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Examination of the Accused and Framing of charges

Presented by

Sri G. Gnana Suvarna Raju

Spl. Judge for SPE and ACB Cases,
cum-III Addl. District Judge,
Visakhapatnam.

One basic requirement of a fair trial in criminal jurisprudence is to give precise

information to the accused as to the accusation against him. This is vitally important to
the accused in the preparation of his defence. In all trials under the Criminal Procedure
Code the accused is informed of the accusation in the beginning itself. In case of serious
offences the Code requires that the accusations are to be formulated and reduced to
writing with great precision & clarity. This "charge" is then to be read and explained to
the accused person.

Charge serves the purpose of notice or intimation to the accused, drawn up

according to specific language of law, giving clear and unambiguous or precise notice of
the nature of accusation that the accused is called upon to meet in the course of trial.

Basic principles for framing of chrage :

Law regarding framing of charges is now well settled. It is permissible for a trial
Judge to sift and weigh the evidence for the limited purpose of finding out whether or not
prima facie case against the accused has been made out or not. The material to
determine prima facie case would depend upon the facts of each case. However it is not
expected to decide the credibility and truthfulness of the available material at the stage
of charge. The disputed defence of accused cannot be taken into consideration
at this stage. Sufficiency of material or evidence is not required for framing of
charges unless court finds that the materials are completely and absolutely
absent for the purpose of trial. It is well settled that when there is evidence
indicating strong suspicion against accused, the trial court will be justified in
framing of charge and granting an opportunity to the prosecution to bring on
record the entire evidence for the purposes of trial.

Chapter XVI relates to commencement of proceedings before the Magistrate: –

Under Section 204 the Magistrate has to issue process when there is sufficient
ground for proceeding. Under Section 207 the copies of relevant documents are to be
furnished to the accused. Then comes into picture Section 208 envisaging that a case
otherwise than police report, it appears to the Magistrate issuing process against the
accused that that offence is triable exclusively by the Court of Session. The Magistrate
shall furnish various documents to the accused which include the statements recorded
under sections 200 and 202 examined by the Magistrate, statements under Section 161
recorded by the police agency as also statements and confessions, if any, under Section
164 and the third category is referred to as “Any documents produced before the
Magistrate on which the prosecution proposes to rely”. (Ref: Sopan Namdeo Hadke vs
The State Of Maharashtra 1985 CriLJ 1642).
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Sections 207 and 209 of the Code :-

Section 209 is the next logical provision in the chronological order under which the
Magistrate can commit the accused to the Court of Session when it appears to him that
the offence is triable exclusively by the Court of Session. The construction of the
provisions of Section 207 and scope of a committal proceeding in the context of the on of
the committing Magistrate have been elaborately considered by this Court in Criminal
Appln. No. 1051 of 1980 with Criminal Appln. No. 1062 of 1980 Dr. Dattatraya Samant v.
State of Maharashtra and Arun Mahadeo Naik v. State of Maharashtra respectively
decided on August 27,1980 : reported in 1981 Cri LJ 1819 (Bom).

Section 173 of the Code :-

Section 173 gives a clear idea as to what documents are to be furnished to the
Magistrate along with the charge-sheet and the dominant part is that the police agency
has to furnish only those documents on which the prosecution proposes to rely and it is
further high-lighted that even in respect of the statement under Section 161the
documents are to be furnished vis-a-vis those witnesses whom the prosecution intends to
rely. Under Section 207 of the Code the Magistrate has to furnish copies of such
documents which are forwarded by the police agency to the Magistrate which are brought
into existence under Section 154, 161 or 164 of the Code and which in a bunch form the
subject-matter of the provisions of Section 173.

The Procedure :-

It is worth noting that in the procedure prescribed for warrant cases in Chapter XIX
there is some identical undercurrent vis-a-vis reference to the documents which are to be
considered by the learned Magistrate for the purpose of framing of the charge. In other
words, Sections 233, 235, and 240 refer to the same set of documents as flow out of the
provisions of Section 173 on whose consideration and on examining the accused if so
required and on hearing the parties the Magistrate can discharge the accused if the
charge appears to be groundless or otherwise can frame a charge if there is ground for
presuming that the accused has committed an offence. The same consideration at least
vis-a-vis the obligation of the Sessions Court would apply in the context of the
examination of the material and the documents. It is in the context of this situation that
the terminology in Sections 227 and 228 is to be examined. In other words when it is
mentioned in those provisions that the Sessions Court has to consider the record of the
case and the documents submitted therewith it is referable only to that record and
documents which is first lodged by the police to the Magistrate and then transmitted by
the Magistrate to the Court of Session forming a record of the case with the documents
accompanying the said record. In other words the documents referred to in Section 227
de hors of the word “Record” have got to be a restricted meaning referable only to those
documents which find mention in Sections 173, 207 and 209 of the Code.

Now, it is profit worth to refer to section 240 of Cr.P.C which is set out below:-

240. Framing of charge :

(1) If, upon such consideration examination, if any, and hearing, the Magistrate is
of opinion that there is ground for presuming that the accused has committed an offence
triable under this Chapter, which such Magistrate is competent to try and which, in his
opinion could be adequately punished by him, he shall frame in writing a charge against
the accused.

(2) The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty of the offence charged or claims to be tried.
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1. For the purpose of framing of a charge:-

Section 240 of the Code provides for framing of a charge if, upon consideration of
the police report and the documents sent therewith and making such examination, if any,
of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that
there is ground for presuming that the accused has committed an offence triable under
Chapter XIX, which such Magistrate is competent to try and which can be adequately
punished by him. See: Sheoraj Singh Ahlawat & Ors vs State Of U.P (Supra).

2. Judicial opinion is required :-

The judicial opinion regarding the approach to be adopted for framing of charge is
that such charges should be framed if the Court prima facie finds that there is sufficient
ground for proceeding against the accused. The Court is not required to appreciate
evidence as if to determine whether the material produced was sufficient to convict the
accused. The following passage from the decision in State of M.P. Vs. Mohanlal Soni, 2000
Cri.LJ 3504 is in this regard apposite:

“8. The crystallized judicial view is that at the stage of framing charge, the court has to
prima facie consider whether there is sufficient ground for proceeding against the
accused. The court is not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the accused.”

3. The proceedings under section 240 amount Trial:-

In V.C.Shukla Vs. State through C.B.I, AIR 1980 SC 962, the Hon’ble Apex Court
held as infra:

“…The proceedings starting with Section 238 of the Code including any discharge
or framing of charges under Section 239 or 240 amount to a trial…” See: Hardeep Singh
vs State Of Punjab & Ors (2014).

4. “nullus commodum capere potest de injuria sua propria ”:-

In Union of India & Ors. V. Major Gneral Madan Lal Yadav (Retd.), AIR 1996 SC
1340, a three-Judge Bench while dealing with the proceedings in General Court Martial
under the provisions of the Army Act, 1950, applied legal maxim “nullus commodum
capere potest de injuria sua propria” (no one can take advantage of his own wrong), and
referred to various dictionary meanings of the word ‘trial’ and came to the conclusion:

“It would, therefore, be clear that trial means act of proving or judicial examination
or determination of the issues including its own jurisdiction or authority in accordance
with law or adjudging guilt or innocence of the accused including all steps necessary
thereto. The trial commences with the performance of the first act or steps necessary or
essential to proceed with the trial.
5. Sections 228 and 240 of Cr.P.C:-

In “Common Cause”, A Registered Society thr. Its Director v. Union of India & Ors.,
AIR 1997 SC 1539, the Hon’ble Apex Court while dealing with the issue held:

“(i) In case of trials before Sessions Court the trials shall be treated to have
commenced when charges are framed under Section 228 of the Code of Criminal
Procedure, 1973 in the concerned cases.
ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon
police reports the trials shall be treated to have commenced when charges are framed
under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant
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cases by Magistrates when cases are instituted otherwise than on police report such trials
shall be treated to have commenced when charges are framed against the concerned
accused under Section 246 of the Code of Criminal Procedure, 1973.

iii) In cases of trials of summons cases by Magistrates the trials would be

considered to have commenced when the accused who appear or are brought before the
Magistrate are asked under Section 251 whether they plead guilty or have any defence to
make.” (Emphasis added)
6. The right of accused at the stage of framing charge:-
In State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam
[1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it
was held that at the time of framing of charge, what the trial court is required to, and can
consider are only the police report referred to under Section 173 of the Code and the
documents sent with it. The only right the accused has at that stage is of being heard and
nothing beyond that (emphasis supplied). See: State Of Orissa vs Debendra Nath Padhi
(2004).

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

• Section 211 & Section 212 specifies about Contents of Charge and mentioning of
particulars as to time and place of the alleged offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest

misappropriation. When the accused is charged with criminal breach of trust or dishonest
misappropriation of money or other movable property, it shall be sufficient to specify the
gross sum or, as the case may be, describe the movable property in respect of which the
offence is alleged to have been committed, and the dates between which the offence is
alleged to have been committed, without specifying particular items or exact dates. It is
obvious that the relaxation given by the above rule is applicable only in case of criminal
breach of trust or dishonest misappropriation and not in case of any other offence like
theft, falsification of accounts under Section 477-A of the IPC, cheating etc.

This rule is intended to cover cases of persons who showed a deficiency in the accounts
with which they were entrusted but who could not be shown to have misappropriated this
or that specific sum.

• Section 213 talks about; when manner of committing offence must be stated:

When the nature of the case is such that the particulars mentioned in sections 211
and 212 do not give the accused sufficient notice of the matter with which he is charged,
the charge shall also contain such particulars of the manner is which the alleged offence
was committed as will be sufficient for that purpose.

• Section 214 gives a rule for interpreting the words used in the charge: It provides
that in every charge words used in describing an offence shall be deemed to have
been used in the sense attached to them respectively by the law under which such
offence is punishable.

Basic Procedure regarding charge & its trial:

The initial requirement of a fair trial in criminal cases is a precise statement of the
accusation. The code seeks to secure this requirement, first, by laying down in Sections
211 to 214 of CrPC as to what a charge should contain; next, stipulating in Section 218 of
CrPC that for every distinct offence there should be a separate charge; and lastly, by
laying down in the same section that each charge should be tried separately, so that
what is sought to be achieved by the first two rules is not nullified by a joinder of
numerous & unconnected charges.
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Section 218 reads as Separate charges for distinct offences:

The object of section 218 is to save the accused from being embarrassed in his
defence if distinct offences are lumped together in one charge or in separate charges &
are tried together. Another reason is that the mind of the court might be prejudiced
against the prisoner if he were tried in one trial upon different charges resting on
different evidence. It might be difficult for the court trying him on one of the charges not
to be influenced by the evidence against him on the other charges. The strict observance
of Section 218(1) may lead to multiplicity of trials, therefore exceptions, in suitable cases,
have been provided by Section 218(2) in Sections 219,220,221 & 223. The effects of non-
compliance with provisions regarding charge would be considered later. It would however
be useful to allude to the decision of the Supreme Court in context of non-compliance
with Section 218. In every case, in which a departure from the requirements of Section
218 has occurred, the question before the courts is, whether the omission to frame the
required charge has or has not in fact occasioned a failure of justice by prejudicing the
accused in his defence, & whether he has thus been deprived of a fair trial.

Power of Court to order separate trial in cases where joinder of charges or of

offenders is permissible
The basic rule regarding charge is that for every distinct offence there shall be a
separate charge & for every such charge there shall be separate trial. The only
exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC. Therefore
separate trial is the rule and the joint trial is an exception. The sections containing the
exceptions are only enabling provisions. A court has got the discretion to order a
separate trial even though the case is covered by one of the exceptions enabling a joint
trial. A joint trial of a very large number of charges is very much to be deprecated even
though it is not prohibited by law. A separate trial is always desirable whenever there is
risk of prejudice to the accused in a joint trial. The Supreme Court has taken the view that
it is the option of the court whether to resort to Section 219,220 & 223 of the Code or
whether to act as laid down in Section 218 and that the accused has no right to claim
joinder of charges or of offenders.

Applicability of provisions relating to joinder of charges to cases where no

charge is framed
As will be seen later, in all summons cases though it is necessary to state to the
accused the particulars of the offence of which he is charged, it is not necessary to frame
a formal charge. In such cases a question may arise whether the provisions relating to
joinder of charges & of offenders are applicable to such proceedings. The Code does not
make any express provision in this regard. However the courts have taken the view that
these provisions are equally applicable in summons cases also.

Amendment/Alteration of charge:
According to Section 216 (1) of CrPC, any court may alter or add to any charge at
any time before judgment is pronounced. The section invests a comprehensive power to
remedy the defects in the framing or non-framing of a charge, whether discovered at the
initial stage of the trial or at any subsequent stage prior to the judgment.

The code gives ample power to the courts to alter or amend a charge whether by
the trial court or by the Appellate Court provided that the accused has not to face a
charge for a new offence or is not prejudiced either by keeping him in the dark about that
charge or in not giving a full opportunity of meeting it & putting forward any defence
open to him, on the charge finally preferred against him. The court has a very wide power
to alter the charge; however, the court is to act judiciously and to exercise the discretion
wisely. It should not alter the charge to the prejudice of the accused person.
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Withdrawal of remaining charges on conviction on one of several charges:

Section 224 of CrPC states that when a charge containing more heads than one is
framed against the same person, and when a conviction has been had on one or more of
them, the complainant, or the officer conducting the prosecution, may, with the consent,
of the Court, withdraw the remaining charge or charges, or the Court of its own accord
may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall
have the effect of an acquittal on such charge or charges, unless the conviction be set
aside, in which case the said Court (subject to the order of the Court setting aside the
conviction) may proceed with the inquiry into, or trial of, the charge or charges so
withdrawn. The section is applicable where the accused in convicted of one of several
distinct charges before the other charges are tried. It is necessary that the several
charges made must be in respect of distinct offences and the section will not apply where
the several charges are made under Sections 220(3), 220(4), or Section 221.

Effects of omission to frame, or absence of, or error in charge:

Under Section 215 & 464 of CrPC object is to prevent failure of justice where there
has been only technical breach of rules not going to the root of the case as such. The two
sections read together lay down that whatever the irregularity in framing of a charge, it is
not fatal unless there is prejudiced caused to the accused 12. The object of the section is
to prevent failure of justice where there is some breach of the rules in the formulation of
the charge. However, the section also makes it clear that insignificant irregularities in
stating the particulars of the offence will not affect the trial or its outcome. In order to
decide whether the error or omission has resulted in a failure of justice the court should
have the regards to the manner in which the accused conducted his defence & to the
nature of the objection.

The object of the charge is to give an accused notice of the matter he is charged
with. If the necessary information is conveyed to him and no prejudice is caused to him
because of the charges, the accused cannot succeed by merely showing that the charges
framed were defective. Nor could a conviction recorded on charged under wrong
provisions be reversed if the accused was informed of the details of the offences
committed and thus no prejudice was caused to him 13. The mere omission to frame a
charge or a mere defect in the charge is no ground for setting aside a conviction.
Procedural laws are designed to subserve the ends of justice & not to frustrate them by
mere technicalities.

14. The Courts are not expected to conduct roving and fishing inquiry into credibility of
material at this stage. The trial court is also not required to evaluate the available
evidence on merits at this stage or to conclude on the merits of defence case at this
stage.

15. In Sonu Gupta Vs. Deepak Gupta (2015) 3 SCC 424 it has been held that sufficiency
and credibility of material need not be evaluated at the stage of charge. The Court has
held thus:-

"9. It is also well settled that cognizance is taken of the offence and not the offender.
Hence at the stage of framing of charge an individual accused may seek discharge if he
or she can show that the materials are absolutely insufficient for framing of charge
against that particular accused. But such exercise is required only at a later stage, as
indicated above and not at the stage of taking cognizance and summoning the accused
on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of
materials for the purpose of conviction is not the requirement and a prayer for discharge
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can be allowed only if the court finds that the materials are wholly insufficient for the
purpose of trial. It is also a settled proposition of law that even when there are materials
raising strong suspicion against an accused, the court will be justified in rejecting a
prayer for discharge and in granting an opportunity to the prosecution to bring on record
the entire evidence in accordance with law so that case of both the sides may be
considered appropriately on conclusion of trial."

16. The Hon'ble Apex Court in Kanti Bhadra Shah Vs. State of West Bengal 2000 SCC
(Crl.) 303 has held that whenever trial court decides to frame charges, it is not necessary
to record reasons thereof or to be discuss the evidence in detail. The Apex Court has
made following observations:

"if the trial court decides to frame a charge there is no legal requirement that he should
pass an order specifying the reasons as to why he opts to do so. Framing of charge itself
is prima facie order that the trial judge has formed the opinion, upon consideration of the
police report and other documents and after hearing both sides, that there is ground for
presuming that the accused has committed the offence concerned. If there is no legal
requirement that the trial court should write an order showing the reasons for framing a
charge, why should the already burdened trial Courts be further burdened with such an
extra work. The time has reached to adopt all possible measures to expedite the the
court procedures and to chalk out measures to avert all roadblocks causing avoidable
delays.”

17. Similarly, Hon'ble Supreme Court in State Vs. S. Bangarappa, 2001 (Criminal) 152,
expressed their unhappiness in the following words:-
"time and again this court has pointed out that at the stage of framing charge the court
should not enter upon a process of evaluating the evidence by deciding its worth or
credibility. The limited exercise during that stage is to find out whether the materials
offered by the prosecution to be adduced as evidence are sufficient for the court to
proceed further. (vide State of M.P. vs. Dr. Krishna Chandra Saksena, [1996 (11) SCC
439]”.

18. The Hon'ble Supreme Court in Supdt. & Remembrancer of Legal Affairs, West Bengal
Vs. Anil Kumar Bhunja, A.I.R. 1980 SC 52 has held that at the state of trial, the truth,
veracity and effect of the evidence which the prosecution proposes to adduce are not to
be meticulously judged. The standard of test, proof and judgment which is to be applied
finally before finding the accused guilty or otherwise, is not exactly to be applied. At this
stage, even a very strong suspicion founded upon materials before the court, which leads
him to form a presumptive opinion as the existence of the factual ingredients constituting
the offence alleged; may justify the framing of charge."
Conclusion:-
The net result of this analysis would be that under the procedural law the accused
does not get a right to invite the Court to consider any other additional material than the
one collected by the police, lodged with the Magistrate and forwarded to the Court of
Session, on which the prosecution wants to rely for the purpose of claiming a discharge.
Section 211 of the Code explains us about the contents of charge. Section 215 of the
Code deals with effect of errors in charge. Section 464 of the Code describes as to effect
of omission to frame, or absence of, or error in, charge. We refer to the dicta of the
Hon’ble Apex Court in Mohan Singh Vs. State of Bihar, the mportance of framing charge
in criminal case has clearly been explained. Similarly, V.C. Shukla v. State Through
C.B.I.,reported in (1980) Supplementary SCC 92 at page 150 and paragraph 110 is
another important ruling to know the importance of framing charge in a criminal case.
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DISPOSAL OF CRIMINAL CASES WITHOUT FULL TRIAL

Presented by

Sri G. Gnana Suvarna Raju

Spl. Judge for SPE and ACB Cases,
cum-III Addl. District Judge,
Visakhapatnam.

Normally, once the cognizance has been taken, the case proceeds and after full
trial, results in conviction, acquittal or discharge of the accused. However, there are
circumstances when it is not desirable to adopt the course of full trial. In some situations,
the further trial becomes impossible or infructuous. These circumstances and situations
when a criminal case can be disposed off without full trial are :

It is duty of court of law to conduct full fledge trial of an accused produced before it
to ascertain whether the accused is innocent or offender.

However depending upon nature of the alleged offence in the interest of justice
and also depending on the circumstance prevailing in the criminal case to give a chance
to the accused for reformation (or) to avoid abuse of law (or) to save time (or) to avoid a
protracted litigation, court may acquit or discharge the Accused in accordance with the
law. Following are the provisions that deal with disposal of case without trial.

1. Criminal proceedings barred by limitation :

THE STATUTORY PROVISIONS:

Section 467 and 468 of the Code prescribe three kinds of period of limitation
namely ; (1)for offences punishable with fine only the period is six months; (2)for offences
punishable with imprisonment not exceeding one year the period is one year and lastly
(3) for offences punishable with imprisonment exceeding one year but not exceeding
three years the period is three years. Thus only for the offences punishable with
imprisonment upto three years bar of limitation has been made applicable.

Section 468 further provides that for offences triable jointly the period of limitation
will be determined by the more and/or the most severe punishment among the above
three categories. One other aspect of Section 468 requiring attention is its opening words
which are,“Except as otherwise provided elsewhere in this Code.” These words directly
point to the provisions of section 199 (5) of the Code providing for a limitation of six
months for an offence described in Section 199(2) of the Code as also to those in Section
198(6) & (7). The provisions of Section 4(2) and 5 of the Code also will have an oblique
impact on these opening words of Section 468 of the Code.

Section 469 of the Code speaks of the commencement of the period of limitation
and specifies broadly three alternatives for this. They are (1) the date of the offence or
(2) the first date of knowledge about the commission of the offence, when it is not known
or (3) the first date of knowledge of the identity of the offender when he is not known.

