CHAPTER-V

IMPACT OF IMPROPER
EVIDENCE ON CRIMINAL
CASES

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 It may be submitted that the applicability of the

section 167 of Indian Evidence Act extends to criminal cases

as well.130 This section says that the improper admission or

rejection of evidence shall not be a ground of itself for a new

trial or reversal of any decision in any case, if it shall appear

to the court before which such objection is raised that,

independently of the evidence objected to and admitted,

there was sufficient evidence to justify the decision, or that,

if the rejected evidence had been received, it ought not to

have varied the decision.

Further, Section 465 of the Criminal Procedure Code,

1973 also has the same principle which underlines Section

167 of Evidence Act, in the sense that no finding, sentence

or order is reversible or alterable unless the error, omission,

irregularity, want of sanction or misdirection has occasioned

a failure of justice. Section 465 of Cr.P.C. is mentioned as

under :

Section 465: Finding or sentence when reversible by reason

of error, omission or irregularity.

(1) Subject to the provisions hereinbefore contained, no

finding, sentence or order passed by a Court of

competent jurisdiction shall be reversed or altered by a

130 Queen Empress v. Ramchandra Govinda, 1895 ILR 19 Bom 749 ; Mirza Akbar v.
Emperor, AIR 1940 PC 176; Savlimiya Miyabhai v. Emperor, AIR 1944 Bom 338.

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 Court of appeal, confirmation or revision on account of

any error, omission or irregularity in the complaint,

summons, warrant, proclamation, order, judgment or

other proceedings before or during trial or in any

inquiry or other proceedings under this Code, or any

error, or irregularity in any sanction for the

prosecution, unless in the opinion of that Court, a

failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or

irregularity in any proceeding under this Code, or any

error, or irregularity in any sanction for the

prosecution has occasioned a failure of justice, the

Court shall have regard to the fact whether the

objection could and should have been raised at an

earlier stage in the proceedings.

Further, it may be stated that for erroneous admission

or rejection of evidence by the Court below, it must be

shown that the improper admission or rejection of the

evidence was likely to affect the decision of the case.131

If there is sufficient evidence to justify the decision, the

improper admission of evidence is no ground for reversal of

131 Makhan Akbar v. King Emperor, AIR 1948 Sind. 122.

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the decision, 132 especially when the accused is prejudiced

thereby133 or there is a failure of a justice134.

The impact of improper evidence on criminal cases is

discussed under following heads with case law :

1. Improper admission or rejection of evidence in

criminal cases

As regards the rejected evidence, the question under

Section 167 is not so much whether the evidence rejected

would not have been accepted against the other testimony

on the record as whether that evidence ought to have varied

the decision. Failure to examine material witness was
discussed in a case135 by the Apex Court.

It was clear from the record that the prosecution,

though it had cited certain person as a witness was not very

keen to examine him and when that person objected to give

evidence, the prosecution dropped him. Hon'ble Supreme

Court held that it is not a case in which evidence can be

said to have been rejected within Section 167 of the Indian

Evidence Act.136.

132 Nikaram v. State of HP, AIR 1972 SC 2077

133 Ram Yad Dusadh vs King Emperor, AIR 1926 Pat 211
134 Re Elahee Buksh (1866) 5 WR (Cr)80
135 Narayan v. State of Punjab, AIR 1959 SC 484.
136 Ibid.

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 Applicability of this provision was discussed in a

case. 137 There was refusal to summon defence witnesses

Question is whether accused has been prejudiced and not

whether there is rejection or acceptance of any proper or

improper evidence. Section 167 was not held to be attracted.

Another case is Mirza Akbar v. Emperor,138 where it

was held that improper admission or rejection of evidence is

no reason to set aside conviction if the rest of the evidence

is sufficient to justify conviction. Same view was held in two

other cases also.139

The Madras High Court in Purushottam Naidu v. S.N.

Ramaswami Iyer,140 took the view that if irrespective of the

improperly admitted evidence the decision is sustained by

sufficient evidence, the decision cannot be reversed merely

on the ground of the improper admission of evidence.

Rejection of evidence of eye-witnesses merely on the

ground of interestedness was held unreasonable by the

Mysore High Court. 141 Corroboration from an independent

witness cannot be expected when the incident is not

witnessed by any one in the neighbourhood in spite of the

137 ILR (1974) HP 796.

138 AIR 1940 PC 176.
139 Surendra Dina v. King Emperor, AIR 1949 Cal 514; Mirzarali Inayatali v. King
Emperor, AIR 1933 Bom. 266.
140 AIR 1925 Mad. 245.
141 1974 CriLJ 34 (Mys).

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complainant shouting for help. The trial Court was rightly

asked to examine the evidence or eye-witnesses on its

merits before rejecting it.

Where in a case evidence has been admitted which

ought not to have been admitted, the Privy Council held that
it is the duty of the Court to apply its mind to the question

whether after discarding the evidence improperly admitted,

there is left sufficient evidence to justify the conviction.142

Further, it may be submitted that Magistrate commits

a grave error in examining the accused person without his

request and against his protest as a Court witness to prove

a fact which the prosecution should have established by

other evidence. Though this act of the Magistrate is in direct

contravention of Section 315, Cr.P.C., it is no ground to

quash the entire proceedings in view of Section 167,

Evidence Act.143

Where besides the evidence, the credibility of which

was doubtful, there was much evidence to show that it was

accused who struck the fatal blow. The High Court was

entitled in appeal against acquittal of the accused of the

charge of murder, to act upon this evidence.144

142 Pulukuri Kottoyya v. Emperor, AIR 1947 PC 67

143 John v. Shertally Municipality, AIR 1959 Ker 323.
144 Chandulal Agarwal v. Khalilur Rehman, AIR 1950 PC 30.

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Appeal Against Conviction

Where two parties were charged for their attacks on

each other in the same occurrence and they were tried

separately at two distinct trials but the Court imported

considerations from one case into another, the Privy Council

rightly held that no interference with conviction was called

for.145

Originally the intention of the prosecution was to

charge the accused who belonged to the Communist Party

not only for the offence for which they were tried, but also

for the offence of waging war against the State. This was
ultimately abandoned. Held, that seeing that the

