Effect of not holding a prior test identification parade

In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case.

The effect of not holding a prior test identification parade has been recently examined in considerable detail by a three-Judge Bench in Malkhansingh and others vs. State of Madhya Pradesh, JT 2003 (5) SC 323 and after review of practically all the earlier decisions, it has been held as under :

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K.K. Velusamy Versus N. Palanisamy -30/03/2011


Re-open the evidence for the purpose of further examination-in-chief or Cross-examination under CPC


K.K. Velusamy


N. Palanisamy

(Before : R. V. Raveendran and A. K. Patnaik, JJ.)

Civil Appeal Nos. 2795-2796 of 2011 (Arising out of SLP (C) Nos. 18211-18212 of 2010) :

Decided On: 30-03-2011

Evidence Act, 1872—Sections 3 and 8—Evidence—Electronically recorded conversation is admissible in evidence, if conversation is relevant to the matter in issue and voice is identified and accuracy of recorded conversation is proved by eliminating possibility of erasure, addition or manipulation.

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On Evidence in Substantiation of Claims

Article 1257 – Anyone who claims a right has to establish the same and if the defendant, wishing to defend himself, claims something which may require evidence, it is he who must prove it.

Article 1258 – The evidence admissible in proving a claim is as follows:

1 – Confession.

2- Written documents.

3 – Oral testimony (evidence).


5 – Oaths.

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Burden of proof in election cases

“In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes”.

Appreciation of evidence and burden of proof in election cases

Burden of proof resting on a person seeking a declaration of the voidness of election

It will be seen from the following decisions that it has been consistently laid down by the Supreme Court in a number of cases that burden of proof resting on a person seeking a declaration of voidness of election is very heavy in the sense that he is required to prove every charge of corrupt practice beyond reasonable doubt. In other words, the burden to be discharged by the petitioner in a case is the same as the burden on the prosecution to prove a criminal charge.

The first decision, which was cited at the Bar in this connection was the decision in the case of D. Venkta Reddy v. R. Sultan and others (A.I.R. 1976 SC 1599), where in it is observed.

“In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.

In our country, election is a fairly costly and expensive venture and the Representation of People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time, it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act.

Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to land further assurance is necessary.”

The Supreme Court in the case of Kanhaiyalal v. Mannalal & Ors. (A.I.R. 1976 SC 1886) reproduced with approval the following passage from the case of Rahimkhan v. Khurshid Ahmed (A.I.R. 1975 SC 290) dealing with the appreciation of oral testimony in election cases, namely.

“We must emphasise the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a- dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to qulp such oral versions and invalidate elections, a new meance to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kil-kenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man’s public life.”

In Amolak Chand Chhazad v. Bhagwandas Arya & Anr, (A.I.R. 1977 S.C. 813) also, it has been laid down that election petition alleging corrupt practice are proceedings of quasi-criminal nature and burden is on the person alleging corrupt practice to prove allegations beyond reasonable doubt.

Similarly, it is held in Rajendra Singh Yadav v. Chandra Sen & Ors. (A.I.R. 1979 SC 882) that it is well settled that allegation of corrupt practices have to be made and proved like a charge in a criminal case and that what is not pleaded cannot be allowed to be the subject matter of evidence, as also that the allegations must be proved beyond reasonable doubt and not merely by way of preponderance of probabilities. It is also pointed out in this case that it is not at all difficult for a defealted candidate to produce a few witnesses in support of allegations of corrupt practice after the event, even though the truth may be far different from what they state.

In the case of A. Younus Kunju v. R.S. Unit and others (A.I.R. 1984 S.C. 960), while reiterating the same position as to the onus of proof to be discharged by the election petitioner, the Supreme Court, has referring to the evidence before it pointed out,

“Admittedly, all these witnesses were the workers of the appellant. There is overwhelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position, workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses, they would support their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same be far from truth. In such circumstances, we do not think on the oral testimony of these four witnesses the charge of publication of objectional materials can be said to have been established.”

