MAHARASHTRA NATIONAL LAW UNIVERSITY

FIFTH SEMESTER
LAW OF EVIDENCE

‘A COMPARATIVE STUDY ON THE LAWS ON ADVERSE INFERENCE IN

THE COUNTRIES OF INDIA, U.K. AND U.S.A.’
SUBMITTED TO- Prof. Chirag Balyan SUBMITTED BY- Ayaskanta Parida
Enr. No.-2017012

INTRODUCTION
The term ‘adverse inference’ applies to a situation where the court, being allowed by the party’s
silence in response to the questions asked to it draws ‘such inferences as appear’ proper against
the party in question. In India, the courts can do this under Section 114(g) of the Evidence Act,
1872, notwithstanding, that the onus of proof did not lie on such party and it was not called upon
to produce the said evidence.1
This project will analyze the kind of situations where the court can use this concept and the extent
to which it is allowed to do so. This will be done by studying cases where adverse inference was
either allowed or not. Basically, the permissibility of this practice will be looked upon.
Comparisons shall also be made with the laws on this topic in USA, the United Kingdom, whether
it is practiced there or not and to what extent and in what situation it is.
STANCE OF INDIAN JUDICIARY
When the principle of “adverse inference” is applied, it is presumed those material witnesses have
been withheld who could have accurately told about the events. The prosecution would be left
without a substantial piece of information2.
It all depends on the court deciding that adverse inference has to be drawn against a party if a
material witness is being withheld3. The Supreme Court has held in a case that as per Section
114(g) whereby ‘the evidence, which could be and is not produced’ would, if produced would
be unfavorable for the party which withholds it, then adverse inference can definitely be drawn
against the party in question4. This shows us that it is the quality of evidence, which matters,
and not its quantity. Hence, it is the duty of the judges in the court to contemplate on the
dependability of the evidence on record, through which assurance is stimulated. The evidence
on record also has to be agreed to and needs to be used in such a way that adverse inference need
not be drawn from the event of not examining other witnesses. In a case, it was said that “it is
also to be seen whether such non-examination of other witnesses would carry the matter further

1
Union of India v Ibrahim Uddin, AIR 2013 SC (Civ.) 1571
2
Govindaraju alias Govinda v. State by Sriramapuram, AIR 2012 SC 1292
3
Rohtash Kumar v State of Haryana, AIR 2013 SC (Cri.) 1544
4
Ritesh Chakravarthi v. the State of Madhya Pradesh, (2006) 12 SCC 321 (327)
 so as to affect the evidence of other witnesses and if the evidence of a witness is not really
essential to the unfolding of the prosecution case, it cannot be considered a material witness”.5
It has been seen that inferences drawn by the courts on reapplication of the evidence are
supported by the evidence available rather than being unacceptable. As per the apex court, “the
best evidence that could have been made available by the first petitioner (who was in the know
of things of paramount importance) was not submitted, so the High Court was therefore, right
in taking adverse inference on vital aspects”.6
It has been held that if a party to the suit does not stand in the witness-box to state his own case
on oath, nor does it offer itself to be questioned by the other side, an assumption can then be
drawn that the case brought before the court might be The Supreme Court has held that where
a party to the suit does not appear in the witness box and states his own case on oath and does
not offer himself to be cross-examined by the other side, a presumption would then arise that
the case set up by the party is bogus .7 Hence, adverse inference can be drawn against a party
which raises a dubious plea before the court .8
It has to be kept in mind that Section 114(g) provides us the opportunity for an inference which
is allowable and tolerable, but not obligatory in nature. Therefore, it should not be an automatic
process, where adverse inference is drawn up just because a material witness is not examined,
but other factors should also be considered an inference is being brought up.9
The Supreme Court has observed that “when a prosecution witness deposes that he had a
document which he handed over to the Police who currently possess it, so if they do not produce
that document even if the court has ordered them to do so, an adverse inference that can be
drawn is the fact that the document was not of the said value and the document could have even
falsified the witness to that extent”.10
The issue of adverse inference being drawn due to non-production of evidence by a party on
whom the burden of proving the fact lies should depend on the circumstances of the specific
case and not an obligatory rule. In inferring the existence or non-existence of a certain fact from
the omission of a party to produce a particular evidence the court follows the same mental
process which is followed and is implicit in all inferences.
The question always is that whether the existence of a fact or a state of thing makes the existence
of another fact or state of things so likely that it may be presumed to exist; and even in deciding
whether an adverse inference for a party should be drawn from the non-production of a particular
evidence or type of evidence the court really answers the above question.
Naturally the answer must vary according to the circumstances. The nature of the fact required
to be proved and its importance in the controversy; the usual and commonly recognised mode
of proving it; the nature, quality and cogency of the evidence which has not been produced and
its accessibility to the party concerned have all to be taken into account.

