Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.


The ruling came in a case where the appellant was convicted under Sections 302 and 201 IPC for the death of his wife. The prosecution case was that on 18th November 2011, it was reported that the appellant’s wife died due to burn injuries. However, according to the post-mortem report, the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.

The appellant-accused’s case was that none of the witnesses except the official witnesses have supported the prosecution case and that the conviction of the appellant is based solely on the cause of death mentioned in the post-mortem report and that no other material has been relied upon by the Trial Court as well as High Court.

Submissions by the appellant’s counsel:

  • though post-mortem report was available on 18th November 2011, First Information Report was registered belatedly on 25th August 2012.
  • that when the incident constituting the alleged offence occurred, there were other members of the family of the appellant-accused present in the house.
  • the prosecution witnesses have deposed that the appellant and the deceased were leading a normal matrimonial life.
  • the mother of the deceased, has not supported prosecution. She stated in the deposition that the incident of fire took place when the deceased was boiling milk for her child. He pointed out that even PW No.5-a, Shri Mahesh Sah who gave a report of unnatural death on 18th November 2011 did not support the prosecution.

Submitting that a complete chain of events establishing the guilt of the appellant-accused has not been established, the counsel urged that the conviction of the appellant cannot be sustained and deserves to be set aside.

Submissions by State’s counsel:

  • the post-mortem report categorically stated that the cause of death was ‘asphyxia due to pressure around neck by hand and blunt substance’.
  • the burn injuries on the person of the deceased were not ante-mortem.
  • the appellant and the deceased were staying together under the same roof and therefore, Section 106 of the Evidence Act, 1872 will apply.
  • the burden was on the appellant-accused to explain how the death has occurred.

Hence, a chain of circumstances was established by the prosecution against the accused which supports only one hypothesis of the guilt of the appellant.

It was submitted that the failure of the appellant to discharge the burden on him under Section 106 of the Evidence Act is very crucial as the case is based on circumstantial evidence.


The Court took note of the elaborate law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Here are the relevant excerpts from the judgment:

Five golden principles (Panchsheel) which govern a case based only on circumstantial evidence

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

When can a false explanation or a false defence be used as an additional link?

Before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. However,

“… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

Applicability of Section 106 of the Evidence Act

Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101.

Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

“When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

Ruling on facts

The Court noticed that neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present showed that there could be another hypothesis which cannot be altogether excluded.

“Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.”

Coming to the post-mortem report, the Court held that

“… only on the basis of post-mortem report, the appellant could not have been convicted of the offence punishable under Section 302 of IPC and consequently for the offence punishable under Section 201 of IPC.”

The Court, hence, acquitted the appellant from all the charges.

[Nagendra Sah v. State of Bihar, CRIMINAL APPEAL NO. 1903 OF 2019, decided on 14.09.2021]

*Judgment by: Justice Abhay S. Oka

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1] CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.

The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

It was further explained that in Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

“105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.”

Read more…

[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741, decided on 13.09.2021]


For appellant: Advocate Gaurav Srivastava,

For State: Advocate Adarsh Upadhyay,

For respondent 2: Advocate Sansriti Pathak

[1] 319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

Supreme Court: A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ. upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section 321 CrPC for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an unfortunate incident that occurred in the Kerala Legislative Assembly in March 2015. Earlier, the Kerala High Court too had affirmed the order of the Chief Judicial Magistrate.

All attempts of the accused MLAs seeking  to claim immunity under Article 194 of the Constitution of India were rejected by the Supreme Court while observing:

“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”


On 13-3-2015, the then Finance Minister of Kerala was presenting budget for financial year 2015-16 in the Kerala Legislative Assembly. The accused─Members of Legislative Assembly (leaders of the Left Democratic Front, which was in opposition at that time) disrupted presentation of the budget, climbed over to Speaker’s dais and damaged furniture and articles including the Speaker’s chair, computer, mike, emergency lamp and electronic panel, causing a loss of Rs 2,20,093. The Legislative Secretary reported the incident and a criminal case under Sections 447 and 427 read with Section 34 IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 was registered against the six accused MLAs. Investigation was completed, final report was submitted, and cognizance was taken by the Additional Chief Judicial Magistrate, Ernakulam.

On 21-7-2018 (when LDF had formed Government in Kerala), the Public Prosecutor filed an application under Section 321 CrPC seeking sanction to withdraw the case against all the accused MLAs. The case was transferred to the court of Chief Judicial Magistrate, Thiruvananthapuram (“CJM”), who declined to give consent to the Public Prosecutor’s application.


After CJM’s refusal, the State of Kerala filed a criminal revision petition before the Kerala High Court. The High Court dismissed the revision petition and affirmed the order of CJM. Aggrieved, the State of Kerala and the accused MLAs approached the Supreme Court.

Analysis and Observations

Withdrawal from prosecution

Discussing Section 321 CrPC (Withdrawal from prosecution), the Court relied on a catena of judicial precedents including the decision of Constitution Bench in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288, which the Court dubbed as locus classicus on interpretation of powers conferred by Section 321. The principles which emerged from judicial precedents on withdrawal of prosecution under Section 321 were formulated by the Court:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the Government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that withdrawal of prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent, the court must be satisfied that:

(a) The function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution sub-serves the administration of justice, the court would be justified in scrutinising the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, the Supreme Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Supreme Court may interfere in a case where there has been a failure of the trial judge or of the High Court to apply correct principles in deciding whether to grant or withhold consent.

Immunities and privileges of MLAs

Article 194 of the Constitution of India provides for privileges and immunities of MLAs. Article 194(1) recognises freedom of speech in State legislatures. However, this freedom is subject to provisions of the Constitution and standing orders regulating the procedure of State legislatures. Article 194(2) enunciates a rule of immunity which protects an MLA from a proceeding in any court “in respect of anything said or a vote given” in the legislature or in any committee of the legislature. Moreover, it provides a shield against any liability for a publication of a report, paper, votes or proceedings by or under the authority of the House.

As per Article 194(3), the present position is that: (i) The ultimate source of the powers, privileges and immunities of a House of a State Legislature and of the members and committees would be determined by way of a legislation; (ii) Until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Constitution (44th Amendment) Act, 1978 would govern. Since the Parliament is yet to enact a law on the subject of parliamentary privileges, according to Article 194(3), the MLAs shall possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. In such view of the matter, the Court referred to English judgments on whether criminal offences committed within the precincts of the House of Commons are covered under ‘parliamentary privileges’, receiving immunity from prosecution.

The Court found that even in the United Kingdom, a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity ‘only if the action bears nexus to the effective participation of the member in the House’.

