Jojy George Koduvath.

PART I

Introduction

What is ‘Proof’ in Evidence Act

A fact is said to be proved (Sec. 3 Evidence Act) when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act.

Proof of Fact Depends Upon the Degree of Probability

In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is observed that what is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. The Apex Court then proceeds as under:

• “Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him.
• Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Company, Ltd. [1911 (1) K.B. 988] observed like this: 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”.
• The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved.”

Inference as to Proof is Akin to Presumption – Law Gives Discretion to Court

As stated earlier ‘Proof’ is what the court either believes it to exist, or consider its existence so probable. In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318, it is further observed as regards ‘process of inference of proof’ by a court, as under:

• “Such inferences (as to Proof) are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra [1998 (7) SCC 337]. A presumption can be drawn only from facts – and not from other presumptions by a process of probable and logical reasoning.”

Probative Value of Evidence

Origin of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, trial, proof, testing, probation etc. In law, the meaning of ‘probative value’ is –

• Sufficiency of evidence which is useful to prove something in a trial.
• Probability of proof or truth while appreciating a fact.
• Value or weight of evidence, considered by the court, in proof of something.
• Extent of evidentiary value that can be taken to prove a proffered proposition.

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

• “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

E.g. – previous criminal conduct of an accused, photocopy of a deed certified copy of which is provided in law, ‘objectionable document’ marked without objection, un-cross-examined testimony of a witness etc.

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh (AIR 2005 SC 1868), held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

Read Blog:

• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 

Appreciation of Evidence is Both an Art and a Science

R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – 2005-3 Ker LT 163: 2005-1 Mad LJ 965, held as under:

• “The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”

Classification of Evidence

On a broad classification, according to Sec. 3 (definitions) and 45 of the Evidence Act, ‘evidence’ can be classified into following categories –

• Oral evidence;
• Documentary evidence including electronic records; and
• Opinions of experts including views of persons specially skilled in foreign law, science or art, or in questions as to identify of handwriting or finger-impressions. It may also be termed as scientific evidence.

Difference in appreciation of evidence in Criminal and Civil matters.

Civil courts proceeds on the principle – “preponderance of probability”. Criminal courts proceeds on the principle – guilt of the accused must be ‘proved beyond all reasonable doubts’.

Preponderance of Probabilities

‘Preponderance’ is used for it carries or conveys the idea that the conscience of the judge is important in appreciation of evidence and law in civil matters. It is also used in contrast to ‘certainty beyond doubt’ (pertains to criminal law).  In the process of appreciation of evidence, the ‘slight’ evidence may ‘tilt the balance’ in Civil cases on applying the principle of ‘preponderance’. Therefore, it is said that the evidence is to be weighed. That is, ‘count’ is not the material thing, for a ‘genuine’ judge.  It is laid down in Section 134 of the Evidence Act which reads as under:

• “No particular number of witnesses shall in any case be required for the proof of any fact.”

In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, our Apex Court observed as under:

• “The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when 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. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.”

Our Apex Court referred the following two English decisions-  

(1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191. It observed as under:

• “The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”;

(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 (Lord Denning). It is observed as under:

• “The degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear”

Standard of proof required under Sect. 139 NI Act is ‘preponderance of probabilities’

In Rangappa v. Sri Mohan, (2010) 11 SCC 441, our Apex Court held that Sec. 139, Negotiable Instruments Act, 1881 (liability of accused is presumed “unless the contrary is proved”) contains ‘reverse onus clause‘; and that under Sect. 139, the standard of proof required for rebutting that presumption is ‘preponderance of probabilities’.  (Followed in Anss Rajashekar v. Augustus Jeba Ananth, AIR 2019 SC 942).

In Basalingappa v. Mudibasappa, 2019-5 SCC 418, while considering the presumption in 138 NI Act, it is held that when financial capacity is questioned, it was incumbent on the complainant to have explained his financial capacity and that the Court cannot insist on a person to lead negative evidence.

Reasonable Possibility alone is needed to Rebut Presumption

In Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808, it was laid down by our Apex Court as under:

• “23. ……One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.” (Quoted in: Basalingappa v. Mudibasappa: 2019-5 SCC 418.)

In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha), it was held that a probable defence or reasonable possibility alone is needed to rebut the presumption, which must meet the standard of “preponderance of probability”.  In M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (SB Sinha) observed as under:

• “In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], a 3- Judge Bench of this Court held that although by reason of Sections 138 and 139 of the Act (NI Act), the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal, J. speaking for a 3-Judge Bench, however, opined:
  • “Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
  • In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, ‘after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ‘prudent man’.”

Lack of Source of Income of Complainant Negatives Presumption

Under Sec. 139 of NI Act, the burden is on the accused to rebut the presumptions available. If the court comes to the conclusion that the complainant had no source of income to lend a large sum to the accused, court can came to the conclusion that the complainant had failed to prove that there is no legally recoverable debt payable by the accused to him. (K Subramani v. K Damodar Naidu, (2015) 1 SCC 99.)

