Category Archives: Evidence

Sign Only What You Mean

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When was the last time you signed a contract without reading it?

If you think you’ve never done that, have you ever read the terms and conditions which are in a little scrolly box before you’ve signed up for an eMail account? Do you know what Orkuts terms of service are? Or for that matter Facebook’s or Twitter’s are?

Whether or not one thinks of it, they are legally binding contracts. One recent example where such a contract was used against someone was in Megan Meier’s suicide case. Megan killed herself at the age of thirteen after being rejected online by a person she thought was a sixteen year old boy. That person, however, turned out to be Lori Drew, the mother of one of her friends.

Strangely enough, there were no laws which could readily be applied to prosecute the woman so she was ultimately charged with violating MySpace’s terms of use which, among other things, do not allow ‘promoting information users know to be false or misleading, or soliciting personal information from anyone under the age of 18 or using information gathered from the Web site to ‘harass, abuse or harm other people’.’

Presumably Ms Drew had no idea of what the terms of service were although in all probability, knowing them would not have stopped her from acting in the way she did.

The point, though, is not merely that she didn’t know what she signed up for but that the contract was treated as being binding on her and was given the ‘force of law’.

This is, by no stretch of the imagination, the only case in which a contract has been given such force. In the recent case of the overweight air hostesses the single judge bench of the Delhi High Court described the employment contract the air hostesses has signed as their nemesis. And in that case, it appears that the air hostesses did in fact know what they had signed.

Nonetheless, despite knowing what the pitfalls of signing agreements without knowing what their contents are or signing agreements without wanting to be bound by them, it’s something most people do without thinking twice.

Think of all the times people have signed loan agreements which say that they will repay money at 20% interest just because their money lender says, “But I’ll charge you only 14%, just let this be there on paper.”

The problem with just letting things be on paper is that if you sign them, they will bind you. It doesn’t matter if you have a separate oral agreement with different terms. It doesn’t matter if the other party claims that he won’t enforce the terms on paper.

The law of evidence very clearly says that oral evidence is excluded by the existence of documentary evidence. There are a few exceptions and provisos but they apply so rarely that it’s hardly worth taking them into consideration at all. For example, if you do not write your whole agreement down, while interpreting it and deciding whether or not you can give oral evidence about a supplementary oral agreement which you have not written down and which does not go against anything you have written down, the court will take into consideration ‘the degree of formality’ of the contract i.e. basically, who drafted it. And the contract will be interpreted differently depending on whether it was drafted by two laymen over coffee or by two dozen overpaid lawyers.

As a general rule, the only thing which a court will take into consideration is your written contract.

The moral of the story: sign what you mean, and mean what you sign.

Dying Declarations

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Dying declarations which are most often seen in cases of dowry death and murder are dealt with in Section 32 (1) of the Indian Evidence Act, 1972. Under this sub-section, the statement of a person who is dead is relevant at a trial if it speaks of the cause of death of that person. Such a statement may even speak of the circumstances in which the person died.

Such a statement is a relevant fact whether or not the person who made it expected to die at the time when he made it.

The provision is applicable to both civil and criminal trials. This is not the case in English law: the corresponding law in England is applicable only to criminal cases.

The statutory provisions which deal with dying declarations do not say anything further. However, over time, there has been built up a large body of case law which deals with exactly how dying declarations are to be treated by courts, how much ‘weight’ should be accorded to them and what should be done if there is more than dying declaration and those declarations conflict with each other.

A dying declaration may be oral. This is, as Justice Thakker put it in the case of Vikas and Ors. v. State of Maharashtra, 2008, “an exception to the general rule reflected in Section 60 of the Indian Evidence Act, 1872 which enacts that oral evidence in all cases must be direct, viz., if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner.”

In the judgment of this case, which was decided by a Bench of the Supreme Court comprising Justices C K Thakker and M Katju, dying declarations were discussed in detail. The judgement, inter alia, said:

The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: Nemo moriturus praesumitur mentire. A dying man is face to face with his Maker without any motive for telling a lie.

‘Truth,’ said Mathew Arnold, ‘sits upon the lips of a dying man.’