In the Indian context, the Court relied on Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184 and noted that the principle which emphatically emerges is that whenever a claim of privilege or immunity is raised in the context of Article 194(3), the Court is entrusted with authority and jurisdiction to determine whether the claim is sustainable on the anvil of the constitutional provision. State legislatures in India cannot assert the power of “self-composition or in other words the power to regulate their own constitution in the manner claimed by the House of Commons or in the UK”. The decision emphasises the doctrine of constitutional supremacy in India as distinct from parliamentary supremacy in the UK.

Privilege to commit acts of public destruction – an incongruous proposition

Next, the Court discussed the validity of the argument invoking immunities and privileges under Article 194 as a hypothesis for barring legal proceedings for acts of destruction of public property.

Recapitulating the allegations against the accused MLAs, the Court went on to note that there has been a growing recognition and consensus both in the Court and the Parliament that acts of destruction of public and private property in the name of protests should not be tolerated. The Court observed:

The persons who have been named as the accused in the FIR in the present case held a responsible elected office as MLAs in the Legislative Assembly. In the same manner as any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all citizens.

The Court stated that the purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear or favour. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal. It was observed:

We miss the wood for the trees if we focus on rights without the corresponding duties cast upon elected public representatives.

In Court’s opinion, to claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law. The entire foundation upon which the application for withdrawal under Section 321 was moved by the Public Prosecutor was based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seemed to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law. The Court observed:

Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.

The Court finally held that an alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions. The actions of the members have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution.

Sanction of Speaker

The Court then dealt with the argument that sanction of the Speaker of the House is required for prosecuting MLAs for occurrences within the precincts of the Assembly. The contention that prosecution against the accused MLAs was vitiated for want of sanction of the Speaker, was rejected by the Court.

Explaining and distinguishing several judgments relied upon by the accused MLAs, the Court noted that none of them lend support to the argument that the sanction of the Speaker ought to have been obtained. The appellants next relied on Section 197 CrPC (Prosecution of Judges and public servants). Section 197(1) states that cognizance cannot be taken for an offence allegedly committed by a public servant, who is removable with the sanction of the Government, unless the sanction of the Government is received.

On this, the Court stated that a plain reading of Section 197 clarifies that it applies only if the public servant can be removed from office by or with the sanction of the Government. However, MLAs cannot be removed by the sanction of the Government, as they are elected representatives of the people of India. Further, sanction under Section 197 is only required before cognizance is taken by a court, and not for the initiation of the prosecution.

Claiming privilege and inadmissibility of video recordings as evidence

A video recording of the incident concerned that occurred on 13-3-2015 in the Kerala Legislative Assembly was procured by investigating authorities from the Electronic Control Room of the House.

Immunity from publication of proceedings of the House 

The appellants submitted that the incident occurred on floor of the House and was a ‘proceeding’ of the House. According to Article 194(2), no legal proceedings can be initiated against any member in respect of the publication, by or under the authority of the House, of any report, paper, votes or proceedings.

The Court recorded that for the second limb of Article 194(2) to be applicable, three elements must be present: first, there must be publication; second, the publication must be by or under the authority of the House; and third, the publication must relate to a report, paper, vote or proceedings.

It was discussed by the Court that although broadcasting of proceedings was not initially visualised within the meaning of the word ‘publication’, the meaning of the term ‘publication’ has evolved in contemporary parlance. Broadcasting of proceedings is also a form of publication which serves the purpose of disseminating information to the public.

The Court then turned to the question whether the alleged proceedings were published by or ‘under the authority of the House’. The video recording of the incident was seized from the Electronic Control Room. Various local and national news channels carried telecasts of snippets of the incident of 13-3-2015 on the very same day. The Instructions on Broadcasting and Telecasting of Governor’s Address and Assembly Proceedings issued by the Kerala Legislative Assembly in 2002, permit broadcasting of proceedings after obtaining prior permission of the Speaker for recording. Therefore, if permission for recording the proceedings is provided to news channels, then broadcast would usually be a publication ‘under the authority of the House’. However, Clause 7 of the 2002 Instructions denies permission to record any interruption/disorder during the address.

Since the 2002 Instructions grant permission for recording of proceedings subject to conditions such as that mentioned in Clause 7, any recording that contravenes the conditions stipulated is not a recording ‘under the authority of the House’.  The Court observed:

When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have no authority of the House. Thus, though the video recording of the incident that was broadcast in the local and national news channels would fall within the purview of the word ‘publication’, it did not have the authority of the House to be recorded, and thus the members cannot be granted immunity.

In addition to this, the video recording that was procured from the Electronic Control Room of the Assembly was not a copy of the broadcast of the incident in the local or national television but was a part of the internal records of the Assembly. Thus, the stored video footage of the incident was not broadcast/published for dissemination to the public. Since it was not a ‘publication’ of the House, it does not enjoy the protection of immunity under Article 194(2) of the Constitution.

The Court then considered whether the incident that transpired on 13-3-2015 was a ‘proceeding’ under Article 194(2) bestowing the accused MLAs with absolute immunity. Referring to various provisions of the Constitution, the Court concluded that the word ‘proceedings’ does not include all the activities inside the House within its meaning.  The word ‘proceedings’ in Article 194(2) follows the words ‘any report, paper, votes’. Reports, papers and votes are actions that are undertaken by the members of the Assembly in their official capacity for participation and deliberation in the House. The Court was of the opinion that:

On application of the interpretative principle of noscitur a sociis, the phrase ‘proceedings’ takes colour from the words surrounding it. Since the words associated with the phrase ‘proceedings’ refer to actions that are exercised by the members in their official capacity, in furtherance of their official functions, the meaning of the word ‘proceedings’ must also be restricted to only include such actions.

Accordingly, the Court held that the video recording of the incident was NOT a ‘proceeding’ of the Assembly, which could be protected from legal proceedings under Article 194(2).

Inadmissibility of the video recording as evidence

Appellants argued that the video recording was obtained by investigating authorities without the sanction of the Speaker. It was submitted that the video recording belongs to the Electronic Record Room of the Assembly and as the custodian of the House, permission of the Speaker was necessary to access the video recording. It was also submitted that the video recording lacked certification under Section 65-B of the Evidence Act, 1872 required for admissibility of evidence.

In Court’s opinion, these submissions were irrelevant in an application for withdrawal of prosecution under Section 321 CrPC. Questions of insufficiency of evidence, admissibility of evidence absent certifications, etc. are to be adjudged by the trial court during the stage of trial.


The Supreme Court found no merit in the appeal and held that the Chief Judicial Magistrate was justified in declining consent for withdrawal of the prosecution under Section 321 CrPC. [State of Kerala v. K. Ajith, 2021 SCC OnLine SC 510, decided on 28-7-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted anticipatory bail to a constable accused of rape and other offences as detailed below.

