Expert Evidence:

Sri Chand Batra v. State of UP – Excise Officer – Received Training – 21 years of experience
– tested lakhs of samples– Tests in addition to smelling tests were employed – Hence,
specialized knowledge and skill. Tests adopted by him with all attendant circumstances.
Stat of HP v. Jai Lal – Expert is one who makes a particular subject a matter of study, practice
or observation; skilled and has adequate knowledge – Expert is not a witness of fact – Duty
of expert to furnish the judge with scientific criteria for testing accuracy of conclusions which
the judge will then apply to arrive at his own independent conclusions – Credibiility of such
witness is based on reasons given - No reasons were stated for findings (No scientific study)
– Nor did he undertake such activities before – Some experience might have been gained by
virtue of position held but not enough for the label of expert witness. Expert witness doesn’t
automatically become fact – he has to be a witness in a court and face cross-examination.
State (CBI) v. S. J. Choudhary, (1996) 2 SCC 428 – The word science and art are of wide
import and cannot have a narrow meaning, any subject beyond comprehension of a layperson
– The skill or technique of studying peculiar features of a typewriter and the comparison of
the disputed typewriting with the admitted typewriting was done on the same instrument was
based on a scientific statement of the two instruments with reference to peculiarities therein,
and the conclusion drawn is based on recognized principles of the scientific study. Hence,
expert opinion.
Indian Telegraph Act includes Telephone; Hence, Handwriting can include typewriting. This
is because the word has to be interpreted with respect to prevailing circumstances over a
century after the enactment was passed. – The use of typewriters is also in vogue as opposed
to a century ago – additional reason to hold to hold the opinion of a typewriter expert;
admissible.
Oral Evidence:
Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448 – Content of documents
must be proved by primary evidence which is the document itself – Where the document
itself is produced, evidence of oral agreements is excluded – S. 91 and 92 are complementary,
without S. 92, the operation of S. 91 would be frustrated – Without S. 91, S. 92 would be
inoperative - The rule of exclusion under Section 92, which bars oral evidence contradicting
the terms of a written document, does not apply when the dispute involves a stranger to the
document like the official assignee. This decision enunciates the principle that the restriction
on oral evidence in Section 92 is based on mutuality (where one of the parties to a contract
cannot seek specific performance thereof while the other will be able to do so) and applies
only to parties to the document or their representatives in interest.
Documentary Evidence:
Marvari Kumhar v. BG Ganeshouri
Sub-clause (c) is independent of sub-clause (f) of Section 65;
Secondary evidence can be laid, even of a public document, if the conditions as laid down
under Sub-clause (c) are fulfilled.
The existence of the earlier judgment was not denied by the respondents. They acknowledged
that there had been a prior suit where the community’s title was affirmed.
The ordinary copy of the earlier judgment was admissible as secondary evidence under
Section 65(c) of the Evidence Act, as the original was lost and the certified copy was
unavailable. This judgment had already settled the title issue, invoking the principle of res
judicata, which precluded the respondents from re-litigating the same issue.
Anvar v. PK Basheer
For a Primary Electronic Record (produced under S. 62), there is no requirement for
compliance with Section 65B -Evidence has to be relevant and admissible – then
genuineness, veracity, or reliability is seen by court (Hence, e-records must be produced as
per S. 65 B first) – Oral Evidence of E-Record not permissible if S. 65 is not complied with –
S. 65 B (special law over general law) requirements are a must to protect sanctity of records
stored in computer – E-records are documentary evidence under S. 3.
Shafhi Mohammed v. State of HP (2018) 2 SCC 801
Distinguished from Anvar v. PK Basheer
Section 65 A and B aren’t a full code – primary evidence of E-record can’t be covered under
such sections; it must be covered under S.3 – S. 65 B (4) applicable only when record is
produced by someone in position of control of said device otherwise S. 63 and 65 will be
applicable.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
Section 65B (4) is clear that oral evidence is admissible only if lead in the manner stated and
holding otherwise would render 65B (4) otiose – S. 65A and B are a complete code in matters
of admissibility of evidence of information contained in e-records – 65B (4) is a sine qua non
for admissibility – The inability to procure such info, by reason of device being in someone
else’s control, is erroneous reasoning (Shafhi Md.) as an application can be made to the judge
– judge may grant on the basis of facts of each case (keeping in mind the greater ends of
justice).
Ram Bharosey v. State of UP
Wife sees the appellant come down the roof into the house with blood-stained clothes. He
hands her some jewelry (makes a few statements too) and takes a bath and puts on the same
clothes. S. 122 – Statements which were made to wife of giving her jewelry and of his having
gone and stolen them is privileged. But her reference to his acts and conduct of coming home
in the early hours, of his movements in the house, his having taken a bath are not covered
under S. 122 and are admissible.
