Relevancy, Proof & Evaluation

20
Jul

Medical evidence cannot override Direct Evidence

In a case, the medical officer deposed that the shot had been fired from a distance of about six feet. The accused contended that judging from the area of spread, the gun shots were probably fired from a distance of 36 yards which rendered the prosecution story doubtful. The Supreme Court held that the eyewitnesses had given reliable direct evidence of the crime; the identification of the assailants was not in doubt. The conviction of the accused persons was upheld.[1]

If the apparent difference between ocular evidence and medical evidence is attributable to any acceptable reason which is capable of compromising the two apparently different versions, otherwise acceptable ocular evidence should not usually be rejected.[2] In Adya Singh v. State of Bihar,[3] the statement of the eyewitness was that the deceased was hit on his back which was fired by appellant. Evidence of doctor who performed the post-mortem examination that enry wound was on the chest and exit wound was on the back. The evidence of eyewitness was supported by the doctor who issued injury certificate soon after examining the deceased. Circumstances indicated that the doctor who performed the post-mortem was helping the accused who was compounder in the a government hospital. The Supreme Court held that there really was no inconsistency between ocular evidence and medical evidence, and medical evidence of the doctor who performed the post-mortem was not giving truthful evidence for reason of interedtedness with the accused.

In Maghar Singh v. State of Punjab,[4] the medical officer stated that the injuries found on the body of the deceased could be the result of either two shots or even more than two shots, but the evidence of eyewitness clearly showed that there were two shots. The Supreme Court held that there was no inconsistency between the medical witness and the ocular evidence and the inconsistency deposed by the medical officer was merely a probability and it was not fatal to the prosecution case.

Thus, if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence.[5]

[1] Karnail Singh v. State of Punjab, AIR 1971 SC 2119

[2] Dason v. State of Kerala, 1987 CrLJ 180, 185 (Ker) (DB)

[3] (1998) 6 SCC 439

[4] (1987) 6 SCC 642

[5] Punjab Singh v. State of Haryana, 1984 Cr LJ 921 (SC)

11
Jul

What is ‘Best Evidence’ and how it can be proved in Court?

The main principle of the Law of Evidence is the principle of ‘Best Evidence’, which rejects hearsay evidence. “At common law the best evidence rule sought to reduce the hazard of invention and inaccuracy by requiring a party to adduce the best evidence on hand of the facts in issue having regard to the nature of the case.”[1] The best evidence rule is a common law rule of evidence, traced back at least as far as the 18th century. In the popular case of Omychund v. Barker[2] Lord Harwicke stated thus;

“The Judges and sages of the law have laid it down that there is but one general rule of evidence. the best that the nature of the case will allow.”

The phrase “hearsay evidence” is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied on, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed. A statement oral or written, made otherwise than by a witness in giving evidence and a statement contained in a book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceeding in inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes the evidence of some better testimony, which ought to be offered in a particular case, is not the only ground for its exclusion. It’s tendency to protract legal proceedings to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a judge about the existence of a fact, and the fraud, which may be practised with impunity under its cover, combine to support the rule of exclusion. The person giving hearsay evidence does not feel any sense of responsibility. Every witness must give his testimony under such circumstances, as expose him to all penalties of falsehood.  Truth is diluted and diminished with each repetition. If permitted hearsay evidence, gives ample scope for playing fraud. It would be attaching importance to rumour flying from one foul lip to another.[3]

[1] Declan McGrath, Evidence, Thomson Dublin, Ireland, Reprinted 2006

[2] Omychhund v. Barker, (1745) 1 Atk 21 (49)

[3] KKalyan Kumar Gogoi v. Ashutosh Agnihotri, AIR 2011 SC 760

25
Feb

How to check whether the witness is speaking truth?

To judge the witness is speaking truth or not is not an easy task. The testimony of a witness depends upon several factors such as power of observation and memory of the witness, her/his motive etc. cross-examination is a good test, but it is not fool proof. Rule of evidence mentioned therein is not enough to solve these difficulties. Judges in such a complicated situation use their natural faculties, acquired experience and trained institution. As a lawyer you need to persuade the judge to come at the conclusion you need to draw. Persuading the judge to come at the same conclusion is not an easy task but all the game of criminal jurisprudence depends upon this talent. This is not learnt from books. It comes through experience or your natural quality to persuade your case. however, reading such material may help to draw a line to work on. While the elements of subjectivity cannot be ruled out, the exercise can only be objective evaluation of all the relevant factors.