Instant anticipatory bail application was filed in crime registered under Sections 376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000.

Applicant was attached to constabulary cadre of the Maharashtra Police and was serving at the traffic Department, Malabar Hill, Mumbai.

Complainant developed a close friendship with the applicant after being deployed and the same took the form of a love affair. Later, the complainant alleged that the applicant had suppressed his marital status.

Though the complainant alleged, the applicant had informed her, his wife was psychologically unwell and hence he desired to divorce his wife. Further, in the year 2018, the applicant borrowed money from the complainant from time to time and when she demanded her own money from him, he abused her.

Applicant on the false promise of marriage persuaded the complainant to succumb to physical desires at various places and hotels.

It was also alleged that the applicant had recorded her obscene videos and was threatening to upload the same on social media and disseminate the same to her relatives if she refused to maintain the relationship with him.

Applicant damaged the complainant’s cell phone to cause disappearance of the evidence.

After such incidents, complainant disclosed everything to applicant’s wife. She also added that her proposed marriage broke down, since the applicant sent some objectionable messages to the sister of her fiancé.


Bench stated that on taking into consideration the facts of the case, prima facie opined that since he has been suspended from service and is available for investigation, a case for granting interim-pre-arrest protection was made.

High Court directed the investigating officer to place the reports for further consideration on 19-07-2021.

Lastly, the Court added that the applicant shall join the investigation as and when called and shall not contact the complainant or influence prosecution witnesses. [Madhav Krishna Vasave v. State of Maharashtra, 2021 SCC OnLine Bom 833, decided on 4-06-2021]

Advocates before the Court:

Mr. S.R. Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing a revision petition in regard to maintenance of wife, held that

Magazine covers are not sufficient evidence to demonstrate that the respondent /wife can sustain herself.

Instant revision petition is against the Family Court’s decision directing the husband to pay maintenance at the rate of Rs 17,000 per month to the wife.

The daughter of husband and wife in the present matter passed away in the year 2010 and at present, they have two major adult sons who are well settled.

Parties have been living separately since the year 2012. Wife filed the petition under Section 125 CrPC for grant of maintenance stating that she was treated with cruelty and was thrown out of the house in the year 2012 and she was unable to sustain herself, hence required maintenance from the husband.

It was stated that the husband was earning an income of Rs 50,000 from the post of Head Constable and also had some agricultural land from which he was earning an income.

Wife claimed Rs 25,000 per month as maintenance.

Husband submitted that the wife was a working lady earning handsomely. Adding to this he stated that she participates in Jagrans and does TV Serials and was in a position to take care of herself. Both the parties filed their respective affidavits of income.

Counsel for the petitioner submitted that as per the Statement filed by the wife under Section 165 of the Evidence Act, she herself stated that she was doing modelling and it was for her to establish that income earned by her was so less that she couldn’t maintain herself.

Petitioners counsel also presented certain magazine covers and newspaper articles to establish that the respondent was employed and capable of maintaining herself.

Bench stated that law laid down by Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, indicates that proceedings under Section 125 CrPC have been enacted to remedy/reduce the financial suffering of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself.

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. 

Court noted that in the present matter, petitioner relied only on the statement given by the respondent/wife under Section 165 Indian Evidence Act. In the said statement she clearly mentioned her employment adding that her income was very low on which her sustenance was difficult.

In view of the above position, the onus to show how much the respondent/wife was earning shifts on the petitioner to show that it was enough for her sustenance. But petitioner failed to bring any evidence.

Court reiterated the Supreme Court’s position that newspaper clippings, etc. are not evidence.

 It was noted that the petitioner was working as an ASI and both the children were well settled, and he was not under any obligation to maintain his children but the wife.

On asking about divorce, it was stated that the petitioner’s children did not want him to take divorce from his wife, hence it becomes the moral and legal obligation of the husband to maintain his wife.

Bench while dismissing the revision petition held that no material was placed on record to show that respondent/wife was able to sustain herself. [Jaiveer Singh v. Sunita Chaudhary, 2021 SCC OnLine Del 1488, decided on 05-04-2021]

Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma JJ. held that the accused does not have a right to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The facts of the case are such that the victim, Kum Panchami was residing at Spoorthi Adoption and Fit Institution where she was given in adoption but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. The petitioner-accused 1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. Cases of sexual assault were also reported. A case under Sections 376(1), 376(3), 377, 506 of Penal Code, 1860 i.e. IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.  A single Judge bench dismissed the petition on merits holding that no case of bail is made out. The instant petition was filed to answer the references before a Special Bench headed by Chief Justice.

Counsel of petitioner-accused submitted that as per Section 35(1) of POCSO Act evidence of the child had to be recorded within a period of thirty days of taking cognizance of the offence by the trial Court. If the same is not so recorded, the reason for the delay has also to be recorded by the said Court. Further, as per Section 35(2) of the POCSO Act, the trial Court, having not completed the trial within a period of one year from the date of taking cognizance of the offences, petitioner/accused 1 was entitled to be released on bail.

Counsel for the respondent submitted that the statement of the victim under Section 161 of the Cr.P.C. had been recorded before the Magistrate, but the said statement recorded cannot be construed as evidence in terms of Section 35(1) of the POCSO Act. Merely because there was a delay in recording evidence or in the adjudication of the case and evidently Section 35 of the POCSO Act had not been complied with in the instant cases that would not straight away entitle the petitioner/accused 1 to be enlarged on bail.

Issue 1: Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act?

The Court further observed that Section 35 of the POCSO Act consists of two parts: firstly, it deals with the period for recording of evidence of the child and disposal of case. Sub-section (1) of Section 35 states that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Secondly, Sub-section (2) prescribes the period of one year from the date of taking cognizance of the offence for the purpose of completion of the trial. Of course, the said period prescribed is to be complied with, as far as possible, by the Special Court.

The Court further observed that on reading the relevant provisions of the POCSO Act, it clearly indicates that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation. In this regard, it would be useful to observe that the POCSO Act is a combination of both substantive law as well as procedural or adjective law. Substantive criminal offences have been created under various provisions of the POCSO Act and the manner in which the adjudication of said offences ought to take place, namely the procedure to be followed is also provided for under the POCSO Act.

The Court further observed that Section 164 of Criminal Procedure Code i.e. Cr.P.C., deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 and 26 of the POCSO Act. But, Section 35 of the POCSO Act does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. The said Section is relatable to Chapter XXIII of Cr.P.C., which deals with evidence in inquiries and trials, including mode of taking and recording of evidence. But, Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of Cr.P.C., particularly when there is any inconsistency between the said Section and Cr.P.C., as per the provisions of Section 42A of the POCSO Act.

