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List of Cases - Evidence

1. Padala Veera Reddy v. State Of A.P, 1990 SC 79

Five rules to prove a case on circumstantial evidence

(1) the circumstances from which the conclusion of guilt is to be drawn should be be fully
established. The circumstances concerned must or should and not may be established

(2) the facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis except
that the accused is guilty

(3) the circumstances should be of conclusive nature and tendency

(4) they should exclude every possible hypothesis except the one to be proved and

(5) there must be a chain of evidence complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the accused and must show that in all
human probability the act must have been done by the accused

2. Sukhar v. State of UP, (1999) 9 SCC 507

The victim was shot at by the accused and he raised an alarm. When a witness rushed to
the spot, the victim told him that it was the accused who shot at him.

The victim did not die so the accused was charged with an offence u/s.307 of IPC.

However, during the pendency of the trial, the victim died because of some other cause

On the question whether the witness could give evidence of what the victim told him

It was held that, the statement was almost contemporaneous with the fact in issue and
there should not be any interval for fabrication, so that it forms part of the same
transaction as the fact in issue. Therefore, in this case, the evidence of the witness is
admissible as res gestae.

3. Gentela Vijayavardana Rao vs. State of AP, AIR 1996 SC 2791)

The rationale in making certain statements on facts admissible under sec. 6 is on account
of the spontaneity and immediacy of such statement, a fact in relation to the fact in issue.
But, it is necessary that such fact or statement must be part of the same transaction.

In other words, such statement must have been made contemporaneously with the acts
which constitute the offence or at least immediately thereafter. But if there is an interval,
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however slight it may be, which was sufficient enough for fabrication, then the statement
is not part of res gestae.

4. R.M. Malkani vs. State

Tape recorded conversation is admissible, provided first the conversation is relevant to

the matters in issue, secondly, there is identification of the voice and thirdly, the accuracy
of the tape-recorded conversation is proved by eliminating the possibility of erasing the
tape-recorder.

The tape-recorded conversation is, therefore, a relevant fact under section 8 of the
Evidence Act and is admissible under s. 7 of the Evidence Act.

The conversation over telephone for settling details for passing bribe-money was
recorded by secret instruments. This was held to be evidence of conduct. It matters not
how you get it, if you steal it even, it would be admissible in evidence.

5. Ziyauddin vs. Brijmohan

The evidence relating to the appellant's speeches, discussed fully by the High Court,
consisted of:

1. Cassettes or tape records of the appellant's speeches.

2. Transcripts of tape recorded speeches prepared shortly after tape-recording them.

3. Full shorthand records of speeches of the appellant by those who heard them at
meetings.

4. Notes and records containing summaries of the appellant's speeches made by persons
attending meetings.

5. Statements of witnesses present at the meetings who had actually heard what was said
by the appellant.

The tape records of speeches were "documents", as defined by Section 3 of the Evidence
Act, which stood on no different footing than photographs, and that they were 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 knew it.

(b)Accuracy of what was actually recorded had to be proved by the maker of the record
and satisfactory evidence, direct or circumstantial, had to be there so as to rule out
possibilities of tampering with the record. (c)The subject matter recorded had to be shown
to be relevant according to rules of relevancy found in the Evidence Act.
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6. Lakshmi v. State, 1959 ALJ 287

(a) the accused was addicted to smoking ganja and taking wine. He used to make
demands from deceased chhote lal who was opposed to this habit of life of the appellant
and would not accede to his request to advance him money to enable him to indulge in
these activities.

A few days before the accused had also beaten his mother and wife. At that time
deceased had intervened and prevented him from doing so. On the appellant's refusal to
0bey him, the deceased had chained him.

The accused had run away after breaking the chains. The accused stopped speaking to
chotelal.(the facts given in this para were admitted as motive of the murder)

(b) on the evening of 6th oct 1954, chotelal was sitting at his door on a chabutra. The
appellant took a pharsa and proceeded towards chote lal. He began to assault chote lal
with the pharsa. Chote lal raised an alarm. A number of persons reached the spot on
hearing the cry. On the arrival of several persons the appellant fled away outside the
village with the pharsa. (the contents of this Para were admitted as the conduct of the
accused, before the incident, at the time of the incident and after the incident).

(c) the accused tried to win over the witness of fact. In jail he gave a correct description
of the address. At the trial at every stage, his statement was such as according to his
conception was best calculated to subserve his purpose and to advance his own interest.

At the trial the accused took the plea that he was of unsound mind at the time of the
incident. All the facts given above were held to be admissible. (the facts given in this Para
were admissible as conduct of the accused during the trial in reference to the proceedings)

7. Harnath Singh v. State of M.P., AIR 1970 SC 1619

Purpose: T.I parade during investigation is held for the purpose of enabling the witnesses
to identify the properties which are the subject-matter of the offence or the persons who
are concerned therein.

Its objectives are:

(1) to satisfy the investigating authorities that a certain person not previously known
to the witnesses was involved in the commission of the crime or a particular
property was the subject-matter of the crime.
(2) to furnish evidence to corroborate the testimony which the witnesses concerned
tendered before the court

(3) The purpose of T.I parade is to test the veracity of a witness on the question of
capability of a witness to identify an unknown person whom the witness might
have seen only once
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(4) To test the substantive evidence of identification in the box with reference to
corroborative evidence of T.I parade

8. Hasib v. state of Bihar, AIR 1972 SC 283

The value of the T.I parade depends on the effectiveness of precautions taken to prevent
the opportunity of seeing the suspects and to prevent the investigating authority to adopt
unfair means

(a) T.I parade should be preferably held by a Magistrate

(b) It should be held in the jail compound

(c) Suspects should be mixed up with as many under trial prisoners/outsiders as possible

(d) U.T prisoners/Outsiders and suspects should be similarly dressed and should be
similar social status, age and religion

(e) They should resemble in features

(f) After each of identification by the identifying witness the order of suspects and U.T
prisoners/outsiders in the row should be changed

(g) Other identifying witnesses should be kept in a place beyond the sight and hearing of
the witness identifying

(h) After identification the witness should be and kept in a place beyond the sight and
hearing of the witness identifying

(i) No police personnel should remain present in the identification ground

(j) The statement of witnesses relating to the suspect made in course of identification
should be recorded by the magistrate.

9. Bhagwant Swarup v. State of Maharashtra, AIR 1965 SC 682

i. there shall be prima facie evidence affording a reasonable ground for a court to
believe that two or more persons are members of a conspiracy
ii. If the said condition is fulfilled anything said, done or written by any of them in
reference to their common intention will be evidence against the others
iii. anything said, done or written by him should have been said, done or written by
him after the intention was formed by any of them
iv. it would also be relevant for the said purpose against another who entered the
conspiracy, whether it was said, done or written before he entered the conspiracy
or after he left
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v. and it can be used only against a conspirator and not in his favour

10. Mirza Akbar v. King-Emperor, (1940) 67 Pc 336

Mirza Akbar, the accused, Mehr Laqa, the wife of Ali Asgher, the deceased and Omer
sher, a hired assassin were prosecuted for the cospiracy to murder Ali Asghar. Omer sher
who shot at Ali Asghar was caught while running away with a gun in his hand.

One of the items to prove conspiracy was a statement made by the wife before magistrate
after she had been arrested and in the appellants absence implicating him.