contemplated charge of waging war against the State was

abandoned, there was really no necessity for calling

witnesses to prove the earlier incidents that took place in

the locality where the offences were committed for the

purpose of elucidating the political views of the accused

persons. 146

It may also be submitted that the Court has no power

to decide the case on the residue of the evidence where the

objection to the conviction is not limited to improper

145 Maslat Khan v.King Emperor, AIR 1927 PC 26.

146 Kandan Narojanan v. State, AIR 1952 Travco 459: 1952 CriLJ 1592

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reception of evidence.147 Where a conviction was based on a

vast body of inadmissible evidence and hearsay thereby

causing grave injustice to the accused, their Lordships of

the Privy Council came to the conclusion that the conviction

should not be allowed to stand there being no reliable

evidence to warrant it.148

It can be said ordinarily that the High Court in revision,

will remand a case for a finding with reference to admissible

evidence only where the lower appellate Court being

competent to deal with the facts has not adopted the course
of ignoring evidence wrongly admitted and considering

whether there still remains enough evidence to support the

judgment.149

Where there was sufficient evidence on record, after

eliminating inadmissible evidence, to determine guilt of

accused still the case was sent back to trial Court for

decision for ends of justice, since the trying Magistrate had

advantage of seeing demeanour of witnesses.150

It is difficult to apply Section 167 to the wrong

exclusion of the evidence of a witness as the appellate

Courts can have no idea what witness is going to say. If

147 (1902) 25 Mad. 61.

148 Vaithnatha Pillai v. King Emperor, 1914 CrLJ 577 (PC).
149 Purushottama Naidu v. S.N. Ramaswami Iyer, AIR 1925 Mad. 245
150 Sudhinadra Nath v. State, AIR 1953 Cal. 339

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there is a document it is possible for the appellate Court to

judge what effect, if any, the admission or rejection of that

document would have on the result of the case.151

It may be said that the reception of even inadmissible

evidence is less injurious than the rejection of admissible

evidence. 152 It was observed in Makhan Akbar v. King

Emperor,153 that in order to entitle the accused to get the

conviction set aside on the ground of illegal rejection of

evidence the accused has to show that the admission of the

evidence would have varied the decision of the Court.

The Court is enjoined not to reverse the decision if the

residium of evidence is sufficient to justify the decision, or if

the decision would not have been; affected by the admission

of evidence improperly rejected.154

Appeal by special leave against conviction for murder

Appeal by special leave against the conviction for

murder is filed under Article 136 of Indian Constitution.

Many a time the lower Courts are found basing conviction

on the evidence inter alia on inadmissible record of

confession. The Supreme Court rightly did not interfere as

151 Crown Prosecutor v. C.V. Ramanujulu Naidu, AIR 1944 Mad. 169.
152 AIR 1953 Mys. 80.
153 AIR 1948 Sind 122.
154 (1877-78) 2 Bom 61.

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other evidence on record was sufficient to sustain conviction

after excluding the inadmissible confession.155

In this way, where the Judge improperly admitted and

treated the statements made by the witnesses before the

police as substantive evidence, the same would not affect

the mandate of the final judgment in view of Section 167 of

Indian Evidence Act.

2. Improper admission or rejection of evidence in trial

by jury — Re-trial.

Where inadmissible evidence has been admitted, there

are two points for consideration by a Court of appeal, firstly
whether the reception of the inadmissible evidence has in

fact occasioned a failure of justice, and secondly whether if

it is excluded there was sufficient evidence to justify the

verdict of the jury.

In a trial by jury, an improper admission of evidence

leads to the further result of some sort of a direction on that

evidence and whether that direction is improper or proper

the attention of the jury is directed to a piece of evidence,

which they are not entitled to consider at all. In the

circumstances the question of prejudice to the accused

arises particularly in a jury trial and Section 167, would not

155 Nikaram v. State of HP, AIR 1972 SC 2077.

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constitute a complete answer in a trial of that kind to such

improper admission of evidence.

In the case of a trial by jury when the verdict of the

jury is set aside on the ground of its being vitiated by a

misdirection or admission of inadmissible evidence, the

appellate Court has power either to convict or acquit the

accused accordingly as the evidence is or is not sufficient for

conviction.

Where inadmissible evidence has been admitted in trial

by jury, the High Court on appeal may after excluding such

evidence maintain a conviction provided the admissible

evidence remaining is, in the opinion of the Court, sufficient

to establish the guilt of the accused. The High Court is not

bound to order retrial in such cases.

Where admission of inadmissible evidence might have

seriously influenced the minds of the jury and made them

return an erroneous verdict, the High Court will set aside

the verdict and conviction and will try the case itself if it

appears that the decision of the jury might be influenced by

sympathy and pity for the deceased and her near relatives.

Under the provisions of Section 167 of the Indian

Evidence Act, misreception of evidence is not a ground for

interference.

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Improper admission of evidence in cases tried with the

aid of jury or assessors; procedures in appeal or

reference

It has been already noticed that this section is

applicable to cases tried with the aid of a jury.156 The verdict

of jury can be set aside on the ground of a misdirection if it

has occasioned a failure of justice. 157 The improper

admission of evidence implies a misdirection to the jury,158

therefore, where after excluding the inadmissible evidence,

there does not remain sufficient evidence to justify the
verdict, the conviction will be set aside and the accused

acquitted. 159 But where, after excluding the improperly

admitted evidence, there is other evidence sufficient to

justify the verdict, the verdict cannot, by reason of section

167, be set aside merely on the ground of improper

admission of evidence. 160 It has been held by the Privy

Council that where inadmissible evidence has been

admitted in a trial by jury, the High Court on appeal may,

after excluding such evidence, maintain a conviction,

provided the admissible evidence remaining is in the opinion

of the Court sufficient clearly to establish the guilt of the

156 Abdul Rahim v. Emperor, AIR 1946 PC 82 on appeal from AIR 1945 Lah. 105
(FB).
157 Section 465 of the Criminal Procedure Code.
158 Savlimiya Miyabhai v. Emperor, AIR 1944 Bom 338.
159 Ibid; Ramchandra Shankarshet Uravane v. Emperor, AIR 1933 Bom. 153.
160 Ibid; Nitai Koley v. Emperor 1939 ILR IC 337; Government of Bengal v. Santiram
Mandal, AIR 1958 Cal. 96.

