Evidence in Indian law/ Indian Evidence Act
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Contents |
Call detail records
Not sufficient to locate person: HC
Saibal Sen, February 27, 2023: The Times of India
Kolkata : The Calcutta High Court has said an investigating officer’s opinion on people’s location based on call detail records (CDR) “is mere speculation of a lay person”.
Adivision bench said that an investigating officer “by no stretch of imagination can be treated to be an expert” to explain the range and other operational factors of the cell towers and opine on people’s location. “To interpret the cell IDs and identify the actual geographic coordinates of the cell tower, examination of acompetent person from the end of the service provider is necessary to identify precise geographical coordinates of the tower,” the bench said.
The HC was hearing a case in which a 22-year-old girl went missing in 2012 from her Hooghly home. Two days later, her body was found inNadia, with injury marks and tattered garments. Cops zeroed in on a mason, engaged by the victim’s family for work in their home, with whom the victim reportedly fled. A Serampore trial court in 2017 convicted the mason for rape, murder and destruction of evidence and sentenced him to a life behind bars. He appealed to the HC.
In this case, the cops primarily used the CDRs and SDRs (subscriber detail records) to trace the location where the accused and the victim “were last seen together”.
The HC said, “Cell tower and cell sector information are coded in the CDRs as cell ID. Cell ID in the CDRs denotes a unique number used to identify a BTS (base transceiver stations, or cell towers); or a sector of a BTS from which the mobile phone receives or sends signals. It contains a code and not recognisable geographic coordinates. ” The HC said, “Service providers maintain records containing the geographical location and orientation of all cell towers that is BTS in their network. To interpret the cell IDs and identify the actual geographic coordinates of the cell tower, examination of a competent person from the end of the service provider is necessary to identify precise geographical coordinates of the tower. ”
The accused was then acquitted by the HC.
Confessions
Confession to NDPS policemen barred as evidence: SC
Swati Deshpande, October 29, 2020: The Times of India
Confession to NDPS cops barred as evidence: SC
MUMBAI: In a landmark ruling that spread some cheer among defence lawyers, the Supreme Court on Thursday held that ‘confessional statements’ made before an investigating officer of an agency other than the police force are barred from being used as evidence to convict an accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
A majority 2:1 decision of Justices Rohinton Fali Nariman and Navin Sinha (Justice Indira Banerjee dissented) held that officers invested with powers under the NDPS Act to record statements are ‘police officers’ under provisions of Section 25 of the Evidence Act that do not attach any evidentiary value to statements made before cops. “As a result, any confessional statement made to them would be barred under the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act,’’ said the bench while deciding a bunch of appeals — some of them pending for over a decade against convictions in drugs cases.
The judgment by Justice Nariman ruled, “A statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the Act.’’ It said that an argument to distinguish police officers who belong to the police force from officers of the Narcotics Department “has no legs to stand on’’. It analysed the law and definition of ‘police officers’ to conclude that “the expression ‘police officer’ does not only mean a police officer who belongs to the State police force, but includes officers from other departments as well, such as the excise department, who are otherwise invested with all powers of investigation’’.
The court importantly said, “Further, if the distinction between a police officer as narrowly defined and the officers of the Narcotics Control Bureau is something that is to be stressed, then any interpretation which would whittle down the fundamental rights of an accused based solely on the designation of a particular officer, would fall foul of Article 14, as the classification between the two types of officers would have no rational relation to the object sought to be achieved by the statute in question, which is the prevention and detection of crime.’’
The judgment in effect upset two previous SC verdicts on the issue of evidentiary value of such statements under NDPS Act.
The SC judgment means that in drug cases, NCB would also now need to produce corroborating evidence and cannot rely heavily or only on a confession of an accused to nail him or her during trial. A confession shall merely be “relevant” for the purpose of proving the truth of any facts contained in such a statement but will need corroboration.
The SC essentially observed that if confessional statements made before an officer were to be treated as evidence, then it would be a direct infringement of the constitutional guarantees contained in Articles 14 (right to equality), 20(3) (right not to self-incriminate) and 21 (right to life and liberty) of the Constitution.
The apex court equated the confession given under the NDPS Act to investigating officers to those given under the repealed Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA). But the top court said confessional statements used under TADA and POTA were done with safeguards under the Acts themselves.
