criminal cases121 and others, peculiar to civil cases.122 There is, however, a marked difference as to the effect of evidence in civil and criminal cases. Thus, whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to "such a moral certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable doubt.123 In a criminal case before the Court is called upon to convict a person it has to satisfy itself that possibility of his innocence as ruled out, but in a civil case all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists.124 Where therefore, there is no such moral certainty, and there is reasonable doubt as to the guilt of the accused, the benefit of the doubt is given to the accused. 125 "It is better that ten guilty men should escape than that one innocent man should suffer,126 and acting on this principle, Courts always insist on a much higher degree of proof in criminal cases than in civil cases. The rule as stated above is nowhere enacted in the Evidence Act, but is a rule of prudence founded on public policy, as the consequences of an erroneous conviction are

much more serious both to the accused and society than the consequences of an erroneous acquittal.127 This maxim, means that the greatest possible care should be taken by the Court in convicting an accused.128 Unlike criminal cases, in a civil case it cannot be said that the benefit of every reasonable doubt must necessarily go to the defendant.129 As to the degree of certainty required in a criminal case where the burden of proof is on the accused (see notes to sections 105 and 106). 37. Standard of proof: in civil and criminal cases Denning L.J., observed "it is true that by our law here is a high standard of proof in criminal cases, that this is subject to the qualification that there is no absolute standard in either case. In criminal case the charge must be proved beyond reasonable doubt, but there may be degrees of proof beyond that standard .... so also in civil cases .... there may be degree of probability130 It makes no difference between civil cases wherein charges of a fraudulent nature of criminal character are made and civil cases where such charges are not made. But this is not to say that the Court will not while striking the balance of probability keep in mind the presumption of honesty or innocence or the nature of the crime or fraud charged. It is wrong to insist that such charges must be proved clearly and beyond reasonable doubt, by the party alleging a criminal act against the other party.131 Evidence of witnesses cannot be rejected as they are partisan witness;132interested witness or chance witness.133 The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused (para 6).134 In a case135 in which the evidence is of a circumstantial nature, the facts and circumstance from which the conclusion of guilt is said to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and the circumstances so established should not only be consistent with the suit of the appellant. But also they must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with the innocence. 136 But with regard to the proof required in civil and criminal proceedings there is this difference; that in the former a mere preponderance of probability is sufficient 137and the benefit of every reasonable doubt need not necessarily go to the defendant, 138 but in the latter the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt." 139 In murder trial the eye-witnesses found to be truthful, natural and independent having no reason to falsely implicate the accused, reliance could be placed on such witnesses.140 The Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain form the chaff after subjecting the evidence to a closer scrutiny and in doing so, the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.141 38. Allegation of corrupt practice must be proved as strictly as a criminal charge The proof of a charge of corrupt practice cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved. To the same effect are the following decisions of the Supreme Court in Surya Kant Royv.Imamul Hak Khan, (1975) 1

SCC 531; Nizamuddin Ahmedv. Narbada Prasad, (1976) 1 SCC 1: AIR 1975 SC 1909; D. Venkata Reddyv. R. Sultan, (1976) 2 SCC 455;Bir Chandra Barmanv. Anil Sarkar, (1976) 3 SCC 88: AIR 1976 SC 603; Ramji Prasad Singhv. Ram Bilas Jha, (1977) 1 SCC 260: AIR 1976 SC 2573; Lakshmi Raman Acharyav. Chandan Singh, (1977) 2 SCR 412: (1977) 1 SCC 423: AIR 1977 SC 587; Amolakchand Chhajedv. Bhagwandas Arya, (1977) 3 SCC 566: AIR 1977 SC 813;Ramanbhai Nagjibhai Patelv. Jashvant Singh Udesingh, (1978) 3 SCC 142; Haji C.H. Mohammad Koyav. T.K.S.M.A. Muthukoya, (1979) 2 SCC 8: AIR 1979 SC 154; A. Younus Kunjuv. R.S. Unni, (1984) 3 SCC 346. There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case.142 In Manmohan Kaliav. Yash, (1984) 3 SCC 346, a three-Judge Bench reiterated that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because, if this test is not applied, a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process. It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as civil action but proof beyond reasonable doubt as in criminal trials.143 39. High standard of proof for punishment The criminal jurisprudence no doubt requires a high standard of proof for imposing punishment on the accused. It is equally true that on hypothetical grounds and surmises prosecution evidence of a sterling character should not be brushed aside and disbelieved to give undue benefit of doubt to the accused.144 40. Proof beyond reasonable doubt A person cannot be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. Doubts will be called reasonable if they are free from a zest for abstract speculation. To constitute reasonable doubt it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it, as opposed to mere apprehension. A reasonable doubt is, not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. The concepts of probability and the degrees of it, cannot be expressed in terms of units to be mathematically enumerated. There is an unmistakable subjective elements in the evaluation of the degrees of probability and the quantum of proof. 145 41. Reasonable doubt Doubts would be called reasonable, if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt it must be free from overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence or from the lack of it. A reasonable doubt is not imaginary, trivial or merely possible doubt, but a fair doubt based upon reason, and common sense. It must grow out of the evidence.146 42. Benefit of doubt Benefit of doubt should have been given to the accused where once the evidence of the eyewitnesses is discarded as unworthy of credence. 147 43. Conviction of an innocent person The Supreme Court observed that the time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A Criminal Court cannot afford to deprive liberty of appellants life long liberty without having at least a reasonable level of certainty that the appellants

were the real culprits which has not been established in the present case. 148 44. Exaggeration to rule of benefit of doubt Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.149 In Gura Singh v. State of Rajasthan, AIR 2001 SC 2775. It has been held that mere doubt sought to be created on the non-mention of dimensions of blood stains by itself is not sufficient as admitted the accused is entitled to the benefit of doubt. Where circumstances are fully proved on facts, there is doubt so far as the commission of the crime by the accused is concerned. 45. Necessary to explain the injuries on the person of the accused Injuries onthe person of the accused should be explained by the prosecution. Where the prosecution fails to do so, any of the following results may follow:(1) That the accused had inflicted the injuries on the members of the complainants party in exercise of the right of self defence. (2) That the prosecution case is doubtful and the charge against the accused is not proved beyond reasonable doubt. (3) That the omission to explain the injuries is innocent or of no effect at all where the injuries sustained are minor and superficial, and the prosecution evidence is so clear and cogent, so independent and disinterested that it far outweighs the omission to explain the injuries.150 In Lakshmi Singh's151 case the Supreme Court referred to some earlier decisions and ruled that "in a murder case the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of the altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. "The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidenceconsists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." As a principle of appreciation of evidence, where serious injuries are found on the person of the accused, the prosecution must explain them so as to satisfy the Court as to the circumstances under which the occurrence originated. But the injuries must be very serious and severe and not merely superficial and must be shown to have been caused at the time of the occurrence in-question,152 witness testifying occurrence of certain facts. This testimony cannot be rejected merely because of certain aspersions. 153 46. Omission to send blood stained earth for chemical examination The omissionby the prosecution to send the blood stained earth found at the place of occurrence, for chemical examination which could have fixed the sites of the assault, which in almost all criminal cases is invariably sent by the prosecution, and the report with the earth produced in Court, may show that the defence case is true. It is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case. 154 Every incidental matter in a criminal trial is not required to be proved beyond a reasonable doubt like the guilt of the accused. Thus on an application for cancellation of bail it is not necessary for the prosecution to prove by a mathematical certainty or even

beyond a reasonable doubt that the witnesses have turned hostile because they have been won over by the accused. Proof of facts by preponderance of probabilities as in civil cases is not foreign to criminal jurisprudence, for example, in cases where the statute raised a presumption of guilt as in the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. The same standard of proof as in civil cases applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. 155 47. Presumption of innocence This maxim is often misunderstood. It means nothing more than this that the greatest possible care should be taken by the Court in convicting an accused. The presumption is that he is innocent till the contrary is clearly established. The burden of proof that the accused is guilty is always on the prosecution. If there is an element of reasonable doubt as to the guilt of the accused, the benefit of that doubt must go to him. The maxim merely emphasises those principles in a striking fashion. It does not mean that even an imaginary or unreal and improbable doubt is enough for holding the accused not guilty, if the evidence, on the whole, points to the only conclusion on which a prudent man can act, that the accused is guilty.156 48. Acquittal of co-accused not entitling others to acquittal Mere acquittal of large number of co-accused persons not per seentitle others to acquittal. The Court has a duty in such cases to separate the grain from the chaff.157 49. Burden on accused-(see sections 105, 106-Benefit of doubt) This fundamental principle of criminal law is found in the Roman Legal System. The prosecution must prove the corpus delicti,that is, the fact that the offence charged has been committed by someone. Then it must prove that the accused has committed the offence. Sometimes the evidence led leaves the mind in a state of doubt as regards accused guilt. In such cases benefit of doubt must go to the accused. If the impact of evidence is to create doubt then it cannot be said that the prosecution has discharged the burden of proving the guilt of the accused. 158 Where the prosecution claimed that the signatures on certain documents acknowledging due payment of a sum of money by a Bank which was said to have been misappropriated by the appellant, were forged, and produced the person whose signatures they purported to be as a prosecution witness, and also a handwriting expert, and while that witness denied those signatures to be his, the handwriting expert deposed that he could not give a definite opinion on the question whether those signatures were forged or not, the Supreme Court held that the High Court erred in relying on the word of that "witness and thus giving the benefit of doubt to him rather than to the appellant who deserved it, the onus of proof being always on the prosecution to establish beyond reasonable doubt all the ingredients of an offence."159 However, the doubt must be of a reasonable mind, that is, in the words of Cockburn, C.J., "not the doubt of a vacillating mind that has not the moral courage to decide upon a difficult or complicated question, and, therefore, takes shelter in idle scepticism. (Tichborne Case).160 No man can be convicted where the theory of his guilt, is no more likely than the theory of his innocence. 161 50. Suspicion is not legal evidence Suspicion however grave cannot take the place of positive proof. 162 It may be a ground for sifting the evidence minutely but no judicial decision can rest on suspicion or conjecture.163 There is no ground to discard evidence of interested witness,164 but, conviction can be set aside on unreliable165 or trustworthy166evidence. Evidence of hostile witness is of no use.167 It is an accepted proposition that in the case168 of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the

assault. "The courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them." 51. Corpus delicti The corpus delicti of a crime is the body or the substance of the crime charged. It involves two elements (i) injury to a specific person, property or right, or a violation of a statute; and (ii) criminal agency of someone in producing that injury or violation.169 52. Principle falsus in uno falsus in omnibus Even if major portion of evidence is found to be different. In case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain. It would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular could not ruin it from the beginning to end. The maxim " falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence.170 53. Circumstantial evidence in criminal cases The distinction between direct evidence and circumstantial has already been explained.171 As to the quantum of circumstantial evidence which can be a sufficient basis for conviction, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.172 Where the circumstances are not inconsistent with the innocence of the accused he cannot be convicted.173 No man can be convicted where the theory of his innocence is as likely as that of his guilt and, therefore, if, on the facts proved, any other reasonable theory than that of his guilt can be built, he must be given the benefit of the doubt and acquitted.174 But the doubt of which benefit is given to the accused must be such as reasonable men may reasonably entertain, and not the doubt of a weak or vacillating mind.175 For proof of circumstantial evidence, four things are essential, that is: (i) that the circumstances from which the conclusion is drawn be fully established, (ii) that all the facts should be consistent with the hypothesis, (iii) that the circumstances should be of a conclusive nature and tendency, (iv) that the circumstances, should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved. It would be incorrect to say that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond "shadow of doubt". The shadow of doubt even in cases which depend on direct evidence is shadow of "reasonable doubt" in its practical application. The test, which requires the inclusion of other alternative hypothesis, is far more rigorous than the test of proof beyond reasonable doubt. In case of the circumstantial evidence, if the prosecution is not required to prove the case beyond 'shadow of doubt' or beyond 'reasonable doubt', at least it is required to prove its case to the 'reasonable certainty'. The prosecution cannot say that as theevidence brought on record raises the finger of suspicion against the accused only, he must be convicted. It is trite to say that suspicion, howsoever strong, cannot take place of the positive proof.176 If, therefore, the facts proved are incapable of explanation on any reasonable hypothesis other than that of the guilt of the accused person, the Court must act on the hypothesis of guilt and cannot refuse to convict merely because certain other hypothesis which are not

reasonable hypothesis are possible, and there is an infinitesimal possibility of the Court being wrong in its decision.177 Suspicion, however grave is an insufficient basis for conviction,178 and cannot take the place of positive proof. 179 Since the failure of one link breaks the chain, every link in the circumstantial chain must be proved,180 and no person should be required to answer the charge without a clear and unequivocal proof of the corpus delicti.181There must be clear proof of adultery and it should not rest upon mere suspicion. The Court should, however, bear in mind that direct evidence will not often be possible to prove adultery.182 Mere speculation is not enough to bring home a charge a fraudulent conspiracy.183 See notes to section 105 under the heading "Prima facie proof of an exception is sufficient in criminal cases", and notes to section 106 under the heading "application of the rule to criminal cases." In Hanumant Govindv. State of Madhya Pradesh,184 it was said "that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should, be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such that as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." The recent and unexplained possession of stolen property may be presumptive evidence against an accused on a charge of robbery and murder, though it must depend upon the circumstance of his case. 185 Circumstantial evidence in cases of murder by poisoning means a combination of facts creating a network, through which there is no escape for the accused, because the facts, taken as a whole, do not admit of any inference but of his guilt.186 Where the point for decision is whether the accused had accepted a sum of money from another on the pretext of helping that other in a criminal case, the pendency of the criminal case at the time when the sum of money is said to have been paid is a relevant circumstance. And the association of the accused with that other person is also another relevant circumstance. In order to find a person guilty on circumstantial evidence the circumstance or the circumstances must be such as would irresistibly lead to an inference of the guilt of the accused. If the inference as drawn from the existing circumstances, is not the only irresistible inference then there is an error of law committed which may merit rectification.187 Penal Code, sections 302 and 149 in prosecution of their common object members of unlawful assembly each one shall be guilty under section 304 Part II read with section 149, I.P.C. 188 The mere fact that the dead body is pointed out by the accused or is discovered as a result of a statement made by him cannot necessarily lead to the conclusion of the offence of murder, though the discovery of some property (the deceased's blood stained silver buttons), at the instance of the accused is a circumstance which may raise a presumption of the participation of the accused in the murder.189 The completed chain of the several links of circumstantial evidence had to be scrutinised in order to see whether the only conclusion possible is that the accused is guilty or whether there is any reasonable ground for a conclusion consistent with the innocence of the accused.190 Whether the circumstantial evidence is not of the kind from which the only inference that could reasonably be drawn is that the accused is guilty, it is not possible to convict him.191 This does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable.192 When the prosecution case rests purely on circumstantial evidence, conviction can be justified only when the evidence is of such a character as to be wholly incompatible with the innocence of the accused, and not till then. 193 The circumstantial evidence to prove a fact should be closely scrutinised, and there should be no weak links, every weak link being a ground of reasonable suspicion, always calling for

an acquittal. The chain need not be long and complicated and may consist of two or three links only, but the links should fit in and should be strong. 194 Bloodstain was noted by the Forensic Science Laboratory on the motorcycle seized by the police pursuant to the information received from A-1 (Sharad Dhakar) during his interrogation. The said bloodstain was found to be of 'O' group (The blood group of the deceased was also 'O'). This circumstance though established by the prosecution is not decisive enough to point to the involvement of that accused in the murder of the deceased. If there were other circumstances, apart from recovery of some jewellery belonging to the deceased from the possession of this accused, perhaps the aforesaid circumstances, relating to the bloodstain found on the motorcycle would have lent support to an inference against him. The Supreme Court held that it is difficult to reverse the order of acquittal passed in favour of A-1 in respect of major counts of offence and dismissed the appeal filed by the State.195 In Yakub Ismailbhai Patel v. State of Gujarat,196 there is evidence on record that blood was found at spot where eye-witness states that he had witnessed armed attack upon deceased. Thus it establishes correctness of his version. In such circumstances mere failure to explain presence of dead body at an adjoining place does not disprove or contradict prosecution case and certainly it is not fatal to prosecution case. 54. Circumstantial evidence In a case based on circumstantial evidence, one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances which could matter. Hence, it is not proper for the court to cull out one circumstance from the rest for the purpose of giving a different meaning to it. 197 Testimony of owner of house in which deceased and accused lived as wife and husband was not challenged. It has been held that circumstantial evidence led to proof of guilt of the accused. 198 Where a case restriction squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating fact and circumstances are found to be incompatible with the innocence of the accused. 199 In Bodh Raj v. State of Jammu Kashmir,200 circumstantialevidence is defined as evidence which is not direct to the point in issue but consists of evidence of various other facts closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. Conviction can be based solely on circumstantial evidence. Where several links in chain of circumstances sought to be established are missing, accused cannot be convicted on basis of such circumstantial evidence.201 55. Guiding principles of circumstantial evidence The principles which should guide and weigh with the Courts administering criminal justice in dealing with a case based on circumstantial evidence have been succinctly laid down in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343. The said principles were reiterated in Sudama Pandey v. State of Bihar, AIR 2002 SC 293: (2002) 1 SCC 679 and Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702. These guiding principles have been followed in Ashish Batham v. State of Madhya Pradesh, AIR 2002 SC 3206. 56. Explanation of the accused If the defence put up by the accused is reasonably probable and is consistent with the facts established against him, it must be held that his guilt has not been established beyond reasonable doubt.202 This does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that hypothesis suggested must be reasonable.203 Where circumstances pointed out the accused as the probable assailant, and he offers no explanation which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case, consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which complete the chain.204

