CHAPTER-I

INTRODUCTION

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 The law of evidence is the most important branch of

adjective law. It is to legal practice what logic is to all

reasoning .Without it, trials might be infinitely prolonged to

the great detriment of the public and the vexation and

expense of litigants. It is by this that the judge separates the

wheat from the chaff among the mass of facts that are

brought before him, decides upon their just and mutual

bearing, learns to draw correct inferences from

circumstances, and to weigh the value of direct testimony. It

is by this guide that he is able to tread his way with safety

among the burning ploughshares of perjury, forgery and

fraud that beset his footsteps, and to rest his judgment on a

basis of probabilities at least comparatively satisfactory to

his own mind.

The Indian Evidence Act codifies the rules of English

law of evidence with such modification as are considered

necessary by the peculiar circumstances of our country. The

main object of Indian Evidence Act was to prevent laxity in

the admissibility of evidence, and to introduce a more

correct and uniform rule of practice that was previously in

vogue. The Evidence Act is not intended to do more than

prescribe rules for the admissibility or otherwise of evidence

on the issues as to which the courts have to record findings.

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Section 167 and its Scope

Section 167 of the Indian Evidence Act provides 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.

There are always chances for honest errors or

harmless omissions or innocent irregularities to creep in at

any trial or proceeding. If such activity 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 of the proceeding.

One example of such failure of justice is that of Prof.

H.S. Sabharwal who was allegedly beaten to death at Ujjain

in August 2006 by six ABVP activists. The Professor’s son

Himanshu successfully petitioned the Supreme Court 1 for

transfer of the case outside the State of MP where BJP is the

ruling party. The case was heard by Sessions Judge of

1 . Himanshu Singh Sabhanwal v. State of M.P., Transfer Petition No. 175 of 2007,
decided by the Supreme Court on 12/03/2008 ordering for transfer of murder
case of Petitioner’s father from the Sessions Court Ujjain to Nagpur (AIR 2008
SC 1943).

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Nagpur who acquitted all the accused on 13.7.2009. The

Sessions Judge has noted in his judgment that the accused

might be guilty, he could not convict them because of lack

of evidence.

Therefore, a need has been felt to widen the scope of

section 167 of our Evidence Act so as to avoid the chances

of failure of justice at any stage of the trial or a proceeding.

When an appeal is grounded for the improper admission

and rejection of evidence, the burden of proof is on the

appellant to prove that there was not only improper

evidence or exclusion but there was also a miscarriage of

justice being done by such an act. Section 167 is equally

applicable to both civil as well as criminal cases.

Impact on Civil Cases

In Civil Cases, it is evident ipso facto that where there

is ample evidence to justify decision irrespective of the

admission or rejection of evidence, there is no need for a

new trial. Section 167 of Indian Evidence Act, 1872 also

deals with ‘reversal of judgment’ which has been

emphasized here. This shows the applicability of the section

to appeals, when appeals are preferred for reversal of

decisions and to which court of appeal has power to reverse.

The Code of Civil Procedure does not provide directly for a

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new trial in civil cases but it has been given indirectly

though the following provisions:

1) Order 41, Rule 23 provides for remand.2

2) Order 47 of the Code provides for review:

a) Order 47, Rule 8 says that when an application

for review of judgment is granted, the court may

at once rehear the case or make such order in

regard to the rehearing as it thinks fit.

b) Order 47 , Rule 4 requires strict proof for review.

A pure question of law can be raised even without

pleading. However, if the finding recorded by the lower court

can be sustained on other materials on the record, the

judgment of the Lower court is not to be set aside as

ordained by section 167, Evidence Act3.

When an objection is raised in the form of appeal, it

can take the shape of the following two forms:

2 Remand of case by Appellate Court:- Where the Court from whose decree an
appeal is preferred has disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate court may, if it deems fit, by order
remand the case, and may further direct what issue or issues shall be tried in
the case so remanded, and shall send a copy of its judgment and order to the
Court from whose decree the appeal is preferred, with directions to re-admit the
suit under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original trial
shall, subject to all just exceptions, be evidence during the trial after remand.
3 Sir John Woodroffe & Syed Amir Ali’s Law of evidence, 17th Edi.,Lexis Nexis
Publications , IVth Vol. p. no.6273

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1) First Appeal:- In this regard reference to the case of

Mohur Singh v. Ghuriba, 4 will give a clear view in

this context. The Court in this case said that the court

which is sitting in first appeal is competent to deal

with facts and law when evidence has been improperly

admitted by the court of first instance. Further, it

should throw aside the evidence which ought not to

have been admitted, and then consider whether the

evidence which is to be thrown aside is wholly relevant

to support it, the decision must be reversed. The rule

in England is that, unless the opposite party objected

to this evidence at the time when it was offered, he

cannot object it afterwards5.

