Showing posts with label Indian Evidence Act. Show all posts
Showing posts with label Indian Evidence Act. Show all posts

Introduction

 The nation was outraged by the very recent case of a 19 year old Dalit girl who was allegedly raped by four upper caste men. The incident infamously came to be known as Hathras rape case. The victim had given consistent statements to the police, the doctor at Jawaharlal Nehru Medical College, Aligarh Muslim University, during her examination for sexual assault and also before the Magistrate. Yet, the affidavit filed by the Uttar Pradesh Government before the Supreme Court has claimed that the girl was not raped and has substantiated the same with the report of the Department of Forensic Medicine, Jawaharlal Nehru Medical College. This article seeks to analyse the validity of the forensic report and whether such report can have an overriding effect on the oral evidence of the victim. 

Account of the incident

The incident occurred on September 14, 2020 at around 9:30 am when the victim and her mother were fetching fodder in their field. The FIR was lodged under Section 307 of the IPC (Attempt to murder) at the Chandapa Police Station of Hathras district. As per the affidavit of the UP Government, the victim’s first statement was recorded by the police on September 19 under Section 161 of the Code of Criminal Procedure, in which the victim accused one, Sandeep, of molesting her. Later, on September 22, she gave her second statement to the police in which she accused 4 men- Sandeep Singh, Ramu Singh, Luvkush Singh and Ravi Singh- of raping her. She claimed of not being fully conscious when her first statement was recorded. In her second statement to the police, she said, “when my mother and I had gone to fetch fodder, then Sandeep, Ramu, Luvkush and Ravi of my village have committed rape on me. Sandeep then strangulated me with my dupatta.”

The Forensic Reports

The initial report, i.e., the Medico-Legal Examination Certificate (MLC), stated that she suffered neck injuries which confirmed the victim’s accusation of being strangulated. After her second statement was recorded, she was examined for rape under Section 164 of CrPC.

The “Sexual Assault Forensic Examination Report” that was issued on September 22 confirmed “complete penetration of the vaginal orifice by penis”, although all blanks regarding ejaculation of semen are stated as “DNK (Do Not Know)” since the victim was unconscious during the time.
The report also mentioned that “UV examination of the body was not done because body (was) wiped several times.” According to the provisional opinion of the MLC:-

“On the basis of local examination, I am of the opinion that there are signs of use of force however opinion regarding penetrative intercourse is reserved pending availability of FSL report”
The report of the Forensic Science Laboratory, Agra (FSL) however did not detect any semen or sperm cells in the sample which was subsequently cited by the UP Police to rule out the alleged rape in spite of the victim’s statements.

Validity of the FSL

The FSL report which came on September 25 confirmed absence of semen from the vaginal swab. It is important to note that, the vaginal swab was collected on September 22, that is, 8 days after the incidence of alleged rape. It is a biological fact that sperm cells stay alive for not more than 2-3 days outside the body, i.e., after ejaculation (unless stored in optimum conditions). The reports also mentioned that the victim’s body was wiped several times, her vaginal areas washed and undergarments were changed at the time of admission to the hospital.

The delay in collection of samples makes the FSL report an unreliable foundation to adjudge the occurrence of rape. Further, ejaculation or presence of semen is not a prerequisite to establish rape.[1] The definition provided in Section 375 of the Indian Penal Code states that slightest penetration of the vagina or any orifice by the penis or any object against the will and consent of the woman is enough to establish the offence of rape.

The Chief Medical Officer of the Aligarh Muslim University has remarked that the FSL report referred to by the UP Police “holds no value” since “government guidelines strictly say forensic evidence can only be found up to 96 hours after the incident. This report can’t confirm rape in this incident”[2] and in the present case the primary sample which was used for the FSL was collected much later than 96 hours.

The President of the Resident Doctors’ Association at the Jawaharlal Nehru Medical College added to the criticism and called the FSL report to be “unreliable”. According to him,
“How will the FSL team find evidence of rape 11 days later? Sperm doesn’t survive after 2-3 days. They took samples from hair, clothes, nail bed and vaginal-anal orifice; the samples may not show presence of semen because of urination, defecation and menstruation”[3]

Oral Evidence of the Victim v. Forensic Report

In the present case, the victim’s statements are in the nature of dying declarations. Her statements before the police, doctor and the magistrate were consistent regarding the gang rape committed on her by 4 men. Multiple dying declarations are admissible in Court provided that they are consistent and reflect certain regularity in the facts.[4] The Indian law does not require actual apprehension of death at the time giving a statement regarding any facts of the crime, provided such crime actually leads to the death of the declarant. As such, the statements of the victim qualify as dying declarations within the ambit of Section 32 (1) of the Indian Evidence Act.

In Kushal Rao v. State of Bombay[5], the Apex Court held that, “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated”. This stance was reiterated in U.P v. Ram Sagar Yadav[6] and in Harbans Singh v. State of Punjab[7] where it was held that a consistent dying declaration made by one of competent mind is enough for conviction if found truthful in court.

It is indeed an established theory in law of evidence that oral evidence will have an overriding effect on forensic report/ medical evidence in event of a disparity between the two, since medical evidence has more of an expert opinion and thus has corroborative value under Section 45 of the Indian Evidence Act.

The Supreme Court judgement in Ramanand Yadav v. Prabhu Nath Jha held[8]: -

“it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative.”
Oral testimony can be open to examination and cross-examination if the medical evidence makes it improbable or oral evidence can be disregarded if medical evidence proves the oral evidence to be an impossible event. 

Reference can be made to a quote from the Supreme Court judgement in Abdul Sayeed & Ors. v. State of Madhya Pradesh & Ors. [9]:-
“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 he ocular testimony of a witness has greater evidentiary value vis-a-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 all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.”

Furthermore, the post mortem report of the victim by Safdarjung Hospital, New Delhi where the victim died on September 29, i.e., 15 days post the incident of rape, noted that her “hymen showed multiple old, healed tears” and “anal orifice showed old healed tears”. Given that the autopsy was conducted 15 days post the incidence of rape on September 14, it serves as corroborative evidence to substantiate the dying declaration of the victim.

Thus given the consistent dying declarations corroborated by the autopsy reports and the delay in collection of vaginal swab, which makes the FSL report highly unreliable, the FSL report which has been cited to substantiate the Police’s stand of non-occurrence of rape does not seem to triumph the consistency of oral evidence in the Hathras rape case.

References

· ‘Hathras case: Forensic report rules out rape, experts question validity’ (2020) The Federal < https://thefederal.com/news/hathras-case-forensic-report-rules-out-rape-experts-question-validity/> accessed 30th October 2020
· Jignasa Sinha, ‘FSL Report (saying no rape) used samples 11 days old, has no value: Aligarh CMO’ (2020) The Indian Express < https://indianexpress.com/article/india/hathras-case-fsl-report-saying-no-rape-used-samples-11-days-old-6703136/> accessed 31st October 2020
· Express News Service, ‘Hathras Rape Case: FSL got victim’s samples 11 days after crime’ (2020) The Indian Express < https://indianexpress.com/article/india/hathras-rape-case-fsl-got-victims-samples-11-days-after-crime-6672845/> accessed 31st October 2020
· Anuj Kumar, ‘Hathras Gangrape| Autopsy Shows Strangulation, Fracture’ (2020) The Hindu < https://www.thehindu.com/news/national/other-states/autopsy-report-of-hathras-victim-confirms-injury-to-cervical-spine/article32741274.ece > accessed 30th October 2020
· ‘Truth Sits on the Lips of a Dying Man- An Overview’ (2020) International Journal of Advanced Legal Research < https://www.ijalr.in/2020/10/truth-sits-on-lips-of-dying-man-overview.html> accessed 1st November 2020
· Manu Sebastian, ‘Hathras Case: How Victim's Oral Evidence Demolishes Forensic Report?’ (2020) Live Law <https://www.livelaw.in/columns/hathras-case-how-victims-oral-evidence-demolishes-forensic-report-164092 > accessed 31st October 2020
[1] Parminder alias Ladka Pola v. State of Delhi, (2014) 2 SCC 592
[2] Jignasa Sinha, ‘FSL Report (saying no rape) used samples 11 days old, has no value: Aligarh CMO’ (2020) The Indian Express < https://indianexpress.com/article/india/hathras-case-fsl-report-saying-no-rape-used-samples-11-days-old-6703136/> accessed 31st October 2020
[3] Express News Service, ‘Hathras Rape Case: FSL got victim’s samples 11 days after crime’ (2020) The Indian Express < https://indianexpress.com/article/india/hathras-rape-case-fsl-got-victims-samples-11-days-after-crime-6672845/> accessed 31st October 2020
[4] ‘Truth Sits on the Lips of a Dying Man- An Overview’ (2020) International Journal of Advanced Legal Research < https://www.ijalr.in/2020/10/truth-sits-on-lips-of-dying-man-overview.html> accessed 1st November 2020
[5] Kushal Rao v. State of Bombay, AIR 1958 SC 22
[6] U.P v. Ram Sagar Yadav, AIR 1985 SC 416
[7] Harbans Singh v. State of Punjab, AIR 1962 SC 439
[8] Ramanand Yadav v. Prabhu Nath Jha, (2003)12 SCC 606
[9] Abdul Sayeed & Ors. v. State of Madhya Pradesh & Ors., (2010) 10 SCC 259