Shakespeare, great writer of the sixteenth century, through one of his characters explained the basic philosophy thus;

‘Have I met hideous death within my view,
Retaining but a quantity of life,
Which bleeds away,
Even as a form of wax,
Resolveth from his figure,
Against the Fire?
What is the world should
Make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false,
Since it is true
That I must die here,
Live hence by truths?’
(King John, Act V, Sect. IV)

The Great poet also said at another place:

‘Where words are scarce,
They are seldom spent in vain;
They breathe the truth,
That breathe their words in pain.’
(Richard II)

Section 32 (1) of the Act has been enacted by the Legislature advisedly as a matter of necessity as an exception to the general rule that hearsay evidence is no evidence and the evidence which cannot be tested by cross-examination of a witness is not admissible in a Court of Law. But the purpose of cross-examination is to test the veracity of the statement made by a witness. The requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying.

A man on the death-bed will not tell lies. Moreover, if the dying declaration is excluded from admissibility of evidence, it may result in miscarriage of justice inasmuch as in a given case, the victim may be the only eye-witness of a serious crime. Exclusion of his statement will leave the Court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice.

The question as to admissibility of dying declaration has come up for consideration before Indian as well as foreign courts. In R.V. Woodcock, (1789) 1 Leach 500 : 168 ER 352, Eyre, C.V. proclaimed, ‘The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.’

In India, Khushal Rao v. State of Bombay, 1958 SCR 552 was probably the first leading case decided by the Supreme Court on admissibility of dying declarations and, in its judgment, the Court inter alia said that where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing.

Considering the views expressed by different High Courts and also leading commentaries, the Supreme Court summarized the principles thus:

  1. that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
  2. that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
  3. that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;
  4. that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
  5. that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and
  6. that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

In Smt. Paniben v. State of Gujarat, (1992) 2 SCC 474, the Supreme Court, referring to earlier case law, summed up principles governing dying declarations as under:

  1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
  2. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
  3. This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
  4. Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
  5. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
  6. A dying declaration which suffers from infirmity cannot form the basis of conviction.
  7. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
  8. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
  9. Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
  10. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

Recently, in the case of Amol Singh v. State of MP, 2008, a Bench of the Supreme Court held that ‘it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they arematerial or not. While scruitinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances’.

Dying Declarations and other Similar Statements

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Section 32 of the Indian Evidence Act, 1972 deals with dying declarations and other similar statements such as those made by persons who cannot be found.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to the cause of death

(2) Or is made in the course of business

(3) Or against the interest of maker

(4) Or gives an opinion as to a public right or custom, or matters of general interest

(5) Or relates to the existence of relationship

(6) Or is made in a will or deed relating to family affairs

(7) Or in a document relating to transaction mentioned in Section 13 (a)

(8) Or is made by several persons and expresses feelings relevant to matter in question

The basic scheme of the Section has been considered in the table below:

Section Question before the Court Circumstances in which the statement was made Whose Other conditions
32 (1) The cause of the death of the person making the statement and the circumstances in which he died The statement is relevant whether or not the person making it is under the expectation of death The person who has died Applicable in both civil and criminal cases (In English law: only in criminal cases)
32 (2)   - an entry or memorandum made in course of business, or in the discharge of professional duty- an acknowledgement of the receipt of money, goods, securities or property- a document used in commerce written or signed by him- the date of a letter or other document usually dated, written or signed by him    
32 (3)   Against the pecuniary or proprietary interest of the maker which would expose him or would have exposed him to a criminal prosecution / suit for damages    
32 (4) The existence of a public right/ custom, or matter of public/ general interest   Person likely to be aware of its existence Statement made before any controversy as to such right, custom or matter arose
32 (5) The existence of any relationship by blood, marriage or, adoption   Person who had knowledge of its existence Statement made before the question in dispute arose
32 (6) The existence of any relationship by blood, marriage or, adoption Made in any will or deed relating to the family’s affairs to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made   Statement made before the question in dispute arose
32 (7) The existence of any right/custom created/claimed/ recognised/ asserted/ denied by any transaction Made in any deed, document or will    
32 (8)   Made by a number of persons who expressed impressions on their part    

Read more: Dying Declarations

The Admissibility of Searches for Narcotic Drugs

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A trial court convicted one Udai Lal of transporting (maize and) opium and sentenced him to ten years in jail. It also fined him one lakh INR. The Rajasthan High Court acquitted him and the State filed an appeal against this decision in the Supreme Court.

A Bench of the Supreme Court comprising Justices Arijit Pasayat and P. Sathasivam said that the Narcotic Drugs and Psychotropic Substances Act is a special Act and the High Courts should exercise their powers cautiously keeping in mind that the Act aims to prevent smuggling.

