Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Significance of relevancy of facts, admissions, confessions, omissions, contradictions and corroboration in appreciation of evidence

Significance of relevancy of facts, admissions, confessions, omissions, contradictions and corroboration in appreciation of evidence

In a criminal case appreciation of evidence is one of the first and foremost tests to consider the credibility and reliability of the prosecution evidence, both oral and documentary. Finding of the facts, the question of law and the conclusion of the Judges of the court culminating into the judgments in a criminal case mainly based on the appreciation of evidence. Appreciation of evidence is a matter of experience and knowledge of human affairs. It is a delicate task to be carried out by the judges for weighing the evidence and drawing inferences. Each case has it's own peculiarity, common sense and dexterity are also part of the tools. Therefore, appreciation of evidence is the heart and soul of the dispensation of justice delivery system in criminal law.

According to Bentham, ‘evidence’ is any matter of facts, the effect, tendency or design of which is to produce in the mind, a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact.
Best defines 'evidence' as "including" all the means, exclusive of mere arguments, by which any alleged matter of fact, the truth of which is submitted to investigation, tends to be or would be established or disproved to the satisfaction of the Court.
As per the Indian Evidence Act, 'evidence' means and includes all statements, which the Court permits or requires to be made before it by 2 witnesses, in relation to matters of fact under enquiry and all documents including electronic records produced for the inspection of the Court. According to Stephen, the instrument by which the Court is convinced of a fact is evidence and it is often classified, as being either direct or circumstantial.
Direct evidence is a statement of what a man has actually seen or heard. Circumstantial evidence is something, from which fact in issue to be inferred. In usage, evidence may be reduced to three heads
(1) oral evidence, 

(2) documentary evidence and 

(3) material evidence.

                           Law of evidence deals with two aspects, quid probandum, i.e., thing to be proved and modus probandi, that is mode of proving. Evidence Act deals with relevancy, admissibility and proof. The probative effects of evidence in civil and criminal cases are not always the same and it has been laid down that a fact may be regarded as proved in a civil case, though evidence may not be considered sufficient for a conviction in a criminal case.
The word Evidence is defined in section 3 of the Indian Evidence Act, 1872 (the Evidence Act), which means and includes :

a). all statements which the court permits or
b). requires to be made before it by witnesses,
c). in relation to matter of fact under enquiry.

Documentary Evidence 

All documents including electronic records produced for the inspection of  the Court. “Document” means any matter expressed or described upon  any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

The Word 'Evidence':

The word evidence is used in common parlance in three different senses

( a) as equivalent to relevant 

(b) as equivalent to proof and 

(c) as equivalent to the material, on the basis of which court come to the conclusion about the existence or nonexistence of disputed facts.
Though, in the definition of the word evidence, given in section 3 of the Indian Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence etc.
Material words and expressions used in the Evidence Act(Section 3):
Facts: means anything or state of things or relations of thing which can be perceived by senses (see, touch, taste, hear, and smell). Particular ‘state of mind’ is also a fact.

Facts in issue means and includes—

any fact from which, either by itself or in connection with other facts, the existence, nonexistence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
“Proved” —A fact is said to be proved when, after considering the matters before it,
 a). the Court either believes it to exist, or
b). considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
“Disproved” —A fact is said to be disproved when, after considering the matters before it,
a). the Court either believes that it does not exist, or
b). considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
“Not proved”—A fact is said not to be proved when it is neither proved nor disproved.

Relevant — One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. Relevant facts are those facts which are so connected with the ‘fact in issue’ that it can explain, assert or deny existence of ‘facts in issue’. However, it is to be noted here that every facts connected with ‘facts in issue’ is not relevant, unless the said fact is connected with ‘facts in issue’. Relevant facts also play an important role in adjudicating dispute about as to fact in issue. Therefore, aspect of relevancy of facts plays a vital role to arrive at a definite conclusion. In any suit or proceeding, evidence could be given as to existence or nonexistence of every fact in issue, and of such other facts as are relevant in view of the provisions of the Act.