Section 469(2), 470 and 471 contain methods of computation of the period of
limitation and broadly they are borrowed from the provisions of Section 4, 12, 14 and 15
of the Limitation Act, 1963 governing suits with required addition and modification
suitable to a criminal case. The provisions of Section 472 relating to continuing offence
are modelled on those of Section 22 of the Limitation Act, 1963 for continuing breach of
contract and continuing tort. Lastly, Section 473 for extension of the period of limitation
is modelled on Section 5 of the Limitation Act, 1963 suitably adopted for purpose of a
criminal case.
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LIMITATION OF PROSECUTION FOR OFFENCES UNDER LOCAL OR SPECIAL LAWS

It has already been indicated that Section 4 and 5 of the Code have to be applied
in understanding any enactment creating a bar of prosecution by reason of limitation.
Special laws in this regard may be of three categories. Some statutes like the copyright
Act, 1957 the Dowry Prohibition Act 1961, the Patent Act, 1970 the Wild Life (Protection)
Act, 1972 and the Environment and Pollution Laws etc simply create the offence and
prescribe the punishment and say nothing else. The provisions of Chapter XXXVI of the
Code will determine the limitation for prosecution in such cases. In the second category
will be statutes like the Indian Police Act 1861 the Trade Marks Act 1999, and the
Geographical Indication of Goods (Registration and Protection)Act 1999. In cases under
those Acts limitation will be governed by the period prescribed there and not under the
Code. Most importantly Section 473 of the Code also will not be applicable and as such
there will not be any scope for extension of period of limitation. In the third category will
be statutes like the Negotiable Instruments Act 1881 where the special law not only
creates the offence prescribes the period of limitation but also prescribes special
provision for extension of limitation. In such cases also the provisions of the Code will not
apply. Though the Child Marriage Restraint Act, 1929 has been replaced by the
Prohibition of Child Marriage Act, 2006 with effect from 01.11.2007 there may still be
some statutes adopting the model in Section 198(6) of the Code. In such cases Chapter
XXXVI of the Code will not apply.

5. Key features are (1) to emphasize that limitation is for institution; (2) to remind the
Trial Courts to consider the question of limitation before taking cognizance; (3) to remind
the trial Courts about the difference between the power of extension of limitation under
Section 5 of the limitation Act and Section 473 of the Code and; (4) Lastly to hear the
affected person that is the would be accused before deciding to extend the period even if
sought to be done Suo Motu and pass a reasoned order on the matter.

2.Autrefois acquit and autrefois convict:

A person once tried and acquitted or convicted for an offence, can not be tried
again for the same offence again. Section 300 Cr.P.C. and also Article 20(2) of
Constitution of India.

300. Person once convicted or acquitted not to be tried for same offence.

(1) A person who has once been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again for the same offence, nor on the
same facts for any other offence for which a different charge from the one made against
him might have been made under sub-section (1) of section 221, or for which he might
have been convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried,with the
consent of the State Government for any distinct offence for which a separate charge
might have been made against him at the former trial under sub-section (1) of section
220.

(3) A person convicted of any offence constituted by any act causing consequences
which, together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened or were not known to the Court to have happened, at the time when
he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwit
hstanding such acquittal or conviction be subsequently charged with, and tried for, any
other offence constituted by the same acts which he may have committed if the Court by
which he was first tried was not competent to try the offence with which he is
subsequently charged.
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(5) A person discharged under section 258 shall not be tried again for the same
offence except with the consent of the Court by which he was discharged or of any other
Court to which the first-mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General
Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.

Explanation—The dismissal of a complaint, or the discharge of the accused, is not an

acquittal for the purposes of this section.

3.Disposal of complaint filed for offence under Section 138 of Negotiable

Instruments Act:

OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5451 OF 2017) M/S. METERS AND
INSTRUMENTS PRIVATE LIMITED & ANR. ...APPELLANTS VERSUS KANCHAN MEHTA
...RESPONDENT WITH CRIMINAL APPEAL NO. 1732 OF 2017 (ARISING OUT OF SPECIAL
LEAVE PETITION (CRL.) NO.5441 OF 2017) WITH CRIMINAL APPEAL NO. 1733 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5449 OF 2017) it was observed by
the Hon’ble Supreme Court that though compounding requires consent of both parties,
even in absence of such consent, the Court, in the interests of justice, on being satisfied
that the complainant has been duly compensated, can in its discretion close the
proceedings and discharge the accused. Where the cheque amount with interest and cost
as assessed by the Court is paid by a specified date, the Court is entitled to close the
proceedings in exercise of its powers under Section 143 of the Act read with Section 258
Cr.P.C.

In every complaint under Section 138 of the Act, it may be desirable that the
complainant gives his bank account number and if possible e-mail ID of the accused. If
e-mail ID is available with the Bank where the accused has an account, such Bank, on
being required, should furnish such e-mail ID to the payee of the cheque. In every
summons, issued to the accused, it may be indicated that if the accused deposits the
specified amount, which should be assessed by the Court having regard to the cheque
amount and interest/cost, by a specified date, the accused need not appear unless
required and proceedings may be closed subject to any valid objection of the
complainant.

Hon’ble Supreme Court in Alavi Haji Vs. Palapetti Muhammed reported in AIR 2007
SC 1705, it was held that drawer/accused who claims that he did not receive the no tice
sent by post, can, within 15 days of receipt of summons from the court in respect of the
complaint under Section 138 of the Negotiable Instruments Act, make payment of the
cheque amount ans submit to the court that he had made payment within 15 days of
receipt of summons, in such the complaint is liable to be rejected.

4.Discharge of Accused:

When the magistrate considers the charge against the Accused is groundless, after
recording reasons the accused can be discharged under Section 239 of Criminal
Procedure Code.

239. When accused shall be discharged-

If, upon considering the police report and the documents sent with it under section
173 and making such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so doing.
 4

5.Conditional pardon to an accomplice:

The criminal proceedings against an accused person come to an end if he is given pardon
in accordance with the provisions of Sections 306 and 307.

306. Tender of pardon to accomplice.

(1) With a view to obtaining the evidence of any person supposed to have been
directly or indire ctly concerned in or privy to an offence to which this section applies, the
Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or
inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into
or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such
person on condition of his making a full and true disclosure of the whole of the
circumstances within his knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to—(a)any offence triable exclusively by the Court of Session
or by the Court of a Special Judge appointed under the Criminal Law Amendment Act,
1952 (46 of 1952). (b)any offence punishable with imprisonment which may extend to
seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record—(a)his
reasons for so doing; (b)whether the tender was or was not accepted by the person to
whom it was made, and shall, on application made by the accused, furnish him with a
copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)—(a)shall be
examined as a witness in the Court of the Magistrate taking cognizance of the offence
and in the subsequent trial, if any; (b)shall, unless he is already on bail, be detained in
custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and
has been examined under sub-section (4), the Magistrate taking cognizance of the
offence shall, without making any further inquiry in case.—(a)commit it for trial—(i)to the
Court of Session if the offence is triable exclusively by that Court or if the Magistrate
taking cognizance is the Chief Judicial Magistrate; (ii)to a Court of Special Judge appointed
under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable
exclusively by that Court;(b)in any other case, make over the case to the Chief Judicial
Magistrate who shall try the case himself.

307. Power to direct tender of pardon.

At any time after commitment of a case but before judgment is passed, the Court
to which the commitment is made may, with a view to obtaining at the trial the evidence
of any person supposed to have been directly or indirectly concerned in, or privy to, any
such offence, tender a pardon on the same condition to such person.

6.Absence or non-appearance of complainant:

In a warrant case which is instituted upon a complaint,and on any day fixed for
hearing of the case, if the complainant is absent and the offence may be lawfully
compounded or is not a cognizable offence, the magistrate may in his discretion at any
time before the charge has been framed, can discharge the accused. (Sec.249)In a
summons case which is instituted upon a complaint, if the complainant does not appear
on any day fixed for hearing of the case or any subsequent day, then the magistrate has
wide discretion either to acquit the accused or adjourn the hearing of the case or may
dispense with the attendance of the complainant and proceed with the case.

Absence of complainant-When the proceedings have been instituted upon

complaint, and on any day fixed for the hearing of the case, the complaina nt is absent,
and the offence may be lawfully compounded or is not a cognizable offence, the
Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at
any time before the charge has been framed, discharge the accused.
 5

7.Withdrawal by prosecution:

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with
the consent of the Court, at any time before the judgment is pronounced, withdraw from
the prosecution of any person either generally or in respect of an y one or more of the
offences for which the accused is tried. Such offence must be in the nature as provided
under Section.321 of the code.

Section 321: Withdrawl from prosecution. The Public Prosecutor or Assistant Public
Prosecutor in charge of a case may, with the consent of the Court at any time before the
judgment is pronounced, withdraw from the prosecution of any person either generally or
in respect of any one or more of the offences for which he is tried; and upon such
withdrawal,—

(a) If it is made before a charge has been framed, the accused shall be discharged in
respect of such offence or offences; (b)if it is made after a charge has been framed, or
when under this Code no charge is required he shall be acquitted in respect of such
offence or offences:

Provided that where such offence—(i)was against any law relating to a matter to which
the executive power of the Union extends, or (ii)was investigated by the Delhi Special
Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946),
or (iii)involved the misappropriation or destruction of, or damage to, any property
belonging to the Central Government, or (iv)was committed by a person in the service of
the Central Government while acting or purporting to act in the discharge of his official
duty, and the prosecutor in charge of the case has not been appointed by the Central
Government he shall not, unless he has been permitted by the Central Government to do
so, move the Court for its consent to withdraw from the prosecution and the Court shall,
before according consent, direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the prosecution.

8.Withdrawal by complainant:

In a trial of a summons case initiated on a private complaint, if the complainant at

any time before a final order is passed satisfies the magistrate that there are sufficient
grounds for permitting him to withdraw his complaint against the accused, then the
magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused. (Sec.257 Cr.P.C)).

In a trial of a warrant case initiated on a private complaint, the complainant has no

power to withdraw the complaint. The only provision which may have some relevance in
this connection is Section 224 of the code.

257-Withdrawal of complaint-If a complainant, at any time before a final order is passed

in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds
for permitting him to withdraw his complaint against the accused, or if there be more
than one accused, against all or any of them, the Magistrate may permit him to withdraw
the same, and shall thereupon acquit the accused against whom the complaint is so
withdrawn.

9.Compounding of offences:

Where the offences are essentially of a private nature and relatively not quite
serious, the Code considers it expedient to recognize some of them as compoundable
offences and some others as compoundable only with the permission of the court.
Section 320 of the code deals with compoundability of offence.

The offences that may lawfully be compounded are those that are mentioned in
section 320 of Criminal Procedure Code, 1973. The cursory look at Section 320 of Cr.P.C,
1973 makes it clear that it leaves uncovered large category of offences, which cannot be
compounded at all, even with the permission of the court. It may be of interest to note
 6

that whole of Indian Penal Code 1860 contains totally 511 sections that are so many
numbers of offences, but out of them, under section 320 of Cr.P.C. only 57 offences can
be compounded, some with the permission of the court, other without permission.

ix) Plea-Bargaining:

The Criminal Law (Amendment) Act, 2005 (which came into force with effect from
5th July 2006) has inserted Chapter XXI-A in the Code of Criminal Procedure, 1973 that for
the first time accords recognition to the idea of plea bargaining within the Indian Criminal
Justice System. For providing the Working details of the plea bargaining system, new
sections 265A to 265L have been introduced with a view to providing for the
qualifications for plea bargaining, the stage and procedure for making an application, the
role of Court and the parties, the guidelines for mutually satisfactory disposition. The final
disposition of the case by the court and its finality, the decoding of set-off benefit.

The prohibition against use of plea bargaining depositions in any other proceedings
and non-applicability of plea bargaining in juvenile justice proceedings, etc plea
bargaining proceeding is a new technique for simplifying the rigor of the formal system as
well as measure for the speedier disposal of cases. But this technique has immense
significance from the point of view of the accused, who is accorded an option to bargain
plea within the existing system. Thus, the rules relating to plea bargaining have special
value not only for the accused, but also for those who are responsible for operating the
system at the ground level.

10.Power of court to stop proceedings in certain cases:

In any summons case instituted otherwise than upon complaint, a magistrate of

the first class, or any other judicial magistrate with the previous sanction of the Chief
Judicial Magistrate, may stop the proceedings at any stage without pronouncing any
judgment. While stopping the proceedings the magistrate shall record reasons for doing
so.(Sec.258)

258. Power to stop proceedings in certain cases-

In any summons-case instituted otherwise than upon complaint, a Magistrate of the

first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial
Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage
without pronouncing any judgment and where such stoppage of proceedings is made
after the evidence of the principal witnesses has been recorded, pronounce a judgment of
acquittal, and in any other case release, the accused, and such release shall have the
effect of discharge.

11.Abatement of proceedings on the death of the accused :

The ultimate object of the criminal proceedings is to punish the accused on his
conviction of any offence. Therefore, the criminal proceedings abate on the death of the
accused, as their continuance thereafter will be infructuous and meaningless.This
position being self evident the Code has not made any specific provision in this regard.

Conclusion:

Above discussed are some of the provisions that are generally followed to dispose
a case without trial to mee t the ends of justice depending upon the circumstance
prevailing in the case. Disposal of a case without trial not only saves time but also in
certain cases helps in restoring harmony that cannot be achieved by conducting a full
fledge trial.
 1

DISPOSAL OF CASES WITHOUT TRIAL

By
N.Padmavathi,
II Addl. Senior Civil Judge,
Visakhapatnam

INTRODUCTORY
A trial primarily aimed at ascertaining truth has to be fair to all
concerned which includes the accused, the victims and society at large.
Denial of a fair trial is as much injustice to the accused as it is to the victim
and society. The right to get a fair trial is a basic fundamental/human right
as guaranteed under Article 21 of the Indian Constitution and as observed by
the Honourable Apex Court in Dwaraka Prasad Agarwal (D) by LR's vs
B.D. Agarwal & others1

WHAT IS MEANT BY TRIAL : DICTIONARY MEANING:-

a) The examination before a judicial tribunal of the facts put in issue in
a cause, often including issues of law as well as those of fact.
b) The determination of a person's guilt or innocence by due process of
law.

AT WHAT STAGE TRIAL ACTUALLY COMMENCES ?

As per the ratio laid down in ''Ajit Narsinha Talekar vs Smt.
Nirmala Waman Rao Kakade and others''2, ''Bhagwandas Kanhaiyalal
Bubna vs Shyam Sundar Wasudeo Bubna and Others'' 3 and ''Vinod
s/o Khimji Lodaya and another vs The chief Executive officer and
others (Civil Revision Application No.23/2009)“. The trail in a civil suit

1
2003 (6) SCC 230.
2
2010 (5) Mah . L.J. 481
3
MANU/MH/1594/2009: 2010 (1) BOM. C.R.218,
 2

commences from the date of filing of affidavits in lieu of the examination in

chief of the witness/es.
Regarding Commencement of trial in a criminal case, the
Hon'ble Apex Court of India in ''A Registered Society through its
Director vs Union of India & others4'' held

i) In case of trials before sessions court the trials shall be treated to

have commenced when cahrges are framed under Sec 228 of the Code
of Criminal Procedure, 1973 in the concerned cases.

ii) In case of trials of warrant cases by Magistrates, if the cases are

instituted upon police reports the trials shall be treated to have
commenced when charges are framed under Sec 240 of the Code of
Criminal Procedure, 1973, while in trials of warrant cases by
Magistrates when cases are instrituted otherwise than on police report
such trials shall be treated to have commnenced when charges are
framed against the concerned accused under section 246 of the Code
of Criminal Procedure 1973.

iii) In case of trials of summons cases by Magistrates the trails would

be considered to have commenced when the accused who appear or are
brought before the Magistrate are asked under Sec 251 whether
pleaded guilty or have any defence to make“. (Emphasis added).

So, basing on the preposition of law laid down in the above reported
decisions and as per the procedure prescribed in Code of Civil Procedure
1908 [CPC] and the Code of Criminal Procedure 1973, the circumstances
under which cases can be disposed of without trial are looked into:-

INSTANCES:-
1. A suit may be disposed of through rejection of the plaint on the ground
that, having regard to the pleadings contained in the plaint, the suit is
barred by law under order VII Rule 11 (d) of the Code of Civil

4
AIR 1997 SC 1539
 3

Procedure, 1908 [CPC] order 7, Rule 11 provides six grounds for rejection
of a plaint.
2. Order XII, Rule 6, which empowers a court to pronounce judgement and
decree in a suit on the basis of admissions of fact made by a party to
the suit in a pleading or otherwise,
3. A suit may also be decreed in terms of a settlement arrived at by the
parties under order 23, Rule 3
4. Summary judgement under order XIII A of the CPC

The criminal cases which can be disposed of without trial, can be broadly
classified into four (4) groups.
1. Admissions/Pleading guilty on the first examination of accused
2. Compounding of offences
3. Disposal of cases through plea Bargaining
4. Other Kinds

ADMISSIONS/PLEADING GUILTY OF OFFENCE:

The commencement of trial is enumerated in Cr.P.C under Chapters

XVIII to XXI deal with five types of trials.
The basis for conducting trial based on the quantum of senetence that
can be imposed for each offence. The quantum of sentence is to be imposed
specified in the Indian Penal Code.

Chapter XXI of the Cr.P.C., from Sec 260 Cr.P.C., to 265 Cr.P.C., deals with
summary trails

Sec 260 crpc provides with the nature of the offences which can be tried
summarily

Summary Trial (Section 260 to 265 and 326(3) of

Cr.P.C.):
The object of summary trial is to disposal of cases speedily. Procedure
prescribed for trial of summons cases should be followed (Section 262).
There is no appeal in such a trial, if a sentence of fine only not exceeing two
 4

hundred rupees has been awarded. There can be an application for revision
to the High Court.

Further as per Sec 261 Cr.P.C., the Hon'ble High Court may confer on any
Magistrate invested with the powers of a Magistrate of the second class
power to try summarily any offence which is punishable only with fine or with
impriosonment for a term not exceeding six months with or without fine,
and any abetment of or attempt to commit any such offence.

Procedure for summary trials(Sec 262 Cr.P.C.)

1. In trials under this chapter, the procedure specified in this code for
the trial of summons – case shall be followed except as herein after
mentioned.
2. No sentence of imprisonment for a term exceeding three months
shall be passed in the case of any conviction under this chapter

Chapter XX of crpc from Sec 251 to 252 deals with

trial of summons – cases by Magistrates.
Sec 251:- Substance of accusation to be stated:- When in a
summons-case the accused appears or is brought before the Magistrate, the
particulars of the offence of which he is accused shall be stated to him and
he shall be asked whether he pleads guilty or has any defence to make, but
it shall not be necessary to frame a formal charge

Sec 252:- Conviction on plea of guilty:- If the accused pleads

guilty, the Magistrate shall record the plea as nearly as possible in the words
used by the accused and may, in his discretion, convict him thereon.

Sec 253:- Conviction on plea of guilty in absence of accused in

petty cases:-
1) Where a summons has been issued under Section 206 and the
accused desires to plead guilty to the charge without appearing before
the Magistrate, he shall transmit to the Magistrate, by post or by
 5

messenger, a letter containing his plea and also the amount of fine
specified in the summons.

2) The Magistrate may, in his discretion, convict the accused in his

absence, on his plea of guilty and sentence him to pay the fine
specified in the summons, and the amount transmitted by the accused
shall be adjusted towards that fine, or where a pleader authorised by
the accused in this behalf pleads guilty on behalf of the accused, the
Magistrate shall record the plea as nearly as possible in the words used
by the pleader and may, in his discretion, convict the accused on such
plea and sentence him as aforesaid.

Sec 254 & 255 deals with procedure, when accused not convicted
on pleading guilty and he wants to be tried.

So all such summons cases and petty offences which can be tried in a
summarily way, by adopting the procedure prescribed for ''Trial of Summons
Cases can be disposed of without conducting regular trial if the accused
pleads guilty of offence on his first exmination as provided under Sec 251
Cr.P.C.''.

WHAT ARE SUMMONS CASES ?

Sec 2 (w) Cr.P.C.:- ''summons – case'' means a case relating to an

offence and not being a warrant case.

Sec 2(x) Cr.P.C.':- ''warrant case'' means a case relating to an

offence punishable with death, imprisonment for life or imprisonment for a
term exceeding two years;

In John Thomas vs Dr.K.Jagadeesan decided on 12th July 2001,

the Hon'ble Apex court held that the trial court in a summons case cannot
discharge the accused after passing over to the stage.

In Ranjit Singh vs Jugraj Singh and another dated 21.07.09, the

Hon'ble Punjab – Haryana High Court held ''When there is no cahrge, there
 6

can be no question of discharge, in summons cases, there cannot be a

question of discharge. It is either acquittal or dismissal under Sec 203
Criminal Procedure Code. The trial court therefore could have only either
passed an order of dismissal under Sec 203 or an acquittal under Sec 245 in
a summons case. It cannot pass an order of discharge in a summons case.
If it say that it discharges, the accused in law it means acquittal.

In Bhushan Kumar & Another vs State (NCT of Delhi) & Another

arising out of SCP (crl) No. 9953 of 2010, the Hon'ble Apex Court held at
para 17 that ' It is inherent in Sec 251 of the code that when an accused
appears before the trial court pursuant to summons issued under Sec 204 of
the code in a summons trial case, it is the bounden duty of the trial court to
carefully go through the allegations made in the charge sheet or complaint
and consider the evidence to come to a conclusion whether or not,
commission of an offence is disclosed and if the answer is in the affirmative,
the Magisrate shall explain the substance of the accusation to the accused
and ask him whether he pleads guilty otherwise, he is bound to discharge the
accused as per Sec 239 of the code.