Admissibility & Relevancy in Evidence Act

• Admissions (Evid. Act: Sec 24-30)
• Confessions (Sec 24-30)
  • Extra Judicial
  • Judicial
• Burden of Proof (Sec 101, 103, 108, 110, 113)
• Presumption (Sec 4)
  • May presume
  • Shall presume.
• Relevancy of Facts (Sec. 5 to 14)
  • Evidence may be given in any suit or proceedings of every fact in issue. S. 5 onwards.
  • Facts though not in issue but connected with a fact in issue which form part of same transaction. S. 6
  • Facts which are cause or effect of facts in issue. S. 7
  • Facts is that shows motive, preparation and previous or subsequent conduct. S. 8
  • Facts that establish identity of a thing or person or fix the time or place of a relevant fact or transaction. S. 9
  • Things said or done by conspirator in reference to common design. S. 10
  • Facts showing existence of state of mind, or of body. S. 14
• Relevancy of Admissions (S. 17)
  • Statements made by party or his agent. S. 18 .
  • Admissions can be proved against the person who makes them. S. 21 .
  • Oral admissions as to contents of documents or electronic records are not relevant. Ss. 22 & 22A.
  • No confession made under inducement and that to a police officer to be proved against accused. S. 24, S.25 & S.26 except under S. 27, S.28 & S.29.
  • Confession affecting person making it and others jointly under trial. S. 30.
• Relevancy of Facts (Sec. 32 to 44)
  • Statement of relevant fact by dead or missing person. S. 32.
  • Evidence by dead or missing person in a judicial proceeding. S. 33.
  • Entries in books and official records. S. 34 & S.35.
  • Facts in maps or charts, notifications and law books under the authority of the Government. S. 36, S.37 & S.38.
  • When to be proved. S. 39.
  • Previous judgments bar a second suit or trial. S.40.
  • Any final judgment in probate or insolvency jurisdiction. S.41.
• Relevancy of Opinion (Sec. 45 to 51)
  • Opinion of an expert. S.45.
  • Opinion of any person acquainted with the handwriting of the person. S.47
  • The ground on which the opinion is based. S.51

Read Blog: Relevancy, Admissibility and Proof of Documents

Standard of Proof in Civil and Criminal Cases

Our Apex Court continued in Narayan Ganesh Dastane v. Sucheta Narayan Dastane, AIR 1975 SC 1534, as under:

• “In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.”

Conflict Between Oral Evidence and Scientific Evidence, Which Will Prevail

It depends upon the nature of the subject matter.

In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence is always an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

Expert Evidence is only Corroborative

It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

• “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

• “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 CrLJ 3508 (Ori) DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa. AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Decision which Changed the Concept of Law on ‘Conclusive Presumption’

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112 which reads as under:

• “112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

It is held in Nandlal Wasudeo Badwaik case as under:

• “17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

Appreciation of Evidence of Experts
In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-motem report.

Post-Mortem Report is not a Substantive Evidence

Post-mortem Report or Wound Certificate is not a substantive evidence [Mohan Singh v. Emperor, AIR 1925 All. 413 (DB); State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All);  K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

Read Blogs:

• Expert Evidence and Appreciation of Evidence
• Modes of Proof – Admission, Expert Evidence, Presumption etc.

Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”

In Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

• The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India,  (1964) 3 SCR 191, the Supreme Court held as under:

• “The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ” 

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

• “On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”

The Supreme Court, in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, referring Sec. 102 of the Evidence Act (The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side), explained ‘burden of proof’ as under:

• “Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

Burden of proof remains only Academic

In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541, that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.

Our Apex Court in National Insurance Company Limited v. Rattani, 2009-2 SCC 75: AIR 2009 SC 1499, it is observed as under:

• “14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.” (See also: Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC), National Insurance Company Ltd.  v. Savitri Devi, 2013-11 SCC 554.)

Even if No Plea, Propounder has to clear Suspicion

In K. Laxmanan v. Thekkayil Padmini, AIR 2009 SC 951, the Apex Court held that when there were suspicious circumstances regarding the execution of a Will, the onus was on the propounder to explain them to the satisfaction of the Court; and only when such responsibility was discharged, the Court would accept the Will as genuine. It was further observed that even where there were no such pleas, but circumstances gave rise to doubt, it was on the propounder to satisfy the conscience of the Court. These decisions are followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028. 

The Privy Council in Seturatnam v. Venkatachella, AIR 1920 PC 67, observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama, AIR 1922 PC 292, the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See: Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar, 2018-4 Gau LT 733).

See also:

• Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94,
• Union of India v. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,

Presumption on a Registered Document – “It is VALIDLY EXECUTED“

• Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
• Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
• In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• Therefore, there is a presumption – registered document is validly executed –
  • Prem Singh v. Birbal, AIR 2006 SC 3608;
  • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
  • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
• The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

Registered Deeds: Proof of CORRECTNESS drawn, Invoking Presumption

• Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713; Jamila Begum v. Shami Mohd., AIR 2019 SC 72) .
• And, there is a presumption of Correctness also (Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J.). The onus of proof, therefore, would be on the person who questions the same.

Do Presumptions as to VALID EXECUTION & CORRECTNESS Import TRUTH?

Two views emerge on registered documents-

• First, Presumption as to VALID EXECUTION  & CORRECTNESS lead to further (invariable) presumption as to ‘truth’ of contents.
• Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION  & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION  & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import TRUTH. It may result:

• 1. Shift Burden in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
  • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
• It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evidence Act (regard being had to the common course of natural events, human conduct etc.) .
• There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
• 2. No Question of Shifting Burden in certain cases. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
  • For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

PART II

Admissions in Civil Cases

Order 8 Rule 5 CPC governs this matter. It reads as under:

Rule 5. Specific denial.