The Court said:

“The law on the point is very clear that even if there is any sort of procedural illegality in conducting search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused.”

“If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.”

“In order to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, Parliament enacted NDPS Act in the year 1985.”

The Supreme Court said that it was satisfied that the High Court failed to consider all the relevant materials and circumstances and remitted the case to the High Court for fresh disposal in six months’ time.

Source

The Burden of Proof in Dowry Deaths

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In a dowry death case, the husband was acquitted because he was not present in the village at the time of his wife’s death. His parents were, however, convicted. The Rajasthan High Court set aside their conviction since the State did not appeal against the husband’s acquittal. The Supreme Court has held that the State’s failure to appeal against the husband’s acquittal does automatically mean that the prosecution failed to prove charges of dowry death under the Indian Penal Code.

The case contains a detailed discussion of where the burden of proof lies in cases of dowry deaths:

“In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of the any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary vs. State of Bihar [2001 (8) SCC 311] this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference.

In Trimukh Maroti Kirkan vs. State of Maharashtra [2006 (1) SCC 681], a two judge-bench of which one of us (G.P.Mathur,J.) was a member, considered the applicability of Section 106 of the Evidence Act and observed:

“The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished.”

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

Similar view has been expressed in State of Punjab vs. Karnail Singh [2003 (11) SCC 271], State of Rajasthan vs. Kashi Ram [2006 (12) SCC 254], Raj Kumar Prasad Tamakar vs. State of Bihar [2007 (1) SCR 13].

We are sure, if the learned Single Judge of the High Court had adverted to Section 106 of the Evidence Act and correctly applied the principles of law, he would not have committed the grave error of acquitting the respondent.”

CASE NO.: Appeal (crl.) 1133 of 2000

State of Rajasthan v. Jaggu Ram

DATE OF JUDGMENT: 04/01/2008
BENCH: G.P. Mathur & G.S. Singhvi
JUDGMENT: G.S. Singhvi, J.

The Mathura Rape Case

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In the Mathura case – Tukaram and Another v/s State of Maharashtra, 1978 – two policemen apparently raped a teenaged orphan named Mathura in the police station they were attached to. The judgment which was delivered by Justice Khosla caused so much outrage that it provided an impetus for the law to be amended. This is a heavily edited excerpt of it

“Mathura is the girl who is said to have been raped. Her parents died when she was a child and she is living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and during the course of her visits to that house, she came into contact with Ashok, who was the sister’s son of Nunshi and was residing with the latter.

The contact developed into an intimacy; and Ashok and Mathura decided to marry.

On March 26, 1972, Gama lodged a report at the Desai Gunj police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by Head Constable Baburao at whose instance all the three persons complained against, as well as Mathura, were brought to the police station at about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10.30 p.m. and Baburao told them to go after directing to Gama bring a copy of the entry regarding the birth of Mathura recorded in the relevant register. Baburao then left for his house. At that time the two appellants – the accused policemen, Tukaram and Ganpat – were present at the police station.

After Baburao had gone away, Mathura, Nunshi, Gama and Ashok started leaving the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter, Ganpat took Mathura into a latrine situated at the rear of the main building, loosened her underwear, lit a torch and stared at her private parts. He then dragged her to a Chhapri which serves the main building as its back verandah. In the Chhapri he threw her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram, the second appellant, who was seated on a cot nearby, came to the place where Mathura was and fondled her private parts. He also wanted to rape her but was unable to do so because he was in a highly intoxicated condition.

Nunshi, Gama and Ashok, who had been waiting outside the police station for Mathura, grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nunshi shouted for Mathura there was no response. The noise attracted a crowd and some time later, Tukaram emerged from the rear of the police station and on an enquiry from Nunshi stated that the girl had already left. He himself went out and shortly afterwards Mathura also emerged from the rear of the police station and informed Nunshi and Gama that Ganpat had compelled her to undress herself and had raped her.

Nunshi took Mathura to Dr. Khume and the former told him that the girl had been subjected to rape. The doctor told them to go to the police station and lodge a report there.

Mathura was examined by Dr. Kamal Shastrakar at 8 p.m. on March 27, 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. The presence of semen was however detected on the girl’s clothes and the pyjama which was taken off the person of Ganpat.

The Learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was ‘a shocking liar’ whose testimony ‘is riddled with falsehood and improbabilities’. But he observed that ‘the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station she had sexual intercourse and that, in all probability, this was with an accused policemen.’ He added however that there was a world of difference between ‘sexual intercourse’ and ‘rape’, and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed: “Finding Nunshi angry and knowing that Nunshi would suspect some thing fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why – this is a possibility – she might have invented the story of having been confined at the Police Station and raped by one of the accused policemen.

Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastrakar and one of the accused is no novice. He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his Paijamal with semen while having sexual intercourse with persons other than Mathura. The seminal stains on Mathura can be similarly accounted for. She was, after all, living with Ashok and was very much in love with him.

The High Court took note of the various findings arrived at by the Learned Sessions Judge and then itself proceeded to sift through the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the Trial Court was reasonably possible, even though the High Court was inclined to take a different view of the facts. The High Court proceeded to observe that although the Learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he erred in appreciating the difference between consent and ‘passive submission’.

In coming to the conclusion that the sexual intercourse in question was forcible and amounted to rape, the High Court remarked:
“Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the time. Both the accused were strangers to her. It is not the case of the defence that Mathura knew both these accused or any of them since before the time of occurrence. It is, therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from the accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at that very police station. If these circumstances are taken into consideration it would be clear that the initiative for sexual intercourse must have come from the accused or any of them and she had to submit without any resistance…

Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with desire or will, nor can it furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition… On the other hand, taking advantage of the fact that Mathura was involved in a complaint filed by her brother and that she was alone at the police station at the dead hour of night, it is more probable that the initiative for satisfying the sexual desire must have proceeded from the accused, and that victim Mathura must not have been a willing party to the act of the sexual intercourse. Her subsequent conduct in making a statement immediately not only to her relatives but also to the members of the crowd leaves no doubt that she was subjected to forcible sexual intercourse.”

In relation to Tukaram, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat. It was in these premises that the High Court convicted and sentenced the two appellants.

[The Supreme Court held:]

Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as ‘passive submission’.

Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts.

The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.

In view of what we have said here, we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat.

The High Court itself has taken note of the fact that in the First Information Report the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. Those allegations were that Tukaram who had caught hold of her in the first instance, had taken her to the latrine in the rear of the main building, had lit a torch and had stared at her private parts in the torch-light. Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram? We do not, therefore, propose to take the girl at her word in relation to Tukaram and hold that the charge remains wholly unproved against him.

The judgment of the High Court is reversed and the conviction recorded against as well as the sentences imposed upon the appellants by it are set aside.”

There were several problems which the judgment highlighted including:

  • the issue of consent
  • the refusal to recognise that victims of violence rarely make consistent statements
  • the reference to the girl’s sexual history
  • the reference to the two-finger test
  • the question of on whom the burden of proof lies

Some of these problems were dealt with by subsequent amendments in the law.

Proof of Other Official Documents

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Under Section 78 of the Indian Evidence Act, the following public documents may be proved as follows:

(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative

(2) the proceedings of the Legislatures, by the journals of those bodies respectively, or by published Acts o abstracts, or by copies purporting to be printed by order of the Government concerned

(3) proclamations, orders or regulations issued by Her Majesty or the Privy Council or any department of Her Majesty’s Government, by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s printer

(4) the acts of the Executive or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act

(5) the proceedings of a municipal body in a State, by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body

(6) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an India Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

This Section deals with how public documents not dealt with in Section 77 may be proved.

Sec Public Document Whose Proof of the Document
78 (1) Acts, orders or notifications The Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government The records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative
78 (2) The proceedings of the Legislatures Legislatures The journals of those bodies respectively, or by published Acts o abstracts, or by copies purporting to be printed by order of the Government concerned
78 (3) Proclamations, orders or regulations Her Majesty or by the Privy Council or by any department of Her Majesty’s Government Copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s printer
78 (4) The acts of the Executive or the proceedings of the Legislature of a foreign country A foreign country Journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act
78 (5) The proceedings of a municipal body in a State A municipal body in a State A copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body
78 (6) Public documents of any other class in a foreign country A foreign country The original , or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an India Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

This Section is permissive and not exclusive. The Section itself says that documents may be proved in the manner specified therein. Thus, it is within the Court’s discretion to decide if a document may be proved in the manner described in this Section.