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accused. The High Court is not bound to order retrial in

such cases. The improper admission of evidence is expressly

declared by this section not to be a ground of itself for a new

trial. The power of the High Court thus to dispose of the

case itself without ordering a retrial is not confined to

murder reference and appeals under section 449, Cr. P.C.161

It should, however, be remembered that the right of trial by

jury is a much cherished right in criminal cases,162 and a

Court, when considering the residue of the evidence under

this section after excluding the inadmissible evidence,

should bear in mind the fact that the trial was by jury, and

should not substitute its judgment for the verdict of the jury

by ignoring that fact. It should be present to the mind of the

appellate Court that the evidence improperly admitted might

have chiefly influenced the jury to return a verdict of guilty,

and the rest of the evidence, which might on paper appear

to the Court sufficient to support the conviction might have

been reasonably disbelieved by them in view of the

demeanour of the witnesses, or might have been regarded

by them, isolated from the foreign matter improperly

introduced, as wholly insufficient to justify an inference of

guilt.163 The right principle to adopt in such circumstances,

therefore, is “to ask ourselves whether we can feel certain

161 Abdul Rahim v. Emperor, AIR 1946 PC 82 on appeal from AIR 1945 Lah. 105.
162 Per Lord Herschell, LC in Makin v. Attorney-General for New South Wales, (1894)
AC 57.
163 Emperor v. Panchu Das, AIR 1947 Cal. 671

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that, on the residue of the evidence, a reasonable jury would

have brought in a verdict of guilty.”164 It follows from this

principle that a conviction cannot be upheld where the

Court is unable to say how far the jury or the assessors

were influenced by the improper admission of evidence, and

where it is probable that, if the inadmissible evidence had

not been placed before the jury, they might have looked at

the rest of the evidence in an entirely different light. 165

Where this appears to be the case, the proper course is to

set aside the conviction and order a retrial, if the

circumstances of the case so require.166 The case is outside

the purview of section 167 if, by the admission of a large

body of inadmissible evidence, the trial has taken a course

substantially different from that contemplated by law. 167

Thus, where in a trial by jury evidence very prejudicial to

the accused was wrongly admitted, but the Judge in his
charge to the jury told them to put the evidence out of their

minds entirely and to discard it, and the jury returned a

verdict of guilty, the conviction was set aside.168 Where facts

have to be determined, and the remaining evidence after

excluding the inadmissible evidence, is of such a character

without hearing the witnesses, a retrial is the proper

164 Ibid
165 King Emperor v. Mahabli Ram Sail, 1926 CriLJ 984.
166 Makin v. Attorney-General for New South Wales, (1894) AC 57.
167 C.G. Lloyed v. Emperor, AIR 1933 Cal. 136; 1934 Cri.LJ 294.
168 Ramesh Chandra Das v. Emperor, AIR 1946 Cal. 895

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course. 169 The section is applicable to the Court hearing

such reference, 170 and the residue of the evidence, after

excluding the inadmissible material, should be reviewed and

judged in the light of the principles indicated above.171 On

the other hand, if admissible evidence was wrongly rejected,

the Court hearing the reference should determine whether

the admission of the rejected evidence would have affected

the result of the trial, and the conviction should not be set

aside unless, the rejected evidence, if admitted would have

varied the result of the trial.172 Where in a case tried with

the aid of assessors evidence has been admitted which

ought not to have been admitted, it is the duty of the

ape1late Court to apply its mind to the question whether,

after discarding the evidence improperly admitted, there is

left sufficient evidence to justify the conviction.173

Where the evidence excluded by the Court is not a

piece of evidence but the main evidence in support of a

party’s case, and there is no evidence apart from the

rejected evidence, the Court is justified in ordering a fresh

hearing of the case.

169 Ramchandra Shankarshet Uravane v. Emperor, AIR 1933 Bom. 153.

170 Emperor v. Patrick Me Guire, 1904 CWN 433.
171 Emperor v. Panchu Das, AIR 1947 Cal. 671
172 Imperatrix v. Pitambar Jina, AIR 1902 Bom. 61.
173 Pulukuri Kottaya v. Emperor, AIR 1947 PC 67.

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 Even after the evidence which is inadmissible is made

admissible and brought on record at the retrial the evidence

is considered insufficient to warrant the conviction, then the

accused should be acquitted, and should not be subjected

to the needless ordeal of a retrial.

If the case was clearly made out by proper evidence in

such a way as to have no doubt of the guilt in the mind of a

reasonable man there could be no new trial in felony,

because some other evidence had been given which ought

not to have been received.

In order that an erroneous rejection of any evidence

may furnish a ground for ordering a new trial or reversing

the conviction, the accused has to show that the rejection of

the evidence was likely to affect the decision of the case.

In jury trials where inadmissible evidence which may

have had considerable effect on the mind of the jury has

been introduced it may be necessary and often is necessary

to set aside the verdict and order a retrial.

But where the effect of admission of large body of

inadmissible evidence is that the trial takes a course

substantially different from that contemplated by law the

case is out of purview of Section 167 and retrial can be

ordered.

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 If the appellate Court feels a reasonable doubt as to

what the verdict of the jury might be after the defect which

vitiated its verdict is removed, or when it is thought that

much depends upon the impression made upon the jury by

the witnesses and the accused in their statements, then the

proper course would be to order a re-trial.

Where the trial is with the aid of assessors the

proceedings relating to the inspection of site taken by the

Judge in the absence of the assessors must be held to be

void and illegal. The defect is not one which can be cured by
Section 465,Cr.P.C. or Section 167 of the Evidence Act.174

It is not open to the Court hearing the reference to

direct a new trial, but after rejecting the evidence improperly

admitted the Court should dispose of the case finally.