• (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
• Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
• FOR COMMERCIAL COURTS-
• “Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.”
• (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
• (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Order 12 Rule 6 CPC governs this matter. It reads as under:

Rule 6. Judgment on admissions

• (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
• (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.

In R.K. Markan v. Rajiv Kumar Markan, 2003 AIHC 632 (Delhi), it was observed that the admissions for passing a decree on the basis of admission of the defendants in the pleadings should be –

• equivocal and unqualified and
• the admission in the written statement should also be taken as a whole and not in part.

Court Must Read Whole Evidence and not One Stray Admission

In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility. In a maintenance dispute under Sec. 125 Cr PC our Apex Court, in Saygo Bai Vs. Chueeru Bajrangi, AIR 2011 SC 1557, observed that the Court must read whole evidence and that one stray admission cannot be read in isolation with the other evidence. 

Court is not bound to grant Declaration on Admission if reason to Insist Proof

In Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, it was observed that the court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant, if the court has reason to insist upon a clear proof apart from admissions.

• See also : Uttam Singh Dugal and Co. Ltd. v. United Bank of India 2000 (4) RCR (Civil) 89;
• M/s Puran Chand Packaging Industrial Pvt. Ltd. v. Smt. Sona Devi and another, 2009 (2) CCC 39.

Read Blog: Declaration and Injunction

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

• “The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
• This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Read Blogs:

• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS

Plaintiff has to Win Suit for Recovery on Title, on the Strength of his Title

In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust, that the suit property belonged to the trust. Our Apex Court held as under:

• “Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”

In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:

• “The plaintiff’s suit being one for ejectment he has to succeed or fail on the file that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”

Read blog: Recovery of Possession Based on Title and on Earlier Possession

Prosecution Must Stand on Its Own Legs; Not on Weakness of Defence

Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence (Sharad B. Sarda v. State of Maharashtra, (1984) 4 SCC 116; AIR 1984 SC 1622). The Apex Court also observed that though the suggestion made in the cross-examination was not evidence it certainly be called into aid to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused.

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is a subject of controversy.

First view	Admission of contents & it dispenses with proof.  See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003  SC  4548; Narbada Devi  v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata:  (2007) 8 SCC 575; Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63; Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
Second View	Admission of contents – but, does not dispense with proof. See: Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Third view	If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth. See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085
Fourth view	Admission of contents, dispenses with proof and truth; but its probative value will be a matter for appreciation by court. See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758;  H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492;  Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196.
Fifth view	Court should require (in proper cases) the party producing the document to adduce proper evidence as to execution, and to cure formal defects. See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

Read Blog: Admission of Documents in Evidence on ‘Admission’

Suggestion or Admission in Cross-Examination –  Evidentiary Value

In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply of the witness the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court considering the suggestion and the reply arrived at the conclusion that the presence of the accused was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it is held as under:

• 38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
• 39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
• 40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
• 41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
• 42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.”
• 43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind s/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
  • “27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross- examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self-glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
• 44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
• 45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.”

In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:

• “35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
• ” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
• 36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
• 37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.
• In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought.”

It is Permissible to take more than one defence in cases of rape

In Tarjubhai Narsingbhai Rathwa v.  State of Gujarat, (J.B.Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, 2014-36 GHJ 282, 2014-6 RCR(Cri) 297, though it is observed that it is permissible for the accused to take more than one defence in cases of rape, it is further pointedout as under:

• “33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj v. The State of Gujarat,  1969 CrLJ  409, that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions.”

It is also held as under:

• “43. … At the same time, if the defence in the cross- examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same.”

A Contra view is taken in Koli Trikam Jivraj v. The State of Gujrat, AIR 1969 Guj 69.

Claim of Lease by Witness; Inordinate Delay in Producing Lease Deed – Effect

Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), can be safely considered to see how evidence on adverse possession is appreciated by the Supreme Court of India. In this case the plaintiff claimed title on a document. The defendants pleaded adverse possession. According to them the second defendant had sold the property to the 1st defendant 3 years before the suit. Therefore, to establish the claim of title by adverse possession (for the period of 12 years), the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to the first defendant should have been proved. The Supreme Court found that the defendants failed to establish adverse possession observing the following:

• “Though the second defendant filed a -written statement supporting the case of the 1st defendant and though he was present at the time of hearing several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non- examination. This circumstance goes a long way to discredit the defendant’s plea of adverse possession. The 1st defendant’s evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh.D-1. It is not explained how the 1st defendant came into possession of Exh.D-l. Though the suit was filed as far back as 1949, Exh.D-1 was produced into court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh.D-1, (an unregistered document) in court. According to D.W.2, the 1st defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D.W.2 and not relying on Exh.D-l.”

PART III

Suggestions in Cross Examination to Witnesses

General principles-

• Mere suggestions in cross examination (not accepted by witness) are no evidence.
• In criminal trials suggestions are given in cross examination for no ‘pleadings’ as in civil cases.
• In a civil trial it is not required to put its case to the witness as pleadings already exists.

In Khimjibhai Kurjibhai  v. The State of Gujarat, 1982 CrLR (Guj), it is held that the suggestion in cross examination are no evidence.

The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.) 2013 SCC OnLine Del 2530, as under:

• “The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.”

Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty

In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that  if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:

• “Suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record.”