The Court observed that a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane, hence the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.

The Court thus held “the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.”

Issue 2: Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

The Court observed that the main object behind Section 35 of the POCSO Act is that the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life.

The Court further observed that the expression “as far as possible”, is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.

The Court relied on judgment Neeru Yadav v. State of Uttar Pradesh, (2016) 15 SCC 422, wherein the guiding factors regarding the grant of bail under provisions of the POCSO Act were laid down:

(i) The nature of accusations and the severity of the punishment, in case of the accusation entail a conviction and the nature of evidence in support of the accusations;

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant;

(iii) Prima facie satisfaction of the court in support of the charge

The Court relied on judgment Varinder Kumar v. State of Himachal Pradesh, (2020) 3 SCC 321 and observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.

The Court thus observed that the object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial of one year from the date of taking cognizance of the offence.

The Court held “If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail.”

[Hanumantha Mogaveera v. State of Karnataka, 2021 SCC OnLine Kar 12300, decided on 23-04-2021]

Arunima Bose, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Thakur J. allowed the appeal and compensated the appellants because of false denial on thepart of respondents regarding compromise deed.

The facts of the case are such that the Bus Stand Hamirpur is adjacent to the house of the appellants  and is separated by brick wall over a retaining wall and on 30.3.2017 at about 8 AM his scooty was parked in his courtyard adjacent to retaining wall whereupon brick wall of Bus Stand was existing and at that time when respondent 2 was parking his bus towards petrol pump of HRTC located at Bus Stand Hamirpur, the bus had hit the wall and with its impact wall collapsed and debris had fallen on scooty of appellant. The incident was informed to the police wherein respondent 2 entered into a compromise and a compromise deed was reduced into writing which was signed by respondent 2 and appellant and also by witnesses and therefore, report with police was not recorded formally. Later, a claim petition for recovery of damages was filed which was dismissed. Aggrieved by the said dismissal order instant appeal was filed for re-evaluation of evidence and witnesses.

Counsels for the respondents have denied the occurrence as well as causing of damage to scooty and compromise in the matter by respondent 2 was also denied.

The Court observed that denial of execution of a document is one thing, whereas, objection with respect to admissibility or mode of proof is another thing. Even where execution of a document has been denied, a party has a right to raise objection with respect to admissibility as well as mode of proof at the time of its production and exhibition.

The Court observed that in the present case, at the time of accepting the documents i.e. compromise no objection with respect to admissibility of these documents and mode of proof was raised. Therefore, these documents are to be considered to have been placed on record in accordance with law and are to be admitted in evidence. However, genuineness, correctness of contents and relevancy thereof may be determined by Court by taking into consideration the contents thereof or other material on record

The Court relied on judgment P.C. Thomas v. P.M. Ismail, AIR 2010 SC 905 and observed that once a document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that mode adopted for proving the documents is irregular, cannot be allowed to be raised at any stage subsequent to marking of document as exhibit.

The Court thus held “all grounds in reference regarding damage probability caused to scooty and compromise arrived at between appellant and respondent No.2 has been established on record. However, evidence to quantify the damage for which appellant is entitled has not been established by leading cogent and reliable evidence.”

In view of the above, appeal was partly allowed.

[Sahil Kumar v. HRTC, 2021 SCC OnLine HP 4568, decided on 13-05-2021]

Arunima Bose, Editorial Assistant has put this report together 

Counsel for appellants: Mr. P.M. Negi,

Counsel for respondents: Mr. Vikas Rajput and Mr. Arun Raj

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Krishan Murari, JJ has held that there cannot be any rigid standard or yardstick for acceptance or rejection of a dying declaration and whether or not it will be admissible in evidence will depend upon the fact of each case.

The Court was hearing a case dating back to 1991 where a married woman succumbed to 95% burn injuries. The case became complicated as there was no eye-witness account and the prosecution had based it’s case of circumstantial evidence involving the dying declaration of the deceased. The husband and the sister-in-law of the deceased were acquitted as the dying declaration did not inspire confidence.  “It vacillated between blaming the husband and the sister¬in-law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.”

Explaining the law relating to admissibility of dying declaration under Section 32 of the Evidence Act, 1872, the Court held that it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence.  However,

“If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case.”

Applying this principle the Court took note of the following facts at hand:

  • The statement of the deceased was based on hearsay evidence that the deceased was set on fire by her husband. There was no reference to sister-in-law in this statement and neither had she said anything about dowry demand.
  • The next statement of the deceased blamed the sister-in-law. This statement was not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by the record clerk of the hospital cannot establish the correctness of its contents.
  • The third statement of the deceased was recorded by the Assistant Sub­Inspector blaming sister-in-law alone without any allegation against the husband, and on the contrary states that she was brought to the hospital by her husband. “It again does not disclose any dowry demand.”
  • Assistant Sub­Inspector who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. The record clerk of the hospital also made a statement that the Doctor had not signed in his presence and that at times doctors would come and put their signatures in the record room.

In such facts and circumstances, considering that the statements of the deceased have vacillated, the Court noticed that there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. Hence,

“it would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.”

[Naresh Kumar v. Kalawati, CRIMINAL APPEAL NO. 35 OF 2013, decided on 25.03.2021]

*Judgment by Justice Navin Sinha

Know Thy Judge| Justice Navin Sinha

Appearances before the Court by

For appellant: Advocate Rajendra Singhvi

For respondents: Senior Advocate Ramesh Gupta

Case BriefsSupreme Court

Supreme Court: In a 38 year old case relating to murder the 3-Judge Bench of Rohinton Fali Nariman, Hemant Gupta* and B.R. Gavai, JJ., had held

“The ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.”

The instant appeal had been preferred against the order of High Court of Judicature at Allahabad, wherein the Court had dismissed the appeal filed by the appellant against his conviction under Section 302 read with Section 34 of Penal Code, 1860. The appellant had reached the Supreme Court with the contention that he was juvenile on the date of incident i.e. 20-07-1982. In support of plea of juvenility, he had relied upon family register maintained by the Panchayat, Aadhaar Card and an order passed by the High Court in the year 1982 by which the High Court had granted him bail on the basis of report of the Radiologist that the age of the appellant at that time was between 15½ – 17½ years.

Later on, perusal to an order of Supreme Court a Medical Board consisting of five doctors was constituted which had opined in the report dated 08-09-2020 that at present the age of applicant was around 40-55 years. Relying on the said report the High Court opined that,

“The occurrence took place on 20-07-1982 i.e. 38 years ago. When age of the appellant is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then it falls below 17 years.”