In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. 205 57. False explanations (Seecase of Devanandan Mishrav. Bihar.206) 58. False denials False denials by an accused constitute an additional link in the chain of circumstances against him. Soon after the deceased was found missing, accused made a statement in anger to witness that he (accused) had a hand in his disappearance by throwing him in a furnace, though actually deceased was found in a well. This statement was held to be an incriminating circumstance against the accused in the chain of circumstantial evidence against him,207 and on doubtful evidence of eye-witness accused entitled to be acquitted.208 59. Special rules of proof in criminal trial (1) There is presumption of innocence of accused and hence the burden of proving the charge is on the prosecution. Viscount Sankey L.C. in Woolmington case209observed"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt, subject to matters to defence of insanity and subject also to any statutory exceptions." (2) The evidence against the accused should be such as to exclude, to a moral certainty, every reasonable doubt of his guilt. (3) In matters of doubt, it is safer to acquit than to condemn. (4) There must be clear and unequivocal proof of corpus delicti. (5) The hypothesis of delinquency must be consistent with all the facts proved. "Special rules of proof in criminal cases"-Election cases: "Election petitions alleging corrupt practices are proceedings of a quasi criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt".210 After referring to certain decisions Daulat Ram Chauhan v. Anand Sharma, (1984) 2 SCC 64 (para 18): 1984 SC 621; Manmohan Kalia v. Sri Yash, (1984) 3 SCC 499 (para 7): AIR 1984 SC 1161; A. Younus Kunju v. R.S. Unni, (1984) 3 SCC 346: AIR 1984 SC 960; and Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603: 1969 SC 1201. The Supreme Court observed that their sum and substance was that "a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge or a corrupt practise is in the nature of a criminal charge. It is for the party who set up the plea of 'undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case........................ a very cautious approach must be made in order before the charge of undue influence levelled by the defeated candidate................................ There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at instance of either the candidate or his supporters or agents with his consent or with his agents' consent that should be sufficient to vitiate the election of the returned candidate ........................... While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very

laudable and sacrosanct object of the Act in maintaining purity of the electoral process. By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations; (1) the nature, character, respectability and credibility of the evidence. (2) the surrounding circumstances and the improbabilities appearing in the case, (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who hold the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.211 Time and again the courts have uttered a warning against the acceptance of a noncorroborated oral testimony in an election matter, courts have, therefore, insisted upon some contemporaneous documentary evidence to corroborate the oral testimony when in particular such evidence could have been maintained.212 60. Legal proof and moral conviction; conjectures and suspicion However morally convinced a Judge may feel as to the truth of a particular fact unless there is legal proof of its existence, he cannot take it as proved. 213Conjectures and suspicion214 cannot take the place of proof,215 and the Court's decision must rest not upon suspicion but upon legal grounds established by legal testimony. 216 Once the evidence comes before the court and stands the test of severe legal scrutiny, that evidence constitutes legal proof. Then the dividing line between such proof and moral conviction vanishes. It is, however the duty of the Court in each case to concentrate its attention on the relevant and admissibleevidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case.217 There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, requiring that the evidence of police officers who lay a trap, should be treated on the same footing as evidence of accomplices. Thus where such evidence is found to be entirely trustworthy there is no need to seek any corroboration.218 Where the circumstances justify it, a Court may refuse to act upon the uncoffoborated testimony of a trap witness.219 On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness if the court is satisfied from the facts and, circumstances that the witness is a witness of truth.220 Admissibility of suit for partition cannot be held to be not sustainable on ground that sole evidence for partition was unregistered deed which was inadmissible in evidence.221 Evidence of witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation.222 Non-production of documents which the appellants claim would have strengthened claim of absence of one of the prosecution witnesses cannot in anyway dilute the evidentiary value of the oral testimony. Even though the witnesses have been cross-examined at length, no material inconsistency has been elicited to discard the evidence of said laid witnesses found otherwise truthful and credible.223 61. National Security Act, section 3(2) and Criminal Procedure Code, sections 156, 172 Investigation "Log Book" recording message. Practice to keep "Log Book" in the form of loose sheets produced in Court could not be said to be not genuine.224 62. Constitution of India, Article 136 After meticulously and scrupulously analyzing the evidence, we are left with an impression that the prosecution has not satisfactorily established guilt of these two appellants beyond reasonable doubt.225 63. Wakf, Muslim law Where a burial ground is mentioned as a public graveyard it is either revenue or historical

papers, that would be a conclusive proof to show the public character of the graveyard (para 6).226 64. Credibility of evidence Relationship is not a factor to affect credibility of a witness. It is none often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.227 Where an eye-witness named differently in F.I.R. and during the prosecution evidence, his presence at the place of occurrence cannot be disputed; besides he is one who received injuries on his body.228 Evidence of independent witness cannot be discarded on the sole ground that he belonged to a different area and had no business to be near the place of occurrence since in order to earn their livelihood, people, go to different places depending upon their choices and preferences.229 Credibility of witnesses cannot be doubted namely on the ground that their names do not appear in F.I.R.230 Testimony of relative witness cannot be disbelieved on the ground of relationship. 231 Creditworthy testimony of eye-witnesses cannot be rejected merely on the ground that there was enmity between prosecution and accused party. 232 In the present case, there is a creditworthy evidence, who have vividly described the incident and the part played by each of the accused-appellants. All the four witnesses are injured witnesses and their presence at the spot cannot be doubted. The evidence led by the defence at best shows minor injuries suffered by accused which would not dislodge the prosecution case, which is established by the evidence of creditworthy witnesses and non-explanation of the injuries by the prosecution, if any, sustained by the accusedappellants would not result in disbelieving the prosecution version. 233 In a murder trial, merely because a witness is interested or inimical, his evidence cannot be discarded unless the same is otherwise found to be not trustworthy. 234 In the present case prosecution case itself alleging that accused persons came to beat complainant. Evidence of witnesses, who are injured, cannot be rejected on ground of enimity.235 Evidence cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him but can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.236 65. Impact of acquittal of one witness In Hardeep v. State of Haryana, AIR 2002 SC 3018 it has been held that though one accused implicated by eye-witnesses was acquitted yet it need not mean that all other accused persons would also be acquitted. 66. Complainant, a tenant of deceased In Harising M. Vasava v. State of Gujarat, AIR 2002 SC 1212, the accused inflicted knife blows and caused death to the victim. It happened in the premises of the complainant who happens to be the tenant of the victim. It has been held that the intimate relationship of the complainant as a tenant and the victim as his landlord can not be stretched to hold that the complainant is an interested witness. 67. Criticism of Post-mortem report In Amit v. State of Maharashtra,237 it has been held that once post-mortem is accepted by the defence as to the commission of the sexual assault on the deceased prior to her death, it is not open to the accused to criticise the recitals therein. 68. Non-explanation of injuries Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by accused are minor and superficial or where the evidenceis so clear and cogent, so independent and disinterested.238

69. Formally proving the letters in evidence The Supreme Court observed that it was illegal on the part of the designated court to have used any part of the letters which were not adduced as evidence in the case through any problems known to law. Not even an affidavit has been filed by any one at least for formally proving the letters in the evidence. Section 313 of the Criminal Procedure Code is intended to afford opportunity to an accused "to explain any circumstances appearing in the evidence appearing against him". It is true that an accused cannot be confronted during such questioning with any circumstance which is not in evidence. Section 313 of the Code, not intended to be used as an interrogation. No trial Court can pick out any paper or document from outside the evidence and abruptly slap it on the accused and corner him for giving an answer favourable or unfavourable. The court held that the procedure adopted by the judge using the said two letters, is not permitted by law. The court disapproved the course and dispelled the said letter 'book, belland candle.239 70. Proof of unlawful possession The Supreme Court held that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in section 50 of the Narcotics and Psychotropic Substances Act, 1985, cannot by itself be used as admissible evidence of proof of unlawful possession of contraband on the accused. The Court added that a presumption under section 54 of the Act can only be raised after prosecution has established that the accused was found to be in possession of the contraband in a search onducted in accordance with the mandate of section 50 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act.240 71. Unregistered lease The Madras High Court observed that an unregistered lease deed can certainly be looked into for collateral purposes namely for the purpose of proving a party's character of possession. Mere marking the document does not prove any of the recitals of the document itself. The truth of the document has to be independently proved. It is always open to the opposite party to contend that he did not execute the document at all and that even for collateral purpose, it cannot be relied upon.241 72. Doubt A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.242 73. Omission Innocuous omission is inconsequential.243 ______________________________________________ 1. Q.E. v. Naglakala, 22 B 235 (238). 2. Umachurn Bag v. Ajdannissa Bibi, 12 C 430 (433). 3. Uda Begam v. Imamuddin, 2A 74 (86). 4. Q.E. v. Ram Lal, 15 A 141; E. v. Tulja, 12 B 36. 5. Kinghtbridge Estates Trust Ltd. v. Byme, 1940 AC 613 (621): (1940) 2 All ER 401, per Viscount Maugham. 6. Rabin Roy Choudhury v. State, 1998 Cr LJ 1699 Cal. 7. S.C. Legal Aid Committee v. Union of India, 1995 SCC (Cri) 39: (1994) 6 SCC (Para 14) 731.

8. Munna Lal v. State of Uttar Pradesh, AIR 1991 All 189. 9. E. v. Ashootosh Chuckerbutty, C 483 (493) (FB). 10. Q.E. v. Tulja, 12 B 36; See also Abdul Aziz v. Crown, 34 PR 1916 Cr; Jyoti Narayan v. Brijnandan Sinha, 1954 P 289; Chaparala Krishna v. Guduru Govardhanaiah, 1954 M 822. 11. Rabin Roy Choudhury v. State, 1998 Cr LJ 1699 Cal. 12. See O. 26, r. 14, CPC and sections 303-505, Cr PC (see now Cr PC 1973). 13. Section 13, Arbitration Act, 1940. 14. The Act is not applicable to proceedings before an arbitrator, see section 1. 15. Jyoti Narain v. Brijnandan Sinha, 1954 P 289; Kapur Singh v. Jagat Narain, 1951 Punj 49. 16. E. v. Ashootosh Chuckerbutty, 4 C 483 (FB). 17. See now Cr PC 1973. 18. See section 195(2), Cr PC (see now Cr PC 1973). 19. See section 75, Registration Act (XVI) of 1908. 20. Durga Das Rukhit v. Q.E., 27 C 820; See also Ezra v. Secretary of State, 32 C 605: 32 IA 93 (PC); Ezra v. Secretary of State, 30 C 36. 21. Chaparala Krishna v. Guduru Goverdhanaiah, 1954 M 822. 22. Dr. Baliram Waman Hiray v. Justice B. Lentin, 1988 Cr LR 799: 1988 (2) Scale 688: 1988 (3) Crimes 655: 1988 (4) SCC 419: AIR 1988 SC 2267: 1988 (2) SCR 942: 1989 (72) STC 384: 1989 (95) Cr LJ 306: 1989 (176) ITR 1. 23. Rajkishore v. State of Uttar Pradesh, AIR 1988 Pat NOC 9 (Bihar Tenancy Act 8 of 1885) section 103. 24. Depta Tewari v. State of Bihar, AIR 1988 Sum 14. 25. G. Bulliswami v. C. Annapumamma, AIR 1976 AP 270. 26. Gh. Rasool Wani v. Gh. Mohd. Wani, AIR 1980 NOC 166 (J&K) (FB). 27. S.C. Legal Aid Committee v. Union of India, (1994) 6 SCC 14 (731): 1995 SCC (Cri) 39. 28. Rabin Roy Choudhury v. State, (1998) 104 Cr LJ 1699 Cal. 29. Dr. Baliram Waman Hiray v. Justice B. Lentin, 1988 Cr LR 799: 1988 (2) Scale 688: 1988 (3) Crimes 655: 1988 (4) SCC 419: AIR 1988 SC 2267: 1988 (2) SCR 942: 1989 (72) STC 384: 1989 (95) Cr LJ 306: 1989 (176) ITR 1. 30. Munna Lal v. State of Uttar Pradesh, AIR 1991 All 189 (Paras 4, 14). 31. 1924 Sind 89. 32. R. v. Ashootosh, IC 483 (FB). 33. The term "direct evidence" is used here in contradistinction to circumstantial evidence and not in the sense in which it is used in section 60 of the Act. 34. Karim Bux v. Rex, 1950 A 494: 1950 A 383: 51 Cr LJ 1323. 35. Anant Bhaurao v. Home Minister, 68 Bom LR 187. 36. Sabhapati v. Huntley, 1938 PC 91. 37. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850: 1998 Cr LJ 2515. 38. Stephen's Introduction, p. 12 39. Stephen's, Article 1; Benth. Jud. Evidence, 40-44; Gulson, sections 256-257; Phipson Evidence, 7th Edn., p. 110. 40. Halsbury's Law of England, Vol. 17, 4th Edn., para 30; See Commonwealth Shipping Representative v. P and O Branch Service, 1923 AC 191 (212), H2, per Lord Summer. A Judge has no right to non suit a plaintiff without his consent without hearing the evidence tendered by him; Fletcher v. London and North Western Rly. Co., (1892) 1 QB 122 CA. 41. Heydon's Evidence, Cases and Materials, (5). 42. O. XIV, r. 1(2), CPC. 43. Mohammed Tahir v. Sardar Bono, 1952 A 782. 44. Emperor v. Krishtappa Khandappa, 1925 B 327: 87 IC 839. 45. Suryakant v. Subramant, AIR 1989 NOC 42 (Mad).

46. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788: 1975 SCR 281: (1976) 2 SCC 17. 47. Magraj Patodia v. R.K. Birla, AIR 1971 SC 1295: (1970) 2 SCC 888. 48. Stephen's Introduction, pp. 3-4. 49. Per Macnair, A.J.C., in Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB). 50. Laxman Jairam v. E., 1937 B 31: 166 IC 569: 38 Bom LR 1122; Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB); Q.E. v. Khandia Bin Pandu, 15 B 65; E. v. Tuti Babu, ILR 25 P 33 (written statement); see however, E. v. Ashootosh Chukerbutty, 4 C 483 (FB). 51. See O. 18, R. 12, CPC, section 636, Cr PC, (See now Cr PC 1973). 52. Joy Coomar v. Bundhoo Lal, 9 C 363: O. 26, R. 9 and O. 18, R. 18, CPC, sections 293 and 539 (B), Cr PC (See now Cr PC 1973). 53. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 54. See now Cr PC 1973. 55. Bhubiani Sahu v. King, 1949 PC 257: 1949 ALJ 283: 51 PLR 311: 76 IA 147; Rambharose v. E., 1944 N 105: ILR 1944 N 274 (FB). See also Purshotam Ishwar Amin v. E., 45 B 834: 60 IC 593; Brij Bushan Singh v. E., 1946 PC 38: 223 IC 1: 73 IA 18. But see E. v. Surajbali, 56 A 750: 1934 A 340; Parmanand Ganga Parshad v. E., 1940 N 340; Sulaiman v. E., 1941 R 301. 56. Kashmira Singh v. State, 1952 SC 159: 1952 SCR 526: 1952 Cr LJ 839. 57. State of Uttar Pradesh v. Chet Ram, AIR 1989 SC 1543: (1989) 2 SCC 425: 1989 SCC (Cri) 388: 1989 Cr LJ 1785. 58. Brathi v. State of Punjab, (1991) 1 SCC 519: 1991 SCC (Cri) 203: 1991 Cr LJ 402: AIR 1991 SC 318 (Para 7). 59. State of Maharashtra v. Praful B. Desai, (2003) 1 SCW 1885: 2003 Cr LJ 2033: AIR 2003 SC 2053. 60. State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053: (2003) 4 SCC 601: 2003 SCC (Cri) 815. 61. L.K. Advani v. Central Bureau of Investigation, (1997) 103 Cr LJ 2559 Del. 62. Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 2677. 63. Governor of Bengal in Council v. Motilal Ghosh, 41 C 173: 20 IC 8114 Cr LJ 321. 64. Kenchegowda v. P. Chaunaiya, 1953 Mys 22. 65. State v. Shankar Prasad, 1952 A 776: 1952 CR LJ 1334; Ratan Lal v. Rex, 1949 A. 222: 50 Cr LJ 333; Q.E. v. Hos Nak, 1941 ALJ 416; Hanumant Govind Nargundkar v. State of Madhya Pradesh, 1952 SCR 1091: 1952 SC 343; Palvinder Kaur v. State of Punjab, 1953 SCR 94: 1952 SC 354; Charan Singh v. State of Uttar Pradesh, 1967 SC 520; S.P. Bhatnagar v. State of Maharashtra, 1979 SC 826 (Paras 21, 22, 23); State of Maharashtra v. Anappa, 1979 SC 1410 (Para 2); State Delhi Administrator v. Gulzarilal Tandon, 1979 SC 1382 (Para 1); Pohabya v. State of Maharashtra, 1979 SC 1949 (Para 5); Mahmood v. State of Uttar Pradesh, 1976 SC 69 (Para 9): 1976 Cr LJ 10; Chandmal v. State of Rajasthan, 1976 SC 917 (Para 15): 1976 Cr LJ 679; Tuber Chetia v. State of Assam, 1976 Cr LJ 1416 (Para 7); Hukam Singh v. State of Rajasthan, 1977 SC 1063: 1977 CR LJ 639; Ram Das v. State of Maharashtra, 1977 SC 1164; Umedbhai v. State of Gujarat, 1978 SC 424 (Para 7); Jaswant Singh v. State Delhi Administrator, 1979 SC 190 (Para 8); Rama Nand v. State of Himachal Pradesh, 1981 SC 738 (Para 16): 1981 Cr LJ 298; Shankar Lal v. State of Maharashtra, 1981 SC 765: 1981 Cr LJ (Paras 31, 32); S.S. Kulkarni v. State of Maharashtra, 1981 SC 34, (Para 20); Gambhii v. State of Maharashtra, 1982 SC 1157 (Para 9); Joga Gola v. State of Gujarat, 1981 Supp SCC 66: 1982 SCC (Cri) 141: 1982 SC 1227 (Para 3); Prem Thakur v. State of Punjab, (1982) 3 SCC 462: 1983 SCC (Cri) 88: 1983 SC 61 (Para 11); Earabhadsappa v. State of Karnataka, 1983 SC 446; Ashok v. State, AIR 1989 SC 1890. 66. Shankar Lal v. State of Maharashtra, (1981) 2 SCC 35: 1981 SC 765: 1981 Cr LJ 325 (Para 32).

67. Balbir Singh v. State of Punjab, AIR 1991 SC 2231 (Para 7). 68. Swrajmal v. State (Delhi Administration), (1979) 4 SCC 725: 1979 Cr LJ 1087: 1979 SC 1408(para 2). 69. Sehoraj v. A.P. Botra, 1955 A 638. 70. Guvala China Venkatesu v. State of Andhra Pradesh, AIR 1991 SC 1926: 1991 Supp (2) SCC 727: 1991 Cr LJ 2326. 71. State of Uttar Pradesh v. Ganga Ram, AIR 2006 SC 20. 72. Kallu alias Masih v. State of Madhya Pradesh, AIR 2006 SC 831. 73. Rakesh v. State of Haryana, (2001) 6 SCC 248: AIR 2001 SC 2521. 74. Sheelam Ramesh v. State of Andhra Pradesh, AIR 2000 SC 118: (1999) 8 SCC 369: 1999 SCC(Cri) 1437. 75. State of Uttar Pradesh v. Bhoora, AIR 1998 SC 254: (1998) 1 SCC 128: 1998 All LJ 86: 1998 Cr LJ 478. 76. Harcharan v. State of Rajasthan, AIR 1998 SC 244. 77. State of Bihar v. Basawan Singh, AIR 1958 SC 500: 1958 Cr LJ 976: 1959 SCR 195; Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184: (1964) 2 Cr LJ 344: (1964) 6 SCR 623; Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832: 1968 Cr LJ 1017: (1968) 2 SCR 641 and Ravinder Singh v. State of Haryana, (1975) 3 SCC 742: 1975 SCC (Cri) 202: (1975) 3 SCR 453; See also Balwant Kaur v. Union Territory of Chandigarh, (1988) 1 SCC 1: 1988 SCC (Cri) 1; Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: (2000) 106 Cr LJ 4640: AIR 2000 SC 3352. 78. Baburao Bajirao Patil v. State of Maharashtra, 1970 CAR 449: 1970 UJ 928: (1970) 3 SCC 911. 79. Ram Behari Yadav v. State of Bihar, (1998) 4 SCC 517: AIR 1998 SC 1850: 1998 SCC (Cri) 1085. 80. Toran Singh v. State of Madhya Pradesh, AIR 2002 SC 2807: (2002) 6 SCC 494: 2002 SCC (Cri) 1377. 81. Sudha Devi v. M.P. Narayanan, (1988) 1 Scale 952: (1988) 2 UJ 70: (1988) 3 SCC 366: (1988) 3 SCR 756: AIR 1988 SC 1381. 82. K. Srinivasa v. Kashinath, 2004 Cr LJ 4566 Karn. 83. Rachapalli Abbulu v. State of Andhra Pradesh, AIR 2002 SC 1805: (2002) 4 SCC 208: 2002 SCC (Cri) 748. 84. Halsbury's Laws of England, Vol. 17, 4th Edn., para 11. 85. Corpus Juris Secundum, Vol. 31, A 192. 86. Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133: (1977) 1 SCR 763: AIR 1977 SC 183. 87. Hawkins v. Powells, (1911) 1 KB 988 (995); Emp. v. Shafi Ahmad, 31 BLR 515. 88. The expression "disproved" occurs only in section 4, and the expression "not proved" does not occur any where in the Act. 89. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 90. M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691: 2001 SCC (Cri) 258; Lokeman Shah v. State of West Bengal, (2001) 5 SCC 235: AIR 2001 SC 1760. 91. Anam Swain v. State, 1954 Ori 33. 92. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Prasannamayi Debi v. Baikuntha Nath Chattoraj, 49 C 132: 66 IC 782: 1922 C 260. 93. Ahibaran Singh v. State, 1953 A 493: 1953 Cr LJ 1125: 1953 ALJ 173. 94. Kamij Shaikh v. E., 1948 P 73: 229 IC 175: 48 Cr LJ 301. 95. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515; Thakar Das v. E., 32 PR 1916 (Cri): 38 IC 759: 18 Cr LJ 375; Jarat Kumari Dassi v. Bissessur Dutt, 39 C 245 13 IC 577. 96. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Kallam Narayana (in re:), 56 M 231: 143 IC 46 1933 M 233: 34 Cr LJ 481; Ah Lok v. E., 4 Cr LJ 382: Wills'