There was other evidence of conspiracy between Mehr Laqa and Mirza Akbar certain
letters.

The letters and statements of Mehr Laqa were admitted by the trial court in evidence
against Mirza Akbar as being things said, and written by a conspirator in reference to
their common interest

Privy council held that, the letters of correspondence between the accused was relevant
u/s.10 but the statement of Mehr Laqa to the magistrate was not relevant u/s.10 as it was
made after the object of conspiracy had already been carried out.

It was held that the words of Section-10 are not capable of being widely construed so as
to include a statement made by one conspirator in the absence of the other with reference
to past acts done in the actual course of carrying out the conspiracy, after it has been
completed. .Things said, done or written while the conspiracy, was on foot, are
relevant.

But it would be very narrative, statement or confession made to a third party after the
common intention or conspiracy was no longer operating and had ceased to exist,
admissible against other party.

In short past and future things said, done or written are not relevant u/s.10.

The rule in sec-10 confines that principle of agency in criminal matters to the acts of co-
conspirator within the period during which it can be said that the acts were in rererence
their common intention that is to say, things, said, done or written, while the
conspiracy was on foot and in carrying out the conspiracy.

Evidence of co-conspirators outside the period of conspiracy is not relevant.

11. In Re N. Ramaratnam, AIR 1944 Mad 302

The first accused agreed to supply to the second accused a packet of gelignite, an
explosive, for the purpose of blowing up a bridge.
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The second accused along with others utilized it for that purpose, but the attempt proved
abortive. The next day the second accused wrote to the first, describing the unsuccessful
attempt and asking for a further supply of the explosive.

In the trial of the two accused and six others for the offence of conspiracy to blow up the
bridge, the question arose whether the letter written by the second accused would be
relevant against the first accused.

If the wide interpretation is put on the section, it would be relevant, but it was held,
putting only the restricted interpretation on the section, that it would not be relevant. The
first accused agreed to supply one packet, which he supplied and was utilized. The
common intention of the conspirator had been carried out, and when a letter was written
the next day, there was no conspiracy to further or to execute.

12. Dudh Nath Pandey v.State of U.P., AIR 1985 SC 911

It was held that the plea of alibi postulates the physical impossibility of the presence of
the accused at the scene of offence by reason of his presence at another place.

It should be shown that the accused was so far away at the relevant time he could not be
present at the place where the crime was committed

Alibi is based on the theory that fact of presence elsewhere is essentially inconsistent with
the presence of the accused at the place and time of the alleged occurrence, and the
participation in it.

13. Tirupathi Devasthanams V K.M Krishnaiah, AIR 1998 SC 1132

Judgments of the courts are deemed as transaction in which the rights of parties are
recognized and can be proved u/s.13

It was held that a previous judgments not interparties is admissible in evidence u/s.13 of
the Act as transaction in which a right of property was asserted and recognized.

Evidence of the previous Judgments can also given u/s.40 as res judicata, u/s.41 as
judgments in rem and u/s.42 as relating to matters of public nature.

The judgments which do no fall within the purview of secs.40-42 can only be admitted
u/s.43 if the existence of such judgments is a fact in issue in a case.

14. Aveson v. Lord Kinnaird, (1805) 6 Ea 188

This was an action on a policy of insurance. The defendant's had insured the life of the
plaintiffs wife, then warranted in good health and of the description set forth in a
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certificate. The wife died, the plaintiff sought payment, but was refused on the ground
that she was not in good health on the date of insurance.

The contract being a uberrimae fidei contract, if there was a misstatement about the health
of insured, the insurer can refuse to pay.

To prove their case, the defendants examined one S who visited the insured at the time
of insurance. She gave evidence that the insured told her that she was not well and that
she would not live beyond ten days.

This evidence was objected to, but it was held that it was relevant to show the actual state
of health in her own opinion at the time.

15. Obanna v. Gangaiah, AIR 1945 Mad 361

It has been held that where several persons are jointly interested in a suit the rule is that
the admissions of any one of them are receivable against himself and his fellows,

whether jointly suing or sued or whether an action is brought in favour of or against any
one or more of them separately,

provided the admissions relate to the subject matter in dispute made by the declaration
in his character of person jointly interested with party against whom the admission is
sought to be proved.

16. Hirachand Kothari v. State of Rajasthan, AIR 1985 SC 998

S.C has said: the word information occurring in S.20 is not to be understood in the sense
that the parties desired to know something which none of them had any knowledge of.

Where there is a dispute as regards a certain question and the court is in need of
information regarding the truth on that point, any statement that the referee may make
is nevertheless information within the meaning of Sec.20. The court accordingly regarded
the report of an assessor information within the meaning of 20.

Sec. 20 is an second exception to the general rule laid down in s.18

It deals with one of the classes of vicarious admissions

Where a party refers to a third person for some information or an opinion on a matter in
dispute, the statements made by the third person are receivable as admissions against the
making the reference.

The reason behind admissibility of the statement is that when a party refers to another
person for a statement of his views, the party approves of his utterance in anticipation
and adopts that as his own.
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17. Pakala Narayanaswami v. King Emperor(1939) 66 IA 66,81

No statement that contains self-exculpatory matter can amount to a confession, if the

exculpatory statement is of some fact which if true would negative the offence alleged to
be confessed.

Moreover, a confession must either admit in terms the offence, or at any rate substantially
all the facts which constitute the offence.

An admission of a gravely incriminating fact, even a conclusively incriminating fact, is

not of itself a confession

Ex. An admission that the accused is the owner of and was in recent possession of the
knife or revolver which caused a death with no explanation of any other mans
possession.

Stephens Digest of Law of evidence defines: a confession as an admission made at any

time by a person charged with crime stating or suggesting the inference that he
committed that crime.

The definition is not contained in the Evidence Act, 1872; and in that Act it would not
consistent with the natural use of language to construe confession as a statement by an
accused suggesting the inference that he committed the crime.

All confessions are admissions but not vice-versa.

18. Palvinder Kaur v. State of Punjab, AIR 1952 SC 354

It was observed by their Lordships of the Privy Council in Pakala Narayanaswami v.

Emperor that the word confession as used in the Act cannot be construed as meaning a
statement by the accused suggesting the inference that he committed the crime.

A confession must either admit in terms the offence, or at any rate substantially all the
facts which constitute the offence.

An admission of a gravely incriminating fact, even a conclusively incriminating fact, is

not of itself a confession.

A statement that contains self-exculpatory matter cannot amount to a confession, if the

exculpatory statement is of some fact, which if true, would negative the offence alleged
to be confessed.

19. Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094

Brief facts: The appellant, a superintendent in the chief Engineers office was charged
with the theft of an office file. One of the items in evidence against him was his confession
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to the chief Engineer. On the question of its admissibility u/s.24 of the Evidence Act, the
Supreme Court held:

Sec-24 of the Evidence Act, a confession caused by inducement, threat or promise is

irrelevant in criminal proceedings if the following conditions are satisfied:-

(i) it should appear to the court to have been caused by any inducement, threat or promise

(ii) the said threat, inducement or promise must have reference to the charge against the
accused person

(iii) it shall proceed from a person in authority

(iv) the court shall be of the opinion that the said inducement, threat or promise is
sufficient to give the accused person grounds which would appear to him reasonable in
supposing that he would gain an advantage or avoid of a temporal nature in reference to
the proceedings against him.