5
State of Uttar Pradesh v Iftikhar Khan, (1973) 1 SCC 512
6
Marua Dei v. Murlidhar Nanda, AIR 1999 SC 329
7
Vidyadhar v Manikrao, (1999) 3 SCC 573: AIR 1999 SC 1441
8
Rajesh Bhatnagar v. State of Uttarakhand, AIR 2012 SC 2866
9
Harpal Singh v State of Maharashtra, AIR 1997 SC 2914
10
Ram Das v. State of Maharashtra, AIR 1977 SC 1164
 And it is only when all these matters have been duly considered that an adverse inference may
be drawn. But the proposition that the court is never justified in drawing an adverse inference
from the non-production of a particular type of evidence is manifestly untenable.11
It can be said that it is not open to a party to brush aside the arguments of his opponent made in
affidavit filed in support of his application by merely statin that the allegations are false. A
statement on oath, whether true or not, has to be responded by a counter affidavit in reply, or by
challenging the statement by cross-examining the deponent. If that is not done, it would be
presumed that the allegations, if untrue, would have been rebutted by the other side.12
It has been held that the omission on the part of the accused to produce all important evidence
in support of his plea of alibi which could easily have been produced raises the presumption
against him under Illustration (g) of Section 114, Indian Evidence Act, that it would, if produced
have been unfavorable to him.13
It can this be said that adverse inference has been used to a great extent in many situations by
the Judges in Indian Judiciary.

USE OF ADVERSE INFERENCE IN OTHER COUNTRIES

1. UNITED STATES OF AMERICA
American jury instructions about adverse inference has received significant scholarly and
judicial attention in recent years14. Experts have commented that adverse inference has been
regarded to be one of the oldest and most venerable remedies for spoliation15. It can also be
categorized as the most common remedies in federal courts for the loss or destruction of
evidence.16 This mechanism has got multiple uses such as: punishing wrongful conduct,
deterring future evil conduct, and restoring the adversary balance of the proceedings.17 Rule
37(e) of the Federal Rule of Civil Procedure can be said to have talked about adverse
inference.
It was in May 2014 when the Standing committee on Rules of Practice and Procedure
(hereby referred to as the ‘Standing Committee’) approved an amendment to Rule 37(e) of
the Federal Rule of Civil Procedure that can be said to have imposed various sanctions on
adverse inference instructions18. However, a major flaw regarding the said amendment can
be said to be the fact that it inadequately addressed the evidentiary purpose of the instruction
to be remedial, and not punitive. It can be now said that adverse inference instruction as