Cir. Evidence, 6th Edn., 318-19. 97. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; Weston v. Peary Mohan Das, 40 C 898: 23 IC 25. 98. State v. Shankar Prasad, 1952 A 776: 1952 Cr LJ 1334. 99. E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515. 100. Rama Nand v. State of Himachal Pradesh, 1981 CAR 75: 1981 Cr LR 340: 1981 SCR 444: 1981 UJ 424: (1981) 1 SCC 511: (1981) 1 Scale 24: AIR 1981 SC 738: (1981) 87 Cr LJ 298. 101. R. Puthunamar Alhithan v. P.H. Pandian, (1996) 3 SCC 624: AIR 1996 SC 1599. 102. R. Puthunainar Alhithan v. P.H. Pandian, (1996) 3 SCC 624: (1996) 3 Scale 317: AIR 1996 SC 1599. 103. State of Punjab v. Bhajan Singh, AIR 1975 SC 258: (1975) 4 SCC 472: 1975 SCC (Cri) 584: 1975 Cr LJ 282; see Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463: 1994 SCC (Cri) 1798: AIR 1995 SC 135: (1994) 6 JT 99. 104. E. v. Shafi Ahmad, (1929) 31 Bom LR 515. 105. Per Mitter J., Joy v. Bundhoolal, (1882) 9 C 363. 106. A. Abdul Rashid Khan v. P.A.K.A. Shahul Hamid, (2000) 10 SCC 636. 107. Naval Kishore Somani v. Poonam Somani, AIR 1999 AP 1. 108. Anam Swain v. State, 1954 Ori 33. 109. Woodroffe Evidence, 9th Edn., p. 116. 110. Wills Cir. Evidence, 6th Edn., 3; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 111. Jagdish v. Premlata Rai, AIR 1990 Raj 87. 112. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; see Aung Hla v. E., 9 R 404: 135 IC 849: 1931 R 235: 33 Cr LJ 205, and notes on the definition of " Evidence" supra. 113. Lattan v. State, 1989 ALJ 75 (DB). 114. Hazari Lal v. State, 1980 SC 873: (1980) 2 SCC 390: 1980 SCC (Cri) 458: 1980 Cr LJ 564. 115. Gurmeel Singh v. State, 1988 ALJ 1491. 116. Sher Singh v. Jitendranath Sen, 1931 Cal 607: 33 Cr LJ 3. 117. Balbir Singh v. Salochana Devi, 1988 ALR 327 (FB). 118. State of Uttar Pradesh v. Ram Swarup, AIR 1988 SC 1028: 1988 Supp SCC 262: 1988 ALJ555 SC. 119. Surinder Singh v. Hardial Singh, (1984) 2 Scale 659: (1985) 1 CCC 267: (1985) 1 SCC 91: (1985) 1 SCR 1059: AIR 1985 SC 89. 120. Weston v. Peary Mohan Das, 40 C 898: 23 IC 257. 121. E.g. confessions. Sections 24 to 30; character, sections 53 and 54: incompetency of witnesses, section 120; character of the prosecutrix in rape cases section 155. 122. E.g., admissions, sections 18 to 20; character, sections 52 and 55; estoppel, sections 115, 116 and 117. 123. Parke, V., in R. v. Steme, cited in Best, section 95; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; Ah Lok v. E., 4 Cr LJ 382; Harprasad Ghasiram Gupta v. State, 1952 B 184: 53 BLR 938. 124. Pritam Singh v. Tilok Singh, 1954 Pepsu 14. 125. Lolit Mohan Sarkar v. Q.E., 22 C 313 (323). 126. Per Holroyd, J., in Sarah Hobson's Case, 1; Lewin's Crown Cases, 261; 2 Hale PC 289; 4 Blackst. Comm. 358; Best, section 95. 127. 2 Hale PC 290; Best, section 95. 128. Pershadi v. State, 1955 A 443. 129. Edara Venkata Rao v. Edara Venkayya, 1943 M 38 (2): 207 IC 163. 130. Batar v. B., (1950) 2 All ER 458 (459). 131. Gulabchand v. Kuldiplal, (1967) 1 SCJ 580: AIR 1966 SC 1734.

132. State of Uttar Pradesh v. Ram Swaroop, AIR 1988 SC 1028: 1988 Supp SCC 262: 1988 SCC(Cri) 552. 133. State of Uttar Pradesh v. Jodha Singh, AIR 1989 SC 1822: (1989) 3 SCC 465: 1989 SCC (Cri) 591. 134. Harendra Narain Singh v. State of Bihar, (1991) 3 SCC 609: 1991 Cr LJ 2666: (1991) 3 Crimes 297: AIR 1991 SC 1842. 135. S.D. Soni v. State of Gujarat, 1991 Cr LJ 330: 1992 SCC (Cri) 331: 1992 Supp (1) SCC 567: AIR 1991 SC 917 (Para 8). 136. Gambir v. State of Maharashtra, (1982) 2 SCC 351: AIR 1982 SC 1157; Raina Nand v. State of Himachal Pradesh, 1981 (1) SCC 511: AIR 1981 SC 738; Prem Thakur v. State of Punjab, 1982 (3) SCC 462: AIR 1983 SC 61; Earabhadrapa alias Krishnappa v. State of Karnataka, 1983 (2) SCC 330: AIR 1983 SC 446; Gian Singh v. State of Punjab, 1986 (Suppl) SCC 676: AIR 1987 SC 1921 and Balavinder Singh v. State of Punjab, (1987) 1 SCC 1: AIR 1997 SC 350; See also Lakshmi Naik v. State of Orissa, AIR 1995 SC 1387, relied on Sharad v. State of Maharashtra, AIR 1984 SC1622; Dhanjay Chatterjee v. State of West Bengal, (1994) 1 JT (SC) 33: 1994 SCC (Cri) 358: (1994) 2 SCC 220. 137. Cooper v. State, 6 HL Case 746 (772), Per Willes, J. 138. Edara Venkata Rao v. Edara Venkayya, 1943 M 38 (2): 207 IC 163. 139. Per Parke, B. in R v. Steme, cited in Best Evidence, 76. 140. Alma v. State of Madhya Pradesh, AIR 1991 SC 1519: 1991 Supp (2) SCC 409. 141. Tara Singh v. State of Punjab, 1991 Supp (1) SCC 536: 1991 SCC (Cri) 710: AIR 1991 SC 63(para 4). 142. Mahant Shreo Nath v. Choudhry Ranbir Singh, (1970) 3 SCC 647. 143. Surinder Singh v. Hardial Singh, (1984) 2 Scale 659: (1985) 1 CCC 267: (1985) 1 SCC 91: (1985) 1 SCR 1059: AIR 1985 SC 89. 144. State of Uttar Pradesh v. Ram Sewak, AIR 2003 SC 2141: (2003) 2 SCC 161: 2003 SCC (Cri) 459. 145. Krishnan v. State, AIR 2003 SC 2978. 146. Ramakant Rai v. Madan Rai, AIR 2004 SC 77: (2003) 12 SCC 395: 2004 Cr LJ 36. 147. Orsu Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 4961: 2005 SCC (Cri) 166. 148. Rang Bahadur Singh v. State of Uttar Pradesh, (2003) 3 SCC 454: AIR 2000 SC 1209: 2000 Cr LJ 1718: 2000 All LJ 860. 149. State of Punjab v. Karnail Singh, AIR 2003 SC 3609; see Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209: (1990) 1 SCC 445: 1990 Cr LJ 562. 150. Mohar Rai v. State of Bihar, AIR 1968 SC 1281: 1968(3) SCR 525; State of Gujarat v. Beri Fatima, AIR 1975 SC 1478; Puran Singh v. State of Punjab, AIR 1975 SC 1674: 1975 Cr LJ 1479: (1975) 4 SCC 518; Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394: 1976 SCC (Cri) 671: AIR 1976 SC 2263 (Para 11): 1976 Cr LJ 1736. 151. Laxmi Singh v. State of Bihar, (1976) 4 SCC 394: 1976 SCC (Cri) 671: AIR 1976 SC 2263(Para 11): 1976 Cr LJ 1736. 152. Jagdish v. State of Rajasthan, AIR 1979 SC 1010: (1979) 2 SCC 178: 1979 Cr LJ 888. 153. Manorama Srivastava v. Saroj Srivastava, AIR 1989 All 17. 154. Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394: 1976 Cr LJ 1736: AIR 1976 SC 2263(Para 13). 155. State, Delhi Administration v. Sanjay Gandhi, (1978) 2 SCC 411: 1978 Cr LJ 952: AIR 1978 SC 961 (Para 14). 156. Pershadi v. State, AIR 1957 Cr LJ 328. 157. Gorle S. Naidu v. State of Andhra Pradesh, AIR 2004 SC 1169: (2003) 12 SCC 49: 2004 Cr LJ 924. 158. 26 Cr LJ 782. 159. Labhshanker v. State of Gujarat, (1979) 3 SCC 391: 1979 Cr LJ 890: 1979 SC 1012

(Para 5). 160. Kenny p. 397-403 (R. v. Castra). See also Sher Mohammad v. E., 1945 Lah 27; E. v. Shaft Ahmed, 31 BLR 515. 161. Empt. v. Shivdas Omkar, 15 BLR 315. 162. Ashwani Kumar Roy v. E., CWN 219; Palvinder Kaur v. State, 1952 SCJ 354: AIR 1952 SC 354: 1953 SCR 94: 1953 Cr LJ 154; Ata Mohamad v. Crown, 1950 L 199 (FB). 163. 17 CWN 49. 164. Mohan Singh v. State, 1988 ALJ 441 (DB). 165. State of Uttar Pradesh v. Dinesh Chandra, 1988 ALJ 937. 166. Lakhan Singh v. State, 1988 ALJ 447 (DB). 167. Kathi Odhabhai Bhimabhai v. State of Gujarat, AIR 1993 SC 1193: 1993 Supp (3) SCC 421: 1993 SCC (Cri) 1049. 168. Budhwa v. State of Madhya Pradesh, 1991 Supp (1) SCC 9: 1991 SCC (Cri) 237: AIR 1991 SC 4 (Para 4). 169. Wharton's Criminal Evidence, 12th Edn., p. 48. 170. Israi v. State of Uttar Pradesh, AIR 2005 SC 249, see also Irjubbala Venugopalaswamy v. State of Andhra Pradesh, 2004 AIR SCW 3019; Triloki Nath v. State of Uttar Pradesh, AIR 2006 SC 321. 171. See notes to this section under the heading "direct and circumstantial evidence" supra. 172. Ram Kala v. E., 1926 A 191; Mohammad v. E., 1945 L 27; Hasan Din v. E., 1943 L 56; Mangal Singh v. K.E., 1937 PC 179: ILR 1937 L 371: 168 IC 432: 64 IA 134: 39 PLR 426; Ramun v. E., 7 L 84: 94 IC 901: 1926 L 88: 27 Cr LJ 709; Majhi v. E., 86 IC 344: 1925 L 323: 26 Cr LJ 760; Thakar Das v. E., 32 PR 1916 Cr: 38 IC 759: 18 Cr LJ 375; E. v. Kangal Mali, 41 C 601: 26 IC 161: 15 Cr LJ 713; E. v. Imam Ali Sircar, 8 CWN 278; Balmakand Ram v. Ghansamram, 22 C 391; State v. Ganga Sahai, 1953 A 211: 1953 ALJ 166: 1953 Cr LJ 571; Palvinder Kaur v. State, 1952 SC 354: 1952 SCJ 545: ILR 1953 Punj 107: 1953 SCR 94; King Emperor v. Sheo Shankar Singh, 1954 P 100: 1954 Cr LJ 171: 32 P 243; Radiana v. State, 1953 Raj LW 338; Purnamal v. King, 1949 Assam 84: 51 Cr LJ 63; Ata Muhammad Khan v. Crown, 1950 L 199 (FB); Pershadi v. State, 1955 A 443; Kanbi Babu v. State, 1955 Sau 93; Machander v. State, AIR 1955 SC 792; Deonandan Mishra v. State, AIR 1955 SC 801: 1955 Cr LJ 1647; Ram Bharosey v. State, AIR 1954 SC 704; Mangleshwari Prasad v. State, AIR 1954 SC 715: 1954 Cr LJ 1797; Kutuhal Yadav v. State, 1954 SC 720: 1954 Cr LJ 1802. 173. Jalwanti v. State, 1953 P 246: 32 P 217: 1953 Cr LJ 1344. 174. Sher Muhammad v. E., 1945 L 27; Hasan Din v. E., 1943 L 56; Kanakasabai Pillai (in re:), 1940 M 1; Basangouda Yaramanappa v. E. (in re:), 1941 B 139: ILR 1941 B 315: 195 IC 208; Sharift v. E., 1944 S 113; Daulat Bai v. E., 77 IC 600: 1923 L 537: 25 Cr LJ 424; E. v. Shivdas Omkar Marwade, 14 Cr LJ 251: 15 Bom LR 315: 19 IC 507; Singaram (in re:), 1954 M 152: (1953) 2 MLJ 526: 1954 Cr LJ 115: 1953 MWN 572: 66 MLW 795. 175. Sher Muhammad v. E., 1945 L 27; E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515; See also Kallam Narayana (in re:), 56 M 231: 143 IC 46: 1933 M 233: 34 Cr LJ 481. 176. State of Madhya Pradesh v. Bhim Mohd., (2002) 108 Cr LJ 1906 Chh. 177. Sher Mohammad v. E., 1945 L 27. 178. Asvini Kumar Roy v. E., 10 CWN 219; Gangwar v. E., 1944 S 155; Jain Lal v. E., 1943 P 82; Kuruva Nagamma (in re:), 1941 M 870; Palvinder Kaur v. State, AIR 1952 SC 354: 1952 SCJ 545: ILR 1953 Punj 107: 1953 SCR 94; Ata Muhammad Khan v. Crown, 1950 L 199 (FB); Padala Veera Reddy v. State of Andhra Pradesh, 1989 Supp (2) SCC 706: AIR 1990 SC 79. 179. Pakhar Singh v. E., 1946 PLR 283. 180. Per Adam. J., in Niru Bhagat v. E., IP 630: 71 IC 219: 1922 P 582: 24 Cr LJ 91; Seho Narain Singh v. E., 58 IC 457: 21 Cr LJ 777. 181. Best, section 441.

182. M. Kanniappan v. Akilandammal, (1953) 1 MLJ 829: 1954 M 427; Sheigh Issake v. Biyamunni Ummah, (1885) 2 Weir 647; E. v. Nandan, (1881) 1 AWN 37; Jodhan Sahu v. Kulwanti Kuer, 1948 P 285; Earnest John White v. Katheleen White, 1954 P 566. 183. Bank of India v. Jamsetji A.H. Chinoy, AIR 1950 PC 90. 184. 1953 Cr LJ 129. 185. Wasim Khan v. Uttar Pradesh, 1956 SCR 191: AIR 1956 SC 400. 186. Anant Lagu v. Bombay, 1960 SCR 778. 187. Golam Mohiuddin v. State of West Bengal, 68 CWN 215. 188. Mangal v. State, 1988 ALJ 1503 (DB). 189. Kanbi Karsan v. State of Gujarat, 1962 Supp 2 SCR 726: 1966 Cr LJ 605. 190. Devanandan Mishra v. Bihar, 1955 Cr LJ 1647. 191. Prithvisinghji v. Bombay, 1960 Cr LJ 672. 192. Govinda Reddy v. Mysore, 1960 Cr LJ 137. 193. Palvinder Kaur v. Punjab, 1952 SCJ 545: 1953 SCR 94: 1953 Cr LJ 154. 194. Mojiya Ratna v. State, 1960 MP LJ 1226. 195. Manish Dixit v. State of Rajasthan, (2001) 1 SCC 596: 2001 SCR 235: AIR 2001 SC 93: 2001 Cr LJ 133. 196. AIR 2004 SC 4209. 197. Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 2677: (2001) 6 SCC 206: 2001 SCC (Cri) 1082. 198. Sardar Khan v. State of Karnataka, (2004) 2 SCC 442: 2004 Cr LJ 910: AIR 2004 SC 1695. See also Sashi Jena v. Khadal Swain, AIR 2004 SC 1492: (2004) 4 SCC 236: 2004 Cr LJ 1394 (On benefit of doubt conviction under circumstantial evidence was set aside). 199. State of Rajasthan v. Rajaram, AIR 2003 SC 3601. 200. AIR 2002 SC 3164. 201. State of Tiptur Rural Police v. Murulasiddaiah, 2006 (2) Kar LJ 173 (DB). 202. Bhagat Ram v. Punjab, 1954 Cr LJ 1645. 203. Govinda Reddy v. Mysore, 1960 Cr LJ 137; Champalal v. State of Maharashtra, (1981) 3 SCC 610: 1981 Cr LJ 1273: AIR 1981 SC 1675 (para 5). 204. Deonandan Mishra v. Bihar, 1955 Cr LJ 1647. 205. Kishore Chand v. State of Himachal Pradesh, 1991 SCC (Cri) 172: AIR 1991 SC 2140: (1991) 1 SCC 286 (Para 5). 206. 1955 Cr LJ 1647. 207. Pershadi Lal v. Uttar Pradesh, 1957 Cr LJ 328. 208. Chaman Lal v. State, 1988 ALJ 1465. 209. 1935 AC 462. 210. Amolakchand v. Bhagwandas, (1977) 3 SCC 566: AIR 1977 SC 813 (Para 12). 211. Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, (1984) 4 SCC 649: AIR 1985 SC 24(Paras 2 to 9) 212. M.J. Zakhariasati v. T.M. Mohammad, 1990 (3) SCC 396 (Para 70). 213. Barindra Kumar Ghose v. E., 37 C 467: 71 C 359: 11 Cr LJ 453; Baboo Aubinash Chander Banerjee v. Moonshee Mahomed Yusoof, 25 WR Cr 43. 214. Atar Singh v. Thakur Singh, 452 PR 1910: 35 IA 206: 6 IC 7821 (PC); Kedar v. E., 1944 A 94: 1944 ALJ 87; Lolit Mohan Sarkar v. Q.E., 22 C 313 (323); see also Barindra Kumar Ghose v. E., 37 C 467: 7 IC 359: 11 Cr LJ 453; State v. Shanker Prasad, 1952 A 776: 1952 Cr LJ 1334. 215. Vinod Samuel v. Delhi Administration, AIR 1992 SC 465. 216. Brij Bhusan Singh v. E., 1946 PC 38; Mina Kumari Bibi v. Bijoy Singh Dudhuria, 44 C 662 (672): 44 IA 72: 40 IC 242: 1916 PC 238 (PC); Miran Baksh v. E., 133 IC 446: 1931 L 529: 32 Cr LJ 1032. 217. Kedar v. E., 1944 A 94: 1944 ALJ 87: 212 IC 309: 45 Cr LJ 573. 218. Hazari Lal v. State, AIR 1980 SC 873: (1980) 2 SCC 390; State of Gujarat v.

Balubhai Madhabhai Zala, 1995 Cr LJ 2588, para 6.5. 219. Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498: (1972) 3 SCC 652; Darshanlal v. Delhi Administration, AIR 1974 SC 218: (1974) 3 SCC 595. 220. Prakash Chand v. State, AIR 1979 SC 400: (1979) 3 SCC 90; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Bhanu Prasad Hariprasad v. State of Gujarat, AIR 1968 SC 1323: (1969) 1 SCR 22. 221. Mallamma v. Nanjamma, AIR 1988 Kant 225. 222. State of Uttar Pradesh v. Devendra Singh, AIR 2004 SC 3690: (2004) 10 SCC 616. 223. Anil Sharma v. State of Jharkhand, AIR 2004 SC 2294: (2004) 5 SCC 679. 224. Ayya alias Ayub v. State of Uattar Pradesh, AIR 1989 SC 364: (1989) 1 SCC 374. 225. Mathura Prasad v. State of Madhya Pradesh, AIR 1992 SC 49: 1992 Supp (1) SCC 406. 226. Dwarka Dass v. Punjab Wakf Board, AIR 1991 P&H 89. 227. Israr v. State of Uttar Pradesh, AIR 2005 SC 249. 228. Mohar v. State of Uttar Pradesh, AIR 2002 SC 3279: (2002) 7 SCC 606. 229. State of Uttar Pradesh v. Farid Khan, AIR 2004 SC 5050. 230. Raj Kishore Jha v. State of Bihar, AIR 2003 SC 4664: (2003) 11 SCC 519 following Bhagwan Singh v. State of Madhya Pradesh, AIR 2002 SC 1621: AIR 2003 SC 1088: (2003) 3 SCC 21; Chittar Lal v. State of Rajasthan, AIR 2003 SC 3590: 2003 Cr LJ 3458 and State of Madhya Pradesh v. Man Singh, (2003) 6 Supreme 202. 231. State of Himachal Pradesh v. Mast Ram, AIR 2004 SC 5056; See also Dani Singh v. State of Bihar, AIR 2004 SCW 3719 and Yakub Ismailbhai Patel v. State of Gujarat, AIR 2004 SC 4209. 232. Rama Shish Rai v. Jagdish Singh, AIR 2005 SC 335. 233. Mohinder Singh v. State of Punjab, AIR 2006 SC 1639. 234. State of Jammu and Kashmir v. Mohan Singh, AIR 2006 SC 1410. 235. Kallu alias Masih v. State of Madhya Pradesh, AIR 2006 SC 831. 236. Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, AIR 2006 SC 951. 237. AIR 2003 SC 3131. 238. Sucha Singh v. State of Punjab, AIR 2003 SC 3617: (2003) 7 SCC 643. 239. Kalpnath Rai v. State, AIR 1998 SC 201: (1997) 8 SCC 732. 240. State of Punjab v. Baldev Singh, AIR 1999 SC 2378: (1999) 6 SCC 172: 1999 Cr LJ 3672; AIR 1974 SC 334, Distinguished). 241. Konsaliya Ammal v. Valliammal Ammal, AIR 1998 Mad 287. 242. State of Madhya Pradesh v. Dharkole alias Govind Singh, AIR 2005 SC 44. 243. Beshna alias Bhiswadeb Mahato v. State of West Bengal, AIR 2006 SC 302.