On the evidence and the circumstances in a particular case it should appear to the court
that there was a threat, inducement or promise, though the said fact is not strictly proved.

The threat, inducement or promise must proceed from a person in authority and it is a
question of fact in each case whether the person concerned is a man of authority or not.

The section, makes it clear it is the duty of the court to place itself in the position of the
accused and form an opinion as to the state of his mind in the circumstances of a case.

The court held that there was no inducement, threat, or promise in the present case and
convicted the accused though the confession was retracted.

A retracted conviction may form the legal basis of a conviction if the court is satisfied that
it was voluntarily made.

It has been held that a court shall not base a conviction on such a confession without
corroboration; but it is not a rule of law. It is only a rule of prudence.

20. Illias v. Collector of Customs, AIR 1970 SC 1065

S.C laid down the following tests for determining the when an officer is deemed to be a
police-officer u/s.25 of the Evidence Act.

Under the Customs Act, 1962 the customs authorities have been invested with very many
powers which a police-officer has in matters connected with arrest, search and
investigation. But they have not been invested with all the powers which an officer in
charge of a police station has under chapter-XV, Cr.P.C. For example the powers that
have been conferred do not include the power of filing or submitting a charge-sheet
u/s.173, of Cr.P.C. Therefore, in order to enable a Magistrate to take cognizance of an
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offence under customs Act, he will have to file a complaint u/s.190 (a), Cr.P.C. He cannot,
like a police-officer, submit a report u/s.190 (b).

Therefore, though customs officers have been invested with many of the powers which
an officer in charge of a police station can exercise while investigating a cognizable
offence, he does not there by become a police-officer within the meaning of Sec-25 of the
Evidence Act.

Hence, confessional statements made by the persons accused of offences under the
customs Act to customs officials would be admissible in evidence against them.

21. Udai Bhan vs. State of UP, AIR 1962 S.C. 1116
The Supreme Court observed that sec. 27 was a proviso to sec. 26.

22. State of UP vs. Deoman Upadhaya AIR 1960 SC 1125

The Supreme Court (by majority) rejected a plea that sec. 27 was violative of Art. 14. The
question arose in regard to facts discovered from statement of persons while in custody
(under sec. 26) and persons not in custody (under sec. 25).

The plea was that if, as indicated by the language of sec. 27, only discovery of facts on the
basis of statements by the person in the custody of a police officer (as per sec. 26) are
made relevant and not to facts similarly discovered from those not in custody under sec.
25, that would violate Art. 14 of the Constitution of India.

The learned Judges in the majority pointed out that cases of persons not in custody (i.e.
under sec. 25) giving such statements leading to discoveries are quite rare.

However, in so far as a person not in custody who approaches a police officer

investigating an offence and offers to give information leading to the discovery of a fact,
the Supreme Court observed that he may appropriately be deemed to have surrendered
to the police under sec. 46 Cr. P.C., but sec. 27 would apply and the information is
provable. But, if it did not amount to surrender, it may be that the statement leading to
discovery (when a person is not in custody) is not provable and this may be anomalous.

Whereas information given by a person in custody is to the extent to which it distinctly

relates to a fact thereby discovered is made provable, by sec. 162 of the Cr. P.C., such
information given by a person not in custody to a police officer in the course of the
investigation of an offence is not provable. This distinction may appear to be somewhat
paradoxical

Adverting to statements leading to discoveries, the majority said: It is provable if he was

in custody at the time when he made it, otherwise it is not. The majority observed that
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this anomaly in regard to inadmissibility of statements by persons not in custody was the
result of sec. 162 of the CrPC and not because of anything in the Evidence Act.

Hence, Art. 14 was not violated if facts discovered from statements by persons in custody
under section 26 alone were made admissible relevant and facts discovered from
statements by persons not in custody under sec. 25 were not made admissible, under sec.
27.

Opinion: Subba Rao J. however held the provision in sec. 27 discriminatory if it applied
only to statements made under sec. 26 and not under sec. 25.

If the statement is made voluntarily to a police officer it may, in certain cases, amount to
surrender to police under sec. 46 for arrest and in that case, if the person is deemed to be
under arrest, sec. 27 would apply but if he writes a letter to the police officer, it will be
inadmissible under sec. 162 CrPC.

The Supreme Court upheld the distinction between facts discovered from statements
under secs. 25 and 26 as not being violative of Art. 14.

23. Nazir Ahmed vs. Emperor AIR 1936 PC 253

A confession not recorded strictly in accordance with provisions of ss. 164 and 364 of the
old Code was inadmissible.

24. Chinna Gowda vs. State of Mysore, 1963 (2) SCR 517

It has been held that where the accused has not been told that he need not make a
confession, his confession is inadmissible in evidence and sec. 463 Cr.PC will not cure the
defect.

25. Dagdu vs. State, AIR 1977 SC 1579

that a failure to comply with sec. 164(2) CrPC or with High Court circulars will not render
the confession inadmissible if it does not violate any of the conditions in ss. 24 to 28 of the
Evidence Act, though it may impair the evidentiary value of the statements and the court
has to consider whether it can be accepted as true. Similar view was taken in Aghnoo
Nagesia vs. State of Bihar, AIR 1966 SC 119.

26. Kehar Singh vs. State, AIR 1988 SC 1883

it has been held that the compliance with subsection (2) of sec. 164 is mandatory and
imperative and non-compliance with it renders the confession inadmissible in evidence.
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If the court comes to a finding that such a compliance had in fact been made, the omission
to record the same in the proper form, will not however render it inadmissible in evidence
and the defect can be cured under sec. 463 (sec. 533 of the old Code)

but when there is non-compliance of the mandatory requirements of sec. 164(2), and it
comes in the evidence that no such explanation as envisaged in the aforesaid subsection
had been given to the accused by the Magistrate, this substantial defect cannot be cured
under sec. 463 CrPC.

27. Kashmira Singh vs. The State AIR 1952 SC 159

In this case four persons were charged with murder and at the trial one of them confessed
implicating the appellant. Allowing the appeal on the charge of murder, the Supreme
Court observed:

The proper way to approach a case of this kind is, first to marshall the evidence against
the accused excluding the confession altogether from consideration and see whether, if it
is believed, a conviction could safely be based on it. If it is capable of belief independently
of the confession, then of course it is not necessary to call the confession in aid.

But cases may arise where the Judge is not prepared to act on the other evidence as it
stands even though, if believed, it would be sufficient to sustain a conviction. In such an
event the Judge may call in aid the confession and use it to lend assurance to the other
evidence and thus fortify himself in believing what without the aid of the confession he
would not be prepared to accept.

That is the reason why the section uses the words may be taken into consideration and
not relevant.

28. Ram Sarup Singh v. Emperor, AIR 1937 Cal 39

The question is, in a trial of more than one accused, an accused, who had made a
confession either at the trial or earlier, in which it would have been recorded u/s.164 of
Cr.P.C by a Magistrate dies, can the confession be taken into consideration against the
other accused?

If at the commencement of the trial when the accused is asked to plead, in a case where
there are more than one accused and one of them pleads guilty implicating others, then:

The judge or Magistrate may record the plea, order the confessing accused to be
removed from the dock, and proceed with the trial of the others.
In this case the confession cannot be taken against the co-accused because there is
no joint-trial.
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The judge or Magistrate may also, in spite of the plea of guilty, order that the trial
should proceed against all the accused including the confessing accused
In this case the confession can be taken against the co-accused who has been
implicated because there is a joint-trial

29. State vs. Nalini (the Rajiv Gandhi Murder case) 1999(5) SCC 253
In this case, the Court was concerned with the non obstante clause in TADA, which
excluded the provisions of the Evidence Act and thereby made the confession of an
accused admissible i.e. substantive evidence.