Advocate Taraq Sayed, who handles NDPS cases, later said, “According to the SC judgment, officers of NCB, Customs and Directorate of Revenue Intelligence (DRI) also would now be termed as ‘police officers’ when they are investigating an offence and recording statements of the accused under section 67 of the NDPS Act. While so far, statements of accused recorded, by say NCB, were treated as admissible evidence during the criminal trial, making it easy to secure convictions and were used to deny bail also at a pre-trial stage, this judgment significantly changes that position and would require the specialised agencies to prove their cases through other witnesses and recovery of drugs.’’
Advocate Satish Maneshinde, who represented Rhea Chakraborty in her bail application before the Bombay HC recently in an NCB case, said: “A large number of people have been incarcerated and punished on the basis of statements forcibly extracted by coercion and threats to innocent individuals, violating their fundamental rights in the last 35 years “Even in the case of all accused in the Sushant Singh Rajput drugs case there’s hardly any recovery and independent evidence to charge them with serious offences. They are languishing in custody on the basis of inadmissible statements.”
A large number of accused will now be able seek bail and liberty more swiftly, he added.
In her dissenting judgment, Justice Banerjee ruled that only officers empowered to exercise all the powers of a police officer including of filing a chargesheet, can be deemed a ‘police officer’ under section 25 of Evidence Act and Special NDPS Act contains no such provision to file a police report.. She also said that a five-Judge Constitutional bench ruling on this issue in Ramesh Chandra Mehta vs Collector of Customs was binding on the three-Judge bench.
“.It is obvious that no two statutes can be identical. There may be differences. If there were no differences, It would not be necessary to enact a separate statute. The question is whether there were any such differences which can logically lead to the conclusion that the law as interpreted in those judgments would not apply to the NDPS Act,’’ she said adding that in her view the differences “do not make any difference to the law laid down …and which have held the field for over fifty years.’’
The test to determine whether an officer is deemed to be a police officer within the meaning of Section25 of the Evidence Act is, whether such officer has all the powers of a police officer including the power to file a report under Section 173 of the Criminal Procedure Code (chargesheet), she said holding that the 50 year old view that a statutory power to file a chargesheet is an essential ingredient of power of a ‘police officer’ cannot be displaced.
Voluntary extrajudicial confession is not weak evidence: SC
Dhananjay Mahapatra, Oct 15, 2022: The Times of India
New Delhi : The Supreme Court has thrown light on a grey area concerning evidentiary value of extra-judicial confession in a criminal case by ruling that though this requires corroboration like any other evidence gathered by investigating agency, no court can start with a presumption that it is a weak piece of evidence.
Acquitting a man of murder charges, a bench of Chief Justice UU Lalit and JB Pardiwala said, “An extra judicial confession, if voluntary and true and made in a fit state ofmind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. ”
Reliability of the maker ofthe extra-judicial confession plays a vital role in the weight of the statement, the bench said. “It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence,” it said.
Document, definition of
SC: Compact disc is a document
The Times of India, Nov 25 2015
Dhananjay Mahapatra
For a decade, only prosecution enjoyed the legal privilege
Prosecution has been using electronic evidence to seek conviction of accused for a decade but for the first time, the Supreme Court on Monday permitted an accused to bring on record taped telephonic conversations to prove his innocence in a child sexual abuse case.
The ruling assumes significance as the SC reversed concurrent decisions of a trial court and the Punjab and Haryana high court which had rejected the accused's plea to produce recorded telephonic conversations between his wife and son with the girl's father to drive home that he had been framed because of a lingering property dispute with the girl's family.
The accused had moved the trial court to take on record a compact disc purportedly containing telephonic conversations between Sandeep Verma (the girl's father) and Saurabh (the accused's son) and Meena Kumari (the accused's wife). He had pleaded with the trial court to get its authenticity tested by a forensic laboratory and match it with voice samples taken from the persons featuring in the conversation.
Allowing the appeal by the accused, a bench of justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. “On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the docu ment if not admitted by the prosecution,“ it said.
The SC said the accused Shamsher Singh Verma, had claimed during his examin ation that he had been im plicated in the case due to a property dispute.
Though the SC refused to delve into the authenticity o the conversations, it said: “We are of the view that the courts below have erred in law in not allowing the application of the defence to play the com pact disc relating to conversa tion between father of the vic tim and son and wife of the appellant (accused) regarding alleged property dispute.
“In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the forensic science laboratory by the defence.“
Writing the judgment for the bench, Justice Pant said, “The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.