SYNOPSIS 1. Unless a contrary intention appears from the context 2. Court 3. A Commission of Inquiry is not a court 4. Family Court and Evidence Act 5. Includes, means and includes 6. Facts 7. Relevancy and admissibility 8. Facts in issue 9. Facts in issue and issues of fact 10. Document 11. Tape-records of speeches are "documents" 12. Document Procured by illegal means 13. Evidence 14. Recording of video conferencing 15. Entries in diaries and in loose sheets 16. Three kinds of police dogs 17. Types of evidence 18. Direct and circumstantial evidence 19. "Evidence" envisaged under section 319, Cr. P.C. 20. Quality of evidence in Criminal trials 21. Testimony of an accomplice is evidence under section 3 22. Retracted confession of a co-accused 23. Probative value of evidence 24. Strength of prosecution case 25. Affidavit 26. Evidence by affidavit in advance of defence witness 27. Hearsay evidence 28. What is proof 29. Proof: proved, disproved, not proved 30. "Proved"-"Not Proved" 31. Not proved 32. Difference between 'not proved' and 'false' 33. Fact 'not proved'-'disapproved' 34. Evidence and proof-"matters before it" 35. Prima facie case 36. Proof in civil and criminal cases 37. Standard of proof: in civil and criminal cases 38. Allegation of corrupt practice must be proved as strictly as a criminal charge 39. High standard of proof for punishment 40. Proof beyond reasonable doubt 41. Reasonable doubt 42. Benefit of doubt 43. Conviction of an innocent person 44. Exaggeration to rule of benefit of doubt 45. Necessary to explain the injuries on the person of the accused 46. Omission to send blood stained earth for chemical examination 47. Presumption of innocence 48. Acquittal of co-accused not entitling others to acquittal

49. Burden on accused-(see sections 105, 106-Benefit of doubt) 50. Suspicion is not legal evidence 51. Corpus delicti 52. Principle falsus in uno falsus in omnibus 53. Circumstantial evidence in criminal cases 54. Circumstantial evidence 55. Guiding principles of circumstantial evidence 56. Explanation of the accused 57. False explanations 58. False denials 59. Special rules of proof in criminal trial 60. Legal proof and moral conviction; conjectures and suspicion 61. National Security Act, section 3(2) and Criminal Procedure Code, sections 156, 172 62. Constitution of India, Article 136 63. Wakf, Muslim law 64. Credibility of evidence 65. Impact of acquittal of one witness 66. Complainant, a tenant of deceased 67. Criticism of Post-mortem report 68. Non-explanation of injuries 69. Formally proving the letters in evidence 70. Proof of unlawful possession 71. Unregistered lease 72. Doubt 73. Omission Comments 1. Unless a contrary intention appears from the context Generally a term or expression which occurs in different places in the same Act has the same meaning, as it would be unreasonable to hold that the Legislature used the same work in different sense in the same Act. 1 Therefore, the terms defined in the interpretation clause have ordinarily the same meaning wherever used in the Act. 2 If, however, the context affords a clear indication that a term is used there in a sense different from the one assigned to it by the interpretation clause; because a definition in the interpretation clause is controlled by subsequent and express provisions on the subject matter of same definition.3 Therefore, definitions of words and expressions in the interpretation clause are subject to the qualification "unless a contrary intention appears from the context". The definitions given in the Evidence Act are for the purposes of Act alone.4 But, even if no such words are inserted, little weight attaches to the omission, for some such words are to be implied in all statutes where expressions, which are interpreted by a definition clause, are used in a number of sections with meaning sometimes of a wide and sometimes obviously limited character. 5 2. Court Term "Court" in section 3 includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This is, perhaps, the only Indian Statute in which the expression "Court" is defined. But this definition is by no means exhaustive and is framed for the purpose of the Act itself and should not, however, be extended beyond its legitimate scope.6 A Court is an agency created by the sovereign for the purpose of administering justice. 7 In order to constitute a court, State's sovereign judicial powers must be conferred on it by a statute for deciding the dispute in a judicial manner so as to decide the rights of the parties in a definitive judgment. To decide a dispute in a judicial manner and declare the rights of the parties in a definitive judgment is essential sine qua non of a court. The

decision in a judicial manner contemplates that parties are entitled as a matter of right (i) to be heard in support of their claim; and (ii) to adduce evidence in proof of it; and (iii) to decide the matter on consideration of evidence in accordance with law.8 This definition of the word "Court is not exhaustive,9 and is meant for the purposes of Evidence Act alone.10 What authorities can be said to constitute courts had been frequently raised before the Supreme Court and formed the subject matter of several of its decisions. In the case of Ramraov. Narayan,AIR 1969 SC 724: 1969 Cr LJ 1069, the Supreme Court was considering the question whether the Registrar's nominee under Maharashtra Cooperative Societies Act is a Court within the meaning of section 195 of the old Code and answered that question in the negative. In that decision the Supreme Court surveyed many of its earlier decisions and held that a person or body would constitute a court only when it is entrusted with the judicial power of a State. According to the Supreme Court in Virinder Kumar, AIR 1956 SC 153: 1956 Cr LJ 326, what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide dispute in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. The trend of decisions of the Apex Court suggests that the pronouncement of a definitive judgment is considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a Court in the strict sense of the term. 11 A Commissioner appointed under the Civil Procedure Code or the Criminal Procedure Code is legally authorized to take evidence and is, therefore, a "Court";12 but an arbitrator, though authorized to take evidence,13 is expressly excluded from the definition of "Court".14 A Commissioner appointed under the Public Servants (Inquires) Act is a Court within the meaning of section 3 of the Contempt of Courts Act. 15 As the word "Court" includes all Magistrates, it is clear that a Committing Magistrate or a Magistrate recording the statement of a witness under section 166, Criminal Procedure Code, is a "Court". In a trial held by a judge with a jury, the jury is a "Court". 16A Registrar or a Sub-Registrar is not a Court for the purposes of section 195,17 Criminal Procedure Code,18 but because in proceedings under sections 73 and 74 of the Registration Act a Registrar has the power to take evidence,19 he would, when acting under section 75 of the Registration Act, be a "Court" within the meaning given to this term by the Evidence Act. A Collector or Deputy Collector acting under the Land Acquisition Act has no power to administer an oath and is not, therefore, a "Court".20 The definition of the word "Court" in the Evidence Act has been framed only for the purpose of that Act which under section 45. An Income Tax Officer, though authorized to examine witnesses on oath is not a Court. 21 The question whether an Income Tax Officer is a court for the purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973 was more a question of interpretation than one of express enactment after the amendment of section 136 of the Income Tax Act, 1961 by section 28 of the Finance Act, 1985. In view of the change in law, an Income Tax Officer cannot be regarded to be a court for the purposes of section 195(1)(b). 22 Affidavit not made evidence under new Cr. P.C. 1973. Order of Sessions Judge for ignoring affidavit upheld.23 Revenue Officers cannot be said to be court.24 Rent Controller acting under the A.P. Buildings (Lease, Rent and Eviction) Control Act is a Court as he is authorized to record evidence under Rule (2) of the Rules framed therunder.25 The authority under the Payment of Wages Act is not a Civil Court, but definition of court under section 3 of the Evidence Act is an inclusive one and only for the purposes of Act.26 The words 'Court' and judge are frequently used interchangeably. They are not stricto sensesynonymous. A court cannot exist without a judge, and the power to create a court

embraces the power to create the office of judge thereof. 27 Under sub-section (2) of section 144, the Executive Magistrate can pass an ex parteorder only in case of emergency or in case where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed. But the function of the Executive Magistrate does not cease with the ex parteorder. Under subsections (5) and (7), it is his duty to investigate into the respective claims of the parties and alter or rescind the order already passed so as to give protection for the exercise of rights possessed by any person and for that purpose to take action against others likely to interfere with the exercise of such rights. In view of the nature of the provisions of section 144(2) enacted in the context of an overriding emergency, there is no contravention of principles of natural justice in passing an order ex parte, and the party aggrieved by the ex parteorder can approach the Executive Magistrate by filing an application under section 144(5) and where an application under sub-section (5) is received, the Magistrate under sub-section (7) is to afford to the applicant opportunity of appearing and showing cause against the order and if the applicant offers evidence to show cause against the continuance of the ex parteorder, it will be his obvious duty to hold an inquiry, and without holding that inquiry he cannot anticipate what the nature of the evidence would be and confirm his ex parteorder. If he rejects the application wholly or in part, he shall have to record in writing the reasons for so doing. Taking of evidence by the Executive Magistrate in a proceeding under section 144 cannot, thus, be ruled out altogether. It is true, that according to the decision in Gulam Abbas'scase reported in AIR 1981 SC 2198: 1981 Cr LJ 1835, an order under section 144, Cr. P.C. cannot be said to be a judicial or a quasi-judicial order and can also be said to be an order passed in exercise of the executive function of the Magistrate so as to be amenable to the writ jurisdiction under Article 32 of the Constitution for enforcement of fundamental rights. It is also true that an order under section 144 is not intended to be permanent or semi-permanent in character. But it does not necessarily lead to the conclusion that the Executive Magistrate cannot be a criminal Court in relation to a proceeding under section 144 even for the limited purpose and within the meaning of section 195(1)(b)(i) of the Code of Criminal Procedure. It is true that an Executive Magistrate exercising jurisdiction under section 144, Cr. P.C. may not satisfy all the tests or fulfill all the criteria which are accepted by the Supreme Court as such for determining whether he is a court or not, and in that sense the executive Magistrate may not be termed as a Court in the strict sense of the term. But then, there is nothing in the Code itself to warrant a conclusion that he cannot be a Court within the meaning of section 195(1)(b)(i) of the Code. Unlike the previous Code of 1898, section 6 of the present Code has expressly recognised the Executive Magistrate as a criminal Court. He is to be deemed to be an inferior criminal court within the meaning of section 397, Cr. P.C. and amenable to the revisional jurisdiction of both the High Court and the Sessions Judge. Thus, the Executive Magistrate exercising jurisdiction under section 144, Cr. P.C. can be designated as a "Court" at least for the limited purpose and within the meaning of section 195(1)(b)(i).28 3. A Commission of Inquiry is not a court A Commission of Inquiry is not a court, properly so called. A Commission is obviously appointed by the appropriate government 'for the information of its mind' in order for it to decide as to the course of action to be followed. It is, therefore, a fact-finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is of a legal character and it has

the power to administer an oath will not impart to it the status of a court. Thus, a Commission of Inquiry constituted under section 3 of the Commissions of Inquiry Act, 1952, is not a "Court" for purposes of section 195(1)(b) of the Code of Criminal Procedure, 1973.29 4. Family Court and Evidence Act Family Court30 shall be deemed to be a Civil Court so far as proceeding under Chapter IX of Cr. P.C., are concerned, the provisions of the Cr. P.C. have been made applicable. Parties before the Family Court are entitled to be heard in support of their case and are also entitled to adduce evidence in order to prove their claim. They can cross-examine each other and adduce evidence. 5. Includes, means and includes When a definition uses the word 'includes' it is enumerative and not exhaustive. 31 When the words used are "means" and "includes", the definition is intended to be exhaustive. 32 6. Facts The Actadopts Bentham's classification of facts into "physical" and psychological" facts. Clause (1) with illustrations (a), (b) and (c) refers to "physical" facts, i.e., external facts which can be perceived by the five best-marked senses of man; clause (2) and illustrations (d) and (e) refer to "psychologial" facts, i.e.,internal facts which cannot be so perceived but of which a man is conscious, e.g.,intention, knowledge, good or bad faith, felling or opinion. Physical facts are capable of direct as well as indirect proof, i.e.,they can be proved either, by the testimony of persons who are favourably situated to perceive them or by proof of other facts which either make their existence probable or are inconsistent with any hypothesis other than that of their existence. Psychological facts, however, generally cannot be proved by direct evidence33 as the only direct evidence concerning them which is available is the confession of the person who is conscious of them. But, like physical facts, they can be proved by circumstantial evidence. "What passes in the mind of man is not scrutable by any human tribunal; it is to be collected from his acts." If A fires at B,the act of firing is a 'physical' fact and can be proved by the evidence of a person who saw the occurrence or by circumstantial evidence; but the intention or the object with which Bis fired at cannot be proved by any direct evidence other than the statement of the person who fired. It can, however, be proved by circumstantial evidence, i.e., by proof of facts from which a reasonable inference as to that intention or object may be drawn. The Court takes cognizance only of those facts which appear on the record.34 An inference arrived at by a process of ratiocination cannot be regarded as a fact within the meaning of the expression in section 3 of the Indian Evidence Act, 1872. (1) The state of a man's mind is as much a fact as the state of his digestion. (2) Facts in the act includes35 Factum Probandum, i.e.,the principal fact to be proved, and36 Factum Probans, i.e., the evidentiary fact from which the former follows immediately or by inference. In R. Puthunainar Alhithan v. P.H. Pandian, AIR 1996 SC 1599 it has been held that to draw an inference that a fact in dispute has been established, there must exist on record some direct material facts or circumstances from which such an interference could be drawn. 7. Relevancy and admissibility The expressions "relevancy" and "admissibility" are often used as synonyms, but their legal implication are distinct and different. Facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an Advocate and his client though relevant are not admissible, so also, facts which are admissible may not be relevant for example, question permitted to be put in crossexamination to test the veracity or impeach the credit of witnesses, though not relevant are admissible.37 8. Facts in issue

The distinction between facts in issue and relevant facts is of fundamental importance and must be thoroughly comprehended in order to understand and appreciate the scheme of the Act. Sir James Fitzjames Stephen, who framed the Act, in his Introduction to the Act thus defines facts in issue:-"They may by themselves, or in connection with other facts, constitute such a state of things that the existence of the disputed right or liability would be a legal inference from them. From the fact that A is the eldest son of B,there arises of necessity the inference that A is, by the law of England, the heir-at-law of B, and that he has such rights as that status involves. From the fact that A caused the death of B under certain circumstances, and with a certain intention or knowledge there arises of necessity the inference that A murdered B, and is liable to the punishment provided by law for murder. Facts thus related to a proceeding may be called facts in issue unless their existence is undisputed.38 The definition of facts in issue in the Act is merely a paraphrase of Stephen's definition in the Introduction. The substantive law of a country defines the rights and liabilities of its citizens in the form of certain abstract propositions or formulae, and the object of every suit or other judicial proceedings is to ascertain whether the right claimed, or the liability sought to be enforced by one person against another, does or does not exist. A party to a litigation seeking to enforce a right or a liability against his opponent, in order to obtain a verdict in his favour by a tribunal, has to establish all such facts as go to constitute that right or liability. These "necessary constituents" of a right or liability are called "facts in issue" if their existence is asserted by one party and is denied by the' other. In, other words, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a defendant may prove in order to defeat the plaintiff's suit, becomes a fact in issue, if the parties are not agreed as to its existence or non-existence. Therefore the answer to the question what are the facts in issue in a particular case depends on the rule of the substantive law which is applicable to the case and on that rule of procedure which deals with the framing of issues of fact. 39 In criminal cases there is no such facts as constitute the offence, their non-existence being presumed. Hence all the 'ingredients' of the offence which is charged against the accused are "facts in issue" in a criminal trial the substantive civil law of India has not yet been completely codified. It is contained partly in some of the legislative enactment's, e.g., the Transfer of Property Act and the Indian Contract Act partly in rules of Hindu and Mohammedan Laws, and partly in rules of custom by which the parties are governed; and where there is no express provision on the point in any of these, the Judge has to decide according to the dictates of justice, equity and good conscience. Unlike the substantive civil law, the criminal substantive law of India has been thoroughly codified in the Indian Penal Code and a number of "special" and "local" Penal Statutes. The facts in issue are those facts which are necessary to prove or disprove, to establish or refute a case. Facts in issue are normally clear from the pleadings and are a matter for the judge to determine. Facts in issue must normally be proved by evidence.40 Facts in issue are distinguishable from "collateral facts" which affect the proof of facts in issue. 41 9. Facts in issue and issues of fact Under Order XIV, rule 1, of the Civil Procedure Code the Court has to frame issues on all disputed facts which are necessary for the decision of a case. Issues arise when a material proposition of fact is affirmed by one party and denied by the other. "Material propositions of fact are those propositions of fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence."42 Issues thus recorded are called issue of fact in they are generally recorded in interrogative form. The subject-matter of an issue of fact is always a fact in issue and what, when described in the language of the EvidenceAct, is a "fact in issue" becomes, when described in the language of the Civil Procedure Code, an "issue of fact." Order XIV, rule 1(2) of the Civil Procedure Code is, therefore, merely a paraphrase of the definition of "facts in issue" in section 3 of the Evidence Act. 10. Document