The majority, Wadhwa & Quadri JJ considered the law under sec. 30 and held that while
sec. 30 only permitted the confession of a co-accused to be considered, though the TADA
allowed it to be treated a substantive evidence. Quadri J however said that rule of
prudence cautions the judicial discretion that it cannot be relied upon unless corroborated
generally by other evidence on record.

Section 15 of TADA specifically provided that the confession of a co-accused shall be

admissible in the trial of the co-accused, abettor or conspirator for an offence under that
Act or Rules. But co-accused must have been tried under TADA but the confession is not
admissible if the co-accused is not tried under TADA.

Finally 185th report expressed :In our opinion, it is not necessary to go to the length of
repealing sec. 30 in as much as the Supreme Court has clearly held in Kashmira Singhs
case that when there is other reliable evidence, sufficient to support a conviction, the
Court need not rely on this statement of the co-accused; but where there is other reliable
evidence and the Court is searching for some corroboration, it can use the confession of
one accused against another for that purpose.

We, however, feel that the confession must relate to all the offences in regard in which
the deponent-accused is allegedly involved and the confession cannot be one made in the
course of the trial.

30. Kishan lal v state of Rajasthan, (1999) Cr.L.J 4070

The admissibility rests on the principle that a sense of impending death produces in a
mans mind the same feeling as that of a conscientious and virtuous man under oath.

When the party is at the point of death, and when every hope of this world is gone, when
every motive to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak only the truth.
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31. Motisingh vs state of U.P ( AIR 1964 SC 900)

Gaya Charan received gun shot injuries. He was admitted into a hospital. His declaration
was recorded. He went out of the hospital and afterwards died. It was not proved that
the he died of the injuries received at the incident. His evidence did not amount to be a
dying declaration and was excluded.

Evidence cannot be given of circumstances unless they are proximately connected i.e.,
closely connected with the actual occurrence of the event. In other words it means that
the statement of the deceased relating to the cause of death must be sufficiently or closely
connected with the actual transaction

32. Pakala Narayana Swamy v. king Emperor (AIR 1939 PC 47)

Bench: Atkin, G Rankin, Porter, Thankerton, Wright

On Tuesday, March 23, 1937, at about noon the body of the deceased man was found in
a steel trunk in a third class compartment at Puri, the terminus of a branch line on the
Bengal Nagpur Railway, where the trunk had been left unclaimed. The body had been
cut into seven portions, and the medical evidence left no doubt that the man had been
murdered.

A few days elapsed before identification, but eventually the body of the deceased was
identified by his widow. The widow said that on that day her husband showed her a
letter and said that he was going to Berhampur as the appellant's wife had written to him
and told him to go and receive payment of his due. This evidence was objected to; it was
admitted as falling under the provisions of Section 32(1) of the Indian Evidence Act.

This is an appeal by special leave from a judgment of the High Court of Patna who
affirmed the decision of the Sessions Judge at Berhampur who had convicted the
appellant of the murder of one Kuree Nukaraju and sentenced him to death. The accused,
his wife, his wife's brother, and his clerk living at his house were charged with the murder
before the Sub-divisional Magistrate, Chatrapur, in May and June, 1937.

After hearing the evidence the examining Magistrate discharged all the accused holding
that there was no sufficient evidence to support the charge.

Thereupon the Sessions Judge, Berhampur, exercising his powers under the Code of
Criminal Procedure, called upon the accused to show cause why they should not be
committed for trial, and in July, 1937, ordered the present accused and his wife to be
committed to the Court of Session to stand their trial for offences under sections of the
Indian Penal Code 120B (conspiring to murder) 302 (murder) and 201 (causing evidence
of an offence to disappear).
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At the trial the Sessions Judge acquitted the appellant's wife of all the charges but
convicted the appellant of murder and sentenced him to death.

The appeal is based upon the admission of certain evidence said to be made inadmissible
by provisions of the Code of Criminal Procedure and the Indian Evidence Act; and is
further maintained upon the contention that whether the disputed evidence be admitted
or not, and certainly if it ought to have been rejected, there is no evidence sufficient to
support this conviction.

At the trial, the statement made by the deceased to his wife, while showing the letter, that
he is proceeding to Berhampur as he was invited to collect the money was held to be
admissible as dying declaration under section.32(1).

A variety of questions has been mooted in the Indian Courts as to the effect of this section.
It has been suggested that the statement must be made after the transaction has taken
place, that the person making it must be at any rate near death, and that the
"circumstances" can only include the acts done when and where the death was caused

Their Lordships are of opinion that the natural meaning of the words used does not
convey any of these limitations. The statement may be made before the cause of death
has arisen, or before the deceased has any reason to anticipate being killed. The
circumstances must be circumstances of the transaction: general expressions indicating
fear or suspicion whether of a particular individual or otherwise and not directly related
to the occasion of the death will not be admissible.

But statements made by the deceased that:

he was proceeding to the spot where he was in fact killed,

Or as to his reasons for so proceeding,
Or that he was going to meet a particular person,
or that he had been invited by such person to meet him would each of them be
circumstances of the transaction, and would be so whether the person was
unknown, or was not the person accused.

Such a statement might indeed be exculpatory of the person accused.

"Circumstances of the transaction" is a phrase, no doubt, that conveys some limitations.

It is not as broad as the analogous use in "circumstantial evidence" which includes
evidence of all relevant facts.

It is on the other hand narrower than "res gest Circumstances must have some proximate
relation to the actual occurrence: though as for instance in a case of prolonged poisoning
they may be related to dates at a considerable distance from the date of the actual fatal
dose. It will be observed that "the circumstances" are of the transaction which resulted in
the death of the declarant.
 16

It is not necessary that there should be a known transaction other than that the death of
the declarant has ultimately been caused, for the condition for the admissibility of the
evidence is that "the cause of (the declarant's) death comes into question".

In the present case the cause of the deceased's death comes into question. The transaction
is one in which the deceased was murdered on March 21, or March 22, and his body was
found in a trunk proved to be bought on behalf of the accused.

The statement made by the deceased on March 20 or 21 that he was setting out to the
place where the accused lived, and to meet a person, the wife of the accused, who lived
in the accused's house, appears clearly to be a statement as to some of the circumstances
of the transaction which resulted in his death. The statement was rightly admitted.

The Privy Council observed that, the statements made by the person deceased that he
was proceeding, or that he was going to meet a particular person, or that he had been
invited by such person to meet him would each of them be circumstances of the
transaction.

In the present case the cause of the deceaseds death comes into question. A dying
declaration would be relevant in any proceedings, Civil or Criminal, where the cause of
death comes into question. In order that a dying declaration may be admissible in
evidence it is necessary that the death of the person making the dying declaration must
be in issue, but not the cause of the death of some other person. But in Abdul Sattar v.
State Of Mysore (AIR 1956 SC 168), the court held that although the dying declaration is
incomplete, but since it had unmistakably pointed out the guilt of the accused, it can be
made admissible under section 32(1).