“Therefore, without expressing any opinion as to the final merits of the case, this appeal is allowed and the orders passed by the trial court and the HC are set aside. The application (for placing on record the compact disc and getting it examined by forensic laboratory) shall stand allowed. However, it is observed that the accusedappellant shall not be entitled to seek bail on the ground of delay of trial.“
Memory cards, pen drives are documents: SC
Dhananjay Mahapatra, Nov 30, 2019: The Times of India
In a landmark decision, the Supreme Court said electronic evidence in a criminal case should be classified as ‘document’ and the accused would be entitled to a copy of the same to prepare the defence.
“We hold that the contents of the memory card/ pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial,” a bench of Justices A M Khanwilkar and Dinesh Maheshwari said.
However, if the electronic evidence pertained to a rape case, then the trial court, keeping in mind the sensitivity of the contents, could deny the accused a copy so as to prevent violation of right to privacy and dignity of the woman, said Justice Khanwilkar, who wrote the judgment.
“In cases involving issues such as privacy of the complainant/witness or his/her identity, the court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides,” the bench said.
In the case at hand, the judicial first class magistrate in Angamaly (Kerala), and then the Kerala HC had rejected an accused’s plea for a copy of the pen drive containing a video recording of an alleged sexual assault that was annexed to the chargesheet as evidence. The prosecution case was based on forensic report which suggested that eight video recordings were retrieved from the memory card of the accused’s phone and that the video files were found to be recorded on February 17, 2017, between 10:30pm and 10:48pm.
To accord the accused a fair trial without violating the right to privacy and dignity of the woman, the SC said, “If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen drive in question, he can request the magistrate to provide him inspection in court, if necessary, even for more than once along with his lawyer and IT expert to enable him to effectively defend himself during the trial.
“If such an application is filed, the magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorised IT expert, all care must be taken that they do not carry any devices, much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen drive in any manner. Such multi-pronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.”
WhatsApp post is not document or evidence: HC
Aamir Khan2|WhatsApp forward is not evidence: Court|Jul 18 2017 : The Times of India (Delhi)
Says It's Mandatory To Produce Original Document Under Law; Slams Petitioners For Not Verifying Facts Any document shared on WhatsApp does not qualify as evidence unless the original is produced, the Delhi high court said. Justice Sanjeev Sachdeva made this observation while hearing a petition, which sought directions to three states, including Arunachal Pradesh, their police and CBI for registering an FIR in connection with an alleged suicide note of former chief minister Kalikho Pul. Pul was found dead at the CM's official residence in Itanagar on August 9 last year. The court enquired with the petitioners about their source of the information.The petitioners-National Lawyers Campaign For Judicial Transparency and others-said they had obtained the information from a WhatsApp post.
The court then pointed out, “Neither the name of the sender of the alleged WhatsApp post was stated, nor was it stated as to which of the petitioners received the WhatsApp post...The petition, making very serious allegations, has been filed merely based on a post allegedly circulated on a WhatsApp group.“ The post, which the peti tion claimed to be a suicide note, is the English translation of a document written in Hindi. The petitioners also contended that the document had been sourced from a website where it was mentioned that the suicide note had been translated from Hindi to English.
However, none of the petitioners had seen or were pri vy to the original note, the court noted. “In the present case, the petitioners, very candidly admit that they are not privy to any information.What they believe to be infor mation is a post circulated on WhatsApp platform or an alleged translation on a website. The alleged information is not claimed to be true to their knowledge,“ it observed.
In court's perspective, the petition nowhere showed how the petitioners formed a “reasonable belief“ that the alleged post or the translation could be true or had any basis.
It also noted that none of the petitioners were in a position to affirm the facts of the petition except submitting that a WhatsApp post was the basis of the petition. “The writ petition has been filed making wild allegations,“ re marked the court.
For the court, the WhatsApp post did not even qualify as a document under the Evidence Act, 1872. “Over one-and-a-half hours of judicial time of this court has been spent in hearing arguments and disposal of the petition. Since the petitioners have admittedly filed the petition without verifying or affirming any fact and without formation of even a belief that what is stated in the petition has any iota of truth behind it, the writ petition is dismissed with costs of Rs 25,000 on each of the petitioners.“
Dying declaration
May be enough for conviction: HC
Ajay Sura, February 4, 2022: The Times of India
Chandigarh: Upholding the life imprisonment of a Haryana-based accused who had set his wife on fire, the Punjab and Haryana HC held that if the court is satisfied that the dying declaration is true and voluntary, it can convict the accused without any corroboration. Even the main complainant in the case, the brother of the deceased, had turned hostile.
