evidence law cases

Evidence Law Cases

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

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

3) Gulzar Khan v. State
Power of Magistrate u/s 73-
It was held that the scope of Section 73 extends to the Court of
Magistrate as well. Even before the cognizance begins, the Magistrate

may ask the accused for his handwriting specimen, signatures, finger-
prints, foot-prints which might be needed by the police in the course of
investigation.

4) In Ashok Dulichand v. Madahavlal Dube and another
[1975(4) SCC 664]

Admission of Secondary Evidence u/s 65-
The learned court held that secondary evidence is admissible in case
when it is to show the existence, conditions and contents of a document
when it appears that the original document is in the custody of the person
against whom the document is sought, or is out of reach, or is not legally
bound to produce such document.

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

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

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

8) State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru
[(2005) 11 SCC 600]

Admission under Section 7-
It was held that though every confession is an admission, but every
admission need not be a confession. An admission made before the police

cannot be proved against the accused and cannot be considered as a
confession.

9) Subbiah Mudaliar vs Gopala Mudaliar And Ors.
Admissibility of statement under Section 32, Clause 5 -
The law in India under Section 32, Clauses 5 and 6, Evidence Act, is in
some respects different from the law in England may be granted. But the
further reasoning in that judgment, that because statements made on a
former occasion would be admissible even when the point at issue that
might have been different from the issue in the later litigation, it would
follow that a statement would be a fortiori admissible where the issues
are the same, seems to us the very opposite of the principle
underlying Section 32, Clause 5.

10) State of Orissa Vs. Damburu Naiko and another
Facts

The case of prosecution is that on the fateful day the victim Bhotruni
along with other girls, PWs. 2 to 4 went to Papadahandi to witness
Dasahara festival. At about 4.00 p.m.while they were returning home,
PW. 1, the victim was ahead of them and when they reached inside the
forest, the appellants and two others gagged the mouth of PW. 1 and
kidnapped into the forest, covered her eyes with a piece of cloth and
threatened to kill her if she would raise cries.

They made her to lie down on the ground and raped her one after
another. PWs. 2 to 4 ran back Papadahandi and reported, to the police on
duty in the festival, of the incidence and PW. 5, the constable came along
with them. They found the victim’s eyes covered with a piece of cloth and
that she was crying. She was taken to Papadahandi. She laid the
complaint. The accused were arrested on October 31, 1977.

Judgment

The court was of the view that it is not necessary that there would be
corroboration to the evidence of the victim of rape. If her evidence
inspires confidence to be truthful that itself would be sufficient to convict
the accused. We need not see corroboration to the evidence of PW. 1. She
was a simple village girl and she will not leave out her own assailants and
implicate falsely other innocent persons with the allegation that she was
raped by them. Further it said that even if they seek for corroboration the
injuries on her private parts; medical evidence of the doctor and her first
information report provides such corroboration.

The court wholly accept her evidence as truthful. Thus the appeal was
accordingly allowed. The judgment of High Court and the order of
acquittal of the respondents were set aside. The judgments and
convictions and sentences recorded by the trial court and affirmed by the
Sessions Courts were restored and the respondents were made to
surrender and serve out the sentences.

11) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat.
Fact

The incident occurred on Sunday, September 7, 1975, at about 5-30 p.m.
at the house of the appellant. The evidence of P.W. 1 and P.W. 2 shows
that they went to the house of the appellant in order to meet his daughter
(belonging to their own age group of 10 or 12) who happened to be their
friend. The appellant induced them to enter his house by creating an
impression that she was at home, though, in fact she was not.

Once they were inside, the appellant closed the door, undressed himself
in the presence of both the girls, and exposed himself. He asked P.W. 2 to
indulge in an indecent act. P.W. 2 started crying and fled from there. P.W.
1 however could not escape. She was pushed into a cot, and was made to
undress. The appellant sexually assaulted her. P.W. 1 was in distress and
was weeping as she went out. She however could not apprise her parents
about what had transpired because both of them were out of Gandhinagar
(they returned after 4, or 5 days).

Judgment

The Supreme Court stated that “in the Indian setting, refusal to act on the
testimony of a victim of sexual assault in absence of corroboration as a
rule is adding insult to injury. Why should the evidence of the girl or the
woman who complains of rape or sexual molestation be viewed with the

aid of spectacles fitted lens tinged with doubt, disbelief or suspicion?. To
do so is to justify the charge of male chauvinism in a male dominant
society.”

On principle the evidence of the victim of sex assault stands on par with
evidence of injured witness. Just as a witness who has sustained injury is
not likely to exculpate the real offender, the evidence of a victim of sec
offence is entitled to great weigh, absence of corroboration
notwithstanding.