11
Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570
12
Mehta Parikh and Co. v Commr. Of Income Tax, Bombay, (S) AIR 1956 SC 554
13
Satya Vir v. State, AIR 1958 All 746
14
David C. Norton et al., Fifty Shades of Sanctions: What Hath the Goldsmith’s Apprentice Wrought? 64 S.C. L.
REV. 459
15
Norton et al., supra note 1, at 467 (quoting United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 263
(2007)).
16
See id. at 468 (“In a 2011 study by the Federal Judicial Center, the adverse inference was the most common type of
sanction granted . . ..”).
17
See Nation-Wide Check Corp. v. Forest Hills Distrib., Inc., 692 F.2d 214, 218 (1st Cir. 1982)
18
See JUDICIAL CONFERENCE OF U.S., REPORT OF ADVISORY COMMITTEE ON CIVIL RULES 308
(May 2, 2014), in COMMITTEE ON RULES OF PRACTICE AND PROCEDURE (May 29–30, 2014)
 compared to other sanctions is weak19. The amendment allows for the adverse inference
instruction to be imposed “only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation”20. The Advisory Committee’s note
to the new rule indicates that the rule “would not prohibit the court from allowing the parties
to present evidence to the jury concerning the loss and likely relevance of information and
instructing the jury that it may consider that evidence … in making its decision.21” However,
the new rule gives no instruction as to when the judges should give such an instruction, what
they would have to say, who bears the burden of proof on those findings. As a matter of
fact, the note does admit to the fact that the amended rule declines to assign the burden of
proving prejudice, leaving the decision entirely to the court in every case.22 While it can be
said that the new rule makes the use of adverse inference instructions consistent, it doesn’t
take into consideration the highly important remedial function of the instruction and
imposes critical restrictions. This makes the courts to go for more appropriate methods of
deterrence and punishment.
It should be taken into consideration that the lawyers should not hesitate at presenting
evidence of spoliation to the jury in fitting cases, including situations where the negligent
conduct of one party harms the other side. The judges in today’s courts are often asked to
evaluate competing factual situations and to use their common sense to decide which is
more plausible. 23
2. UNITED KINGDOM
The relevant provisions regarding adverse inference in U.K. are listed in Criminal Justice
and Public Order Act, 1994 (CJPOA), specifically Sections 34 to 37.
2.1)-Section 34- INFERENCE FROM SILENCE WHEN QUESTIONED OR CHARGED
Section 34 of the Act tells us that inference against the defendant can be drawn only when
while being questioned by the police in the situation of being under caution, charged or
having been informed that he may be prosecuted, the defendant doesn’t mention a fact on
which he riles during the court proceedings. The defendant is reasonably expected to
mention that fact during the questioning. The provisions of the section will be fulfilled even
when the defendant answers every question asked, but in trial he raises a distinct fact in his
defence that he is reasonably expected to have mentioned it while being questioned by the
police.
It is a requirement under the section that the defendant has to be made aware of the risks
that he faces if he fails to mention a fact while being interviewed by the police.
a) The House of lords in a particular case24 held that the word “fact” in Section 34 of the
Act heeds to have a broader meaning. It covered every alleged fact in issue and was put
forward as part of the defence case. Therefore, a specific case by the advocate of the
defendant to a prosecution witness ‘can be a fact relied on, even if the Defendant does
not give evidence.

19
Dan H. Willoughby, Jr. et al., Sanctions for E-Discovery Violations: By the Numbers, 60 DUKE L.J. 803-805
(2010)
20
supra note 18, at 318
21
supra note 18, at 322; see also Mali v. Fed. Ins. Co., 720 F.3d 387, 392–93 (2d Cir. 2013).
22
supra Note 18, at 321
23
Shira A. Sheindlin and Natalie M. Orr, The Adverse Inference Instruction After Revised Rule 37(e): An
Evidence-Based Proposal, 83 Fordham L. Rev. 1299 (2014).
24
Webber [2004] 1 All ER 770
 b) In a particular case25 it was seen that that the judge had wrongly allowed the jury to draw
an adverse inference from a failure by the appellant to mention the relevant facts in an
interview despite there being no requirement. The officers had used the incorrect date
while questioning and the appellant relied on the correct date of the offence. The court
found that it was difficult to see how in those circumstances the appellant could have
been expected reasonably to say more.
c) It was held in a case26 that the judge had correctly allowed the jury to draw adverse
inferences from the defendant’s silence in interview following his arrest for an assault
on his partner. Although the police did not have the specific details of the allegations at
that stage, the questions were clearly directed to trying to discover whether or by whom
the partner had been assaulted.
2.2)- Section 35-INFERENCE FROM SILENCE AT TRIAL
Section 35 of the act talks about inference being drawn from a defendant’s failure to give
evidence provides that inferences can be drawn from a defendant's failure to give evidence or
refusal to answer any questions without good cause, where he fails to give evidence on his own
behalf at trial. In particular, if a defendant raises a specific defence such as self-defense or alibi,
his failure to enter the witness box to substantiate this defence may lead the court to draw an
adverse inference. The inference would be that the defendant has no plausible explanation, or
that any explanation he does have is too weak to stand up in cross-examination by the
prosecution.
If the evidence is presented out of a confession made by the defendant and then he refuses that
the confession is true, he would have to give evidence to explain the reason behind him making
the false confession. If he fails to do so, the court will then have to draw an adverse inference
that the defendant had no satisfactory explanation for giving the confession other than it must
be a true confession.
The court of appeal in a case expressed endorsement on the directions issued by the Judicial
Studies Board in the situation when the defendant doesn’t give evidence in his defence in the
Crown Court. The directions are as follows, verbatim from the case:
a) In a case27, the Court of Appeal expressed approval of the specimen directions issued by
the Judicial Studies Board where the Defendant chooses not to give evidence in his or
her defence in the Crown Court. The Court highlighted the importance of these steps,
prior to a Section 35 adverse inference being drawn:
1. The judge must tell the jury that the burden of proof remains upon the prosecution
throughout and what the required standard is.
2. The judge must make clear to the jury that the Defendant has the right to remain silent
and that it is his or her choice;
3. An inference from failure to give evidence cannot, on its own, prove guilt;