Of course in the two cases of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and others (A.I.R. 1985 SC 24) and S. Harcharan Singh v. S. Sajjan Singh and others (A.I.R. 1985 SC 236). The Supreme Court has sounded a note of caution by observing that there is no ritualistic formula nor a cut-and- driend test to lay down as to how a charge of undue influence can be proved, but if the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate of his supports or agent with his consent or with his agent’s consent that should be sufficient to vitiate the election of the returned candidate. It is also pointed out that while insisting on standard of strict proof, the court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice because such an approach would defeat and frustrate the very loudable and sacrosanct object of the Act in maintaining purity of the electoral process. This note of caution, however, does not in any way dilute the doctrine of insistence of proof beyond reasonable doubt in case of allegations of corrupt practice in an election petition.

It may be mentioned here that the above principle of having to insist on strict proof of allegations of corrupt practices are demanded.

Understand Hearsay

A “statement” is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.

A “declarant” is a person who makes a statement.

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.
Hearsay rule.—Except as provided by statute, hearsay evidence is inadmissible.

Refreshing the memory of a witness

When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence.

If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal.

If a writing or other item is not produced or delivered pursuant to order under this section, the testimony of the witness concerning those matters shall be stricken.

Ownership and easement right are inconsistent and cannot coexist in the same person.

As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. When the dominant and servient tenement are in the ownership and possession of the same person acts done by him on the servient tenement are clearly referable to his possession of that tenement and hence there cannot be any easement by prescription.

  • Inconsistent plea of ownership and easement rights can be raised in the plaint however at the evidence either of such plea is to be proved. Ownership and easement right are inconsistent and cannot coexist in the same person. As existence of both a dominant tenement and servient tenement is essential to the certain and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements.


Burden of proof

The expression “burden of proof” really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in, its favour ; it also means that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. There is an essential distinction between “burden of proof” and “onus of proof”. Burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. (See Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, ). In view of the above position in law conclusions in Lovely Thomas’ case [1999] 113 STC 505 (Ker), are not acceptable.


Evidence in Yajnavalkya Smriti [Sanskrit]

[५. साक्षिप्रकरणम्]

तपस्विनो दानशीलाः कुलीनाः सत्यवादिनः ।
धर्मप्रधाना ऋजवः पुत्रवन्तो धनान्विताः ॥ २.६८ ॥

त्र्यवराः साक्षिणो ज्ञेयाः श्रौतस्मार्तक्रियापराः ।
यथाजाति यथावर्णं सर्वे सर्वेषु वा स्मृताः ॥ २.६९ ॥

स्त्रीबालवृद्धकितव- मत्तोन्मत्ताभिशस्तकाः ।
रङ्गावतारिपाखण्डि- कूटकृद्विकलेन्द्रियाः ॥ २.७० ॥

पतिताप्तार्थसंबन्धि- सहायरिपुतस्कराः ।
साहसी दृष्टदोषश्च निर्धूताद्यास्त्वसाक्षिणः ॥ २.७१ ॥

उभयानुमतः साक्षी भवत्येकोऽपि धर्मवित् ।
सर्वः साक्षी संग्रहणे चौर्यपारुष्यसाहसे ॥ २.७२ ॥

साक्षिणः श्रावयेद्वादि- प्रतिवादिसमीपगान् ।
ये पातककृतां लोका महापातकिनां तथा ॥ २.७३ ॥

अग्निदानां च ये लोका ये च स्त्रीबालघातिनाम् ।
स तान् सर्वानवाप्नोति यः साक्ष्यमनृतं वदेत् ॥ २.७४ ॥

सुकृतं यत्त्वया किंचिज्जन्मान्तरशतैः कृतम् ।
तत्सर्वं तस्य जानीहि यं पराजयसे मृषा ॥ २.७५ ॥

अब्रुवन् हि नरः साक्ष्यमृणं सदशबन्धकम् ।
राज्ञा सर्वं प्रदाप्यः स्यात्षट्चत्वारिंशकेऽहनि ॥ २.७६ ॥