INTRODUCTION

Proof is the documents and materials provided to obtain a court decision or verdict by the prosecution and defence. Oral, documentary, actual, main, secondary, hearse, direct, and peripheral evidence may be the evidence. Proof bases the reasoning of one's destiny; that a person's guilt or innocence is determined by them. 

Circumstantial evidence is defined by Peter Murphy as “evidence from which the desired conclusion may be drawn but which requires the tribunal of fact not only to accept the evidence presented but also draw an inference from it.”
Circular evidence is referred to as indirect evidence. Direct evidence is favoured over circumstantial evidence as it needs no interference of any sort and is direct proof of an illegal act. Yet a decision should not be reached on the basis of circumstantial proof simply because the conclusion requires support to prove it in cases of extreme crime, such as murder for which the punishment is the death penalty.

Legal provisions involved

Section 106 of Indian Evidence Act 1872 states that – “Burden of proving fact especially within knowledge. —When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”

For example, if the wallet of the dead person was discovered in the house of the accused after his death, the burden of proof is on the accused to justify how he came into possession of the wallet of the dead person and why he did not commit murder. This is a case of the "last seen law" where it can be inferred that it is the perpetrator who committed the crime, merely because the victim has been seen. Nevertheless, it cannot be said that a belief is founded purely on it, but the burden of proof rests on the accused person in such situations.

Evidence means and includes-

(1) All representations that the court allows or needs witnesses to make before it in relation to matters of fact under investigation; such statements are referred to as oral evidence;
(2) All documents, including electronic records created for review by the court, are referred to as documentary evidence;
The definition of proof in this Act is very restrictive and there are only two instances in which this evidence falls before the court—
(1) The witness statements.
(2) Documents, including electronic documentation.

Circumstantial proof is clear evidence of a reality from which the presence or nonexistence of another fact may reasonably be inferred by an individual. If the testimony, though not clearly establishing guilt, gives rise to a presumption of guilt beyond reasonable doubt, the guilt of a person for a charged crime can be proved by circumstantial proof. Circumstantial proof is evidence of conditions that can be counted on not as directly confirming a fact but as pointing to its presence instead. Circumstantial proof is primarily based on intuition and uses inductive reasoning.

Example of Circumstantial Evidence

X is suing his wife, Y, for a divorce, claiming she is having an affair with Z. Z's fingerprints are found on a book in X and Y's bedroom. A judge may infer that Z was in the bedroom. The fingerprints are circumstantial evidence of Z's presence in the bedroom.

Circumstantial evidence- Complex

There is more nuanced circumstantial proof. The stabbing was not seen by a witness. The witness saw the defendant, holding a knife, going into the building. Within the home, the witness heard a scream and saw the defendant run out, not holding the knife. With a knife in her back, the victim is later found inside. A fair conclusion is that the victim was stabbed by the defendant. If the defendant is guilty, it will decide if the fact is valid.

Weight of circumstantial evidence

It is a common misconception that circumstantial evidence has less weight or meaning than direct proof. This is only valid in part. Although direct evidence is usually seen as more effective, circumstantial evidence relies heavily on most successful prosecutions. Circumstantial evidence also has an advantage over direct evidence because suppression or fabrication is more difficult. In terms of weight or significance, the law makes no distinction between circumstantial proof and direct evidence. Depending on the facts of the case, as the jury considers them to be, any form of evidence can be enough to determine guilt beyond a reasonable doubt. In expressing picturization of the real event, the human agency may be deficient, but the conditions will not fail. Therefore, it is aptly said many times that "men can say lies, but conditions do not."

Five golden principles of circumstantial evidence

In the case of Sharad v. Maharashtra State[i]
1) It is important to thoroughly determine the circumstances from which the inference of guilt is to be drawn.
2) the facts thus developed should be compatible only with the hypothesis of the defendant's guilt, that is to say, under any other hypothesis they should not be explainable but that the defendant is guilty.
3) The circumstances should be of a conclusive nature with a propensity to point unerringly to the accused's guilt.

4) All possible theories except the one to be proven should be omitted and

5) there must be a chain of evidence so complete that it does not leave any fair ground for the inference consistent with the innocence of the accused and must indicate that the accused must have done the act in all human likelihood.

Based on circumstantial evidence, these five golden principles form the panchsheel of a case's proof.
Principle of circumstantial evidence as laid down by SC in the case of Shanti Devi v. Rajasthan State[ii]
"Principles may be set out as follows:
1. The conditions in which an intrusion of guilt is tried to be proven must be defined jointly or firmly.
2. The circumstances should have a strong propensity to point unerringly at the accused's guilt.
3. The accumulated circumstances must form a chain so complete that there is no escape from the presumption that the accused or nobody else committed the crime with all human probability.
4. The circumstances should be incapable of justifying any logical hypothesis, in the same way as the accused's guilt.

Burden of proof and circumstantial evidence[iii]

When dealing with circumstantial facts, it was held in Sharad Birdhichand Sarda v. State of Maharashtra[iv] court held that the burden was on the prosecution to prove that the chain is complete and that the infirmity of lacuna in prosecution cannot be cured by false defense or plea. Before the prosecution may be founded on circumstantial proof, the requirements preceding, in the words of this Court, must be completely defined. (SCC, para 153, p. 185)

Circumstantial evidence & corroboration[v]

Circumstantial evidence is a set of information that can be used to infer a conclusion about something uncertain, when considered together. To support a hypothesis of a sequence of events, circumstantial evidence is used.

The sum total of numerous pieces of corroborating proof, each piece being circumstantial alone, provides a case to justify how a specific incident occurred. Corroboration is also offered in civil and criminal investigations by one or more expert witnesses who provide forensic evidence. Circumstantial evidence, backed by a large amount of corroborating evidence, is typically a hypothesis. Completely dependent on circumstances, the circumstantial proof is generally expected to be formed by the prosecutor only by means of corroborating circumstances surrounding the incident or offence and therefore considered, corroboration is an integral part of such evidence, i.e. circumstantial evidence.

Ujjagar Singh Vs. State of Punjab[vi] court held that Although determining circumstantial proof, it was held that whether or not a chain of evidence is full will depend on the facts of each case resulting from the evidence and no universal norm could ever be attempted.

Circumstantial Evidence: Soul Basis of Conviction[vii]

In the case of Ramawati Devi v. Bihar State[viii], it was held as follows:
The value or weight of the proof to be added to such a statement would necessarily depend on the facts and circumstances of each individual case. In an appropriate case, in the light of the facts and circumstances of the case, it may only be acceptable to convict a person on the basis of a dying argument.

Conclusion

We will find from the following facts and circumstances that circumstantial evidence plays an important role both during the investigative process and during the fact-finding test. It also helps to uncover the reason behind the crime or act. But this does not mean that the relevant facts of the case at all times are provided by circumstantial evidence. Therefore, we can conclude by stating that circumstantial proof gives us a general definition and fact of the case and that it can arrive at a definitive conclusion if it is adequately examined and checked. 

