Showing posts with label witness. Show all posts
Showing posts with label witness. Show all posts

11 March 2021

Statement of witness recorded u/s.164 of Cr.P.C. is not substantial evidence

Section 164 of the CrPC , 1973 enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.[Para No.68]

    As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e., in George and others v. State of Kerala and another, AIR 1998 SC 1376:
"In making the above and similar comments the trial Court again ignored a fundamental rule of criminal
Statement of witness  recorded u/s.164 of Cr.P.C. is not substantial evidence
jurisprudence that a statement of a witness recorded under S. 164, Cr.P.C. , cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."[Para No.69]

    What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala, AIR 2013 SC 651:
"15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000 Air SCW 3150).

14 October 2020

Mere recovery of blood stained weapon cannot be construed as proof for the murder

For proving the contents of memorandum prepared u/s.27 of Evidence Act, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court

    The direct implication of these two mandatory provisions is that a witness who steps into the witness box for proving a fact which he has seen or observed must give oral evidence to prove such fact. Manifestly, a memorandum prepared by the Investigating Officer under Section 27 of the Evidence Act refers to a fact which the Investigating Officer has seen and heard while interrogating the accused. Thus, for proving the contents of memorandum, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court.

    This Court in the case of Dharma Vs. The State reported in AIR 1966 Raj 74 observed in paras 17 to 21 as under:
17. Now as regards the proving of such information, the matter seems to us to be governed by Sections 60, 159 and 160 of the Evidence Act. It is correct that statements and reports prepared outside the court cannot by themselves be accepted as primary or substantive evidence of the facts stated therein. Section 60 of the Evidence Act lays down that oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Section 159 then permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in the memory. Again, with the permission of the court, the witness may refresh, his memory by referring to a copy of such document. And the witness may even refer to any such writing made by any other person but which was read by him at the time the transaction was fresh in his memory and when he read it, he knew it to be correct. Section 160 then provides for cases where the witness has no independent recollection say, from lapse of memory, of the transaction to which he wants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were. It seems to us that where a case of this character arises and the document itself has been tendered in evidence, the document becomes primary evidence in the case. See Jagan Nath v. Emperor, AIR 1932 Lah 7.

    The fundamental distinction between the two sections is that while under Section 159 it is the witness's memory or recollection which is evidence, the document itself not having been tendered in evidence; under Section 160, it is the document which is evidence of the facts contained in it. It has been further held that in order to bring a case under Section 160, though the witness should ordinarily affirm on oath that he does not recollect the facts mentioned in the document, the mere omission to say so will not make the document inadmissible provided the witness swears that he is sure that the facts are correctly recorded in the document itself. Thus in Partab Singh v. Emperor, AIR 1926 Lah 310 it was held that where the surrounding circumstances intervening between the recording of a statement and the trial would as a matter of normal human experience render it impossible for a police officer to recollect and reproduce the words used, his statement should be treated as if he had prefaced it by stating categorically that he could not remember what the deceased in that case had said to him. Putting the whole thing in somewhat different language, what was held was that Section 160 of the Act applies equally when the witness states in so many words that he has no independent recollection of the precise words used, or when it should stand established beyond doubt that that should be so as a matter of natural and necessary conclusion from the surrounding circumstances.
    18. Again, in Krishnama v. Emperor, AIR 1931 Mad 430 a Sub-Assistant Surgeon recorded the statement made by the deceased just before his death, which took place in April, 1930, and the former was called upon to give evidence some time in July, 1930. In the Sessions Court he just put in the recorded statement of the deceased which was admitted in evidence. On appeal it was objected that such statement was wrongly admitted inasmuch as the witness did not use it to refresh his memory nor did he attempt from recollection to reproduce the words used by the accused. It was held that he could not have been expected to reproduce the words of the deceased, and therefore, he was entitled to put in the document as a correct record of what the deponent had said at the time on the theory that the statement should be treated as if the witness had prefaced it by stating categorically that he could not remember what the deceased had said.
   19. Again in Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542, the question arose how the notes of a speech taken by a police officer be admitted in evidence. It was held that it was not necessary that the officer should be made to testify orally after referring to those notes. The police officer should describe his attendance, the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on, and that after that it was quite enough it he said "I wrote down that speech and this is what I took down," and if the prosecution had done that, they would be considered to have proved the words. This case refers to a decision of the Lahore High Court in Om Prakash v. Emperor, AIR 1930 Lah 867 wherein the contention was raised that the notes of a speech taken by a police officer were not admissible in evidence as he did not testify orally as to the speech and had not refreshed his memory under Section 159 of the Evidence Act from those notes. It was held that instead of deposing orally as to the speech made by the appellant, the police officer had put in the notes made by him, and that there would be no difference between this procedure and the police officer deposing orally after reference to those notes, and that for all practical purposes, that would be one and the same thing.
   20. The same view appears to us to have been taken in Emperor v. Balaram Das, AIR 1922 Cal 382 (2).
    21. From the discussion that we have made, we think that the correct legal position is somewhat like this. Normally, a police officer (or a Motbir) should reproduce the contents, of the statement made by the accused under Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it and that would be a perfectly unexceptionable way of proving such a statement. We do not think in this connection, however, that it would be correct to say that he can refer to the memo under Section 159 of the Evidence Act only if he establishes a case of lack of recollection and not otherwise. We further think that where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances (chief of which would be the intervening time between the making of the statement and the recording of the witness's deposition at the trial) that it could hardly be expected in the natural course of human conduct that he could or would have a precise or dependable recollection of the same, then under Section 160 of the Evidence Act, it would be open to the witness to rely on the document itself and swear that the contents thereof are correct where he is sure that they are so and such a case would naturally arise where he happens to have recorded the statement himself or where it has been recorded by some one else but in his own presence, and in such a case the document itself would be acceptable substantive evidence of the facts contained therein. With respect, we should further make it clear that in so far as Chhangani, J.'s holds to the contrary, we are unable to accept it as laying down the correct law. We hold accordingly."