The division bench, comprising Justice Ajay Tewari and Justice Pankaj Jain, passed these orders while dismissing an appeal filed by Sukhbir of Palwal district. The appellant was aggrieved against the judgment passed by the Palwal sessions judge whereby he was convicted for the murder of his wife in 2014 and sentenced to life imprisonment.
The couple, who had two children, got married in 2008 but they had regular fights, and the accused used to beat her often under the influence of liquor. On March 24, 2014, the accused, who was in a drunken state, started beating his wife Ranjana. With the intervention of complainant Sonu Mohanti, who was Ranjana's brother, she was saved. Later on the same day, the accused set her on fire. She was taken to Safdarganj hospital, Delhi. During the treatment, her dying declaration was recorded in which she confirmed that her husband had an illicit relationship with his sister-inlaw and had set her on fire.
During the trial, Mohanti, who was the brother of the deceased, turned hostile. However, the trial court held the accused guilty while relying on the dying declaration of the deceased. The trial court observed that the dying declaration of the victim when “tested on the anvil of admissibility is fully admissible and no intrinsic infirmity could be pointed out in this statement”.
Eyewitnesses
More reliable than medical experts
Sep 21, 2023: The Times of India
Minor discrepancies in eyewitness accounts should not make the evidence unreliable as it cannot be expected of him to narrate a blow-by-blow account of a crime like in a screenplay, a bench of Justices Aniruddha Bose and Bela M Trivedi said. The bench reiterated that greater importance should be given to evidence of eyewitness over the opinion of a medical expert in case of any contradiction while deciding culpability of an accused.
Details
Sep 21, 2023: The Times of India
New Delhi : Minor discrepancies in eyewitness accounts should not make the evidence unreliable as it cannot be expected of him to narrate a blowby-blow account of a crime like in a screenplay, the Supreme Court said on Wednesday while reiterating that greater importance be given to evidence of eyewitness over the opinion of the medical expert while deciding culpability of an accused.
A bench of Justices Aniruddha Bose and Bela M Trivedi said the apex court in its previous verdict gave greater importance to ocular evidence over opinion of the medical expert and the same should be followed in case of any contradictions between medical evidence and eyewitness account. In this case, a man was stabbed multiple times but the trial court acquitted him by negating eyewitness account because of minor inconsistencies in the statement but the Gujarat high court convicted the accused. Upholding the HC order, the apex court said that the discrepancies are minor. “An eyewitness to a gruesome killing cannot in deposition narrate blow-by-blow account of the knife strikes inflicted on the deceased like in a screenplay. We find nothing which could establish that the eyewitness or postoccurrence witnesses were not present at the place of offence or description of the incidence was imaginary.”
“The contradiction in the number of injuries was not fatal to the prosecution case. Nor can the prosecution case altogether be negated because the fatal injuries, in the opinion of the autopsy surgeon could not have been caused by the recovered knife. Eyewitness account is consistent that the deceased was stabbed by the appellant and on this count there is no inconsistency. Just because there were more injuries than the ones narrated by the eyewitness cannot negate the prosecution version. Even if in the opinion of the autopsy surgeon there was mismatch of knife with the injuries caused, the doctor’s evidence cannot eclipse ocular evidence,” it said.
Media interview of witness, admissibility of
‘Nirbhaya accused can use TV interview’
By TIMESNEWSNETWORK, March 8, 2013
New Delhi: The Delhi high court on Thursday allowed the plea of Nirbhaya gangrape accused to use as evidence a CD containing TV interview of the victim’s male friend. Justice G P Mittal allowed the plea of accused Ram Singh and his brother Mukesh and set aside the trial court’s order by which they were not allowed to exhibit the CD as evidence. The trial court had said the CD was not an admissible piece of evidence.
Justice Mittal directed the trial court to “permit the accused to use the CD as evidence”. The accused had challenged the trial court’s order which did not allow them to “exhibit, place on record and to play the impugned CD” on the ground that this was not an admissible piece of evidence.
The high court had reserved its verdict in the case on March 5.
Earlier, Delhi Police had opposed the accused’ plea, saying the media interview of a witness is inadmissible evidence under the law. The police said the CD was prepared in violation of a CrPC provision that restrains media coverage of the trial and inquiry proceedings related to a rape case.
Section 65B
Courts don’t need certificate for e-evidence
February 5, 2018: The Times of India
With the increasing reliance on computerised records in cases, the Supreme Court has held that the requirement of a certificate to make an electronic evidence admissible is not mandatory “wherever interest of justice so justifies” it.