Assuming that the statement of the accused was

improperly held back by the Judge from the jury that would

not by itself be an omission of sufficient importance to

entitle the High Court in a reference made to it to hold that

the unanimous verdict of the jury had been improperly held.

In this way, improper admission or rejection of

evidence is not by itself a ground for reversal of a decision if

there is other evidence to support it. Where admissible

174 AIR 1951 Madh. B. 29.

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evidence has been improperly rejected or inadmissible

evidence has been admitted by Judge, such improper

reception or rejection of evidence shall not of itself be a

ground for new trial or reversal of any decision in any case

unless substantial wrong or mis- carriage of justice has

been thereby occasioned.

3. Misdirection to jury

Misdirection to jury is strictly not a case of improper

admission or rejection of evidence.

The term “misdirection” includes erroneous reception

or exclusion of evidence.

Where a Judge read to the jury statements taken

under Section 364, Criminal Procedure Code of persons to

whom pardons were tendered under Section 337 and

advised the jury not to act on the evidence of those persons,
if satisfied that they were accomplices and uncorroborated

but expressed a strong opinion that they were not

accomplices, it was held that there was improper reception

of evidence and misdirection to the jury, in fact though not

in form, calculated to prejudice the prisoner.

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4. Appeal against Acquittal

In appeal against acquittal, the powers of the High

Court are of widest amplitude as in appeals for convictions.

But two things should be taken in account175 -

(1) That in an appeal, the presumption of the innocence of

the accused continues right up to the end.

(2) Great weight should be attached to the view taken by

the Sessions Judge before whom the trial was held and
who had the opportunity of seeing and hearing the

witnesses.

The High Court has full power to review and reassess

the evidence on record and to reach its own conclusions

after estimation of evidence. But it is not enough for the

High Court on different views of the evidence unless there

exists substantial and compelling reasons for holding that

the trial was wrong176. There should be strong reasons for

reversing the view177.

An improper advice given by the judge to the jury upon

a question of fact, or the omission of the judge to give the

advice which a judge, in exercise of a sound judicial

discretion, ought to have given the jury upon question of

175 Wilayat Khan v. State of U.P., AIR 1953 SC 122
176 Ajmer Singh v. State of Punjab, AIR 1953 SC 76
177 Aher Raja Kohmia v. State of Saurashtra, AIR 1956 SC 217

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fact, amounts to an error in law to justify the High court on

appeal or revision, in setting aside a verdict of guilty.

In Mushtaq Husain v. State of Bombay, 178 the

Supreme Court came to the conclusion that, where a jury

has been misdirected and has based its verdict on

assumption and conjectures, the Court may order a re-trial

or remit the case to the High Court with a direction that it

should consider the merits of the case in the light of the

decision of the Supreme Court and say whether there has

been a failure of justice as a result of the misdirection, or it
may examine the merits of the case and decide for itself

whether there has been a failure of justice in the case, and

that, in deciding this issue the court has to take into

consideration the case as a whole.

Where the facts have to be determined and the

evidence is of such a character that it becomes difficult to

pronounce any opinion in its character without hearing the

witness, a new trial may be ordered179. Further, in cases of

wrongful exclusion of the evidence of the witness, this

section cannot be applied as appellate court cannot

articulate the statement of the witness. In cases where there

is a possibility for the appellate court to judge as to what

effect, if any, the admission or rejection of that document

178 1953 SCR 809
179 Ram Kishan v. State of Bombay, AIR 1955 SC 104.

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would have on the result of the case, one cannot often

estimate the effect of the admission of oral evidence180.

It has been said many a time that the Section 167 of

Indian Evidence Act applies to criminal cases also. It is only

when the High Court feels doubt that if one fact were not
there whether the opinion or decision of a certain authority

would have been the same that the High Court interferes

but where it is patently clear that there would have been no

other decision, in that event the extraneous circumstances

above would not vitiate the order.

In Narayan v. Sate of Punjab,181 where it is clear from

the record that the prosecution, though it had cited certain

person as witness was not very keen to examine him and

when that person objected to give evidence, the prosecution

dropped him; it is not a case in which evidence can be said

to have been rejected within Section 167 of Evidence Act. In

such a case the prosecution does not in fact tender the

person as a witness.

As regards rejected evidence, the question under

Section 167 is not so much whether the evidence rejected

would not have been accepted against the other testimony

180 Crown Prosecuter, Madras v. Ramanujulu Naidu, AIR 1944 Mad 169
181 AIR 1959 SC 484

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on the record as whether the evidence ‘ ought not to have

varied the decision’.

In John v. Shertally Municipality,182 where the court

examined the accused as a court witness against his protest,

to prove a fact which prosecution was bound to prove, it

was held that the act of the Magistrate was in direct

contravention of Section 315(1) Cr.PC. and the question of

correctness of the conviction should be examined by

eschewing the evidence of the accused, and there was no

ground to quash the entire proceedings in view of Section
167 of Evidence Act.

Mere exclusion of evidence by the trial court would not

be a sufficient ground for reversing the decree, unless the

appellate court comes to the conclusion that if the evidence

which was refused had been received, it would have varied

the decision.

In Madan Lal Chawla v. The Principal, Harcourt

Butler Technological Institute, Kanpur and others,183 the

trial court evidence was properly conducted in eleven

charges and the evidence was improperly conducted in one

charge. The trial court convicted the accused. In appeal, the

Sessions Judge reversed the decision of the trial court. On

182 AIR 1959 Ker 323

183 AIR 1962 All 166

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appeal, the Allahabad High Court set aside the judgement of

the Sessions Judge and upheld the conviction and held that

the appellate court would not have been justified in

reversing the finding if it had come to the conclusion that

apart from the charge there had been other charges which

were enough to justify the finding, and it is not every case in

which merely because something extraneous has been

taken into consideration that the High Court could

immediately upset the finding.

In Abdul Rahim v. Emperor,184 it has been held that

the appellate court must apply its own mind to the evidence

and after discarding what has been improperly admitted

decide whether what is left is sufficient to justify the verdict.