Oneof the essential elements of due execution of a document is that the document should be signed by the party or parties associate with it. The words "intended to be used or which may be used" in the definition necessarily imply that the document has to be used by some party against another. If it is to be so used, then there should be intrinsic evidence in the document itself of some particular party or parties being associated with the same.43 A document need not necessarily be something which is signed, sealed or executed.44 It must be proved.45 11. Tape-records of speeches are "documents" The tape-records of speeches are "documents", as defined by section 3 of the Evidence Act, which stand on no different footing than photographs, and they are admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, has to be there so as to rule out possibilities of tampering with the record. (c) The subject matter recorded has to be shown to be relevant according to rules of relevancy found in the Evidence Act.46 12. Document Procured by illegal means There is no bar to admissibility of a document which is procured by illegal means if it is relevant and its genuineness is proved. But, while examining its genuineness, the circumstances under which it came to be produced into Court have to be taken into consideration.47 13. Evidence The word "evidence" signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate proof....The fact sought to be proved is called the principal fact; the fact which tends to establish it, the evidentiary fact (Best). In English Law, the word " evidence" sometimes means the words uttered and things exhibited by witnesses before a Court of Justice. At other times, it means the facts proved to exist by those words or things and regarded as the groundwork of inference as to other fittest not so proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to the matter under inquiry.48 In the Act, however, the word has been assigned a more definite meaning and is used only in the first of these senses. As thus used, it signifies only the instrument by means of which relevant facts are brought before the Court ( viz., witnesses and documents) and by means of which the Court is convicted of these facts. 49 Therefore matters other than the statements of witnesses and documents produced for the inspection of the Court, e.g., a confession or statement of an accused person in the course of a trial.50 Statements made by parties when examined otherwise than as witnesses, demeanour of witnesses,51 the result of local investigation or inspection,52 and material objects other than documents such as weapons, tools, stolen property, etc., are not "evidence" according to the definition given in the Act. These are, however, matters which the Court may legitimately take into consideration. The definition of " evidence" must be read together with the definition of "proved"; and the combined result of these two definitions in that "evidence", as defined by the Act, is not the only medium of proof and that in addition to it, there are a number of other "matters" which the Court has to take into consideration when forming its conclusions.53 A statement recorded under section 164, Cr. P.C.54 is not evidence within the meaning of this definition.55 So also a confession of an accused is not evidence in the ordinary sense of the term.56 Entire evidence of hostile witness does not get excluded or rendered unworthy of consideration.57 In the matter of appreciation of the powers of the appellant court are as wide as that of

the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused".58 Evidence is generally divided into three categories (1) oral or personal, (2) documentary, (3) material or real. But the fact only recognizes the first two categories. Real or material evidence is supplied by material objects for inspection of the Court, e.g.,weapon of offence or stolen property. Evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing.59 14. Recording of video conferencing The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself for recording the evidencethrough video conferencing.60 15. Entries in diaries and in loose sheets An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Thus, when the alleged diaries are not records of the entries arising out of a contract. They do not contain the debits and credits. They can, at the most, be described as a memorandum kept by a person for his own benefit, which will enable him to look into the same whenever the need arises to do so for his future purposes. Admittedly, the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries therein are on monthly basis. Even the names of the persons to whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to? Thus, it can be said that the said diaries are not books of account within the ambit of section 34 of the Evidence Act. Therefore, the entries in the books of account by themselves are not sufficient enough to fasten the liability on the head of a person against whom they are produced. They are not a substantive piece of evidence. The said entries in the books of account can be used only by way of corroboration to other pieces ofevidence, which is led by a party. Admittedly there is no evidence with the prosecution besides the alleged entries in the diaries and in the loose sheets as conceded by the learned counsel for the C.B.I. Thus, the alleged entries in the books of account by themselves are of no avail to the prosecution. 61 16. Three kinds of police dogs There are generally three kinds of police dogs, namely, (i) tracker dogs, (ii) patrol dogs, and (iii) sniffer dogs. Hounds belonging to certain special breeds are imparted with special training and they are capable of leading investigating agency to very useful clue for detection of crime. English Courts are treating such evidence as admissible. In Canada and Scotland evidence based on detection of crime through police is admissible, but in the U.S.A. and India such admission of evidence is not uniform.62 17. Types of evidence (1) Primary and Secondary-Itmay be oral or documentary. Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered by his senses. It is called direct evidence as opposed to hearsay (Section 60). As a rule hearsay evidence is not admissible, but there are some exceptional cases of hearsay evidence which are admissible. Such exceptional cases of hearsay evidence are examples of secondary oral evidence or indirect evidence (e.g.,sections 32, 33). Primary documentary evidence is the evidence of the original documents (Section 62), while secondary documentary evidence is the evidence of copies, etc., of documents

which are admissible under certain circumstances. (Sections 63, 65). (2) The Best Evidence or the original evidence means the primary evidence. The Best Evidence Rule excludes secondary evidence. (3) Real and personal. (4) Oral and documentary (see definition of Evidence) (5) Direct and indirect (hearsay). The word direct evidence is used in two senses (a) as opposed to hearsay evidence, (b) as opposed to circumstantial evidence. In the first sense directevidence is the evidence of a fact actually perceived by a witness with his own senses or an opinion held by him, while hearsay evidence is, e.g.,what someone else had told the witness to have seen or heard by him. In section 60 the word 'direct' is used in contradistinction with 'hearsay' evidence. 18. Direct and circumstantial evidence English text-writers divide evidence into (a) direct or positive evidence and (b) indirect or circumstantial evidence. Direct evidence is that which goes expressly to the very point in question and which, if believed, proves the point in question without aid from inference or reasoning, e.g.,the testimony of an eye-witness to murder.63 Indirect or circumstantial evidence, on the other hand, does not prove the point in question directly, but establishes it only by inference. Thus, if Awere tried for the murder of B,evidence of the fact A had a motive to murder Band that, at the time Bwas murdered A, with a drawn sword, was seen going towards the place where B was murdered and, shortly afterwards, was seen returning from the place with his clothes stained with blood, would be indirect or circumstantialevidence. According to section 5 of the Act, evidence may be given in a proceeding of the existence or non-existence of facts in issue and of such other facts as are declared to be relevant by the Act. If the evidence relates directly to the existence or non-existence of a fact in issue, the evidence is direct; but if it relates to the existence or non-existence of only a relevant fact, it is indirect or circumstantial. Direct evidence, as thus understood, should not be confused with the sense in which this term is used in section 60 of the Act. In section 60 the term "direct evidence" is used as opposed to "hearsay" evidence and not as opposed to "circumstantial" evidence, and therefore, in the sense in which this term is used in that section, circumstantial evidence must always be "direct", i.e.,the facts from which the existence of the fact in issue is to be inferred must be proved by "direct" 'and not by "hearsay" evidence. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence.64 For proof by circumstantial evidence four things are essential:(i) That the circumstances from which the conclusion is drawn be fully established. (ii) That all the facts should be consistent with the hypothesis. (iii) That the circumstances should be of a conclusive nature and tendency. (iv) That the circumstances, should, to moral certainty actually exclude every hypothesis but the one proposed to be proved.65 According to the Supreme Court it is an effect to say that "what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond 'shadow of doubt'. In the first place, 'shadow of doubt', even in cases which

depend on direct evidence is shadow of 'reasonable' doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt". 66 In case where two of the accused persons had intentionally caused death of the deceased, there is no reason to discard evidence of witnesses.67 In a prosecution for bribery the fact that money had been recovered from the bushshirt of the appellant, was, by itself held to be not sufficient, for convicting him, when the substantive evidence led to prove the offence was found to be not reliable. 68 The rule that facts are provable by circumstances as well as by direct testimony, has a considerable effect in preventing guilty or dishonest parties from tampering, or making way with witnesses and other instruments of evidence, which they would be more likely to do, if they knew that the only evidence which the law would receive against them was contained in a few easily-ascertained depositories.69 "The sentence of the law to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. It converts into a permanent final judgment 70what might otherwise be a transient sentiment. The infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular is distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. This close alliance between criminal law and moral sentiment is in all ways healthy and advantageous to the community"..... Stephen. It is well-settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because pedestrian or resident of the vicinity has not been cited as witness will be no ground throw away the otherwise reliable testimony of the eyewitnesses which is natural and inspires confidence. 71 It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly.72 19. "Evidence" envisaged under section 319, Cr. P.C. Once the Sessions Court records a statement of the witness, it would be part of the evidence. It is true that finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising the court's power under section 319 Cr. P.C. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether powers under section 319 should be exercised or not. Sub-section (1) of section 319 itself provides that in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. Further, in case of enquiry there may not be any question of cross-examining the witness. In State of Himachal Pradesh v. Surinder Mohan, (2000) 2 SCC 396: 2000 SCC (Cri) 400, the Court dealt with the contention that before granting pardon under section 306 Cr. P.C., the accused should be permitted to cross-examine such person whose evidence is recorded by the Magistrate. The Court negatived the said contention by holding that at the time of investigation or enquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examine would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, under section 200, Cr. P.C., when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the enquiry, the accused has no right to be heard and, therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-

examination and thereafter during trial if he is examined and cross-examined, then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial. Similar would be the position under section 319, Cr. P.C. Hence, the term "evidence" as used in section 319 of the Criminal Procedure Code would not mean evidence, which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. The word "evidence" occurring in sub-section (1) is used in a comprehensive and broad sense, which would also include the material collected by the investigating officer and the material, or evidence, which comes before the court and from which the court can prima facie conclude that the person not arraigned before he is involved in the commission of the crime.73 20. Quality of evidence in Criminal trials The Supreme Court observed that in the present case though P.W. 3 has deposed that 10-15 persons were in the vicinity at the time of the occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eye-witness to the occurrence. Having examined all the eye-witnesses even if other persons present nearby were not examined the evidence of the eye-witness cannot be discarded. The Supreme Court held that the courts are concerned with quality and not quantity of evidence and in a criminal trial conviction can be based on the sole evidence of a witness if it inspires confidence. 74 In State of Punjab v. Karnail Singh, AIR 2003 SC 3609, it has been held that merely because one of the witnesses stated that he was not aware of the illicit relationship, that does not any way elitute the evidentiary value of the evidence of other witnesses who have spoken about such illicit relationship. Discussing the evidentiary value of a deposition in dacoity case the Supreme Court observed that the investigating officer has stated in his evidence that immediately on being informed he had gone to the village and at that time he had noticed that the lights on both the electric poles were burning. This part of hisevidence has remained unchallenged in cross-examination. It was no body's case that the light was so insufficient that from a distance of 30 paces a person standing near the electric pole could not be identified. The reason given by the High Court that because the dacoits were wearing khaki uniforms and were wearing hats they could not have been identified appears to be more in the nature of a surmise, as it was not even suggested to any witness that because of the hats worn by the dacoits there was shadow on their faces and, therefore, it was not possible to recognise them. The Court added that it was difficult to appreciate the reasoning of the High Court. If the witnesses were able to recognise the colour of the clothes worn by the dacoits, surely they could have recognised their faces also of those who were known to them. The accused had come from the north-western direction and even if it is assumed that their caps could have cast shadow over their faces while they were passing by the north-western electric pole then light from the other pole would have fallen on their faces. The court added that the High Court was wrong in discarding the evidence of the eye-witness on the ground that his conduct in going to the tube-well of the deceased and then to the Police Station was unnatural.75 Discussing the evidentiary value of a deposition of the defence was to show that this witness was not travelling by that bus as he stood contradicted when he stated that he was returning after purchasing "Gwarsa" fertiliser whereas the bill produced by him discloses that he had purchased urea on that day. This discrepancy in

his evidence cannot be regarded as sufficient to doubt his presence in the bus.76 21. Testimony of an accomplice is evidence under section 3 In Haricharan, AIR 1964 SC 1184: (1964) 2 Cr LJ 344: (1964) 6 SCR 623, Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement, which has now become virtually a part of the law that it is corroborated in material particulars. The Supreme Court has, in a series of cases, expressed the same view as regards accomplice evidence.77 22. Retracted confession of a co-accused A retracted confession of a co-accused does not constitute substantive evident within the meaning of section 3 of the Indian Evidence Act. It can only be taken into account by the Court in arriving at its conclusion. Its value, however, depends on the facts and circumstances of each case.78 23. Probative value of evidence Clarifying the phrases "relevancy" and "admissibility" and the distinction between these two terms as well as the meaning of "probative value of evidence" the Supreme Court observed that more often the expression "relevancy and admissibility" are used as synonyms but their legal implication are distinct and different for often facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an advocate and his client though are not admissible. Similar is the case with facts which are admissible but may not be relevant, for example questions permitted to be put in cross-examination to test the veracity or impeach the credit of a witness, though not relevant are, admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.79 24. Strength of prosecution case The case of the prosecution should rest on its strength and not on the absence of explanation on plausible defence by the accused.80 25. Affidavit Affidavit are not included in the definition of 'evidence' in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. 81 The affidavits, though, are not included in section 3 of Evidence Act, the same can be used as evidence, if the law specifically permits certain matters to be provided by affidavit.82 26. Evidence by affidavit in advance of defence witness Practice adopted by the defence side in getting the affidavits of the witnesses in advance is deprecated, because it amounts to an attempt aimed at dissuading the witnesses from speaking the truth before the Court. Such affidavits are either cooked up or obtained by fraud. Thus, this type of interference in the criminal justice cannot be encouraged.83 27. Hearsay evidence "Hearsay evidence is evidence given by a testifying witness of a statement made by some other person, when such evidence is tendered to prove the truth of the statement. Such evidence is not admissible save as provided by the Civil Evidence Act, 1968 which provides for the admission of first hand hearsay statements subject to compliance with procedural rules and preserves a number of common law exceptions to the rule against hearsay".84 Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. 85 28. What is proof "Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty or

burden of showing to the court what conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations; but the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court. 86 The word 'proof' seems properly to mean anything which serves, immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact are generally our senses, the testimony of witnesses, documents and the like. (Best, section 10). Absolute certainty is seldom to be had in human affairs. Mathematical Science alone admits of absolute proof. Hence proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a conclusion. 87 In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 it has been held that the word "proof" is not to be understood in the sense it is defined in the Evidence Act, 1872, because evidence proof of the fact depends upon the degree of probability of its having existed. Fletcher Moulten LJ in Hawkins v. Powells Tillery Steam Coal Company Ltd., (1911) 1 KP 988 said "Proof does not mean proof to rigid mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion." 29. Proof: proved, disproved, not proved88 This clause indicates the degree of certainty which is required to treat a fact as proved, and is so worded as to provide for two conditions of mind; first, that in which a man feels absolutely certain of a fact, in other words "believes it to exist," and, second, that in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence.89 What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him.90 The proof of a fact depends not upon the accuracy of statements but upon the probability of its having existed.91 Absolute certainly in this work-a-day world is seldom to be had in the affairs of life, and we are frequently obliged to act on degrees of probability which fall very short of it.92 What is required, in a legal trial, is not absolute certainty. All that is required is material whereon the Court can reasonably act upon the supposition that a fact exists.93 It is useless to speculate on possibilities or probabilities. There are varieties of possibilities and in the absence of reliable evidence it is wrong to take the view that one possibility is more probable than the other.94 The test of whether a fact is proved is such degree of probability as would satisfy the mind of a reasonable man as to its existence; absolute or conclusive proof is not necessary. 95 The standard of certainty required is that of a prudent man acting in grave and important concerns of his own.96Except where artificial probative value is assigned to certain facts by presumptions, the Act affords no guidance on the question whether one fact is or is not sufficient to prove another fact. On this point, the Judge like a prudent man has to use his own judgment and experience and cannot be bound by any rule except his own judicial discretion.97 No hard and fastrule can be laid down as to what inference can be drawn from a certain circumstance. The cumulative effect of all the circumstances established by evidence and the nature of these circumstances have to be taken into consideration and then it has to be judged whether, having regard to the ordinary course of human conduct, it is safe to presume that the offence was committed by the accused. 98 The definition of the word "disproved" is merely a converse proposition of the definition of the word "proved".99 30. "Proved"-"Not Proved" Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth.

That is why under section 3, Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.100 Section 3 provides that a fact is said to be 'proved' when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; a fact is said to be 'disproved' when, after considering the matter before it, the Court either believes it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist; a fact is said to be 'not proved' when it is neither proved nor disproved.101 In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 (748), para 37, the Supreme Court had held that: "... inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which to infer the other fact, which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made, the method of inference fails and what is left is mere speculation or conjecture." Therefore, to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference could be drawn. The standard of proof required cannot be put in a strait-jacket formula. No mathematical formula can be laid on the degree of proof. The probative value could be gauged from the facts and circumstances in a given case. An inference from the proved facts must be so probable that if the court believes, from the proved facts, that the facts do exist, it must be held that the fact has been proved. The inference of proof of that fact could be drawn from the given objective facts, direct or circumstantial.102 Suspicion by itself however strong it may be, is not sufficient to take place of proof and warrant a finding of guilt of accused.103 31. Not proved It indicates a state of mind between two states of minds "proved and disproved", when one is unable to decide how the matter precisely stands. It negates both proof and disproof.104 A fact may be orally admitted in Court. The admission would not come within the definition of the word 'evidence' as given in this Act, but still it is a matter which the Court before whom the admission was made would have to take into consideration in order to determine whether the particular fact was proved or not. 105 32. Difference between 'not proved' and 'false' The Supreme Court observed that the appellants seek to place reliance on that portion which has been quoted hereinbefore where the High Court proceeds by saying even assuming it to be so. This part of the case falls away from the written agreement of sale which would be admissible under section 92 of the Indian Evidence Act. The Supreme Court added that there is difference between 'not proved and 'false'. 106 33. Fact 'not proved'-'disapproved' The Supreme Court observed that a fact which is not proved does not necessarily mean it

is a false one. Section 3 of Evidence Act gives definitions of various words and expressions. The expression 'proved' is followed by the definition of "disapproved". A fact is said to be "not proved" when it is neither proved nor disapproved. This is followed by the definition of 'disapproved'. A fact is said 'not proved' when it is neither proved nor disapproved. On the other hand, a fact is said to be disproved when, after considering matters before it, the court either believes that it does not exist or considers its nonexistence so probable that a prudent man, ought under the circumstances of the particular case to act upon the, supposition that it does. The word 'disapproved' is normally said to be a false thing. It will thus be seen that a fact not proved is not necessarily a fact disproved. A fact which is not proved may be true or may be false. A doubt lingers about its truth. Merely because it is not proved, one may jump to the conclusion that it is disproved. A fact is disproved normally by the person who claims that an alleged fact is not true. For disproving a fact the burden is always on the person, who alleges that the fact is not true.107 34. Evidence and proof-"matters before it" Though the evidence of a fact and proof of a fact are not synonymous. 108 the term "proof" is often confounded with "evidence," and applied to denote the medium of proof, whereas in strictness it marks merely the effect of evidence.109 "When the result of evidence is assent to the proposition or event which is the subject-matter of inquiry, such proposition or event is said to be proved". 110 Evidence, therefore, differs from proof as cause from effect. Decree based solely on affidavits cannot be treated as decree based on evidence.111 As has been already noticed, proof is not the result of " evidence" alone. "Evidence", is only one of the media of proof and in addition to " evidence," the Court, when forming its conclusions, has to take into consideration a number of other matters which are not evidence" in the sense given to this term by the Act, e.g., admissions of the parties, the result of local inspection, the presumptions arising in the case and facts of which Courts take judicial notice. Court should not attach undue importance to discrepancies, when they do not go to root of the matter and shake the version of the witness. 112 The definition of 'proved' does not enable the Court to take into consideration matters, including statements, the use of which is statutorily barred,113 such as statements made before a Police Officer in the course of investigation, videsection 162 Cr. P.C.114Motive need not be established, in case of direct evidence.115 35. Prima facie case A prima faciecase is not the same thing as "proof' which is nothing but belief according to the conditions laid down in the Act. It is a fallacy to say that because a magistrate has found a prima faciecase to issue process, therefore, he believes the case to be true in the sense that the case is proved.116 But depends on the, credibility of witness, and their evidence,117 cannot be rejected as they are partisan witnesses.118 36. Proof in civil and criminal cases There is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition is that of a person of prudence and practical good sense. 'Proof' means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence, which may be sufficient to regard a fact, as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction.119