State of Punjab v. Sodhi Sukhdev Singh (Overruled)
An adverse inference may be drawn if a party withholds documents (Supported by S. 114) –
An adverse inference cannot be drawn under S. 123 when the privilege to not produce
documents is upheld (principle of overriding and paramount public interest) – If proper
functioning of public service would be impaired, such class of documents may claim the
privilege – in such cases documents are protected from S. 123 and if the head of the
department doesn’t permit its production, court cannot compel production.
SP Gupta v. UoI
Crown Privilege – not Applicable in India Combined reading of S. 123 and S. 162 – court can
compel production of documents by virtue of S. 162 – not bound by assertions of ministers or
HoD – S. 123 can’t be waived by the state and even if it doesn’t file an affidavit, the court is
still bound to decide whether disclosure would affect public interest gravely.
RD Nayak v. State of Gujarat
A child of tender age may be allowed to testify if it has the capacity to understand questions
and give rational answers – as a rule of prudence the court must scrutinize it closely and upon
being convinced about the quality of the evidence and its reliability can record conviction –
the decision on the intelligence of the child rests with the trial judge who may notice his
mannerism and can resort to any exam to disclose his intelligence and capacity, and his
understanding of an oath – higher court may overturn decision if found to be erroneous –
precaution is necessary because they may be vulnerable to tutoring and live in a world of
make-believe – inherent probability and consistency.
Pannayar v. State of TN
Purpose of re-examination is only to get some clarification of doubts created in cross-
examination – One cannot supplement examination in chief by way of a re-examination and
introduce new facts which have no relevance to the examination in chief – questions
regarding garments worn by the deceased were put to PW 1 in re-examination – trial court
erred in the same – even if the trial court was justified, the evidentiary value of the same was
nil.
Raghu Nandan v. State of UP - Section 162 Cr.P.C. does not limit the court's powers under
Section 165 IEA to examine witnesses for justice. Statements made to the police during
investigation do not fall within any of the prohibited categories under S. 165 IEA. It is a
restriction placed upon the parties.
Giridhari v. State (NCT Delhi)
Burden of Proof
Shambu Nath Mehra v. State of Ajmer:
S. 106 is an exception to S. 101 – While the latter lays down the general rule, the former
containing the word “especially” intends to form an exception in certain circumstances in
which it would be impossible for the prosecution to meet the burden of proof (differentiate
with hard, if the fact is as much available to the prosecution with the exercise of some due
diligence), to prove facts which are within the knowledge of the accused who could prove it
with ease – Balance of convenience and the disproportion of labor involved in finding out
and proving some facts vis a vis, the triviality involved.
Amba Lal v. UoI
S. 106 cannot be used to undermine the well-established rule of law, save in exceptional
circumstances, he burden is on the prosecution and it never shifts.
Collector of Customs, Madras v. D Bhoormall
Section 106 of the Evidence Act states that when any fact is especially within the knowledge
of any person, the burden of proving that fact is upon him. This principle is used to ease the
burden on the prosecution or the Department when the facts in question are particularly
within the knowledge of the accused or the person concerned. In cases of smuggling, many
facts about the illicit business are within the special or peculiar knowledge of the person
involved. Due to the secretive nature of smuggling, it is exceedingly difficult for the
prosecution to prove every detail.
Amba Lal, where the Department failed to provide adequate evidence and the discrepancies
were not properly addressed, with cases where the Department's circumstantial evidence and
the accused's failure to explain were sufficient to shift the burden of proof. In this case the
department via prima facie circumstantial evidence established that goods were smuggled.
Sufficient to raise a presumption in its favor with regard to facts sought to be proved.
Evidentiary Presumptions
Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik & Anr:
Court has to proceed on the assumption that the results of the DNA test are valid – However,
non-access must be the sine qua non to rebut S. 122, as per this approach R2 is the appellant’s
daughter, while the DNA tests say otherwise – S. 112 creates a presumption and not a legal
fiction, further, it assumes a fact that may not exist – Husband’s plea that he had no access to
his wife when the child was begotten is proved by the DNA test and the court cannot compel
the Husband to bear fatherhood of a child that isn’t his.
Interest of justice is best served by ascertaining the truth and when there’s a conflict between
“conclusive proof” based on the best science that is accepted worldwide and a conventional
presumption under the law, the former must triumph.
K. L. Rallaram v. Custodian, Evacuee Property, Bombay
The burden of proof may be shifted by presumptions of law or fact, they may be rebutted not
only by direct or circumstantial evidence but also by other presumptions – Burden of proof
has two meanings: (i) as a matter of law and pleadings, (ii) by adducing evidence. The former
is fixed and remains throughout the case, while the latter shifts as soon as a party adduces
enough evidence to raise a presumption on his behalf.
Hans Raj v. State of Haryana
The Fact that a woman committed suicide within 7 years of her marriage due to frequent
quarrels which resulted in physical violence against her by her Bhang Addict husband which
amounted to cruelty doesn’t give rise to the presumption that the husband abetted her suicide.
“May Presume.” Whether the nature of cruelty was such as to drive the woman to commit
suicide or cause grave injury or danger to life, limb or health of the woman.