Report No. 69
IV. Previous Law in India
It may be noted that in India the law before 1872 made an exception for treason. Section 28 of the repealed Act 2 of 1855, was as follows:-
"28. Except in cases of treason the direct evidence of one witness, who is entitled to full credit, shall be sufficient for proof of any fact in any such court or before any such person. But this provision shall not affect any rule or practice of any Court that requires corroborative evidence in support of the testimony of an accomplice or of a single witness in the case of perjury."
74.18. This is a fuller statement of the position than the present sectio.- more elaborate and more in conformity with actual practice. In the well-known case of Queen v. Lal Chand Kowrah, (1866) 5 WR (Cr) 23 (Cal), it was laid down, with reference to this section of the old Act, that the uncorroborated evidence of a single witness in a case of perjury was insufficient, and that there must be proof adduced, independent of the oath of one of the parties. But, it was also held, under the old Act, that the comparison of signatures in one kind of corroboration, which would justify a conviction on the testimony of a single witness in a case of false evidence.1
1. Queen v. Bakhoree Chowbey, 5 WR (Cr) 98.
74.19. Accused not to be convicted of perjury on uncorroborated single testimony.-
The most important decision under the previous law is a Full Bench ruling of the Calcutta High Court in Queen v. Lal Chand Kowrah, BLR Supp Vol. 417 (FB): 5 WR (Cr) 23, cited by Field, where Peacock, C.J. observed:
"According to the law as administered in the exercise of original criminal jurisdiction, the evidence of only one witness uncorroborated is not sufficient to convict for perjury, because it is governed by the rule of the law of England. I do not mean to say that every rule of the law of evidence as administered in England applies to the Mufassil. But I cannot think that we ought to put such a construction upon section 28, Act 2 of 1855, as would allow a person to be convicted of perjury at Alipore,1 or in other parts of Mufassil upon the uncorroborated testimony of a single witness, when such evidence would be insufficient for a conviction in Calcutta before the High Court in the exercise of its original criminal jurisdiction. Such a construction would not be very consistent.
But if the law is so, we are bound by it. If there was any rule or practice in the Sadar Court or in the Courts in the Mufassil which, before Act II of 1855, prevented a conviction for perjury upon the evidence of a single witness without any corroboration, it appears to me that such Courts fall within the proviso in section 286. Now, there is a case which was decided by Mr. Samuells in the Sadar Court,2 in which the rule was laid down as follows: "Perjury is not to be assumed because the story of one man appears more credible than that of another.
There must be certain proof adduced, independent of the oath of one of the parties, that the deposition of the other is false." That is to say, the oath of one man is not sufficient to convict another of perjury, when he has sworn to the contrary; that you are not to take the evidence which by an accident is the more credible for the purpose of convicting of perjury, but you must bring something corroborative, or something more than the evidence of one witness. The rule, which was laid down by the Sadar Court in this case, is supported by other cases, and is in accordance with the principle of the English law.
Indeed, I think, I may safely say that it was the practice of the Sadar Nizamat and of the Mufassil Courts not to allow a conviction for perjury upon the uncorroborated evidence of a single witness; consequently the case does not fall within the general rule of section 28, in as much as it is taken out of that rule by the provision, which says that the rule is not to affect any rule or practice of any Court that requires corroborative evidence of a single witness in case of perjury."
1. A suburb of Calcutta just outside the local limits of the original jurisdiction of the High Court, and the headquarters of the district of the Twenty-four Parganas.
2. SeeGovernment v. Gharib Peada, Nizamat Reports, Vol. XI, p. 212.
74.20. Corroboration derived from comparison of signature sufficient for conviction.-
In the case of Queen v. Bakhoree Chowbey, 5 WR (Cr) 98, cited by Field, the accused was charged with giving false evidence by denying that he had verified or presented a certain written statement, and it was held that the corroboration derived from a comparison of signatures, was sufficient to sustain a conviction.
74.21. In the earlier Bombay case R. v. Hedger, 1852 referred to by Woodroffe, in his commentary under section 134, the rule that required more than one witness in the case of a trial for perjury, if applied as an inflexible rule of law, was criticised, but it was also pointed out that, at the same time, the principle on which the rule rests is of great value in the "difficult task of weighing evidence." In this connection, it may be noted that while the Act of 1855 specifically saved a rule or practice requiring corroborative evidence in support of a witness in the case of perjury,1 on such saving provision is found in the present Act.2
1. R. v. Lal Chand, 1866 February, Bengal Law Reports Supplement Volume, Full Bench 414:5 WR Cr 23 (Cal).
2. R. v. Chulet, 1884 ILR 7 All 44 (50) (Duthoit, J.).
74.22. In a Calcutta case1, the Session Judge had observed:
"The only doubt that arises in my mind in this case is whether, if a complainant deposes on oath to the existence of certain facts which go to establish the charge instituted by him, and he produces no witness who can support his charge, a Criminal Court is justified in finding the accused guilty on the complainant's evidence alone, however trustworthy."
The High Court did not share the doubt, and held-
"A conviction on the strength of the evidence of the complainant is lawful."