A dying declaration must be complete, from the point of view of the declarant. It he had
said all that he wanted to say it would be relevant. But it happens that after making some
statements he is about to state something more when he becomes unconscious and dies,
the statements would be an incomplete dying declaration and therefore will not be
relevant.

The declarant must be in fit condition.

33. Imran Khan v. state of M.P. (1995 Cri L J17)

If the deceased is not proved to have died as a result of the injuries received in the incident
propounded by the prosecution, her statement cannot be said to be statement as to cause
of her death or to any of the circumstances which resulted in her death.

Where the injury alleged to have been caused by the accused to the deceased was not
shown to have proximal connection with deceaseds death, the statement of the deceased
made to PWs cannot be said to be a statement as to the cause of death or as to any of the
 17

circumstances which resulted in her death. Evidence given in his behalf by the PWs was
hearsay and was not relevant under section 32(1).

34. Kam Raj v. State Of Punjab (AIR 2000 SC 2324)

It has been observed that Sec-32 of the E. Act is an exception to the general rule of hearsay
and makes admissible the statement of a person who dies, whether the death is homicide
or a suicide provided the statement relates to the cause of death, or exhibits circumstances
leading to the death.

It is true that where the injury alleged to have been caused by the accused to the deceased
.

Is not shown to have proximal connection with the death of the deceased, the statement
of the deceased cannot be said to be a statement as to the cause of the death or as to any
of the circumstances which resulted in his death.

If the death is due to a cause de hors the injuries the statement of the deceased as to the
injuries may not come within the ambit of section-32.

35. Kushal Rao v. State Of Bombay, AIR 1958 SC 22 & also in, Pollapolu Narsimha
Rao V state, (1997 Cri L J 1997)

1. It could not be laid down as an absolute rule of law, that a dying declaration cannot
form the sole basis of conviction unless it is corroborated.

2. Each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made.

3. It cannot be laid down as a general proposition that a dying declaration is a weaker

kind of evidence than other pieces of evidence.

4. A dying declaration stands on the same footing as any other piece of evidence and has
to be judged in the light of surrounding circumstances and with reference to the
principles governing the weighing evidence.

5. A dying declaration recorded by Magistrate in a proper manner in the form of

questions and answers and in the words of the maker as far as practicable-stands on a
much higher footing than a dying declaration which depends on oral testimony which
may suffer from all the infirmities of human memory and character.

6. In order to test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity of the dying man for observation, ex..whether there
was sufficient light if the crime was committed at night; whether the capacity of the man
to remember the facts stated had not been impaired at the time of making the statement.
 18

36. Anmol v. State, (2008) 5 SCC 488 & also in, Paniben V state (1992) 2 SCC 474

When the deceased made more than one dying declaration then first one will be
preferred.

It is not the plurality of the dying declaration but the reliability thereof that odds weight
to the prosecution case.

If the dying declaration is found to be voluntary, reliable and made in fit mental
condition, it can be relied upon without any corroboration.

The statement should be consistent throughout.

If the deceased had several opportunities of making such dying declarations, that is to
say, if there are more than one dying declaration they should be consistent.

37. Sher Singh v. State (2008) 4 SCC 265

In this case the third oral declaration which was recorded by S.I. was accepted. It was
bride burning case.

In the first declaration the victim did not name any of the accused persons and said it was
an accident.

In subsequent dying declaration recorded by an Executive Magistrate the victim stated

that she was taken to the hospital by the accused only on condition that she would make
a wrong statement.

This was reiterated by her in her oral dying declaration recorded by Sub-Inspector of
Police.

38. Kundala B Subramanyam v. State of AP, (1993) 2 SCC 684

However, if some inconsistencies are noticed between one dying declaration and other,
the court has to examine the nature of the inconsistencies, namely, whether they are
material or not. While scrutinizing the contents of various dying declaration, in such a
situation, the court has to examine the same in the light of surrounding facts and
circumstances.

They must pass trustworthiness.

39. Sanjay v. State, AIR 2007 SC 1368

This was a case of abatement of suicide. Deceased made three dying declarations. In the
first declaration she stated that she caught fire while she was pumping stove and the
 19

accused tried to save her. Subsequently, she stated that she set herself ablaze being angry
with accused.

Accused must be given benefit of doubt.

40. Mehiboobsab v. State, (2007)13SCC 112

In this case deceased gave four dying declarations. Two before medical officers, one
before Executive Magistrate, and one before the police officer. In the dying declarations
before medical officers she attributed the incident to have taken place accidentally.

Before the police she accused her husband and in-laws of abusing her and setting her on
fire; while before the Executive Magistrate she stated that her husband assaulted her with
a broomstick and when she fell down her in-laws poured kerosene on her and set her on
fire but her husband and father-in-law also poured water on her, while her husband
brought her to the hospital

Because of inconsistencies in the dying declarations, it is not safe to rely and act on it.

41. Paniben v. State, (1992) 2 SCC 474

The apex court summed up the principles governing dying declarations as under:-

1. there is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration
2. if the court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration
3. The court has to scrutinize the dying declaration carefully and must ensure that
the declaration is not the result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the assailants and was in a fit
state to make the declaration.
4. Where dying declaration is suspicious it should not be acted upon without
corroborative evidence.
5. Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected.
6. A dying declaration which suffers from infirmity cannot form the basis of
conviction
7. Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth.
8. Normally the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion. But
where the eyewitness has said that the deceased was in fit and conscious state to
make this dying declaration, the medical opinion cannot prevails
 20

9. Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
10. Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected.

42. Mohinder Kuar v. Piara Singh, AIR 1981 pun 130

When the exparte decree is set aside the evidence recorded becomes illegall. Moreover
the defendant had no opportunity to cross-examine the witnesses. Therefore the evidence
of plaintiff recorded prior to the setting aside of the decree is not relevant under sec-33.

43. Nirmal Singh v. State of Haryana, AIR 2000 SC 1416

299. Record of evidence in absence of accused.

(1) If it is proved that an accused person has absconded and that there is no immediate
prospect of arresting him, the court competent to try [or commit for trial] such person for
the offence complained of, may, in his absence, examine the witnesses (if any) produced
on behalf of the prosecution, and record their depositions and any such deposition may,
on the arrest of such person, be given in evidence against him on the inquiry into, or trial
for, the offence with which he is charged, if the deponent is dead or incapable of giving
evidence or cannot be found or his presence cannot be procured without an amount of
delay, expense inconvenience which, under the circumstances of the case, would be
unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been
committed by some person or persons unknown, the High Court or the Sessions Judge
may direct that any Magistrate of the first class shall hold an inquiry and examine any
witnesses who can give evidence concerning the offence and any depositions so taken
may be given in evidence against any person who is subsequently accused of the offence,
if the deponent is dead or incapable of giving evidence or beyond the limits of India.

SC held that pre-condition in both the sections must be established by prosecution. It is

only a statement of witness recorded u/s.299 of Cr.P.C before arrest of the accused can
be utilized in evidence in trial after the arrest of such accused if the person making the
statement is dead or would not be available or any other condition enumerated in the
second part of Sec-299(1) of Cr.P.C is established.