The grounds for belief or disbelief may be classified under following sub-heads;

  1. Those which affect the ability, capacity or credibility of a witness to speak the truth. It depends upon the knowledge, power of observation, power of memory and power of reproduction. Knowledge depends partly upon accuracy in observation, partly upon memory and partly on presence of mind. Power of expression depends upon a variety of circumstances.
  2. Those, which affect his will to speak truth. A man’s will to speak the truth depends upon his education, character, courage, sense of duty, his relation to the particular facts, his mood or humour for the moment etc in varying degrees.
  3. Those which arise from the nature of the statement in evidence itself and form surrounding circumstances, i.e, from the probability or improbability of the statement. Yardstick of the probabilities is to be adopted. Intrinsic worth and animus of witness is to be looked into.
  4. The evidence of official witness and experts could always be tested with reference to available scientific material. Even evidence of eyewitness and other lay witness could be so tested if the scientific material available is of a reliable nature.

Read: Legal right of the person at the time of arrest

An example of viewing evidence from the common sense point of view is in the case of Surinder Singh v. State of Uttar Pradesh [AIR 2003 SC 3811]. In this case eyewitness stated that three accused assaulted the victim from different sides. Medical evidence was that all injuries were on one side of the body. The court held that since the witness were in shock, it cannot be said that medical evidence totally improbabilies ocular evidence. It is possible that the victim was also moving, turning and twisting to avoid the blows. There can be prosecution case with cast iron perfection in all respects. It is obligatory for the court to analyze, sift and asses the evidence on record with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny, adopting apt objective and reasonable standard for appreciation of the same without being obsessed by an air of total and assaulters, it would not be possible for witness to attribute specific injury individually to each accused. If they state so, their evidence would be criticized as highly improbable and tutored. The golden rule is not to weigh such testimony in golden scales, but to view it from cogent standards that lend assurance about its truthfulness.

24
Feb

Separating grain from the chaff in Criminal Jurisprudence

H.C. Underhill writes in his Book “A Treatise on the Law of Criminal Evidence” that the judges shall determine the weight to be given to the testimony of witness by their demeanour in the stand, their interest in the case, the probability and improbability of their testimony, its corroboration, the facts bearing on their credibility, their intelligence and knowledge and not the mere number of the witness. Conflicting evidence should be reconciled by the jury, if possible, and, if they cannot reconcile it, they may base their verdict on that part of the testimony which they consider worthy of credit and reject that which they deem to be unworthy of belief. In consistencies and contradictions in the testimony of a witness do not make it inherently improbable. The jury cannot arbitrarily reject the evidence but the testimony of one witness or any part of his testimony as against a great number of witness. They may disregard the testimony of an un-impeached witness and they are not bound to believe un-contradicted evidence which is incredible.

The Courts in India do not follow the maxim “Falsus in Uno in Omnibus” which means false in one, false in all.

The Court weigh the evidence carefully in each case and not adopt any arbitrary formula or yardstick in meaning its worth or worthlessness. In State of Punjab v. Harisingh [AIR 1974 SC 1168] and S.G.P. Committee v. M.P. Dass Chela [AIR 1998 SC 1978] the Supreme Court has held that the maxim ‘Falsus in Uno Falsus in Omnibus” is not acted upon by Indian Courts.

In Uga Ahir v. State of Bihar [AIR 1965 SC 277], the Supreme Court observed that the maxim is neither a sound rule of law nor a rule of practice. It may be difficult to come across a witness whose evidence does not contain a grain of untruth or at any rate, exaggeration, embroidery or embellishment. It is the duty of the court to scrutinize the evidence carefully and separate the grain from the chaff. But the Court cannot selectively pick and choose and reconstruct a story of its own. if  apart of evidence of a witness is found unreliable, the rest of his evidence must be scrutinize with caution and care. If the substratum of the prosecution care remains unaffected and remaining part of the evidence is trustworthy, the prosecution case should be accepted to the extent it is considered safe and trustworthy. The court must disengage truth from falsehood and accept what it finds to be true. If truth and false are so intermingle to make it impossible to separate them, the entire evidence may be rejected. The court can also reject one part of the evidence and accept other part based on trustworthiness of the evidence. the counsel shall in attempt to prove his case beyond reasonable doubt shall never forget to co0llect some core evidence on which makes the chain of truth so clear that it would be prudent to draw a conclusion based on those evidences.

The grain must be separated from the chaff in the light of evidence, surrounding circumstances and probabilities. If the grain cannot be separated from the chaff, the entire evidence of the witness must be thrown away. However, the court has full discretion to believe or throw away the evidences, and therefore it is the responsibility of the prosecution to introduce trustworthy evidences and the large number of evidences.