References

[i] Sharad v. Maharashtra State (AIR 1984 SC 1622)
[ii] Shanti Devi v. Rajasthan State [NO. 954 OF 2005 CRIMINAL APPEAL].
[iii] Diganth Raj Sehgal, All About Circumstantial Evidence, Ipleaders, 03 Nov. 20 (05:24 pm)
https://blog.ipleaders.in/all-about-circumstantial-evidence/
[iv] Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622
[v] Uttara Roy, Circumstantial evidence, Lexlife, 02 November 2020 (10:12 am)
https://lexlife.in/2020/03/12/circumstantial-evidence/
[vi] Ujjagar Singh Vs. State of Punjab(2007) 13 SCC
[vii] Anushka, Circumstantial Evidence, Lawtimesjournal, 03 Nov. 20 (11:34 am) http://lawtimesjournal.in/circumstantial-evidence/
[viii] Ramawati Devi v. Bihar State AIR 1983 SC 164, 1983 CriLJ 221, 1983 (1) Crimes 637 SC, 1983 (1) SCALE 1, (1983) 1 SCC 211 

Introduction

The Due Process model is followed in our country which is inverse of the wrongdoing control model, in which the police and court of law play a functioning part in solving the truth of the claims raised. In the Due Process Model, the burden of proof is on the parties of the case. That is the reason the Indian Evidence is significant for our nation and it is imperative to have guidelines for the accommodation of evidence. The Indian Evidence Act deals with two significant aspects that are, evidence and admissibility. Though admissibility has not been defined, yet it depends on the factor of relevancy which is based on certain sections like Section 5 of the Indian Evidence Act. Logical relevancy is more extensive than legal relevancy but that does not mean that all logically relevant facts are legally relevant. Such as, any confession made to a police officer may appear to be logically relevant, but such a confession is not legally relevant as per Section 25 of the Act. 

Facts and Relevant Facts-

According to Section 3 of the Indian Evidence Act, a fact implies and incorporates (a) anything, state of things, or relation of things, capable of being perceived by the senses, and (b) any mental condition of which any person is conscious. Similarly, such facts can also be divided into physical and psychological facts. Anything, state of things or relation of things, capable of being perceived by the senses are considered to be physical facts. Any Mental condition of which any person is conscious is Psychological fact.

Section 5 to Section 55 of the Indian Evidence Act deals with the relevancy of the facts. The main issue arises when it comes to deciding which fact is legally relevant and which is logically relevant. Since a fact which may be logically relevant to any specific case but it is not possible that it will also be legally admissible in the court of law. Therefore, all the evidence that needs to be produced before the court of law needs to clear two obstacles. Ram Bihari Yadav v. State of Bihar is a case which causes us to comprehend the idea of clearing the two obstacles and the differentiation between relevancy and admissibility.

The Supreme Court in this matter noted the two terms admissibility and relevancy are used reciprocally with one another in most of the cases, however, their legal implications are altogether different in light of the fact that often relevant facts, for example, correspondence between the spouses in a marriage is relevant but not legally admissible in the court of law.

Facts not legally relevant but logically relevant

Logical facts are very significant with the end goal of solving a case as they appear to be logically associated with the issue. Certain sections which are significant in this regard are: Section 24 of the Indian Evidence Act talks about confession caused because of danger, inducement, or promise, when irrelevant in a case. As confession is a significant piece of evidence so it is necessary to examine whether the said confession has been made out of his/her wish or not.

Section 25 of the Indian Evidence Act provides for the confession made to a police officer not to be proved. The reason behind not accepting such confession is that the evidence is viewed to be dishonest or untrustworthy.
Section 52 of the Indian Evidence Act deals with the prior conduct and character of the accused which is irrelevant. The primary example under this section can be the rape cases where the defence lawyer largely attempts to accuse the victim by scrutinizing the victim’s character. Such conduct might appear logically relevant in the starting but it is not legally admissible in the court of law. However, under Section 53, the previous good character becomes relevant in criminal cases.

Facts legally relevant but not logically relevant

Earlier it was seen where logically relevant facts were not legally relevant. Here the sections below discuss the facts which are legally relevant but not logically relevant. Section 146 of the Indian Evidence Act plays an important role here as it talks about the questions lawful in the cross-examinations of the witness. This is logically not relevant because while conducting the cross-examination the witness might be under some tension, pressure or nervousness and so might acknowledge all the allegations put upon him by the opponent’s advocate and this might destabilize the whole judicial procedure.

Considering the cases where custody of a child is in question, it is possible that the child might be brainwashed by the mother and this is logically irrelevant on the grounds that it is a generally well-established fact that kids are close to their mothers. Section 53 of the Indian Evidence Act can also be said as a similar example where the previous good character is relevant in criminal cases. But this is not logically relevant because previous good conduct does not provide any assurance that the accused will not do the same thing again.

Section 11 of the Indian Evidence Act is an equally significant section as it speaks about the facts which are not otherwise relevant but might become relevant further in the process of investigation in a case. The section is to be read with other significant sections of the Act such as sections 32 and 33. Though this section does not come under the past classes but it is significant from the free angle as it discusses regarding the facts which are not logically relevant at the current period but can turn out to be possibly significant for the case in future.

Conclusion

The legal relevancy, as well as logical relevancy both, is significant for the evidence to be used in a proper manner for any case to reach a conclusion. Legal relevancy is widely based upon logical relevancy, but still, it cannot be said whatever is logically relevant has to be legally relevant and vice versa. Logical relevancy is a significant factor in deciding the probative value of facts, it so happens that the facts might be associated with one another by changing degrees of logical proximity and immediate circumstances, and end results, indirect and even speculative circumstances and end results. Thus, the courts should allow the facts which contain a high degree of probative value as that would assist the court of law with choosing a path with relatively higher certainty.

References

https://indianlegalsolution.com/difference-between-fact-in-issue-and-relevant-fact/
https://www.lawctopus.com/academike/logically-relevant-facts-legally-relevant-legally-relevant-facts-may-logically-relevant/
https://www.lawctopus.com/academike/distinction-between-relevancy-and-admissibility/#:~:text=All%20relevant%20facts%20may%20not,basis%20of%20the%20Evidence%20Act
http://www.legalservicesindia.com/article/2497/Logical-Relevancy-And-Legal-Relevancy-of-Facts.html
https://legalsarcasm.com/legal-notes/facts-under-indian-evidence-act-1872/ 
Author: Shreya Malhotra,  Symbiosis Law School, Hyderabad.

INTRODUCTION

Hostile witness is also referred to as someone who is antagonistic or aggressive in nature, in the event that he will not come clean in an official courtroom. The witness that is called upon either by the appealing party or the responding party knowingly accepts that only the related proofs and facts will be given by the witness as per his disclosed statement inside the courtroom. At that point if the witness's statements are untruthful/ false/ deceptive or if he is called inside the witness box and he disapproves the addressal of questions, then the appointed authority will be asked to announce as per the requesting party if the witness is hostile or not. This permits an alternate strategy in addressing the questions. 
An individual who is available at some occasion and ready to provide observed details and particulars about the happenings of the occasion is considered as a witness. As such witness is an individual, whose presence is essential in the preliminary trial of the court so as to have the option to demonstrate the particulars of that incident. The word hostile witness must be deciphered in an extensive way. Common law has set out specific eccentricities with regards to a witness who is hostile in nature. The complete concept of hostile witness was derived from Common law. Therefore, Common law has played a major contributory role here. Likewise, the significance and definition of hostile witness as per Common law is also inferred upon by the Indian Law.

An individual who by the means of his disclosures or undertakings gives off an impression of being duplicitous or deceitful in an official courtroom in opposition to the said party is referred to as a hostile witness. It is only upon the judge or the adjudicator to pronounce an individual as hostile in the courtroom, however it is for the most part in line with the lawyer suggesting the questionnaires. In light of the witness's attitude and plausibility, while figuring out who can be viewed as a hostile witness, the judge determines a witness's hostility. The appointed authority can likewise decide whether the witness is a negative observer if he is giving out pointless or negative proof. [1]

LEGAL PROVISIONS

Section 154 of the Indian Evidence Act, 1872: [2]
The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.—1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party." 2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

Section 137 of the Indian Evidence Act, 1872 states down three stages for the witness’s examination,
  • Examination-in-chief- The examination of a witness by the party who calls him shall be called his examination-in-chief.
  • Cross-examination- The examination of a witness by the adverse party shall be called his cross-examination. 
  • Re-examination- The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. [3]
During the preliminary trial period or during assessment or questioning round, at any point of the stage the witness can turn antagonistic or hostile. If the witness in specific cases acts antagonistic and is announced as per The Indian Evidence Act, S. 154 as a hostile witness, the declaration won't be disposed of from thought by and large, essentially on the grounds that the witness is threatening. For reality to win in an issue submitted before the court, the authorities will investigate the declaration, in the event that it could be authenticated with some kind of genuine and dependable proof. 