The Bench reiterated legal position that plea of juvenility could be raised at any stage even after finality of the proceedings before the Court. However, the Bench further observed that There were minor variations in law as the Rule 12(3) (a)(i) and (ii) of Rules, 2007 had been clubbed together with slight change in the language and Section 94 of the new Act did not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules.

Reliance was placed on Mukarrab v. State of Uttar Pradesh, (2017) 2 SCC 210, wherein the Supreme Court while observing that, a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of the medical opinion by the radiological examination, had held that,

“The ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years.”

Since the medical report in support of the bail order was not available, the Bench stated that such order granting bail could not be conclusive determination of age of a person.

Determination of Age in the absence of conclusive Proof

First attempt to determine the age was by assessing the physical appearance of the person when brought before the Board or the Committee. In case of a person around 18 years of age, the ossification test could be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person was around 40-55 years of age, the structure of bones could not be helpful in determining the age.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court had held that in context of certificate required under Section 65B of the Evidence Act, 1872, as per the Latin maxim, lex non cogit ad impossibilia, “law does not demand the impossible”. Thus, when the ossification test could not yield trustworthy and reliable results, such test could not be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the Court stated that the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

Noticing that an application was submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident, where he had given his date of birth as 30-12-1961 which would make him of 21 years of age on the date of the incident i.e. 20-07-1982, the Court opined that,

“The appellant could not be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence.”

Non Applicability of Falsus in Uno, Falsus in Omnibus in India

The Supreme Court in Ilangovan v. State of T.N., (2020)10 SCC 533, held, “The doctrine of Falsus in Uno, Falsus in Omnibus merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called “a mandatory rule of evidence”. Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness could not be disregarded qua the present appellant as the said maxim was not applicable in India. Further, it was not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence.

Hence, in the light of above considerations and the fact that the Trial Court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant, the instant appeal was dismissed.

[Ram Vijay Singh v. State of U.P., 2021 SCC OnLine SC 142, decided on 25-02-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Appearance before the Court by:

For the Appellant: Senior Advocate Gopal Sankaranarayanan and Advocate Pranav Sachdeva

For the Respondent: Advocate Goel

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and Nataraj Rangaswamy, JJ., disposed of the appeal after modifying the compensation.

The facts of the case are such that the deceased Sanjeev M Patil was crossing the road as a pedestrian at 6:00 am in morning when a bus being driven in a rash and negligent manner by its driver dashed against the deceased as a result the deceased received grievous injuries and succumbed to the same. The claimants filed a petition seeking compensation which was thereby granted keeping in mind his young age and monthly income. Aggrieved by the same, the present appeal was filed.

Counsel for appellants submitted that the Tribunal has erred in its judgment and the accident took place 75 meters from the toll booth and that the deceased suddenly tried to cross the road without observing the vehicles approaching the toll counter. It was also submitted that there is a gross error in assessing the monthly income and compensation is excessive.

Counsel for the respondents submitted that as per an independent eye witness it is clear that the accident happened due to the rash and negligent driving of the bus by the driver and the monthly income calculated is correct as the deceased was a permanent employee and infact sums awarded under the heads “loss of consortium” and “loss of love and affection” are on the lower side and deserves to be enhanced suitably.

The Court relied on judgment Mangala Ram v. Oriental Insurance Co., (2018) 5 SCC 656 and observed that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.

The Court thus held that “he Tribunal on meticulous appreciation of the evidence on record as well as on the basis of preponderance of probabilities has rightly held that the accident occurred on account of the negligence of the driver of the KSRTC bus.”

On the question of amount of compensation the Court held that after perusing the salary slip and income tax return statements and keeping in mind the future aspects the compensation was modified.

In view of the above, appeal was disposed off.[Gowri S. Patil v. Divisional Controller, 2021 SCC OnLine Kar 447, decided on 04-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Op EdsOP. ED.


Summary judgment, as the combination of two words suggests, is an outcome of a case decided summarily, based on the documentary evidence produced before the Court by the parties, without going for recording of the oral evidence. The cause of action for filing the application under Order XIII-A[1] of the Code of Civil Procedure, 1908 (in short “the Code”), as inserted by the Commercial Courts Act, 2015 (in short “the Act”), arises only when the summons are served upon the defendant. The Order is applicable to both the parties to the litigation. It is not limited to the claim of the plaintiff, rather it is extended to the counterclaim filed by the defendant as well. Application by a party for the summary judgment is filed not merely for deciding a claim or counterclaim but also to seek answer of any particular question on which the claim depends.

The High Court of Delhi, in Oxbridge Associates Ltd.  v. Atul Kumra[2], has held that “an application is not essential to seek the summary judgment and the Court, on its own or on the asking of either party, is entitled to see/adjudicate, whether a case for summary judgment is made out.” The Court further observed that the Delhi High Court (Original Side) Rules, 2018, in Chapter X-A thereof, also provides for summary judgment and does not provide for any application to be moved. The Law Commission has also discussed this concept and made certain recommendations in its 253rd Report[3].

253rd Law Commission Report

In pursuant to the Law Commission’s 188th Report[4] wherein necessity for commercial courts was expressed, the Law Commission further, in its 253rd Report, submitted that a new procedure for “summary judgment” be introduced to permit the courts to decide a claim pertaining to any commercial dispute without recording oral evidence, as long as the application for summary judgment has been filed before the framing of issues. Courts are also to be empowered to make “conditional orders” wherever necessary.

 Intention and Objective 

The Supreme Court, in Ambalal Sarabhai Enterprises  v. K.S. Infraspace Llp,[5] has held:

“… Keeping in view the object and purpose of the establishment of the commercial courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country.”

The Division Bench of the Madras High Court, in Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD [6], has held

11. … the Commercial Courts Act has been introduced with the intention to give qualitative and quantitative decisions. Interestingly, the enactment fixes responsibility on all the stakeholders, including judiciary, in achieving the avowed object.”

The Delhi High Court further held, in Bright Enterprises Pvt. Ltd.  v. MJ Bizcraft LLP [7],

“ …from the provisions laid out in Order XIII-A, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIII-A cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court.”

In order to have a better understanding of the concept, it will be pertinent to have a look at some of the provisions concerned under the Code and their interpretation.

Statutory Provisions for Summary Judgment

A. Rule 1 of Order XIII-A of the Code sets out the procedure by which the Courts may decide a claim pertaining to any commercial dispute without recording oral evidence. Sub-rule (2) for the purpose of this order includes the word “claim”;

i) part of a claim;

ii) any particular question on which the claim (whether in whole or in part) depends; or

iii) a counterclaim.