The rules of evidence for civil and criminal cases are, in general, the same; 120 but some provisions in the Act are peculiar to criminal cases121 and others, peculiar to civil cases.122 There is, however, a marked difference as to the effect of evidence in civil and criminal cases. Thus, whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to "such a moral certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable doubt.123 In a criminal case before the Court is called upon to convict a person it has to satisfy itself that possibility of his innocence as ruled out, but in a civil case all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists.124 Where therefore, there is no such moral certainty, and there is reasonable doubt as to the guilt of the accused, the benefit of the doubt is given to the accused. 125 "It is better that ten guilty men should escape than that one innocent man should suffer,126 and acting on this principle, Courts always insist on a much higher degree of proof in criminal cases than in civil cases. The rule as stated above is nowhere enacted in the Evidence Act, but is a rule of prudence founded on public policy, as the consequences of an erroneous conviction are much more serious both to the accused and society than the consequences of an erroneous acquittal.127 This maxim, means that the greatest possible care should be taken by the Court in convicting an accused.128 Unlike criminal cases, in a civil case it cannot be said that the benefit of every reasonable doubt must necessarily go to the defendant.129 As to the degree of certainty required in a criminal case where the burden of proof is on the accused (see notes to sections 105 and 106). 37. Standard of proof: in civil and criminal cases Denning L.J., observed "it is true that by our law here is a high standard of proof in criminal cases, that this is subject to the qualification that there is no absolute standard in either case. In criminal case the charge must be proved beyond reasonable doubt, but there may be degrees of proof beyond that standard .... so also in civil cases .... there may be degree of probability130 It makes no difference between civil cases wherein charges of a fraudulent nature of criminal character are made and civil cases where such charges are not made. But this is not to say that the Court will not while striking the balance of probability keep in mind the presumption of honesty or innocence or the nature of the crime or fraud charged. It is wrong to insist that such charges must be proved clearly and beyond reasonable doubt, by the party alleging a criminal act against the other party.131 Evidence of witnesses cannot be rejected as they are partisan witness;132interested witness or chance witness.133 The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused (para 6).134 In a case135 in which the evidence is of a circumstantial nature, the facts and circumstance from which the conclusion of guilt is said to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and the circumstances so established should not only be consistent with the suit of the appellant. But also they must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with the innocence. 136 But with regard to the proof required in civil and criminal proceedings there is this difference; that in the former a mere preponderance of probability is sufficient 137and the benefit of every reasonable doubt need not necessarily go to the defendant, 138 but in the latter the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt." 139 In murder trial the eye-witnesses found to be truthful, natural and independent having no reason to falsely implicate the accused, reliance could be placed on such witnesses.140 The Supreme Court as well as the High Courts have pointed out that in cases arising out

of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain form the chaff after subjecting the evidence to a closer scrutiny and in doing so, the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.141 38. Allegation of corrupt practice must be proved as strictly as a criminal charge The proof of a charge of corrupt practice cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved. To the same effect are the following decisions of the Supreme Court in Surya Kant Royv.Imamul Hak Khan, (1975) 1 SCC 531; Nizamuddin Ahmedv. Narbada Prasad, (1976) 1 SCC 1: AIR 1975 SC 1909; D. Venkata Reddyv. R. Sultan, (1976) 2 SCC 455;Bir Chandra Barmanv. Anil Sarkar, (1976) 3 SCC 88: AIR 1976 SC 603; Ramji Prasad Singhv. Ram Bilas Jha, (1977) 1 SCC 260: AIR 1976 SC 2573; Lakshmi Raman Acharyav. Chandan Singh, (1977) 2 SCR 412: (1977) 1 SCC 423: AIR 1977 SC 587; Amolakchand Chhajedv. Bhagwandas Arya, (1977) 3 SCC 566: AIR 1977 SC 813;Ramanbhai Nagjibhai Patelv. Jashvant Singh Udesingh, (1978) 3 SCC 142; Haji C.H. Mohammad Koyav. T.K.S.M.A. Muthukoya, (1979) 2 SCC 8: AIR 1979 SC 154; A. Younus Kunjuv. R.S. Unni, (1984) 3 SCC 346. There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case.142 In Manmohan Kaliav. Yash, (1984) 3 SCC 346, a three-Judge Bench reiterated that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because, if this test is not applied, a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process. It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as civil action but proof beyond reasonable doubt as in criminal trials.143 39. High standard of proof for punishment The criminal jurisprudence no doubt requires a high standard of proof for imposing punishment on the accused. It is equally true that on hypothetical grounds and surmises prosecution evidence of a sterling character should not be brushed aside and disbelieved to give undue benefit of doubt to the accused.144 40. Proof beyond reasonable doubt A person cannot be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. Doubts will be called reasonable if they are free from a zest for abstract speculation. To constitute reasonable doubt it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it, as opposed to mere apprehension. A reasonable doubt is, not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. The concepts of probability and the degrees of it, cannot be expressed in terms of units to be mathematically enumerated. There is an unmistakable subjective elements in the evaluation of the degrees of probability and the quantum of proof. 145

41. Reasonable doubt Doubts would be called reasonable, if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt it must be free from overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence or from the lack of it. A reasonable doubt is not imaginary, trivial or merely possible doubt, but a fair doubt based upon reason, and common sense. It must grow out of the evidence.146 42. Benefit of doubt Benefit of doubt should have been given to the accused where once the evidence of the eyewitnesses is discarded as unworthy of credence. 147 43. Conviction of an innocent person The Supreme Court observed that the time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A Criminal Court cannot afford to deprive liberty of appellants life long liberty without having at least a reasonable level of certainty that the appellants were the real culprits which has not been established in the present case. 148 44. Exaggeration to rule of benefit of doubt Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.149 In Gura Singh v. State of Rajasthan, AIR 2001 SC 2775. It has been held that mere doubt sought to be created on the non-mention of dimensions of blood stains by itself is not sufficient as admitted the accused is entitled to the benefit of doubt. Where circumstances are fully proved on facts, there is doubt so far as the commission of the crime by the accused is concerned. 45. Necessary to explain the injuries on the person of the accused Injuries onthe person of the accused should be explained by the prosecution. Where the prosecution fails to do so, any of the following results may follow:(1) That the accused had inflicted the injuries on the members of the complainants party in exercise of the right of self defence. (2) That the prosecution case is doubtful and the charge against the accused is not proved beyond reasonable doubt. (3) That the omission to explain the injuries is innocent or of no effect at all where the injuries sustained are minor and superficial, and the prosecution evidence is so clear and cogent, so independent and disinterested that it far outweighs the omission to explain the injuries.150 In Lakshmi Singh's151 case the Supreme Court referred to some earlier decisions and ruled that "in a murder case the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of the altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. "The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidenceconsists of interested or inimical witnesses or where the defence gives a version which competes in probability

with that of the prosecution one." As a principle of appreciation of evidence, where serious injuries are found on the person of the accused, the prosecution must explain them so as to satisfy the Court as to the circumstances under which the occurrence originated. But the injuries must be very serious and severe and not merely superficial and must be shown to have been caused at the time of the occurrence in-question,152 witness testifying occurrence of certain facts. This testimony cannot be rejected merely because of certain aspersions. 153 46. Omission to send blood stained earth for chemical examination The omissionby the prosecution to send the blood stained earth found at the place of occurrence, for chemical examination which could have fixed the sites of the assault, which in almost all criminal cases is invariably sent by the prosecution, and the report with the earth produced in Court, may show that the defence case is true. It is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case. 154 Every incidental matter in a criminal trial is not required to be proved beyond a reasonable doubt like the guilt of the accused. Thus on an application for cancellation of bail it is not necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they have been won over by the accused. Proof of facts by preponderance of probabilities as in civil cases is not foreign to criminal jurisprudence, for example, in cases where the statute raised a presumption of guilt as in the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. The same standard of proof as in civil cases applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. 155 47. Presumption of innocence This maxim is often misunderstood. It means nothing more than this that the greatest possible care should be taken by the Court in convicting an accused. The presumption is that he is innocent till the contrary is clearly established. The burden of proof that the accused is guilty is always on the prosecution. If there is an element of reasonable doubt as to the guilt of the accused, the benefit of that doubt must go to him. The maxim merely emphasises those principles in a striking fashion. It does not mean that even an imaginary or unreal and improbable doubt is enough for holding the accused not guilty, if the evidence, on the whole, points to the only conclusion on which a prudent man can act, that the accused is guilty.156 48. Acquittal of co-accused not entitling others to acquittal Mere acquittal of large number of co-accused persons not per seentitle others to acquittal. The Court has a duty in such cases to separate the grain from the chaff. 157 49. Burden on accused-(see sections 105, 106-Benefit of doubt) This fundamental principle of criminal law is found in the Roman Legal System. The prosecution must prove the corpus delicti,that is, the fact that the offence charged has been committed by someone. Then it must prove that the accused has committed the offence. Sometimes the evidence led leaves the mind in a state of doubt as regards accused guilt. In such cases benefit of doubt must go to the accused. If the impact of evidence is to create doubt then it cannot be said that the prosecution has discharged the burden of proving the guilt of the accused. 158 Where the prosecution claimed that the signatures on certain documents acknowledging due payment of a sum of money by a Bank which was said to have been misappropriated by the appellant, were forged, and produced the person whose signatures they purported to be as a prosecution witness, and also a handwriting expert, and while that witness denied those signatures to be his, the handwriting expert deposed that he could not give a definite opinion on the question whether those signatures were forged or not, the Supreme Court held that the High Court

erred in relying on the word of that "witness and thus giving the benefit of doubt to him rather than to the appellant who deserved it, the onus of proof being always on the prosecution to establish beyond reasonable doubt all the ingredients of an offence."159 However, the doubt must be of a reasonable mind, that is, in the words of Cockburn, C.J., "not the doubt of a vacillating mind that has not the moral courage to decide upon a difficult or complicated question, and, therefore, takes shelter in idle scepticism. (Tichborne Case).160 No man can be convicted where the theory of his guilt, is no more likely than the theory of his innocence. 161 50. Suspicion is not legal evidence Suspicion however grave cannot take the place of positive proof. 162 It may be a ground for sifting the evidence minutely but no judicial decision can rest on suspicion or conjecture.163 There is no ground to discard evidence of interested witness,164 but, conviction can be set aside on unreliable165 or trustworthy166evidence. Evidence of hostile witness is of no use.167 It is an accepted proposition that in the case168 of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. "The courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them." 51. Corpus delicti The corpus delicti of a crime is the body or the substance of the crime charged. It involves two elements (i) injury to a specific person, property or right, or a violation of a statute; and (ii) criminal agency of someone in producing that injury or violation.169 52. Principle falsus in uno falsus in omnibus Even if major portion of evidence is found to be different. In case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain. It would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular could not ruin it from the beginning to end. The maxim " falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence.170 53. Circumstantial evidence in criminal cases The distinction between direct evidence and circumstantial has already been explained.171 As to the quantum of circumstantial evidence which can be a sufficient basis for conviction, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.172 Where the circumstances are not inconsistent with the innocence of the accused he cannot be convicted.173 No man can be convicted where the theory of his innocence is as likely as that of his guilt and, therefore, if, on the facts proved, any other reasonable theory than that of his guilt can be built, he must be given the benefit of the doubt and acquitted.174 But the doubt of which benefit is given to the accused must be such as reasonable men may reasonably entertain, and not the doubt of a weak or vacillating mind.175 For proof of circumstantial evidence, four things are essential, that is: (i) that the circumstances from which the conclusion is drawn be fully established, (ii) that all the facts should be consistent with the hypothesis, (iii) that the circumstances should be of a

conclusive nature and tendency, (iv) that the circumstances, should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved. It would be incorrect to say that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond "shadow of doubt". The shadow of doubt even in cases which depend on direct evidence is shadow of "reasonable doubt" in its practical application. The test, which requires the inclusion of other alternative hypothesis, is far more rigorous than the test of proof beyond reasonable doubt. In case of the circumstantial evidence, if the prosecution is not required to prove the case beyond 'shadow of doubt' or beyond 'reasonable doubt', at least it is required to prove its case to the 'reasonable certainty'. The prosecution cannot say that as theevidence brought on record raises the finger of suspicion against the accused only, he must be convicted. It is trite to say that suspicion, howsoever strong, cannot take place of the positive proof.176 If, therefore, the facts proved are incapable of explanation on any reasonable hypothesis other than that of the guilt of the accused person, the Court must act on the hypothesis of guilt and cannot refuse to convict merely because certain other hypothesis which are not reasonable hypothesis are possible, and there is an infinitesimal possibility of the Court being wrong in its decision.177 Suspicion, however grave is an insufficient basis for conviction,178 and cannot take the place of positive proof. 179 Since the failure of one link breaks the chain, every link in the circumstantial chain must be proved,180 and no person should be required to answer the charge without a clear and unequivocal proof of the corpus delicti.181There must be clear proof of adultery and it should not rest upon mere suspicion. The Court should, however, bear in mind that direct evidence will not often be possible to prove adultery.182 Mere speculation is not enough to bring home a charge a fraudulent conspiracy.183 See notes to section 105 under the heading "Prima facie proof of an exception is sufficient in criminal cases", and notes to section 106 under the heading "application of the rule to criminal cases." In Hanumant Govindv. State of Madhya Pradesh,184 it was said "that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should, be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such that as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." The recent and unexplained possession of stolen property may be presumptive evidence against an accused on a charge of robbery and murder, though it must depend upon the circumstance of his case. 185 Circumstantial evidence in cases of murder by poisoning means a combination of facts creating a network, through which there is no escape for the accused, because the facts, taken as a whole, do not admit of any inference but of his guilt.186 Where the point for decision is whether the accused had accepted a sum of money from another on the pretext of helping that other in a criminal case, the pendency of the criminal case at the time when the sum of money is said to have been paid is a relevant circumstance. And the association of the accused with that other person is also another relevant circumstance. In order to find a person guilty on circumstantial evidence the circumstance or the circumstances must be such as would irresistibly lead to an inference of the guilt of the accused. If the inference as drawn from the existing circumstances, is not the only irresistible inference then there is an error of law committed which may merit rectification.187 Penal Code, sections 302 and 149 in prosecution of their common object members of unlawful assembly each one shall be guilty under section 304 Part II read with section 149, I.P.C. 188 The mere fact that the dead body is pointed out by the accused or is discovered as a

result of a statement made by him cannot necessarily lead to the conclusion of the offence of murder, though the discovery of some property (the deceased's blood stained silver buttons), at the instance of the accused is a circumstance which may raise a presumption of the participation of the accused in the murder.189 The completed chain of the several links of circumstantial evidence had to be scrutinised in order to see whether the only conclusion possible is that the accused is guilty or whether there is any reasonable ground for a conclusion consistent with the innocence of the accused.190 Whether the circumstantial evidence is not of the kind from which the only inference that could reasonably be drawn is that the accused is guilty, it is not possible to convict him.191 This does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable.192 When the prosecution case rests purely on circumstantial evidence, conviction can be justified only when the evidence is of such a character as to be wholly incompatible with the innocence of the accused, and not till then. 193 The circumstantial evidence to prove a fact should be closely scrutinised, and there should be no weak links, every weak link being a ground of reasonable suspicion, always calling for an acquittal. The chain need not be long and complicated and may consist of two or three links only, but the links should fit in and should be strong. 194 Bloodstain was noted by the Forensic Science Laboratory on the motorcycle seized by the police pursuant to the information received from A-1 (Sharad Dhakar) during his interrogation. The said bloodstain was found to be of 'O' group (The blood group of the deceased was also 'O'). This circumstance though established by the prosecution is not decisive enough to point to the involvement of that accused in the murder of the deceased. If there were other circumstances, apart from recovery of some jewellery belonging to the deceased from the possession of this accused, perhaps the aforesaid circumstances, relating to the bloodstain found on the motorcycle would have lent support to an inference against him. The Supreme Court held that it is difficult to reverse the order of acquittal passed in favour of A-1 in respect of major counts of offence and dismissed the appeal filed by the State.195 In Yakub Ismailbhai Patel v. State of Gujarat,196 there is evidence on record that blood was found at spot where eye-witness states that he had witnessed armed attack upon deceased. Thus it establishes correctness of his version. In such circumstances mere failure to explain presence of dead body at an adjoining place does not disprove or contradict prosecution case and certainly it is not fatal to prosecution case. 54. Circumstantial evidence In a case based on circumstantial evidence, one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances which could matter. Hence, it is not proper for the court to cull out one circumstance from the rest for the purpose of giving a different meaning to it. 197 Testimony of owner of house in which deceased and accused lived as wife and husband was not challenged. It has been held that circumstantial evidence led to proof of guilt of the accused. 198 Where a case restriction squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating fact and circumstances are found to be incompatible with the innocence of the accused. 199 In Bodh Raj v. State of Jammu Kashmir,200 circumstantialevidence is defined as evidence which is not direct to the point in issue but consists of evidence of various other facts closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. Conviction can be based solely on circumstantial evidence. Where several links in chain of circumstances sought to be established are missing, accused cannot be convicted on basis of such circumstantial evidence.201 55. Guiding principles of circumstantial evidence The principles which should guide and weigh with the Courts administering criminal justice

in dealing with a case based on circumstantial evidence have been succinctly laid down in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343. The said principles were reiterated in Sudama Pandey v. State of Bihar, AIR 2002 SC 293: (2002) 1 SCC 679 and Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702. These guiding principles have been followed in Ashish Batham v. State of Madhya Pradesh, AIR 2002 SC 3206. 56. Explanation of the accused If the defence put up by the accused is reasonably probable and is consistent with the facts established against him, it must be held that his guilt has not been established beyond reasonable doubt.202 This does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that hypothesis suggested must be reasonable.203 Where circumstances pointed out the accused as the probable assailant, and he offers no explanation which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case, consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which complete the chain.204 In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. 205 57. False explanations (Seecase of Devanandan Mishrav. Bihar.206) 58. False denials False denials by an accused constitute an additional link in the chain of circumstances against him. Soon after the deceased was found missing, accused made a statement in anger to witness that he (accused) had a hand in his disappearance by throwing him in a furnace, though actually deceased was found in a well. This statement was held to be an incriminating circumstance against the accused in the chain of circumstantial evidence against him,207 and on doubtful evidence of eye-witness accused entitled to be acquitted.208 59. Special rules of proof in criminal trial (1) There is presumption of innocence of accused and hence the burden of proving the charge is on the prosecution. Viscount Sankey L.C. in Woolmington case209observed"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt, subject to matters to defence of insanity and subject also to any statutory exceptions." (2) The evidence against the accused should be such as to exclude, to a moral certainty, every reasonable doubt of his guilt. (3) In matters of doubt, it is safer to acquit than to condemn. (4) There must be clear and unequivocal proof of corpus delicti. (5) The hypothesis of delinquency must be consistent with all the facts proved. "Special rules of proof in criminal cases"-Election cases: "Election petitions alleging corrupt practices are proceedings of a quasi criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt".210 After referring to certain decisions Daulat Ram Chauhan v. Anand Sharma, (1984) 2 SCC 64 (para 18): 1984 SC 621; Manmohan Kalia v. Sri Yash, (1984) 3 SCC 499 (para 7): AIR 1984 SC 1161; A. Younus Kunju v. R.S. Unni, (1984) 3 SCC 346: AIR 1984 SC 960; and Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603: 1969 SC 1201. The Supreme Court observed that their sum and substance was that "a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of

probabilities. As the charge or a corrupt practise is in the nature of a criminal charge. It is for the party who set up the plea of 'undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case........................ a very cautious approach must be made in order before the charge of undue influence levelled by the defeated candidate................................ There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at instance of either the candidate or his supporters or agents with his consent or with his agents' consent that should be sufficient to vitiate the election of the returned candidate ........................... While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations; (1) the nature, character, respectability and credibility of the evidence. (2) the surrounding circumstances and the improbabilities appearing in the case, (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who hold the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.211 Time and again the courts have uttered a warning against the acceptance of a noncorroborated oral testimony in an election matter, courts have, therefore, insisted upon some contemporaneous documentary evidence to corroborate the oral testimony when in particular such evidence could have been maintained.212 60. Legal proof and moral conviction; conjectures and suspicion However morally convinced a Judge may feel as to the truth of a particular fact unless there is legal proof of its existence, he cannot take it as proved. 213Conjectures and suspicion214 cannot take the place of proof,215 and the Court's decision must rest not upon suspicion but upon legal grounds established by legal testimony. 216 Once the evidence comes before the court and stands the test of severe legal scrutiny, that evidence constitutes legal proof. Then the dividing line between such proof and moral conviction vanishes. It is, however the duty of the Court in each case to concentrate its attention on the relevant and admissibleevidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case.217 There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, requiring that the evidence of police officers who lay a trap, should be treated on the same footing as evidence of accomplices. Thus where such evidence is found to be entirely trustworthy there is no need to seek any corroboration.218 Where the circumstances justify it, a Court may refuse to act upon the uncoffoborated testimony of a trap witness.219 On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness if the court is satisfied from the facts and, circumstances that the witness is a witness of truth.220 Admissibility of suit for partition cannot be held to be not sustainable on ground that sole evidence for partition was unregistered deed which was inadmissible in evidence.221 Evidence of witness cannot be discarded merely on the ground that he did not react in any particular manner in a particular situation.222