Hence concluded that the petition filed before High Court under Sec
482 of Cr.P.C., was maintainble.

WARRANT CASES
A. CASES INSTITUTED ON A POLICE REPORT

Sec 238 Cr.P.C., provides that when in any warrant – case instituted
on a police report, the accused appears or its is brought before a Magistrate
at the commencement of the trial, the Magistrate shall satisfy himself that he
has complied with the provisions of Sec 207 Cr.P.C.

Supplying copies of FIR, police report/charge sheet, first information

report recorded under Sec 154 Cr.P.C. statements recorded under Sec
161(3), the confessions and statements if any recorded under Sec 164 and
other documents relevant, the extract thereof forwarded to Magistrate with
police report under Sec 173(5) Cr.P.C.
 7

Sec 239 Cr.P.C.:- When accused shall be discharged:- If, upon

considering the police report and the documents sent wit it under Section
173 and making such examination, if any, of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an
oppurtunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused, and record his
reasons for so doing

The section under the new code conatins a new provision which
requires that if a Magistrate discharges the accused at the initial stage, on
finding the charge to be groundless, he has to record his reasons for doing
so, such a provision did not appear in Cr.P.C.,1898. The words '' and record
his reasons for doing so'' were added as per recommendation made by the
Law Commissioners in 41st report. Because the order of discharge under
this section is subject to revision by the higher courts.
• In Sankaranda Nayak vs State of Orissa5, it was held that the
Magistrate is obliged to record his reasons if he decides to dscharge
the accused
The provisons of Sec 239 Cr.P.C., are applicable only to warrant cases,
criminal cases under Sec 138, Negotiable Instruments Act, for dishonour of
Cheque is a summons case. Sec 239 Cr.P.C., would not apply - Ratio
observed in Bhiwani Denim and Apparels Ltd vs M/s Bhaskar
Industries Ltd6
• RS Nayak vs A.R.Antulay7, Obligation to discharge the accused under
Sec 239 arises when the Magistrate considers the charge against the
accused to be groundless. No detailed evaluation of the materials or
meticulous consideration of the possible defences need to be
undertaken at this stage

5
2001 (1) crimes 564 (569)

6
2003 cr/J NOC 31 : (2002) 1 MPLJ 243 (MP)

7
AIR 1986 SC 2045
 8

• At the stage of framing/discharging accused, a third party has no right

to hearing held in R.Balakrishna Pillai vs State of Kerala8

• Review of order of discharge:-

An order of discgharge under this section does not amount to acquittal
as no trial has taken place and as such fresh trial can be held and for fresh
trial, cognizance can be taken on the basis of fresh materials. Where the
Magistrate had discharged some of the accused but after recording the
evidence let in by the prosecution, fresh materials were found L J against
the discharged acc used, he can take cognizance of the offence as it is not a
case of reviewing the order of discahrge passed by the Magistrate earlier. It
was held in Vishanu Murya vs State of Rajasthan9

Sec 240:- Framing of charge:-

1. If, upon such consideration, examination, if any, and hearing,
the Magistrate is of the opinion that there is ground for presuming that the
accused has committed an offence triable under this chapter, which
such Magistarte is competent to try and which in his opinion, could be
adequately punished by him, he shall frame in writing a charge
against the accused.
2. The charge shall then be read and explained to the accused, and
he shall be asked whether he pleads guilty of the offence charged or
claims to be tried

Sec 241:- Conviction on plea of guilty:- If the accused pleads guilty, the
Magistrate shall record the plea and may, in his discretion, convict him
thereon.

Sec 241 Cr.P.C., talks about the plea of guilty, after framing of the charges,
the accused is given an oppurtunity to plead guilty, and the responsibility lies
with the judge to ensure that the plea of guilt was voluntarily made. The
judjge may upon its discretion convict the accused.

8
1995 crl LJ 1244 (Ker)

9
1990 cr L J 1750 (Raj)
 9

• Noorjahan vs T.T.Moideen10 held:- Whether the court can accept

the plea of 'guilty' or 'not guilty' made by the counsel on behalf of the
accused, the court has descretion in this matter.

B. Cases Instituted otherwise than on police report:

Sec 245 Cr.P.C.,:- When accused shall be discharged

1. If upon taking all the evidence referred to in section 244, the

Magistrate considers, for reasons to be recorded, that no case against
the accused has been made out which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him.

2. Nothing in this section shall be deemed to prevent a Magistrate from

discharging the accused at any previous stage of the case if, for
reasons to be recorded by such magistrate, he considers the charge to
be groundless.

• This provision is intended only to filter frivolous private complaints and

to protect the accused from harassment. - Held in K C Radha Krishnan
Vs. Dinesh11.

• Sub section (1) enables the Magistrate to discharge an accused after

taking all the evidence produced by the prosecution. Since his order is
subject to revision, he is required to record his reasons in writing. The
Magistrate cannot pass an order of discharge until he has examined all the
witnesses of the prosecution and such an order passed only after examining
the complainant, and not all the witnesses, will be illegal. - Held in
Yeshodabai Vs. Bhaskar12.

Trial Before A Court of Session: Chapter XVIII crpc Sec

225 to 237 deals with it.

10
2000 cr L J 4264 (Ker)
11
1987 (2) crimes 1696

12
(1972) 74 BOM LR 717.
 10

Sec 226 Cr.P.C.,:- When the accused appears or is brought before the
court in pursuance of a commitment of the case under Section 209, the
prosecutor shall open his case by describing the charge brought against the
accused and stating by what evidence he proposes to proove the guilt of the
accused.

Sec 227 Cr.P.C., reads as under

If, upon consideration of the case and the documents submitted
threwith, and after hearing the submissions of the accused and the
prosecution in this behalf, the judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.

• This section read with Sec 228 is a precious safegaurd, so as to

express, pre battle protection conferred upon the accused by the
legislature - Held in Sati Kanta vs State of W.B13.

• Under Chapter XVI [Secs. 204 to 210 CR.P.C., which includes Sec 209
Cr.P.C., under which case has to be committed to court of sessions by a
Magistrate] there is no provision which empowers the Magistrate to
discharge the accused. Power of discharge can be exercised only by a
trial court and the court of the Judicial Magistrate is not the trial court
in respect of the offences exclusively triable by a court of session. Held
in Sanjay Gandhi vs Inion of India14

• In a case which is triable by a court of session, the Magistrate is not

authorised to look into the evidence collected by the police and to see
whether or not there is a triable case against the accused. Whether
the case is traible or not is the power with the sessions judge who
alone can exercise the power of discharge under this section. -
Prahlad Singh vs State of Rajasthan15

13
1977 cr L J 1644.

14
AIR 1978 SC 514

15
1990 cr L J 1688 (Raj)
 11

• For the purpose of determining whether there is sifficient ground for

proceeding against an accused the court possess a comparitively wider
discretion in the exercise of which it can determine the question
whether the material on the record, if unrebutted, is such on the basis
of which a conviction can be said reasonably to be possible. Held -
State of Karnataka vs L.Muniswamy 16

• Only prima facie case is to be seen, the strict standard of proof while
evaluating tthe material to ascertain whethet there is prima facie case
against the accused is a not to be applied. - Bipin Shantilal
Panchal V Pruthviraj17

DISCHARGE OF ACCUSED UNDER Sec 227 Cr.P.C.

The sessions judge is bound to discharge the accused in the following

cases - Held in TV Sarma V R.Meeriah18

a) Where the evidence produced is not sufficient

b) Where there is no legal ground for proceeding aganist the accused
c) Where no sanction has been obtained
d) Where the prosecution is clearly barred by limitation or
e) Where he is precluded from proceeding because of a prior
judgement of high Court

DISCHARGE NOT ACQUITTAL

The discharge of an accused under Sec 227 Cr.P.C., does not
tantamount to acquittal of an accused. - P Vishwanathan V A.K Burman19

16
AIR 1977 SC 1489

17
1999 cr L J 214 (218).

18
AIR 1980 219, 225 (FB)

19
2003 cr L J 949 (959) (cal – DB)
 12

DISCHARGE POST FRAMING OF CHARGE

Once the charge has been framed, the accused has to be put on trial
and thereafter convicted or acquitted, he cannot be discharged. Discharge
post framing of charge is not contemplated in Cr.P.C.,. - Held in

• Tapati Bag V Patipaban Ghosh20,

• State of Maharashtra V B.K.Subbarao21,

228(1) Cr.P.C.:- If, after such consideration and hearing as aforesaid, the Judge,
is of opinion that there is ground for presuming that the accused has committed
an offence which -
• (a) is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to the
Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall
try the offence in accordance with the procedure for the trial of warrant-
cases instituted on a police report;

• (b) is exclusively triable by the Court, he shall frame in writing a charge

against the accused.

Sec 229 Cr.P.C:- If the accused pleads guilty, the judge shall record the
plea and may, in his discretion, convict him thereon.
1. 'If the accused pleads guilty' – The plea of guilty only amounts to an
admission that the accused committed the acts alleged against him. It
is not an admission of guilt under any particular section of the criminal
statute - Held in Major Anand V State22
2. Unlike S.252, though 229 Cr.P.C. does not cast any obligation on
the sesions judge to record the plea of guilt of the accused, as nearly
as possible in the words used by the accused, yet prudence demands
that the court records the plea in the words used by the accused so
that the court confirming conviction and sentence may know what

20
1993 cr L J 3932 (cal)

21
1993 cr. L J 2984 (BOM)

22
, AIR 1960 J & K 139
 13

exactly the plea of accused was - State of Mizoram V

Ramengmania23,
3. Pleas of guilty should be voluntary:- A pleas of guilty cannot
support conviction unless it was volutary in a constitutional sense -
Robert J Henderson V Timothy Cr. Morgan24.
4. The court should not act upon the plea of guilty in serious cases but
should proceed to take the evidence as if the plea had been one of not
guilty and should decide the case upon the whole evidence includ
ing the accused plea. - Held in Ram Kumar V State of UP25.

II COMPOUNDING OF OFFENCES
Sec 320 (1):- The offences punishable under the sections of the Indian
Penal Code, specified in the first two columns of the table next following may
be compounded by the persons mentioned in the third column of the table.
i.e. Offences punishable under sections 298, 323, 334, 335, 341, 342, 343,
344, 346, 352, 353, 358, 379, 403, 407, 411, 414, 417, 419, 421, 422, 423,
424, 426, 427, 428, 429, 430, 447, 448, 451, 482, 483, 486, 491, 497, 498,
500, 501, 502, 504, 506, 508 IPC can be compounded by the victims of the
said offences with the accused.

Sec 320 (2):- The offenses punishable under the sections of the IPC
specified in the first two columns of the table next following may, with the
permission of the court before which any prosecution for such offence is
pending, be compounded by the person mentioned in the third coloumn of
the table:i.e. 312, 325, 337, 338, 357, 381, 406, 408, 418, 420, 494, 500,
509 IPC.

Sec 320 (3):- When an offence is compondable under this section, the
abetment of such offence or an attempt to commit such offence (when such

23
2006 cr L J 1188 (1194) DB

24
1977 Cr L J 738 (US)

25
1998 Cr L J 1267 (1270).
 14

attempt is itself an offence or where the accused is liable under Sec 34 or

149 of IPC may be componded in a like manner.

Sec 320 4(a) :- Provides for obtaining consent from minor guardian incase
victim is a minor

Sec 320 4(b) :- Provides for compounding offences by legal

representatives, if the competent person to compound the offence is dead

Sec 320 (5):- When the accused has been committed for trial or when he
has been convicted and an apeal is pending, no composition for the offence
shall be allowed without the leave of the court to which he is committed, or
as the case may be, before which the appeal is to be heard

Sec 320 (6):- A high court or court of session acting in the exercise of its
powers of revision under Section 401 may allow any person to compound
any offence which such person is competent to compound under this section.

Sec 320 (7):- No offence shall be compounded if the accused is, by reason
of a previous conviction, liable either to enhanced punishment or to a
punishment of a different kind for such offence.

Sec 320 (8):- The composition of an offence under this section shall have
the effect of an acquittal of the accused with whom the offence has been
compounded.

Sec 320 (9):- No offence shall be compounded except as provided by this

section.

1. Legislative Changes – CrPC (Ammendment) Act 2005 (25 of

2005):- In section 320 of the principal Act, in the Table under sub-section
(2)

*(a) the words ''Voluntarily causing hurt by dangerous weapons or

means'' in column 1 and the entries relating thereto in columns 2 and
3 shall be omitted;
 15

*(b) in column 3, for the word ''Ditto'', against the entryrelating to

Section 325, the words '' The person to whom the hurt is caused'' shall
be substituted

**(c) in column 1, for the words ''two hundred and fifty rupess'',
wherever they occur, the words ''two thousand rupees'' shall be
substituted.

*** This amendment has come into force w.e.f. 23-6-2006 vide
Notification No. S.O. 923(E), dated 21.06.2006

• Only the offences which are covered by Table 1 or Table 2 of the

section can be compounded and the rest of the offenses punishable under
the IPC cannot be compounded - Bankat V State of Mahasashtra26, A
case may be compunded at any time before sentence is pronounced even
whilst the Magistrate is writing the judgement - Aslam Meah (1917) 45 cal
816

• In considering the question whether permission to compound an

offence should be garnted or not, the Magistrate trying the case should
not

seek the opinion of the DSP, but should exercise his own discretion. It
is absolutely necessary in the administration of Justice that the courts
should keep the investigating authorities at arms length in reaching
their decissions on matters which they alone are called upon to decide.
- E.M.Barnett Vs. L.N.Thakkar27.

• It is not open to the Magistrate to alter the charge at the stage of

considering the application of the parties for compounding the offences . -
Held in Sridhar Pani Vs. State of Orissa 28, Policy: The policy of law as
conatined in this section is to promote friedliness between the parties so that
26
2005 cr L J 646(648) (SC)

27
(1955) Nag 888
 16

peace between them is restored . - Held in Santosh Kumar Vs. State of

M.P29.

• Sec 147 of the Negotiable Instruments Act would prevail over the
schedule including Sec 320 (6) and offence under the Act can be
compounded – Kirpalsingh Pratap Singh ori V B K Iobana 30, offence
under Sec 138 NI Act can be compounded at any stage even after the
revision has been dismissed.
• The supreme court has recommended making IPC section 324, which
relates to voluntarily causing injury, compoundable to lessen the burden on
courts
• Darapuneni Raj Kumar Vs The State of AP dated 12/09/2014 held
that the APEX court though not referred the same by referring to Sec 320
crpc read with 324 I.P.C. Permitted such compounding vide decision Avinash
Shetty V State of Karnataka31,. It is suffice there from to hold that Sec 324
IPC offence, with permission of the court can be compounded by the victim
(Injured).

• Offence under section 324 of IPC is not compoundable by virtue of

Criminal Law(Amendment) Act 2005(Act 25 of 2005) – held by division
bench of Hon‘ble Apex Court at Para 7 of its Judgment reported in
between Shankar Yadav and another vs State of Chattishgarh 32

PLEA BARGAINING: Chapter XXI – A

This chapter containing provisions as to Plea – Bargaining has been added by
the criminal law (Ammendentment Act 2005).

The disposal of criminal trials in the courts takes considerable time and that
in many cases trials do not commence for as long a period as 3 to 5 years

28
(2003) 25 OCR 447

29
1986 (2) crimes 445, 448 (MP)

30
2004 Crl.L.J. 3786(3794) (Gujarat)
31
(2006) 1 SCC (cr1) 316

32
AIR 2017 SC 3571
 17

after the accused was remitted to judicial custody. To reduce the delay in the
disposal of criminal trials and appeals as also to alleviate the suffering of
under-trial prisoners, it is proposed to introduce the concept of Plea –
Bargaining as recommended by the Law Commission of India in its 154th
report on the Code of Criminal Procedure.

Sec 265A to 265L deal with the nature of offences which can be disposed
off through Plea – Bargaining and the manner and mode in which
proceedings under Plea – Bargaining shall take place.

1. It applies only to the offences other than which the punishment of

death , or of imprisonment for life or of imprisonment for a term
exceeding seven years has been provided under the law for the time
being in force.

2. It does not apply where such offence affects the socio-economic

condition of the country or has been committed against a woman, or a
child below the age of fourteen years
3. Accused of an offence may file an application for plea bargaining in
the court in which such offence is pending for trial.

4. Court such examine accused in camera and satisfy itself that the
accused filed the appication voluntarily.

5. Court shall provide time to public prosecutor or the complainant and

as the case may be to the accused to work out a mutually
satisfcatory disposition of the case, which may include giving to
the victim by the accused the compensation and other expenses etc.

6. When a satisfactory disposition of the case has been worked out,

court shall prepare a report signed by the presiding officer and all the
persons partcipated in the meeting. If no such disposition worked out,
court shall record such observation and proceed further in accordance
with the provisions of the code, from the stage, the application under
sub sec (1) of Sec 265 B has been filed.
 18

7.Court shall award compensation to the victim in accordance with the

disposition under Sec 265D and hear the parties on quantum of the
punishment, releasing of accused on probation of good conduct
or after admonition under Sec 360 Cr.P.C.or under P.O Act

8. If minimum sentence has been provided under law, it may setence

the accused to half of such minimum punishment. If not to one-
fourth of the punishment as the case may be, for such offence.

9. Court shall deliver judgement in terms of Sec 265 E signed by PO

10. Such judgement is final and no appeal lies except special leave
petition under Art 136 and writ petition under Art 226 & 227 of the
Constitution.

11. The statements or facts stated by an accused in an application for

plea bargaining shall not be used for any other purpose except for the
purpose of this chapter.

12. Sec 428 Cr.P.C., shall appy for setting of the period of detention
undergone by accused and this chapter shall not apply to any Juvenile
or Child defined under Juvelile Justice (Care and Protection of Children)
Act. 2000

Though this concept introduced for speedy disposal of criminal cases

and to lesson the burden on criminal courts, it remains a dead letter, in
the Indian Criminal Justice System. Reasons for it are:

1. Lack of awareness amongst the accused about option of plea

bargaining
2. Due to fear of biased trial, if plea bargaining application was
rejected.
So it remained as a dark horse of the Indian Criminal Justice System which is
ailing and failing and it could prove to be a winner later.
 19

IV OTHER KINDS
The other circumstances under which, cases can be disposed of withot trial
are

1. Sec 203 Cr.P.C.:- Dismissal of Complaint:

If, after considering the statements on oath (if any) of the
complaintant and of the witnesses and the result of the enquiry or
investigation (if any) under Sec 202, the Magistrate is of the opinion that
there is no sufficient ground for proceeding, he shall dismiss the complaint,
and in every such case, he shall briefly record his reason for so doing.

2. Section 249 Cr.P.C: Under Section 249 of the Code of Criminal

Procedure, the Magistrate is empowered to discharge the accused in the
absence of the complainant, but he can do so only in case where the offence
may be lawfully compounded or it is not a cognizable Office . In no other
case, the Magistrate empoowered to discharge the accused.

3. Sec 256 crpc:- Non-aapearance or death of complainant

1) If the summons has been issued on complaint, and on the day appointed
for the appearance of the accused, or any day subsequent thereto to which
the hearing may be adjourned, the complainant does not appear, the
Magistrate shall, not withstanding anything herein before conatined, acquit
the accused, unless for some reason he thinks it proper to adjourn the
hearing of the case to some other day. Provided that where the complainant
is represented by a pleader or by the officer conductting the prosecution or
where the Magistrate is of the opinion that the personal attenadnce of the
complainant is not necessary, the Magistrate may dispense with the
attenadance and proceed with the case.
2) The provisions of sub-section (1) shall, so far as may be, apply also
to cases where the non-appearance of the compainant is due to his death.

• Chief Executive Officer, Cantonment Board, Shillong V Tenzing

Gopu lama and etc33.:- Appeal against order of acquittal passed on

33
2009 (1) ALT (crl) 16
 20

dismissal of complaint is limited to offences which are cognizable and non-

bailable in nature and not in other cases.

Sec 257: - Withdrawal of Complaint:-

By showing and satisfying about existence of sufficient grounds, compainant
can seek for permitting him to withdraw his complaint against accused. Such
withdrawal of compaint results in acquitting the accused as complaint against
him was withdrawn.

Sec 258 crpc:- Power to stop Proceedings in certain cases:-

In any summons case instituted otherwise than upon complaint, a
Magistrate of first class, may, for reasons to be recorded by him stop the
proceedings at any stage withou pronouncing any judgement.

If such stoppage of Proceedings, ordered after the evidence of Principal

Witnesses, pronounce a judgement of acquittal. In any other case, it will
have the effect of discharge

• Complaint filed under Sec 138 of Negotiable Instrument Act. Accused

dodging receipt of Notice issued by Magistrate. Closing the proceedings
under Sec 258 Cr.P.C. not justified. - Held in Integrated Finance Co V
State of Kerala34.

• Sec 256 & Sec 258 proceedings applicable only in case of summons
cases.