Sub-rule (3) clarifies that no application for summary judgment can be filed in a summary suit in respect of any commercial dispute originally filed under Order XXXVII of the Code.

B. Rule 2 of Order XIII-A of the Code provides that an application for the summary judgment can be filed any time after the service of the summons has been served upon the defendant. Proviso to the clause reads that no application for summary judgment may be made after issues are framed by the Court. The High Court of Madras has held, in Syrma[8]:

“Thus, if one reads the provision as a whole, what emerges is that an application may not be filed after framing of the issues. The first part speaks of the entitlement to file an application and the second is the outer limit. Although, the legislation uses the words ‘may’, one has to see the preceding words, ‘no application for summary judgment‘.. The power being discretionary, it has to be exercised before the framing of issues. The reason being that once issues are framed and taken note of to be answered, regular trial is the way out.”

(emphasis added)

One may argue that the defendant may file an application for summary judgment under the above said order after receiving the summons under sub-clause (b) of clause 2 of sub-rule (1) of Rule 1 of Order XIII-A of the Code. However, filing the same will not entitle him to claim an extension of the time period, statutorily fixed for filing the Written Statement.

The Division Bench of the High Court of Delhi has held in Bright Enterprises[9] :

“…the provisions related to summary judgment, which enables courts to decide claims pertaining to commercial disputes without recording oral evidence, are exceptional in nature and out of the ordinary course which a normal suit has to follow. In such an eventuality, it is essential that the stipulations are followed scrupulously, otherwise, it may result in gross injustice.”

C. Rule 3 of Order XIII-A of the Code laid down the following grounds for the summary judgment against a party on a claim when it considers that:

(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim; and

(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.

To narrow down the grounds for summary judgment, the court, while deciding the said application, is required to disclose the grounds that the plaintiff has no real prospect of succeeding on the claim, or, the defendant has no real prospect of successfully defending the claim and also, that there is no other justifiable reason for keeping the claim alive and allowing the recording of oral evidence.

The High Court of Delhi has held in Su-Kam Power Systems Ltd. v. Kunwer Sachdev[10]:

91. Rule 3 of Order XIII-A CPC, as applicable to commercial disputes, empowers the court to grant a summary judgment against the defendant where the court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. The expression “real” directs the court to examine whether there is a “realistic” as opposed to “fanciful” prospects of success. This Court is of the view that the expression “no genuine issue requiring a trial” in the Ontario Rules of Civil Procedure and “no other compelling reason…..for trial” in the Commercial Courts Act can be read mutatis mutandis. Consequently, Order XIII-A CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result.

92. Accordingly, unlike ordinary suits, courts need not hold trial in commercial suits, even if there are disputed questions of fact as held by the Canadian Supreme Court in Robert Hryniak[11] , in the event, the Court comes to the conclusion that the defendant lacks a real prospect of successfully defending the claim.”

The High Court of Delhi, in an another case of Ambawatta Buildwell Pvt. Ltd. v. Imperia Structure Ltd.[12], has held:

“what has to be seen is, whether the defence pleaded, has any chance of succeeding in law and if the answer is in the negative, a decree on admissions or under Order XV of CPC or a summary judgment under Order XIII-A of the CPC as applicable to commercial disputes read with Chapter X-A of the Delhi High Court (Original Side) Rules, 2018, has to follow.”

D. Rule 4 of Order XIII-A of the Code laid down the following procedure for filing such application:

(1) An application for summary judgment to a court shall include the following matters:

(a) the application must contain a statement that it is an application for summary judgment made under this Order;

(b) the application must precisely disclose all material facts and identify the point of law, if any;

(c) in the event the applicant seeks to rely upon any documentary evidence, the applicant must,–

(i) include such documentary evidence in its application, and

(ii) identify the relevant content of such documentary evidence on which the applicant relies;

(d) the application must state the reason why there are no real prospects of succeeding on the claim or defending the claim, as the case may be;

(e) the application must state what relief the applicant is seeking and briefly state the grounds for seeking such relief.

The procedure is mandatory for both the parties to follow. The application must contain a statement that the said application is for summary judgment and also the reason as to why the party thinks that there are no real prospects of succeeding on the claim or defending the claim. It is further necessary for the parties to state the relief being sought from the court and the grounds for seeking such relief. It makes clearer that the applicant has to give the reasons for the relief being sought from the court.

(2) Where a hearing for summary judgment is fixed, the respondent must be given at least thirty days’ notice of:

(a) the date fixed for the hearing; and

(b) the claim that is proposed to be decided by the court at such hearing.

(3) The respondent may, within thirty days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other matters that the respondent may deem relevant:

(a) the reply must precisely–

(i) disclose all material facts;

(ii) identify the point of law, if any; and

(iii) state the reasons why the relief sought by the applicant should not be granted;

(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the respondent must–

(i) include such documentary evidence in its reply; and

(ii) identify the relevant content of such documentary evidence on which the respondent relies;

(c) the reply must state the reason why there are real prospects of succeeding on the claim or defending the claim, as the case may be;

(d) the reply must concisely state the issues that should be framed for trial;

(e) the reply must identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment; and

(f) the reply must state why, in light of the evidence or material on record if any, the Court should not proceed to summary judgment.

Once the application for summary judgment is filed, the respondent has to be given 30 days’ notice intimating him the next date fixed for the hearing and also the claim to be adjudicated upon. This Order casts a duty upon the respondent that the reply, among other things, must concisely state the issues that should be framed for trial and also identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment. Besides, the reply must also state as to why, in light of the evidence brought before it, the court should not proceed to issue a summary judgment. Onus has been shifted on the respondent, if he opposes the application for summary judgment, to file the proposed issues before the court. This will enable the court to verify the authenticity of the defence adopted by the respondent.

E. Rule 5 of Order XIII-A of the Code provides for evidences to be placed before the court for hearing of summary judgment and further clarifies that if a respondent in an application for summary judgment wishes to rely on an additional documentary evidence, he must file such documentary evidence and serve copies of such evidence to other parties to the application at least 15 days prior to the date of hearing. It has further provided that if the applicant to the summary judgment wishes to rely on documentary evidence upon respondent’s evidence then he must file it in his reply and serve on the respondent at least 5 days from the date of hearing. The parties are restrained from filing such documentary evidence again if the same has already been filed or served to the parties concerned.

F. Rule 6 of Order XIII-A of the Code provides the list of orders to be made by the court i.e.

(a) judgment on the claim;

(b) conditional order in accordance with Rule 7 of this Order;

(c) dismissing the application;

(d) dismissing part of the claim and a judgment on part of the claim that is not dismissed;

(e) striking out the pleadings (whether in whole or in part); or

(f) further directions to proceed for case management under Order XV-A.