The SC’s clarification on Section 65B of Indian Evidence Act, which deals with admissibility of electronic evidence in court proceedings, will have an impact on criminal trials, where an increasing number of call details records, CCTV footage, mobile video recordings and CDs are being relied upon. Section 65(B) of the Act says electronic records need to be certified by a person occupying a responsible official position for being admissible as evidence in any court.
Section 112
Conflict between a conclusive proof envisaged under law and based on scientific advancement
Science beats law, leaves young girl without ‘father’
Dhananjay Mahapatra TNN
New Delhi: A 30-year-old scientific advancement clashed with and trumped the colonial era Indian Evidence Act which had held sway in the Indian judiciary for 142 years.
Nandlal was married to Lata in 1990. Husband claimed they were living separately since 1991. Wife claimed she had been living intermittently with the husband. Lata gave birth to a girl child in 1996 when their marriage was subsisting, even though they were estranged. Wife sought maintenance for her and daughter. The husband claimed since they were living separately since 1991, he could not have fathered the child. Lata claimed maintenance, only to be rebuffed by Nandlal, who insisted that he was not her father.
The wife moved a Maharashtra court, which ordered Nandlal to pay Rs 1400 — Rs 900 for the wife and Rs 500 for the child — on the basis of Section 112 of Evidence Act, which said any child born during the subsistence of a marriage would be presumed to be the legitimate offspring of the couple as long as the husband had access to the wife. The dispute reached the SC after the Bombay HC rejected Nandlal’s appeal.
The SC ordered a DNA test as desired by the man and after approval from the wife. The first test said the man was not the father, but the wife doubted it and requested a repeat test, which also threw up the same result.
This posed a legal dilemma for a bench comprising Justices CK Prasad and JS Khehar. But they overcame the conflict between science and law and the judgment said: “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.” The court was agonized but stayed firm on the side of “truth”. It said: “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.”
As a result of this ruling, DNA test to ascertain parenthood of children born out of subsisting marriages would now become a judicially acceptable exercise.
Test identification parade (TIP)
No statutory sanction for TIP
Dhananjay Mahapatra, November 4, 2020: The Times of India
No statutory sanction for test ID parade: SC
New Delhi:
The Supreme Court said test identification parade (TIP) had no statutory sanction either under the CrPC or the Indian Evidence Act, demolishing the importance investigators and prosecutors have accorded to TIP, which for decades was considered to be integral to criminal prosecution, reports Dhananjay Mahapatra.
“There is no specific provision either in the CrPC or the Evidence Act, which lends statutory authority to an identification parade,” a bench of Justices D Y Chandrachud, Indu Malhotra and Indira Banerjee said.
‘Not a right of accused to seek test ID parade’
A bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee acquitted two men who were convicted for a murder in Rohtak (Haryana) and sentenced to life imprisonment. “Identification parades belong to the stage of investigation of crime and there is no provision, which compels the probing agency to hold or confers a right on the accused to claim a TIP,” the bench said. It also ruled that, conversely, refusal of an accused to undergo TIP may not have any adverse consequence for him in trial.
Writing the judgment, Justice Chandrachud examined SC judgments of the last 50 years on TIP, starting with the 1971 judgment in Matru aka Girish Chandra vs UP and ending with Nirbhaya gangrape-cum-murder case judgment of 2017. Justice Chandrachud said, “Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.” The bench said identification of the accused in a TIP or in court was not essential in every case where guilt was established on the basis of circumstances, which lent assurance to the nature and the quality of the evidence, thus relegating the evidentiary value of TIP to that of circumstantial evidence.
Witnesses
No maximum/ minimum age to test competence of witness: HC
February 7, 2022: The Times of India
New Delhi: Delhi High Court held that the only precaution courts must take while considering the testimony of an injured child witness is to ensure that he has not been tutored.
The court further said that the Indian Evidence Act does not prescribe any minimum or maximum age to test the competence of a witness.
“Section 118 of the Evidence Act does not prescribe any minimum or maximum age to test the competence of a witness. It makes all persons eligible to testify, unless the court finds that a person is prevented from understanding the questions put to him or from giving rational answers by reason of being too young or too old, diseased, whether in mind or body… though, the evidence of a child witness is required to be evaluated more carefully and with greater circumspection since a child is susceptible to being swayed by what others tell him and may be easy prey to tutoring. The evidence of a child witness must find ‘adequate corroboration’ before it is relied upon,” a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani said.
The high court was hearing appeals filed by convicts against a trial court order that convicted four people and released one in a murder case.
The court further said that if an injury is present, and if it is proved that the assailant inflicted it, the inevitable inference is that he intended to inflict that injury.