In specific cases the inquiries were addressed unfavourably by the witnesses to the contrary party. In such cases, there is no event of dishonour that takes place, however if their declaration is not mirroring the honest realities of the said case and is deceitful then it will be considered as unconditional by the court. Hostile witnesses can likewise be liable to interrogation to invalidate their declaration inside the courtroom. Each and every condition before the courts of justice, would be dependent on the current proof if at all the declaration of a witness ought to be genuine/ truthful or not.

CASE LAWS

It was held in the case of Rabindra Kumar Dey Vs. State of Orissa, 1976 that a discretionary power is presented to the court under Section 154 of the Indian Evidence Act to allow cross questioning/examining. This discretionary power doesn't consist of requisites or standards in order to administer the activity of judicial discretion. There must be wise and appropriate practice in light of a legitimate concern for exercising the discretionary powers in the court. [4]

A party won't typically be permitted for the cross-examination/ questioning of their witness and announce it to be a hostile witness as per the said law regarding the matter. The party can only do so:
· If the witness's announcement shows a component of aggression
· If the disclosures which were made by the witness before the court were later discarded by him.
· If the Court is fulfilled that the witness is being untruthful about the facts and it might be important to question and cross examine him in order to get veracity and accuracy of the facts. One of the glaring occurrences in which the Hon'ble Court supported the request for the permit of questioning of the witness after he discarded his said proclamations before the Court.

In Dahyabhai Chhaganbhai Thakker v State of Gujarat, it was held that, Section 154 of the Indian Evidence Act doesn't put limitations through vital ramifications in the discretionary powers of the court before the witness's assessment or to a witness's specific phase of the assessment. Huge emphasis is laid upon the discretionary powers of the court in order to practice the same when conditions like so prevail. During the examination or assessment, a clever witness would completely adjust to what he expressed before the court of justice or towards the official authorities. However, the same witness during cross examination would act in an unobtrusive manner repudiating to what he expressed during the period of assessment/ examination. [5]

CONCLUSION

The witnesses, who turn hostile and don't make honest disclosures in the court, will consistently prove individuals to lose confidence in the adequacy and faith of the existing legal framework. The social structure shall carry on to be disintegrated and separated.

REFERENCES

[1] https://www.tribuneindia.com/news/archive/nation/hostile-witnesses-continue-to-haunt-criminal-justice-system-809324.
[2] The Indian Evidence Act, 1872, Section 154.
[3] The Indian Evidence Act, 1872, Section 137.
[4] Rabindra Kumar Dey vs State of Orissa, 1977 AIR 170, 1977 SCR (1) 439.
[5] Dahyabhai Chhaganbhai Thakker v State of Gujarat, 1964 AIR 1563, 1964 SCR (7) 361.

Introduction

The foundational stone which forms the rationale behind the admissibility of dying declaration is the legal maxim; nemo moriturus proesumitur mentri. The said maxim is as philosophical and riveting as a line from Shakespeare’s drama. 
“Where words are scarce, they are seldom spent in vain; they breathe the truth, that breathes their words in pain.”
 Richard II 
The maxim propounds that, on the verge of death when the man returns to his ultimate maker, he will not meet him with a lie in his mouth. A crucial factor that adjudicates whether the evidence collected can be admissible in court is its relevancy. If the information extracted cannot be verified and tested in accordance with the procedure laid out under the law, then such evidence cannot be admissible. This test is what differentiates relevant evidence from hearsay.

Even though the declaration made by a person plunging into his death cannot be tested, his statement will be used as relevant evidence and thus be admissible in court. The vindication behind the admissibility of a dying declaration rests upon two major pillars. Firstly, a man who is plummeting into his death is believed not to take part in deceitful and dishonest activities. Secondly, many at times the sinking person can be the sole witness to a heinous crime, and therefore disregarding his statement will result in the dereliction of justice.

Section 32 of the Indian Evidence Act 1872 authenticates the admissibility of dying declaration in court. The declaration can be made by the person either orally or in writing. The recording of the declaration made by the person should preferably be in his language as it increases the validity of the statement. The declaration is preferred to be recorded in a question and answer format but even if such elaborate narration of events is not possible, the declaration is still relevant and admissible in court. There is no written rule of law that emphasizes the need for corroboration for the dying declaration to be admissible. The decisive objective is to prove that the statement is true and voluntarily made.

In the case of Sunder v State of Uttaranchal, a family of six was left to die by setting their house ablaze. There was a sole survivor to this horrendous carnage who further went on to declare that the accused in the case had encroached their house with jerry cans filled with petrol and went on to lock the doors from outside to prevent the members from escaping their intended death. Even though the credibility of the survivor’s statement was questioned due to the fact that there was no doctor present to ratify the mental condition of the victim, the Supreme Court opined that the declaration cannot be neglected solely on the ground that a doctor was not present to administer the condition of the victim. The Honorable court justified its stance further by asserting that the victim was mentally fit prior to the incident and that is sufficient enough to make the declaration relevant.

In the case of Sayarabano Sultana Begum v State of Maharashtra, the victim made two dying declarations. The first declaration suggested that the kerosene lamp falling on her and thereupon she catching fire was an accident. In the second declaration she made, the victim accused her mother-in-law of purposefully throwing the kerosene lamp at her with the intention of causing grievous hurt. The victim further voiced her reason for making the false declaration initially owing it to the torture and threats she received from her mother-in-law. The court gathered substantial evidence to prove the same. Hence the second declaration was admissible in court.

In the instance where there are three dying declarations that are being recorded, the two declarations which are similar to each other will be admissible in court as ruled in Sher Singh v State of Punjab.

In B Shashikala v State of A.P, the magistrate and a doctor recorded the dying declaration. The magistrate asked the question in English, which was translated for the victim by the doctor and in response to the same the victim, was recorded speaking in Hindi. The possibility of the victim being tutored to make a false statement was ruled out and furthermore, there was clarity and no ambiguity in the declaration made by the victim.

COMPARATIVE STUDY OF ENGLISH AND INDIAN TAKE ON DYING DECLARATION

1) Sense of impending death 

In England, for a statement to be characterized as a dying declaration, then the statement should be made when the victim is dying without any possibility of betterment and revival. On the other hand, in India, a statement of the dying declaration can be made when the victim is in the mere expectation of death taking place or not. The English law is dotted with criticism as the need for the ascertainment of death makes the decisive factor of each case to be subjective in nature.

2) Scope of application

In England, the scope of applying the principle of dying declaration comes to play when a homicide has occurred. While in India, the court does not apply the principle of dying declaration only in the instance where a homicide has occurred, instead, it is applicable in any case where the victim's cause of death is under scrutiny. In short in England, death should be the subject matter of the charge. Apart from this, dying declaration can only be subjected to a criminal case in England while in India, civil cases can also invoke the provision of dying declaration.

3) Evidentiary value

In the landmark case of Jasunga s/o Akumu v R, the court opined that the validity of dying declaration in India is lesser when compared to the weight attached to dying employ the principle of dying declaration only when there is no scope of survival for the victim making the declaration, in India as mentioned earlier on the declaration can be made either when the death is expected or not.

4) Competency of declarant

The English law places great emphasis on the need for the declarant to be competent in the aspect of mental fitness and age. In India even though the competency of the declarant is important, the courts do take into account the declaration made by a person of tender age. The information garnered from a child will be inspected with greater precision.

A dying declaration is considered to be of high solemnity and sanctity keeping in mind the legal maxim nemo moriturus proesumitur mentri- “a man will not meet his maker with a lie in his mouth”. The relevancy of a declaration made by a declarant is so crucial that it can directly result in the conviction of the accused. The sacrosanct foundation of the principle can be exploited in this day and time. People can be so driven with anger and resentment that even at their death beds they can make declarations just to protect or to hurt someone. This argument can weaken the stance of a dying declaration in our country. Under this pretext, I am of the opinion that amendments are needed for ensuring the efficiency and credibility of dying declarations and how they are being employed. 