It is clarified that the Court may pass any other order in addition to the above orders and the Court is also obliged to record the reasons for making the orders. The High Court of Madras has held in Syrma Technology[13]:

“ Thus, to conclude, we are of the view that when an application is filed under Order XIII-A, a court is expected to keep in mind the provisions contained in Order XIII-A Rules 6 and 7 before considering a summary judgment under Order XIII-A Rule 3. We are conscious that Order XIII-A Rule 6 also speaks of a judgment on the claim both part or full. Order XIII-A Rule 7, read with other modes mentioned under Order XIII-A Rule 6, act as contraceptive to grant of summary judgment under Order XIII-A Rule 3. The question as to whether the case is complicated or not is not the concern of the court especially in deciding an application filed invoking Order XIII-A CPC. Obviously, the respondent in the application has to produce his best evidence, which would be his “lead trump” as he would stand the chance of losing his case.”

G. Rule 7 of Order XIII-A of the Code talks about the conditional order. By conditional order, it means that when the court is of the opinion that a claim or defence may succeed but it is improbable that the court shall do so, the court may pass a conditional order as set forth in clause (b) of sub-rule (1) of Rule 6. At the time of making the conditional order, the court may:

(a) make it subject to all or any of the following conditions:

(i) require a party to deposit a sum of money in the court;

(ii) require a party to take a specified step in relation to the claim or defence; (iii) require a party to give such security or provide such surety for restitution of costs as the court deems fit and proper;

(iv) impose such other conditions, including providing security for restitution of losses that any party is likely to suffer during the pendency of the suit, as the court may deem fit in its discretion; and

(b) specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that have not complied with the conditional order.

The purpose of the conditional order is to safeguard the interests of the parties. The Madras High Court observed in Syrma[14]:

“This rule provides sufficient power to the court to pass a conditional order. This power has to be exercised when “it appears” to the court that it is possible that a claim or defence may succeed but it is improbable that it shall do so. If we read order XIII-A Rules 6 and 7 together, a clear picture would emerge. If it appears to the court that a claim or defence may succeed and it is also probable, then the application filed seeking a summary judgment will have to be dismissed. If it appears to the court that it is possible but improbable as stated in Rule 7 of Order XIII-A of the Code, then it may consider passing a conditional order. If the court considers that a plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim there is no other compelling reason as to why the claim should not be disposed of before recording of oral evidence, it may give a summary judgment. Alternatively, the court can also consider striking out the pleadings either in whole or in part. This discretion is given to the court before deciding to give a summary judgment. Therefore, the court has to keep in mind and decide as to whether it is a fit case for striking out the pleadings dismissing an application and proceed further or a conditional order could be passed. After exhausting these stages, the question of granting a summary judgment would arise.”

It is relevant to point out that under Rule 8, the court is empowered to impose cost upon the defaulting parties as per the dynamic provisions incorporated under Sections 35 and 35- A of the Act[15].

Summary Judgment Vis-à-vis Judgment on Admission

The  High Court of Delhi, in Su-Kam Power Systems Ltd. v. Kunwer Sachdev [16], has held that the “ legislative intent behind introducing summary judgment under Order XIII-A of the Code is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII of the Code.”


The procedure given under Order XIII-A of the Code has the sole purpose to reduce the time period in deciding the commercial dispute of a specified value. It is not alien to say that the amendment in the Code is basically to strengthen the confidence of the merchant class in the fairness, transparency and effective justice delivery system. Loopholes exploited by some of the parties have also been taken care of in the present provision. Moreover, it can be noted that the special courts, that too, of District Judges, which are superior courts at the district level, have been designated to adjudicate the matters. The fact that trial is a default process in every civil suit has been done away with the insertion of Order XIII-A of the Code. Therefore, the intention of the legislature is to enable the courts to decide the commercial disputes of a specified value in a time bound and efficient manner.

*Author is a founding partner at Actus Legal Advocates and Associates. He may be contacted at

[1] Civil Procedure Code, 1908, Order XIII-A 

[2] 2019 SCC OnLine Del 10641

[3] Law Commission of India, 253rd Report on Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015 (January 2015) 

[4] Law Commission of India, 188th Report on Proposals for Constitution of Hi-Tech Fast — Track Commercial Divisions in High Courts  (December, 2003)

[5] 2019 SCC OnLine SC 1311

[6] Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD,2020 SCC OnLine Mad 5737 

[7] 2016 SCC OnLine Del 4421

[8]  Syrma Technology Private Limited vs. Powerwave Technologies Sweden AD, 2020 SCC OnLine Mad 5737   

[9] 2016 SCC OnLine Del 4421

[10] 2019 SCC OnLine Del 10764

[11] Robert Hryniak v. Fred Mauldin, 2014 SCC OnLine Can SC 53

[12] 2019 SCC Online Del 8657 

[13]  Syrma Technology Pvt. Ltd. v. Powerwave Technologies Sweden AD, 2020 SCC OnLine Mad 5737   

[14] Ibid

[15] The Commercial Courts Act, 2015 [Act No. 04 of 2016]

[16] 2019 SCC OnLine Del 10764

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and Aniruddha Bose, JJ has held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

“The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

The Court was hearing the case relating to an accident resulting into the death of a 34-year-old man named Sandeep who was survived by his wife widow, two minor children and a mother; all of whom were dependent on him. His dependents had claimed Rs 60,94,000 as compensation alleging, inter alia, that Sandeep died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash and negligent driving of one Sanjeev Kapoor, the owner­cum-driverof the car in which Sandeep was travelling.

Sanjeev disowned responsibility for the accident by asserting that it was the truck which was coming from the opposite side at a very fast speed, and was being driven in a rash and negligent manner.

According to an eyewitness, however, Sanjeev was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Credibility of the eyewitness was questioned.

Noticing that the eyewitness had, acting as a good samaritan and a responsible citizen, taken the injured persons to the hospital, the Court said that it is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital.

“Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”

Further, it is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. Hence, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police especially when the police had themselves reached the hospital upon having received information about the accident.

Not impressed with the way the High Court had approached the matter, the Court said,

“Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State.”

[Anita Sharma v. New India Assurance Co. Ltd., 2020 SCC OnLine SC 1002, decided on 08.12.2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link:

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.

National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo J. allowed the appeal in part setting aside conviction under Sections 376/511, 354 and 457 of  Penal Code, 1860 and upholding conviction under Section 448 IPC.