Effect of “No Effective Cross-Examination”

Our Apex Court considered the effect of “no effective cross-examination” with respect to factum of execution of sale deed spoken to by a witness, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 (Followed in: Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC 1). It was held in this decision –

• Cross-examination is a matter of substance, not of procedure one.
• A party is required to put his own version in cross-examination of opponent.
• The effect of non cross-examination is that the statement of witness has not been disputed.
• Court may repel a submission – on the ground that same was not put either to the witnesses, or suggested before the courts below (referred to: Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906).
• If no such questions are put, the court would presume that the witness account has been accepted (referred: M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440.)
• In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established.
• The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party.
• The rule of putting one’s version in cross-examination is one of essential justice and not merely technical one.
• In Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nagpur 83, has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested.
• If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
• In Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, has laid down that it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted.

Effect of Not Cross-Examining a Witness on a Point

The effect of not cross-examining a witness on a particular point has been considered by the Supreme Court, in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204. It is observed as under:

• “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Sec. 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Sec. 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”

Effect of NOT Challenging Validity of a deed in Cross Examination

When a deed is duly proved in the trial by the evidence of a witness, and the legality or validity of the same is not challenged in the cross examination, the court will act upon the deed as a legal and valid one (Atluri Brahmanandam v. Anne Sai Bapuji,  2013-4 SCC 97 : AIR 2013 SC 1204).

Value of evidence of witness untested (for death) by cross-examination

Andhra High Court (SB Sinha, CJ, as he then was) in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, 2002 Supp1 ALD 600, 2002-1 Andh WR 475, held that the evidence of a person who had died after examination in chief and could not be cross-examined, the weight or probative value of his evidence would vary from case to case and in a given case it could be disregarded.

In Anamika Pranav v. Anil Kumar Choudhary, 8 Feb, 2023, Patna High Court (Sunil Dutta Mishra, J.), it was held that the evidence of a witness untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. It is held as under:

• “The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.”

The Single Judge followed the following decisions:

• Mt. Horil Kuer v. Rajab Ali, AIR 1936 Pat 34
• Srikishun Jhunjhunwalla v. Emperor, AIR 1946 Pat 384
• Ahmad Ali v. Joti Prasad,AIR 1944 All. 188
• Srikumar Mukherjee v. Avijit Mukherjee, 2015 SCC Online Cal. 6445.

In Dever Park Builders Pvt. Ltd. v.  Smt. Madhuri Jalan, AIR 2003 Cal 55, the witness was partly cross examined. It is held as under:

• “19. …. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Cross-examination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the cross-examination hardly matters.
• 20. Therefore, I am unable to accept the argument of Mr. Dutt that the evidence of the deceased defendant shall be expunged and/or rejected altogether. It shall be considered and how much weight shall be attached should be decided considering the other facts and circumstances surrounding it. So the earlier order passed by me expunging the evidence of deceased defendant is recalled and the document and evidence already received in commission shall now be admitted as records of this case. Parties would be at liberty to use any of the exhibited documents.”

It is permissible for the accused to take more than one defence

It is an accepted principle that it is permissible for the accused to take more than one defence in a criminal. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness (especially when it is not admitted by the witness) would not amount to an admission on the part of the accused.

But, it may not be the same result, in civil cases.

Suggestion or Admission in Cross-Examination –  Evidentiary Value

Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:

• “35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
• ” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”
• 36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
• 37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.
• In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought.”

The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross examination of witnesses though not binding on the accused as admissions, those suggestions in cross examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.   

Referring Jesu Asir Singh v. State, (2007) 12 SCC 19 : AIR 2007 SC 3015, it is held in Muneem Ahmad v. State of U. P.,  2017-171 AIC 895, 2017-98 All CriC 405, that the question put in the cross-examination to a great extent probabilise the prosecution version; and that, though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.

Value of a Sec. 313 Statement

In Tarjubhai Narsingbhai Rathwa v.  State of Gujarat, (J.B. Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, it is observed as to Sec. 313 Statement as under:

• 34. So far as the value of a statement made by an accused recorded under Section 313 of the Criminal Procedure Code is concerned we should look into with profit the observations made by a three Judge Bench decision of the Supreme Court in the case of State of U.P. v. Lakhmi reported in AIR 1998 SC 1007. The Supreme Court made the following observations which, in our opinion, fortifies the view we propose to take on the issue.
• “7. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value of utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicated persons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.8. Sub -Section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words “may be taken into consideration in such enquiry or trial” in sub -Section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.
• 9. Time and again, this Court has pointed out that such answers of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offence charged against him; vide : Sampath Singh v. State of Rajasthan, (1969) 1 SCC 367 : (AIR 1969 SC 956); Jethamal Pithaji v. Assistant Collector of Customs, Bombay, (1974) 3 SCC 393 : (AIR 1974 SC 699); Rattan Singh v. State of Himachal Pradesh, (1997) 4 SCC 161 : (1997 AIR SCW 587).10. We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence.”
• 34.1 Considering the aforesaid principles explained by the Supreme Court, it could necessarily be inferred that a suggestion made to a witness and the answer to the same would form part of the evidence on record. Those suggestions can be taken into consideration while determining whether the reply given was believable or not.

PART IV

Interpretation of Documents – as provided under Evidence Act

Produce Document itself

• (i)  Oral admissions as to contents of documents are not relevant (Sec. 22); The law requires production of Document itself (Sec. 91); . 