5)Sir James Stephen in his Digest defines 'relevant' as, “any two facts, to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts prove or renders probable the past, present, or future existence or nonexistence of the other. “Sir James Stephen further divided relevant facts into several categories, which is more or less the same with the divisions already provided for in the Evidence Act, which are;
1). Facts logically connected to the facts in issue/relevant facts.
2). Admissions and confessions
3). Statements by persons who cannot be called as witness.
4). Statement under special circumstances
5). Judgment in other cases
6). Opinion of a third person
7). Evidence as to characteristics
The relevant evidence is evidence which makes the matter which requires proof more or less probable.”

Admissible Evidence
3). The justification that a relevant fact may be admitted as evidence is provided under Section 5 of the Evidence Act. 

Section 5  stated that; Evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. This provision 6 had restricted the admissibility of fact unless it is a fact in issue or it is a relevant fact.
Significance of relevancy of fact
4). Relevancy of a fact is important to ensure that evidence is admissible. The relevancy of evidence will render an evidence to be admissible even though it was obtained by illegal manners. In short, Relevancy is concerned with facts connected with each other in ways provided by Chapter II of the Evidence Act. Relevancy of Fact is important in order for a fact to be rendered admissible in a court of law.

Categories of relevant facts are:
1). Facts forming part of same transactions.
2). Certain Statements like admission, confession or dying declarations.
3). Earlier judgment pertaining to the said cause of action.
4). Opinion of expert of facts disputed.
5). Character of parties.

Basic provisions of relevancy of facts
1.   Facts forming part of the same transaction – RES GESTAE
2. Facts suggesting Motive, preparation and previous or subsequent conduct (Section 8)
3. Facts necessary to explain or introduce relevant facts  (section 9)

4. Things said or done by conspirator in reference to common design (Section 10)
5. When Facts not otherwise relevant become relevant because these facts make other facts in issue or any relevant fact either highly probable or highly improbable (section 11)


In English law, all facts which are connected through ‘part of the same transaction’ they are called as evidence of ‘res gestae’.
All facts which are connected with the ‘facts in issue’ due to: Proximity of time, Proximity of place, Continuity of action, Community of purposes, whether happen at same time and place or different time and different place.
The facts which are either occasion or cause or create effect over ‘facts in issue’.
For example In murder case, ‘presence’ of accused and victim at the place of occurrence at same time or accused ‘having gun’, at given time, or ‘altercation between’ accused and victim are the facts proving occasion, and thus they are relevant. ‘Firing’ of bullet is cause of death, so ‘firing’ as such is a relevant fact; ‘firing of bullet’ may have effect of  causing serious injuries resulting into death, here injuries and death is effect of ‘firing of bullet’, so such injuries are relevant facts.


(SECTION 8):Facts suggesting motive (say example previous fighting, property dispute, love affair, family dispute, business rivalry etc.) or preparation or conduct, whether previous or subsequent of the parties are also relevant.

 ( SECTION 9) :
are as follows
a. Facts necessary to explain or introduce a fact in issue or relevant fact,
b. Facts which support or rebut an inference suggested by a fact in issue or relevant fact,
c. Fact which establishes the identity of anything or person whose identity is relevant,
d. fact which fix the time or place at which any fact in issue or relevant fact happened,
e. or which shows the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.


These provisions relate to conspiracy. Section 10 provides that during existence of a conspiracy, what ever were said or done by the conspirators in furtherance of common design is relevant against all conspirators. Essentials of this section are:
a. two or more persons conspiring together,
b. to commit an offfence or an actionable wrong ,
c. anything said or done or written by any of such persons in reference to their common intention.
d. after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for purpose showing that any such person was a party to it.

Facts which are not otherwise relevant will become relevant(It relates to defence of alibi.):
a] if they are inconsistent with any fact in issue or relevant fact;
b] if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable.
Other Relevant Facts (Sections 14 to 16) :
A. Facts showing existence of state of mind or of body or bodily feeling are relevant. A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question. The following are some of the examples of state of mind.
(i) Intention, 

(ii) Knowledge, 

(iii) Good faith,
(iv) Negligence, rashness, 

(v)Illwill or goodwill
(vi) Existence of any state of body or bodily feeling,
B). Facts bearing on question whether act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.
C). When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

7) Sections 17 to 23 of the Evidence Act deals with the Admissions. Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceeding proves that the other party has admitted his case, the work or the court becomes easier.
Meaning The expression 'Admission' means voluntarily acknowledgement of the existence of truth of a particular fact. An admission must be clear precise and not vague or ambiguous.
Definition As per section 17 of the Indian Evidence Act, an Admission is a statement, oral or documentary or contained in electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any person.


i. It may be oral or documentary.
ii. It is a statement to suggest any inference to any fact in issue or relevant fact.
iii. It must be made by any person prescribed under the Act, and.
iv. It must be made under specific circumstances.
NATURE OF ADMISSION –The statements made by parties during judicial proceedin maybe classified.