44. Gopeswar Sen v. Bijoy Chand Mehatab

It has been held that sec-34 provides that:
 21

The entries in books of account regularly kept in the course of business are relevant
and therefore admissible whenever they refer to a matter into which the court has
to enquire.
That such entries, though admissible, are not alone sufficient to charge a person
with liability unless corroborated by other evidence. If the entries being allegedly
vague and false the party must adduce evidence to substantiate them and show
that they are genuine.
Entries must be in the books of account. The books of account must have been kept
regularly in the course of business.
Proof of accounts- the clerk who had kept those accounts or somebody else
competent to speak to the fact should be called to prove that they were regularly
kept.

45. Ram Janaki Devi v. Juggilal Kamlapati (AIR 1971 SC 2551)

It was held by the S.C that the books of accounts must be held to have been proved even
in the absence of examining the writer as a witness, provided, there is proof firstly of
proper maintenance of the book in the regular course of business; and secondly, of the
impossibility of securing the presence of the writer.

What the law requires is that someone competent to speak about it should be tendered as
a witness.
46. Anil Behari Ghosh v. Latika Bala, AIR 1955 SC 566

Finding of criminal court is irrelevant in a civil suit. Judgments of criminal court is

relevant only to show the result. It is no evidence of finding of a fact.

47. N.K.V Brothers (p) Ltd v. M. Karumal Ammal, AIR 1980 SC 1354
Acquittal of a driver of a vehicle in a criminal case has no bearing in a case for
compensation for motor accident. Finding of the criminal court as to rash or negligent
driving is not binding on tribunal. Tribunal can come to its own independent finding.

48. Trilokyanath Das v. Emperor( AIR 1932 Cal 293)

It has been held that in a criminal trial, it is for the court to determine the question of the
guilt of the accused, and it must do this upon the evidence before it, independently of
decisions in civil litigation between the same parties. A judgment or a decree of Civil
Court is not admissible in evidence in all cases as a matter of course and, generally
speaking, a judgment is only admissible to show its date and legal consequences.
 22

49. Badri Narain Prasad v. Anil Kr. Gupta,(AIR 1979 Pat 204)

In a motor accident claim case judgment of the criminal court is admissible to prove only
as to who the parties were and what order was passed.

50. B. Meenakshisundaram Chetty v. Kuttimalu (AIR 1958 AP 371)

It has been held that it is a well-recognised principle of law that a conviction in a criminal
case is no evidence of the facts on which that conviction was based, in a civil case in which
those facts are in issue or form the subject-matter of the suit. But, the authorities are clear
that when the conviction is based on a plea of guilty that plea is relevant and to prove it,
the judgment in the criminal case is admissible in evidence in the subsequent civil suit in
which the facts giving rise to the charge are in issue or form the subject-matter of the suit.

51. K.K Thankappan v. K.S. Jayan, AIR 2003 Kar 114

It has been held that merely a man living in a womans house, say for a period of ten
years would not confer her the status of his wife. The evidence of friends and neighbors
of the parties can be received showing the reputation and treatment as to how a man and
woman conducted themselves as husband and wife.

52. Gopal Lekharu v. state of Assam(2005 Cr.L.J 4719 Gau)

It was decided that in absence of proof of solemnization of valid second marriage during
subsistence of first valid marriage, an admission of accused about his relationship with a
woman as a wife in a divorce case would not be admissible under sec-50 of the Evidence
Act, in a case of Bigamy under sec-494 of I.P.C.

53. Devi Dial v. The Crown, AIR 1923 Lahore 225

In a suit for damages for defamation the character of the plaintiff will be directly in issue
if the defendant pleads justification. Evidence of character is also relevant for
determination of quantum of damages.

Evidence of bad character of plaintiff is admissible in mitigation of damages. Evidence of

good character is not admissible to enhance the damages.

In a suit for damages the amount of damages is a fact in issue. Character of the plaintiff
becomes relevant if it affects amount of damage. Bad character of plaintiff in an action for
libel or slander or breach of promise is relevant.
 23

54. Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682

Evidence can be given both of general character and general disposition. A man may be
reputed to be a good man but in reality he may have a bad disposition.

Character evidence is very weak evidence. It cannot outweigh positive evidence in regard
to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of
the accused.

55. Raj Kumari v. Dev Raj, AIR 1977 SC 1103

Court takes judicial notice of those facts. Judge takes notice of their existence and their
nature without requiring any evidence in proof of those facts.

Court also takes judicial notice of facts may be notorious or they are stated in so authentic
manner that they require no proof.

Judicial notice thus means notice or recognition of facts by court without proof. No
evidence is necessary for taking judicial notice of a fact. Proof is not only unnecessary, it
is also excluded.

56. Uttam Chand v. Gauri Shakar, AIR 2007 Gau 20

1) An allegation of a fact made in plaint is not specifically denied in written statement or
by necessary implication it becomes an implied admission.

Evasive denial or non-specific denial constitutes an implied admission. An express

admission is one which is specifically made, either in a judicial proceedings or otherwise

2) By way of answers to the interrogatories (Order XI, Rule 22, CPC) etc.,-Interrogatory is
very often put to obtain admission of fact from the adversary.

3) Admission at or before hearing (Admission in criminal proceedings):-

The accused in answer to a charge may plead guilty. Court may accept the plea and
conclude the case. Accused may admit his guilt in his examination u/s.313 of the Cr.P.C
as well. But it may not always be expedient to act upon the admission of the accused.
Discretion has been given to the court under proviso appended to the section. As a matter
of fact court may not accept the plea of the accused in answer to the charge and call the
prosecution to prove its case.
 24

57. Peacock Plywood Ltd v. Oriental Insurance Co., (2006) 12 SCC 673

When the entire case is based on construction of a document like insurance policy, the
question of adducing of any oral evidence would be irrelevant.

This principle should be cautiously applied in case of private documents, unless there is
no dispute as regards the contents of the document.

58. Gopal Krishna Jiwan Kumar v. Puram Singh, AIR 1988 P&H 144

The document referring to payment by cheque was executed by defendant in favour of

plaintiff. The impugned document could be said to be in possession of the defendant.

The plea of defendant was that the said document was in possession of income tax
department.

The court held that grant of permission to plaintiff to lead secondary evidence in respect
of it was proper. However, the permission should stand subject to the condition that leave
be granted to the plaintiff to summon witness from income tax dept.

59. Iswar Das (dead) thr L.R V Sohandas (dead) thr LR, AIR 2000 SC 428

There was question of proof of execution of mortgage deed. The execution of mortgage
deed was not specifically denied by the defendant. It was, therefore, not necessary to call
attester into witness box. The defendant mortgagee refused to file original deed.
Thereupon, the plaintiff filed certified copy as secondary evidence. It was sufficient proof
of execution of mortgage deed.

60. Sitaldas v. Sant Ram(AIR 1954 SC 606)

It was held that the production of a copy cannot raise any presumption of the due
execution of the original, and when adverse party denies such execution, it must be
proved as provided by sec.67.

This section does not speak of any particular mode of proof for proving that a particular
writing or signature is in the handwriting of a particular person.

61. Janki Narian Bhoir v. Narain Namdeo Kadam, AIR 2003 SC 761
The SC held that on combined reading of Sec-63 of I.S.Act and Sec-68 of E.Act, it appears
that the person propounding the will has to prove that the will was duly and validly
executed. That cannot be done by simply proving that the signature on the will was that
 25

of testator but must have to be proved that attestation was also properly made as required
by Sec-63 of the S Act.