If the appellate court does not think that the admissible

evidence in the case is sufficient to justify the verdict then it

will not affirm the verdict and may adopt the course of

ordering a new trial or take whatever other course is open to

it. But the appellate court, if satisfied that there is sufficient

admissible evidence to justify the verdict, it is plainly

entitled to uphold it.

185
In Chhotka v. State, where statement of two

witnesses had been wrongly admitted under Section 288

Cr.PC. (old), it was held that it could not affect the verdict,
184 AIR 1946 PC 82
185 AIR 1958 Cal 482

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as other evidence of the eye- witness if believed, would have

sustained the charge. Hence the objection as to improper

admission of that evidence was of no avail.

In Kandan Narayanan v. State, 186 the accused was

originally charged for certain offences and also for the

offence of waging war against the State, which was later

given up by the prosecution. During evidence some evidence

was given to prove earlier incidents to bring out the political

views of the accused. It was held that the evidence could not
have prejudiced the accused, since the trial was concerned

only with the criminal acts done by the accused on the date

of occurrence. In such cases unnecessary evidence can be

excluded.

Application of evidence—improper admission or

rejection of evidence

In Election Appeals, while as a court of first appeal

there are no limitations on the powers of Supreme Court in

reversing a finding of fact or law which has been recorded

on a misreading or wrong appreciation of the evidence or

law, it would not ordinarily disregard the opinion formed by

the trial Judge who has recorded the evidence and who has

186 1952 Travco 459

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had the benefit of watching the demeanour of the witnesses

in forming first-hand opinion regarding their credibility.187

The legal position about appreciation of evidence in

trial court has been succinctly summed up by Supreme

Court188 as follows:

15. The golden thread which runs through the

administration of justice in criminal cases is that if two

views are possible, one pointing to the guilt of the

accused and the other to the innocence, the view

which is favourable to the accused should be adopted.

The paramount consideration of the court is to ensure

that miscarriage of justice is prevented. A miscarriage

of justice which may arise from acquittal of the guilty

is no less than from a conviction of an innocent.

16. The principle to be followed by the appellate court

considering an appeal against an order of acquittal is

to interfere only when there are compelling and

substantial reasons to do so. Thus, in such cases, this

Court would usually not interfere unless:

(i) The finding is vitiated by some glaring infirmity in

the appraisal of evidence.189

187 Pradip Buragohain v. Pranati Phukan, (2010) 11 SCC 108 approving Sarju
Pershad case, AIR 1951 SC 120; Gajanan Krishnaji Bapat, (1995) 5 SCC 347;
and P.C. Thomas v. P.M. Ismail, (2009) 10 SCC 239.
188 State of Rajasthan v. Islam, (2011) 6 SCC 343, at page 348.

116
 (ii) The finding is perverse.190

(iii) The order suffers from substantial errors of law

and fact.191

(iv) The order is based on misconception of law or

erroneous appreciation of evidence.192

(v) The High Court has adopted an erroneous

approach resulting in miscarriage of justice.193

(vi) Acquittal is based on irrelevant grounds.194

(vii) The High Court has completely misdirected itself

in reversing the order of conviction by the trial

court.195

(viii) The judgment is tainted with serious legal

infirmities.196

17. In reversing an acquittal, this Court keeps in mind

that presumption of innocence in favour of the accused

189 State of UP. v. Sahai, (1981) 1 SCC 352 at paras 20-22; AIR 1981 SC 1442 at
paras 19-21.
190 State of M.P. v. Bacchudas, (2007) 9 SCC 135 at SCC para 10; State of Punjab v.
Parveen Kumar, (2005) 9 SCC 769 at SCC para 9.
191 Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at 500 para 5.
192 State of U.P. v. Abdul, (1997) 10 SCC 135; State of U.P. v. Premi, (2003) 9 SCC
12.
193 State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 ; State of M.P. v. Paltan Mallah,
(2005) 3 SCC 169 at para 8.
194 Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297 at para 4.
195 Gauri Shanker Sharma v. State of UP, (1990) Suppi. SCC 656.
196 State of Maharashtra v. Narsingrao Gangaram Pimple, (1984) 1 SCC 446 at para
45 : AIR 1984 SC 63 at para 45.

117
 is fortified by an order of acquittal and if the view of

the High Court is reasonable and founded on materials

on record, this Court should not interfere. However, if

this Court is of the opinion that the acquittal is not

based on a reasonable view, then it may review the

entire material and there will be no limitation on this

Court’s jurisdiction under Article 136 to come to a just

decision quashing the acquittal.197

The principles of rule of law and due process are

closely linked with human rights protection. Such rights

can be protected effectively when a citizen has recourse to

the Courts of law. It has to be unmistakably understood

that a trial which is primarily aimed at ascertaining truth

has to be fair to all concerned. There can be no analytical,

all comprehensive or exhaustive definition of the concept of

a fair trial, and it may have to be determined in seemingly

infinite variety of actual situations with the ultimate object

in mind viz. whether something that was done or said either

before or at the trial deprived the quality of fairness to a

degree where a miscarriage of justice has resulted. It will

not be correct to say that it is only the accused who must be

fairly dealt with. That would be turning Nelson's eyes to the

needs of the society at large and the victims or their family

197 State (Delhi Admn.) v. Laxman Kumar, (1985) 4 SCC 476 at para 45 and
Dharma v. Nirmal Singh, (1996) 7 SCC 471 at para 4.

118
members and relatives. Each one has an inbuilt right to be

dealt with fairly in a criminal trial. Denial of a fair trial is as

much injustice to the accused as is to the victim and the

society. Fair trial obviously would mean a trial before an

impartial Judge, a fair prosecutor and atmosphere of

judicial calm. Fair trial means a trial in which bias or

prejudice for or against the accused, the witnesses, or the

cause which is being tried is eliminated. If the witnesses get

threatened or are forced to give false evidence that also

would not result in a fair trial. The failure to hear material

witnesses is certainly denial of fair trial.

