Tag: evidence


PCS (J) Notes: Law of Evidence, Sec 26, Confession by accused while an custody of police not to be proved against him

Listen to the Audio Clip for Easy Learning

Section 26 provides that a confession to any person which is made in the custody of a police officer cannot  be proved against him, unless it is made before a magistrate. Magistrate records confession of accused who is in police custody in accordance with section 164 CrPC.

Meaning of “Police Custody”

Police Custody is taken in a wide sense. A policeman may lay his hand on person, handcuff him or tie his waist with a rope and take with him. Again a police officer may not even touch a person bbut may keep such control over him that the person so controlled cannot go any way he likes. A police officer who  has  taken some persons may leave him away from him for a short time.

The police officer in the real sense commences from the time where the movements of the accused are restricted or controlled and may be direct or indirect under police surveillance. The crucial test is whether at  the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them. In a case, a woman was taken into custody of the police, a  friend of the woman also accompanied her. The policeman left the woman with her friend for some time. In the mean times she confessed her guilt to her friend. The confession was held to be inadmissible because the woman was regarded to be in custody of the police inspite of the fact that the policeman was absent for short time.

In the case of Union of India v. Munna, (2004) 7 Sec 178, accused made a confession before custom authorities  the SC said that the admission of accused before custom authorities is not hit bby either section 25 or section 26 of the Indian Evidence Act, 1872. The effect of such admission before aforesaid authorities is a relevant factor.


Evaluation of Evidence in Police Trap Cases

Written by – Amaresh Patel

Courts, traditionally, considered police trap as failing in two broad categories, that is, “Legitimate and “illegitimate” traps. Among bride-givers there are various types and gradations. There is the person who is compelled to give bribe on the demand of  a public servant, there is a another who voluntarily offers a bribe and after securing his ends files a complaint, who can be regarded as “particeps criminis”, and hence an accomplice. The former is a case where an un-willing person is forced an accomplice. The former is a case where a un-willing person is forced to offer a bribe under threat or coercion; the latter is a case where a person offers a bribe under to achieve his own purpose. The former bribe-giver should be treated as an “interested” witness whose evidence requires corroboration required careful scrutiny. Even in illegitimate traps, the nature of corroboration required should not be subjected to the same rigorous tests, which are generally applied to the cases of approvers. The court has to consider the degree of their complicity and then look for corroborations, if necessary, as a rule of prudence, the extent and nature of which may vary having regard to the facts and circumstances of each case.

The evidence of ‘Particeps Criminis’ must be treated like the evidence of accomplice. If the witness is not an accomplice in that sense, but is only a ‘partisan” or “interested” witness who is concerned in the success of the trap. His evidence must be tested in the same way as other interested evidence is tested, which may vary from case to case. corroboration  in such a case can be of an approver. However, as a rule of prudence, the court has to scrutinize evidence of such an interested witness carefully. Quantum of corroborative evidence required would depend on the particulars facts of the case like, the nature of the crime, the character of the trap witness etc., and other general requirements necessary to substain the case. whether corroboration is necessary, and if so, to what extent and what should be in its nature differs from case to case. in a case of a  bribe , the bribe-giver and the intermediates, if any, are the only persons who can ordinarily be expected to give evidence about the payment of bribe. However, their evidence has to be scrutinised very carefully and duly appreciated in a proper manner to decide whether conviction can be based on it or not in those circumstance.[1]

In Rao Shiv Bahadur Singh v. State of Vindhya Pradesh,[2] the Supreme Court observed that the unwilling bribe-givers were only actuated with the motive of trapping the accused and hence the evidence could not be treated as evidence of accomplices. Their evidence was nevertheless the evidence of “partisan” witness.

In State of Bihar v. Basawan Singh,[3]the case arose on a ‘legitimate’ trap laid to catch a police officer, who was, in due course, convicted. The High Court in appeal held that the decision in Rao Bahadur Singh laid down an inflexible rule that in case of this nature testimony of the witness who formed the raiding party must be discarded, unless that testimony is corroborated by independent witness. The constitution bench which decided State of Bihar v. Basawan Singh proceeded to point out the distinction between a witness who is an accomplice and on who is not, and reiterated the law laid down in Rameshwar v. State of Rajasthan,[4] regarding accomplice evidence which is the same as the law laid down in King v. Baskerville, [5] namely that the judge should give some indication in his judgment that he has had the rule of cautionin mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and and show why he considers it safe to convict without corroboration in that particular case.


