Narco analysis test without consent of accused illegal: Supreme Court

In a decision pronounced today authored by the Chief Justice of India himself, the Supreme Court has declared that narco-analysis tests cannot be conducted on an accused without his consent. Holding that right to personal liberty, as enshrined in Article 21 of the Constitution of India and the protection against self-incrimination available to all persons in India in terms of Article 20(3) were all pervasive, this decision in Selvi v. State of Karnataka can as well be hailed to be one of trend-setting landmark judgments of India. In fact the Supreme Court extended this reasoning and bar to even poly-graphic tests (lie-detector tests), Brain Electrical Activation Profile (BEAP) test, and Functional Magnetic Resonance Imaging (FMRI).

The judgment, which runs over 250 pages, the conundrum leading to the present dispute was noted by the Court in the following terms; "Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. ... It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of ‘third degree methods’ by investigators."

In this background, having examined the various competing considerations and the decisions of courts from other jurisdictions, the Supreme Court concluded as under;

221. In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against self-incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence.

222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.

223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.

Some other pertinent observations made by the Bench, which are worth noting, as as under;

91. As mentioned earlier, ‘the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

123. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the ‘right against self-incrimination’ will be rendered meaningless. The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.

169. There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of physical force to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject’s physiological responses can be described as an intrusion into the subject’s mental privacy. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.

170. We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a ‘trial by media’. 

171. We must remember that the law does provide for some restrictions on ‘personal liberty’ in the routine exercise of police powers. For instance, the CrPC incorporates an elaborate scheme prescribing the powers of arrest, detention, interrogation, search and seizure. A fundamental premise of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables Courts to order a person who is under arrest to undergo a medical examination also provides for the use of ‘force as is reasonably necessary’ for this purpose. It is evident that the notion of ‘personal liberty’ does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as ‘fairness, non-arbitrariness, and reasonableness’.

192. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person ‘to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of ‘personal liberty’ under Article 21. Hence, our understanding of the ‘right to privacy’ should account for its intersection with Article 20(3). Furthermore, the ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.

Have a look at the decision.

Speaking of 'sex' not necessarily liable for 'obscenity': Supreme Court

Giving respite against criminal prosecution to Tamil actress Khushboo [S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600] for some remarks made by the appellant in an interview to a leading news magazine, the Supreme Court in its recent decision has made interesting observations on the aspect of law and morality in the country. 

The background leading to this case is interesting to consider. The same is noted in the decision as under;

3. ... In September 2005, `India Today' a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex. As a part of  this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of  society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. This can be readily inferred from the statement which was published, a rough translation of which is reproduced below: 

"According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity.

None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases."

It was in this background that various complaints were made and cases registered against her purporting "to allege that the appellant's interview had brought great shame on her since it had suggested that women of her profile had engaged in premarital sex. The complainant further alleged that the appellant's remarks had caused mental harassment to a large section of  women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt."

Repelling the various allegations against her, the Supreme Court was of the view that no there had been no offence committed by her to be prosecuted for obscenity or otherwise. Holding that the allegations were misplaced, the Court expressed its opinion as under;

16. Coming to the substance of the complaints, we fail to see how the appellant's remarks amount to `obscenity' in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if - 

- It is lascivious (i.e. expressing or causing sexual desire) or 

- Appeals to the prurient interest (i.e. excessive interest in sexual matters), or

- If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials.

In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present case, the appellant takes full responsibility for her statement which was published in `India Today', a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.

17. This position was later clarified in Samaresh Bose Vs. Amal Mitra, AIR 1986 SC 967, where the Court held that in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader.

18. There are numerous other decisions, both from India and foreign country which mandate that `obscenity' should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to the clear formulation on this issue it is not necessary for us to discuss these precedents at length. In the present case, the appellant has merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Furthermore, the statement has been made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities. Even though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of communicating certain ideas and opinions on the above-mentioned subject. In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.

19. We must also respond to the claim that the appellant's remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.

20. "Offence" means `an act or instance of offending'; `commit an illegal act' and illegal means, `contrary to or forbidden by law'. "Offence" has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade Association Vs. Attorney General for Canada AIR 1931 PC 94; Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram & Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. AIR 2006 SC 1301). 

21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery' as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court'.

22. It would also be instructive to refer to a decision of the House of Lords (U.K.) in Gillick Vs. West Norfolk and Wisbech Area Health Authority, (1985) 3 All ER 402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects discussed in that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have been made in any given setting. 

...

29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality' among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellant's remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a  means to unduly  interfere with the domain of personal autonomy.

Immorality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression'. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574, which spell out the appropriate approach for examining the scope of `reasonable restrictions' under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:- " ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg'. 

The Court further held: " ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."

30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalise the author. 

Have a look at the decision.