DOUBLE JEOPARDY
Sec 300 Cr.P.C.,:- Person once convicted or acquitted not to be
tried for same offence:-

it was even provided under Art 20 (2) of the Constitution of India. It

is a procedural defence that prevents an accused person from being tried

34
2004 (1) ALT (crl) 24 (Ker)
 21

again on the same charges and on the same facts, following a valid acquittal
or conviction.
Dismissal of a complaint, or the discharge of the accused is not an
acquittal for the purpose of this section.

It is based on the maximum Nemo debet bis vexari, which means

that a person cannot be tried a second time for an offence which is involved
in the offence with which he was previously charge.

• Accused is tried for offences under Sec 5 (2) of Prevention of

Corruption Act, 1947, and under Sec 409 I.P.C, but is acquitted under Sec
409 I.P.C., but is acquitted under S.5 (2) of the Corruption Act, he can be
convicted under Sec 409 IPC - State of M.P V Veereshwar Rao35, Where
the required sanction for the prosecution was not obtained, the whole trail is
null and void, subsequent trial of the accused after obtaining the proper
sanction is not barred.Baji Nath Prasad Tripathi vs. State of Bhopal 36

Sec 321 crpc:- The Public Prosecutor or APP, with the consent of the court,
can withdraw from the Prosecution of any person either generally or in
respect of any one.

a. If it is made before a charge has been framed, accused shall be

discharged in respect of such offence.

b. It is made after framing of charge, accused shall be acquitted in

respect of such offence

• Shenandam Paswan V State of Bihar 37,. The judicial function of

the court for granting the consent would normally mean that it has to satisfy
itself that the executive function of the Public Prosecutor has not been

35
AIR 1957 SC 592.

36
AIR 1957 SC 494

37
AIR 1987 Sc 877
 22

improperly exercised or that it not an attempt to interfere with normal course

of Justice for illegitimate purposes.

• Sec 468 crpc:-

1. No court shall take cognizance of an offence, after expiry of the
period of limitation.
2. (a) Six months, if offence is punishable with fine only

b) One year, if offence is punishable with imprisonment for a

term not exceeding one year.

c) Three years, if the offence is punishable with impriosnment for

a term exceeding one year but not exceeding three years.

• AIR 1981 SC 1054 - Object is to put a bar of limitation on

prosecutions

• Trial court not passed any order under Sec 473 regarding extention of
period of limitation. Taking cognizance of offence under Sec 406 IPC as
against accused bad in law. Impugned Order quashed. Wockardt Hospital
and Heart Institute, Bangalore V G.R. Parthasaradhi38

• CONCLUSION
The underlying object behind all the above referred provisions in
Cr.P.C.,. is to speed up case load disposition. The criminal courts are too
over burdened to allow each case to go to trial. In such situation, it is high
time for the officers, litigant public and other stake holders concerned and
connected with criminal justice system to enrich their knowledge on these
provisions and to make utilize the same for quick disposal in appropriate
cases.

38
2008 (3) ALT (crl) 69 (Kar)
 1

EXAMINATION OF ACCUSED AND FRAMING OF CHARGES

The Trial in a Criminal case entirely rests on the charges framed by

the Court against the accused.

There is no specific provision in the Code of Criminal Procedure deal-

ing with the examination of accused. After appearance of accused before the

Court in response to the summons issued, the copies of documents will be

furnished to him, as mandated under the Code, on the basis of which prose-

cution is launched against him. After furnishing copies to accused a rea-

sonable time will be granted, in order to provide an opportunity to the ac-

cused to go through those documents. Then on the next adjournment fixed,

if the Court, after consideration of the record of the case and the documents

submitted, and after hearing both parties is satisfied that there is no suffi-

cient ground for proceeding against the accused shall discharge the accused.

Despite some variation in the language, the following three pairs of sec-

tions dealing with framing of the charge or discharge at the Sessions Trial or

Trial of warrant case on a police report or other than on a police report ulti-

mately converge to a single conclusion, namely that a prima faice case has to

be made out before a charge can be framed.

The three pairs of Sections are Sections 227 and 228 relating to ses-

sions Trial; Sections 239 and 240 Cr.PC relating to Trial of warrant cases and

Section 245(1) and (2) relating to trial of warrant cases instituted other wise

than on a police report.

 2

227.Discharge:-
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the accused
and the prosecution in this behalf, the Judge considers that there is not
sufficient ground for proceedings against the accused, he shall discharge
the accused and record his reasons for so doing.
Under Sec 239 Cr.PC, the accused shall be examined, and after hear-

ing the prosecution and the accused, if the Magistrate considers charges

against the accused to be groundless, referred to in the police report, he shall

discharge the accused. It is necessary to hear both the prosecution and the

accused and then consider the matter whether to discharge the accused or

not. But, either the prosecution or the accused are not evincing any interest

to appear before the Court and submit their version on the point of discharg-

ing the accused.

In practice, the accused is examined, and if he is not discharged, then

charge is framed against him on the same day without adjourning the matter-

for hearing on framing of charges.

The main object of examining the accused is in order to ascertain

whether the charges levelled against the accused in the police report are

baseless. After following the procedure, if the Court is satisfied that charges

are groundless, the accused shall be discharged, and reasons shall be

recorded.

In Satish Mehra Vs Delhi Administration , (1996) 9 SCC 771, it was

observed by the Hon’ble Apex Court that “ the object of providing such an

opportunity as envisaged under Sec 227n Cr./PC is to enable the Court to

decide whether it is necessary to proceed to conduct the trial. If the case

 3

ends there it gains a lot of time of the Court and saves much human efforts

and costs.”

For instance, in cases U/Sec 498-A IPC, it has become an order of the

day, to rope in all the relatives of the husband, irrespective of the fact that

relatives never resided in the matrimonial house of the defecto- complainant.

Then the Court has to consider the police report and documents placed be-

fore it and ascertain whether the charges are true or groundless.

Despite the mandatory provisions which provide for a stage ‘when ac-

cused shall be discharged’, accused file petitions seeking to discharge them

and if such petitions are dismissed, they approach the higher Courts either

challenging the order passed by the lower Court or praying to quash the pro-

ceedings against the accused. If the accused or their counsels are vigilant at

the right point of time, it will not result in unnecessary filing of petitions

and delay in proceeding further. However, even if the accused is discharged

it is not an order of acquittal.

If there are several accused and some of the accused are discharged,

the Court shall proceed further against the other accused, and then comes the

stage of framing charges against the accused.

In cases instituted otherwise then on police report there is a slight vari-

ation with regard to discharge of the accused. As provided under Section 244

Cr.PC, in these nature of cases the Magistrate shall here the prosecution and

take all such evidence as may be produced in its support and also may issue

summons to any of the witnesses to attend or to produce any document.

Then after considering the evidence adduced by the prosecution if the Court
 4

considers that no case is made out against the accused, the Magistrate shall

discharge him.

If the accused is not discharged then the Magistrate shall frame a

charge in writing as provided under Section 246(1) Cr.PC.

Framing of Charges:

It is the scintillating stage where the Court has to consider all the ma-

terial available before it and then frame a charge. The Court must be prima

faice satisfied that there are grounds to presume that the accused has com-

mitted on offence triable by it. The charges framed by the Court should re-

flect the allegations stated in the report and that appear from a perusal of the

documents filed by the prosecution. The Court has to frame charges on the

basis of the contends of the report lodged by defacto-complainant and docu-

ments filed therein but not to frame charges against the accused for the of-

fences mentioned in the police report.

In V.C Shukla Vs State through CBI, AIR 1980 SC 962, the Hon-

ourable Supreme Court observed that an Order framing charges against on

accused undoubtedly decides an important aspect of the Trial and it is the

duty of the Court to apply its Judicial mind to the materials and to come to a

clear conclusion that a prima faice case has been made out on the basis of

which it would be justified in framing charges” .

Sections 228, 240 and 246 Cr.PC deals with framing of charges. Sec-

tion 228 Cr.PC reads as follows:

(1) if , after such consideration and hearing as aforesaid, the Judge is

of opinion that there is ground for presuming that the accused has committed
 5

an offence exclusively triable by Court of session, shall frame in writing a

charge against the accused. a

Section 240 Cr.PC also provides for framing of charges in trial of warrant

cases instituted on a police report and Section 246 Cr.PC deals with the

procedure where the accused is not discharged. In Kanti Bhadra Shah Vs

State of West Bengal, AIR 2000 SCC 522 it was held that “ if the Court de-

cides to frame a charge, there is no legal requirement that he should pass an

order specifying the reasons as to why he opts to do so. Framing of charge it-

self is prima faice order that trial Judge has framed the opinion, upon consid-

ering the police report and other documents and after hearing both sides, that

there is ground for presuming that the accused has committed the offence

concerned.

In Manoo Lal Yadav Vs State of UP, 1994 (1) ALT (Crl) 24 it was held

that “Courts should not frame charges according to the offence designated by

police in a mechanical manner”.

Sections 211 to 219 Cr.PC deals with the form of charges and also the

manner in which the trial has to be conducted. If more accused than one are

alleged to have committed same offence, they shall be tried jointly.

Section 216 Cr.PC provides for addition or alteration of the charge at

any time before Judgment is pronounced and every such alteration or addi-

tion shall be read and explained to the accused. It is for the prosecution to

prove the charges framed against the accused beyond all reasonable doubt.

Smt. P.Sai Sudha

Principal Junior Civil Judge, Vsp.

 BASIC PRINCIPLES RELATING TO THE ‘RECORDING OF

EVIDENCE, RELEVANCY, ADMISSIBILITY AND

APPRECIATION OF EVIDENCE’

K.Siva Rama Krishna,

I Addl. Spl. Judge for CBI Cases,
Visakhapatnam

Evidence is a means of proof. Evidence refers to

anything that is necessary to prove a certain fact. The term

“evidence” signifies that which makes apparent the truth of a

matter. The word “evidence” under the Indian Evidence Act

indicates only the instruments by means of which relevant facts

are brought before the court. Evidence includes all statements

which the court permits or requires to be made. In the decision

Somawanti Vs. State of Punjab reported in AIR 1963 SC at

page 151, our Hon'ble Supreme Court held that evidence means

and includes all statements which the court permits or requires

to be made. Court will take into consideration of statement of

witnesses, surrounding circumstances and probabilities.

02. The word “evidence” has been derived from the Latin

words “evident” or “evidere” that mean to make clear or

ascertain the truth of the facts in issue either on one side or the

other. Evidence is as equivalent to relevant, to proof and to the

material on the basis of which courts come to a conclusion about

the existence or non-existence of disputed facts (Ramnarayan

Vs. State of Maharashtra reported in ((1964) 5 SCR).

 2

“Evidence of a fact” and “proof of a fact” are different and

distinct. Positive statement of witnesses is subject to the rule of

probability. The rules of evidence regulate the pattern of

evidence that are admissible in a legal proceeding. The

classifications of legal evidence subsume testimony, documentary

evidence and physical evidence. The advancement of evidence

rests initially on establishing on whom the burden of proof lies.

The burden of proof is places on the prosecution in criminal

cases. Testimony and exhibits are the main divisions of evidence

presented at a trial. Facts should not be received in evidence,

unless they are both relevant and admissible. (State of Uthar

Pradesh Vs. Rajnarain reported in AIR 1975 SC at page

865).

03. Further, the object of “recording evidence” is to

maintain a correct record of the testimony of the witnesses. Trial

courts are the courts which basically record the evidence on

disputed facts and render judgment by applying the principles of

law. Recording evidence would persuade and assume great

significance in administration of justice. Sections 272 to 283 of

Code of Criminal Procedure deals with the procedure and mode of

taking and recording evidence in criminal cases. According to

the Sections 272 to 283 of code of Criminal Procedure, the main

ingredients and factors are:

i) All the evidence must be recorded in the presence of the

accused;
 3

ii) If the personal attendance of the accused is dispensed with,

the evidence must be recorded in the presence of his

pleader;

iii) The Presiding Judge/Magistrate shall record the evidence of

a witness in open court and the evidence so taken down

shall be signed by him/her and the said evidence shall form

part of the record;

iv) The evidence of a witness may be recorded by audio video

electronic means in the presence of the advocate of the

accused. (Sec.275 (1) Cr.P.C);

v) The evidence of a witness when completed should be read

over to him in the presence of the accused or his pleader

and it can be corrected if necessary;

vi) The Presiding Judge or the Magistrate has to record the

remarks if any in respect of the demeanor of any witness,

but he should not formulate any opinion on the credibility of

the witness until the whole evidence has been taken.

(Section 280 Cr.P.C.);

vii) Whenever the evidence of witness is recorded by type

writing machine or through electronic device (computer), a

certificate must be given by the Presiding Judge that the

evidence is recorded to his dictation in open court;

 4

viii) The Presiding Judge also must be given a certificate that

the evidence of the witness read over and explained to him

in the presence of the accused or his pleader and admitted

to be correct.

04. The mode and manner to record evidence

contemplated in the Sections 272 to 283 of Cr.P.C is mandatory

and the omission to record the evidence in the manner provided

is a material irregularity and sufficient to set-a-side the

proceedings. But, in the decision L.D.Healy … Appellant

Vs., State of Utter Pradesh … respondent in 1969 (1) SCC

at page No.149, our Hon’ble Supreme Court held that “the

object of the procedure for recording evidence prescribed is to

maintain a correct record of the testimony of the witnesses. The

Presiding Judge shall record the evidence of a witness in open

court and the evidence so taken down shall be signed by him and

the said evidence shall form part of the record. Recording of

evidence before one Judge and the record of that evidence was

signed by another Judge, was an irregularity in maintaining the

record of the evidence at the trial and the said irregularity is not

a ground for holding that the trial is vitiated and every departure

from the provisions of the law will not effect the validity of the

trial and the irregularity may be ignored if no injustice has

resulted therefrom”.
 5

05. Further, the procedure laid down in Section 137, 138

and 154 of Evidence Act has to follow during the course of

recording evidence. According to Section 137 of the Indian

Evidence Act, there are three stages in the examination of a

witness namely, 1) examination in chief; 2) cross examination

and; 3) Re-examination. Further, according to Section 138 of

Indian Evidence Act, if new matter with permission is introduced

in re-examination, the adverse party may further cross examine

upon that matter. A party calling a witness can be permitted

to put to him questions under section 154 of the Evidence Act.

The provision of Section 154 of the Evidence Act does not confine

at what stage the party calling a witness, can be permitted to put

to him questions. In the decision Dahyabhai Chhaganbhai

Takkar … Appellant Vs., Stage of Gujarat … Respondent

reported in 1964 AIR (Supreme Court) at page No.1563,

our Hon’ble Supreme Court held that “the court can permit the

party who calls a witness to put questions to him at any stage of

the examination of the witness, providing an opportunity to the

accused to cross examine him on the answers elicited which do

not find place in the examination-in-chief”.

06. Evidence has to be reapproached with a sense of

reality, and not from unrealistic angle. Totality of evidence of a

witness has to be seen and not one or two sentences from it. In

the decision State Vs. Divakar reported in AIR 2002 SC at

page 2148, our Hon'ble Supreme Court held that in a criminal

 6

case, court should judge the evidence by probabilities, intrinsic

worth of evidence and animus of the witnesses. Technical

approach should not be adopted to reject the evidence of a

witness. Further, evidence of only one party even when no

evidence of rebuttal is led by the opposite party need not

necessarily be accepted. Court has to see whether witness is

interested, whether story is probable and whether evidence is

shaken in cross examination. Court as a prudent man will adopt

what is natural to expect and what accords with commonsense

and ordinary experience. Court will not only examine the oral

testimony, but also surrounding circumstances and probabilities

of the case to decide whether a fact is proved. Court has to

disengage the truth from falsehood and to sift grain from the

chaff instead of rejecting entire evidence for embellishment. If

grain cannot be separated from the chaff, this principle shall not

apply (Lakmirattan Cotton Mills Vs. Workmen reported in

AIR 1975 SC at page 1692).

07. ‘Fact’ means an existing thing. Facts may be related

to rights and liabilities in the way of facts in issue and relevant

facts. Facts related to a proceeding may be called facts in issue,

unless their existence is undisputed. Facts which are not

themselves in issue are defined in the Evidence Act as relevant

facts. Evidence in one case is no evidence in another case.

When a suggestion is made to a witness about his hostility,

malice or animosity and he denies, the suggestion will not be

 7

evidence of the fact suggested. A writing obtained for

comparison does not come within the ambit of evidence. Where

the parties are indispute as regards material facts, a mere

statement in pleadings would not be evidence.

08. The basic principles for proof, production and

conclusion of evidence are; i) Evidence must be confined to the

matters in issue; ii) Hearsay evidence may not be admitted; iii)

The best evidence must be given in all cases and iv) All facts

having rational probabilitive value are admissible in evidence,

unless excluded by a positive rule of paramount importance.

Evidence may be oral or documentary including electronic

records. Evidence is classified as; 1) Direct and circumstantial

evidence, 2) Real and personal evidence, 3) Original and non-

original evidence, 4) Positive and negative evidence and 5)

Substantial and non-substantial evidence.

A fact may be proved by direct evidence,

circumstantial evidence or by both direct and circumstantial

evidence. The evidence is said to be direct if it consists of an eye

witness computation of the facts in issue in a proceeding.

Circumstantial evidence is evidence of relevant facts from which

one can by process of a fact without any reasoning infer about

the existence of facts in issue or factum probandum (Vijay

Kumar Vs. State reported in (2010) 1 SCC (Crl.) at page

1476). Further real evidence is that which is addressed to the

 8

sense of the sessions as where the object is presented for the

inspection of the court. Personal evidence is that which is

afforded by human agency. Positive evidence is the evidence by

which the existence of a fact is sought to be proved. Negative

evidence is that evidence by which non-existence of a thing is

sought to be proved. Negative evidence is ordinarily is no virtue

to dispose of the fact in dispute. (Rahim Khan Vs. Khurshid

Ahmad reported in AIR 1975 SC at page 290). Substantive

evidence is evidence which may be relied for the proof or

disproof of the fact in issue or relevant fact and on which a

finding may be based. Non-substantive evidence cannot be the

basis of a fact. It can be used only to contradict a substantive

evidence under Sections 145 and 155 of Evidence Act.

09. When the parties to a proceeding or their agents to

agree to admit a fact at the hearing or which they agree to admit

by writing before the hearing, they are deemed to have admitted

by their pleadings and they need not be proved by the opposite

party. In order to dispense with proof, the admission must be

clear and specific. All facts except the contents of a document

may be proved by oral evidence. According to Sec.60 of the

Indian Evidence Act, the oral evidence must be direct. The

assumption is based on the cardinal rule that best evidence

available should be brought before the court. If a fact is to be

proved by oral evidence, the person who saw, heard or perceived

 9

must be examined. (Sundar Lal Vs. State reported in (2007)

10 SCCat page 371).

10. Further, statement of witness not based on his

personal knowledge, but on what he heard from others is

“hearsay evidence” and such evidence is inadmissible. Statement

oral or written by a person not called as a witness is hearsay

evidence. Every act done or spoken which is relevant on any

ground must be proved by someone who saw it with his own

eyes and heard it with his own ears. The reason for non-

receiving hearsay evidence as relevant evidence is the person

giving such evidence does not feel any responsibility. When

admittedly a witness has no personal knowledge about the

events stated by him would be inadmissible being hearsay.

(Joseph Puthuserry Vs. T.S.John reported in (2011) 1 SCC

(Crl.) at page 423). A newspaper report has no independent

evidentiary value. It can support substantive evidence.

Evidence of a witness deposing on the basis of material on record

is hearsay and it is admissible in evidence. In the decision

Mukhtiar Vs. State reported in 2009 AIR SCW at page

1475, our Hon'ble Supreme Court held that the witness who

came to the scene of occurrence did not see the accused

attacking the deceased and he learnt about the same from the

eye witnesses, his evidence about such information though

hearsay would be admissible when corroborated by substantive

evidence.
 10

11. The evidence of the senses of the person who is called

as a witness must be direct. Statement of the investigating

officer in the inquest report regarding injuries on the dead body

is admissible, since he himself noticed injuries to record them.

The only way of proving dying declaration is by evidence of a

person who heard it made. Opinion evidence is hearsay and

becomes relevant and admissible if the condition laid down in

Sec.47 of the Indian Evidence Act is satisfied. The medical report

of a doctor is a mere record of his opinion. Opinion is admissible

in evidence, if it is proved by the doctor.

12. The contents of documents may be proved either by

primary or by secondary evidence. The documents upon which a

party places his reliance must be placed before the court.

According to Sec.3 of the Indian Evidence Act, the documents

which are presented before the court for inspection, such

documents are called documentary evidences. It is well settled

that documents do not prove themselves and that documents

must be proved according to law. The execution and contents of

a document must be proved. If the execution is proved and the

contents are not proved, the document cannot be made the

foundation of judgment or decision. Once a document is marked

on admission, the contents thereof are also treated to be

admitted. Tape records of speeches are admissible in evidence,

when the accuracy of the speeches had to be proved by the

 11

maker of the record. If a document is marked without objection,

it cannot be challenged later on.