References

1. Y.V Chandrachud, A.C Gupta, Mannu Raja v State of Madhya Pradesh, date of judgment 20.11.1975[1976] 2 SCR 764. Available from URL: https://indiankanoon.org/doc/1940450/
2. Doraiswamy Raju, Arijit Pasayat, P.V. Radhakrishna vs. the State of Karnataka, Appeal (Crl.) 1018 of 2002, date of judgment 25/07/2003, (2003) 6SCC 443, [Online] [2016 April 8]. Available from https://indiankanoon.org/doc/176008782/
3. V.S. Sirpurkar, A.K. Pattnail, Sunder vs. the State of Uttaranchal, Criminal Appeal No.1164 OF 2005. Date of Judgment: 16.9.2010 (2010) 10 SCC 611. [Online] [2016 April 8]. Available from
URL: https://indiankanoon.org/doc/617176/
4. C.K. Thakker, Lokeshwar Singh Panta, Sayarabano@Sultana Begum vs. State of Maharashtra Appeal (Crl.) No.141 of 2006 Date of Judgement 8.2.2007 (2007) 12 SCC 562[Online]. Available from URL: https://indiankanoon.org/doc/1997211/
5. P.P. Naolekar, Markandey Katju, Sher Singh vs. the State of Punjab, Appeal (Crl.) 646 of 2006 Date of Judgement 15/02/2008, AIR 2008 SC 1426.[2016 April 7]Available from URL: https://indiankanoon.org/doc/1893943/
6. Doraiswamy Raju, S.B. Sinha, B. Shashikala vs. State of Andhra Pradesh, Appeal (Crl.) 985 of 1997, Date of Judgement 22.01.2004 (2004) 13 SCC 249. Available from URL: https://indiankanoon.org/doc/1280356/
7. Nabi, Irfan. “Dying Declaration: A Comparative Study.” https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

INTRODUCTION

WHO (World Health Organisation) World Report on Violence and Health(2002) and the UN Secretary General’s Study on Violence Against Children (2006) observed that violence against children, in all its forms mental, physical, sexual, and emotional, is present in every society, in every country.[1] Section 2(12) of the Juvenile Justice (Care and Protection of Children ) Act, 2015 defines a child as someone who has not completed 18 years of age. Violence against children is a heartless act which can take place anywhere, in their homes, schools, child-care facilities and workplace.
Although the Constitution itself has made provisions for the best interests of the children in the form of Directive Principles of State Policy, stating that children should be given the opportunities and facilities so that they can grow and develop in a healthy environment without being subjected to exploitation and abandonment children of the country are still abused and ill-treated. It is a tragic phenomenon that most often than not, goes unreported because a child, given his/her immaturity and fear of the adults, among others. Children who face abuse or violence in their growing years are most likely to become depressed later in life along with a range of mental disabilities. It leaves mental and physical injuries which may take years to recover from and in some cases, lifelong.

Child abuse does not only include within it’s purview physical abuse in the form of beating, it also includes emotional abuse, sexual abuse, neglect (physical, psychological, educational) and exploitation.

Children are the future of the country and the most innocent form of life. With proper upbringing, love, care and education, children become the flagbearers of the future of the nation. Abusing them in their foremost years leaves a deep scar on them, which has an effect on them for their entire lives. Sometimes this abuse is intentional while, sometimes it might not be so. The perpetrator can be anyone including their family members, relatives, teachers and even their care-givers.

All the types of child abuses are in some way or other, interconnected and have an effect on the other. For example, physical abuse can also involve emotional abuse.

SEXUAL ABUSE

Sexual abuse of children is not an unheard-of phenomenon. WHO has defined Child Sexual Abuse (CSA) as, “the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society”. A child is by his/her age underdeveloped mentally to understand the nuances of adult sexual activities. The most important aspect of any sexual activity is free consent. A child, who is still mentally underdeveloped, cannot give an informed consent and this consent does not count owing to their immaturity. Thus, any sexual activity between a child and an adult will amount to sexual abuse. It can include activities like incest, rape, kissing, holding in a sexual way, obscene remarks, virtual sex, online solicitation, prostitution, pornography, voyeurism etc. Girl children are more exposed to sexual abuse than male children, although cases of sexual abuse of boys are also quite high. Generally, it is the children from the low- income families or the ones from poverty-stricken families, who are at the receiving end of sexual abuse from the rich and privileged.

PHYSICAL ABUSE

It is the form of abuse where the child is physically injured by beating, whipping, bullying, corrective punishments etc. In some schools, children are beaten, and this beating is justified as being a disciplinary activity. Irrespective of the intention of such acts, they result in physical abuse and have the consequence of leaving the child emotionally unstable with anger management issues in some cases.

EMOTIONAL ABUSE

Emotional abuse is the pattern of behaviours that fails to provide a child with a supportive, loving and caring environment to develop and grow in, that can have a high risk of causing mental, moral, spiritual or social harm in the child. Emotional abuse can be meted out under the guise of proper upbringing or “disciplining” the child. It is the little things that are inflicted upon them like belittling, threatening, unnecessary scaring, ridiculing, discriminating etc. emotional abuse is one of the most regular forms of abuse in India and every other child can narrate a childhood tale of verbal or physical assault by their parents, leaving a huge irreparable emotional impact on them.

NEGLECT

Neglect with respect to children, in the simplest terms, refer to depriving them of adequate food, shelter, education, clothing and supervision. In today’s fast paced world where both parents of a child are employed, they fail to look after their children themselves, more often than not giving the responsibility of bringing up their children to the care-givers, thus neglecting to give them the love and supervision only a parent can give.

EXPLOITATION

While article 24 of the Constitution of India prohibits child labour up to 14 years and article 21A makes education compulsory for children belonging to the age group of 6-14 years, children are still exploited and made to work from very early in their lives. Evidently, it is the poor children who are made to do forced labour like construction work more than children belonging to rich families.

PUNISHMENT FOR CHILD ABUSE

The Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted for the purpose of ensuring care and protection of children. The act keeps in mind the best interests of the child while prescribing the punishment for offences against children like six months extending up to six years for cruelty towards children. Buying and selling of children will result in imprisonment of 5 years and any child- care institution resorting to corporal punishment will be liable for punishment.

The POCSO Act, 2015 brought to public knowledge, the offence of sexual abuse of children, as before its implementation, the only recognised sexual offence was rape. As a result, a wide range of sexual activities, now recognised by law, did not have any legal implication. This Act was implemented to criminalise any sexual activity involving a minor child (less than 18 years of age). It criminalises any penetrative or non-penetrative sexual assault, sexual harassment, pornography and makes the perpetrator punishable with rigorous imprisonment depending on the act and fine.[2]

After the amendments to the POCSO Act in 2019, anyone who is convicted of penetrative sexual assault would be imprisoned for not less than 10 years (20 years if the age of the victim is less than 16 years) up to life imprisonment and fine. For aggravated sexual assault resulting in the death of the child, the perpetrator will be liable for imprisonment of not less than 20 years up to life imprisonment and fine. For storing child pornographic material, the punishment ranges from 3 to 5 years or fine or both. Failure to delete or destroy or even report child pornography is also punishable.

The Constitution also provides several fundamental rights and Directive Principles of State Policy for the protection of children including[3]:

1. Article 14- very citizen to be treated equally before the law
2. Article 15 – prohibition of discrimination with special provisions for women and children
3. Article 21A – mandatory free education for children in the age group of 6-14 years
4. Article 23 – Prohibition of child labour below 14 years of age.
5. Article 39(e)- ensures that children of tender age not be abused.
6. Article 39(f)- ensures that children be provided the opportunities and facilities for best growth and development
7. Article 45- State’s duty to provide early childhood care for children up to six years of age.

CONCLUSION

Any abuse of children, irrespective of the kind of abuse, is detrimental for the well being and proper development of a child. Child abuse can have varying degrees of negative impact on the behaviour and mental, physical abilities of the child in later years. Reports show that, children with a history of abuse in their formative years, suffer from severe emotional difficulties, substance abuse, low self-esteem, depression and behavioural defects. A child deserves to grow up in a loving and caring environment without any form of abuse. Parents, caregivers and teachers should be made aware of child protection laws and punishments for abuse of children so that they are more sensitive to the needs of a child and refrain from any sort of abuse towards them. 