2) Second Appeal – The wrongful reception or rejection of

evidence is an error of law, and as such may be made

the ground for second appeal. If appellate court is of

the opinion that the rejected evidence, if allowed,

would have varied the decision, it does not follow that

such court should at every instance proceed at once to

reverse the decision of the lower court. The additional

evidence can be produced in superior court on manner

provided by the Order 41, Rule 27 Civil Procedure

Code, 1908 6 . Even if admissible evidence has been

4 (1870) 6 BLR 495

5 Supra Fn. 3
6 Production of additional evidence in Appellate Court:-

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 wrongfully rejected by the first court, the appellate

court will not interfere if the finding is soundly based

on other evidence on record. An appellate court shall

only require additional evidence, if, after examining the

evidence on record, it perceives some defect in it. If the

additional evidence is allowed to be adduced contrary

to the principles governing the reception of such

evidence, it would be a case of improper exercise of

discretion, and the additional evidence so brought on

the record will have to be ignored and the case will be

decided as if it was non- existent. The decision of the

lower appellate court should not be set aside unless

the second appellate court is satisfied that the decision

is wrong on merits and the decision is the result of the

improper admission. Even in a case where the lower

court convicted an accused on the basis of evidence

including a confession which was inadmissible, the

Supreme Court did not interfere because even after

(1) The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if-
(a) The Court from whose decree the appeal is preferred has refused to admit
evidence which ought to have been admitted, or
(aa) The party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise if due diligence, be produced by him at
the time when the decree appealed against was or)
(b) The Appellate Court requires any document to be produced or any witness to
be examined to enable it to pronounce judgment, or for any other substantial
cause,
The Appellate Court may allow such evidence or document to be produced, or
witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court,
the Court shall record the reason for its admission.

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 excluding the confession, other evidence was sufficient

to sustain the conviction7.

Impact on Criminal Cases

This applicability of the section 167 extends to

criminal cases as well 8 . Section 465 of the Criminal

Procedure Code has a 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. For erroneous rejection of

evidence by the court below, to furnish a ground for

ordering a new trial or reversing a conviction, it must be

shown that the rejection of the evidence was likely to affect

the decision of the case 9. If there is sufficient evidence to

justify the decision, the improper admission of evidence is

no ground for reversal of the decision10 especially when the

accused is prejudiced thereby 11 or there is a failure of

justice12.

An improper advice given by the judge to the jury upon

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

7 Nikaram V. State of H.P., AIR 1972 SC 2077

8 Queen Empress v. Ramchandra Govinda, 1895 ILR 19 Bom 749
9 Makhan Akbar vs King Emperor, AIR 1948 Sind 122
10 Nikaram V. State of HP, AIR 1972 SC 2077
11 Ram Yad Dusadh v. King Emperor, AIR 1926 Pat 211
12 Re Elahee Buksh (1866) 5 WR (Cr)80

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advice which a judge, in exercise of a sound judicial

discretion, ought to have given the jury upon question of

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 13 , 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 ordered14. 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

13 1953 SCR 809
14 Ram Kishan v. State of Bombay, AIR 1955 SC 104.

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

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

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

estimate the effect of the admission of oral evidence15.

Appeals 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 account16 -

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

15 Crown Prosecuter, Madras v. Ramanujulu Naidu, AIR 1944 Mad 169

16 Wilayat Khan v. State of U.P., AIR 1953 SC 122

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the trial was wrong17. There should be strong reasons for

reversing the view18.

Hypothesis

Many a time there are chances of errors or omissions

or innocent irregularities to creep in at any stage of trial or

proceeding. If such activity causes a failure or miscarriage

of justice, the court shall have regard to the fact whether

the objection could and should have been raised at an

earlier stage. We have seen the example of failure of justice

in the case of Prof. H.S. Sabharwal who was allegedly

beaten to death at Ujjain in August 2006 by six student

activists. The Professor's son Himanshu successfully

petitioned the Supreme Court for transfer of the case

outside the State of M.P. as BJP was the ruling party with
whom guilty had nexus. The case was heard by Sessions

Judge of Nagpur who acquitted all the accused on

13.07.2009 observing in his judgment that the accused

might be guilty, he could not convict them because of lack

of evidence. The sound rule which needs to be applied in

cases of criminal appeal in determining a question of fact in

issue, is to consider whether the conviction has been rightly

done. Unless it is established in the case that there has

been a serious misdirection by the judge which had

17 Ajmer Singh v. State of Punjab, AIR 1953 SC 76
18 Aher Raja Kohmia. v. State of Saurashtra, AIR 1956 SC 217

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occasioned a failure of justice through his verdict, the order

could not be set aside. Following the decision of Ram

Kishan v. State of Bombay,19 where the court came to the

conclusion that, in cases where inadmissible evidence has

been admitted and has been incorporated in the learned

judge's decision "exclude the inadmissible evidence from the

record", then it needs to consider as to whether the balance

of evidence remaining thereafter is sufficient to maintain the

conviction.

