RAJIV GANHI NATIONAL UNIVERSITY OF LAW

CRIMINAL PROCEDURE CODE 1973

PROJECT
CARDINAL PRINCIPLES OF LAW OF EVIDENCE

SUBMITTED TO DR MANOJ SHARMA

SUBMITTED BY SUKHRAJ BHATTI
ROLL NUMBER 19014

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INTRODUCTION

Cardinal principles of law of evidence in India are the fundamental principles of recording the
evidence. the first and the foremost cardinal principle is to find the truth of the matter in issue
by the way of finding the best evidence.

There are number of rules that help in achieving this objective. “Panchsheel” principles aka
golden principles of appraisal of circumstantial evidences.

The facts alleged as the basis of any legal inference shall be clearly proved and beyond
reasonable doubts. they shall relate to the “Factum Probandum” i.e., fact in issue. in simple
terms, it states that various facts or circumstantial evidence’s when put together shall result into
one and only one hypothesis and that is the guilt of accused in a criminal case and even in
certain civil suits.

If there is a slightest doubt about that hypothesis, accused is given the benefit of the doubt and
will be acquitted. All the circumstantial evidence put together should result in just one and only
inference.

If there are 2 hypotheses, the chain of circumstantial evidence is not complete. This rule is
related to the rule of the best evidence.

Sir Alfred Wills in his book ‘Circumstantial Evidence’ has laid the 5 Principles namely-

1. The facts alleged as the basis of any Legal Inference shall be clearly proved and
beyond reasonable doubts. They shall be connected with the “Factum Probandum”
i.e., Fact in Issue.
2. Burden of proof is always on a party who asserts a fact which infers legal
accountability.
3. In all cases, the best evidence must be produced which the nature of the case admits.
4. In order to justify the inference of the guilt, the inculpatory facts (which go against the
accused) must be incompatible with the innocence of the accused and must be
incapable to the hypothesis other than guilt of the accused.

5. If there is any reasonable doubt regarding guilt of the accused, then court shall acquit
him and he has the legal right to be acquitted.

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These points have formed the basis of ample of judgements in India.

For instance, in Sharad Birdhichand Sharda v state of Maharashtra, 1984, Supreme Court,
held that “the facts so established should be consistent with only one hypothesis and that is
the guilt of the accused, and they should not be explainable of any other hypothesis”.

These points were similar to from a previous judgement of Shivaji Saharao Babade v state of
Maharashtra, 1973, supreme court, which held that the duty of the prosecution is to Eleva its
case from realm of ‘maybe true’ to ‘must be true’ in regards to the guilt of the accused.

The 5 golden principles of circumstantial evidence given in Sharad Bhirdichand Sharda case
were reiterated (repeated) in Ramesh Basu Chauhan v State of Maharashtra, 2019, supreme
court.

CARDINAL (Best Evidence) PRINCIPLES-

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 • Relevant facts and facts in issue shall be duly proves to the satisfaction of the
court

(Proviso to section 165 Indian evidence act 1872)

Section 165 states that a judge may ask any question as he pleases, in any form, at any
time, of any witness, or of parties about any fact relevant or irrelevant; and may order
production of any document or thing.
Although the proviso clearly states that the judgement shall be based on relevant facts
and duly proved.
There is an apparent contradiction between the main part of the section and its
proviso. Although, when given a purposive interpretation and harmonious
construction, it can be observed that there is actually no contradiction rather it is
expressly declared in the main para of the section that the purpose of asking those
questions is to discover the proper proof of the relevant facts. Judge has power to ask
questions on relevant and irrelevant facts therefore its all about finding the truth only,
finding the reliability of certain facts

Implications of proviso 1 of section 165-

1. It is the duty of the court to base the judgement only on relevant facts.

2. Duty on parties to prove evidences only on relevant facts.

3. Implicit right of a party to prove evidence on relevant facts.

4. Duty of court to ensure that said relevant facts are duly proved.

In Ritesh Tiwari v state of Uttar Pradesh 2010 supreme court, it was held that every trial is a
voyage of discovery in which truth is the question. Section 165 is directly connected to rule

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of best evidence i.e., end is more important than means. There is a constitutional essence in
this section. It makes the evidence of parties more intelligible.

• The evidence to prove relevant fact and fact in issue shall be admissible.

Section 5 and 136.

In section 136, the judge has discretion to deem the fact relevant or to allow the
parties to prove if is relevant and how it is relevant and then decide with it judicial
mind

Para 2 of the section says fact 2 will be necessary to be proved before court allows
fact1 to be given evidence about it.

Relevancy of fact1 depends upon the existence of fact2

If party gives undertaking that they will prove fact2 first then prove fact1 and if the
court is satisfied with the said undertaking, court may allow it.
Section 136 para 1 gives general rule of admissibility of evidence while para 2 is
specific application of para f1 is admissible only if fact2 is proved.

Example illustration A- Statement was made by a person. He is dead now. The

statement itself if fact1 and him being dead is fact 2. Relevancy of fact1 depends upon
the reliability and admissibility of fact2.
Although an undertaking can be given but that ion the courts discretion to allow it or
not.

Court held that this process ‘saves the time of court at the trial stage.’

• Hearsay evidence shall be excluded (section 60)

Elements-
-Definition under section 3

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-Interpretation under section 59
-Oral evidence not be outrightly discarded
-Falsus in uno falsus in omnibus

What should be the approach of court regarding trustworthiness of oral evidence?