28 September 2020

In cheque dishonor case; failure of complainant to give satisfactory reply about his financial capacity to pay/give the amount; is a probable defence on behalf of the accused

We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.[Para No.23]

In cheque dishonor case; failure of complainant to give satisfactory reply about his financial capacity to pay/give the amount; is a probable defence on behalf of the accused
 Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when fina>ncial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.[Para No.24]

11 September 2020

Testimony of police official as a witnesses cannot be rejected on the ground of non­ corroboration by independent witness

Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross­examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.

Testimony of police official as a witnesses cannot be rejected on the ground of non­ corroboration by independent witness
    It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non­corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non­examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)].

    In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non­examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:
“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 
16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) “It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy.
  As a proposition of law, the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.”

31 August 2020

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

The fact remains that there is no evidence on record to hold that defendant No.1 Dashmat Bai admittedly, firstly married Kunjilal, but there is no evidence on record to hold that whether he or she divorced each other and marriage between Kunjilal and Dashmat Bai had ever been validly dissolved. Similarly, it is the further admitted position on record that Dashmat Bai entered into marriage with Latel, but there is no evidence that divorce ever took place between them and thirdly, the alleged third marriage of Dashmat Bai with Sukhdev i.e. she has lastly married Sukhdev in Chudi form. Father of defendant No.1 Dashmat Bai namely, Jaitram (DW-1) has categorically stated that he was not present at the time when Dashmat Bai allegedly entered into marriage in Chudi form with Sukhdev. It is quite unnatural that father will not remain present at the time of such an important ceremony i.e. marriage of his daughter with a person namely Sukhdev. Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.[Para No.20]

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct
   The Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This decision has further been followed by their Lordships of the Supreme Court in Man Kaur (supra).[Para No.21]

01 July 2020

Deposition of witness and certificate u/s.65B is sufficient to prove electronic evidence

How to prove photos and screenshot sent by one person to another? (Mode of proof)

Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?

Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made 

Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.

   Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]

Deposition of witness and certificate u-s.65B is sufficient to prove electronic evidence

   However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-

19 June 2020

Ocular evidence can be disbelieved if medical evidence makes ocular evidence improbable

Medical evidence Vs. oral evidence: which evidence has to be accepted?

   Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect, that though the ocular testimony of a witness has greater evidentiary value vis-Γ -vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

Ocular evidence can be disbelieved if medical evidence makes ocular evidence improbable
40. In the instant case as referred to hereinabove, as many as five assailants attacked one person but the prosecution case from the very inception of FIR, is very clear that accused-appellant Darshan Pasi shot fire when the deceased was sitting under the tree, causing him injury on chest and left palm, Lachiman Pasi and Sahai Pasi fired on his neck and skull inside boundary wall and Maharaj Deen and Gaya Prasad assaulted the deceased with banka. This fact is categorically substantiated by P.W.-1 in his oral testimony. The postmortem report reveals no firearm injury, either on neck or skull or any other part of the dead body, whereas remaining injuries relate to sharp edged weapon, which may be attributed to alleged use of banka by Maharaj Deen and Gaya Prasad.

23 May 2020

Examination of investigating officer; before injured or eye witness is examined, does not cause prejudice to accused in his defence

Fair trial - order of examination of witnesses by prosecution - Sec.135 of Evidence Act - Sec.230, 231, 311 of CrPC

   Does examination of investigating officer before injured or eye witness is examined, cause prejudice to accused in his defence?

Held: No

22 May 2020

Defence story has to be suggested in cross examination

Importance of putting defence story in cross examination of witness - No suggestion is given to witness in the cross examination about the story put forwarded by accused  in his statement u/s.313 of Cr.P.C.

Defence story has to be suggested in cross examination
   When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. When it is intended to suggest that a witness is not speaking the truth on a point, it is absolutely essential to direct his attention to the disputed facts and grant him opportunity to offer his explanation on that point. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. [Para No.19]

14 May 2020

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

28 April 2020

Recall of witness u/s.311 of CrPC is permissible If evidence which is sought to be brought on record is essential for the just decision of the case


   It is, thus, seen that object of this section is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or by leaving ambiguity in the statement of witnesses examined by the parties. This section is intended to bring finality to the litigation. The learned trial court is required to focus its attention on the aspect as to whether evidence which is sought to be brought on record is essential for the just decision of the case. If this criteria is fulfilled, then application for recall of witness moved by taking resort to the provisions of Section 311 of the Code of Criminal Procedure needs to be allowed by the learned trial court. [Para no.5]

25 April 2020

Importance of cross examination in criminal trial

A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross- examined to bring forth inconsistencies, discrepancies and to prove the untruthfulness of the witness.[Para No.56]

   It is open to an accused to raise such reasonable doubt by cross-examination of the prosecution witnesses to discredit such witness in respect of truthfulness and veracity. However, where the statement of prosecution witnesses cannot be doubted on the basis of the touchstone of truthfulness, contradictions and inconsistencies, and the accused wants to assert any particular fact which cannot be made out from the prosecution evidence, it is incumbent upon the accused to cross- examine the relevant witnesses to that extent. The witness, in order to impeach the truthfulness of his statement, must be cross- examined to seek any explanation in respect of a version, which accused wants to rely upon rather to raise an argument at the trial or appellate stage to infer a fact when the opportunity given was not availed of as part of fair play while appreciating the statement of the witnesses.

Principles governing the proof of a Will

As per Section 63 of the Succession Act, inter alia, requires that the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution.

    A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring.

     The propounder has to prove the legality of execution of the Will as also the genuineness thereof by proving the testamentary capacity of the testator as also his signatures and further by proving absence of suspicious circumstances.

proof-of-will    When there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.[Para No.10.3]

Principles governing the adjudicatory process concerning proof of a Will could be broadly summarized as follows:–

  • 1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 
  •  2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 
  •  3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 
  •  4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 
  •  5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 
  • 6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind. 
  •  7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 
  •  8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
  •  In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.

24 April 2020

When benefit of doubt can be given to accused?

Material contradictions, omissions and improvements in the statement of witness recorded under Section 161 Cr.P.C. as well as deposition before the Court; there was a prior enmity and no other independent witness has supported the case of the prosecution.

Accused are entitled to be given the benefit of doubt. [Para No.15]

21 April 2020

How to prove a WILL?

At least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator.
    Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. [Para No.23]

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