Further, documents must be proved by primary

evidence. Primary evidence means the document itself produced

for the inspection of the court. Secondary evidence to be

admitted only in the absence of primary evidence. Secondary

evidence may be a copy made from original or copy compared

with the original. According to Sec.65 of Indian Evidence Act,

secondary evidence may be given when i) the original is in

possession or power of the opposite party; ii) the person bound

to produce the original is not produce it after notice; iii) the

original is lost or destroyed; iv) the original is public document;

v) the original is such a document of which certified copies are

allowed; vi) production of original is highly inconvenient or; vii)

the original consists of numerous accounts. When the original

deed is inadmissible for want of registration or want of requisite

stamp, no secondary evidence is admissible. Before admitting

secondary evidence, it is important to consider the nature of the

document and the evidence about the inquiries made about the

original. When no objection is taken and secondary evidence is

produced and forms part of the record, no objection to give

secondary evidence can be taken at a later stage in the same

court or in an appeal. But when a document is per-se

inadmissible in evidence, it can be objected to at any stage even

 12

in appeal. Certified copy of income tax return is admissible as

secondary evidence.

13. The contents of electronic records may be proved in

accordance with the provisions of Sec.65(B) of the Indian

Evidence Act. Examination of witnesses in criminal cases,

through video conferencing was approved by the Hon'ble

Supreme Court in a judgment reported in State of Maharashtra

Vs. Dr.Praful B.Desai reported in AIR 2003 SC at page

2053. The party who intends to examine a witness through

video conferencing, shall be under obligation to meet the entire

expenditure (Bodala Murali Krishna Vs. Bodala Prathima

reported in AIR 2007 A.P. at page 43). Scientific evidence

usually goes towards supporting or rejecting a hypothesis.

Further, if the deed sought to be proved is a document

required by law to be attested and if there be an attesting

witness alive and capable to give evidence, he must be called to

prove execution and unless a witness is so called, the document

shall not be used in evidence. An attesting witness must either

see the executant sign or he must receive from executant an

acknowledgement that executant has signed the deed. A scribe

can be held to be an attesting witness when he has seen the

execution of the document and put his signature on the

document in the presence of testator. Where all witnesses are

dead, the execution can be proved by proving the signature of

 13

the executant and the signature of one of the attesting

witnesses. The evidence of relatives who knew their handwriting

is enough.

14. Oral admissions as to the contents of a document are

not relevant unless and until the party proposing to prove them

shows that he is entitled to give secondary evidence of the

contents of such document. Further, oral admissions as to the

contents of electronic records are not relevant unless the

genuineness of the electronic record produced is in question.

Truth always suffers from some infirmity when

projected through human process. While it is necessary that

proof beyond reasonable doubt should be adduced in criminal

case, it is not necessary that it must be perfect. For proof of a

fact not plurality, but quality of evidence is needed. Witness

when is neither reliable nor unreliable, it needs corroboration.

Corroboration of a witness may be necessary if there is some

latent or patent infirmity in the version given by a witness.

Direct evidence when conflicts a medical opinion evidence, direct

evidence is to be preferred. Discrepancies which do not go to the

root of the matter and do not shake the basic version of the

witnesses cannot be annexed with undue importance. The fact

that witness is the relation of the victim is no ground for rejecting

the testimony of the witness and his evidence has to be closely

scrutinized on other corroborative evidence on record. In the

 14

decision Dasari Goutham Veeranna and another …

Appellant Vs., State of Andhra Pradesh … Respondent

reported in 2017 (2) ALD (Crl) at page No.1027, our

Hon’ble Judges Sri Justice C.V.Nagarjuna Reddy garu and Justice

J.Uma Devi held that the evidence of a witness cannot be

discarded merely because he is an interested witness. The court

must be cautious in analyzing such testimony and discard the

same only if it is unnatural or self contradictory.

15. Further, deaf and dumb witnesses should be examined

with the help of an expert or a person familiar with the modes of

conversing with the said witness. Evidence of a witness cannot

be discarded simply because he is a police officer in-charge of

investigation. Police officers are not worse than ordinary human

beings. It cannot be said all of them are liars, just as it cannot

be said all of them are truthful.

The evidence of a hostile witness cannot be discarded

as a whole and relevant parts thereof which are admissible in law

can be used by the prosecution or the defence. Our Hon’ble

Supreme Court in the decisions: i) State of U.P. ... Appellant

Vs., Ramesh Prasad & another ... respondents reported in

AIR 1996 SC at page no.2766; ii) Sarvesh Narain Shukla ...

Appellant Vs., Daroga Singh & others ... Respondents

reported in AIR 2008 SC at page no.320; iii) Subbu

Singh ... Appellant Vs., State represented by public

 15

prosecutor ... Respondent reported in 2009 (6) SCC at

page no.462; and iv) C. Muniappan and others ...

Appellants vs., State of Tamil Nadu ... Respondent

reported in AIR 2010 SC at page no.3718, held that evidence

of a hostile witness would not be totally rejected if spoken in

favour of the prosecution or the accused but, required to be

subjected to close scrutiny and that portion of the evidence which

is consistent with the case of the prosecution or defence can be

relied upon.

When a witness makes two inconsistent statements in

his evidence with regard to a material fact and circumstances,

the testimony of such a witness becomes unreliable and

unworthy of credence (1990 Crl.L.J at page No.511 (516)

Allahabad).

16. Further, a presumption is not in itself evidence, but

only it makes a prima facie case for party in whose favour it

exists. It is a rule concerning evidence. It indicates the person

on whom burden of proof lies. When presumption is conclusive,

it obviates the production of other evidence. The rules of

presumption are reduced from enlightened human knowledge

and experience and are drawn from the connection, relation and

coincidence of facts and circumstances. (M/s. Sodhi Transport

Co. Vs. State of Uthar Pradesh reported in AIR 1986 SC at

page 1099). Presumptions under Sec.114 of Indian Evidence

 16

Act are rebuttable. Where evidence had been led on behalf of

the party concerned, presumption cannot be made. When

parties are in position to give personal evidence and such

evidence is withheld without sufficient cause, the court is bound

to draw an adverse inference against the party who has not

appeared. The question of drawing an adverse inference against

a party to the proceeding on account of his non-appearance

before the court would arise only when there is no other evidence

on the record on the point in issue. (Pandurang Vs.

Ramchandra reported in AIR 1981 SC at page 2235). The

court cannot presume things by applying its own perception and

imagination. In the decision Shaik Jani Basha and another …

Appellants Vs., State of Andhra Pradesh … Respondent

reported in 2017 (2) ALD (Crl.) at page No.1034, our

Hon’ble Judges Sri Justice C.V.Nagarjuna Reddy garu and Justice

J.Uma Devi held that the observation of the lower court that it is

not possible to believe that a person will cook food at 4.00 p.m.,

which was an odd time is wholly presumption and such inference

is a baseless as the court cannot presume things by applying its

own perception and imagination.

17. Law of Evidence is part of the law of procedure. Thus,

the competency of a witness or whether a fact is proved or not

are to be determined by the law of procedure. In the decision

Ganesh K.Gulve … Appellant Vs., State of Maharashtra

reported in AIR 2002 Supreme Court at page No.3068, our

 17

Hon’ble Supreme Court held that “in order to appreciate the

evidence the court is required to bear in mind the set up and

environment in which the crime is committed and the level of

understanding of the witnesses.

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 1

RECORDING OF EVIDENCE – RELEVANCY, ADMISSIBILITY

AND APPRECIATION OF EVIDENCE
The expanse of the topic is forcing me to be as brief as possible. In
fact this topic encompasses the whole Indian Evidence Act.

RECORDING OF EVIDENCE:

This aspect deals with the actual process of trial. The Court’s
involvement is directly visible there. The Court would take care to see that
only legally relevant and admissible evidence becomes part of the record.
Examination in chief and cross examination must relate to relevant facts. The
objects of cross examination are to impeach the accuracy, credibility and
general value of the evidence given in chief, sift the facts already deposed
by the witnesses, to detect and expose discrepancies, to elicit suppressed
facts which will support the case of the opposite party cross examining the
witness.

Repetition of questions is to be prohibited and however, if the witness

is unable to understand the cross examiner as to be asked to repeat the
question. Except to the experts legal questions generally are not permitted.
While recording omissions and contradictions, at the first instance, the
previous statement has to be verified.

The process of recording of evidence in criminal cases is dealt under

section 272 to 283 of the Code of Criminal Procedure, 1973.

2. Section 273 mandates to record all the evidence in presence of

the accused. If personal attendance of the accused is dispensed
with, the same must be recorded in presence of his pleader.

3. Section 274 lays down that the Magistrate shall record the
memorandum of substance of evidence of a witness in open
Court and such memorandum must be signed by him and shall
form part of the record so far as summons case is concerned. In
a warrant case, the Magistrate shall record the evidence of a
witness by taking down by himself or cause it to be taken down in
the narrating form.

4. Section 275(3) permits the Magistrate to record the evidence

in the form of question and answer. In view o the proviso to
Section 275(1), the evidence of a witness may be recorded by
 2

audio video electronic means in presence of the Advocate of the

accused.

5. Section 276 says that recording of evidence before Sessions

Court should be in the form of narrative. The Presiding Judge
may, in his discretion, take down or cause to be taken down, any
part of such evidence in the form of question and answer and the
evidence so taken down shall be signed by the Presiding Judge.

6. Section 278 stipulates that evidence of a witness when

completed should be read over to him in presence of the accused
or his pleader. It should not be done so at the end of the day
after all witnesses have been examined. When the evidence is
read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of
the evidence, the Presiding Judge may instead of correcting the
evidence, make the memorandum of the objection raised by the
witness and shall add such remarks as he deems fit. If the
evidence is recorded in the language not understood by the
accused or his pleader, it shall be contemplated in open Court in
the language understood to them.

7. Section 280 empowers the Presiding Judge or the Magistrate

to record the remarks, if any if he thinks material in respect of
the demeanor of any witness and he should avoid formulating
any opinion on the credibility of the witness until the whole
evidence has been taken.

8. As per rule 83, the margin of one-fourth of the deposition

sheet should be left blank. Rule 84 enables Court to record
deposition by type writing machine. A certificate must be given
by the Presiding Judge that evidence is recorded to his dictation
in open Court and each page of the record so made must be
attested by him.

9. Rule 85 indicates that Presiding Judge or Magistrate shall

record in his own handwriting the name of the witness examined,
name of his father and if she is a married one, the name of her
husband, profession, age of the witness, village, police station,
district in which the witness resides, the entry of age of the
witness shall be according to the estimation of the Presiding
Judge.
 3

10. So far as doubtful expression is concerned, the trial Court

should actually record the word used by the witness so that its
exact signification can be assessed in Judgment. Assistance of an
interpreter may be taken if the language of the witness is not
understood by the accused Court, or lawyers.

11. According to Rule 87, deposition of each witness should be

separately paragraphed and consecutive numbers should be
assigned.

12. In reference to Rule 88, the Magistrate or the Presiding

Judge shall personally sign the certificate at the bottom of the
deposition of each witness to the effect that read over and
explained to the witness in presence of the accused/ pleader
representing the accused and admitted to be correct.

The cases under the POSCO Act prescribed a different procedure for
recording of evidence under Section 31 of the said Act that the accused shall
not be made to be seen by the victim witness while recording evidence and
the questions in the cross examination also have to be put through the
presiding officer of that Court.

The provisions of the NI Act prescribe recording of evidence i.e., the

chief examination by means of affidavits of the witnesses.

RECORDING OF CONTRADICTIONS:

Ordinarily, accused persons are entitled to challenge the testimony of

witnesses with reference to the statements said to have been made by them
before the investigating police officer. Statements made by the prosecution
witnesses before the investigating officer being earliest statements made by
them with reference to the facts of the occurrence are valuable material for
testing the veracity of the witnesses examined in Court, with particular
reference to those statements, which happened to be at variance with their
earlier statements. But the statements made during police investigation are
not substantive evidence. Explanation to Sub-section (2) of Section 162 of
the Code of Criminal Procedure is added to resolve the conflict and recognize
the validity of the majority decision of the Supreme Court in Tahsildar
Singh ..Vs..State of U.P. AIR 1959 1012 (1026) 1. Now, the explanation
specifically provides that an omission to state a fact or circumstance in the

1 AIR 1959 1012 (1026)

 4

case may amount to contradiction if certain conditions as envisaged therein

are fulfilled. A statement recorded by the police during the investigation is
not at all admissible in evidence and the proper procedure is to confront the
witnesses with the contradiction when they are examined and then ask the
Investigating Officer regarding those contradictions. Following are well
settled legal propositions.
1. A statement in writing made by witness before a police officer in
the course of investigation can be used only to contradict his
statement in the witness box and for no other purpose.

2. Statements not reduced to writing by the Police Officer cannot

be used for contradictions.

3. Though a particular statement is not recorded, a statement that

can be deemed to be part of that expressly recorded can be used
for contradictions not because it is an omission strictly so called
but because it is deemed to form part of the recorded statement.
Such a fiction is permissible by construction only in the following
three cases; - (i) when a recital is necessarily implied from the
recital or recitals found in the statement, (ii) a negative aspect of
a positive recital or recitals in a statement and (iii) when the
statement before the police and before the court cannot stand
together.

It is for the trial judge to decide in each case, after comparing the part
or parts of the statement recorded by the police with that made in the
witness box, to give a ruling having regard to the aforesaid principles
whether the recital intended to be used for contradiction satisfies the
requirements of law.
Rule 29 of Chapter VI of Criminal Manual states about proof and
statements under section 161 of the code of Criminal Procedure, 1973 as
under :-
29 (1) When a statement recorded under section 161 of the Code
of Criminal Procedure, 1973 is used in the manner indicated in
section 162 of the Code, the passage which has been specifically
put to the witness in order to contradict him should first be
marked for identification and exhibited after it is proved.

(2) The method of proving such a statement is to question the

Police Officer, who had recorded the statement whether the
passage marked is a true extract from the statement recorded by
him.
 5

(3) When a statement recorded under section 161 of the Code is

used to contradict a witness, the specific statement put to the
witness should be set out accurately in the record of the
deposition of the witness.

(4) Omissions in the statements recorded under section 161

should, if denied by the witness, be proved by questioning the
Police Officer whether the witness had made the statement which
he says he had.

On the point of appreciation of evidence the Hon’ble Supreme Court

has observed in Ganesh K. Gulve etc. v/s. State of Maharashtra 2
(decided on 21.08.2002 in appeal ( Cri) 501 of 1999 and others by Division
Bench of JJ – Y. K. Sabharwal & H. K. Sema) as under:-

"In order to appreciate the evidence, the Court is required to bear

in mind the set up and environment in which the crime is
committed. The level of understanding of the witnesses. The over
jealousness of some of near relations to ensure that everyone
even remotely connected with the crime be also convicted.
Everyone's different way of narration of same facts. These are only
illustrative instances. Bearing in mind these broad principles,the
evidence is required to be appreciated to find out what part out of
the evidence represents the true and correct state of affairs. It is
for the courts to separate the grain from the chaff. .. .. ".

The duty of court is to discover the truth and to find out whether the
accused is guilty or not. Facts come before the court by way of oral
testimony of witness and other documents. As human being is not free from
certain error moreover with different perception power of senses and
different intellect i.e analytical reasoning, mental status etc. Therefore, it is
not possible to lay down strict rule or straight jacket formula in appreciation
of all contradictions and omissions. So every contradiction or omission must
therefore be judged by reference to various factors. Sometimes due to this
very nature of human intellect and perception of senses contradictions and
omission occurs. Real and truthful eye witness may sometime make genuine
mistake in statement before police and court. At that time it must be
remembered that contradictions and discrepancies are natural and inevitable
in the testimony of even truthful witnesses. So then when the evidence is
discrepant or exaggerated allowance has to be made for the idiosyncrasies of

2 In Crl. Appeal 501/1999 decided on 21.8.02

 6

the class from which the witnesses are drawn, their powers of observation,
strength of memory and facility of description with a discount for possible
bias or prejudice.
A previous statement used to contradict a witness does not become a
substantive evidence & merely serves the purpose of throwing doubt on the
veracity of the witness. Contradiction if properly proved, as contemplated by
law, to that extent the credit of the witness is shaken, then it is for the Court
to consider whether the contradictions are sufficient to discredit the evidence
of witnesses. Where the contradictions are not material, and the witness is
neither shown to be having animus, with the deceased, nor highly interested
in the family of the accused, the witness could not be branded as liar for
such discrepancy. Small omissions in statements given by witness before the
police do not justify a finding that the witnesses concerned are liars. An
omission in statement of witnesses attracts its reliability and not
admissibility. Material omissions in testimony of prosecution witness if not
explained in cross-examination, such omissions of witness raise various
doubts to convict the accused. The credibility of a witness will not stand
impeached by merely bringing on record the contradiction. It will have
further to be shown that the statement made by the witness before the
Court is not only contradictory to that made by him in his police statement
but also that it is a deliberate attempt to change or improve on the original
statement to the prejudice of the accused. This would naturally require the
witness to be given an opportunity to explain the contradiction. In any event,
the credibility of the witness can be impeached only after obtaining his
explanation for the contradictory statement and by pointing out that the
explanation given by him is not true or satisfactory. Minor discrepancies by
themselves are not enough to throw overboard the evidence of these
witnesses. What the Court has to see is if because of discrepancies,
contradictions & omissions, the veracity of the witness is affected. If the
Court finds that despite the discrepancies, omissions and contradictions, the
witness emerges as a truthful witness whose evidence has a ring of truth,
the Court can accept the testimonies of such a witness. Merely because
graphic account is given by the witnesses, is no ground to

ADMISSIBILITY & RELEVANCY

The Indian Evidence Act finds little difference between relevancy and
admissibility. It lays down in Section 5 to 55 what facts are relevant. But,
some times all that is logically relevant is not made relevant under the said
provisions and as such those facts which are legally relevant are only made
admissible into evidence. Unfair prejudice, confusion, waste of time etc.,
have made logically relevant material legally irrelevant.
It is settled principle of law that the person who wants to let in
 7

evidence with regard to any particular fact must at the first instance has to
establish that it is relevant and admissible under any specific provision of the
Indian Evidence Act and it is his burden and responsibility to convince the
court about the same. Till such time, upon objection, he will not be
permitted to let in such evidence.
The determination of relevancy of a particular item of evidence rests
on whether proof of that evidence would reasonably tend to help resolve the
primary issue at trial.
“A reality which is sensibly applicable may not be lawfully pertinent
under the procurements of the Evidence Act, thus might be forbidden in
proof. All allowable confirmation is pertinent, yet all applicable proof is not
so much permissible. All certainties which are permitted by the
procurements of the Evidence Act to be demonstrated are important, be that
as it may, however pertinent a certainty may be, unless it is permitted to be
demonstrated by the procurements of the Evidence Act, it is not allowance.
A fact is said to be logically relevant to another when it bears such a
casual relation with the other as to render probable the existence or non-
existence of the latter. As stated above, all facts which are logically relevant
are not legally relevant. One fat is said to be legally relevant to another,
only when the one is connected with the other in any of the ways referred to
in Ss.5 to 55 of the Evidence Act.
Logical relevancy is wider than legal relevancy; every fact which is
legally relevant is logically relevant, but every fact which is logically relevant
is not necessarily legally relevant. Thus, a confession made to a police
officer may appear to be logically relevant, but such a confession is not
legally relevant, for S.25 of the Act declares that it cannot be used as
evidence against the person making it.
The Indian Evidence Act lays down, in Ss.5-55 what facts are relevant;
but the mere fact of logical relevancy does not ensure the admissibility of a
fact. Very often, public considerations of fairness and the practical necessity
for reaching speed decisions necessarily cause the rejection of much of the
evidence which may be logically relevant.
Thus, all the evidence that is admissible is relevant, but all that is
relevant is not necessarily admissible. Relevancy is the genus of which
admissibility is a species. Thus, oral statements which are hearsay may be
relevant, but not being direct evidence, are not admissible.
There are four basic types of evidence :
1. Demonstrative
2. Documentary
3. Real
4. Testimonial.
Evidence inadmissibility is an extremely nuanced field of law.
 8

Although evidence rules are driven by public policy, those same rules often
have exceptions and those exceptions can have exceptions. In general
though, evidence is more likely to be inadmissible if the evidence is:

Unfairly Prejudicial: Evidence that arouses the jury’s outrage

without adding any material information is often excluded. For
example, the picture of children around a victim’s body is often
ruled as being unfairly prejudicial.

Wastes time: In trials, there is such a thing as too much of a

good thing. Juries do not have to hear from twenty separate
character witnesses to know that the defendant is typically an
honest person.

Misleading: Evidence that could draw the Jury’s attention away

from the main issues of the case are misleading and often
excluded. For example, the defendant’s homosexuality in a child
molestation case is misleading since the issue is whether the
defendant had sex with a minor. The gender of the minor is
irrelevant.

Hearsay: Testimony which is made outside of the court to prove

the truth of the matter is often excluded. For example if a witness
claims another witness said the defendant hit the victim with a
knife and the prosecutor wants to use the testimony to prove that
the defendant stabbed the victim, that testimony is considered
hearsay. However, the hearsay rule has over forty different
exceptions such as the dying declaration exception.

Character: Evidence to prove that the defendant or the victim

has a certain personality trait and that the defendant acted
according to in consistently with that personality trait is often
excluded. The exception is if the defendant introduces character
evidence first.

Expert testimony: Expert testimony can only be given by

experts. “Lay” witnesses cannot give expert testimony.