   Selfserving statements

 Selfserving statements are those, which serve
promote, or advance the interest of the person making it.
statements Selfharming statements are those which harm or prejudice or injure the interest of the person making it.

WHO CAN MAKE ADMISSIONS –9) As per sections 18 , 19 and 20 of the Evidence Act, an Admission is relevant if it is made by ,

i). A party to the proceedings, 

ii). An agent authorized by such party ,
iii). A party suing or being sued in a representative character making admission while holding such character ,
iv). A person from whom the parties to the suit have derived their interest in the subject matter of the suit during the continuance of such interest.
v). A person whose position it is necessary to prove in a suit, if such statements would be relevant in a suit brought by against himself.
vi). A person to whom a party to the suit has expressly referred for information in reference to a matter in dispute.

Principle of Admissions:

5). The principle underlying the law of admission is that when a man makes statements he makes always in his favour except cases laid down in Section 21. By admission a person admits his liability, because the statement of admission suggests an inference of liability. An admission, therefore, binds its maker and not relates to a question of law.
6)Admissions are usually telling against the maker unless reasonably explained. Admission is the best piece of evidence against the person making it. However, it is open to the person making admission to show why admission is not to be acted upon.
 7). As stated earlier the principles of admission have been stated in Sections 17 to 20 subject to fulfillment of requirement of Section 21. It is law of substantive evidence propris vigore. An admission is the best evidence and though not conclusive, shifts the onus on to the maker. Weight to be attached to an admission made by a party is a matter different from its use as admissible evidence.
8). Admissions are not conclusive proof of fact admitted. There must be unequivocal admission on which a court can base its decision or that the correctness and reliability of such an admission can be judged from other materials on record coupled with such admission. Where admission was found to be involuntary and in the nature of explanation and no warning was given required under section 164(2), Cr. P.C. the admission was held not admissible against the maker or the co-accused.
9). If a person voluntarily admits any matter in issue before judicial or quasi-judicial proceeding and such an admission is not retracted before being acted upon by the other side, it operates as an estoppel against the person making it.

Admissions as statement against interest:
10). It is natural for a man to make statement in his favour. An admission, being a statement against the interest of the maker should be supposed to be true, for it is highly improbable that a person will voluntarily make false statement against his own interest.
Forms of Admissions:
There as two types of admissions viz., 

(1) Judicial, and (2) Extrajudicial Admissions.
1. Judicial Admission:
13. The judicial admission is always in court proceedings. The judicial admission may be made by the party in his pleading, or by stipulation, by oral or written statement in court. Admission in pleadings or judicial admissions by themselves can be made the foundation of the rights of the parties. In Code of Criminal Procedure there are provisions,
viz. Sections 143, 251(5), 255(2), 263(g) and 271.

2. Extrajudicial Admissions :
15. The extrajudicial 
or informal admission is statement of fact made by the party previously in course of life or business which is inconsistent with the facts to be established at the trial. The extrajudicial admissions are called evidential admissions.
Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels.

The word “confession” appears in Section 24 of the Indian Evidence Act. This section comes under the heading of Admission so it is clear that the confessions are merely one species of admission.

is not defined in the Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession as “confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession and when it is made to anybody outside the court, in that case it will be called extrajudicial confession.

Judicial confession are those which are made before a magistrate or in court in the due course of legal proceedings.


Extrajudicial confessions are those which are made by the accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual.
Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:

14 ) That the statement in question is a confession,
• That such confession has been made by the accused,
• That it has been made to a person in authority,
• That the confession has not been obtained by reason of any inducement, threat or promise, proceeding from a person in authority.

If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant and
Confession otherwise relevant not to become irrelevant because of promise of secrecy, or in consequence of deception or of being drunk, or of being made in answer to question or without warning that it will be used against him in evidence.