It is true that Sec-68 of the I.E.Act does not say that both or all the attesting witnesses
must be examined but at least one attesting witness has to be called for proving execution
of will as envisaged by Sec-63 of I.S.Act.

62. Ajit Savant Majagavi v. State Of Karnatka, AIR 1997 SC 3235

Sec-73 does not specify by whom the comparison shall be made. However looking to
other provisions of the Act, it is clear that comparison may either be made by handwriting
expert, U/S 45 or by any one who is familiar with handwriting of the person concerned
as provided by Sec-47 of E.Act or by the court itself.

As a matter of extreme caution and judicial sobriety the court should not normally take
itself the responsibility of comparing the disputed signature with that of admitted
signature or handwriting and in the event of slightest doubt, leave the matter to be
wisdom of expert. But this does not mean that the court has not the power to compare
the disputed signature as this power is already available to the court u/s.73

63. Lachman Uttamchand v. Meena, AIR 1964 SC 40

It was held that burden of proof on pleadings should not be confused with the burden of
adducing evidence which is called shifting. Burden of proof on pleadings never shifts. It
remains constant.

Initial burden of proving a prima facie case is cast upon the plaintiffs case, onus shifts on
the defendant to adduce rebutting evidence to meet the case made out by the plaintiff.
As the case continues to develop onus may shift back again to the plaintiff. It is not easy
to decide at what particular stage in the course of evidence the onus shifts from one side
to the other.

64. Harendra v. State, (2008) 9 SCC 204

It was held that It must be borne in mind that wherever parliament intended to lay down
a different standard of proof in relation to certain offences or certain patterns of crimes,
it did so.

In such a case subject to establishing some primary fact, the burden of proof has been cast
on the respondents.

There are a large number of statutes where the doctrine of reverse burden has been
applied. Save and except those cases where parliamentary statutes apply the doctrine of
 26

reverse burden, the courts, should not employ the same which per se would not only be
violative of the UDHR but also Art-21 of constitution of India.

65. Palika Sathiraju v. P.S. Matheswara, 1999 (5) Andh LT 442 (AP)

It is no doubt true that the legal burden is on the plaintiff who filed the suit for eviction
pleading that the defendant is their watchman, but when the defendant has taken a
specific plea that he is a tenant the evidentiary burden is upon him.

If he is able to discharge the burden either by direct evidence or by the circumstantial

evidence or even by raising some presumptions, the burden shifts to the plaintiffs on who
always lies and remains constant legal burden. It is only the evidentiary burden that shifts
from time to time.under section-102 of Evidence Act even if there is no evidence on
the side of the plaintiff, if the defendant fails to prove the specific plea taken by him, he
would fail.

66. Woolmington v. Director of Public Prosecution (1932 AC 462)

Their lordships observed that the prosecution has not merely to prove that the accused
had caused the death and ask the court to presume that it was murder, they must prove
every ingredient that makes killing a murder.

It is not for the accused to prove his innocence but it if for the prosecution to establish his
guilt. There is no burden of proof on the accused to prove his innocence and it is sufficient
to raise a doubt as to his guilt and he is not bound to satisfy the court of his innocence.

67. Karali Bauri v. Subhas Das Musib, 1983 Cr.L.J 1474

Where the burden of proving the existence of circumstances bringing the case within the
exceptions lies on the accused, onus on the accused is however not that rigid as on
prosecution to prove their case beyond reasonable doubt.

68. M.S. Reddy v. State Inspector of Police - Nellore, 1993 Cr.L.J 558 (AP)

Even though the onus of proving the circumstances lies, fails to prove the existence of
such circumstances bringing his case within any of the general exceptions, the
prosecution is neither absolved of its onerous responsibility of proving the guilt of the
accused beyond reasonable doubt nor the prosecution case is there by improved.
 27

The prosecution cannot take advantage of the weakness of the defence and cannot take
advantage of the inconsistent stand taken by the accused from time to time. The
prosecution must stand on its own legs basing on the evidence that has been let in.

69. Dayabhai v. State of Gujarat (AIR 1964 SC 1563)

The doctrine of burden of proof in the context of the plea of insanity may be state in the
following propositions:

1. The prosecution must prove beyond reasonable doubt that the accused had
committed the offence with the requisite mens rea and the burden of proving that
always rests on the prosecution from the beginning to the end of the trial.
2. There is a rebuttal of presumption of that the accused was not insane when he
committed the crime. The accused may rebut it by placing before the court all the
relevant evidence; oral, documentary or circumstantial, but the burden of proof
upon him is no higher than that rests upon a party to civil proceedings.
3. Even if the accused was not able to establish conclusively that he was insane at the
time when he committed the offence, the evidence placed before the court may
raise a reasonable doubt in the mind of the court as well as regards one or more of
the ingredients of the offence including mens rea and that case the court would be
entitled to acquit the accused.

70. Shrikant Anandrao Bhosale v. State of Maharashtra, AIR 2002 SC 3399

The accused was charged with the murder of wife in day light. Defence of insanity u/s
84 of I.P.C was pleaded. On behalf of the defence the circumstances proved were

i. The accused has family history as his father was also suffering from psychiatric
illness
ii. Cause of ailment not known, it being hereditary
iii. Appellant was being treated for unsoundness of mind since 1992 Diagnosed as
suffering from paranoid schizophrenia.
iv. Within a short span, soon after the incident from 27th June to 5th December, 1994,
he had to be taken for treatment of ailment 25 times to hospital.
v. Appellant was under regular treatment for the mental ailment.
vi. The weak motive of killing of wife being that she was opposing the idea of the
appellant resigning the job of a Police Constable.
vii. Killing in day light no attempt to hide or run away
The S.C held that the circumstances bringing the case under S.84 were fully proved.
 28

71. Siddapal v. State, AIR 2009 SC 97

Unsoundness of mind: Burden of proof how to be discharged:-

The onus of proving unsoundness of mind is on the accused.

But where during the investigation previous history of insanity is revealed, it is
the duty of an honest investigator to subject the accused to a medical examination
and place that evidence before the court and if this is not done, it creates a serious
infirmity in the prosecution case and the benefit of doubt has to be given to the
accused.
The onus, however, has to be discharged by producing evidence as to the conduct
of the accused shortly prior to the offence and his conduct at the time or
immediately afterwards, also by evidence of his mental condition and other
relevant factors.
The burden of proof, however, is not as onerous as that upon the prosecution to
prove that the accused committed the act with which he is charged. The burden
on the accused is no higher than that resting upon a plaintiff or a defendant in a
civil proceedings.

72. Vikramjit v. State, (2006)12 SCC 306

The burden of the prosecution to prove the case beyond reasonable doubt always
remains. Only when the prosecution case has been proved the burden in regard to such
facts which was within the special knowledge of the accused may be shifted to the
accused for explaining the same subject for some statutory exceptions.

73. Dhyneshwar v. State (2007) 10 SCC 445

The deceased was found murdered in her matrimonial home. The evidence or record
ruled out the possibility of any outsider committing the offence. Held that when the
couple was last seen in a premises to which an outsider may not have any access, it is for
the husband to explain the ground for unnatural death of his wife.

74. Sucha Singh v. State, (2001) 4 SCC 375

It was applicable to cases where the prosecution had succeeded in proving facts for which
a reasonable inference can be drawn as regards existence of certain other facts unless the
accused by virtue of special knowledge regarding such facts failed to offer any
explanation which might drive the court to draw a different inference.
 29

In inescapable conclusion, it is submitted, would be that to what extent sec-106 could be

pressed into service by the prosecution would depend on the facts of a given case and it
is perhaps not the law that the prosecution can never take the benefit of sec.106.