13
Feb

Art of deducing evidence from witness

Witnesses cannot be evaluated under one common parameter so as to deduce conclusion towards oneself as they vary based on their circumstances. It would be wrong to evaluated eye-witness in same way as that of the interested witness. The Supreme Court has ruled that the evidence of an interested witness is the kind of evidence of which the source is likely to be tainted.[1] The person concerned must have some direct interest in seeing that the accused person is somehow or other convicted because he has some animus against the accused or for some other reason,[2] while eye-witness are eyes and ears of justice. eye-witness’s account requires careful independent assessment and evaluation for its credibility, which should not be adversely prejudged, making medical, or any other evidence as sole touchstone for test of such credibility.

Evidence of eye-witness cannot be rejected merely because he was previously convicted in a criminal case and sentenced to undergo imprisonment. Before corroboration of evidence from eye-witness so as to support your case don’t forget to establish such witness as eye-witness and that can only be corroborated by other evidence or circumstances. In lack of which eye-witness may lose its credibility if it is being proved in court that the said witness is not an eye-witness. Where eye-witness to a ghastly murder early in the morning ran away from the scene, were reeling under shock and nervousness, roaming here and there, reached their respective homes only in the evening, their evidence cannot be questioned on account of their behaviour after witnessing the murder. The response and behaviour pattern of individuals in such situations differ from person to person and it cannot be said that response of every human being would be similar on such occasions.[3]

A single strong eye-witness is also importance to prove the guilt of the accused. However, the court may look for other corroborating evidences. Whether the court may seek corroboration depends upon the fact and circumstances of the case. However, the evidence of an interested witness requires careful scrutiny to discover falsehood, embellishment or exaggeration, which must be eschewed. If necessary, the court may look for appropriate reassurances before acting on the evidence.[4]

Injured witnesses are of greater importance. The testimony of injured witness is accorded a special status in law because such a witness comes with a built-in guarantee of his presence at the scene of the crime and is likely to spare his actual assailant in order to falsely implicate someone. Avery convincing evidence is required to discredit an injured witness.[5] So, if you have option between the witnesses and you have injured witness who is favouring your case, stay assure, to corroborate it to prove your case. if injured witness is on your side you have already won half of the case.

The evidences of close relative are on high doubt. However, sometimes such relationship is guarantee of truth.[6] Mere relationship does not make anyone interested. For example, wife[7], brother,[8] mother,[9] son,[10] relatives of the deceased, who are natural witnesses, are reliable if their evidence in otherwise found to be truthful.[11] The relatives of the deceased are a natural witness is not an interested witness.[12]

Don’t ever get confuse in criminal cases that respectability and veracity of evidence of the witness depends upon her/his status in life.[13] Where a mason and petty seller of saries or person from the lowest strata of society gave evidences as eye-witnesses against a few accused who came on motorcycle and attacked the victim with sickles and knives, killed him and fled away, the Supreme Court observed that their courage in coming forward to depose against the accused needs to be appreciated.[14]

The Hostile Witness not in all the circumstances is unqualified and thus disbelieved. Section 154 of Evidence Act, confers on Court a vast discretion than the term what hostility means. The court can permit cross –examination of hostile witness. The grant of permission does not amount to adjudication by the court as to the veracity of the witness.[15] The testimony of such hostile witness may not be rejected outright.[16] However, the court is slow to act on the testimony of such a witness and normally look for corroboration.[17] Corroboration is a rule of prudence for satisfying test of reliability. That part of the witness’s evidence found believable can be used for the purpose of corroborating the evidence of other witness. What you need to do if you have support from hostile witness in your favour is to stop other side to prove his evidences false. Such strong prove can be established from other circumstantial evidence.

Evidences in criminal trial to prove your case beyond reasonable doubt is vital but more than that you need to relate every evidences so gathered with the circumstances and take your evidence in the parallel line with the circumstances you want to prove. This way, you can stop other party from making your evidences appearing false and more than satisfying the defence satisfy the court of credibility of your evidence.