A conviction can be based on confession only if it is proved to be voluntary and true. If corroboration is needed it is enough that the confession is substantiated by some evidence which would tally with the contents of the confession.

The evidence of extrajudicial confession is a weak piece of evidence. The extrajudicial confession must be received with great care and caution. It can be relied upon only when it is clear, consistent and convincing. Usually as a matter of caution courts require some material corroboration to an extrajudicial
Extrajudicial confessions have to be received with great caution
and care and when the foundation of the conviction is the confession alleged to have been made by the accused. There are three things which the prosecution must establish. First, that a confession was made, secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it is true.

A retracted confession is a statement by which he repudiates confessional statement. It is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence.
15 ) Confession to police officer not to be proved  

(Section 25 and 26).

No confession made to a police officer shall be proved as against a person accused of any offence. No confession made by any person while he is in the custody of a police officer, shall be proved as against such person.

Discovery in consequences of information (Section 27)
When any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered is admissible, may be proved. It is an exception to the rule of inadmissibility of confession by accused made in police custody.
When more persons than one are being tried jointly for the same offence and a confession made by one such persons affecting himself and some other such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. Confession is that type of admission in criminal matter where accused admits guilt in its absolute terms, leaving prosecution to prove nothings. In other words, confession of guilt in its entirety may be termed as confession.
If the accused wants to confess voluntarily, then code of criminal procedure prescribes such procedure in section 164(3), and a Magistrate, when satisfied that accused is making confession voluntarily, he may record the same, and that is often used as substantial piece of evidence against the accused.

Value of retracted confession 

A retracted confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. After the commission of a serious offence some police officer makes investigation into the matter, examines witnesses and the accused. If in his opinion the accused is proved to have committed the offence, he submits a report to a magistrate having jurisdiction in the matter. The court takes evidence and examines the accused. If during the investigation, the accused on being examined by the police officer is willing to admit the guilt.

Certain Guidelines are given in Criminal Manual for recording of confession .The following instructions are issued for the guidance of the Magistrate recording confessions and statements U/s.164 Cr.P.C. They are not intended to fetter discretion given by the law to Magistrate.
The only object which they are issued is to indicate generally the manner in which the discretion may be exercised. It is the duty of the magistrate to satisfy himself that the confession made is voluntary. A duty is cast on the magistrate to fully satisfy himself that no such inducement, threat or promise is given to the accused. The Magistrate should give the accused a reasonable time, which should ordinarily not be less than 24 hours, for reflection in circumstances in which he would be free from the influence of the police and any other person interested in having the confession recorded. Guidelines are given in the criminal manual Chapter I Paras 17 and 18, those guidelines are to be followed by magistrate while recording the confession.
As per amendment in Sub sec.1 of Sec. 164 Cr.P.C. any confession or statement may also be recorded by audio video electronic means in the presence of the advocate of the person accused of an offence.
Statements by persons who cannot be called as witnesses (dying
17 )Provisions of section 32 are exceptions to the general rule that hearsay evidence is not admissible. Hearsay evidence is excluded on the ground that it is always desirable in the interest of justice to get the person,
whose statement is relied upon, into court for his examination. The exception to the hearsay evidence have been directed by necessity. As per section 32 a statements, written or verbal, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death
(2) made in course of business,
(3) Or against interest of maker ,
(4) Or gives opinion as to public right or custom, or matters of
general interest ,
(5) Or relates to existence of relationship,
(6) Or is made in will or deed relating to family affairs ,
(7) Or in document relating to transaction mentioned in section 13, Clause (a)  18
(8) Or is made by several persons and express feelings relevant to matter in question .

In order to corroborate the testimony of the witness, any former statement made by such witness relating to the same fact at or about the time when such fact took place, or before any authority legally competent to investigate the fact, is relevant and may be proved.
There are only two things which are essential for the section to apply:
a) A witness should have given testimony in respect to some fact
b) He should have made, an oral or written, statement earlier with respect to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact.
(For examples. FIR, entries in the account books, etc.)