[1] M.O. Shamsudhin v. State of Karala, (1995) 3 SCC 351

[2] AIR 1954 SC 322

[3] AIR 1958 SC 500

[4] AIR 1952 SC 54

[5] (1916) 2 KB 658



Nitika, B.A. LL.B. LPU


1. Supreme court order on prohibiting sale of the liquor with 500 meters from the national and state highways has come as a shochker to many of the states.

2. (08-05-17) Godrej and Boyce manufacturing company ltd. Vs. DY commissioner of an income tax.

SC held that section 14A of income tax would apply to a dividend income on which tax is payble under the section 115 of the act.

3. Pawan kumar gupta Vs. BR gupta.

SC held that condonation of the delay in payments of rent can take place only when defaulting tenant sue pleads with justifiable reason.

4. SC in Samir vidya sagar Bhardwaj Vs. Nandita Samir Bhardwaj

Upheld an interim order by family court in Maharashtra, which directed a husband to remove himself from his home and not to visit there until the divorce petition under challenge is finally decided.

5. SC court on Monday(03-07-17)

Issued notice to the centre on PIL seeking complete ban on the practice of female genital multilation or khatra, and demanding that it be declared as a contempt for the wilfull disobedience of SC’s order. The bench has directed him to personally appear before the court on july 10 to declare the sentence.

6. Heera lal Vs. State of Rajasthan.

In this, it held that in case of the sucide of wife, acquitted of the relatives or husband under section 498A of IPC will bar prosecution to use the presumption available under section 113A of evidence Act prove abetment to suicide under section 306 IPC.

7. Dayal singh and ors. Vs. State of Uttranchal.

It involves 3 main Important issues:

  • Where acts of omission and commission are committed by the investigating agency or other significant witness instrumental in proving the offence, what approach, in the appreciation of evidence, should be adopted.
  • Depending upon the answer to the above, what direction should be issued by the courts of competent jurisdiction
  • Whenever there is some conflict in eyes witness version and the medical evidence what effect will it have on the case of prosecution.

In this, it is held that where there is an inconsistency with the medical evidence (post martom) and an eye witness, the reliable testimony of an eye witness shall prevail.

8. (23-03-17) Ram krishan Fauji Vs. State of Haryana and ors.

It is held that an intra-court appeal cannot be filed before the devision bench of the High Court if a single bench judge has passed the order in a court of the criminal case.

9.(02-01-17) Abhiram singh Vs. C.D commachen(DEAD) by LRS and ors. New Delhi.

Seeking votes on the ground of religion is an unconstitutional. Hon’ble SC ban on seeking votes over religion, race or caste, community or language would not be allowed to play any role in the eclectoral process. Section 123(3) of the Representation of the people Act defines as “corrupt practice” appeals made by a candidate or his agents to the voting for any person on the ground of his religion, race, caste, community or language. The constitution forbids state from the mixing religion with the  politics,” ruled a seven judge constitution bench headed by the cheif justice T.S cheif justice thakur, judges S.A Bobde, Adarsh kumar Goel and L Nagesware Rao and Madam B. Lokur formed the majority opinion. Three judges Adarsh kumar Goel, U.U  Lalit and D.Y Chandrachud argued againt it maintaining this was the prerogative of parliament.

10. Landmark judgement of the Supreme Court of an India conflicted VK sarikala , Ilavarasi and Sudha-Karan in the disproportionate assets case.

11. Landmark judgement on RIGHT TO PRIVACY by the Supreme Court of India in the case of Justice K.S Puttaswamy and Anr. Vs Union of India and Ors by nine bench judgement by saying the following terms:

  • The decision in MP Sharma which holds that the right to privacy is not protected by the Constitution stands over ruled.
  • The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the constitution stands over ruled.
  • The Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under 21 and as a part of the freedoms guaranteed by Part III of the Constitution of India.

At last, the right of privacy is an inherent right, be unequivocally a fundamental right embedded in part III of the constitution of India.