The authority of the appellate court to question the

verdict of the lower court has been a controversial issue for

the long time. The duty of the appellate court should be

upheld to examine the evidence for itself and see whether it

justified the verdict pronounced or whether there had in fact

been a failure of justice. So the court of appeal is thus

entitled to substitute its own verdict if the verdict of lower

court was erroneous, or that, there has been failure of

justice in the sense that guilty man is acquitted and

innocent is convicted. Following this the justice in cases like

that the Prof. Sabharwal's murder case can be done by

reversing the order of acquittal of the Session Judge court.

In the light of these circumstances, the researcher

undertook a doctoral study on the Impact of Improper

19 AIR 1955 SC 104.

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Admission and Rejection of Evidence so as to suggest the

suitable remedial measures to avoid such failure of justice.

Objectives of the Study

The main objectives of the study are as under :

(i) to study the criminal procedure,

(ii) to study the civil procedure,

(iii) to trace the historical background of the law of

evidence,

(iv) to find out the causes of improper admission or

rejection of evidence,
(v) to study the hurdles & problems in the procedure

with special reference to the improper admission or

rejection of evidence

(vi) to ascertain strategies and suggest remedial

measures for combating the problems with regard

to improper admission or rejection of evidence.

Research Methodology

The researcher has undertaken the study by analyzing

the evolution and changes in the law of procedure about the

improper admission and rejection of evidence both civil and

criminal. The work being basically a doctrinal research

concerning socio-legal aspects of improper admission and

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rejection of evidence in the society, the documents analyzed

includes the Indian Evidence Act, 1872 and the Procedure

Codes. Other statutes and judicial pronouncements with

original sources have been studied. Relevant books, legal

articles, Law Commission reports etc. have also been

studied to solve the problem relating to failure of justice due

to improper admission or rejection of evidence. The

standard forms of quotation of references have been used in

the completion of research task.

Scheme of Study

The scheme of above research study is that it has been

divided into seven chapters. First chapter is the

Introductory one. In this chapter, the researcher has stated

the problem of improper admission and rejection of evidence
briefly. Section 167 of Indian Evidence Act applies both on

civil and criminal cases and its impact upon them has been
highlighted here.

Second chapter deals with Historical Evolution of

Law of Evidence in India. The researcher in this chapter

has attempted to trace the historical background of the

Evidence Law in Ancient India (Hindu Period), Medieval

India (Muslim Period), British India and Post-independent

India. The researcher has made full efforts to discuss the

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minute details of the law of evidence and the research

problem in these periods.

Third chapter deals with the Meaning, Scope and

Applicability. Explaining the functions of judicial system,

the researcher has discussed here the meaning of the term

"Evidence", "Fact", "Fact-in-issue" and "Proof". Section 167

of Evidence Act has been described with the applicability of

its principle on civil and criminal cases.

In the fourth chapter, the researcher has discussed the

Impact of Improper Evidence on Civil Cases. An effort

has been made to discuss the impact of improper admission

and rejection of evidence on the civil cases including

appellate matters through various judicial pronouncements

of British Period as well as of the Post-independence period
in India.

Fifth chapter deals with the Impact of Improper

Evidence on Criminal Cases. In this chapter also the

researcher has attempted to discuss the impact of improper

admission and rejection of evidence on the criminal cases

and appeals through case-law. Various judicial decisions of

the Privy Council, the Supreme Court and the different High

Courts of India have been described, referred, discussed

and critically analysed.

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 Sixth chapter deals with the Global Trend, in which

the researcher has tried to collect the position of research

problem in different foreign countries like England, America,

Australia, New Zealand and Canada. The arguments for and

against the problem under study have also been given here

with the developments in Indian Evidence Law. Relevant

reports of Law Commission of India have also been

described which are awaiting implementation.

Last chapter is the Seventh chapter which deals with

the Conclusion. In this chapter, the researcher has

concluded his research work and given suitable suggestions

after studying the impact of improper evidence both on civil

and criminal cases. If these suggestions and

recommendations are considered in right perspective and

law is amended accordingly, the chances of failure of justice

can surely be avoided.

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