Great philosopher Bentham said that the "witnesses"

are the eyes and ears of justice. If the witness himself is

incapacitated from acting as eyes and ears of justice, the

trial gets putrefied and paralysed, and it no longer can

constitute a fair trial. The incapacitation may be due to

several factors like the witness being not in a position for

reasons beyond control to speak the truth in the Court or

due to negligence or ignorance or some corrupt collusion.

Time has become ripe to act on account of numerous

experiences faced by Courts on account of frequent turning

of witnesses as hostile, either due to threats, coercion, lures

and monetary considerations at the instance of those in

power, their henchmen and hirelings, political clouts and

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patronage and innumerable other corrupt practices

ingenuously adopted to smoother and stifle truth and

realities coming out to surface rendering truth and justice,

to become ultimate casualties. Broader public and societal

interests require that the victims of the crime who are not

ordinarily parties to prosecution and the interests of State

represented by their prosecuting agencies do not suffer even

in slow process but irreversibly and irretrievably, which if

allowed would undermine and destroy public confidence in

the administration of justice, which may ultimately pave

way for anarchy, oppression and injustice resulting in

complete breakdown and collapse of the edifice of rule of law,

enshrined and jealously guarded and protected by the

Constitution. There comes the need for protecting the

witness. Time has come when serious and undiluted

thoughts are to be bestowed for protecting witnesses so that

ultimate truth is presented before the Court and justice

triumphs and the trial is not reduced to mockery. The State

has a definite role to play in protecting the witnesses, to

start with at least in sensitive cases involving those in power,

who has political patronage and could wield muscle and

money power, to avert trial getting tainted and derailed and

truth becoming a casualty. As a protector of its citizens it

has to ensure that during a trial in Court the witness could

safely depose truth without any fear of being haunted by

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those against whom he has deposed. Some legislative

enactments like the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (in short the 'TADA Act') have taken
note of the reluctance shown by witnesses to depose against

dangerous criminals-terrorists. In a milder form also the

reluctance and the hesitation of witnesses to depose against

people with muscle power, money power or political power

has become the order of the day. If ultimately truth is to be

arrived at, the eyes and ears of justice have to be protected

so that the interests of justice do not get incapacitated in

the sense of making the proceedings before Courts mere

mock trials as are usually seen in movies.

Legislative measures to emphasise prohibition against

tampering with witness, victim or informant have become

the imminent and inevitable need of the day. Conducts

which illegitimately affect the presentation of evidence in

proceedings before the Courts have to be seriously and

sternly dealt with. There should not be any undue anxiety to

only protect the interest of the accused. That would be

unfair as noted above to the needs of the society. On the

contrary, the efforts should be to ensure fair trial where the

accused and the prosecution both get a fair deal. Public

interest in the proper administration of justice must be

given as much importance if not more, as the interests of

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the individual accused. In this courts have a vital role to

play.

The Courts have to take a participatory role in a trial.

They are not expected to be tape recorders to record

whatever is being stated by the witnesses. Section 311 of

the Criminal Procedure Code and Section 165 of the

Evidence Act confer vast and wide powers on Presiding

Officers of Court to elicit all necessary materials by playing

an active role in the evidence collecting process. They have

to monitor the proceedings in aid of justice in a manner that

something, which is not relevant, is not unnecessarily

brought into record. Even if the prosecutor is remiss in

some ways, it can control the proceedings effectively so that

ultimate objective i.e. truth is arrived at. This becomes more

necessary where the Court has reasons to believe that the

prosecuting agency or the prosecutor is not acting in the

requisite manner. The Court cannot afford to be wishfully or

pretend to be blissfully ignorant or oblivious to such serious

pitfalls or dereliction of duty on the part of the prosecuting

agency. The prosecutor who does not act fairly and acts

more like a counsel for the defence is a liability to the fair

judicial system, and Courts could not also play into the

hands of such prosecuting agency showing indifference or

adopting an attitude of total aloofness.

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 The power of the Court under Section 165 of the

Evidence Act is in a way complementary to its power under

Section 311 of the Code. The section consists of two parts

i.e (i) giving a discretion to the Court to examine the witness

at any stage and (ii) the mandatory portion which compels

the Court to examine a witness if his evidence appears to be

essential to the just decision of the Court. Though the

discretion given to the Court is very wide, the very width

requires a corresponding caution. In Mohan Lal v. Union of

India197a, apex Court has observed, while considering the

scope and ambit of Section 311, that the very usage of the

word such as, 'any Court' 'at any stage', or 'any enquiry or

trial or other proceedings' 'any person' and 'any such

person' clearly spells out that the Section has expressed in

the widest possible terms and do not limit the discretion of

the Court in any way. However, as noted above, the very

width requires a corresponding caution that the

discretionary powers should be invoked as the exigencies of

justice require and exercised judicially with circumspection

and consistently with the provisions of the Code. The

second part of the section does not allow any discretion but

obligates and binds the Court to take necessary steps if the

fresh evidence to be obtained is essential to the just decision

of the case - 'essential', to an active and alert mind and not

197a
1991 Supp (1) SCC 271

123
to one which is bent to abandon or abdicate. Object of the

Section is to enable the Court to arrive at the truth

irrespective of the fact that the prosecution or the defence

has failed to produce some evidence which is necessary for

a just and proper disposal of the case. The power is

exercised and the evidence is examined neither to help the

prosecution nor the defence, if the Court feels that there is

necessity to act in terms of Section 311 but only to subserve

the cause of justice and public interest. It is done with an

object of getting the evidence in aid of a just decision and to

uphold the truth.

The fair trial for a criminal offence consists not only in

technical observance of the frame and forms of law, but also

in recognition and just application of its principles in

substance, to find out the truth and prevent miscarriage of

justice.

A criminal trial is a judicial examination of the issues

in the case and its purpose is to arrive at a judgment on an

issue as a fact or relevant facts which may lead to the

discovery of the fact issue and obtain proof of such facts at

which the prosecution and the accused have arrived by their

pleadings; the controlling question being the guilt or

innocence of the accused. Since the object is to mete out

justice and to convict the guilty and protect the innocent,

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the trial should be a search for the truth and not a bout

over technicalities, and must be conducted under such

rules as will protect the innocent, and punish the guilty.