  1. Landmark judgement on TRIPLE TALAQ by the Supreme Court of India in the case of Shayara Bano Vs. Union of India and ors Respondents by the Cheif Justice of India namely called Jagdish Singh Khehar by saying that the correct law of Talaq as ordaind by the Holy Quran is that talaq must be for a reasonable cause. Triple Talaq is an instant and an irrevocable. In the view of different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’- triple talaq is set aside.
  1. Supreme court has directed Government that no petition shall be entertained from any medical institution / college/ society/ trust or any party for grant of letter of permission(Lop) for the academic session.
  1. Supreme Court has held that all assets in a himdu undivided family(HUF) would be presumed to be joint property belonging to all its members and a family member has to produce evidence to stake claim over any part even if it is ‘self- acquired’.
  1. Pakistani’s Supreme Court has accepted a plea to form a five judge bench to hear the review petitions of ousted Prime Minister Nawaz Sharif, his children , son-in-law and finance Minister Ishaq Dar challenging his disqualification in Panama Papers scandal.
  1. Supreme Court, while relaxing the procedure of granting divorce on ground of mutual consent, has said the period mentioned, he said that period mentioned in Section 13-B(2) of Hindu Marriage Act is not mandatory but directory, and “it will be open to court to exercise its disrcretion in the facts and circumstances of each case.



Landmark Judgments under Evidence Act, 1872

Procedure to be followed to contradict a witness u/s 145-
Bhagwan Singh v. The State of Punjab
The Court held that in order to take resort to Section 145 regarding contracting a witness, it is important to prove that the witness had denied what the statement earlier made. The denial has to be proved. If the witness admits the former statement, then no such resort can be taken.

Purpose of Sec 162
Emperor v. Aftab Mohd. Khan
The learned court explained the purpose of Section 162 of Indian Evidence Act. The aim of the provision and its proviso is to safeguard the accused against the wrongful statements made by the witnesses at the time of investigation. The Court felt that the statements made by witnesses might be under the pressure of the police officers investigating the case so it will be prejudicial for the alleged to have such statements admitted as evidence.

Power of Magistrateu/s 73-
Gulzar Khan v. State
It was held that the scope of Section 73 extends to the Court of Magistrate as well. Even before the cognizance begins, the Magistrate may ask the accused for his handwriting specimen, signatures, finger-prints, foot-prints which might be needed by the police in the course of investigation.

Admission of Secondary Evidence u/s 65-
In Ashok Dulichand v. Madahavlal Dube and another [1975(4) SCC 664]
The learned court held that secondary evidence is admissible in case when it is to show the existence, conditions and contents of a document when it appears that the original document is in the custody of the person against whom the document is sought, or is out of reach, or is not legally bound to produce such document.

Validity of Section 113-B-
Mafatlal Industries Ltd. and Ors. v. Union of India and Ors.
It was held that a mere possibility of abuse of a constitutionally valid provision by the people who are responsible for administering it, does not give a ground for holding such provision procedurally or substantively unreasonable.

Admissibility of information (Section 27)-
Kottaya v. Emperor
The court was of the opinion that the extent to which information is admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was       true and accordingly can be safely allowed to be given in evidence.

Admissibility under s. 32(5)
Subbiah Mudaliar v. Gopala Mudaliar, It was held that for a statement in a former         suit to be admissible under s. 32(5) the fact that the person who made the statement had special means of knowledge must be shown by some independent evidence, otherwise it would be arguing in a circle to hold that the document itself proves the relation and therefore shows special means of knowledge.

Admission under Section 7-
State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600]
It was held that though every confession is an admission, but every admission need not be a confession. An admission made before the police cannot be proved against the accused and cannot be considered as a confession.


Panama Papers and its evidentiary value in India

Tanay Akash, B.A. LL.B.Central University of South Bihar


“There is no compromise when it comes to corruption, you have to fight it”.

The above quote by A.K. Antony most appropriately describes the present issue of Panama papers scandal.  Panama a Central American country between North and South America has been recently in NEWS because of the leaked confidential papers relating to black money, money laundering and tax evasion. As these confidential papers of different countries were discovered in Panama, it is known to be as Panama Paper scandal. It is the most vigorously spread issue in the world scenario today, with affecting almost every country with the leakage of almost 11 million confidential documents of different countries. These papers are said to be leaked by ‘John Doe’ an anonymous character who provided these documents to ‘Bastian Obermayer’ a journalist at ‘Suddutshe Zeituang’ and later kept in the protection of International Consortium of International Journalist(ICIJ).

These documents were leaked from ‘Mossack Fonseca’ a Panama law firm which is alleged to help the Multinational Companies as well as Powerful Individuals from all over the world to get rid of their heavy tax evasions. All this machinery was well channelized and included some of the most powerful personalities from the developed as well as the developing countries.