1. Oral evidence is subjected to cross examination

2. There is no general presumption that witness is lying or is saying the truth.
3. Court has powers to question the witness (s165)
4. The demeaner of the witness must also be tested i.e., the body language and
other traits.
5. Court does 2 types of examination-
Intrinsic and extrinsic-
-Intrinsic means within. It is don by cross examination, examining the
demeaner, questions under section 165 etc.
-Extrinsic means external factors. It is done in light of other relevant facts,
circumstantial evidences i.e., whether and how the statement of a witness is in
line with other relevant facts. If its not in line, witnesses’ testimony is false or
other relevant fact is false.

-Falsus in uno Falsus in omnibus

If any statement is false in some part, then it will be deemed to be false in
totality
Although this principle is applicable in United Kingdom and not in India.
In United Kingdom the whole of the testimony is rejected, in India, an orology
cane be drawn with the blue pencil rule of the law of contracts 1872. Court
will see if there is the element of severability in the statement and if there are,
false part will be rejected and the true part of the statement if severable, maybe
partly made effective, admissible, and relied upon.

In Nisar Ali v state of Uttar Pradesh, 1957, Supreme Court, it was held that
court has to sift the grain from the chaff i.e., it has to separate

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 On the other hand, court has to be cautious with the true part as well. There is
always a fringe of embroidery tom a story. Hence it is the courts duty to
remove the falsehood of the story of any witnesses’ testimony.

The cardinal principle is not hearsay evidence as such. Hearsay evidence is

just defining a category of evidence. Rather the cardinal principle is principle
of exclusion or inadmissibility of hearsay evidence.
The fact that witness has not perceived it, rather heard someone else make the
testimony inadmissible.

Reasons as to why hearsay evidence is inadmissible are stated in kalyan kumar

gogoi v ashutosh agnihotri 2011 Supreme Court, 2 judge bench, delivered by
hon’ble Panchal justice
-States that
(a) Hearsay evidence is second-hand evidence. It is susceptible to personas
and fancies and whims of the witness.
(b) There are always chances of improvisations which may result into fraud
being committed by the witness.
(c) Witness who gives hearsay evidence will not be fully responsible to give
the truth as he has perceived it himself
(d) Giving oath to such a witness will be futile and infructuous.

If hearsay evidence is given then effective cross examination cannot be

done and that will be violation of the principle of natural justice. It will be
unfair and unreasonable. This will further result into defeat of essential
principle of the Indian constitution and thus basic structure of the
constitution will get violated and also the cardinal principle of best
evidence will be defeated.

Ultimately, every law has to stand the scrutiny of basic structure of the
constitution of India.

• Documentary evidence will exclude oral evidence (section 91, 92, 99, 59)
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 S91-
Documentary evidence can be called intrinsic evidence and oral evidence can be
called extrinsic. Any transaction is documented so as to create a record of the
transaction and to create a perpetual memory of the document.
Rule of exclusivity is that the fact or transaction can only be proved by the document
itself, not by oral evidence.
Conclusively rule/ principle means that once the document is proved, it will be
conclusive with respect to the matter or transaction and oral evidence cannot be given.

S92-
Although in some cases, alteration or variation can be allowed to be proved by oral
evidence, even when the document is already proved. These situations are based upon
the sound principles of equity, justice and good conscience.
It says the opposite, i.e., the variation or alteration also has to be proved by document
only, but the proviso provides an exception which is discretionary.

In Godhara electricity company v state of Gujarat, 1975, Supreme Court, talked about
surrounding circumstances of evidences-
- Statement of parties.
- Conduct of the parties- Conduct maybe previous, subsequent or contemporaneous
conduct.

• Primary evidence will exclude secondary evidence (S62, S63, S65)

Primary evidence means the document itself is to be produced for the inspection of
the court. The contents of the documents may be proved either by primary or
secondary evidence.

Secondary evidence includes xerox copies of the originals, oral accounts etc.

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 Section 65 provides for cases in which secondary evidence relating to documents may
be given otherwise the general rule under section 64 is documents must be proved by
primary evidence only with exceptions of s65.

• Special powers of the court to extract best evidence

(S165 Indian evidence act, 1872; 311 & 313 Criminal procedure code,1973; order18
rule17, order16 rule14 Civil procedure code,1908)

-S311 Crpc,1973, is for summoning and resummoning of the witnesses.

-Order16 rule14, order18 rule 17 Civil procedure code, 1908 is also for the similar
intents and purposes.

-S165 Indian evidence act,1872 is for the courts powers to ask the witness questions.

-Cpc gives powers to court to Suo moto call Court Witness and Suo moto resummon/
recall every witness i.e., PW, DW, CW.

-S311 Crpc, 1973 is to be read as complementary to S 165 of the Indian evidence act,
1872.

• Conclusion

In a nutshell, we can observe from the above discussion that all the cardinal principles of the
Indian evidence act 1872 relate to only one rule and that is the rule of “best evidence”.
Almost every provision in any law is subject to exceptions and these exceptions exist as they
are essential for a just decision of the case. So that the court can base its decision on the
constitutional and the jurisprudential essence of the law.
The purpose of any law is to enable the court to do complete justice in a case.
As said by the famous jurist’s “procedure is the hand maid of justice”