If the witness deposes in his chief examination certain facts which he has omitted to state in his police statement, it is called omissions. If the omissions are minor, then it does not amount to contradiction and the court will not take cognizance of it. The court shall take cognizance of those omissions, which are material one and which amounts to contradiction by way of omission. In order to prove the omission before the court, it is necessary to find out what fact he has deposed in his examination in chief and omitted to state in his statement before the police.
19 ) The Meaning of contradictions:
According to Oxford dictionary 'contradiction' means to offer the contrary. If a witness deposes in the court that a certain fact existed but he has not stated accordingly in his statement before the police, it is a case of conflict between the deposition in the court and statement made before the police. Therefore, statement before the police can be used to contradict his deposition before the court.
Why omissions and contradictions are required to be proved?
Even though the statements of witnesses are efore the court and same witness deposed before the court; any material fact which is not stated by him before police, but still we cannot point out the contradiction to the court by reading the contents of his statement before the police. The court is also not empowered to read and rely upon the statement of said witness before police in evidence. Because there is bar to do so as per section 162 of Cr. P. C. As per section 162 of Cr. P.C. such statement or part of such statement may be used by the accused to contradict such witness in the manner provided u/s 145 of Evidence Act.

In Halsbury’s Laws of England IV Edn. Vol. II page 268“
The word ‘corroboration’ is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other evidence.”
20)Corroboration is not rule. The court can rely upon uncorroborated evidence provided it is credible, trustworthy and inspires confidence. In some cases due to peculiar facts and circumstances court seeks corroboration as a rule of prudence.
Corroboration of a witness’s testimony must be afforded by independent evidence which affects the accused by connecting or tending to connect him with the offence charged. It must be evidence which implicates him, that is which tends to confirm in some material particular not only that the offence was committed, but also that the accused committed it. As to independent nature of the corroboration, it was held that the corroboration must be by some evidence other than that of an
accomplice, and therefore one accomplice’s evidence is not corroboration of the testimony of another accomplice: But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or
about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Evidence  of  accomplice
In the basic sense Accomplice Witness mean a witness to a crime who, either as principal, Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime .
21 ) Section 133 of the Indian Evidence Act, 1872 deals with the
Accomplice Witness. It says that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
An accomplice by accepting a pardon under Section 306 Cr. PC (Code of Criminal procedure,1973) becomes a competent witness and may as any other witnesses be examined on oath.
As per illustration (b) to section 114 of The Act an accomplice is treated as unworthy of credit. But reliance can be placed upon his evidence if his evidence is corroborated in material particulars.
Under section 156 of the Indian Evidence Act questions tending to corroborate evidence of relevant fact is admissible. It can be illustrated thus:
A, an accomplice, gives an account of a robbery in which he took part, he describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

NUMBER OF WITNESSES Quality and not quantity of evidence.
As per section 134 of the Act, no particular number of witnesses shall in any case be required for the proof of any fact. As per section 30 of the confession of one of the accused jointly tried with other accused for the same offence is admissible not only against himself but if it is affecting some other persons tried with him, then the court has discretion to take into consideration such confession against himself and other accused.

22 ) Opinion of Experts
Opinion of expert upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Shivaji Sahebrao Bobade Versus State of Maharashtra.. AIR 1973 SC Page 2622.
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of excalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The evil of acquitting a guilty person lightheartedly as a learned author Glanville Williams in ’Proof of Guilt’ has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ’persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltiness. Miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.
It is true that where the eyewitnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process, making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the ’credit’ of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

(6) Inder Singh & Anr v/s. The State (Delhi Admn.) 

AIR 1978 SC 1091
Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Infirmity in some aspect or other of this prosecution case cannot invalidate the culpability which is otherwise veraciously made out. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny.
While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
(7) Gurbachan Singh v/s. Satpal Singh & Ors :There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances.
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts of lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
‘Fiat Justitia’ is the motto of the Court. It is a Latin phrase, which means ‘ Let Justice be done’. Appreciation of evidence involves weighing the credibility and reliability of the evidence presented in the case. The standard of proof in Criminal cases is not the same as in the Civil.
Importantly, in criminal cases, the burden of proving the guilt of an accused is upon the prosecution. It must stand by itself. Essentially, accused need not establish his case beyond all reasonable doubt. Of course, in some cases, where the burden of proof relating to a fact in issue in a case is on the accused, the standard of proof required of him is not the same as is required from the prosecution. This proposition of law is no more res integra.
Upon such proof as is adduced, if there is a real and reasonable doubt as to his guilt, the accused is entitled to the benefit of doubt.
The appreciation of evidence is one of the most important test to consider the trustworthiness and consistency of evidence of
parties both oral and documentary. The finding of the facts, the
question of law and conclusion of the court mainly based on appreciation of evidence. The evidence both oral and documentary and its admissibility and reliability of such evidence should be considered by the court on the basis of the facts and law arriving at a just decision of the case. Therefore, appreciation evidence is the heart and soul of the justice delivery system.