REFERENCES

[1] United Nations Children’s Fund, Violence against Children in East Asia and the Pacific: A Regional Review and Synthesis of Findings, Strengthening Child Protection Series, No. 4, UNICEF EAPRO, Bangkok, 2014, p. 1
[2] Protection of Children from Sexual Offences Act, 2015
[3] Constitution of India, 1950
Image Source

Introduction

India is one of the signatories to the 3 United Nations Conventions- Single Convention on Narcotic Drugs (1961), Convention on Psychotropic Substances (1971) and Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). The Parliament exercised its power under these conventions to make and implement laws for “any treaty, agreement or convention or decision made at international conference”[1] and hastily enacted the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPSA) with the objective of regulating the possession and usage of narcotic drugs. 

The prohibitionist stance was further reinforced by means of Article 47 of the Constitution- “The State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”. Although Directive Principles of State Policy are unenforceable, this provision is frequently invokes to justify the implementation of narcotic laws. Section 2 of the Act provides the definition of “cannabis”, “coca plant”, “coca derivative”, and “coca leaf”. The said section defines possession of these substances in amounts above that specifies by the government as “commercial quantity”.

The NDPS Act specifies the mechanism for the inspection, seizure and detention of individuals in public and private locations. Safeguards have been scrupulously implemented by the courts, such as advance recording of facts, notifying a supervisor, narrowing powers of arrest to approved officers, ensuring the individual being searched of his / her rights, in view of the strict penalties prescribed by the Act. Simultaneously, the investigative and evidentiary requirements are permissive and have also been perceived in a way that disadvantages the suspect.[2]

Section 67 of the NDPSA

“67. Power to call for information, etc. - Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, -
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) Examine any person acquainted with the facts and circumstances of the case.”

The statements made by the accused under the above sections hold evidentiary value in court in the form of “confessional statements”. It is clear from the review of section 67, in compliance with all the provision of this act, that it is ambiguous about the jurisdiction for the permitted official to record the statement of the accused and, if that statement is admissible as evidence against the accused. This brings into light the question if the powers under section 67 are akin to that under Section 161 of the CrPC. Section 161 of the CrPC provides that an accused is liable to answer all questions asked by the investigating officer, and that too with utmost honesty, except the ones which are likely to direct the accused to affirm charges against him for a criminal offense. The confessions which are sought to be admissible vide section 67 of the NDPSA, are also hit by section 162 of the CrPC which states that any statements made by the accused will not hold evidentiary value and thus will not be admissible in court. In Nandini Satpathy v. P.L. Dani[3], it was observed that Section 161 of the CrPC is based upon the principle laid out in Article 20 (3) of the Constitution which provides that no accused shall be obliged to testify against himself.

However, it is worth noting that a comment made to an authorized person by a suspect is admissible in court as evidence under Section 67 of the NDPSA. In the case of Mohammed Fasrin v. State[4], the court ruled that although an accused’s confession to an investing officer is an admissible piece of evidence under Section 67 of the NDSPA, the court needs to be satisfied that such confession is made voluntarily, free from any kind of pressure and that the accused was informed of his rights prior to the recording of the confession.

In Kartar Singh v. State of Punjab[5], the Supreme Court primary held that statements made by the accused with respect to the offence committed or regarding the facts/ circumstances which led to the offence will be valid “confessions” if and only if the same is done voluntarily and in a “free” environment.

Section 67 makes use of the word “enquiry” instead of “investigation”. The officers under section 42 are authorized to enter a place, search, seize and arrest; and not authorized with the power to “investigate” a case per se. As per Section 156 of the Code of Criminal of Procedure, only an officer in charge of a police station under whose territorial jurisdiction the crime is perpetrated may bring an action of investigation of such a crime. Section 52(3), which mandates the officer under section 42 to take the person and material confiscated to the officer-in - charge of the nearest police station or the officer-in - charge under section 53.

The powers under Section 161 of CrPC can be used by the officer-in-charge of the police station during the course of the investigation; whereas the powers vide section 67 are vested in the officers authorized by Section 42 of the NDPSA to achieve the purpose provided by section 42 only.[6] This implies that confessions of the accused cannot be recorded by officers under section 42, but by an officer appointed under section 53 of the Act.

Bar to “confessional statements” under Section 25 of the Indian Evidence Act
Section 25 of the Indian Evidence Act (IEA) is another bar to admissibility of confessions of the accused made to the police officer as evidence in court. The Section reads as follows:-
“25. Confession to police officer not to be proved. - No confession made to a police officer, shall be proved as against a person accused of any offence”

Section 53 of the NDPSA enables officers of the Central Excise, Revenue Intelligence, Customs, and any other agency of the Central Government, including the Paramilitary or Armed Forces, or any category of any of these officials, with the authority of an officer in charge of a police station to probe offences under the Act. The position of section 25 of the IEA is quite clear in its purpose and forbids the usage of confessions of the accused under the NDPSA as evidence against him. But, the same needs to be evaluated with respect to whether an officer authorised under section 53 of the NDPSA, read with section 25 of the IEA, is a “police officer”. This question has been addressed by courts and has been interpreted in different cases.

In Noor Aga v. State of Punjab[7], the Supreme Court deemed officer under section 53 of the NDPSA to be “police officers” for the purpose of section 25 of the IEA.
However in its verdict in State of Punjab v. Barkat Ram[8], the Supreme Court disguinshed between Custom Officers and Police officers- “We therefore hold that the Customs Officers are not police officers for the purpose of S.25 of the Evidence Act.”

In Badku Joti Savant v. State of Mysore[9], the Apex Court ruled the following- “The statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by S.25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of S.24 of the Evidence Act. … As we have held that a Central Excise Officer is not a police officer within the meaning of those words in s.25 of the Evidence Act the appellant's statement is admissible. It is not ruled out by anything in s.24 of the Evidence Act and so the appellant's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal.”

A similar stance was taken in Raj Karwal v. Union of India[10], wherein the Apex Court reiterated in the following words- “The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Sec. 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Sec. 173, he cannot be described to be a police officer under S. 25, Evidence Act.”

This issue was again raised in Kanhaiyalal v. Union of India[11], where the Supreme Court, held that confessions before an NCB officer is permissible evidence and that officer is not a police officer under the scope of section 25 of the Evidence Act.

In Tofan Singh v. State of Tamil Nadu[12], the Apex Court dealt with the question if confessions of the accused are admissible as evidence even if the officer recording it is not a “police officer”. The Bench held that: - “We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence.”

The argument in this regard is, the Indian judiciary follows the principle of “innocent until proven guilty.” Section 54 of the NDPSA provides for presumption of that the accused has committed the offence and the burden of proof lies with the accused to prove the contrary.[13] Irrespective of whether or not an official under section 53 of the NDPSA qualifies as a police officer under section 25 IEA, every citizen has the fundamental right against self incrimination, which if breached, violates the fundamental right to life. It is therefore absolutely necessary that the “voluntary” and “free” nature of the confession of the accused is comprehensively adjudged. It is not unknown that our judiciary consists of celebrated law makers. Given the ambiguity of Section 67 of the NDPSA, the article has made a humble attempt to address the controversy regarding if statements could be held as “confessional statements” under this section, bars of admissibility of such statements by CrPC and IEA and as to who is authorized to record the statement. Admissibility of an accused’s statements involves a critical question of law and Supreme Court’s fundamental role in categorizing the elements in this matter is reassuring.