Privileges: Evidence is often excluded if it came from a

privileged source of information. The most important privileges
are between attorneys and clients, as well as the right against self
 9

incrimination.
If an item of evidence is considered inadmissible, it means that it can’t
be used in Court during trial as evidence against the accused. An example of
this is where a witness statement is considered irrelevant because it does not
prove or disprove any facts in the case. In that case, the statement can’t be
entered into the record as evidence and won’t be used against the defendant
during trial.
Thus, it’s very important to make sure, that evidence is carefully
reviewed and analyzed in preparation for trial. This generally requires the
assistance of a qualified criminal attorney, who understands the specific
evidence rules for their jurisdiction.
Legal relevancy is, for the most part, based upon logical relevancy, but
it is not correct to say that all that is logically relevant is necessarily legally
relevant and vice versa. Certain classes of facts which, in ordinary life, are
relied upon as logically relevant are rejected by law as legally irrelevant.
Cases of exclusion of logically relevant facts by positive rules of law are:
(I) Exclusion of oral by documentary evidence: Ss.91-99
(ii) Exclusion of evidence of facts by estoppel: Ss.115-117.
(iii)Exclusion of privileged communications, such as confidential
communications with a legal adviser, communication during marriage,
official communications, etc., Ss.121-130”
Section 59 of the Indian Evidence Act provides for admissibility of
direct evidence only. The persons who have seen, heard, sensed or opined,
of anything can depose with regard to the said thing. This Section indicates
that hearsay evidence is not admissible into evidence. Section 60 provides
that primary evidence regarding documents is admissible. ****
Opinion of the Expert under Section 45 of the Indian Evidence Act is
not binding on the Courts. In case of conflict between Medical evidence and
Ocular evidence conviction cannot be based on such evidence and Ocular
testimony has to be preferred. (State of Punjab Vs. Hakam Singh 2005
(7) SCC 408)3. The evidence of the expert is not conclusive and it must be
shown that he has the requisite skill and knowledge.
Dog-Tracking, though is admissible, much weight cannot be given to it.
(Abdul Razak Murtaja Dafedar Vs. State of Maharastra AIR 1970 SC
283)4.
Foot print evidence is not a fully developed science (Mohd. Aman
and another VS. State of Rajasthan AIR 1997 SC 2906)5.
Tape recorder evidence is admissible in evidence and however, it can
be relied upon only as a corroborative evidence of conversation deposed by
any of the parties to the conversation and in the absence of any of such
3 2005 (7) SCC 408
4 AIR 1970 SC 283
5 AIR 1997 SC 2906
 10

conversation it cannot be acted upon. (Mahabir Prasad Varma Vs. Dr.

Surender Kaur 1982 (2) SCC 258)6
Brain Mapping Test is not reliable. (Dinesh Dalmia Vs. State 2006 1
MLJ Crl. 411)7.
The presumption of conclusiveness under Section 112 of the Evidence
Act can not be rebutted by the DNA Test (Banarasi Das Vs. Tiku Datta
2005 4 SCC 449)8. In fact such party cannot be compelled against his
/her wish to undergo such test (Amarzit Kaur Vs. Harbajan Singh 2003
(10) SCC 228)9.
The reason for exclusion of hearsay evidence is that the original
source from which the said evidence has emanated is not amenable for cross
examination and even if, the said witness who is deposing hearsay evidence
is assumed as deposing truth only, there is no guarantee that the original
source or person who gave such information to the present witness has given
a truthful version only to the said witness because the said original source of
person did not give the said version on oath.
However, dying declarations under Section 32 of the Indian Evidence
Act, the evidence of experts, contents of documents etc., form exceptions to
the principle that hearsay evidence is inadmissible.
Thus, admissibility means that the facts which are relevant are only
admissible by the Court and all logically relevant facts are not legally
relevant.
According to Section 136 of the Indian Evidence Act, 1872, however,
the final discretion on the admissibility of evidence lies with the Judge.
Section 136 states that:
“When either party proposes to give evidence of any fact, the
judge may ask the party proposing to give the evidence in what
manner the alleged fact, if proved, would be relevant, and the
Judge shall admit the evidence if he thinks that the fact, if proved,
would be relevant, and not otherwise. If the fact proposed to be
proved is one of which evidence is admissible only upon proof of
some other fact, such last-mentioned fact must be proved before
evidence is given of the fact first -mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied
with the undertaking. If the relevancy of one alleged fact depends
upon another alleged fact being first proved, the Judge may, in his
discretion, either permit evidence of the first fact to be given
before the second fact is proved, or require evidence to be given
of the second fact before evidence is given of the first fact”.

6 1982 (2) SCC 258

7 2006 1 MLJ Crl. 411
8 2005 4 SCC 449
9 2003(10) SCC 228
 11

The essential ingredients of the above Section are:

1. it is the Judge who decides the questions of relevancy and
admissibility.
2. When a party proposes to adduce evidence of any fact, the
Judge may ask the party to clarify in what manner the fact would
be relevant.

*The Judge would ‘admit’ the particular adduced fact only if he is

satisfied with the answer of the party that is, indeed, relevant under one or
the other provisions of S.6 to 55. Thus, the consideration of relevancy
comes first and of admissibility later and the Judge will admit the fact only if
it is relevant”.
In the recent case of Ram Bihari Yadav Vs. State of Bihar the
10
Supreme Court 1998 4 SCC 517 observed that …
“More often the expressions ‘relevancy and admissibility’ are used
as synonyms but their legal implications are distinct and different
from for more often than not facts which are relevant are not
admissible; so also facts which are admissible may not be
relevant, for example questions permitted to put in cross
examination to test the veracity or impeach the credit of
witnesses, though not relevant are admissible. The probative
value of the evidence is the weight to be given to it which has to
be judged having regards to the fact and circumstances of each
case”.
Section 9 of the Law of Evidence Act, 1872 lays down some fact which
can be treated as relevant. IN the case of Lakshmandas Changanlal Bhatia
Vs. State, the Court laid down the following to be relevant facts.
1. Facts necessary to explain or introduce a fact in issue or
relevant fact;

2. Facts which support or rebut an inference suggested by a fact in

issue or a relevant fact;

3. Facts which establishes the identity of anything or person

whose identity is relevant;

4. Facts which fix the time and place at which any fact in issue or
relevant fact happened.

5. Facts when show the relation of parties by whom any fact in

issue or relevant fact was transacted.

Another section of the Evidence Act which deals with admissibility is the
Section 11. Section 11 deals with those fact which are not otherwise relevant

10 1998 4 SCC 517

 12

but become relevant if they are inconsistent with any relevant fact or they
make the existence ornon-existence of any relevant fact highly probably or
improbably.

In Sheikh Ketab -Uddin Vs. Nagachand Pattak, it was held, that where
the executants of an archive holding presentations of boundaries of land are
alive and don’t give their evidence, such archives are not acceptable under
this segment.
In Ambikacharan Vs. Kumuk Mohan, Cummin and Mukherji held that
as a general rule, S 11 is controlled by S.32, “when the evidence consists of
statement of persons who are dead and the test whether such a statement is
relevant under S.11, though not relevant and admissible under S.32, is that
it is admissible under S.11, when it is altogether immaterial whether what
said was true or false, but highly material that it was said”.
In the case of Bibi Khaver Vs. Bibi Rukha the Court held that “in order
that a collateral fact may be admissible as relevant under this section, the
requirements of the law are that:
1. The collateral fact must itself be established by normally
conclusive evidence; and

2. It must, when established, afford a reasonable presumption or

inference as to the matter in dispute.

However, there are limitations to Section 11. According to R.V.

Prabhudas “the Court must use exercise a sound discretion and see that
the connection between the fact to be proved and the fact sought to be
given under S.11 to prove it, must be so immediate as to render the co-
existence of the two highly probable. The section makes admissible only
those facts which are of great weight in bringing the Court to a conclusion
one way or the other as regards the existence or the non-existence of the
fact in question. The admissibility under this section must, in each case,
depend on how near is the connection of the facts sought to be proved with
facts in issue and to what degree do they render facts in issue probable or
improbable when taken with the other facts in case. There must always be
room for the exercise of discretion when the relevancy of the testimony rests
upon its effect towards making the affirmative or negative of a proposition
‘highly probable’, and, with any reasonable use of the directions, the Court
ought not to interfere”.
Another limitation mentioned in the case Bela Rani Vs. Mahabir is
that “S.11 is also controlled by Ss.17 to 39. and as to the admissibility of
depositions made by a person since deceased, it has been held that unless
they are admissible under Sections 32 and 33, S.11 will not avail to make
them evidence.
 13

APPRECIATION OF EVIDENCE:
In Criminal Jurisprudence the role of case law is limited except for
giving some guidance, because the facts and circumstances relating to each
case are different from one another and as such each case has to be decided
on its own merit. All that, the Judge needs to do is to think like an ordinary
prudent man and visualise how he would appreciate regarding the facts in
issue or relevant facts, relaxing in his arm chair. The findings given in one
case may not be similar with the findings of another case although the same
aspect of appreciation of a particular kind of witness is involved in both
cases. Though it gives raise to an ostensible incongruity, infact it is not. The
reason is variation in the factual situation. Therefore, it was held in
Chaturbhuj Pandey Vs. Collector (AIR 1969 SC 255) 11 it was held “The
Judges are not computers. In assessing the value to be attached to the
oral evidence, they are bound to call into aid their experience of life”.

“Fiat Justitia”, a Latin phrase which means “Let justice be done” is

motto of the Court. For that purpose, evidence has to be tested on the
touchstones of corroboration, consistency and probability. Some
rudimentary principles of appreciation of evidence are that the evidence is to
be tested or weighed and not counted, suspicion however strong will
not substitute definite proof and a Judicial Officer can not import his
personal knowledge in adjudication of matters except to the limited extent
permitted under Section 56 of the Indian Evidence Act. Unless there are
justifiable circumstances the best evidence has to be produced before the
Court
Regard has to be had to the circumstances under which a witness has
observed, the state of his observation, whether casual or disturbed or
distracted, their power of observance, the elasticity of their impressions,
facility of description and possible lapse of memory. Allowance must be
made for possible distortion of the story and even lying. In judging the
credibility of the witnesses their position, their character and antecedents
may also give some guidance. Some times demeanor of witnesses gives
important clues.
In our adversarial system jurisprudence the whole burden is on the
prosecution to establish the guilt of the accused beyond all reasonable doubt
and if the accused happens to prove his contention it is enough for him to
preponderate the probabilities on his side, like in civil cases. In State of
12
U.P. Vs. Ramvir Singh and another (2007 (6) Supreme 164) the
Hon’ble Apex Court held thus...

11 (AIR 1969 SC 255)

12 2007 (6) Supreme 164
 14

“The golden thread which runs through the web of administration

of justice in criminal cases is that if two view are possible on
the evidence adduced in the case, on pointing to the guilt of
the accused and the other to his innocence, the view which
is favorable to the accused should be adopted. The
paramount consideration of the Court is to ensure that miscarriage
of justice is prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible evidence
is ignored, a duty is cast upon the appellate Court to re-
appreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any of
the accused really committed any offence or not.”

Corroboration is the safest devise among all the instruments of

evidence. The word ‘corroboration’ means no more than evidence tending to
confirm, support or strengthen the other evidence. Corroboration need not
be direct always and it is sufficient if they provide corroboration to
circumstantial evidence also. However, corroboration must be done by some
evidence other than that of an accomplice. Thus, evidence of one accomplice
cannot be strengthened by corroboration from the evidence of another
accomplice (Rex Vs. Noakes).

F.I.R:
It is not a substantial piece of evidence. It can be used to corroborate
or contradict the maker only and not other witnesses. (Baldev Singh Vs.
State of Punjab 1990 (4) SCC 692 13; State of M.P. Vs. Surbhan AIR
1996 SC 334514.
Inordinate and unexplained delay in dispatching the FIR to the Court is
required to be avoided to obviate interpolations and embellishments. Many a
time delay in lodging FIR had been held fatal to the case of the prosecution.
However, in H.P. Vs. Gian Chand 2001(6) SCC 7115 it was held that …
“Delay in lodging the FIR cannot be used as a ritualistic
formula for doubting the prosecution case and discarding
the same solely on the ground of delay in lodging the first
information report. Delay has the effect of putting the court on
its guard to search if any explanation has been offered for the
delay, and if offered, whether it is satisfactory or not. If the
prosecution fails to satisfactorily explain the delay and there is a

13 1990 (4) SCC 692

14 AIR 1996 SC 3345
15 2001 (6) SCC 71
 15

possibility of embellishment in the prosecution version on account

of such delay, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of the Court,
the delay cannot be itself be a ground for disbelieving and
discarding the entire prosecution case”

The statements recorded under Section 161 CR.P.C., shall not be used
for any purpose except to contradict a witness in the manner prescribed in
the proviso to Section 162 (1) Cr.P.C., (Baldev Singh Vs. State of Punjab
1990 (4) SCC 692)16.
Section 161 Cr.P.C., statement is not a substantive piece of evidence
(Rajendra Singh Vs. State of U.P. 2007 (7) SCC 378 17.
However, if the witness is not confronted with such statement the
Court cannot subsequently use the said statement even for drawing an
adverse inference against the said witness (Dandu Lakshmi Reddy Vs.
State of A.P., AIR 1999 Supreme Court 3255)18.
If signature or thumb impression of the witness is obtained on such
statement under Section 161 Cr.P.C., it may become unreliable (Gurnam
Kaur Vs. Bhakshis Singh and others -AIR 1981 SC 631)19. But, his
evidence can not be rejected outright and the Court has to make in depth
scrutiny of his evidence (State of UP Vs. M.K. Antony AIR 1985
Supreme Court 48)20.
However, Section 164 Cr.P.C., statement can be used for corroboration
and contradiction (Sunil Kumar and others Vs. State of M.P AIR 1997
SC 940)21
The General Diary containing a noting of report regarding cognizable
offence cannot be treated as FIR. In Annimreddy Venkata Ramana Vs.
Public Prosecutor, High Court of Andhra Pradesh- 2008 (5) SCC 368 22
it was held that telephonic information to Investigating Officer is not in the
nature of FIR.
CASE DIARY cannot be used as evidence to corroborate the
statements of the prosecution witnesses. But, in certain peculiar
circumstances in Bachan Singh Vs. State of Bihar 2008 (12) SCC 23 23-A,
the Court was impelled to peruse the case diary since the Investigation
Officer migrated to Pakistan and died there and as such he could not be
examined and however, the witnesses were confronted with the previous
statements and as such there was no prejudice to the accused.
16 1990 (4) SCC 692
17 2007(7) SCC 378
18 AIR 1999 SC 3255
19 AiR 1981 SC 631
20 AIR 1985 SC 48
21 AIR 1997 SC 940
22 2008 (5) SCC 368
23 2008 (12) SCC
 16

Inquest report need not contain the names of all the witnesses.
Tamilnadu VS. Rajendran and others 2008(8) Supreme 188 24.

EVIDENTIARY VALUE OF A RELATED WITNESS:

He is the least harmful witness. In Darya Singh Vs. State of Punjab

(AIR1965 SC 328)25 it was held that evidence of an eye witness who is a
near relative of the victim should be scrutinized closely and however no
corroboration is needed to accept his evidence.

In Dalip Singh Vs. State of Punjab (AIR 1953 SC 364) 26 it was

held that ordinarily a close relation would be the last to screen the real
culprit and falsely implicate an innocent person.

PARTISAN WITNESS:

His testimony has to be scrutinized with more than ordinary care and
accepted with due caution. Some times he may mean a person who is
interested in prosecution and in bribary cases in the successful laying of a
trap. In other cases, they may be interested witnesses (Shiv Bahudur
Singh VS. State of Vindhyapradesh (AIR 1954 SC 322) 27 and (Ambalal
Mothilal Patel Vs. State AIR 961 Gujarath 1)28

CHILD WITNESS:
Although there is no legal bar in accepting the uncorroborated
testimony of a child witness, prudence requires corroboration, because he is
prone for tutoring (Durgalal Vs. State of Rajasthan 2001 Crl.L.J.
3652)29

EVIDENCE OF ACCOMPLICE:
An accomplice shall be a competent witness. His evidence can be used
to convict a person. Section 133 of Indian Evidence Act provides that a
conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. However, Section 114 (b) of the Indian Evidence
Act provides that an accomplice is untrustworthy of credit ***
An accomplice cannot corroborate the evidence of another
accomplice. (Rex Vs. Noakes, see also 1916 (2)KB 658)30.

24 2008(8) Supreme 188

25 AIR 1965 SC 328
26 AIR 1953 SC 364
27 AIR 1954 SC 322
28 AIR 1961 Gujarath 1
29 2001 Crl.L.J 3652
30 1916 (2) KB 658
 17

According to Lord Reading “Indeed, if it were required that the

accomplice should be confirmed in every detail of the crime his
evidence would not be essential to the case, it would be merely
confirmatory of other independent testimony. All that is required
is that there must be some additional evidence rendering it
probable that the story of accomplice (or complainant) is true and
that it is reasonably safe to act upon it”.
Since, to escape from consequences an accomplice may tend to
distortion it is always safe to have independent corroboration.

CONFESSIONS:
Confession is a statement admitting guilt of an offence and it must be
express, certain and complete in itself. It must not be the outcome of
threat, inducement or promise. Court has to examine how the person in
authority could exert such threat, inducement or promise on the accused. It
must be affirmatively proved to be free and voluntarily and before conviction
it must be proved to be truthful (Hemrah Devilal VS State of Azmir AIR
1954 SC 462)31

Confession made to a Police Officer has a complete ban as to its

admissibility under Section 25 of the Indian Evidence Act, whether the
accused is in custody or not. However, presence of a Magistrate makes a
difference (Section 26).

Facts discovered in consequence of such information made by the

accused who is in the custody of a police officer make that part of the
statement admissible under Section 27 of the Indian Evidence Act. However,
many a time such information which is not specifically made admissible
under Section 27, is held to be admissible under Section 8 of the said Act.
****

In Madi Ganga Vs. State of Orissa (AIR SC 1165)32 the Hon’ble

Apex Court has held that ….
“It is now well settled that in order to sustain a conviction on the
basis of a confessional statement it is sufficient that the general
trend of the confession is substantiated by some evidence which
would tally with the contents of the confession. General
corroboration is sufficient vide Subramania Goundan Vs. State
of Madras (AIR 1958 SC 66)33...”

31 AIR 1954 SC 462

32 AIR SC 1165
33 AIR 1958 SC 66
 18

An incriminating fact without establishing the guilt of the maker is not

a confession- (Kanda Padayachi Vs. State of Tamil Nadu AIR 1972 SC
66)34”

Acceptance of inculpatory portion alone while ignoring the improbable

exculpatory portion was affirmed in Nishikantha jha Vs. State of Bihar
AIR 1969 Supreme Court 422)35

However, if no such improbabilities are found the confession of an

accused has to be taken as a whole and the exculpatory part can not be
thrown aside. (Devku Bhikha Vs. State of Bihar 1995 AIR SC 2171)36.

Confession of a co-accused is also relevant, but not a substantive

piece of evidence. (Ramachandra VS. State of U.P. AIR 1957 SC
381)37.

In a joint trial, it is not irrelevant and however the Court cannot act
upon without corroboration. (Ramprakash Vs. State of Punjab AIR 1959
SC P.1)38.
Extra Judicial Confession:
A confession recorded by a Magistrate is a Judicial confession and by
any other person is Extra Judicial confession. There are divergent views
regarding the efficacy of an extra judicial confession it is found to be a weak
piece of evidence in State of Punjab Vs. Bhajan Singh AIR 1975 SC 258 and
was found not to be a weak piece of evidence in Siv Kumar Vs. State 2006
(1) SCC 714. Some times it was held that corroboration is required and
some times it was held that no such corroboration is required if it is inspiring
the confidence of the Court.
In Gura Singh Vs. State of Rajastan 2001 (2) SCC 205 39 it was
held thus….
“Extra Judicial Confession, if true and voluntary, it can be relied
upon by the Court to convict the accused for the commission of
the crime alleged. Despite inherent weakness of extra-judicial
confession as an item of evidence, it can not be ignored when
shown that such confession was made before a person who has no
reason to state falsely and to whom it is made in the
circumstances which tend to support the statement. That the
evidence in the form extra judicial confession made by the

34 AIR 1972 SC 66
35 AIR 1969 SC 422
36 AIR 1995 SC 2171
37 AIR 1957 SC 381
38 AIR 1959 SC P.1
39 2001 (2) SCC 205
 19

accused to witnesses cannot be always termed to be a tainted

evidence. Corroboration of such evidence is required only by way
of abundant caution. If the Court believes the witness before
whom the confession is made and is satisfied that the confession
was true and voluntarily made, then the conviction can be founded
on such evidence alone. It is not open to the Court trying the
criminal to start with a presumption that extra-judicial confession
is always a weak type of evidence. It would depend on the nature
of the circumstances, the time when the confession is made and
the credibility of the witnesses who speak for such a confession”.

Generally extra- judicial confessions are made to confides and such

extra-judicial confession made to unknown persons has not been accepted
by the Courts. The faith of the accused on such person to whom such
confession is allegedly made is to be established by the prosecution.
(Jaspal Singh Vs. State of Punjab 1997 SCC Crl. 358) 40. The extra
judicial confessions must also be proved as true and voluntary.

Scope and ambit of Section 27 of the Indian Evidence Act: This

aspect has been illuminatingly expressed in Pulukuri Kotayya Vs. Emperor
AIR 1947 PC 6741 in the following words…..