No oral evidence can be given –

• (ii) for varying, adding to, etc. its terms (S. 92).
• (iii) to explain a document, on its face, ambiguous (S. 93).
• (iv) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given when –

• (v) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
• (vi) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
• (vii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
• (viii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets  (S. 97).
• (ix) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).

Interpretation of Will – Provisions of Law

• (i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
• (ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Read Blogs:

• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule.
• Interpretation of Inconsistent Clauses in a Will.
• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule.

Primary rule of construction in Evidence Act

The Supreme Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609,  has noticed Odgers Rules, in “Construction of Deeds and Statutes”, and quoted the First General Rule of Interpretation which reads as under:

• “The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.

Give effect to words used, and Not to the presumed intention

Our Apex Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, further pointed out that ‘the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect’ and with certain exceptions contained in Sections 95 to 98 of the Act, “the document” means “the document” ‘read as a whole and not piecemeal’. Then the Apex Court observed as under:

• “The rule stated above follows logically, from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above: Lord Wensleydale in Monypenny v. Monypenny(1) said: “the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.”
• Brett, L.J., in Re Meredith, Chick ([1879] 11 Ch. D. 731) observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke… They said that in construing instruments you must have, regard not to the presumed intention of the parties, but to the meaning of the words which they have used.”

Mere Suggestions (not accepted by witness) in Cross Exam – No Evidence

The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:

• “It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”

Bibhuti Bhusan Roy v. State of West Bengal,  2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.

Earlier words of deed, or main purpose accepted (rejecting uncertain words)

It is further laid down in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

• “Assuming, however, that there is some conflict between an earlier part of the deed containing a demise of land clearly for a period of 90 years on an annual rent of Rs. 365, and the proviso of covenant No. 9, annexed to the demise, in a later part of the deed, which cannot be resolved without discarding or disregarding some word or words, the respondent’s counsel contended that the earlier words of demise, consistently supported by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on: Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Rao Dhabel Deo  ([1960] 3 SCR 604); Ramkishore Lal v. Kamal Narian ([1963] Supp. 2 SCR v. 417); Forbes v. Git ([1922] 1 AC 256).
• We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail. Learned Counsel for the respondent also relied on the following passsage from Glyn and Ors. v. Margetson & Co.([1893] A. C. p. 351) in the judgment of Lords Halsbury :
• “Looking at the whole of the instrument, and seeing that one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.“

Gant to be construed in favour of the grantee

In Smt. Bina Das Gupta and Others v. Sachindra Mohan Das Gunta, AIR 1968 SC 39, the following statement of law in Stavill Eros., Ltd. v. Bethell ([1902]-2 Ch. 523) , by Sterling L.J., was cited with approval (as observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609) –

• “It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the garntor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be, bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.”

Read Blogs:

• Is the Basis of Every Easement, Theoretically, a Grant
• Grant in Law
• Easement Simplified
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements

The construction which give effect to all the clauses be adopted

It is further observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

• Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim (AI R 1959 SC 24): “Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat”

In P. Madhusudhan Rao v.  Lt. Col. Ravi Manan, 2015-4 ALD 409, after referring the Supreme Court decision, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, it is observed as under:

• “As the observation of the Supreme Court (Delhi Development Authority v. Durga Chand) have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India.
• These Rules are listed hereunder:
• 1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
• 2. The intention may prevail over the words used
• 3. words are to be taken in their literal meaning
• 4. literal meaning depends on the circumstances of the parties
• 5. When is extrinsic evidence admissible to translate the language?
• 6. Technical legal terms will have their legal meaning.
• 7. Therefore the deed is to be construed as a whole.

Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:

• 8. Same words to be given the same meaning in the same contract.
• 9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
• 10. Contra Proferendum Rule- If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
• 11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative
• 12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
• 13. the special will exclude the general
• 14. Rule of expression unius est exclusion alterius
• 15. Rule of noscitur a sociis
• 16. Ejusdem generis rule will apply both the contract and statute
• 17. place of Punctuation in interpretation of documents”.

Ejusdem Generis & Noscitur a Sociis

Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.

The ejusdem generis is explained in Halsbury’s Laws of England as under:

• “As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction; must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belong to that category, class or genus fall within the general words.”

Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:

• “69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, …  may be deemed to be the income of the assessee for such financial year.”

It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.

Noscitur a Sociis is a rule is broader than the maxim ejusdem generis.  It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it.

On applying this rule ‘(right to) rent’ will not include in the ‘(right to) chair, bench, table’. That is the questionable word (rent) does not take colour from the connected words (chair, bench, table). [In practice, it is seen that ‘ejusdem generis’ is applied when words like – other articles, etc., such things, similar acts, etc. are used; and ‘Noscitur a Sociis‘ is used even if those words are not used.]

Intention of the parties looked into When there is ambiguity

In P. Madhusudhan Rao v.  Lt. Col. Ravi Manan, 2015-4 ALD 409 after quoting the above rules, it is observed as under:

• “From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention.”