1. Kullum Mundul v. Bhowani Prasad, (1874) 22 WR Cr 32 (Cal).
V. Present Law in India
74.23. The effect of the present section is that in any case the testimony of a single witness (if believed by the Court or jury) is sufficient for the proof of any fact. Thus, a conviction upon the statement of a complainant alone is lawful.1
1. Kullum Mundul v. Bhowani Prasad, (1874) 22 WR Cr 32.
74.24. The effect of the section was noticed in a case under the Muslim law of pre-emption,1 which held that it is not necessary for the performance of a valid 'talab-i-ishhad' that it should be made before at least two witnesses, or any number of witnesses, but it would suffice if it can be proved that the 'Ishhad' was made before a witness or witnesses for purposes or proving that fact. The requirement of making the 'talab-i-ishhad' in the presence of at least two witnesses, which under the general Muslim Law of Evidence was only necessary to prove its performance, was a matter governing procedure which has been replaced by the Evidence Act. The omission from the Evidence Act of a provision for the proof by means of at least two witnesses for the enforcement of a right of pre-emption is significant in that Legislature did not consider it necessary to require at least two witnesses for the proof of a preemptive right.
1. Sonaji v. Narhar, AIR 1952 Hyd 159.
74.25. As regards the offence of "giving false evidence", the framers of the Indian Penal Code, for reasons stated in Note G. to their Report dated the 14th October, 1837, thought it proper1 to discard the English law of "perjury", and to draft the provisions of the Indian Penal Code in this respect upon the lines of the French Code Penal regarding 'faux temoignage".2 The Indian Law Commissioners were afterwards pressed to at least allow the word "perjury" to be retained in their Code, as being one familiar to the people of India and long in use; but they refused to give way3 on the ground that "the authors of the Code thought it inexpedient to use the technical terms of the English law where they did not adopt its definitions, and so materially departed from it in substance".
1. Draft Penal Code, Note G.
2. Parl Papers, 3rd August, 1838, Indian Law Commission, 673.
3. Parl Papers, 16th May, 1848, Indian Law Commission, 330, para. 130 of the Report dated the 24th June, 1847.
74.26. It has been held that in India in cases relating to the offence of giving false evidence, though the law does not provide that there must be corroboration to support a conviction, the rule of English law which is based on substantial justice may be followed as a safe guide.1
1. (a) R. v. B.G. Tilak, 1904 ILR 28 Born 479 (498);
(b) R. v. Lal Chand, BLR Supp Vol 417 (FB): 5 WR Cr 23;
(c) R. v. Bakhoree, 5 WR Cr 98;
(d) R. v. Ross, 6 MHC 342.
74.27. The Code of Criminal Procedure also provides additional safeguards in regard to the offence of perjury, inasmuch as a written complaint of the court before which the offence is committed is necessary in order to proceed with the prosecution. Previously, a private party could apply for "sanction" for prosecution. But since it was found that this position often led to action inspired by feelings of revenge, the law was changed and the present law is as stated below.
74.28. Solitary witness.-
The case of a solitary witness who is neither an accomplice nor in a position analogous to that of an accomplice was considered by the Supreme Court in Vadivelu Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC 614. The Court held that as a general rule the court may act on the testimony of a single witness though uncorroborated. The court, it was held, could do so except where corroboration was required by statute, or where the nature of the testimony of the single witness itself requires, as a rule of prudence, that corroboration should be insisted upon, and that the question whether corroboration of the testimony of a single witness was or was not necessary, must depend upon the facts and circumstances of each case.1
In the case of Mohammad Sugal Esa Mamasan Rer Alalah v. The King (an appeal from Somaliland where the Indian Evidence Act and the Indian Oaths Act, 1869, had been applied), the Privy Council dealt with the question of corroboration of the testimony of a child witness in a murder case. In that case, the testimony of the single witness in support of the murder charge was attacked as suffering from two infirmities, namely:-
(1) The witness was a girl of about 10 or 11 years at the time of occurrence and her evidence had not been corroborated.
(2) The child witness had not been administered oath, because the Court did not consider that she was able to understand the nature of the oath though she was competent to testify.
The second ground was rejected in view of section 13, Oaths Act, where-under "omission" to administer an oath does not invalidate the evidence. The Privy Council held that "omission" covered the case of non-administration of oath to a child witness on the ground that the witness would not be able to understand the nature of oath.
1. See also Ramratan v. State of Rajasthan, AIR 1962 SC 424 (428).
74.29. Evidence of child of 10 years held admissible.-
The second ground will be dealt with later. Special leave had been granted to appeal to the Privy Council, on the ground that the local courts had admitted and acted upon the unswom evidence of a girl of 10 or 11 years of age. The Privy Council, however, ultimately upheld the conviction and sentence of death, holding that the evidence, such as it was, was admissible. The following observations were made in the judgment:
"It was also submitted on behalf of the appellant that assuming the unswom evidence was admissible the Court could not act upon it unless it was corroborated. In England, where provision has been made for the reception of unswom evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."
On the facts, the Privy Council found sufficient corroboration.
The above discussion does not disclose any need for amendment of the section.