References

· Gaurav Thote, Law of Confessions under the NDPS Act: A Legal Conflict, Latest Laws (2020) < https://www.latestlaws.com/articles/law-of-confessions-under-the-ndps-act-a-legal-conflict/#_edn6> accessed 23rd October 2020
· Tripti Tandon, ‘Addict to Convict: Working of the NDPS Act in Punjab’ – A CRITIQUE, The Leaflet (2018) < https://www.theleaflet.in/addict-to-convict-working-of-the-ndps-act-in-punjab-a-critique-vidhi-centre-lawyers-collective/#> accessed 23rd October 2020
· Tripti Tandon, Drug Policy in India, International Drug Policy Consortium (2015) < https://idhdp.com/media/400258/idpc-briefing-paper_drug-policy-in-india.pdf> accessed 23rd October 2020
· Gaurav Thote, Section 67 of the NDPS Act: A Preliminary Analysis, Latest Laws (2020) https://www.latestlaws.com/articles/section-67-of-the-ndps-act-a-preliminary-analysis/ accessed 24th October 2020
· Sachin Kaushik, Whether Confessional Statements under Section 67 is Admissible as Evidence?, LawFinders Live (2020) < https://www.lawfinderlive.com/Articles-1/Article50.htm?AspxAutoDetectCookieSupport=1#:~:text=Unlike%20Terrorist%20and%20Disruptive%20Activities,and%20circumstances%20of%20the%20case. > accessed 22nd October 2020
[1] The Constitution of India, art 253
[2]Narcotic Drug and Psychotropic Substances Act 1985, s 54
[3]Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025
[4] Mohammed Fasrin v. State, (2019) 8 SCC 811
[5] Kartar Singh v. State of Punjab, (1994) 3 SCC 569
[6] Sachin Kaushik, Whether Confessional Statements under Section 67 is Admissible as Evidence?, LawFinders Live (2020) < https://www.lawfinderlive.com/Articles-1/Article50.htm?AspxAutoDetectCookieSupport=1#:~:text=Unlike%20Terrorist%20and%20Disruptive%20Activities,and%20circumstances%20of%20the%20case. > accessed 22nd October 2020
[7] Noor Aga v. State of Punjab, (2008) 16 SCC 417
[8] State of Punjab v. Barkat Ram, AIR 1962 SC 276
[9] Badku Joti Savant v. State of Mysore, AIR 1966 SC 1746
[10] Raj Karwal v. Union of India, AIR 1991 SC 45
[11] Kanhaiyalal v. Union of India, AIR 2008 SC 1044
[12] Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31
[13] Saiyad Mohd. Saiyad Umar Saiyed & Ors. v. The State of Gujrat, (1995) 3 SCC 610

INTRODUCTION

The Estoppel is based on the principles of equity, justice and good conscience. Its main objective is to protect the interests of the parties to the suit from deceit and fraudulent acts while promoting goodwill and honesty. Although the Estoppel is the rule of evidence, but it is considered to be a substantive rule of evidence. 
                                          
This principle is bound by the representation made by him or rising out of his conduct. Estoppel is the base on the maxim, “allegan contraria non est audiendus” which means that a person alleging contradictory facts should not be heard and is the species of “presumption juri et de juri” it means that the fact presume is taken in to consider to be true against the party stating the same.

The Principle of Estoppel was first time used in the case of “Pickard v. Sears[i] Court held that “a person by his words or any conduct induces to another person to believe a fact and its subsequently acts according to that belief or to alter his previous position, the accused is barred from later changing his position”.

Estoppel deals with in Section 115 to 117 of Indian Evidence Act 1872 and Section 115 of Indian Evidence Act talks about the general principle of estoppel by the conduct, Meanwhile Section 116 and 117 are contains instance of estoppel by conduct. The following are the example of Estoppel in other Acts pf our country – Section 49 of the Registration Act 1908, Section 53,27,41,43,49 of the Transfer of Property Act, Section 24 & 93 of the Indian Contract Act 1872, Section 18 of the Specific Relief Act & Section 28 of the Partnership Act NAT.

KIND OF ESTOPPEL[ii]

1. Estoppel by Record

The Estoppel deals with the section 11-14 of CPC and Section 40- 44 Of Indian Evidence Act. It is basically concerned with the effect parts of some Judgment on the behalf of records. When the party adduced the record in the present case and they also decided to estoppel the reopen the case. This Principle is not applicable in India but we are generally using the principle of Res Judicate. We have to keep in mind that an appeal is taken into consideration that the case to be a continuation and it will not fall under the CPC (Res- judicata).

2. Estoppel by Deed

When one party has to claim to another party has entered into an engagement by a deed with some certain facts. The estoppel by deed only can be applied between the parties and privies. This principle is not applying to the non- binding and irrelevant of the matter in the case. The most important thing we must need to keep in mind that if a deed is tainted or come under the fraud, no estoppel can arise from it.

3. Estoppel by Pais or Conduct

A man with his words or conduct to believe that another person is given the same facts and act had been aware of his misrepresentation. The principle of estoppels prohibits the man from denying the existence of the same facts. Estoppel by Pais applies, when an agreement, contract act, or any conduct of misrepresenting negligence on the part of the party, and it changes the position of facts by his conduct of the other party.

4. Estoppel by silence or acquiescence-

In the case of Delhi University v. Ashok Kumar[iii] Court held that Where there is an inherent duty of one person to inform the other person of accurate facts and circumstances but remains silent, his failure to discharge this duty will work as estoppels against him. In a scenario there was no duty for the person to speak, no estoppel can be imposed. In the case of Syed Abdul Qadir v. Ramareddy, an ostensible owner (SECTION 41 of TPA deals with Transfer by ostensible owner) sold a property. The person who was the real owner of the land remain silent. His silent acceptance was regarded as an Estoppel.

In the case of Power Control & Appliances Co. v. Sumeet Machines Pvt. Ltd[iv] where the manufacture allowed the use of his registered trade for a long period of time without protest, this amounts to acquiescence, attracting the doctrine of acquiescence.
When a person changes his religion on the occasion of marriage, he will be bound by that new religion because the estoppel applies.

5. Equitable Estoppel

The Evidence Act is not exhaustive of the rules of estoppel. Thus, although S. 116 only deals with the estoppel that arises against a tenant or licensee, a similar estoppel has been held to arise against a mortgagee, an executor, a legatee, a trustee, or an assignee of property, precluding him from denying the title of the mortgagor, the testator, the author of the trust, or the assignor, as the case may be.

Further, S. 116 is not exhaustive of all instances of estoppel as between landlord and tenant. Thus, there are cases of estoppel which, though not within the terms of Ss. 115 to 117 of the Evidence Act, are recognised instances of estoppel. Estoppels which are not covered by the Evidence Act may be termed equitable estoppel.

6. Estoppel by negligence

This type of estoppel enables a party, as against some other party, to claim a right of property which in fact he does not possess. Such estoppel is described as estoppel by negligence or by conduct or representation or by a holding out of ostensible authority. Such estoppel is based on the existence of a duty which the person estopped is owing to the person led into the wrong belief or to the general public of whom the person is one. (Mercantile Bank. Central Bank, (A.I.R, 1938 Privy Council, 52)

7. Promissory Estoppel

The Promissory estoppel binds the party by his promise or with the faith on the other party. the doctrine of promissory estoppel is not against those agreements, which has created contravention of the law.

In the case of LML Ltd. V State of Utter Pradesh[v], Court observed that the doctrine of promissory estoppel applies only the conduct of one party to another party to make some changes as if the said represented will be acted upon and provides for a cause of action it need not be necessary to take as a defence.
Section. 115 deals with estoppel by representation by act or conduct, and Section. 116 and section 117 deal with estoppel by agreement or contract.
 
Section 115 of Indian Evidence Act[vi]:
When a person has - By his
(i) Declaration
(ii) Act, or
(iii) Omission
Intentionally caused or permitted or another person
(i) To believe a thing to be true, and
(ii) To act upon such belief,
(iii) Omission
Intentionally caused or permitted another person
(i) To believe a thing to be true, and
(ii) To act upon such belief,
Neither
(i) he, nor
(ii) his representative can be allowed to deny the truth of that thing in a suit or proceeding between himself and such person or representative.

Illustration: - A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no at title. He must not be allowed to prove his want of title.

The burden of proving the ingredients for estoppels lies on the party claiming estoppel. This doctrine precludes a person from denying the truth of some statement previously made by himself. 

Section 116 of Indian Evidence Act[vii]: Estoppel of tenant: and of licensee of person in possession: This section deals with estoppel arising out of relationship between
1. a tenant and landlord;
2. between licensee and licensor.
Tenant: When a person comes into possession of any immovable property as a from other person whom he accepts as the owner and he will be estoppel from questioning the title of the owner.
Licensee of a person in possession: A person who is in possession of any immovable property as a licensee cannot be permitted afterward to say that his licensor had no right to the property.