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

• “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Vague and uncertain descriptions rejected; definite and certain, preferred

The Kerala High Court held in Velu v. Padmavathy Amma (1983 KLN 38 Case No.39), as under:

• “According to learned counsel for the appellants, when there is conflict in description by measurements and boundaries, measurements prevail over boundaries while according to learned counsel for the respondents, the contrary is the correct position. I have been referred in this connection to the following decisions : Zamindar of Pahipenta vs. Maharajah of Jeypore (XXIII M.L.J. 97) Subbayya Chakkiliyan vs. Manjan Muthia Goundan and another (A.I.R. 1924 Mad. 493), Durga Prasad Singh vs. Rajendra Narain Bagehi (I.L.R. 37 Cal. 293), Kumara Krishnan vs. Ulahannan Mathai (1957 K.L.T. 42), Chacko Joseph vs. Varghese Markose (1957 K.L.T. 485), Savarimuthu Nadar Chellayyan Nadar vs. Kanakku Rali Pillai Padmanabha Pillai (1957 K.L.T.825) and Krishnamurthy Iyer vs. Janaki Amma (1957 K.L.T. 886).
• A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in Chandrakumar vs Narayana Bahuleyan, 2011(3) KLT 185.)

Court cannot look intention when document applies squarely to existing facts

Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, dealt with the interpretation of a surety bond. The Court relied upon Sec. 94 of the Indian Evidence Act and found no reason to look for the intention of the parties, since the clear and express words in the bond applied squarely to the existing facts. The Court held as under:

• “Sometimes when it is said that a Court should look into all the circumstances to find an author’s intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

Read Blog:

• Interpretation of Wills

Sec. 91 and 92 – Best Evidence Rule

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6  SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7  SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, as under:

• “The grounds of exclusion of extrinsic evidence are
• (i) to admit inferior evidence when law requires superior would amount to nullifying the law,
• (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

In Bhima Tima Dhotre  v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

• “Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

Patent ambiguity and latent ambiguity

Patent ambiguity is that inherent in the words. Extrinsic evidence is inadmissible in such cases.

 Sec. 93 and 94 of the Evidence Act deal with cases of patent ambiguity and Sec. 95 to 98 deal with cases of latent ambiguity.

Patent Ambiguity	Latent Ambiguity
Ambiguity On the Face	Hidden Ambiguity. Words of the instrument clear, but their application to the circumstances doubtful.
S. 93 and 94	S. 95 to 98
No oral evidence permitted	Oral evidence permitted Ambiguity is disclosed only when explored with extrinsic evidence. Therefore, the ambiguity is allowed to be removed by same means.
Makes the document useless. Ambiguity cannot be removed by legal construction or evidence.	Can remove its ambiguity by Oral evidence.
# Sell a horse to B for “Rs. 1,000 or Rs. 1,500” (Illustration- Sec. 93). # Deed contains blanks (Illus. – Sec. 93). # Sells estate at Rampur. No evidence another place (Illustration- Sec. 94).	# Sells house in Calcutta. No house in Calcutta.  Can show at Howrah (Illus. – Sec. 95). # Sells white horse. Two white horses. Can show which (Illus. – Sec. 96). # Evidence be given Hayatabad in Dekkhan or Sind (Illus. – Sec. 96). # Sells B land at X occupation of Y. A has land at X, but not in occupation of Y, and he has land in occupation of Y not at X. Evidence be given which he meant to sell (Illus. – Sec. 97). # A sells “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell (Illus. – Sec. 98).

“Patent Ambiguity”

After referring Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, it is observed in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308 that the principle contained in Sec. 94 of the Evidence Act is that extrinsic evidence is inadmissible in cases of “patent ambiguity”, and that this principle is “fundamental to Indian jurisprudence.”

A “patent ambiguity” is explained in Starkie on Evidence as under:

• “By patent ambiguity must be understood an ambiguity inherent in the words, and incapable of being dispelled, either by any legal rules of construction applied to the instrument itself, or by evidence showing that terms in themselves unmeaning or unintelligible are capable of receiving a known conventional meaning, the great principle on which the rule is founded is that the intention of parties, should be construed, not by vague evidence of their intentions independently of the expressions which they have thought fit to use, but by the expression themselves. … By patent ambiguity, therefore, must be understood an inherent ambiguity, which cannot be removed, either by the ordinary rules of legal construction or by the application of extrinsic and explanatory evidence, showing that expressions, prima facie, unintelligible, are yet capable of conveying a certain and definite meaning.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

“Latent Ambiguity”

On the other hand, a “latent ambiguity” is described in Woodroffe and Ali’s Law of Evidence, as follows:

• “Latent ambiguity, in the more ordinary application, arises from the existence of facts external to the instrument, and the creation by these facts of a question not solved by the document itself. A latent ambiguity arises when the words of the instrument are clear, but their application to the circumstances is doubtful; here the ambiguity, being raised solely by extrinsic evidence, is allowed to be removed by the same means. In strictness of definition, such cases, as those in which peculiar usage may afford a construction to a term different from its natural one as can be seen in s 98, would be instances of latent ambiguity, since the double use of the term would leave it open to the doubt in which of its two senses it was to be taken. It is not, however, to this class of cases that reference is now made, but to those in which the ambiguity is rather that of description, either equivocal itself from the existence of two subject matter, or two persons, both falling within its terms as can be seen in s 96, or imperfect when brought to bear on any given person or thing as per ss 95 and 97.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

Read Blog:

• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule

No mention of Price in Contract, but “crucial” emails – Whether Sec. 94 Bar Applies?