4. Therefore, the jury must be satisfied that the prosecution has established a case to answer
before drawing any inferences from silence. The jury may not believe the witnesses

25
M [2012] 1 Cr App R 26
26
Lee [2015] EWCA Crim 420
27
R v Cowan [1996] Q.B. 373
 whose evidence the judge considered sufficient to raise a prima facie case; and
5. If, having considered the defence case, the jury concludes that the silence can only
sensibly be attributed to the Defendant's having no answer or none that would stand up
to cross- examination; they may draw an adverse inference.
b) In determining whether an adverse inference should be drawn, the Court of Appeal in
the case28 held that the kind of circumstance which may most likely justify silence will be
such matters as the suspect's condition (ill-health, in particular mental disability;
confusion; intoxication; shock etc.)
2.3)-Section 36- INFERENCES FROM SILENCE—FAILURE TO ACCOUNT FOR
OBJECTS, SUBSTANCES AND MARKS
Section 36 of this act talks about inference being drawn from a situation in which the defendant
can’t answer or disagrees to answer a question about an event or object which may be accredited
to him in the commission of a crime. The plausible inference that would be drawn is that either
the defendant has got no explanation about the event/object or the explanation is not good
enough for police questioning. However, only after the suspect is given a special cautionary
notice by the police officer requesting the explanation, then only adverse inference can be drawn
against it. The notice shall entail details about the crime which is being investigated, the matter
about which the defendant is being questioned and that an adverse inference may be drawn
against him/her in the future.
2.4) Section 37-INFERENCES FROM SILENCE—FAILURE TO ACCOUNT FOR PRESENCE
Section 37 of this act talks about inference being drawn in the situation of the defendant omitting
the details about his/her presence at a place at a specified date and time during questioning. The
plausible inference that would be drawn is that either the defendant has got no explanation about
him/her being present at that place in the given date and time or the explanation is not good
enough for police questioning. Like in the previous section, only after the suspect is given the special
caution notice, then only adverse inference can be drawn against it.
CONCLUSION

It can be said that Adverse Inference is a tool for the court that enables it to catch the mala fide
intention of the parties, if any and prevent the loss of or harm to evidence as much as possible.
An extensive analysis of the laws of India, U.S.A. and U.K. brings up the fact while it has been
left to the court to decide as to till what extent adverse inference can be drawn up in India, in
U.K. the laws are self-sufficient and structured enough for the courts to interpret, with only some
minor modifications to be added later. However, in USA the amendment to 37(e) of the Federal
Civil Procedure has actually weakened the practice as it forces the circuit judiciary to opt for
other methods than this remedial-and-not-punitive method.

28
R v Howell [2003] Crim L.R.