Proof of will: The law revisited

In a recent decision in S.R. SRINIVASA versus S. PADMAVATHAMMA, examining the appraisal of the Kerala High Court, the Supreme Court has revisited and restated the law relating to proof of will. Pointing out the various factors required to be examined before a will can be stated to be genuine and true, the Supreme Court discussed the earlier decisions in which the law had been stated and declared the circumstances in which the claim of the will being genuine be considered to be suspicious. 

The Supreme Court inter alia held as under;

24. The mode, the manner and the relevant legal provisions which govern the proof of Wills have been elaborately dilated upon by this Court in a number of cases. We may make a reference only to some of these decisions.

25. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:

“1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would  normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon  the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

26. Applying the aforesaid principles to this case, it would become evident that the Will has not been duly proved. As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the observations made by this Court in the case of M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, [(1969) 1 SCC 573], become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows: 

“It  is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.”

27. In our opinion, the aforesaid test has not been satisfied by DW.2 the scribe. The situation  herein is rather similar to the circumstances considered by this Court in the case of N. Kamalam v. Ayyasamy, [(2001) 7 SCC 503]. Considering the effect of the signature of scribe on a Will, this Court observed as follows: 

“26.The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses.” “The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself — this is again, however, not the situation existing presently in the matter under consideration.”

28. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here signature of the scribe cannot be taken as proof of  attestation. Therefore, it becomes evident that the execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. The High Court has however held that proof of the Will was not necessary as the execution of the Will has been  admitted in the pleadings in O.S.No.233 of 1998, and in the evidence of P.W.1.

Have a look at the decision.

Acquittal order not to be easily disturbed: Supreme Court

Restating the law that an order passing by the lower court acquitting the accused should not be easily disturbed, the Supreme Court in a recent decision titled M.C. Ali versus State of Kerala set aside the order of Kerala High Court wherein it has reversed the acquittal of the accused. The Supreme Court went on to examine the evidence to hold that the High Court should not have come to such a conclusion. In these circumstances, finding apt, the Supreme Court declared the law as under;

43. We have considered the submissions made by the learned counsel. We may notice here that the High Court has clearly recorded the legal proposition involved in this case in the following words:

“Being an appeal against acquittal, we are bound to see whether views expressed by the learned Sessions Judge are reasonably possible. If the views expressed are reasonably possible, even if another view is possible, appellate court will not interfere in it.”

The aforesaid statement of law recognizes the settled position in the case of Antar Singh v. State of M.P., (1979) 1 SCC 79: “This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as of the Trial Court, but before reversing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial; and further, the opinion of the Trial Court which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible, and the Trial Court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the Trial Court, it would have taken the alternative view and convicted the accused accordingly.”

44. This settled proposition of law has been reiterated by this Court in the case of Chandrappa v. State of Karnataka {2007 (4) SCC 415}. In this case, the provisions of Section 378 of the Code of Criminal Procedure, 1997 were critically examined. After adverting to numerous decisions of this Court, it was observed as follows: “From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court.”

From the above, it becomes evident that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal. The acquittal reinforces and reaffirms the presumption of innocence of the accused. The High Court, in fact, makes a reference to the judgment of this Court in the case of Kali Ram v. State of H.P., (1973) 2 SCC 808, wherein this Court has observed:

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.” 

45. Having noticed the aforesaid principle, the High Court reviewed the entire evidence. It reached the conclusions which are opposite to the conclusions recorded by the Trial Court. We are unable to accept the opinion of the High Court that findings recorded by the Trial Court are perverse and manifestly erroneous.

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Burden of proving special facts: Delhi High Court clarifies the law

The law of evidence requires the person who alleges a fact to prove the fact, and quiet rightly so. After all if one needs to obtain a particular relief from a court of law, he is required to affirmatively state his case with conviction and on the basis of the material evidence which can be led in to support such a claim. Given the adversarial system, a common law court is a judge of the evidence being brought before it and is not an investigator obliged to determine the respective claims of the parties on its own. The things are quiet different, however, when the circumstances relate to the evidence being available with the adversary. To provide for such circumstances, Section 106 of the Indian Evidence Act, 1872 provides separately. The law on the issue, has recently been explained by the Delhi High Court in the following terms;

47. What is the scope and purport of Section 106 of the Evidence Act?

48. Section 106 of the Evidence Act and the illustrations appended thereto reads as under:- “106. 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. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

49. The earliest cases on the point are decisions of Privy Council reported as Attygalle v Emperor (1936) 38 Bom LR 700 and Stephen Seneviratne v The King (1937) 39 Bom LR 1. In the said decisions, the Lordships of Privy Council were dealing with Section 108 of Ceylon Evidence Act which corresponded to Section 106 of Indian Evidence Act. It was held that Section 106 of Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing his innocence.