The Rule of Best Evidence 
In attaching weight and value to the evidence , the Court should also see why the best evidence which could be produced by the Prosecution was not so produced. If the best evidence is to produced, it does not mean that the other evidence admissible in law should be rejected forthwith. The burden to produce best evidence is upon the person who is in its possession irrespective of burden of proof.
Proof of Defence of general or special exception by accused. Where accused claims exemption under a general exception or a special exception under Penal law, it will be sufficient if he succeeds in proving preponderance of probabilities. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds “in proving a preponderance of probability.” As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt.
(Harbhajan Singh vs State Of Punjab: 1966 AIR 97, 1965 SCR (3) 235.)

Evidence should be weighed but not counted:–
Undeniably, the evidence of witnesses has to be weighed and tested whatever their numerical strength be. If the case against the accused rests on the evidence only of a single witness to the crime and his testimony is entitled to full credit, that evidence would be sufficient to sustain conviction. The question of corroborative evidence would not then arise at all. Section 134 of the Evidence Act enacts that no particular number of witnesses is required for the proof of any fact. In Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614, it was observed on Page 619, as under:“
Hence, in our opinion, it is a sound and well established rule of
law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories namely:
(1)Wholly reliable.
(2)Wholly unreliable.
(3)Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation, In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and
has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
Evidence must conform to ordinary human conduct, natural
course of events and probabilities of the transaction:The task of a judicial officer is generally common sensical and judicious. The object and the phenomenon of hearing evidence is to  enable and walk through the Court to form its belief in the truth or otherwise of the alleged occurrence and of the guilt of the accused. Belief can be precipitated and engendered only if the said facts accord with reason and commonsense. In this connection, it is worthy of being noted, as said by the Hon'ble Supreme Court in Chaturbhuj Pande v. Collector,
(AIR 1969 SC 255) that : “ In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life,”
In judging the credibility of the witnesses, the demeanour of witnesses, their position, character and antecedents also are to be taken into consideration. If a judge minutely and skillfully observe the demeanour of the witness, while a witness is under examination, it would give an important clue to the nature of his evidence. However, every judicial officer has to be cautious in making remarks or judging the credibility of the witness on the basis thereof.
Circumstantial evidence is of considered help in determining the guilt:– Circumstantial evidence is sometimes of very great
importance. It proves links in a chain of facts which go to establish the guilt of the accused. where there is no direct evidence and the proof is made to rest on circumstantial evidence, the principles should be kept in view in judging the guilt of accused. 

“2009 (1) Crimes 11 (SC), Chattar Singh & Anr. vs. State of Haryana”, panchsheel of circumstantial evidence has been reiterated, that :

( 1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not 'may be' established;
(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.

The Significance of Evidence of Motive:
Motive is the reason which induces and actuates a man to do a certain act. It is a sense of injury or a long cherished feeling of resentment which induces a person to commit an offence. Therefore, motive is relevant under Section 8 of Indian Evidence Act. However, motive, though an important factor, adequacy or absence of motive may not affect the merits of a case, if there is positive evidence as to the crime which brings home the guilt of the accused. 

In Surinder Pal Jain vs Delhi
Administration: 1993 AIR 1723, the Hon’ble Supreme Court held that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.

Eye witness--
Evidence of an eye witness who is a near relative of the victim, should be closely scrutinized but no corroboration is necessary for acceptance of his evidence.
(Darya Singh & Ors vs. State of Punjab, (1964) 3 SCR 397 :AIR 1965 SC 328)
Injured witnesses:“
For appreciating the evidence of the injured witnesses the Court should bear in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the
prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(State of Gujarat Vs. Bharwad Jakshibhai and others,1990 CrLJ 2531)
Testimonies of partisan or interested or relatives:
It is well settled law that evidence given by witnesses should not be discarded merely on the ground that it is evidence of relations or partisan or interested witnesses. 