Though Sec. 94 applies only when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Where no mention of the price at which coal was to be supplied, and there were three “crucial” emails, in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308, it was held as under:

• “These emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the “patent ambiguity” principle contained in section 94 of the Evidence Act, to the facts of the present case.”
• In Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308t it was held to be a latent ambiguity comes under Sec. 95 of the Evidence Act, read with proviso (6) and illustration (f) to Sec. 92; and therefore, evidence can be led to show the peculiar sense of such language. It is pointed out that this approach is reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716, where it was observed as under:
• “21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313] : (SCC p. 328, para 28)
• “28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.”” (page 727).

Irreconcilable inconsistency between two specific clauses

In case of documents like sale deeds, gift deeds, mortgage deeds also, if the apparently appearing inconsistency can be reconciled, the court will take that recourse. 

• But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter; but, in case of a Will, latter part will prevail, under Sec. 88 of the Succession Act. (Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

Interpretation of Contracts

In Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487, it is observed as under:

• ” ‘Ex praecedentibus et consequentibus optima fit inter-pretatio.’
• The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ‘ex antecedentibus et consequentibus;’ every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
• As Lord Davey said in N.E. Railway v. Hastings, [1900] A.C. 260 (267),
• “The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.”
• In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.”

In Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, it is pointed out that ‘it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes’. (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

• Contractual interpretation ought not to have been grounds for the Constitutional Court (High Court) (See: Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335; Agmatel India Private Limited v. M/S Resoursys Telecom, AIR 2022 SC 1103)

Tender – If two interpretations possible, the interpretation of the author be accepted: In Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, it is held as under:

• “The authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” . (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Tenders or Award of Contracts

In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, our Apex Court observed as under:

• “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. .. A court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
• (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;
• (ii) Whether public interest is affected.
• If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

PART V

Presumptions

Sec. 114 of the Evidence Act gives a wide discretion to the Courts to presume the existence of facts regard being had to natural course etc. Sec. 114 allows to draw adverse inference against a party who deliberately withholds better evidence. Sec. 56 to 58 lays down that facts judicially noticeable matters need not be proved. Sect. 79 and 90 deal with presumptions as to documents.

Presumption is not in itself evidence

A presumption only makes a prima facie case for a party for whose benefit it exists, and it is not in itself evidence (Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Basalingappa v. Mudibasappa – 2019(5) SCC 418).

Rebuttal: Standard of Proof – Preponderance of Probabilities

The required evidence or Standard of Proof for the ‘rebuttal of presumption’ is –

• preponderance of Probabilities 
  • See: Triyambak S.  Hegde v. Sripad, 2022-1 SCC 742;
  • Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348).

Rebuttal: Standard of Proof – ‘Probable Defence’ which ‘Creates Doubts‘

The required evidence or Standard of Proof (for rebuttal of a factual presumption) can be –

• ‘Probable Defence’ which ‘Creates Doubts‘ about the existence of a legally enforceable debt.
  • Rangappa v. Sree Mohan, 2010(11) SCC 441;
  • M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39;
  • Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35)

Rebuttal need not be positively proved to be true

Rebuttal need not be conclusively established or positively proved to be true (Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808; Basalingappa v. Mudibasappa – 2019(5) SCC 418).

• It need be reasonably probable 
  • See: Rajaram v.  Maruthachalam, AIR 2023 SC 471;
  • Basalingappa v. Mudibasappa – 2019(5) SCC 418
  • Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16;
  • Vijay v. Laxman, (2013) 3 SCC 86

Rebuttal can be by invoking another Presumption

• Not necessary for the accused to rebut (consideration) by direct evidence
• Rebuttal (of presumption) can be by invoking another presumption
  • Kundanlal v. Custodian Evacuee property, AIR 1961 SC 1316) Referred to in: Priyamvada K. v. M.  Rahufina, 2024-1 KerHC 245.
• It can be the circumstances relied upon by the complainant (M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39).
• On such a ‘shifting’, the source of money and financial capacity of complainant to make the loan can be a point for consideration, and the complainant may have to produce bank-statement to
  • See: Rajaram v.  Maruthachalam, AIR 2023 SC 471;
  • Basalingappa v. Mudibasappa, 2019-5 SCC 418).
  • K. Subramani v. K. Damodara Naidu, 2015 -1 SCC 99.
• M.S. Narayana Menon v. State of Kerala 2006(6) SCC 39, SB Sinha, J.).
• See: Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal,  1999-3 SCC 35;

Circumstantial Evidence

Hanumant Govind Nargundkar v. State of MP, AIR 1952 SC 343: 1953 Cri LJ 129 is the leading decision on circumstantial evidence. It is held-

• “In cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] 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 as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.”
• It is followed in succeeding decisions. See:
• Munikrishna v. State, 2022-13 SCR 415, 2023 CRLJ 673,
• Dakkata Balaram Reddy v. State of Andhra Pradesh, 2023-4 SCR 887, 2023-6 SCALE 81
• Venkatesh v. State of Karnataka, 2022-4 SCR 556, 2023 CRLJ 183,
• Lochan Shrivas v. State Of Chhattisgarh, AIR 2022 SC 252,
• Dev Kanya Tiwari v. The State of UP, AIR 2018 SC 1377.