[1] Rameshwar s/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54: (1952) SCR : 1952 CrLJ 547

[2] Dalbir Kaur v. State of Punjab, AIR 1977 SC 472: (1976) 4 SCC 158: (1977) 1 SCR 280

[3] Abu Thakir v. State, AIR 2010 SC 2119: 2010 AIR SCW 2799 : 2010 CrLJ 2840

[4] Daya Singh v. State of Haryana, AIR 2001 SC 1188: (2001) 3 SCC 468: 2001 SCC (Cri) 553; Anil Rai v. State of Bihar, AIR 2001 SC 3173: 2001 AIR SCW 2833: (2001) 7 SCC 318; Majju v. State of Madhya Pradesh, AIR 2001 SC 2939: 2001 AIR SCW 4405: (2001) 9 SCC 449; Dhanaj Singh v. State of Punjab AIR 2004 SC 1920: 2004 AIR SCW 1609: (2004) 3 SCC 654

[5] Brahma Swaroop v. State of U.P>, AIR 2011 SC 280: AIR 2011 SC (Cri) 155; 2010 AIR SCW 6704; Bhajan Singh alias Harbbhajan Singh v. Styate of Haryana, AIR 2011 SC 2552: (2011) 3 SCC (Cri) 241: (2011) 6 SCALE 630

[6] Masalti v. State of U.P> AIR 1965 SC 202: (1965) 1 cRlj 226: (1964) 8 scr 133; State of Punjab v. Jagir Singh Baljit Singh and karam Singh,AIR 1973 SC 2407: 1973 CrLJ 1589: 1973 SCD 903

[7] Vadivelu Thevar v. State of Madras, AIR 1957 SC 614: 1957 SCJ 527: 1957 CrLJ 1000

[8] Angnoo v.  State of U.P., AIR 1971 SC 296: (1971) 2 SC Cri R 35: 1970 Crlj 285; State of Punjab v. Ramji Das, AIR 1977 SC 1085: (1977) 4 SCC 597

[9] Rameshwar s/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54: (1952) SCR 377: 1952 CrLJ 547

[10] Natthu v. State of U.P., AIR 1977 SC 2096: (1977) SCC (Cri) 571: (1977) 4 SCC 293

[11] Bikau Pandey v. State of Bihar, AIR 2004 SC 997: (2003) 12 SCC 616: 2003 AIR SCW 6624

[12] Dalbir Kaur v. State of Punjab, AIR 1977 SC 472: (1976) 4 SCC 158: (1977) 1 SCR 280; Varghese Thomas v. State of Kerala, AIR 1977 SC 701: (1976) 4 SCC 348: 1977 CrLJ 343

[13] Hazari LOal v. State (Delhi Admn.) AIR 1980 SC 873: 1980 CrLJ 564 : (1980) 2 scc 390

[14] Abuthagir v. State Rep. By Inspector of Police, AIR 2009 SC 2797: 2009 Cr LJ 3987: 2009 AIR SCW 4248

[15] Sat Paul v. Delhi Admn. AIR 1976 SC 294: (1976) 1 SCC 727: (1976) 2 SCR 11

[16] Anil Rai v. State of Bihar, AIR 2001 SC 3173: 2001 SC 951: 2006 AIR SCW 2833: (2001) 7 SCC 318

[17] Karuppana Thevar v. State of Tamil nadu, AIR 1976 SC 980: (1976) 1 SCC 31: 1976 CrLJ 768

12
Feb

Service of sniffer dog for the purpose of investigating a criminal case

To glimpse the relevancy of evidence corroborated using service of sniffer dog we have placed reliance upon the judgment pronounced in Dinesh Borthakur case[1] were all the important evidence were put into doubt but the evidence corroborated with the help of sniffer dog led to prosecution of the accused by the trial court. The mainstay of the prosecution case is the evidence who testified about the sniffer dog’s staying near the accused and the reaction of the accused was not natural as he did not exhibit the emotion or sadness despite the fact that his wife was killed. The court to draw conclusion of the evidence drawn from sniffer dog referred to the decision of apex court in Abdul Rajak Dafedar case[2] where it was held as under;

            “there was three objection which are usually advanced against reception of the evidence of dog tracking. First, since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog’s human companion must go into the box and report the dog’s evidence and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be depend on canine inference.”

Another reference was drawn from Ramesh v. State of A.P. 2001[3], where the court observed;

            “there are inherent frailties in the evidence based on sniffer or tracker dog. The responsibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.”

In lack of faculties to understand evidence corroborated from sniffer dog, it was held that while the service of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of the accused.

Read: How to prove and investigate murder in the case of death by poisoning ?

[1] Dinesh Borthakur v. State of Assam, AIR 2008 SC 2205 : 2008 AIR SCW 3301 : (2008) 5 SCC 697

[2] Abdul Rajak Murtaja Dafedar v. State of Maharastra [(1996) (2) SCC 234]

[3] Gade Lakshmi Mangaraju alias Ramesh v. State of A.P. [2001 (6) SCC 205]