SC: Section 106 of Evidence Act must be considered with common sense

The Hon’ble Supreme Court, on 24th April 2020, in the matter of Arvind Singh vs. State of Maharashtra pronounced that Section 106 of the Indian Evidence Act must be considered in a common sense 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.

The Hon’ble Supreme Court observed that:

A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is; or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross- examined to bring forth inconsistencies, discrepancies and to prove the untruthfulness of the witness. (Para 56)

Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. (Para 59)

The prosecution is required to bring home the guilt beyond reasonable doubt. It is open to an accused to raise such reasonable doubt by cross-examination of the prosecution witnesses to discredit such witness in respect of truthfulness and veracity. However, where the statement of prosecution witnesses cannot be doubted on the basis of the touchstone of truthfulness, contradictions and inconsistencies, and the accused wants to assert any particular fact which cannot be made out from the prosecution evidence, it is incumbent upon the accused to cross-examine the relevant witnesses to that extent. The witness, in order to impeach the truthfulness of his statement, must be cross- examined to seek any explanation in respect of a version, which accused wants to rely upon rather to raise an argument at the trial or appellate stage to infer a fact when the opportunity given was not availed of as part of fair play while appreciating the statement of the witnesses. A party intending to bring evidence to impeach or contradict the testimony of a witness must give an opportunity to explain or answer when the witness is in the witness box. (Para 63)

Some may quit from the conspiracy but all of them would be treated as conspirators. (Para 73)

The common intention requires a pre-arranged plan and prior concert. Thus, there must be prior meeting of minds. The common intention must exist prior to the commission of the act in a point of time. (Para 73)

Merely because an accused was physically separated from co-conspirator either before or after the death of the victim will not absolve him. (This inference has been drawn on the basis of Para 74)

To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 IPC will be attracted as it essentially involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 IPC cannot be invoked. (Para 75)

In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. (Para 75)

Section 106 of the Indian Evidence Act 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. (Para 77)

When the prosecution has proved the act of kidnapping and the last seen evidence soon before the approximate time of death of victim. Therefore, the prosecution has discharged the onus of proof beyond reasonable doubt. It was then for the accused to rebut the presumption of any other intervening fact before the death of the victim. (Para 81)

In terms of Section 27 of the Evidence Act, the discovery of facts alone is admissible evidence when the accused is in police custody. The manner of killing is inculpatory and, therefore, not admissible in evidence. (Para 85)

An accused, is required to cross-examine the prosecution witnesses to give him an opportunity to make any explanation which is open to him. It is a rule of professional practice in the conduct of a case. However, in the absence of any cross-examination of the prosecution witnesses, an argument cannot be built, in the absence of any evidence to that effect.(Para 87)

The kidnapping of a victim of a tender age for ransom has inherent threat to cause death as that alone will force the relatives of such victim to pay ransom. (Para 92)

Court has increasingly become cognizant of “residual doubt” in many recent cases which effectively create a higher standard of proof over and above the “beyond reasonable doubt” standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irre – versibility of death”. (Para 94)

There is no merit in the argument that being young or having no criminal antecedents are mitigating circumstances. (Para 95)

Copy of judgement: Judgement_24-Apr-2020

-Adv. Tushar Kaushik 

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