75. Jethulal Nanalal v. State of Gujarat, AIR 1968 Guj 163

Language of Sec-106 and particularly by the word especially used therein connotes that
the facts must in their nature be such as could be within the knowledge of the accused
and possibly of no one else. Sec-106 has no application if the facts are such as are capable
of being known by others also.

76. Nelakantha Pati v. State of Orissa

The expression used is may presume and not that rigid as shall presume.

In view of s.4 of the evidence Act, the import of the expression may presume is that the
court may either regard the fact in question is proved, unless and until it is disproved, or
may call for proof of it.

In s.113A of the evidence Act, the parliament in its wisdom did not leave it at that by
using the expression may presume alone, but has supplemented the same by using the
further expression having regard to all the other circumstances of the case which casts
positive responsibility on the court to take into consideration all the other circumstances
of the case also, namely the circumstances which may be there besides the two basic
circumstances mentioned in the section itself which are suicide within seven years of
marriage and proof of cruelty, in deciding whether the presumption of abetment of
suicide should be drawn in a particular case form the proof of cruelty which itself is
separately punishable u/s.498A of I.P.C.

77. Ramesh Kumar v. State Of Chhattisgarh, 2001 Cri.L.J 4724

The court should not mechanically resort to a strait-jacket approach in applying the
provisions of sec-113A of the Evidence Act for raising a presumption of abetment of
suicide. It may not be a correct approach in all circumstances that as no other earthly
reason for commission of suicide was forthcoming before the court. Therefore, by reason
of cruelty a presumption of abatement of suicide should be drawn against the husband
and the in-laws.

The court in having recourse to the presumption u/s.113A of the evidence Act is
circumspect.
 30

The legislative mandate of that section is that where a woman commits suicide within
seven years of marriage and it is shown that her husband or any relative of her husband
had subjected her to cruelty as the terms has been defined in sec-498A of I.P.C. the court
may presume, having regard to all the other circumstances of the case that such suicide
had been abetted by such person.

78. Kumar Choulia v. State Of West Bengal

As soon as it is proved that a married woman was subjected to cruelty at the hands of her
husband or by the relatives of the husband, the presumption of abetment of suicide will
be there and the onus would then shift to the accused persons to prove that they did not
abet the suicide.

Where the prosecution fails to prove the basic requirement of presumption, the onus
never shifts to the accused persons and as such it is not at all possible to convict the
accused person with the aid of presumption as to abetment.

79. Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209

Satpal Singh along with his parents, Harbhajan Singh and Kanwal Dip Kaur, was
charged U/S 306 of IPC for abetting his wife to commit suicide. The deceased
Ravinder Kaur was married to Satpal Singh in Nov, 1982. She died on 25th June
1983. She, it was alleged, committed suicide on account of cruel behavior of her in-
laws soon after the marriage.

She used to visit her parents at Amritsar occasionally and during her visits she
used to narrate that her in-laws were demanding dowry and were taunting her
and also making the insinuation that she was carrying an illegitimate child. It is
alleged that, provoked by aforesaid conduct and behavior, she committed suicide.

Additional Sessions Judge, Amritsar convicted and sentenced to rigorous

imprisonment for five years.
The HC of Punjab and Haryana allowing the appeal of the accused set aside the
conviction on the ground that the prosecution failed to establish the charge against
the accused persons.
S.C. held that, on the consideration of the circumstantial evidence that she was
compelled to take the extreme step of committing suicide as the accused persons
had subjected her to cruelty by constant taunts, maltreatment and also alleging
that she has been carrying an illegitimate child.
The suicide having been committed within a period of seven years from the date
of her marriage in accordance with the provision of sec-113A, the court may
presume having regard to all the other circumstances of the case.
 31

The S.C therefore set aside the judgment and order of acquittal passed by H.C and
affirmed the conviction of the accused of the offence under section 306 of the I.P.C
and sentenced imposed upon them by the Addl. sessions judge.

80. Prem Kanwar v. State Of Rajastan, AIR 2009 SC 1242

It was held that the expression soon before her death used in the substantive sec-
304B of IPC and sec-113B of Evidence Act is present with the idea of proximity
test.
No definite period has been indicated and expression soon before is not defined.
A reference to expression soon before used in sec-114, Illustration (a) of Evidence
Act is relevant.
The expression soon before would normally imply that the interval should not be
much between the concerned cruelty or harassment and the death in question.
There must be existence of a proximate and live-link between the effect of cruelty
based on dowry demand and concerned death.
If alleged incident of cruelty is remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned, it would be of no
consequence.

81. Samir Sumanta v. State, 1993 Cr.L.J 134

Although the legislature has used the expression shall presume in sec-113A
instead of may presume having regard to all the other circumstances of the case
as in section 113A of the Act, yet even in sec-113B the proximity test has been
assigned a definite role for determining whether it is fit case for invoking the
compelling presumption or what is called the presumption of law as envisaged in
that section.
The expression and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with any
demand for dowry as used in sec-113B is pregnant with the idea of proximity test.
The cruelty or harassment must have been committed soon before her death. This
reflects the insignia of proximity test.
The question of length of time will answer the requirements of the words, soon
before her death may of course depend upon the facts and circumstances of a
case.
But the legislative intent is very clear that even the compelling presumption of sec-
113B of the Evidence Act is confined only to cases where proximity of time by itself
lends a safe assurance about the existence of a proximate relation between torture
over dowry demand and unnatural death as cause and effect.
 32

82. Tukaram v. State of Maharashtra, AIR 1979 SC 185

Known as Madhura case, sec-375 and 376 of the I.P.C were redrafted and substituted by the Act
43 of 1983

The girl by name Mathura was brought to the police station and she was raped by two
policemen.

The trial court was of the opinion that the affair was probably with the consent and
acquitted the accused of the charge of rape.

The High court on appeal convicted the accused in view of the fact that passive
submission at a police station cannot be deemed as consent.

The S.C on appeal by the accused acquitted them in view of the following reasons:-

(i) the alleged affair have been peaceful one as no injury could be found on the
person of the girl.
(ii) the victim, after separation from the party, with whom she was found meekly
followed Ganpath (the policeman) and allowed him to satisfy his lust.
(iii) the prosecution is required to prove the offence of rape and to prove that the
consent was obtained by putting her in fear and they have failed to discharge.
After the amendment:-

Sec-114A of the Evidence Act lays down that in the cases mentioned in the section, the
prosecution has to prove only that there was sexual intercourse between the accused and
the prosecutrix. After that if the prosecutrix states in her evidence before the court that
she did not consent the court shall presume that the sexual intercourse was committed
without the consent of woman then it lies on the accused to prove that he committed the
sexual intercourse with the consent of woman but if he fails to prove the consent of the
woman he shall be committed for the offence of rape u/s.376 of I.P.C.

83. Jamanlal v. State of M.P., 2002 Cri.L.J 199

In a rape case, the prosecutrix was more than 16 years of age on the date of occurrence.
She did not disclose the incident to her parents at the earliest and even she indulged in
sexual intercourse with the accused two or three times and lodged FIR only after her
mother noticed her five moths pregnancy. Held, Sec-114A was not attracted.