Five Golden Principles, Or Panchsheel, on Circumstantial Evidence

Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, laid down the five golden principles, or panchsheel as to proof on circumstantial evidence as under:

• .(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
• It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra(AIR  1973 SC 2622) where the following observations were made:
• “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
• (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
• (3) The circumstances should be of a conclusive nature and tendency.
• (4) They should exclude every possible hypothesis except the one to be proved, and 
• (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
• These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

Falsus In Uno, Falsus In Omnibus

Doctrine of “falsus in uno, falsus in omnibus” not applicable in India. It is a Latin maxim which means “false in one thing, false in everything.”  In Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381,  it is held that if the testimony of a witness is found to be unreliable in respect of part of his statement, then the other part of the statement can be made basis to convict the accused. That is, the entire testimony of a witness cannot be discarded or disregarded merely because a part of the testimony is found to be not true.

• State of Madhya Pradesh v. Phoolchand Rathore, 2023-5 SCR 601,
• Ravasaheb v. State of Karnataka, 2023-5 SCC 391,
• Ranvir Singh v. State Of Madhya Pradesh, 2023-1 SCR 841,
• Rishi Pal Singh v. New India Assurance Co.  Ltd., 2022 ACJ 1868,
• Mahendra Singh v. State Of MP,  AIR 2022 SC 2631,

Principles in deciding the cases

In Ravasaheb v. State of Karnataka, 2023-5 SCC 391, our Apex Court emanated following principles in deciding the cases.

Evidence of hostile witness:

• Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness’s statements cannot be termed totally unreliable;

Hostile witness

• The evidence of a hostile witness can form the basis of conviction.

Quality over quantity of witnesses

• The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. [Mrinal Das Vs. State of Tripura (2011) 9 SCC 479] 17.2 Effect of omissions, deficiencies:

Not give undue importance to omissions and discrepancies

• Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution’s case. [Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434; Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537; and Karan Singh Vs. State of Uttar Pradesh (2022) 6 SCC 52]

Reliance on single witness:

• If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. [Karunakaran Vs. State of Tamil Nadu (1976) 1 SCC 434; and Sadhuram Vs. State of Rajasthan (2003) 11 SCC 231]

Testimony of a close relative:

• A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice.

Falsus in uno, falsus in omnibus

• The principle of “falsus in uno, falsus in omnibus” is not one of general application. [Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537] 

Benefit of a doubt

• To entitle a person to the benefit of a doubt arising from a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. [Gopal Reddy Vs. State of Andhra Pradesh (1979) 1 SCC 355]

Delay in sending FIR:

• Unless serious prejudice is caused, mere delay in sending the FIR to the Magistrate would not, by itself, have a negative effect on the case of the prosecution. [[State of Rajasthan Vs. Doud Khan (2016) 2 SCC 607]
• One of the external checks against ante-dating or ante- timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. A dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR. [Mehraj Vs. State of U.P. (1994) 5 SCC 188; and Ombir Singh Vs. State of U.P. (2020) 6 SCC 378]

Last seen theory :

• On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal Singh Vs. State of Haryana (2018) 6 SCC 610; and Ram Gopal Vs. State of M.P. (2023) SCC OnLine 158]

Cases involving several accused Persons

• A three judge bench of which one of us (B.R Gavai J.) was a member, observed as under in respect of the application of Section 149, of the Indian Penal Code, 1860-
• “30. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed.” [Hari v. State of UP 2021 SCC OnLine SC 1131; Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725] While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. [Lalji Vs. State of U.P. (1989) 1 SCC 437] When a case involves large number of assailants it is not possible for the witness to describe the part played therein by each of such persons. It is not necessary for the prosecution to prove each of the members’ involvement especially regarding which or what act. [Masalti Vs. State of UP AIR 1965 SC 202]

Power of Court of Appeal:

• The Court of appeal has wide powers of appreciation of evidence in an order of acquittal as in the order of conviction, along with the rider of presumption of innocence which continues across all stages of a case. Such Court should give due importance to the judgment rendered by the Trial Court. [Atley Vs. State of UP AIR 1955 SC 807]
• Referring to Gurudutt Pathak Vs. State of U.P. [(2021) 6 SCC 116] the judgment in Geeta Devi Vs. State of U.P. [2022 SCC OnLine 57], this Court appreciated the law on this aspect and then observed that the High Court, being the First Appellate Court must discuss/re-appreciate the evidence on record. Failure to do so is a good ground enough to remand the matter for consideration.

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• Presumptions on Registered Documents & Truth of Contents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Proof and Truth of Documents
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

When A Case Tried On Merits, It Should Not Be Reversed On Technical Grounds

Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the Supreme Court observed that when a case has been tried by a court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice.

How the First Appellate Court deals the Case

In B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, (2010) 10 SCC 551, it is observed as under:

• “The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756]”

Finding on Question of Fact – Appellate Court Will Not Interfere

The general rule followed by our courts is that the  appellate court should not interfere with the finding of the trial Judge on a pure question of fact, if the finding is not perverse (Sarju Pershad Vs Jwaleshwari Pratap, AIR 1951 SC 120; 1950 SCR 7839; Radha Prasad Vs Gajadhar Singh, AIR 1960 SC 115; Madhusudan Das Vs Smt. Narayanibai, AIR 1983 SC 114;  1983- 1 SCC 35; T.D.Gopalan v. H.R.& C.E, Madras, AIR 1972 SC 1716).

A Third Party can Prefer appeal

Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.[ AIR 1971 SC 374] it is held as under

• “It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.”

In Banarsi v. Ram Phal, AIR 2003 SC 1989, it is held –

• Sections 96 and 100 CPC do not enumerate the person who can file an appeal.
• To file an appeal the person must be one aggrieved by the decree.
• Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.
• No appeal lies against a mere finding.
• Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.

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