“It is fallacious to treat the fact discovered within the section as

equivalent to the objection produced: the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given
must relate distinctly to the fact. Information as to past user or
the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that ‘I still produce the concealed
knife from the roof of my house’ does not lead to discovery of
knife; knives were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the fact discovered is
very relevant. But if to the statement the words be added ‘with
which stabbed A’, these words are inadmissible since they do not
relate to the discovery of the knife in the house of the informant”.

Uday Bhan VS State of UP (AIR 1962 SC 1116)42; Anter Singh

40 1997 SCC Crl. 358
41 AIR 1947 PC 67
42 AIR 1962 SC 1116
 20

Vs. State of Rajasthan AIR 2004 SC 2865 43, Mohd. Inayatullah Vs.
State of Maharastra (AIR 1976 SC 483)44 are some of the landmark
Judgments relating to Section 27.

In Sanjay Vs. State (NCT of Delhi) AIR 2001 SC 979) 45 it was

held that the fact that no independent witnesses are associated with
recoveries is not sufficient to doubt the prosecution version when such
statements are made before natural witnesses.
Not every time the fact that the object recovered from a place which is
open and accessible to others creates doubt in such recovery, if such article
is in a hidden state and remains unhampered. The question is not
whether it is accessible to others, but is whether it is visible to
others or not?
The various requirements under Section 27 can be summed up as
under:
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision
has nothing to do with the question of relevancy. The relevancy of
the fact discovered must be established according to the
prescriptions relating to relevancy of other evidence connecting it
with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered
3) The discovery must have been in consequence of some
information received from the accused and not by the accused’s
own act.
4) The person giving the information must be accused of any
offence.
5) He must be in the custody of a police officer;
6) The discovery of a fact in consequence of information received
from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest
is inadmissible”.

DYING DECLARATION:

Although, a Dying Declaration is a substantial piece of evidence, which

can form the sole basis for a conviction, if the same is not wholly reliable, it
requires corroboration. (P. Mani VS. State of Tamil Nadu 2006(3) SCC

43 AIR 2004 SC 2865

44 AIR 1976 SC 483
45 AIR 2001 SC 979
 21

161)46

A hyper technical view regarding certification by a doctor about the

conscious state of mind of the patient is diluted in Lakshman VS. State of
Maharastra 2002 SCC Crl. 1491 47, where the Magistrate categorically
stated about the questions and answers preceding such recording of dying
declaration indicating the fit state of mind of the patient.
Abundant commonsense will only guide where there are multiple
dying declarations. Simply because a dying declaration is translated it will
not become unreliable if it is otherwise credible and trustworthy. In Ravi
Kumar @ Kutti Ravi Vs. State of Tamilnadu 2006 AIR SCW 1037 48 the
second dying declaration setting up the theory of suicide was not accepted in
view of corroboration to the first dying declaration.

Disbelieving a dying declaration recorded by the doctor on the ground

that the deceased did not mention the presence of eye witnesses was held
improper in 2006 AIR SCW 342549 Hiralal yadav Vs. State of M.P.,
Simply because a dying declaration is not recorded by a Magistrate, it cannot
be disbelieved. (Balbir Singh Vs. State of Punjab 2006 AIR SCW
4950A50).

The possibility for becoming a patient unconscious instantaneously is

not a ground to disbelieve a dying declaration since it is not certain
(Gangaram Santharam Salunke Vs. State of Maharastra 2006 AIR
SCW 5918)51.

Where there are inconsistent dying declarations, as a matter of

prudence, corroboration is to be required. (Samadhan Dhudkakoli VS.
State of Maharastra 2008(8) Supreme 719)52.

A dying declaration has to be voluntary and true and not a result of

tutoring. On pretty grounds it cannot be rejected. It can be brief and need
not contain all the details. About the fit mental condition of the declarent eye
witness account prevails over medical opinion. (Nanahuram and another
Vs. State of Madhya Pradesh AIR 1988 SC 912) 53. If the version of the
declarent differs from the version of the prosecution the declarent version
only has to be discarded. Generally the first dying declaration has to
46 2006 (3) SCC 161
47 2002 SCC Crl. 1491
48 2006 AIR SCW 1037
49 2006 AIR SCW 3425
50 2006 AIR SCW 4950A)
51 2006 AIR SCW 5918
52 2008 (8) Supreme 719
53 AIR 1988 SC 912
 22

be preferred (Mohan Lal Gangaram Gehani Vs. State of Maharastra

AIR 1982 SC 83954 and Mohanlal and others Vs. State of Haryana
2007 (9) SCC 151)55.

The principles regarding dying declaration can be summed up as

indicated in Smt. Pani Ben Vs. State of Gujarath (AIR 1992 SC 1817) 56
as under:

I. There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration (Munnu
Raja and another Vs. The State of Madhya Pradesh
(1976(2) SCR 673)57.

ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration
(State of Uttar Pradesh Vs. Ram Sagar Yadav and others
AIR 1985 SC 41658 and Ramavati Devi Vs. State of Bihar AIR
1983 SC 164)59.

iii) The Court has to scrutinize the dying declaration carefully and
must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased has an opportunity to
observe and identify the assailants and was in a fit state to make
the declaration. (K. Ramachandra Reddy and another Vs. The
Public Prosecutor (AIR 1976 SC 1994)}60.

iv) Where the dying declaration is suspicious, it should not be

acted upon without corroborative evidence. (Rasheed Beg VS.
State of Madhya pradesh (1974 (4) SCC 264)61.

v) Where the deceased was unconscious and could never make

any dying declaration, the evidence with regard to it is to be
rejected ( Kala Singh Vs. State of M.P. (AIR 1982 SC
1021)}62.

vi) A dying declaration which suffers from infirmity cannot form

54 AIR 1982 SC 839

55 2007 (9) SCC 151
56 AIR 1992 SC 1817
57 1976(2) SCR 673
58 AIR 1985 SC 416
59 AIR 1983 SC 164
60 AIR 1976 SC 1994
61 1974 (4) SCC 264
62 AIR 1982 SC 1021
 23

the basis of conviction (Ram Manorath and others Vs. State of

U.P. (1981 (2) SCC 654)}63.

vii) Merely because a dying declaration does contain the details as

to the occurrence, it is not to be rejected (State of Maharashtra
Vs. krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)}64.

viii) Equally, merely because it is a brief statement, it is not to be

discarded. On the contrary the shortness of the statement itself
guarantees truth (Srajdeo Oza and others Vs. State of Bihar
(AIR 1979 SC 1505)}65.

ix) Normally the Court in order to satisfy whether the deceased

was in a fit mental condition to make the dying declaration looks
up to the medical opinion. But where the eye witness said that
the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. (Nanahau Ram
and another Vs. State of Madhya Pradesh (AIR 1988 SC
912)66.

x. Where the prosecution version differs from the version as given

in the dying declaration, the said declaration cannot be acted upon
(State of U.P. Vs. Madam Mohan and others (AIR 1989 SC
1519)}67.

xi. Where there is more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course,
if the plurality of dying declarations could be held to be
trustworthy and reliable, it has to be accepted (Mohanlal
Gangaram Gehani Vs. State of Maharashtra (AIR 1982 SC
839)68 and Mohan Lal and others Vs. State of Haryana
(2007) (9) SCC 151)}69.
CIRCUMSTANTIAL EVIDENCE:

A conviction can be solly based on the circumstantial evidence

provided the following things are established as held in Sarbir Singh Vs.
State of Punjab 1993 SUPP (3) SCC 41)70.
63 1981 (2) SCC 654
64 AIR 1981 SC 617
65 AIR 1979 SC 1505
66 AIR 1988 SC 912
67 AIR 1989 SC 1519
68 AIR 1982 SC 839
69 (2007)(9) SCC 151
70 1993 Supp (3) SCC 41
 24

I) The circumstances from which the conclusion of guilt is tobe

drawn should in the first instance be fully established.
II) All the facts so established should be consistent only with the
hypothesis of the guilt of the accused and should be such as to
exclude every hypothesis but the one sought to be proved;
III) The circumstances should be of a conclusive nature;
IV) The chain of evidence should not have any reasonable ground
for a conclusion consistent with the innocence of the accused.

In Padala Veera Reddy Vs. State of A.P. (1998 Supp (2)

Supreme 706)71 the Hon’ble Apex Court laid down the principle that when a
case rests upon circumstantial evidence, such evidence must satisfy the
following tests:
“1. the circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused and
none else; and
4. the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused but
should be inconsistent with his innocence”.

In Joseph Vs. State of Kerala 2000 SCC Crl. 92672 the non-
explanation of the accused as to what happened on the fateful night in
Section 313 Cr.P.C., examination has been held to be supplying the missing
link completing the chain of circumstances. It was held that witness may
lie, but circumstances do not”.

Last seen theory itself is sufficient to connect the accused to the

absence of any other links in the chain of circumstances (Jaswant Gir Vs.
Stateof Punjab 2005 (12) SCC 438)73.

Motive plays a significant role in the cases based upon circumstantial

evidence only *****
71 1998 Supp (2) Supreme 706
72 2000 SCC Crl. 926
73 2005 (12) SCC 438
 25

IDENTIFICATION PARADE:

For identifying the culprit or the crime property, identification parade

would be conducted. But some times the witness identifies the accused for
the first time directly in the Court without any such identification parade.
Though, the same is not held illegal, it was observed in State of
Maharastra VS. Sukhdev Singh AIR 1992 SC 2100 74, that it is extremely
risky to place implicit reliance on identification for the first time in the Court.
In several other cases such identification was disbelieved. In fact the person
required to identify an accused to have had no opportunity of seeing him
after commission of the crime and before his identification (Budhsen Vs.
State of U.P. AIR 1970 SC 1321)75. If he had such opportunity no value
could be attached to such evidence. Test Identification Parade can not be a
decisive factor for recording a conviction for it is not a substantive piece of
evidence (Mahavir Vs. State of Delhi 2008 (3) Supreme 111)76.
However, a person can be identified even in darkness from the manner of
speech, style of walking and other peculiar features (State of M.P. Vs.
Makhan 2008 (10) SCC 615B).

CONDUCT OF ACCUSED AND WITNESSES:

Eye witness – not informing the incident till the third day to
anyone. It is unnatural and hence unsafe to rely upon ( Harbans Lal Vs.
State of Punjab 1996 SCC Crl. 312)77.

Mere consistent version of the witness is not sufficient to show

the truthfulness if the Court otherwise finds his testimony doubtful,
particularly for the reason that his presence at the place of occurrence itself
is doubtful. (Badam Singh VS. State of M.P. AIR 2004 SC 26)78.

Failure of the prosecution to explain the injuries on the person of

the accused as fatal to its case since the genesis and origin is suppressed or
distorted (Lakshmi Singh Vs. State of Bihar AIR 1976 SC 2263)79.
However, if the injuries are simple absence of explanation is not fatal
(Mohinder Singh Vs. State of Punjab 2006 AIR SEW 1610) 80 and
Shajahan Vs. State of Kerala 2007 AIR SEW 2123)81.

74 AIR 1992 SC 2100

75 AIR 1970 SC 1321
76 2008 (3) Supreme 111
77 1996 SCC Crl.312
78 AIR 2004 SC 26
79 1976 SC 2263
80 2006 AIR SEW 1610
81 2007 AIR SEW 2123
 26

Existence of sole eye witness is not of sterling quality and as such it

is unsafe to base upon such witness for conviction. (Bhimmappa
Chandrappa Hosamani Vs State of Karnataka AIR 2006 SEW 5043) 82.
However, if the testimony of sole witness inspires confidence of the Court, it
can be relied on to base a conviction (Sunil Kumar Vs. the State of
Government of NCT of Delhi 2003 (11) SCC 367)83.

Evidence of interested and partisan witness cannot be thrown away

and the only requirement is that it shall be considered by the Court with
great care and caution (Mallanna Vs. State of Karnataka 2007 (8) SCC
523)84.

In 2006 AIR SEW 42185 B it was held that evidence of a hostile

witness cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross examined him. The extent of his version
found dependable can be accepted on a careful scrutiny.
In Satpal Vs. Delhi Administration reported in AIR 1976 SC
29486 it was held as under:
“Even in a criminal prosecution when a witness is cross-examined
and contradicted with the leave of the court by the party calling
him, his evidence cannot , as a matter of law, be treated as
washed off the record altogether. It is for the Judge of fact to
consider in each case whether as a result of such cross
examination and contradiction, the witness stands thoroughly
discredited or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process, the credit of the
witness has not be completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with due
caution and care, accept, in the light of the other evidence on the
record, that part of his testimony which he finds to be credit
worthy and act upon it. If in a given case, the whole of the
testimony of the witness is impugned, and in the process, the
witness stands squarely and totally discredited, the Judge should,
as a matter of prudence, discard his evidence in toto.”

Evidence of inimical witness cannot be readily believable (Kallu @

Masih VS. State of Madhya Pradesh AIR 2006 SCW 177 E) 87

82 AIR 2006 SEW 5043

83 2003 (11) SCC 367
84 2007 (8) SCC 523
85 2006 AIR SEW 421
86 AIR 1976 SC 294
87 AIR 2006 SCW 177 E
 27

When an interested witness is an injured witness also his evidence

cannot be discarded merely because he is interested. 2006 AIR SCW 1302).
Without strong foundation that the evidence of an interested witness is only
for false implication simply because he is related his evidence cannot be
disbelieved {2006 AIR SCW 3680(A)88}.

When some independent witnesses are examined whose evidence is

more or less consistent the non-examination of other independent
witnesses is not fatal. (2006 AIR SCW 4186A)89.

The Court will have no difficulty in accepting the testimony of a

witness whose testimony is wholly reliable and discarding the testimony of a
witness whose testimony is wholly unreliable. The actual requirement to
appreciate the evidence of a witness and the mettle and prowess of a Judge
would be well displayed in the cases where the witnesses are neither reliable
nor unreliable.

The doctrine of falsus in uno falsus in omnibus has no application

in India. Existence of some material is sine qua non for a fact to be proved.

Falsity of defence is immaterial. Prosecution is to establish its own

case beyond reasonable doubt (Tika VS. State of U.P. AIR 1974
Supreme Court 155)90.

If the evidence justifies a finding in favour of the accused, the accused

is entitled to acquittal, no matter whether the accused has taken the
said specific defence or not. (Kolkotha Corporation Vs. Culcutta
wholesale consumers 1970 Crl.L.J. 340)91

In a case where a specific defence has taken the defence evidence also
forms a part of the record of the case. There is no bar to find
corroboration of the prosecution even in the defence evidence.
(Nagar Swastya Aadhikari Vs. Kishan Singh 1969 ALL Cr.R 565) 92.

Similarly, when a defence witness tries to absolve the guilt of the

accused, even then the Court may find the accused guilty (Jagadeesh Mour
VS. State (Delhi Administration) 1986 30 Del.L.T 3 (SN)}93

88 2006 AIR SCW 3680 A

89 2006 AIR SCW 4186A
90 AIR 1974 SC 155
91 1970 Crl.L.J 340
92 1969 ALL Cr.R.565
93 1986 30 De.LT 3 (SN)
 28

Some times falsity of defence plea may be a link in the chain of

circumstances to make it complete. (State of Gujarat Vs. Kalidas,
Shankerlal Vs. State of Maharastra AIR 1981 SC 765) 94. However, the
falsity of the defence case cannot establish the prosecution’s case unless the
other circumstances point out unfailingly the guilt of the accused. (State Vs.
Bipra Samal 1982 Crl.L.J. 214 Orissa95)

Photographic picturisation of an incident cannot be expected from

a witness (Tharachand Vs. State of Rajasthan 1977 S.R.L.J. 34) 96.
Reactions of persons in a given situation may be different. Hence, simply
because a witness did not intervene his evidence cannot be discarded.
(Mulya Kirsani Vs. State of Orissa 1984 Crl.L.J. 123) 97

When there are two sets of witnesses one favouring the accused and
the other favouring the prosecution, the set favouring the accused should not
be discarded without proper reason. (Prem Singh Vs. State of Rajasthan
1980 Crl.L.J. NOC 65 Rajasthan)98.

In fact minor discrepancies guarantee truth. Minor contradictions and

omissions are not fatal to the case of the prosecution. Similarly witnesses
deposing like parrots cannot be trusted if their evidence is devoid of
naturalness. (Bhogini Bai Vs. State of Gujarath AIR 1983 SC 759)99.

Natural discrepancies have to be ignored while material discrepancies

cannot be.

Counter cases should be tried by the same Judge one after another
and Judgments should be pronounced after both cases being heard and
however evidence in one case cannot be used in another. (Muhib Ali Vs.
State of M.P. AIR 1975 SC 149)100

Court is not concerned with how and where the evidence is gathered.
It only is concerned with whether the fact is a relevant fact or not?
Therefore, the documents produced by illegal means may be admitted in
evidence, if it is relevant and admissible. (Magraj Patoudia Vs. R.K. Birla
AIR 1971 SC 1295)101.

94 AIR 1981 SC 765

95 1982 Crl.L.J 214 Orissa
96 1977 S.R.L.J. 34
97 1984 Crl.L.J 123
98 1980 Crl.L.J NOC 65
99 AIR 1983 SC 759
100 AIR 1975 SC 149
101 AIR 1971 SC 1295
 29

Evidence can not be rejected on the ground that it is the outcome of

unauthorised investigation. (P.P. Vs. Kalagana Kanaka Rao 1969 (2)
An.W.R 449)102, Pooranmal Vs. Director of Inspection 1974(2) SCR
705)103.

Inadmissibility of a statement does not effect the investigation. Thus,

when investigation is held treating a statement as a FIR, but eventually is
found to be hit by Section 162 Cr.P.C., the Investigation is not effected.
(State of Orissa Vs. Bhagabon Naik 1986 (2) Crimes 624(628)}104.

In Balvant Singh Vs. Director of Inspection AIR 1969 Delhi

91105, the Hon’ble High Court of Delhi after an elaborate review held that the
information collected by the department in pursuance of an illegal search can
be used as evidence and that Article 19 did not forbid it.

Presented by : Sri G. Chakrapani,

Principal Senior Civil Judge,
Visakhapatnam.

From the Team of: Sri K. Siva Rama Krishna,

Hon’ble I Addl. Special Judge for CBI Cases,
Visakhapatnam.

Sri Krishna Prasad,

Junior Civil Judge, Chodavaram.

102 1969 (2) An.W.R. 449

103 1974(2) SCR 705
104 1986 (2) Crimes 624 (628)
105 AIR 1969 Delhi 91
 1

Article on Corpus Delicti

Presented by A.Krishna Prasad
P.J.C.J. Chodavaram, VSKP.

The term corpus delicti, which literally means “body of crime,” is best understood in realizing a person 

cannot be put on trial   for a crime, unless it is first proven that the crime happened to begin with. In  

other words, the prosecution would need to demonstrate that something bad happened as a result of a  

law having been violated, and that someone–the accused–was the one who violated it. Corpus delecti 

means the substance or foundation of a crime i.e., a fundamental fact required to prove that a particualr 

crime was committed and the material   substance or object upon which a crime has been committed.  

There are two elements of corpus delicti in any offense:

1.A certain consequence, or injury, has occurred.
2.The consequence, or injury, is a result of a person’s intentional, unlawful act.
Corpus delecti from the Latin meaning body of evidence is the proff that a crime has taken place.  When  

applied to a criminal case, proof of a crime must be shown in order to convit a person of the crime.  The  

presentation corpus delicti is often necessary in a criminal case to prove beyond reasonable doubt that 

the accused is guilty of the charges against him/her.  The prosecution in a criminal case has the burden 

of proving each element of a crime in order to secure convition.  When a person is charged with theft,  

the corpus delecti is proof that property was stolen.  When a person is charged with the crime of arson, 

the corpus delicti is the burned of property or evidence that the arson was committed.  In a murder case,  

the corpus delicti is the dead body of the victim.  

Corpus Delicti and a Confession:­

When someone confesses to a crime, the issue of corpus delicti becomes a little more tricky, as a person’s 

confession, without substantial proof that the required elements of corpus delicti  exist, is not generally 

sufficient to convict the person.  As a matter of fact, a person’s statement, or confession, may not even be 

admissible in court, if the prosecution has not already presented some independent evidence that that 

the crime even occurred.  Remember that the Latin term means “the body of the offense,” not necessarily 

referring to the body of the victim. To convict someone of murder in such a case, the prosecution must  

first prove the two required elements, that the victim was killed, and that the death was the result of a  

criminal act, using evidence other than what might be found on the missing body. In this way, the legal 

system defines corpus delicti as the fact of a crime having actually been committed.
 2

Example of Corpus Delicti in Arson Cases:­

While the term corpus delicti commonly makes people to think of the need for a body in a murder 

case, it is necessary to have this “body of evidence” in other types of crime as well.  Arson cases 

are especially challenging to prosecute, as the state must show proof that (1) a fire occurred, 

causing damages, and (2) the fire was caused by a criminal or intentional act, rather than accident 

or   nature.  Arson   cases  require   the   same   presentation  of  evidence   surrounding   the   fact   of   the 

crime, other than a person’s confession, as murder.