The facts of the case are such that on 03-10-1989 at about 9.30 p.m. while the victim/informant was sleeping with her younger brother in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag were sleeping in the adjacent room, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim, the elder brother and his wife came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bedroom but the victim, as well as his elder brother, assaulted him by firewood. Due to tussle of the appellant with the victim, the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. FIR was lodged against the appellant under Sections 457 and 354 of the Penal Code, 1860 i.e. IPC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh for offences punishable under Sections 376/ 511, 354 and 457 of the IPC. The learned trial Court vide impugned judgment and order dated 17-03-1990, found the appellant guilty of the offences charged and sentenced him accordingly. Aggreived by the same, instant appeal was filed.

Counsel for the appellants submitted that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members, she reacted and brought false accusation against the appellant just to save her own skin.

Counsel for the respondents submitted that evidence of the victim is clear, cogent and trustworthy, that in itself is sufficient to convict the appellant.

The Court based on the evidence put on record and the witnesses submissions observed that it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version, if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating evidence.

The Court further observed on the issue of whether victim was a consenting party or not and stated that law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will. ‘Consent’ does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Verbal resistance apart, the woman can give effective obstacles by means of hands, limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated byduress, cannot be deemed to be a consent, as envisaged in law.

The Court thus held that the victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness. It was further held that coming to the charge of attempt to commit rape, the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features, but its absence is not always a decisive factor. As per examination and records it is clear that there were many opportunities earlier for the victim to raise shout and protest but she did not do that.

In view of the above, the conviction of the appellant under Sections 376/511 and 354 of IPC was held to not be sustainable in the eye of law however; there are enough materials to make out an offence of house18 trespass as defined under Section 442 of IPC which is punishable under Section 448 of IPC.

The court thus allowing the appeal in part held conviction of the appellant under Sections 376/511, 354 and 457 of  IPC is hereby set aside, instead the appellant is convicted under Section 448 of the IPC and sentenced to undergo imprisonment for the period already undergone by him.[Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885, decided on 11-12-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Gautam Chourdiya J., allowed the appeal and reversed the impugned order due to lack of clear evidence.

 The facts of the case are such that on 3-07-2003 at about 5 pm near Primary School at Village- the accused persons were sitting with club and bamboo stick in their hands. One, Gajpati (PW-5), along with his nephew Adalat and his wife Etwarinbai reached the place of occurrence, all the accused persons started abusing him filthily in the name of his caste saying Sale Chamra and they all were threatening to kill them and thereby assaulted them. An FIR was lodged under Sections 147, 148, 149, 323 of Penal Code, 1860 and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against all the accused persons. The trial considering the material available on record acquitted the other accused persons of all the charges, but convicted and sentenced the accused/appellants under Section 323 of Penal Code, 1860

Counsel for the appellants submitted that the entire evidence of the witnesses, it appears that all the accused persons assaulted upon the injured persons but the trial Court wrongly appreciated the evidence and without any basis held only the appellants guilty of causing simple hurt to the injured persons. It was further submitted that only general and omnibus allegations have been made against the appellants and other accused persons, there was a free fight between the parties but the trial Court on its own without there being any cogent and reliable evidence, held the appellants guilty under Section 323 of IPC, which is liable to be set aside.

Counsel for the respondents submitted that the trial Court considering all the relevant aspects of the matter has rightly convicted and sentenced the present appellants by the impugned judgment which calls for no interference by this Court.

The Court held that “the trial Court has acquitted accused persons out of 16 and held only the appellants guilty under Section 323 of IPC. Admittedly, no appeal has been preferred by the complainant or the State against acquittal of other accused persons. Therefore, looking to the nature and quality of evidence available on record, considering the fact that there was a free fight between the parties due to old land related dispute where both the parties sustained injures and counter case was also lodged, it cannot be said with certainty that it is the present appellants who caused injuries to Shambhunath and Ghasnin Bai, as has been held by the trial Court. Therefore, the present appellants are also entitled for acquittal by extending them benefit of doubt.”

In view of the above, appeal was allowed and the impugned judgment was set aside. [Tiharu Sahu v. State of Chhattisgarh, 2020 SCC OnLine Chh 666,  decided on 19-11-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

The Court was heading the matter where the appellants were convicted for killing the deceased by giving him hockey and knife blows. The Trial Court came to the conclusion that the prosecution had brought home the guilt of the accused persons and accordingly sentenced them to Life Imprisonment.

Before the Supreme Court, it was argued by the defence that

  • The knife which was recovered had a blunt tip, as such, the injuries as mentioned in the post mortem report were not possible to be caused by the said knife. Even, this knife was not shown to the doctor to seek his opinion whether injuries were possible by the said blunt knife or not.
  • Recovery of hockey at the instance of the appellant was not even believed by the Trial Court.
  • the conviction and sentence of the appellants based upon the sole testimony of one eye witness, whose conduct was unnatural and inconsistent with the ordinary course of human nature making his presence at the site of incident extremely doubtful, is highly unsafe without corroboration from other piece of evidence.
  • The other two eye witnesses have turned hostile and nothing could be elicited from their cross-examination by the prosecution.

Prosecution argued

  • Two Courts have recorded concurrent finding of guilt of the accused appellants based on the testimony of an eye witness which they found to be reliable and there exists no legal impediment for conviction on the basis of the same.
  • Evidence of a hostile witness is not to be discarded as a whole and relevant parts thereof which are admissible in law can be relied upon by the prosecution.
  • The conviction cannot be assailed merely because of some lacuna in investigation and any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief, in a case where the prosecution case is fully established by direct testimony of eye witness duly corroborated by medical evidence.

Considering the submissions and material on record, the Court noticed,

“There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of 8 Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

The Court said that in the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored.

It was, hence, held,

“… ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness.”

[Amar Singh v. State (NCT of Delhi),  2020 SCC OnLine SC 826, decided on 12.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has elaborately discussed the power of the Disciplinary Authority to impose punishment, applicability of rules of evidence and the scope of judicial review in such cases.

Punishment and plea of leniency

The Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying¬degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent but must also factor the financial effect and societal implication of such misconduct.

“Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked.”

Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

Effect of criminal enquiry on disciplinary proceedings

It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision.

“Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.”

However, while strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances.

Scope of Judicial Review in Service Matters

The Constitutional Courts while exercising their powers of judicial review cannot assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.

“… judicial review is not analogous to venturing into the merits of a case like an appellate authority.”

Further, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity.

[Pravin Kumar v. Union of India, CIVIL APPEAL NO. 6270 of 2012 , decided on 12.09.2020]

Op EdsOP. ED.


To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.


The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.


‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].


Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.


In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.


Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”


In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.


A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].


Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.

* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.