12) State of Maharashtra Vs. Chandraprakash Kewalchand Jain.
Fact

A brief narration of the facts may be apposite. In this particular case one
M aged fell in love with Shamimbanu, aged 19 left their residential town
and entered into a marriage through a Kazi. The accused police officer
found them in a hotel room, brought them to the police station and then
on the next night sent the girl to another hotel. Having thus separated the
couple and finding the girl thoroughly helpless forcibly removed her
“kurta” and threw it away. He gagged the girl’s mouth and threatened her
with dire consequences if she did not submit. He then threw the girl on

the cot and forcibly removed her “salwar” and denuded her. He then had
sexual intercourse with her, notwithstanding her protestations.

After satisfying his lust, the accused left threatening that he would bury
both of them alive if she complained to anyone.

Judgment

The Supreme Court was of the opinion that “the nature of evidence
required to lend assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of each case. But if a
prosecutrix is an adult and of full understanding the Court is entitled to
base a conviction on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances appearing on the
record of the case discloses that the prosecutrix does not have a strong
motive to falsely involve the person charged, the Court should ordinarily
have no hesitation in accepting her evidence. They further stated that,
their should be no doubt that ordinarily the evidence of a prosecutrix who
does not lack understanding must be accepted. The degree of proof
required must not be higher than is expected of an injured witness.”

Hence the court observed that a prosecutrix of a sex-offence cannot be
put on par with an accomplice. She is in fact a victim of the crime.

13) Santana Ghosh v. State.
Facts

This is an interesting Calcutta High Court case decided on 13-11-1986
(long after section 114-A having retrospective effect being brought into
statute) where a girl Santana by name gave evidence that the accused
after forcibly ravished her consoled her saying that he would marry her.
Santana believing the promise did not disclose anything about the sexual
assault. Later she allowed the accused to have sexual relations with her
resulting in her being pregnant.

Judgment

The learned Judge in his considered judgment searched for corroboration
of the testimony and having found it upheld conviction. The court stated
that “the Evidence Act being retrospective, no matter when the sexual
union took place, the version of the girl was enough to tilt the balance.
Search for corroboration was an exercise in futility.

14) Banti alias Balvinder Singh Vs. State of Madhya Pradesh
Facts

The prosecutrix was near a culvert of village Shyampur, a jeep overtook
her. The jeep was being driven by accused Jagtar Singh. Three more
Sikhs were seated in the jeep. Accused Jagtar Singh was a contractor in

the village in which Kuntibai lived i.e. in village Nathela. He offered to
give lift to Kuntibai. Kuntibai declined the offer. It was further the
prosecution case that two of the Sardars seated in the jeep then forcibly
dragged Kuntibai into the jeep. Kuntibai whisked away to Chhindari camp,
being the work site of accused Jagtar Singh. She was forcibly made to
consume liquor at the camp.

A fifth Sikh by name Banti (appellant in the present appeal) joined the
other Sikhs in the camp. All the five Sikhs then forcibly ravished Kuntibai
one by one on that night. On the following morning Kuntibai managed to
slip away and came to her own house in the same village. She made a
report (Ex. P-2) of the incident after 5 days i.e. on 25-8-1985 at 12.30
p.m. The said report expressly named Jagtar Singh and Banti as two of
the five ravishers.

Judgment

The court stated that having regard to the conduct of the prosecutrix in
not making any kind of complaint about the alleged incident to any body
for five days coupled with late recording of report by her after five days
with false explanation for the delay, in the context also of the lax morals
of the prosecutrix, the court found it is very unsafe to pin faith on her
mere word that sexual intercourse was committed with her by five
accused persons or any of them. The court also found it difficult to believe
her version regarding her alleged abduction in the jeep.

Thus in the circumstances, the court held that the prosecution story was
not satisfactorily established and the presumption stood rebutted and
accused acquitted.

15) Kuldip Singh and Anr. Vs. State of Punjab
Facts

The prosecutrix and her mother, as usual, on 8-12-89 at about 3.00 p.m.
were cutting grass for the cattle from the field. This field belongs to Chet
Singh son of Chattar Singh Jat, resident of Sante Majra and Arhar (cereal)
crop was standing in the field. She was cutting the grass on the eastern
side and her mother was cutting the grass on the western side of the
field. A man who is known as Fauji came from the side of motor situated
near eucalyptus trees.