Non-production of documents which the appellants claim would have strengthened claim of absence of one of the prosecution witnesses cannot in anyway dilute the evidentiary value of the oral testimony. Even though the witnesses have been cross-examined at length, no material inconsistency has been elicited to discard the evidence of said laid witnesses found otherwise truthful and credible.223 61. National Security Act, section 3(2) and Criminal Procedure Code, sections 156, 172 Investigation "Log Book" recording message. Practice to keep "Log Book" in the form of loose sheets produced in Court could not be said to be not genuine.224 62. Constitution of India, Article 136 After meticulously and scrupulously analyzing the evidence, we are left with an impression that the prosecution has not satisfactorily established guilt of these two appellants beyond reasonable doubt.225 63. Wakf, Muslim law Where a burial ground is mentioned as a public graveyard it is either revenue or historical papers, that would be a conclusive proof to show the public character of the graveyard (para 6).226 64. Credibility of evidence Relationship is not a factor to affect credibility of a witness. It is none often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.227 Where an eye-witness named differently in F.I.R. and during the prosecution evidence, his presence at the place of occurrence cannot be disputed; besides he is one who received injuries on his body.228 Evidence of independent witness cannot be discarded on the sole ground that he belonged to a different area and had no business to be near the place of occurrence since in order to earn their livelihood, people, go to different places depending upon their choices and preferences.229 Credibility of witnesses cannot be doubted namely on the ground that their names do not appear in F.I.R.230 Testimony of relative witness cannot be disbelieved on the ground of relationship. 231 Creditworthy testimony of eye-witnesses cannot be rejected merely on the ground that there was enmity between prosecution and accused party. 232 In the present case, there is a creditworthy evidence, who have vividly described the incident and the part played by each of the accused-appellants. All the four witnesses are injured witnesses and their presence at the spot cannot be doubted. The evidence led by the defence at best shows minor injuries suffered by accused which would not dislodge the prosecution case, which is established by the evidence of creditworthy witnesses and non-explanation of the injuries by the prosecution, if any, sustained by the accusedappellants would not result in disbelieving the prosecution version. 233 In a murder trial, merely because a witness is interested or inimical, his evidence cannot be discarded unless the same is otherwise found to be not trustworthy. 234 In the present case prosecution case itself alleging that accused persons came to beat complainant. Evidence of witnesses, who are injured, cannot be rejected on ground of enimity.235 Evidence cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him but can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.236 65. Impact of acquittal of one witness In Hardeep v. State of Haryana, AIR 2002 SC 3018 it has been held that though one accused implicated by eye-witnesses was acquitted yet it need not mean that all other

accused persons would also be acquitted. 66. Complainant, a tenant of deceased In Harising M. Vasava v. State of Gujarat, AIR 2002 SC 1212, the accused inflicted knife blows and caused death to the victim. It happened in the premises of the complainant who happens to be the tenant of the victim. It has been held that the intimate relationship of the complainant as a tenant and the victim as his landlord can not be stretched to hold that the complainant is an interested witness. 67. Criticism of Post-mortem report In Amit v. State of Maharashtra,237 it has been held that once post-mortem is accepted by the defence as to the commission of the sexual assault on the deceased prior to her death, it is not open to the accused to criticise the recitals therein. 68. Non-explanation of injuries Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by accused are minor and superficial or where the evidenceis so clear and cogent, so independent and disinterested.238 69. Formally proving the letters in evidence The Supreme Court observed that it was illegal on the part of the designated court to have used any part of the letters which were not adduced as evidence in the case through any problems known to law. Not even an affidavit has been filed by any one at least for formally proving the letters in the evidence. Section 313 of the Criminal Procedure Code is intended to afford opportunity to an accused "to explain any circumstances appearing in the evidence appearing against him". It is true that an accused cannot be confronted during such questioning with any circumstance which is not in evidence. Section 313 of the Code, not intended to be used as an interrogation. No trial Court can pick out any paper or document from outside the evidence and abruptly slap it on the accused and corner him for giving an answer favourable or unfavourable. The court held that the procedure adopted by the judge using the said two letters, is not permitted by law. The court disapproved the course and dispelled the said letter 'book, belland candle.239 70. Proof of unlawful possession The Supreme Court held that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in section 50 of the Narcotics and Psychotropic Substances Act, 1985, cannot by itself be used as admissible evidence of proof of unlawful possession of contraband on the accused. The Court added that a presumption under section 54 of the Act can only be raised after prosecution has established that the accused was found to be in possession of the contraband in a search onducted in accordance with the mandate of section 50 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act.240 71. Unregistered lease The Madras High Court observed that an unregistered lease deed can certainly be looked into for collateral purposes namely for the purpose of proving a party's character of possession. Mere marking the document does not prove any of the recitals of the document itself. The truth of the document has to be independently proved. It is always open to the opposite party to contend that he did not execute the document at all and that even for collateral purpose, it cannot be relied upon.241 72. Doubt A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible

doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.242 73. Omission Innocuous omission is inconsequential.243 ______________________________________________ 1. Q.E. v. Naglakala, 22 B 235 (238). 2. Umachurn Bag v. Ajdannissa Bibi, 12 C 430 (433). 3. Uda Begam v. Imamuddin, 2A 74 (86). 4. Q.E. v. Ram Lal, 15 A 141; E. v. Tulja, 12 B 36. 5. Kinghtbridge Estates Trust Ltd. v. Byme, 1940 AC 613 (621): (1940) 2 All ER 401, per Viscount Maugham. 6. Rabin Roy Choudhury v. State, 1998 Cr LJ 1699 Cal. 7. S.C. Legal Aid Committee v. Union of India, 1995 SCC (Cri) 39: (1994) 6 SCC (Para 14) 731. 8. Munna Lal v. State of Uttar Pradesh, AIR 1991 All 189. 9. E. v. Ashootosh Chuckerbutty, C 483 (493) (FB). 10. Q.E. v. Tulja, 12 B 36; See also Abdul Aziz v. Crown, 34 PR 1916 Cr; Jyoti Narayan v. Brijnandan Sinha, 1954 P 289; Chaparala Krishna v. Guduru Govardhanaiah, 1954 M 822. 11. Rabin Roy Choudhury v. State, 1998 Cr LJ 1699 Cal. 12. See O. 26, r. 14, CPC and sections 303-505, Cr PC (see now Cr PC 1973). 13. Section 13, Arbitration Act, 1940. 14. The Act is not applicable to proceedings before an arbitrator, see section 1. 15. Jyoti Narain v. Brijnandan Sinha, 1954 P 289; Kapur Singh v. Jagat Narain, 1951 Punj 49. 16. E. v. Ashootosh Chuckerbutty, 4 C 483 (FB). 17. See now Cr PC 1973. 18. See section 195(2), Cr PC (see now Cr PC 1973). 19. See section 75, Registration Act (XVI) of 1908. 20. Durga Das Rukhit v. Q.E., 27 C 820; See also Ezra v. Secretary of State, 32 C 605: 32 IA 93 (PC); Ezra v. Secretary of State, 30 C 36. 21. Chaparala Krishna v. Guduru Goverdhanaiah, 1954 M 822. 22. Dr. Baliram Waman Hiray v. Justice B. Lentin, 1988 Cr LR 799: 1988 (2) Scale 688: 1988 (3) Crimes 655: 1988 (4) SCC 419: AIR 1988 SC 2267: 1988 (2) SCR 942: 1989 (72) STC 384: 1989 (95) Cr LJ 306: 1989 (176) ITR 1. 23. Rajkishore v. State of Uttar Pradesh, AIR 1988 Pat NOC 9 (Bihar Tenancy Act 8 of 1885) section 103. 24. Depta Tewari v. State of Bihar, AIR 1988 Sum 14. 25. G. Bulliswami v. C. Annapumamma, AIR 1976 AP 270. 26. Gh. Rasool Wani v. Gh. Mohd. Wani, AIR 1980 NOC 166 (J&K) (FB). 27. S.C. Legal Aid Committee v. Union of India, (1994) 6 SCC 14 (731): 1995 SCC (Cri) 39. 28. Rabin Roy Choudhury v. State, (1998) 104 Cr LJ 1699 Cal. 29. Dr. Baliram Waman Hiray v. Justice B. Lentin, 1988 Cr LR 799: 1988 (2) Scale 688: 1988 (3) Crimes 655: 1988 (4) SCC 419: AIR 1988 SC 2267: 1988 (2) SCR 942: 1989 (72) STC 384: 1989 (95) Cr LJ 306: 1989 (176) ITR 1. 30. Munna Lal v. State of Uttar Pradesh, AIR 1991 All 189 (Paras 4, 14). 31. 1924 Sind 89. 32. R. v. Ashootosh, IC 483 (FB). 33. The term "direct evidence" is used here in contradistinction to circumstantial evidence and not in the sense in which it is used in section 60 of the Act. 34. Karim Bux v. Rex, 1950 A 494: 1950 A 383: 51 Cr LJ 1323. 35. Anant Bhaurao v. Home Minister, 68 Bom LR 187.

36. Sabhapati v. Huntley, 1938 PC 91. 37. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850: 1998 Cr LJ 2515. 38. Stephen's Introduction, p. 12 39. Stephen's, Article 1; Benth. Jud. Evidence, 40-44; Gulson, sections 256-257; Phipson Evidence, 7th Edn., p. 110. 40. Halsbury's Law of England, Vol. 17, 4th Edn., para 30; See Commonwealth Shipping Representative v. P and O Branch Service, 1923 AC 191 (212), H2, per Lord Summer. A Judge has no right to non suit a plaintiff without his consent without hearing the evidence tendered by him; Fletcher v. London and North Western Rly. Co., (1892) 1 QB 122 CA. 41. Heydon's Evidence, Cases and Materials, (5). 42. O. XIV, r. 1(2), CPC. 43. Mohammed Tahir v. Sardar Bono, 1952 A 782. 44. Emperor v. Krishtappa Khandappa, 1925 B 327: 87 IC 839. 45. Suryakant v. Subramant, AIR 1989 NOC 42 (Mad). 46. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788: 1975 SCR 281: (1976) 2 SCC 17. 47. Magraj Patodia v. R.K. Birla, AIR 1971 SC 1295: (1970) 2 SCC 888. 48. Stephen's Introduction, pp. 3-4. 49. Per Macnair, A.J.C., in Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB). 50. Laxman Jairam v. E., 1937 B 31: 166 IC 569: 38 Bom LR 1122; Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB); Q.E. v. Khandia Bin Pandu, 15 B 65; E. v. Tuti Babu, ILR 25 P 33 (written statement); see however, E. v. Ashootosh Chukerbutty, 4 C 483 (FB). 51. See O. 18, R. 12, CPC, section 636, Cr PC, (See now Cr PC 1973). 52. Joy Coomar v. Bundhoo Lal, 9 C 363: O. 26, R. 9 and O. 18, R. 18, CPC, sections 293 and 539 (B), Cr PC (See now Cr PC 1973). 53. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 54. See now Cr PC 1973. 55. Bhubiani Sahu v. King, 1949 PC 257: 1949 ALJ 283: 51 PLR 311: 76 IA 147; Rambharose v. E., 1944 N 105: ILR 1944 N 274 (FB). See also Purshotam Ishwar Amin v. E., 45 B 834: 60 IC 593; Brij Bushan Singh v. E., 1946 PC 38: 223 IC 1: 73 IA 18. But see E. v. Surajbali, 56 A 750: 1934 A 340; Parmanand Ganga Parshad v. E., 1940 N 340; Sulaiman v. E., 1941 R 301. 56. Kashmira Singh v. State, 1952 SC 159: 1952 SCR 526: 1952 Cr LJ 839. 57. State of Uttar Pradesh v. Chet Ram, AIR 1989 SC 1543: (1989) 2 SCC 425: 1989 SCC (Cri) 388: 1989 Cr LJ 1785. 58. Brathi v. State of Punjab, (1991) 1 SCC 519: 1991 SCC (Cri) 203: 1991 Cr LJ 402: AIR 1991 SC 318 (Para 7). 59. State of Maharashtra v. Praful B. Desai, (2003) 1 SCW 1885: 2003 Cr LJ 2033: AIR 2003 SC 2053. 60. State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053: (2003) 4 SCC 601: 2003 SCC (Cri) 815. 61. L.K. Advani v. Central Bureau of Investigation, (1997) 103 Cr LJ 2559 Del. 62. Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 2677. 63. Governor of Bengal in Council v. Motilal Ghosh, 41 C 173: 20 IC 8114 Cr LJ 321. 64. Kenchegowda v. P. Chaunaiya, 1953 Mys 22. 65. State v. Shankar Prasad, 1952 A 776: 1952 CR LJ 1334; Ratan Lal v. Rex, 1949 A. 222: 50 Cr LJ 333; Q.E. v. Hos Nak, 1941 ALJ 416; Hanumant Govind Nargundkar v. State of Madhya Pradesh, 1952 SCR 1091: 1952 SC 343; Palvinder Kaur v. State of Punjab, 1953 SCR 94: 1952 SC 354; Charan Singh v. State of Uttar Pradesh, 1967 SC 520; S.P. Bhatnagar v. State of Maharashtra, 1979 SC 826 (Paras 21, 22, 23); State of Maharashtra v. Anappa, 1979 SC 1410 (Para 2); State Delhi Administrator v. Gulzarilal

Tandon, 1979 SC 1382 (Para 1); Pohabya v. State of Maharashtra, 1979 SC 1949 (Para 5); Mahmood v. State of Uttar Pradesh, 1976 SC 69 (Para 9): 1976 Cr LJ 10; Chandmal v. State of Rajasthan, 1976 SC 917 (Para 15): 1976 Cr LJ 679; Tuber Chetia v. State of Assam, 1976 Cr LJ 1416 (Para 7); Hukam Singh v. State of Rajasthan, 1977 SC 1063: 1977 CR LJ 639; Ram Das v. State of Maharashtra, 1977 SC 1164; Umedbhai v. State of Gujarat, 1978 SC 424 (Para 7); Jaswant Singh v. State Delhi Administrator, 1979 SC 190 (Para 8); Rama Nand v. State of Himachal Pradesh, 1981 SC 738 (Para 16): 1981 Cr LJ 298; Shankar Lal v. State of Maharashtra, 1981 SC 765: 1981 Cr LJ (Paras 31, 32); S.S. Kulkarni v. State of Maharashtra, 1981 SC 34, (Para 20); Gambhii v. State of Maharashtra, 1982 SC 1157 (Para 9); Joga Gola v. State of Gujarat, 1981 Supp SCC 66: 1982 SCC (Cri) 141: 1982 SC 1227 (Para 3); Prem Thakur v. State of Punjab, (1982) 3 SCC 462: 1983 SCC (Cri) 88: 1983 SC 61 (Para 11); Earabhadsappa v. State of Karnataka, 1983 SC 446; Ashok v. State, AIR 1989 SC 1890. 66. Shankar Lal v. State of Maharashtra, (1981) 2 SCC 35: 1981 SC 765: 1981 Cr LJ 325 (Para 32). 67. Balbir Singh v. State of Punjab, AIR 1991 SC 2231 (Para 7). 68. Swrajmal v. State (Delhi Administration), (1979) 4 SCC 725: 1979 Cr LJ 1087: 1979 SC 1408(para 2). 69. Sehoraj v. A.P. Botra, 1955 A 638. 70. Guvala China Venkatesu v. State of Andhra Pradesh, AIR 1991 SC 1926: 1991 Supp (2) SCC 727: 1991 Cr LJ 2326. 71. State of Uttar Pradesh v. Ganga Ram, AIR 2006 SC 20. 72. Kallu alias Masih v. State of Madhya Pradesh, AIR 2006 SC 831. 73. Rakesh v. State of Haryana, (2001) 6 SCC 248: AIR 2001 SC 2521. 74. Sheelam Ramesh v. State of Andhra Pradesh, AIR 2000 SC 118: (1999) 8 SCC 369: 1999 SCC(Cri) 1437. 75. State of Uttar Pradesh v. Bhoora, AIR 1998 SC 254: (1998) 1 SCC 128: 1998 All LJ 86: 1998 Cr LJ 478. 76. Harcharan v. State of Rajasthan, AIR 1998 SC 244. 77. State of Bihar v. Basawan Singh, AIR 1958 SC 500: 1958 Cr LJ 976: 1959 SCR 195; Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184: (1964) 2 Cr LJ 344: (1964) 6 SCR 623; Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832: 1968 Cr LJ 1017: (1968) 2 SCR 641 and Ravinder Singh v. State of Haryana, (1975) 3 SCC 742: 1975 SCC (Cri) 202: (1975) 3 SCR 453; See also Balwant Kaur v. Union Territory of Chandigarh, (1988) 1 SCC 1: 1988 SCC (Cri) 1; Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: (2000) 106 Cr LJ 4640: AIR 2000 SC 3352. 78. Baburao Bajirao Patil v. State of Maharashtra, 1970 CAR 449: 1970 UJ 928: (1970) 3 SCC 911. 79. Ram Behari Yadav v. State of Bihar, (1998) 4 SCC 517: AIR 1998 SC 1850: 1998 SCC (Cri) 1085. 80. Toran Singh v. State of Madhya Pradesh, AIR 2002 SC 2807: (2002) 6 SCC 494: 2002 SCC (Cri) 1377. 81. Sudha Devi v. M.P. Narayanan, (1988) 1 Scale 952: (1988) 2 UJ 70: (1988) 3 SCC 366: (1988) 3 SCR 756: AIR 1988 SC 1381. 82. K. Srinivasa v. Kashinath, 2004 Cr LJ 4566 Karn. 83. Rachapalli Abbulu v. State of Andhra Pradesh, AIR 2002 SC 1805: (2002) 4 SCC 208: 2002 SCC (Cri) 748. 84. Halsbury's Laws of England, Vol. 17, 4th Edn., para 11. 85. Corpus Juris Secundum, Vol. 31, A 192. 86. Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133: (1977) 1 SCR 763: AIR 1977 SC 183. 87. Hawkins v. Powells, (1911) 1 KB 988 (995); Emp. v. Shafi Ahmad, 31 BLR 515. 88. The expression "disproved" occurs only in section 4, and the expression "not proved"

does not occur any where in the Act. 89. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 90. M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691: 2001 SCC (Cri) 258; Lokeman Shah v. State of West Bengal, (2001) 5 SCC 235: AIR 2001 SC 1760. 91. Anam Swain v. State, 1954 Ori 33. 92. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Prasannamayi Debi v. Baikuntha Nath Chattoraj, 49 C 132: 66 IC 782: 1922 C 260. 93. Ahibaran Singh v. State, 1953 A 493: 1953 Cr LJ 1125: 1953 ALJ 173. 94. Kamij Shaikh v. E., 1948 P 73: 229 IC 175: 48 Cr LJ 301. 95. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515; Thakar Das v. E., 32 PR 1916 (Cri): 38 IC 759: 18 Cr LJ 375; Jarat Kumari Dassi v. Bissessur Dutt, 39 C 245 13 IC 577. 96. E. v. Ram Dat, 143 IC 129: 1933 O 340: 34 Cr LJ 538; Kallam Narayana (in re:), 56 M 231: 143 IC 46 1933 M 233: 34 Cr LJ 481; Ah Lok v. E., 4 Cr LJ 382: Wills' Cir. Evidence, 6th Edn., 318-19. 97. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; Weston v. Peary Mohan Das, 40 C 898: 23 IC 25. 98. State v. Shankar Prasad, 1952 A 776: 1952 Cr LJ 1334. 99. E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515. 100. Rama Nand v. State of Himachal Pradesh, 1981 CAR 75: 1981 Cr LR 340: 1981 SCR 444: 1981 UJ 424: (1981) 1 SCC 511: (1981) 1 Scale 24: AIR 1981 SC 738: (1981) 87 Cr LJ 298. 101. R. Puthunamar Alhithan v. P.H. Pandian, (1996) 3 SCC 624: AIR 1996 SC 1599. 102. R. Puthunainar Alhithan v. P.H. Pandian, (1996) 3 SCC 624: (1996) 3 Scale 317: AIR 1996 SC 1599. 103. State of Punjab v. Bhajan Singh, AIR 1975 SC 258: (1975) 4 SCC 472: 1975 SCC (Cri) 584: 1975 Cr LJ 282; see Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463: 1994 SCC (Cri) 1798: AIR 1995 SC 135: (1994) 6 JT 99. 104. E. v. Shafi Ahmad, (1929) 31 Bom LR 515. 105. Per Mitter J., Joy v. Bundhoolal, (1882) 9 C 363. 106. A. Abdul Rashid Khan v. P.A.K.A. Shahul Hamid, (2000) 10 SCC 636. 107. Naval Kishore Somani v. Poonam Somani, AIR 1999 AP 1. 108. Anam Swain v. State, 1954 Ori 33. 109. Woodroffe Evidence, 9th Edn., p. 116. 110. Wills Cir. Evidence, 6th Edn., 3; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385. 111. Jagdish v. Premlata Rai, AIR 1990 Raj 87. 112. Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; see Aung Hla v. E., 9 R 404: 135 IC 849: 1931 R 235: 33 Cr LJ 205, and notes on the definition of " Evidence" supra. 113. Lattan v. State, 1989 ALJ 75 (DB). 114. Hazari Lal v. State, 1980 SC 873: (1980) 2 SCC 390: 1980 SCC (Cri) 458: 1980 Cr LJ 564. 115. Gurmeel Singh v. State, 1988 ALJ 1491. 116. Sher Singh v. Jitendranath Sen, 1931 Cal 607: 33 Cr LJ 3. 117. Balbir Singh v. Salochana Devi, 1988 ALR 327 (FB). 118. State of Uttar Pradesh v. Ram Swarup, AIR 1988 SC 1028: 1988 Supp SCC 262: 1988 ALJ555 SC. 119. Surinder Singh v. Hardial Singh, (1984) 2 Scale 659: (1985) 1 CCC 267: (1985) 1 SCC 91: (1985) 1 SCR 1059: AIR 1985 SC 89. 120. Weston v. Peary Mohan Das, 40 C 898: 23 IC 257. 121. E.g. confessions. Sections 24 to 30; character, sections 53 and 54: incompetency of