The proof of charge which has to be beyond reasonable

doubt must depend upon judicial evaluation of the totality

of the evidence, oral and circumstantial and not by an

isolated scrutiny.

The power of the Court under Section 165, Indian

Evidence Act is complimentary to its power under Section

311, Criminal Procedure Code. 198 It was observed in

Himanshu Singh Sabharwal v. State of M.P. 199 that the

discretion to examine witnesses under Section 311 of

Criminal Procedure Code is though very wide, but the very

width requires corresponding caution. Section 311 enables

198 Section 311 Cr.P.C. : "Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person its a witness, or examine any
person in attendance, though not summoned as a witness, or recall and re-
examine any person already examined; and the court shall summon and
examine or recall and re-examine any such person if his evidence appears to it to
be essential to the just decision of the case".
Section 165 Indian Evidence Act : "The Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases, in any form, at any
time, of any witness, or of the parties, about any fact relevant or irrelevant; and
may order the production of any document or thing; and neither the parties nor
their agents shall be entitled to make any objection to any such question or
order, nor, without the leave of the Court, to cross-examine any witness upon
any answer given in reply to any such question: Provided that the Judgment
must be based upon facts declared by this Act to be relevant, and duly proved:"
Provided also that this section shall not authorize any Judge to compel any
witness to answer any question, or to produce any document which such
witness would be entitled to refuse to answer or produce under sections 121 to
131, both inclusive, if the questions were asked or the documents were called for
by the adverse party; nor shall the Judge ask any question which it would be
improper for any other person to ask under section 148 or 149; nor shall he
dispense with primary evidence of any document, except in the cases
hereinbefore excepted."
199 AIR 2008 SC 1943

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any Court to any stage of any inquiry, trial or after

proceeding to do one of thee things, (i) to summon any

person as a witness; (ii) to examine any person who is in

attendance though not summoned; or (iii) to recall and re-

examine any person already examined. So far this section is

permissive. But where the evidence of any person appears to

be essential to the just decision of the case, it is obligatory

on the Court to summon and examine or re-call and re-

examine them. This provision applies to witnesses for the

prosecution as well as to those of the defence.200

The Supreme Court has held that the Court has

inherent power to recall a witness, if it is satisfied that he is

prepared to give evidence which is materially different from

what he had given at the trial.201 It is not proper exercise of

direction of the Court to allow evidence explaining the delay

in the lodging of the FIR to be recorded after the accused

had closed their defence, and more so, when the proposed

witness was already listed in the original list of witnesses

filed by the prosecution, but given up by the Public

Prosecutor.202 Recalling investigating officer after the closure

of the evidence to produce or prove the disclosed statements

200 Hansraj, AIR 1942, Nag. 333.
201 Hussain Umar v. Dalipsinghji, AIR 1970 SC 45. Ram Deo Sharma v. State of
Bihar, AIR 1999 SC 3524, Directions for speedy trial of criminal cases were given
in the main judgment in Ram Deo Sharma v. State of Bihar, AIR 1998 SC 3281 :
1998 AIR SCW 3208 : 1998 CrLJ 4596. Some clarification which became
necessary about those guidelines was provided in above cited second case and
the Supreme Court directed that those guidelines be implemented forthwith.
202 Piara Singh v. State of Punjab, 1978 Cr LJ 771 (P&H).

126
was held not to be essential for a just decision.203 Where in

a police-initiated case, the trial Judge had refused to recall

a witness, and the informant went in revision against the

refusal order, it was held that the revision was maintainable

even if the case was instituted by the police. The High Court

accepted the prayer of recalling the witness.204 In a murder

case, a few days after the examination of P.W.I., the defence

moved for recalling the witness on the ground that he had

written a letter expressing ignorance about the murder, the

High Court confirmed the Sessions Judges order rejecting

the application as it appeared to have been moved only to

cause delay.205

In an another case206 witness was examined and cross-

examined before a Magistrate. Subsequently, he gave

inconsistent evidence before a Juvenile Court where one of

the accused was being tried. An application was made

before the Magistrate to resummon him for cross-

examination about his statements in the Juvenile Court.

The Court did not allow the application. The Court said that

the section is not limited only to the benefit of the accused.

203 Chandran v. State of Kerala, 1985 Cr LJ 1288 (Ker).

204 Mukund Dev Baral v. Sanjib Baral, 1992 Cr LJ 3048 (Ori).
205 Shyam v. State of M.P., 1995 Cr LJ 3598 (MP) ; M Abbas Dakshina Kannadas v.
State of Karnataka, 1996 Cr LJ 317 (Kant), non-production of an injured eye-
witness, effect.
206 Hanuman Ram v. State of Rajasthan, AIR 2009 SC 69 : (2008) 15 SCC 652.

127
The determinative factor for exercise of the power is to see

whether it is essential to a just decision in the Case.

In the matter of summoning of material witnesses, the

section creates wholly a discretionary power. The discretion

thus conferred is to be exercised judiciously.207

The case of Himanshu Singh Sabharwal v. State of

MP,208 related with transfer of trial outside the State, as the

petitioner's father was killed by student leaders having

nexus with the ruling political party. Petitioner's father was

a Professor at Ujjain. Where he took some rigid stand in the

college elections. He was assaulted in the presence of

several police officials, media persons and the public. The

Professor died. During the course of trial, the eye witnesses

and even police witnesses resiled from their earlier
statements. The Public Prosecutor did not cross-examine

them. The petitioner being son of the deceased Professor,

sought transfer of the trial alleging that the trial Court also

did not act as was required under the law. The State being

represented through Senior Advocate Soli Sorabjee raised no

objection for transfer of the trial under Section 406 of

Criminal Procedure Code to some other State (i.e. from

Sessions Court, Ujjain to Session Court, Nagpur).