He told her that he’s am seeing her for the last three days, today is the
last day. He caught hold of her from her left arm and threw away the
khurpa. She fell down on the ground. Then he broke the string of her
Salwar and against her will blackened his face with her’s (committed
rape). Then another person came at the spot, who had a new tubewell
nearby. He also has blackened his face with her (committed rape) against
her will and consent. And when she raised alarm both the persons ran
away.

Judgment

The High Court had acquitted the respondents therein on the ground that
the victim identifying the said respondents could not be relied upon as
there was no corroboration to her evidence and that when there was a
gang rape there could be several injuries on the person of the victim
which were absent. Therefore, the victim therein was held by the High
Court to be a consenting party.

This was set aside by the Hon’ble Supreme Court. It was held that the
victim was a simple village girl and she would not leave out her own assail
ants and implicate falsely other innocent persons with the allegation that;
she was raped by them. Besides, even if corroboration was sought the
injuries on her private parts: medical evidence of the doctor and her First
Information Report provide such corroboration. Her evidence was
accepted as truthful. There to no reason for her to falsely implicate the
appellants. Thus the court found them guilty of committing rape, which
was affirmed.

16) Pradeep Kumar v. State of Bihar.
Facts

The appellant assured the second respondent that he would marry her,
relying in this she consented to sexual intercourse. When this went on for
some time, the appellant took the second respondent to a temple where

in the presence of deity he accepted her to be his wife and there was an
agreement of marriage entered into. Alleging that the accused was likely
to get married with some other lady, an FIR was lodged.

Investigation was undertaken and statements were recorded under s.164
of CrPC wherein it was accepted that first with a promise of marriage, the
accused had physical relationship with her and then had married her.
Since the accused disowned having ever married her, she was forced to
file the FIR. After investigation, charge sheet was filed wherein it was
indicated an offence punishable under Ss.376 and 406 of IPC was made
out.

Judgment

The case first reached the trial Court, then it went to the High Court and
finally to the Apex Court. The case came up before a Division Bench of the
Apex Court consisting of Hon’ble Justice Dr. Arijit Pasayat and Hon’ble
Justice D.K.Jain. The High Court affirmed the order of the Trial Court of
convicting the accused under Ss.376 and 406 of IPC.

Setting aside the order of the High Court, the Supreme Court held that a
promise to marry without anything more will not give rise to
‘misconception of fact’ within the meaning of s.90, it needs to be clarified
that a representation deliberately made by the accused with a view to
elicit the assent of the victim without having the intention or inclination to
marry her, will vitiate consent. If on the facts it is established that at the

very inception of making the promise, the accused did not really entertain
the intention of marrying her and the promise to marry held out by him
was a mere hoax, the consent ostensibly given by the victim will be of no
avail to the accused to exculpate him from the ambit of s.375 clause
second.

In reaching this conclusion the court mainly relied on Jayanti Rani Pandas
case. The Apex Court asked the High Court to give a fresh look into the
matter.

17) Tulshidas Kanolkar Vs. The State of Goa
Facts

The case in hand is a classic example when the baser instincts of the
appellant overtook his moral values and human sensitivity and he
ravished the unsuspecting victim incapable of comprehending the
vicissitudes of the dastardly act, not once but several times. So innocence
was the victim that she was even not aware of the dreadful
consequences.

Tragedy struck on the victim sometimes in 1999, when parents of the
victim noticed that her legs were swollen and there were signs of
advanced stage of pregnancy. They were shocked beyond limits. They

asked the victim as to who was responsible for her pregnancy. She in her
own way pointed out accusing fingers at the appellant and said that on
some pretext or the other, ravished her.

When this shattering news was conveyed to the parents of the victims,
they questioned the appellant. It is on record that some money was
offered to them by mother of the appellant to have termination of
pregnancy. When asked about the possibility of termination of pregnancy,
the doctor indicated a sum of Rs. 6,000/- as the amount required. Since
the appellant’s family were willing to part with only Rs. 2,000/-, there was
no termination of pregnancy and evidence shows that a stillborn child was
delivered by the victim.

Judgment

The Supreme Court stated that the plea of consent is too shallow to even
need detailed analysis or consideration. A mentally challenged girl cannot
legally give a consent which would necessarily involve understanding of
the effect of such consent. It has to be a conscious and voluntary act.
There is gulf of difference between consent and submission. Every
consent involves a submission but the converse does not follow, and mere
act of submission does not involve consent. An act of helpless resignation
in the face of inevitable compulsion, quiescence, non-resistance or
passive giving in when the faculty is either clouded by fear or vitiated by
duress or impaired due to mental retardation or deficiency cannot be

considered to be consent as understood in law. For constituting consent,
there must be exercise of intelligence based on the knowledge of the
significance and the moral effect of the act. A girl, whose mental faculties
are undeveloped, cannot be said in law, to have suffered sexual
intercourses with consent.