The clever Mechanism behind the scandal

The working of ‘Mossack Fonseca’ helped HNI/MNCs to register companies in tax havens for round tripping. Suppose there is a company named ‘X’ and is having an annual tax of 100 crores if produced legally. This firm ‘Mossack Fonseca’ through its channelized ‘shell companies’, transfer these as investments in the tax haven countries where it is very easy to form such fake companies and which further returns to these MNCs as profit and the mechanism keeps rotating. This process was kept secret and fooled almost every government of the world in the matters of tax laws.

As far as taxation in India is concerned, India is on the 157th in ease of paying taxes which is the worst. As per law Companies having business in India have to pay legally Capital gains tax + Corporation Tax + Miscellaneous taxes which almost costs 50% of the total profit. The main reason behind this money laundering is to save more profits, flying away from these different taxes and taxation policies of the government. There are also fixed laws i.e. LRS (the maximum amount which a company or an individual can send abroad) and LRS for India is $250,000 but according to the leaked Panama papers this firm used the bunching of annual quota of remittances and in the name of different employees serving as puppets completed the transfers in higher amounts without coming in the eyes of the law of the land.

Supreme Court on Panama Paper and its evidentiary value

As Panama paper scandal included world’s top most leaders including ‘Vladimir Putin’ (former Russian president), Xi Jingping (President of China), Leo Messi (football player), and Benazir Bhutto (former Pakistani president). Apart from these big names famous Indian actors like ‘Amitabh Bachchan’, ‘Aishwarya Rai Bachchan’, K.P. Singh (DLF Head) and Samir Gehlot (Head India Bulls) are some names from India including almost 500 names. Alike our neighbour Pakistan where Prime Minister (Nawaz Sharif) had to resign because of this issue, the apex court in India doesn’t considers it as a proper evidence as it is not mentioned specifically about the tax laundering. As per a report published in Indian Express SC also refused the hearing of Interim plea on participatory- notes. Honourable Justice A.M. Sapre and Justice Ashok Bhushan rather told the Lawyer ‘M.L Sharma’ that the interim plea would be heard by the bench which had issued notice on his main PIL. As per finance minister ‘Mr. Arun Jaitley’ if illegal money will be found in accounts of those who are named in Panama case, then they will also be prosecuted as in the case of HSBC accounts. Thus, until it has not been proved with other subsidiary evidences of money laundry it do not have any proper evidentiary value.

Global and Indian Measures against these activities

As the whole matter is a global issue containing a span of 1977-2015, with the size of 2.6TB Data with 11,500,000 documents, including 214,488 no. of companies and 14,153 no. of clients, the whole world including international organisation got shocked by this mass scandal. At the world level Base Erosion and Profit Shifting (FATF) Concept came into being which prevented the companies from choosing low tax jurisdictions. Also to keep an eye on automatic exchange of Info measures are taken. USA passed foreign account Tax compliance act for these issues. In India, apart from Prevention of Money Laundering Act, General Anti Avoidance Rule (GAAR) came into force. An income declaration scheme from 1st July 2016 to 30th September, 2016 was also launched to declare black money after a penalty of 45% as a medium to give a last chance to the tax looters.


In a nutshell Panama paper leak is not just a simple looking scandal but alike WikiLeaks, this scandal also flashed at the world level the so called corruption and black money in a huge amount with the outcome of some powerful faces behind the white masks. There is a very famous statement that ‘once you have money and fame, the next thing you should expect is scandal and shame’. This can be true with some names present in the Panama papers as it does not contain any other subsidiary evidences that the mechanism of remittance which ‘Mossack Fonseca’ was using is directly related with the given names or someone for the laundry purpose used their name. As per the ICIJ reports the research is still going on and different agencies and investigation units are busy in finding the solution regarding this mystery of Panama papers that whether all the transactions as shown in the paper are as real as it is looking or there are some more reality to come out of these papers. 