50. The aforesaid decisions of Privy Council came to be considered by Supreme Court in the decision reported as Shambhu Nath Mehra v State of Ajmer AIR 1956 SC 404 wherein it was observed as under:- “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor A.I.R. 1936 P.C. 169 and Seneviratne v. R. [1936] 3 All E.R. 36, 49. ... We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

51. The decision of Shambhu's case (supra) was noticed by Supreme Court in the decision reported as State of WB v Mir Mohammad Omar AIR 2000 SC 2988. The relevant portion contained therein is being quoted herein under:-

“The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

In this case, when prosecution succeeded in establishing the aforenarrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in condition such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody. .... In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis Supplied)

52. It would be most apposite to quote following observations made by Supreme Court in the decision reported as Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681:-

“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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2003CriLJ3892 ). 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. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him. 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.”

53. In the decision reported as Sarojini v State of M.P. 1993 Supp (4) SCC 632 accused Vinod and Sarojini, the husband and mother-in-law of the deceased, were charged with the offence of committing the murder of the deceased. The death of the deceased took place in a house which was in possession and the occupation of the appellants. Accused Vinod was employed in a bank and it used to take two hours to travel the distance between the house where the deceased had died and the place of work of accused Vinod. The Sessions Court convicted both the accused while High Court acquitted them. High Court acquitted accused Vinod on the ground that there is no evidence to establish that he was present in the house in question at the time of the death of the deceased while accused Sarojini was acquitted on the ground that murder was committed in such a manner that she alone could not have committed the same and that there is no clinching evidence to show that who had murdered the deceased. In appeal, Supreme Court convicted accused Sarojini on the grounds that she was occupant of the house where the deceased had died; that she had a motive to murder the deceased as she had demanded dowry from the family members of the deceased; that her conduct was suspicious and that she had taken a false defence. Even though there was evidence to show that accused Vinod was present in the house where the deceased died at the time of the death of the deceased, Supreme Court convicted him on the grounds that he was occupant of the house where the deceased died; that his conduct was suspicious; that he had taken a false defence; that he had not given an explanation in his statement under Section 313 Cr.P.C. and that accused Sarojini alone could not have murdered the deceased. The relevant discussion contained in the said decision is being quoted herein under:-

“The question then is whether the husband and mother-in-law alone have committed the offence. Photography of the scene and the situation of the house disclose that the house consists of ground floor and the first floor. In the first floor, a bed room and another store room was found as per Panchanama. The dead body was found in the store room. There is no other way of ingress or egress to the first floor, except through the staircase lying in the ground floor of the house. As such it is impossible for any other persons to enter into the house except the inmates. Admittedly, the deceased and Sarojini alone were living in the house while Vinod was working at Sidhi, obviously he was coming and going to his place of duty. The distance between Rewa and Sidhi is 90 km. The High Court also accepted the possibility of the Vinod's coming to Rewa and after committing the offence leaving Rewa as the journey on the high-way would take hardly two hours to reach Sidhi. The murder was committed within hardly three months from the date of marriage and two to three hours after night meal. As per the evidence of DW-4 the deceased was happy in the marital home. It would, therefore, conclusively exclude the theory of suicide as pleaded by Sarojini and death was in the morning at 8.00 or 8.30 a.m. Within a short period of three months, there is no possibility of anyone developing such deep enimity with Rajini to put to end to the life of an young married woman. It must, therefore, be none other than the inmates of the matrimonial home.

... When the deceased was done to death by asphyxia and thereafter the dead body was burnt soaking kerosene on a naked body, it would be obvious that more than one participated in committing the murder. The High Court also found that Sarojini had an associate to screen the evidence of murder. Who would be the other person? Here the presence of Vinod is called into picture. We are surprised to note that PW-10, the investigating officer, not only conducted perfunctory investigation but also gave evidence in a most unsatisfactory manner. He did not make any attempt during investigation to collect the evidence of the presence of Vinod at Rewa during the night or thereafter. The fact that more than one participated in the commission of the crime and the fact that there is no other person inimical to Rajini to commit the crime and the fact that it is not impossible for Vinod to immediately leave Rewa for Sidhi after committing the crime, would clearly connect him to be a participate criminal in committing homicide of his wife Rajini. Without his cooperation and participation in committing the crime, on the facts and circumstances, it is impossible for Sarojini alone to commit the crime. Except denial he offerred no explanation in his Section 313 statement. The false theory of suicide is also a circumstance to be taken into account. The remorseless conduct of Sarojini is a relevant fact, conduct of Vinod also is inculpatory. The normal human conduct would be that on hearing the news of the death of his wife he was expected to immediately reach home; to make enquiry for the cause of death and to take further actions which are absent in this case. Under these circumstances we have no hesitation to agree with the Sessions Court and disagree with the High Court that Vinod also was a participis criminal in committing the crime.”

54. The legal norm in respect of the application of Section 106 in a given case is contained in the following observations of Supreme Court in Mir Mohammad‟s case (supra):-

“The section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference

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