18) R v. Malone.
In the instant case a girl of 16 years of age was raped and her contention
was that she had not consented but was too drunk to offer a resistance.
The accused on the other hand relying on R. v. Howard, R. v.
Lang contended that where accused had not used force, threat or deceit
the consent of the victim should be inferred. Rejecting this it was held
that Howard, Lang and other cases decided before passing of the Sexual
offences (Amendment) Act, 1976 could no longer be considered binding
on the court. In the instant case there was sufficient evidence to support
the conviction of accused as complainant was incapable of consenting or
knowing what was happening due to the influence of drink or drugs.

19) R v. Bree.
Facts

The defendant and the complainant had been drinking together. It was
common ground that both had voluntarily consumed a large amount of

alcohol and that sexual activity had taken place. The defendant was
charged with rape. The prosecution case had originally been put on the
basis that the complainant had effectively been unconscious throughout
most of the sexual activity. However, the complainant’s evidence was to
different effect, and accordingly the prosecution case was not that the
complainant had lacked the capacity to consent, but that she had not in
fact consented; that whilst her ability to resist was hampered by the
effects of alcohol, her capacity to consent had remained; that she had
known what was happening; that she had known that she had not wanted
to have sexual intercourse and, so far as she could have done, had made
that clear. The defendant’s case was that notwithstanding, and perhaps
because of, drink, the complainant had been consenting and was
conscious throughout; and that he had reasonably believed that she was
consenting. The defendant was convicted of rape. He appealed against
this in the Court of Appeal. (Section 74 of the Sexual Offences Act 2003
provided: a person consents if he agrees by choice, and has the freedom
and capacity to make choice).

Judgment

The Court of Appeal quashed the conviction order rendered by the Crown
Court. The Court went on to hold that she did have capacity to consent
and the appellant’s act would not amount to rape. In the case the Court
of Appeal drew a distinction between what would amount to rape and
what would not…It observed:

“If, through drink (or any other reason) the complainant has temporarily
lost her capacity to choose whether to have intercourse on the relevant
occasion, she is not consenting, and subject to questions about the
defendant’s state of mind, if intercourse takes place, this would amount to
rape. However, where the complainant has voluntarily consumed even
substantial quantities of alcohol, but nevertheless remains capable of
choosing whether or not to have sexual intercourse, and in drink agrees
to do so, this would not be rape.”

However, in my opinion regarding this particular case this distinction
should be given a fresh look. This distinction would most probably cause
uncertainty and vagueness in future cases. There is no rationale in this
distinction. There is an urgent need to address the question “whether a
normal lady even after consuming substantial amount of alcohol would be
in a position to give consent?”

CONCLUSION
The standard and onus of proof in the case of rape has not been changed
by section 114A of the Evidence Act. It has only created a presumption
qua the consent of the prosecutrix. Section 114A provides that in a
prosecution for rape under sub-section (2) of section 376 of the IPC,
when there is an allegation of rape the question whether it was without
consent of the prosecutrix, the court shall presume that the she did not

give her consent. In case of rape where it is established that there had
been intercourse, and if the prosecutrix states in her evidence before the
court that she did not consent, then the court shall presume that she did
not consent.

The Evidence Act nowhere says that the victim’s evidence cannot be
accepted unless it is corroborated in material particulars. The victim is
undoubtedly a competent witness under section 118 of the Indian
Evidence Act, and her evidence must receive the same weight as it is
attached to an injured in cases of physical violence. The same degree of
care and caution must attach in the evaluation of her evidence as in the
case of an injured complainant or witness. What is necessary is that the
court must be alive to and conscious of the fact that it is dealing with the
evidence of a person who is interested in the outcome of the charge
leveled by her. If the court keeps this in mind and feels satisfied that it
can act on the evidence of the prosecutrix, there is no rule of law or
practice incorporated in the Evidence Act which requires it to look for
corroboration of evidence. If for some reason the court is hesitant to
place implicit reliance on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony short of
corroboration required in the case of an accomplice.

Reference link –

1) https://www.lawnn.com/indian-evidence-act-landmark-judgments-
under-evidence-act
1972/#:~:text=Bhagwan%20Singh%20v.&text=The%20Court%20
held%20that%20in,such%20resort%20can%20be%20taken.

2) https://www.lawteacher.net/free-law-essays/criminal-law/evidence-
law-topic-discuss-10-cases-law-essays.php