Certain issues with evaluation of evidence a lawyer must know

  1. Decided cases are not of much use in evaluating evidence. Each case depends on its own facts. A close similarity between one case and another is not enough to warrant like treatment because a significant details may alter the entire picture. One should avoid the temptation to decide cases by matching the colour of one case against the colour of another. The board resemblance between two cases is not at all decisive.[1] A judgment is not to be read as a statute. It must be read reasonably in its entirely. The effect of the judgment must be found out from the language used and the attendant circumstances in which they had been used.[2]
  2. Observation of courts are to be read neither as Euclid’s Theorems nor as provisions of statutes and that too taken out of their context. They must be read in the context in which they appear to have been made. Disposal of cases by blindly relying on a decision is not proper because an additional fact or a different fact may make a world of difference between conclusion inn two cases. Courts should not place reliance on decisions without discussion fact situation of the case on which reliance is placed.[3]
  3. There is no hard and fast rule regarding evaluation of evidence.[4] A witness can be disbelieved regarding some accused and believed regarding the other accused.[5] Where there are large number of accused and injured, witness can get confused and evidence cannot be rejected on the mere basis of contradiction.[6] In such case, conviction of any one could be sustained only if two or more witness support the case against that person; else, benefit of doubt must go to the particular accused.[7]
  4. Victims may act differently. Reaction and resistance would depend upon a variety of circumstances.[8] If eyewitness are not courageous enough to inform police or to go to the help of the injured, who was not a relative, it cannot be inferred that they had not witnessed the occurrence or that they are giving false evidence.[9]
  5. In a given case, instinct of self-preservation can be the dominant instinct.[10]
  6. No evidence should be adjudged adversely, making any other evidence including medical evidence as the sole touchstone for the test of credibility. Evidence must be tested for its own inherent consistency and inherent probability of that version, consistency with version of other witness held to be creditworthy, consistency with undisputed facts, credit-worthiness, their performance in the witness box, their power of observation, etc. then probative value of such evidence becomes eligible to be put into scale.[11]
  7. Culpability of each accused (in case and counter case) must be determined with reference to their individual overt acts.[12]
  8. When witnesses are rustic persons, their behavioural patterns, perceptions and habits must be taken into consideration and appreciated. Approaches that are too sophisticated, based on assumptions about human conduct cannot be applied to people accustomed to ways of village, as they may not have keen sense of time.[13]
  9. Fringe variations, discrepancies in details, contradictions in narration, and embellishments in non-essential part cannot militate against veracity of the core of testimony, if there is an impress of truth and conformity to probability in substantial fabric of prosecution story.[14]
  10. Exaggeration in the prosecution’s case about the commencement of the incident may not detract from the incident that was proved by eyewitness.[15]

[1] Parasa raja Manikyala Rao v. State of Andhra Pradesh, AIR 2004 SC 132

[2] Prem Singh v. State of Haryana, AIR 2009 SC 2573

[3] Union of India v. Arulmozhi Iniarasu, AIR 2011 SC 2731

[4] Dalbir Singh v. State of Punjab, AIR 1979 SC 1384

[5] Ahmed Suleman Bhorat v. State of Gujarat, AIR 1971 SC 991

[6] Har Prasad v. State of Madhya Pradesh, AIR 1971 SC 1450

[7] Masalti v. State of UP, AIR 1965 SC 202

[8] State of UP v. Samman Dass, AIR 1972 SC 677

[9] Apren Joseph alias Current Kunjunju v. State of Kerala, AIR 1973 SC 1

[10] Sucha Singh v. State of Punjab, AIR 2003 SC 3617

[11] State of UP v. Krishna Gopal, AIR 1988 SC 2154

[12] Kewal Singh v. State of Punjab, AIR 2004 SC 72

[13] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[14] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[15] Parsuram Pandey v. State of Bihar, AIR 2004 SC 5068


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)


Electronic Records

Adv Nishant Rai, Delhi

According to Section 2(1) (t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.
Section 65B of Indian Evidence Act
It states that irrespective of the sections in the act, any electronic act  which can be printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document.
Section 2(i) defines computer as “any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”. This definition also includes the mobile phones as well. It means that SMS/WhatsApp message would be admissible under the court of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872. However, it has to fulfil four conditions mentioned in the section before it can be deemed as a document. Such conditions are a) the computer that produced it must have been used regularly at the time of production of such electronic documents; (ii) the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device; (iii) the computer should be in proper condition and must work properly at time of creation of electronic record; and, (iv) the duplicate copy must be a reproduction of the original electronic record.
Position of Indian Courts
It is now well-established by the court that SMS, MMS and e-mails are admissible. In State of Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible. It also cleared the doubt that even if there is a scope of misuse of system or failure of operating system or interpolation as to affect the accuracy of such electronic data then it is the onus on the person who is challenging such electronic data. The court said that mere theoretical and general apprehensions cannot make clear evidence inadmissible in court.
Adv.s.s.pasarkar( master of cyber law )