न ददाति हि यः साक्ष्यं जानन्नपि नराधमः ।
स कूटसाक्षिणां पापैस्तुल्यो दण्डेन चैव हि ॥ २.७७ ॥

द्वैधे बहूनां वचनं समेषु गुणिनां तथा ।
गुणिद्वैधे तु वचनं ग्राह्यं ये गुणवत्तमाः ॥ २.७८ ॥

यस्योचुः साक्षिणः सत्यां प्रतिज्ञां स जयी भवेत् ।
अन्यथा वादिनो यस्य ध्रुवस्तस्य पराजयः ॥ २.७९ ॥

उक्तेऽपि साक्षिभिः साक्ष्ये यद्यन्ये गुणवत्तमाः ।
द्विगुणा वान्यथा ब्रूयुः कूटाः स्युः पूर्वसाक्षिणः ॥ २.८० ॥

पृथक्पृथग्दण्डनीयाः कूटकृत्साक्षिणस्तथा ।
विवादाद्द्विगुणं दण्डं विवास्यो ब्राह्मणः स्मृतः ॥ २.८१ ॥

यः साक्ष्यं श्रावितोऽन्येभ्यो निह्नुते तत्तमोवृतः ।
स दाप्योऽष्टगुणं दण्डं ब्राह्मणं तु विवासयेत् ॥ २.८२ ॥

वर्णिनां हि वधो यत्र तत्र साक्ष्यनृतं वदेत् ।
तत्पावनाय निर्वाप्यश्चरुः सारस्वतो द्विजैः ॥ २.८३ ॥

[६. लेख्यप्रकरणम्]

यः कश्चिदर्थो निष्णातः स्वरुच्या तु परस्परम् ।
लेख्यं तु साक्षिमत्कार्यं तस्मिन् धनिकपूर्वकम् ॥ २.८४ ॥

समामासतदर्धाहर्- नामजातिस्वगोत्रकैः ।
सब्रह्मचारिकात्मीय- पितृनामादिचिह्नितम् ॥ २.८५ ॥

समाप्तेऽर्थे ऋणी नाम स्वहस्तेन निवेशयेत् ।
मतं मेऽमुकपुत्रस्य यदत्रोपरि लेखितम् ॥ २.८६ ॥

साक्षिणश्च स्वहस्तेन पितृनामकपूर्वकम् ।
अत्राहममुकः साक्षी लिखेयुरिति ते समाः ॥ २.८७ ॥

उभयाभ्यर्थितेनैतन्मया ह्यमुकसूनुना ।
लिखितं ह्यमुकेनेति लेखकोऽन्ते ततो लिखेत् ॥ २.८८ ॥

विनापि साक्षिभिर्लेख्यं स्वहस्तलिखितं तु यत् ।
तत्प्रमाणं स्मृतं लेख्यं बलोपधिकृतादृते ॥ २.८९ ॥

ऋणं लेख्यकृतं देयं पुरुषैस्त्रिभिरेव तु ।
आधिस्तु भुज्यते तावद्यावत्तन्न प्रदीयते ॥ २.९० ॥

देशान्तरस्थे दुर्लेख्ये नष्टोन्मृष्टे हृते तथा ।
भिन्ने दग्धेऽथवा छिन्ने लेख्यमन्यत्तु कारयेत् ॥ २.९१ ॥

संदिग्धलेख्यशुद्धिः स्यात्स्वहस्तलिखितादिभिः ।
युक्तिप्राप्तिक्रियाचिह्न- संबन्धागमहेतुभिः ॥ २.९२ ॥

लेख्यस्य पृष्ठेऽभिलिखेद्दत्त्वा दत्त्वार्णिको धनम् ।
धनी वोपगतं दद्यात्स्वहस्तपरिचिह्नितम् ॥ २.९३ ॥

दत्त्वार्णं पाटयेल्लेख्यं शुद्ध्यै वान्यत्तु कारयेत् ।
साक्षिमच्च भवेद्यद्वा तद्दातव्यं ससाक्षिकम् ॥ २.९४ ॥

Source :- Yajnavalkya Smriti [Sanaskrit]