The Issue of ‘No Corpse, No Crime:­

Throughout the years, television and big screen crime dramas have portrayed corpus delicti in the sense 

that, if there is no body, there is no crime. The general rule is also that  an accused cannot be convicted 

of murder if a corpse cannot be produced.  This is not true. There is an exception to this rule, however in 

certain   cases,   it   may   be   admissible   to   prove     the   basis   of   corpus   delicti   based   on   presumptive 

(circumstantial)   evidence   rather   than   conclusive   evidence.   If   the   prosecution   can   show   presumptive 

evidence of corpus delicti beyond reasonable doubt, the defendant can be found guilty even if the actual 

body of the crime cannot be directly presented.  

In all murder cases recovery of dead body is not mandatory: In Ram Gulam Chaudhury and others 

Vs State of Bihar (SC) it was held that “it is not at all necessary for a conviction for murder that the  

corpus   delicti   be   found.     Undoubtedly,   in   the   absence   of   corpus   delicti   there   must   be   direct   or 

circumstantial leading to the inescapable conclusion that the person had died and that the accused are  

the persons who had committed the murder.  In a trial for murder it is not an absolute necessity or an 

essential ingredient to establish corpus delicit.  The fact of death of the deceased must be established like 

any other fact.   Corpus delicti in some cases may not be possible to be traced or recovered.   In the  

absence of corpus delicti what the court looks for is  clinching evidence that proves that the victim has  

been done to death.   If the prosecution is successful in providing cogent and satisfactory proof of the  

victim having met a homicidal death, absence of  corpus delicti will not by itself be fatal to a charge of  

murder.  

Elements of corpus delicti:­

1. Mental State (Mens Rea).
2.Conduct (Actus Reus).
3.Concurrence.
4.Causation.
5.Attendant Circumstances.
6.Harm.
 3

1. Mens Rea:­

Mens rea or evil intent or guilty mind. This is the mental element of the crime. A guilty mind  

means   an   intention   to   commit   some   wrongful   act.   Intention   under   criminal   law   is   separate   from   a  

person's motive.  There can be no crime of any nature without mens rea or an evil mind. Every crime 

requires a mental element and that is considered as the fundamental principle of criminal liability. The 

basic requirement of the principle mens rea is that the accused must have been aware of those elements  

in his act which make the crime with which he is charged.  There is a well known maxim in this regard, 

i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together  

constitute a crime. It comes from the maxim that no person can be punished in a proceeding of criminal  

nature unless it can be showed that he had a guilty mind.   A lower threshold of  mens rea  is satisfied 

when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recelessness.  

It is the mental state of mind of the person at the time the actus reus was committed.  For instance, if C 

ears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a  

neighbour's   house,   he   could   be   liable   for   poisoning.   Courts   often   consider   whether   the   actor   did  

recognize the danger, or alternatively ought to have recognized a risk. Of course, a requirement only that 

one  ought  to   have   recognized   a   danger   (though   he   did   not)   is   tantamount   to   erasing  intent  as   a 

requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law 

but is obviously still an important part in the criminal system.  Wrongfulness of intent also may vary the 

seriousness of an offense and possibly reduce the punishment but this is not always the case. A killing 

committed with specific intent to kill or with conscious recognition that death or suerious bodily harm  

will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness  

could be manslaughter.  On the other hand, it matters not who is actually harmed through a defendant's 

actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person 

with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target 

to the person who actually was struck.

2. Actus Reus [Guilty Act Or Omission]:­

   Actus   reus  is   "guilty   act"   and   is   the   physical   element   of   committing   a   crime.   It   may   be 

accomplished by an action, by threat of action, or exceptionally, by an ommission to act, which is a legal  

duty to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a 

young child also may provide the actus reus for a crime.  Where the actus reus is a failure to act, 

there must be a  duty of care.   In other words, some overt act or illegal omission must take place in 

 4

pursuance of the guilty intention. Actus reus is the manifestation of mens rea in the external world. Prof. 

Kenny was the first writer to use the term ‘actus reus’. He has defined the term thus­ “such result of 

human conduct as the law seeks to prevent”.  An actus reus may be nullified by an absence of causation. 

For example, a crime involves harm to a person, the person's action must be the but for cause and  

proximate cause of the harm.  If more than one cause exists (e.g. harm comes at the hands of more than  

one culprit) the act must have "more than a slight or trifling link" to the harm. 

3.Concurrence:­

Concurrence  (also  contemporaneity  or  simultaneity)   is   the   apparent   need   to   prove   the 
simultaneous occurrence of both actus reus ("guilty action") and mens rea ("guilty mind"), to constitute a 
crime; except in crimes of strict liability.   Suppose for example that the accused accidentally injures a 
pedestrian while driving. Aware of the collision, the accused rushes from the car only to find that the  
victim is a hated enemy.  At this point, the accused joyfully proclaims his pleasure at having caused the  
injury. The conventional rule is that no crime has been committed.   In this case actus reus is compled 
but mens rea is not there, he only moved from his car as victim is enemy.  To be convicted, the accused 
must have formed the  mens rea  either before or during the commission of the  actus reus. In the vast 
majority of cases, this rule works without difficulty.

Two types of concurrence in criminal law:­

1.Temporal concurrence – the actus reus and mens rea occur at the same time.
2.Motivational concurrence – the mens rea motivates the actus reus.

4. Causation:­ 

It is the "causal relationship between conduct and result".  In other words, causation provides a 

means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as  

the actus reus   (an action) from which the specific injury or other effect arose and is combined with  

mens rea (a state of mind) to comprise the elements of guilt. Causation only applies where a result has 

been achieved and therefore is immaterial with regard to inchoate offenses.  Legal systems more or less  

try to uphold the notions of fairness and justice. If a state  is going to penalize a person or require that 

person pay compensation to another for losses incurred, liability is imposed according to the idea that  

those who injure others should take responsibility for their actions. Although some parts of any legal  

system   will   have   qualities   of   strict   liability,   in   which   the   mens   rea   is   immaterial   to   the   result   and 

subsequent liability of the actor, most look to establish liability by showing that the defendant was the  

cause   of   the   particular   injury   or   loss.     Even   the   youngest   children   quickly   learn   that,   with   varying 

degrees of probability, consequences flow from physical acts and omissions. The more predictable the  
 5

outcome, the greater the likelihood that the actor caused the injury or loss intentionally. There are many 

ways in which the law might capture this simple rule of practical experience: that there is a natural flow  

to events, that a reasonable man in the same situation would have foreseen this consequence as likely to  

occur,   that   the   loss   flowed   naturally   from   the   breach   of   contractual   duties   or   tortuous   actions,   etc. 

However it is phrased, the essence of the degree of fault attributed will lie in the fact that reasonable  

people try to avoid injuring others, so if harm was foreseeable, there should be liability to the extent that  

the extent of the harm actually resulting was foreseeable.

Relationship between causation and liability:­
Causation of an event alone is insufficient to create legal liability.  Sometimes causation is one part of a 
multi­stage   test   for   legal   liability.   For   example,   for   the   defendant   to   be   held   liable   for   the   tort   of 
negligence, the defendant must have owed the plaintiff a duty of care, breached that duty, by so doing 
caused damage to the plaintiff, and that damage must not have been too remote. Causation is but one  
component of the tort.  On other occasions, causation is the only requirement for legal liability (other  
than the fact that the outcome is proscribed). For example, in the law of product liability, the courts have  
come to apply to principle of strict liability: the fact that the defendant's product caused the plaintiff 
harm is the only thing that matters. The defendant need not also have been negligent.   On still other  
occasions, causation is irrelevant to legal liability altogether. For example, under a contract of indemnity  
insurance,  the insurer  agrees to indemnify the victim for harm not caused by the insurer, but by other 
parties.  Because of the difficulty in establishing causation, it is one area of the law where the case law  
overlaps   significantly   with   general   doctrines   of   analytic   philosophy   to   do   with   causation.   The   two  
subjects have long been somewhat intermingled.

Establishing causation:­

Where establishing causation is required to establish legal liability, it usually involves a two­stage inquiry, 
firstly   establishing   'factual'   causation,   then   'legal'   causation.    ‘Factual’   causation   must   be   established 
before inquiring into legal causation, perhaps by assessing if the defendant acted in the plaintiff’s loss. 
Determining ‘legal’ causation often involves a question of public policy regarding the sort of situation in 
which, despite the outcome of the factual enquiry, the defendant might nevertheless be released from  
liability, or impose liability.

Establishing factual causation:­

The usual method of establishing factual causation is the but­for test. The but for test inquires ‘But for 
the defendant’s act, would the harm have occurred?’ A shoots and wounds B. We ask ‘But for A's act,  
would B have been wounded?’ The answer is ‘No.’ So we conclude that A caused the harm to B. The but 
for test is a test of necessity. It asks was it ‘necessary’ for the defendant’s act to have occurred for the  
 6

harm to have occurred.  One weakness in the but­for test arises in situations where each of several acts  
alone are sufficient to cause the harm. For example, if both A and B fire what would alone be fatal shots  
at C at approximately the same time, and C dies, it becomes impossible to say that but­for A's shot, or 
but­for B's shot alone, C would have died. Taking the but­for test literally in such a case would seem to  
make neither A nor B responsible for C's death.

Establishing legal causation:­

Notwithstanding   the   fact   that   causation   may   be   established   in   the   above   situations,   the   law   often 
intervenes and says that it will nevertheless not hold the defendant liable because in the circumstances  
the defendant is not to be understood, in a legal sense, as having caused the loss.   The most important  
doctrine is that of novus actus interveniens, which means a ‘new intervening act’ which may ‘cut the chain 
of causation’.

Proximate cause:­
The   but­for   test   is   factual   causation   and   often   gives   us   the   right   answer   to   causal   problems,   but  
sometimes not. Two difficulties are immediately obvious. The first is that under the but­for test, almost  
anything is a cause. But for a tortfeasor's grandmother's birth, the relevant tortious conduct would not 
have occurred.  But for the victim of a crime missing the bus, he or she would not have been at the site 
of the crime and hence the crime would not have occurred. Yet in these two cases, the grandmother's 
birth or the victim's missing the bus are not intuitively causes of the resulting harm. This often does not  
matter in the case where cause is only one element of liability, as the remote actor will most likely not 
have committed the other elements of the test. The legally liable cause is the one closest to or most  
proximate to the injury. This is known as the Proximate Cause rule. However, this situation can arise in 
strict liability situations.

Intervening cause:­
A critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not have  
been struck if she had not been injured in the first place. Clearly then, A caused B's whole injury on the 
‘but for’ or NESS test.  However, at law, the intervention of a supervening event renders the defendant 
not liable for the injury caused by the lightning.

The effect of the principle may be stated simply:­
if   the   new   event,   whether   through   human   agency   or   natural   causes,   does   not   break   the   chain,   the 
original actor is liable for all the consequences flowing naturally from the initial circumstances. But if the 
new act breaks the chain, the liability of the initial actor stops at that point, and the new actor, if human,  
will be liable for all that flows from his or her contribution.
 7

Independent sufficient causes:­
When two or more negligent parties, where the consequence of their negligence joins together to cause 
damages,   in   a   circumstance   where   either   one   of   them   alone   would   have   caused   it   anyway,   each   is  
deemed to be an "Independent Sufficient Cause," because each could be deemed a "substantial factor,"  
and both are held legally responsible for the damages. For example, where negligent firestarter A's fire 
joins with negligent firestarter B's fire to burn down House C, both A and B are held responsible.  The  
other problem is that of overdetermination. Imagine two hunters, A and B, who each negligently fire a 
shot that takes out C's eye. Each shot on its own would have been sufficient to cause the damage. But for  
A's shot, would C's eye have been taken out? Yes. The same answer follows in relation to B's shot. But on 
the   but­for   test,   this   leads   us   to   the   counterintuitive   position   that   neither   shot   caused   the   injury. 
However, courts it can be held that in order to prevent each of the defendants avoiding liability for lack 
of actual cause, it is necessary to hold both of them responsible, 

Concurrent actual causes:­
Suppose that two actors' negligent acts combine to produce one set of damages, where but for either of 
their negligent acts, no damage would have occurred at all. This is two negligences contributing to a 
single cause, as distinguished from two separate negligences contributing to two successive or separate 
causes. These are "concurrent actual causes". In such cases, courts have held both defendants liable for 
their negligent acts. Example: A leaves truck parked in the middle of the road at night with its lights off.  
B fails to notice it in time and plows into it, where it could have been avoided, except for want of 
negligence, causing damage to both vehicles. Both parties were negligent. 

Foreseeability:­
Legal   Causation   is   usually   expressed   as   a   question   of   'foreseeability'.   An   actor   is   liable   for   the  
foreseeable, but not the unforeseeable, consequences of his or her act. For example, it is foreseeable that  
if I shoot someone on a beach and they are immobilized, they may drown in a rising tide rather than  
from the trauma of the gunshot wound or from loss of blood. However it is not (generally speaking)  
foreseeable   that   they   will   be   struck   by   lightning   and   killed   by   that   event.     This   type   of   causal 
foreseeability is to be distinguished from foreseeability of extent or kind of injury, which is a question of  
remoteness of damage, not causation. For example, if I conduct welding work on a dock that lights an oil 
slick that destroys a ship a long way down the river, it would be hard to construe my negligence as 
anything other than causal of the ship's damage. There is no novus actus interveniens. However, I may not 
be held liable if that damage is not of a type foreseeable as arising from my negligence: 
 8

Example:­An example of how foreseeability does not apply to the extent of an injury is the eggshell skull  
rule. If A punched B in the jaw, it is foreseeable that B will suffer a bodily injury that he will need to go  
to the hospital. However, if his jaw is very weak, and his jaw comes completely off from A's punch, then 
the doctor bills, which would have been about   Rs.5,000/­ for wiring his jaw shut had now become  
Rs.1,00,000/­ for a full­blown jaw re­attachment. A would still be liable for the entire Rs.1,00,000, even  
though Rs.95,000 of those damages were not reasonably foreseeable.

5.Attendant circumstances:­

Attendant circumstances (sometimes external circumstances) are the facts surrounding an event. 
Accompanying factors relevant ot the crime. Generally in commission of offence several actions to be 
done   inaddition   to   the   concept   of   mens   rea.     All   the   said   relevant   actions   shall   be   construced   as 
attendant circumstnaces which are necessary to evalute the concept of corpus delecti.   In order for a 
person to be found guilty of this crime, the evidence must prove that the accused  uttered a profanity  
(the act) in a public place (the contextual attendant circumstance) with the intention of provoking a 
violent reaction (the mental element demonstrating the right type of culpability) and thereby causes a 
breach of the peace (the result prohibited by law). There are no attendant circumstances that might 
invoke an excuse or other general defence. Indeed, the victim in this instance being a police officer  
would probably be considered an aggravating circumstance and increase the penalty for the crime. 

6.Harm:­ 

Harm is final Damages resultant from criminal act.   The general principle is that every crime 
must has its outcome by way of harm, it is called crime.  It may be in physical or in mental form. The  
exception is victimless crime, it is an illegal act that typically either directly involves only the perpetrator, 
or occurs between consenting adults; because it is consensual in nature, there is arguably no true victim.  
Three characteristics can be used to identify whether a crime is victimless crime ­ if the act is excessive,  
is indicative of a distinct pattern of behavior, and its adverse effects impact only the person who has  
engaged in it.  Examples of these types of crimes include possession of illegal contraband, and a typical  
sexual behavior.   Recreational drug use and prostitution, public drunkness, vagarancy, obseenity   are 
other examples for victimless crimes.

Conclusion:­

This principle prevents wrongful conviction as well as wrongful acquittals.       
 1

EFFECT OF NON RECOVERY OF CRIME WEAPON AND OTHER

INCRIMINATING MATERIAL.

“Throughout

history, it has been inaction of those who could have acted; the

indifference of those who should have known better; the silence of

the voice of justice when it mattered most; that has made it

possible for evil to triumph.”

- Haile Selassie

`Crime' is an event in real life and is the product of

interplay of different human emotions as has been observed in

Khali ram Vs. State of Madhya Pradesh reported in 1973 AIR 2773.

The basic three Cardinal Principles of Criminal jurisprudence are :

• Prosecution to prove its case beyond reasonable doubt.

• The accused must be presumed to be innocent

• The onus of prosecution never shifts.

 2

Case law:

Non recovery of crime weapon is not fatal:

Praveen Kumar Vs. State reported in 1997 Criminal LJ

Pg.577 : it is held that simply because the knife used in the

commission of offence could not be recovered, it cannot be said

that the weapon was not used, especially Where there is

unimpeachable evidence to indicate that knife was actually used by

the accused.

Mahindar Vs State reported in 2010 VII AD Delhi 645:

it was held that non-recovery of weapon of offence during

investigation is not such an important factor to neutralise the direct

evidence of complicity of accused in the murder of deceased.

In Lakshmi & Ors. vs. State of U.P , 2002 (7) SCC 198, the

Supreme Court has held as hereunder:-

" Undoubtedly, the identification of the body, cause of

death and recovery of weapon with which the injury

could be inflicted on the deceased are some of the

important factors to be established by the prosecution in an

ordinary given case to bring home the charge of offence

under Section 302 IPC. This, however, is not an inflexible

 3

rule. It cannot be held as a general and broad proposition

of law that where these aspects are not established, it

would be fatal to the case of the prosecution and in all

cases and eventualities, it ought to result in the acquittal of

those who may be charged with the offence of murder."

Thus where there is clear, unimpeachable and trust worthy ocular

evidence available which is fully corroborated by the medical

testimony, non recovery of weapon would not, in any manner

affect the prosecution case.

Non Recovery of crime weapon is fatal:

Raja Vs.State by Sub Inspector of Police in Criminal

Revisionary case 772/2008 dt.09.06.2015 wherein it is held that for

non production of crow bar is not a fatal to the case of prosecution.

In case Sree Rajan Vs. FRO Salem reported in 2005 CRL LJ

Pg 987 :which was followed the Judgment of Hon’ble Apex Court in

Jitendra Vs.State of Madhya Pradesh in 2003 Crl.L.J pg.4985

wherein it is held that non-production of Sandal Wood and

Ambassador car in which it is transported is fatal to the case of the

prosecution.
 4

Yogesh Singh Vs.Mahabeer Singh reported in 2016(4)

Crimes 121. the Hon’ble Apex Court held that mere non-recovery

of weapon is not fatal to the case of the prosecution which was

mentioned at para NO.47.

Govindaraja @ Govindu Vs.State by Sreerampuram Police

Station in Crl.Appeal No.984/07 in offence u/s.302 of IPC the

Hon’ble Apex Court held that non-seizure of the weapon is fatal to

the case of prosecution.

Difference of Sec 8 and Sec 27 of Evidence Act 1872

In A.N. VENKATESH AND ANOTHERvsSTATE OF

KARNATAKA, AIR 2005 S.C. 3809. Para 9 of the Judgment

mentioned that

“Even if we hold that the disclosure statement made by accused

appellants (Ex-P 14 AND 15 ) is not admissible under Section 27 of

theEvidence Act still it is relevant under Section 8.The evidence of

the investigating officer and PWs 1, 2, 7

and 4 the spot mazhar witness that the accused had taken them to

the spot and pointed out the place where the dead body was

buried, is an admissible piece of evidence undersec8 of Indian

evidence act 1872

 5

Ocular, Medical Evidence and Material object :

In Mritunjoy Biswas Vs. Pranab alias Kutti Biswas and Another

AIR 2013 SUPREME COURT 3334 : (2013) 12 SCC 769.

The Hon’ble Supreme Court held that “There is ample

unimpeachable

ocular evidence corroborated by medical evidence -Mere non-

recovery of weapon from accused does not affect prosecution case”

Impact for not sending material object not send to F S L:

In State of Rajasthan Vs. Wakteng reported in AIR 2007 SC 2020,

it was held by the Hon’ble Supreme Court that “Recovery on

disclosure statement made by accused, Weapon however not sent

to Forensic Science Laboratory. Accused also not quizzed u/S. 313,

Criminal P.C.on question of recovery recovery of weapon,

conviction can not be sustained.

Latches on investigation:

In C. Muniappan and Others. Vs. State of Tamil Nadu, reported in

AIR

2010 SUPREME COURT 3718, it was held by the Hon’ble Supreme

 6

Court that “The defect in the investigation by itself cannot be

ground for acquittal. If primacy is given to such designed or

negligent investigations or to the omissions or lapses by

perfunctory investigation, the faith and confidence of the people in

the criminal justice administration would be eroded. Where there

has been negligence on the part of the investigating agency or

omissions, etc.

Which resulted in defective investigation, there is a legal

obligation on the part of the Court to examine the prosecution

evidence dehors such lapses, carefully, to find out whether the said

evidence is reliable or not and to what extent it is reliable and as to

whether such lapses affected the object of finding out the truth.

Therefore, the investigation is not the solitary area for judicial

scrutiny in a criminal trial. The conclusion of the trial in the case

cannot be allowed to depend solely on the probity of investigation”

CONCLUSION:

The facts of the cases may not be similar. So also the evidence

both oral and documentary let in by the prosecution, so also the

seizure of material objects varies, depending upon the facts and

circumstances of each case. Therefore the effect of non recovery of

 7

crime weapon and other incriminating material depends upon facts

and circumstances of each case . The court has to be vigilant in

appreciation of evidence.

Prepared by:-

O.V.NAGESWAR RAO
Spl. Judge for trial of cases under
SC&ST (POA) Act cum
X1 Addl.District Judge
visakhapatnam