witnesses, section 120; character of the prosecutrix in rape cases section 155. 122. E.g., admissions, sections 18 to 20; character, sections 52 and 55; estoppel, sections 115, 116 and 117. 123. Parke, V., in R. v. Steme, cited in Best, section 95; Bhaironprasad v. Laxmi Narayan Das, 79 IC 609: 1924 N 385; Ah Lok v. E., 4 Cr LJ 382; Harprasad Ghasiram Gupta v. State, 1952 B 184: 53 BLR 938. 124. Pritam Singh v. Tilok Singh, 1954 Pepsu 14. 125. Lolit Mohan Sarkar v. Q.E., 22 C 313 (323). 126. Per Holroyd, J., in Sarah Hobson's Case, 1; Lewin's Crown Cases, 261; 2 Hale PC 289; 4 Blackst. Comm. 358; Best, section 95. 127. 2 Hale PC 290; Best, section 95. 128. Pershadi v. State, 1955 A 443. 129. Edara Venkata Rao v. Edara Venkayya, 1943 M 38 (2): 207 IC 163. 130. Batar v. B., (1950) 2 All ER 458 (459). 131. Gulabchand v. Kuldiplal, (1967) 1 SCJ 580: AIR 1966 SC 1734. 132. State of Uttar Pradesh v. Ram Swaroop, AIR 1988 SC 1028: 1988 Supp SCC 262: 1988 SCC(Cri) 552. 133. State of Uttar Pradesh v. Jodha Singh, AIR 1989 SC 1822: (1989) 3 SCC 465: 1989 SCC (Cri) 591. 134. Harendra Narain Singh v. State of Bihar, (1991) 3 SCC 609: 1991 Cr LJ 2666: (1991) 3 Crimes 297: AIR 1991 SC 1842. 135. S.D. Soni v. State of Gujarat, 1991 Cr LJ 330: 1992 SCC (Cri) 331: 1992 Supp (1) SCC 567: AIR 1991 SC 917 (Para 8). 136. Gambir v. State of Maharashtra, (1982) 2 SCC 351: AIR 1982 SC 1157; Raina Nand v. State of Himachal Pradesh, 1981 (1) SCC 511: AIR 1981 SC 738; Prem Thakur v. State of Punjab, 1982 (3) SCC 462: AIR 1983 SC 61; Earabhadrapa alias Krishnappa v. State of Karnataka, 1983 (2) SCC 330: AIR 1983 SC 446; Gian Singh v. State of Punjab, 1986 (Suppl) SCC 676: AIR 1987 SC 1921 and Balavinder Singh v. State of Punjab, (1987) 1 SCC 1: AIR 1997 SC 350; See also Lakshmi Naik v. State of Orissa, AIR 1995 SC 1387, relied on Sharad v. State of Maharashtra, AIR 1984 SC1622; Dhanjay Chatterjee v. State of West Bengal, (1994) 1 JT (SC) 33: 1994 SCC (Cri) 358: (1994) 2 SCC 220. 137. Cooper v. State, 6 HL Case 746 (772), Per Willes, J. 138. Edara Venkata Rao v. Edara Venkayya, 1943 M 38 (2): 207 IC 163. 139. Per Parke, B. in R v. Steme, cited in Best Evidence, 76. 140. Alma v. State of Madhya Pradesh, AIR 1991 SC 1519: 1991 Supp (2) SCC 409. 141. Tara Singh v. State of Punjab, 1991 Supp (1) SCC 536: 1991 SCC (Cri) 710: AIR 1991 SC 63(para 4). 142. Mahant Shreo Nath v. Choudhry Ranbir Singh, (1970) 3 SCC 647. 143. Surinder Singh v. Hardial Singh, (1984) 2 Scale 659: (1985) 1 CCC 267: (1985) 1 SCC 91: (1985) 1 SCR 1059: AIR 1985 SC 89. 144. State of Uttar Pradesh v. Ram Sewak, AIR 2003 SC 2141: (2003) 2 SCC 161: 2003 SCC (Cri) 459. 145. Krishnan v. State, AIR 2003 SC 2978. 146. Ramakant Rai v. Madan Rai, AIR 2004 SC 77: (2003) 12 SCC 395: 2004 Cr LJ 36. 147. Orsu Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 4961: 2005 SCC (Cri) 166. 148. Rang Bahadur Singh v. State of Uttar Pradesh, (2003) 3 SCC 454: AIR 2000 SC 1209: 2000 Cr LJ 1718: 2000 All LJ 860. 149. State of Punjab v. Karnail Singh, AIR 2003 SC 3609; see Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209: (1990) 1 SCC 445: 1990 Cr LJ 562. 150. Mohar Rai v. State of Bihar, AIR 1968 SC 1281: 1968(3) SCR 525; State of Gujarat v. Beri Fatima, AIR 1975 SC 1478; Puran Singh v. State of Punjab, AIR 1975 SC 1674: 1975 Cr LJ 1479: (1975) 4 SCC 518; Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394:

1976 SCC (Cri) 671: AIR 1976 SC 2263 (Para 11): 1976 Cr LJ 1736. 151. Laxmi Singh v. State of Bihar, (1976) 4 SCC 394: 1976 SCC (Cri) 671: AIR 1976 SC 2263(Para 11): 1976 Cr LJ 1736. 152. Jagdish v. State of Rajasthan, AIR 1979 SC 1010: (1979) 2 SCC 178: 1979 Cr LJ 888. 153. Manorama Srivastava v. Saroj Srivastava, AIR 1989 All 17. 154. Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394: 1976 Cr LJ 1736: AIR 1976 SC 2263(Para 13). 155. State, Delhi Administration v. Sanjay Gandhi, (1978) 2 SCC 411: 1978 Cr LJ 952: AIR 1978 SC 961 (Para 14). 156. Pershadi v. State, AIR 1957 Cr LJ 328. 157. Gorle S. Naidu v. State of Andhra Pradesh, AIR 2004 SC 1169: (2003) 12 SCC 49: 2004 Cr LJ 924. 158. 26 Cr LJ 782. 159. Labhshanker v. State of Gujarat, (1979) 3 SCC 391: 1979 Cr LJ 890: 1979 SC 1012 (Para 5). 160. Kenny p. 397-403 (R. v. Castra). See also Sher Mohammad v. E., 1945 Lah 27; E. v. Shaft Ahmed, 31 BLR 515. 161. Empt. v. Shivdas Omkar, 15 BLR 315. 162. Ashwani Kumar Roy v. E., CWN 219; Palvinder Kaur v. State, 1952 SCJ 354: AIR 1952 SC 354: 1953 SCR 94: 1953 Cr LJ 154; Ata Mohamad v. Crown, 1950 L 199 (FB). 163. 17 CWN 49. 164. Mohan Singh v. State, 1988 ALJ 441 (DB). 165. State of Uttar Pradesh v. Dinesh Chandra, 1988 ALJ 937. 166. Lakhan Singh v. State, 1988 ALJ 447 (DB). 167. Kathi Odhabhai Bhimabhai v. State of Gujarat, AIR 1993 SC 1193: 1993 Supp (3) SCC 421: 1993 SCC (Cri) 1049. 168. Budhwa v. State of Madhya Pradesh, 1991 Supp (1) SCC 9: 1991 SCC (Cri) 237: AIR 1991 SC 4 (Para 4). 169. Wharton's Criminal Evidence, 12th Edn., p. 48. 170. Israi v. State of Uttar Pradesh, AIR 2005 SC 249, see also Irjubbala Venugopalaswamy v. State of Andhra Pradesh, 2004 AIR SCW 3019; Triloki Nath v. State of Uttar Pradesh, AIR 2006 SC 321. 171. See notes to this section under the heading "direct and circumstantial evidence" supra. 172. Ram Kala v. E., 1926 A 191; Mohammad v. E., 1945 L 27; Hasan Din v. E., 1943 L 56; Mangal Singh v. K.E., 1937 PC 179: ILR 1937 L 371: 168 IC 432: 64 IA 134: 39 PLR 426; Ramun v. E., 7 L 84: 94 IC 901: 1926 L 88: 27 Cr LJ 709; Majhi v. E., 86 IC 344: 1925 L 323: 26 Cr LJ 760; Thakar Das v. E., 32 PR 1916 Cr: 38 IC 759: 18 Cr LJ 375; E. v. Kangal Mali, 41 C 601: 26 IC 161: 15 Cr LJ 713; E. v. Imam Ali Sircar, 8 CWN 278; Balmakand Ram v. Ghansamram, 22 C 391; State v. Ganga Sahai, 1953 A 211: 1953 ALJ 166: 1953 Cr LJ 571; Palvinder Kaur v. State, 1952 SC 354: 1952 SCJ 545: ILR 1953 Punj 107: 1953 SCR 94; King Emperor v. Sheo Shankar Singh, 1954 P 100: 1954 Cr LJ 171: 32 P 243; Radiana v. State, 1953 Raj LW 338; Purnamal v. King, 1949 Assam 84: 51 Cr LJ 63; Ata Muhammad Khan v. Crown, 1950 L 199 (FB); Pershadi v. State, 1955 A 443; Kanbi Babu v. State, 1955 Sau 93; Machander v. State, AIR 1955 SC 792; Deonandan Mishra v. State, AIR 1955 SC 801: 1955 Cr LJ 1647; Ram Bharosey v. State, AIR 1954 SC 704; Mangleshwari Prasad v. State, AIR 1954 SC 715: 1954 Cr LJ 1797; Kutuhal Yadav v. State, 1954 SC 720: 1954 Cr LJ 1802. 173. Jalwanti v. State, 1953 P 246: 32 P 217: 1953 Cr LJ 1344. 174. Sher Muhammad v. E., 1945 L 27; Hasan Din v. E., 1943 L 56; Kanakasabai Pillai (in re:), 1940 M 1; Basangouda Yaramanappa v. E. (in re:), 1941 B 139: ILR 1941 B 315: 195 IC 208; Sharift v. E., 1944 S 113; Daulat Bai v. E., 77 IC 600: 1923 L 537: 25 Cr LJ

424; E. v. Shivdas Omkar Marwade, 14 Cr LJ 251: 15 Bom LR 315: 19 IC 507; Singaram (in re:), 1954 M 152: (1953) 2 MLJ 526: 1954 Cr LJ 115: 1953 MWN 572: 66 MLW 795. 175. Sher Muhammad v. E., 1945 L 27; E. v. Shafi Ahmad Nabi Ahmad, 31 Bom LR 515; See also Kallam Narayana (in re:), 56 M 231: 143 IC 46: 1933 M 233: 34 Cr LJ 481. 176. State of Madhya Pradesh v. Bhim Mohd., (2002) 108 Cr LJ 1906 Chh. 177. Sher Mohammad v. E., 1945 L 27. 178. Asvini Kumar Roy v. E., 10 CWN 219; Gangwar v. E., 1944 S 155; Jain Lal v. E., 1943 P 82; Kuruva Nagamma (in re:), 1941 M 870; Palvinder Kaur v. State, AIR 1952 SC 354: 1952 SCJ 545: ILR 1953 Punj 107: 1953 SCR 94; Ata Muhammad Khan v. Crown, 1950 L 199 (FB); Padala Veera Reddy v. State of Andhra Pradesh, 1989 Supp (2) SCC 706: AIR 1990 SC 79. 179. Pakhar Singh v. E., 1946 PLR 283. 180. Per Adam. J., in Niru Bhagat v. E., IP 630: 71 IC 219: 1922 P 582: 24 Cr LJ 91; Seho Narain Singh v. E., 58 IC 457: 21 Cr LJ 777. 181. Best, section 441. 182. M. Kanniappan v. Akilandammal, (1953) 1 MLJ 829: 1954 M 427; Sheigh Issake v. Biyamunni Ummah, (1885) 2 Weir 647; E. v. Nandan, (1881) 1 AWN 37; Jodhan Sahu v. Kulwanti Kuer, 1948 P 285; Earnest John White v. Katheleen White, 1954 P 566. 183. Bank of India v. Jamsetji A.H. Chinoy, AIR 1950 PC 90. 184. 1953 Cr LJ 129. 185. Wasim Khan v. Uttar Pradesh, 1956 SCR 191: AIR 1956 SC 400. 186. Anant Lagu v. Bombay, 1960 SCR 778. 187. Golam Mohiuddin v. State of West Bengal, 68 CWN 215. 188. Mangal v. State, 1988 ALJ 1503 (DB). 189. Kanbi Karsan v. State of Gujarat, 1962 Supp 2 SCR 726: 1966 Cr LJ 605. 190. Devanandan Mishra v. Bihar, 1955 Cr LJ 1647. 191. Prithvisinghji v. Bombay, 1960 Cr LJ 672. 192. Govinda Reddy v. Mysore, 1960 Cr LJ 137. 193. Palvinder Kaur v. Punjab, 1952 SCJ 545: 1953 SCR 94: 1953 Cr LJ 154. 194. Mojiya Ratna v. State, 1960 MP LJ 1226. 195. Manish Dixit v. State of Rajasthan, (2001) 1 SCC 596: 2001 SCR 235: AIR 2001 SC 93: 2001 Cr LJ 133. 196. AIR 2004 SC 4209. 197. Gade Lakshmi Mangraju v. State of Andhra Pradesh, AIR 2001 SC 2677: (2001) 6 SCC 206: 2001 SCC (Cri) 1082. 198. Sardar Khan v. State of Karnataka, (2004) 2 SCC 442: 2004 Cr LJ 910: AIR 2004 SC 1695. See also Sashi Jena v. Khadal Swain, AIR 2004 SC 1492: (2004) 4 SCC 236: 2004 Cr LJ 1394 (On benefit of doubt conviction under circumstantial evidence was set aside). 199. State of Rajasthan v. Rajaram, AIR 2003 SC 3601. 200. AIR 2002 SC 3164. 201. State of Tiptur Rural Police v. Murulasiddaiah, 2006 (2) Kar LJ 173 (DB). 202. Bhagat Ram v. Punjab, 1954 Cr LJ 1645. 203. Govinda Reddy v. Mysore, 1960 Cr LJ 137; Champalal v. State of Maharashtra, (1981) 3 SCC 610: 1981 Cr LJ 1273: AIR 1981 SC 1675 (para 5). 204. Deonandan Mishra v. Bihar, 1955 Cr LJ 1647. 205. Kishore Chand v. State of Himachal Pradesh, 1991 SCC (Cri) 172: AIR 1991 SC 2140: (1991) 1 SCC 286 (Para 5). 206. 1955 Cr LJ 1647. 207. Pershadi Lal v. Uttar Pradesh, 1957 Cr LJ 328. 208. Chaman Lal v. State, 1988 ALJ 1465. 209. 1935 AC 462. 210. Amolakchand v. Bhagwandas, (1977) 3 SCC 566: AIR 1977 SC 813 (Para 12).

211. Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, (1984) 4 SCC 649: AIR 1985 SC 24(Paras 2 to 9) 212. M.J. Zakhariasati v. T.M. Mohammad, 1990 (3) SCC 396 (Para 70). 213. Barindra Kumar Ghose v. E., 37 C 467: 71 C 359: 11 Cr LJ 453; Baboo Aubinash Chander Banerjee v. Moonshee Mahomed Yusoof, 25 WR Cr 43. 214. Atar Singh v. Thakur Singh, 452 PR 1910: 35 IA 206: 6 IC 7821 (PC); Kedar v. E., 1944 A 94: 1944 ALJ 87; Lolit Mohan Sarkar v. Q.E., 22 C 313 (323); see also Barindra Kumar Ghose v. E., 37 C 467: 7 IC 359: 11 Cr LJ 453; State v. Shanker Prasad, 1952 A 776: 1952 Cr LJ 1334. 215. Vinod Samuel v. Delhi Administration, AIR 1992 SC 465. 216. Brij Bhusan Singh v. E., 1946 PC 38; Mina Kumari Bibi v. Bijoy Singh Dudhuria, 44 C 662 (672): 44 IA 72: 40 IC 242: 1916 PC 238 (PC); Miran Baksh v. E., 133 IC 446: 1931 L 529: 32 Cr LJ 1032. 217. Kedar v. E., 1944 A 94: 1944 ALJ 87: 212 IC 309: 45 Cr LJ 573. 218. Hazari Lal v. State, AIR 1980 SC 873: (1980) 2 SCC 390; State of Gujarat v. Balubhai Madhabhai Zala, 1995 Cr LJ 2588, para 6.5. 219. Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498: (1972) 3 SCC 652; Darshanlal v. Delhi Administration, AIR 1974 SC 218: (1974) 3 SCC 595. 220. Prakash Chand v. State, AIR 1979 SC 400: (1979) 3 SCC 90; State of Bihar v. Basawan Singh, AIR 1958 SC 500; Bhanu Prasad Hariprasad v. State of Gujarat, AIR 1968 SC 1323: (1969) 1 SCR 22. 221. Mallamma v. Nanjamma, AIR 1988 Kant 225. 222. State of Uttar Pradesh v. Devendra Singh, AIR 2004 SC 3690: (2004) 10 SCC 616. 223. Anil Sharma v. State of Jharkhand, AIR 2004 SC 2294: (2004) 5 SCC 679. 224. Ayya alias Ayub v. State of Uattar Pradesh, AIR 1989 SC 364: (1989) 1 SCC 374. 225. Mathura Prasad v. State of Madhya Pradesh, AIR 1992 SC 49: 1992 Supp (1) SCC 406. 226. Dwarka Dass v. Punjab Wakf Board, AIR 1991 P&H 89. 227. Israr v. State of Uttar Pradesh, AIR 2005 SC 249. 228. Mohar v. State of Uttar Pradesh, AIR 2002 SC 3279: (2002) 7 SCC 606. 229. State of Uttar Pradesh v. Farid Khan, AIR 2004 SC 5050. 230. Raj Kishore Jha v. State of Bihar, AIR 2003 SC 4664: (2003) 11 SCC 519 following Bhagwan Singh v. State of Madhya Pradesh, AIR 2002 SC 1621: AIR 2003 SC 1088: (2003) 3 SCC 21; Chittar Lal v. State of Rajasthan, AIR 2003 SC 3590: 2003 Cr LJ 3458 and State of Madhya Pradesh v. Man Singh, (2003) 6 Supreme 202. 231. State of Himachal Pradesh v. Mast Ram, AIR 2004 SC 5056; See also Dani Singh v. State of Bihar, AIR 2004 SCW 3719 and Yakub Ismailbhai Patel v. State of Gujarat, AIR 2004 SC 4209. 232. Rama Shish Rai v. Jagdish Singh, AIR 2005 SC 335. 233. Mohinder Singh v. State of Punjab, AIR 2006 SC 1639. 234. State of Jammu and Kashmir v. Mohan Singh, AIR 2006 SC 1410. 235. Kallu alias Masih v. State of Madhya Pradesh, AIR 2006 SC 831. 236. Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh, AIR 2006 SC 951. 237. AIR 2003 SC 3131. 238. Sucha Singh v. State of Punjab, AIR 2003 SC 3617: (2003) 7 SCC 643. 239. Kalpnath Rai v. State, AIR 1998 SC 201: (1997) 8 SCC 732. 240. State of Punjab v. Baldev Singh, AIR 1999 SC 2378: (1999) 6 SCC 172: 1999 Cr LJ 3672; AIR 1974 SC 334, Distinguished). 241. Konsaliya Ammal v. Valliammal Ammal, AIR 1998 Mad 287. 242. State of Madhya Pradesh v. Dharkole alias Govind Singh, AIR 2005 SC 44. 243. Beshna alias Bhiswadeb Mahato v. State of West Bengal, AIR 2006 SC 302.

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