207 Zahira Habibullah Sheik v. State of Gujarat, AIR 2006 SC 1367 : (2006)3 SCC
374 : 2006 CriLJ 1697.
208 AIR 2008 SC 1943

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 Speaking through Dr. Arijit Pasayat and

P.Sathasivam, JJ. the Hon'ble Supreme Court realised that

the grievance of the petitioner was that the witnesses have

been coerced, threatened and ultimately justice is a

casualty. Role of the investigating officer gave ample scope

to doubt impartiality and the sincerity of the investigating

agency. Similar was the position of the Public Prosecutor

and the trial Court. Therefore, the apex court rightly ordered
for transfer of the case to outside State.

Similarly a petition was filed by the Seer of Kanchi

Muth who was charged with murder conspiracy. The Chief

Minister made the press statement that investigation

revealed involvement of the petitioner Shankaraman murder

case. The petitioner had already been arrested and that fact

created a lot of publicity. The statement of the Chief

Minister on the floor of the House was held as not

amounting to condemnation of the petitioner. It could not be

a ground for transfer of the case. But other causes creating

the need for transfer were found to be there. One of them

was the conduct of the prosecution machinery in prompting

a witness to make totally false allegations against the senior

defence counsel which would have made it impossible for

him to function fearlessly and in proper manner. A false and

fabricated case was also lodged against junior defence

129
lawyers. The second cause necessitating transfer was the

action of the special investigation team in issuing direction

for freezing the accounts of the Mutt in banks merely

because the accused was the head of Mutt. It was a clear

pointer to the fact that the State machinery anyhow wanted

to paralyse the entire working of the Muth and associated

trusts and endowments thereby creating a fear of psychosis

in public mind as well as in the minds of the accused

persons. The third cause which justified transfer was that

soon after grant of bail by the Supreme Court to the Seer, a

detention order was passed against 16 coaccused. This was

a clear pointer to the fact that the State wanted to put them

under complications. Prosecution was also launched against

prominent politicians and journalists merely because they

had spoken against the arrest of the Seer, thus violating Art.
19 of the Constitution. The case was transferred to

Pondicherry to overcome any language problem.209

Recently there was a corruption case were instituted

against petitioners at Delhi pursuant to searches made at

their houses in New Delhi and Thane. The petitioners were

husband and wife. The husband was serving in Gujarat as

Assistant Commissioner, Central Excise and Customs and

the wife was a Chartered Accountant practicing in

209 Jayendra Saraswathy Swamigal v. State of Tamil Nadu, AIR 2006 SC 6 : (2005) 8
SCC 771 : 2005 Cri LJ 4626.

130
Maharashtra, charge sheet was submitted, in the case and

out of 92 witnesses, 88 were from Maharashtra. On the

point of transfer of the case from New Delhi to Maharashtra,

the Supreme Court held that the case was not Delhi centric

and travelling of witnesses and the parties all the way to

Delhi would cause delay in the trial. Moreover, the

prosecuting agency is fully equipped with an office at

Bombay and court handling CBI cases is established there.

Therefore, in view of the above a facts, the Supreme court

directed the transfer of the case to the Court of Special

Judge,, CBI, Thane.210

The decision in Prof. Sabharwal's murder case was

delivered in July 2009 by Additional District Session's

Judge, Nagpur acquitting all the six accused, due to lack of

proof. Inspite of transfer of the case to the other State, the
accused could not be convicted as the prosecution

miserably, failed. 211 The height of injustice was that after

two weeks petitioner's friend, a witness was killed through

contract killers.212

210 Mrudal M. Damle v. CBI, New Delhi, AIR 2012 SC 2141 : (2012)5 SCC 706 :
(2012) 2 SCC (Cri) 735 [Abdul Nazar Madani v. State of Tamil Nadu, AIR 2000
SC 2293 : (2000)6 SCC 204 : 2000 Cri LJ 3480; Shree Baidyanath Ayurved
Bhawan Pvt. Ltd. v. State of Punjab, (2009) 9 SCC 414 : 2009 Cri LJ 4107 (SC);
Mrs. Sesamma Phillip v. P. Philip, AIR 1973 SC 875 : (1973) 1 SCC 405, Foll.]
211 Times of India dated 14.07.2009.
212 Times of India dated 26.07.2009.

131
 The Hon'ble Supreme Court Judges rightly observed in

the Himanshu Sabharwal case that right from the inception

of the judicial system it has been accepted that discovery,

vindication and establishment of truth are the main

purposes underlying existence of Courts of justice. The

operating principles for a fair trial permeate the common

law in both civil and criminal contexts. Application of these

principles involves a delicate judicial balancing of competing

interests in a criminal trial, the interests of the accused and

the public and to a great extent that of the victim have to be

weighed not losing sight of the public interest involved in

the prosecution of persons who commit offences.

It was further observed that long back in 1846, in a

judgment which Lord Chancellor Selborne would later

describe as "one of the ablest judgments of one of the ablest

judges who ever sat in this court". Vice-Chancellor Knight

Bruce said:

"The discovery and vindication and establishment of

truth are main purposes certainly of the existence of Courts

of Justice; still, for the obtaining of these objects, which,

however valuable and important, cannot be usefully

pursued without moderation, cannot be either usefully or

creditably pursued unfairly or gained by unfair means, not

every channel is or ought to be open to them.

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 The practical inefficacy of torture is not, I suppose, the

most weighty objection to that mode of examination.. Truth,

like all other good things, may be loved unwisely - may be

pursued too keenly - may cost too much."

The Vice-Chancellor went on to refer to paying "too

great a price... for truth". This is a formulation which has

subsequently been frequently invoked, including by Sir

Gerard Brennan. On another occasion, in a joint judgment

of the High Court, a more expansive formulation of the

proposition was advanced in the following terms: "The

evidence has been obtained at a price which is unacceptable

having regard to prevailing community standards."

Restraints on the processes for determining the truth

are multi-faceted. They have emerged in numerous different
ways, at different times and affect different areas of the

conduct of legal proceedings. By the traditional common law

method of induction there has emerged in our jurisprudence

the principle of a fair trial, which is the need of hour.

133