Section 117 of Indian Evidence Act: Estoppel of acceptor of bill of exchange, bailee or licensee:
Section 117 deals with estoppel in respect of movable property. A based 9 estoppels under this section is based on agreement. The section is supplemented by Sections 41 and 42 of the Negotiable Instrument Act (N.I). It is applicable to:
1) Against the acceptor of a bill of exchange.
2) Against the bailee, &
3) Against a licensee
Acceptor of a bill of exchange: No acceptor of a bill of exchange can deny that the drawer had authority to draw such bill or to endorse it; (explanation 1) but he may deny that the bill was really drawn by the person by whom it purports to have been drawn.
With Bailee or licensee: No bailee or licensee can deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.
Ex: A garage owner receiving a car for repairs is estopped from challenging the title of the person from when the car was received. But, Under the (Exception 2), If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had right to them as against the bailor.

Exception of Doctrine of Estoppel[viii]

1) No estoppel against a minor
2) When true are Known to both the parties
3) Fraud or negligence on the part of other party
4) When both the parties plead estoppel
5) No estoppel on a point of Law
6) No estoppel against Statute/ Sovereign acts

CONCLUSION

An Estoppel is a bar that prevents one from asserting a claim or right that that contradicts what one has said or done before or what has been established as true. It is also preventing the re-litigation of issues and affirmative defence alleging good faith reliance on a misleading representing and an injury or detrimental changes in position resulting from that reliance. 

REFERENCES   

[i] Pickard v. Sears, 1837 Ad & EI 469,474
[ii] Asamanya Roy, Different Kinds of Estoppels under Indian Evidence Act, 1872, Shareyouressays, 17 October 2020 (04: 12 pm) https://www.shareyouressays.com/knowledge/different-kinds-of-estoppels-under-indian-evidence-act-1872/119147
[iii] Delhi University v. Ashok Kumar, A.I.R 1968
[iv] Power Control & Appliances Co. v. Sumeet Machines Pvt. Ltd, A.I.R, 1993
[v] LML Ltd. V State of Utter Pradesh, (2008) 3 SCC128
[vi] SWEATHA KASI, AN ANALYSIS OF SECTION 115 OF INDIAN EVIDENCE ACT, International Journal of Pure and Applied Mathematics Volume 120 No. 5 2018, 29-43
https://acadpubl.eu/hub/2018-120-5/1/24.pdf
[vii] Section 116 in The Indian Evidence Act, 1872, Advocatespedia, ASSN: 134470, Advocatespedia, 19 October 2020 (09:24 am) https://advocatespedia.com/Section_116_in_The_Indian_Evidence_Act,_1872
[viii] DOCTRINE OF PROMISSORY ESTOPPEL, Tripakshalitigation, 20 October 2020 (11:15 am)
https://tripakshalitigation.com/doctrine-of-promissory-estoppel/ 

INTRODUCTION

“A picture is worth a thousand words” [1] was quoted rightly by an executive of marketing and advertisement, Fred R. Barnard. Photographic evidence plays a contributory role in the identification of facts and findings. The photographic evidence helps to intensify the proceedings of the court through solid portrayals. 
The presentation of the photos is unusually striking which helps to urge conviction at a much faster pace. This is the reason why the developing use of photographs as proof is on a rise these days. However, no academic consideration is given to these sources of proof. Pictures are considered to be one of the most integral assets and also a judicial instrument ever since the hour of its development. Inside and outside the court of justice, the pictures were held of utmost importance and significance and were strongly challenged. Moreover, the historical backdrop of photographic innovations was much in connection with that of the lawful utilization of photos.

A photograph submits for proof. In the law background, proof of photo explicitly acts as an overall medium of verification or information. In the Indian Court of justice, the utilization of photos and different sorts of machine-created pictures have become a part of the proceedings to bring about proofs for particular kinds of cases.

WHAT IS A VISUAL EVIDENCE/ PHOTOGRAPHIC EVIDENCE?

Photos serve as one of the most dependable sources of proof. Official authorities like the Police and several other associations started to utilize photos as evidentiary sources of law. Photos seem as though reality yet are, actually, hypothetical and non-pictorial. Out of the accessible proofs and incomplete sights composed by the shutterbugs, the choice for selection of photos is done. Photos and pictures have been utilized and mishandled in several manners throughout the long term, and it was ordered as per the official authorities that the evidential idea of photography should not be subject to scrutiny. [2]

LEGAL PROVISIONS

The aspect of photograph falls under the category of, “Electronic Evidences”. Evidences which are electronic or digital in nature can be found in pictures/ photographs, messages, word preparing, archives, text chronicles, backups and data of computer, electronic or phonic records, documents spared from programs of bookkeeping, web program accounts information bases etc.

The first hypothesis which talks about visual proof is, "pictorial declaration/ testimony". The main point covered under this is suitability or acceptability of visual/ photographic proofs. All the visual proofs as per the hypothesis, are purely a type of statement given through the declaration by that particular observer. In view of the witness' very own perception, it possibly becomes justifiable when an observer can affirm that the portrayal of the topic concerned is rational and precise in nature. If no individual (witness or observer) is able to substantiate or affirm the given allegations then the visual or photographic proofs stand invalid and forbidden as per the said hypothesis. Therefore, verification plays a very important role here. The acceptability of visual or photographic proofs lies upon its genuine and legitimate factors. The aforementioned factors should be adequately proved acknowledging the circumstances where it is to be looked upon.

Under the hypothesis of, "silent observer/ witness", the acceptability of photographic or visual proofs require essential prerequisites and it is generally held that the hypothesis of, "silent observer/witness" is not quite the same as the first hypothesis.

The proposed application of photographic or visual proof at the trial stage (preliminary state) and its acquisition for the same will be diverse for all intents and purposes in each case, reason being that under this hypothesis the proofs are not plausible and practicable to build up essential prerequisites with regards to acceptability of photographic proofs. The essential satisfactory truth must be introduced to the preliminary court. It is the work of the appellate court to audit and redraft the decisions of the preliminary court, when they go on to decide the questions with respect to acceptability of proof so that the discretionary powers of the court are not used in an unsuitable manner.

CASE LAW

Puneet Prakash Vs Suresh Kumar Singhal & Anr, 2018 [3]

Several pictures were clicked in the month of January (2005), at that point an episode took place where visuals/pictures/photos acted as a proof for the situation. The primary reason for conflict was with respect to a tenant contract in which the appealing party's grandmother was the proprietor and the occupant of the property who had leased the property path from the former proprietor of the property who was the respondent. The appealing party's grandmother had bought the same amount of property long back from the former owner.

The monthly rent was left unpaid for the amount INR 3000, furthermore it was brought to the notice that the respondents were illicitly trespassing by breaking the divider of the shop. Though it is fascinating to know that the property where the event of trespassing occurred was not a part of the rented divide but rather the offended parties asserted the alleviation from the Assistant Rent Controller for order ownership of one segment of the property which was held in the care of the respondents.

The proof introduced was a photo clicked on a computerized camera which included a site plan demonstrating the contested properties and indicating a little door in the back area of the shop where the event of trespass occurred. The proof of pictures was clicked by the sibling of the offended party. He was supposedly the chief observer of the incident. The respondents asserted that the photo was vitiated, and that there was a divider in place of the gate.

The rent agreement was held appropriately unsettled reason being, it was a copy. Therefore, at the preliminary stage the Trial Court excused the case and held it to be invalid.

CONCLUSION

Due to several acts of neglect like the tampering of data or duplication of work, significant issues have been brought about in the electronic system, with regards to the validity/legitimacy of data depended upon as proof inside the court. In order to help the system and make inquiries about the visual or photographic evidences, it should be reasonable for the legislature or courts to establish a singular group of authorities who are expertise in this particular field of law. The acceptability of visual or photographic proofs are often perplexing. The three basic valid essentials for the legitimacy of a photographic proof as per the system of justice should be validness, dependability and uprightness.

REFERENCES

[1] https://www.phrases.org.uk/meanings/a-picture-is-worth-a-thousand-words.html.
[2]https://www.advocatekhoj.com/library/bareacts/indianevidence/63.php?Title=Indian%20Evidence%20Act,%201872&STitle=Secondary%20evidence.
[3] https://www.legalcrystal.com/case/1216043/puneet-prakash-vs-suresh-kumar-singhal-amp