(Namdeo vs State Of Maharashtra (2007) (Appeal (crl.) 914 of 2006).

Child witness :It is well settled that although legally there is no bar to accept the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or un -sworn.
(Durgalal vs State Of Rajasthan: 2001 CriLJ 3652).
Evidence of Child Witness in Cases under POCSO Act.
In view of section 29 of The Protection of Children From Sexual Offences Act, 2012 child witness has to be relied upon unless contrary is proved. This provision of presumptions is applicable to offences section 3,5,7 and section 9.

Evidence of Accomplice
Our Indian Evidence Act provides that an Accomplice shall be a competent witness. Evidence of an Accomplice can be used to convict an accused.
The provision of section 133 thus places no limitation on the acceptance of the testimony of an accomplice against accused merely on the ground that he is an accomplice. Further, it does not impose any condition or correlation for purposes of conviction. 

See Bhubon Sahu v.  The King, (AIR 1949 PC 257).

Any one having special knowledge may be declared expert. When there is a conflict of opinion between the experts, then the Court is competent to form its own opinion. When court has to form an opinion on foreign law, science, art or as to identity of handwriting or finger impression, opinion of person especially skilled in such matters is relevant. It is not conclusive
of a fact. Court not bound to rely on it, as there are chances of expert favouring party who call him or mistake in the opinion of expert.
DNA test reports and finger print expert opinion are conclusive proof.
But, the evidence of handwriting expert, foot print evidence, opinion of doctor, if it is contradictory to oral credible evidence, and dog tracking evidence is not of a conclusive evidence. The court may or may not be relied upon by the court. It may be used as corroborative evidence and not substantive evidence.

The Hon'ble Supreme Court, in the recent case of Anwar P.
V. Vs. P.K. Basheer & Ors.
clarified the position of law for the proof of electronic record. General rule of secondary evidence provided under section 65 of Evidence Act is not applicable to proof of electronic record.
Any electronic record can be proved only as per the Section 65B. The section 65 B is not subjected to any other provision of evidence Act as it starts with a non obstante clause.
Nature and extent of corroboration wherever it is required by
law should always be kept in mind

In all cases where corroboration is required, the nature and extent of corroboration that the Court should look to must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charge. There can, therefore, be no set formula which may be of universal application. 

In Halsbury’s Laws of EnglandIVEdn. Vol. II page 268 this
proposition is stated thus: “The word ‘corroboration’ is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other  evidence .. ” (See the ruling of Hon’ble Court in Balwant Kaur vs Union
Territory Of Chandigarh,: 1988 AIR 139, 1988 SCR (1) 745.

Former statement of a witness may be used as corroboration of
his testimony:Section 157 provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

The Probative value of evidence of the complainant or the
prose cutrix in sexual offences

The  Hon'ble Apex Court in the case of State Of Rajasthan vs
N. K. By referring cases i.e. Rameshwar 1952 SCR 377, Sidheshwar

Ganguly AIR 1958 SC 143, Madhoram & Anr. (1973) 1 SCC 533, State of
Maharashtra Vs. Chandraprakash Kewalchand Jain (1990) 1 SCC 550,

Madam Gopal Kaddad (1992) 3 SCC 204 Shri Narayan AIR 1992 (3) SCC 615, Karnel Singh 1995 (5) SCC 518, Bodhisattwa Gautam 1996 (1) SCC 490 and Gurmit Singh’s case observed as follows: 

‘We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prose-cutrix in such cases has been succinctly summed up in the following words :If evidence of the prose-cutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the pros ecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual    molestations.

Contradictions and Omissions.
Whether any omission amounts to contradiction in the particular context shall be a question of fact. What is omitted to be stated is omission. A statement cannot include that, which is not stated.
32 Omission amounting to contradiction can be used for the purpose of confrontation under Section 145 of the Evidence Act. Every omission is not contradiction. Very often to make a statement sensible or self consistent it becomes necessary to imply words which are not actually in the statement.It is laid down in the case of Tahsildar Singh Vs. State, AIR 1959, Supreme Court 1012,
In Appabhai .Vs. State of Gujrat AIR 1988 S.C. 694 (1988 Cri.L.J. 848], The Hon'ble Apex Court has observed as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.
The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.

Hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. A hostile witness is not necessarily a false witness. Merely because one part of the statement of a witness was not favourable to the party calling him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to that party. Hostility of a witness is to be judged from the answers given by him. The proper inference to be drawn from contradictions going to the whole texture of the story is not that the witness is hostile to this side or to that, but that the witness is one who ought not to be believed unless supported by other satisfactory evidence.
In Gulshan Kunlar V. State. 1993 Cri. L. J. 1525, it was held that the 'Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in to to'. Thus, the statement of the hostile witness can be relied upon partly.
It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. But, as has been observed in Ugar Ahir Vs. State of Bihar, AIR 1965 SC 277, the Court cannot obviously disbelieve the substratum of the prosecution case or the material part of the evidence and reconstruct a story of its own out of the rest. 

(See Guljara Singh vs State Of Rajasthan : AIR 1971 Raj 68.)
A four Judge Bench of the Hon’ble Apex Court has stated the
above legal position thirty five years ago in Masalti vs. State of Uttar Pradesh, [AIR 1965 SC 202]. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court.

Confession and their value:–
In Nand Kumar vs. State of Rajasthan, 1963(2) Cri LJ 702
(SC) where it was. held that “Courts ordinarily consider it unsafe to convict any accused person on the basis of the retracted confession except where the truth of such confession is established by corroboration”. In the case of

 Nathu v. State of Uttar Pradesh – AIR 1956 SC 56, it is observed by the Supreme Court with regard to confessions that the prolonged custody immediately preceding the making of the confessions is sufficient, unless it is properly explained, to stamp it as involuntary.

Extra Judicial Confession: –
As to the extrajudicial confession, two questions arise: is it voluntary, and, if so, is it true ? when the Court is satisfied that extrajudicial confession is both voluntary and true, it can be accepted.
To accept an extra–judicial confession, the Court should satisfy the following important aspects:
1. What were the circumstances under which it was made or in what manner was it obtained?
2. Was the confession made by accused voluntary?
3. What was the reason for the accused to have confided in the witness who proves it and to have made a clean breast of his actions?
4. Did the witness truly understand the sense of what was stated to him, or is there any room for a mistake or misapprehension?
5. Have the words uttered by the accused been correctly reproduced or is the witness improving on the statement which was made to him?
6. Has the witness any personal motive to depose falsely against the accused, or have the police, in their eagerness to prove the commission of a crime, put up that witness to prove a confession.
( Arya Abhushan Bhandar And Another vs Union Of India And Others:
1998 (3) AWC 1651); Ratan Gond Vs. State of Bihar, AIR 1959 SC 18;
Mulk Raj Vs. State of M.P, air 1956 sc 902).

Value to be attached to confessional statements of co-accused
:How far and in what way the confession of an accused person can be used against a co-accused ? This question was considered by the Hon’ble Apex Court in  Kashmira Singh vs State Of Madhya: 1952 AIR 159. It is not evidence in the ordinary sense. the Privy Council say in Bhuboni Sahu v. The King ( (1949) 51 BOMLR 955) “It does not indeed come within the definition of” ‘evidence’ contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination.” The Hon’ble Privy Council held that section 30 of the Indian Evidence Act seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 8 of the Evidence Act.


Conclusion: –
From the above, it is profit worth to sum up that to arrive at a just conclusion, the evidence on record has to be properly and carefully weighed and valued. Conflicting versions with seeming realities make the task of appreciation of evidence all the more difficult. Judicial officer has to bear on facts elicited a fair amount of common sense, shrewdness, his knowledge and experience, taking into consideration at the same time the ordinary course of events and human conduct. Sometimes, acquittal in several cases is based on an erroneous impression. Of course, acquittal in most of the cases is based on the application of benefit of doubt. Care must, therefore, be taken in sifting the evidence. Circumstantial evidence is sometimes of very great importance. Motive is the reason which induces and actuates a man to do a certain act. Facts based on direct observation are perceived facts.


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