Amongst the various rules of evidence that have developed over the course of time, the Rule of Best Evidence is one of the foundation stones on which our criminal justice system rests.
This rule gains immense prominence in criminal trials, as under the Indian criminal justice system, an accused is considered to be innocent until proven guilty and the guilt of the accused has to be proved beyond reasonable doubt and not on a mere preponderance of probabilities, thus imposing upon the prosecution the obligation to adduce the best possible evidence to prove the guilt of the accused.
The rule has been defined to mean “so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it."
While the principles governing the law around documentary evidence is a separate jurisprudence in itself, this article primarily deals with the effect of non-production/suppression of the best available evidence by the prosecution/investigating agency during a criminal trial and its consequences.
Failure to lead best possible evidence in criminal trials
While a duty is cast upon the courts to arrive at the truth by all means possible, a duty is also cast upon the parties to come to court with clean hands, i.e. to make a complete disclosure without suppression of any material facts/evidence.
In proving the guilt of an accused, the investigating agencies are duty bound to collect the best possible evidence and the public prosecutor is bound to present the best possible evidence to prove an alleged fact or circumstance leading to the commission of the offence. A failure to lead the best evidence thus makes the prosecution vulnerable to an adverse inference being drawn against it, as such failure amounts to suppression of the best evidence.
The principle behind adverse inference being drawn is based on a simple and obvious question that the court will pose to itself:
'Why would the prosecution not lead the best evidence available to establish it case?
Thus the inference is grounded in the assumption that the best evidence is not relied upon as it may be detrimental to the prosecution’s case and may benefit the accused. Section 114 of the Act gains relevance here.
“114. Court may presume existence of certain facts. – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
Thus, Section 114 allows for the courts to presume certain facts from the facts of a particular case and in aid of the Section, the Act also provides a number of illustrations to assist in the presumptions that a court may draw. Of these, Illustration (g) is of relevance to this Rule.
“(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”Supreme Court, in a catena of judgments has relied upon Illustration (g) to hold that it is the duty of the prosecution to lead best evidence and adverse inference can be drawn when the best evidence is not produced before the Court.
Thus, the illustration clearly explains the intention of the Legislature and acts as a guiding tool for the courts. In fact, it has now become a settled principle of law that a failure on the part of the prosecution to produce the best evidence raises serious doubts on the prosecution’s case.
The Supreme Court, in a catena of judgments, has relied upon Illustration (g) to hold that it is the duty of the prosecution to lead best evidence and adverse inference can be drawn when the best evidence is not produced before the Court.
A relevant dictum of the Supreme Court in relation to this principle is the judgment in the case of Tomaso Bruno & Anr. v. State of Uttar Pradesh, wherein the Court held that CCTV footage was the best piece of evidence to prove the presence of the accused at the scene of crime and it was for the prosecution to have produced such evidence. A failure to do so raised serious doubts about the case of the prosecution.
Interestingly in that case, the argument advanced by the prosecution was that the onus to prove that the accused were not at the scene of crime was on the accused by virtue of Section 106 of the Act which places the burden of proving a fact especially within the knowledge of a person upon such person. However, the Supreme Court held that to invoke Section 106 of the Act against the accused to prove their alibi, the prosecution first had to establish the presence of the accused and since the witnesses themselves made a reference to the CCTV footage, a failure to produce the same raised serious doubts about the prosecution’s case.
The judgment in Tomaso Bruno is also important because it addresses the issue of a faulty investigation vis-à-vis the suppression of best evidence. Very often, the trial courts pardon the lapses and lacunae by an investigating officer as instances of faulty investigation of which the accused cannot draw benefit, as was done by the trial court in Tomaso’s case. The Supreme Court has effectively dealt with this issue by holding that where the lapses and omissions on the part of the investigating officer relate to evidence which has a crucial bearing to the case, then such failures do not constitute faulty investigation but suppression of the best evidence.
However, in Tomaso’s case, the Court also held that the drawing of the presumption depends upon the facts of each case. The Court laid down the following factors to be taken into account while deciding whether or not to draw an adverse inference:
a. The nature of fact required to be proved and its importance in the controversy;
b. The usual mode of proving such evidence;
c. The nature, quality, and cogency of the evidence not produced;
d. Accessibility of the evidence to the party concerned.
Rule of Best Evidence in cases based on seizure
The Rule of Best Evidence is of utmost importance in cases based on seizures such as those under the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985. It has been held by the Supreme Court time and again that in a case based on seizure, the seized goods are the best evidence available to the prosecution and the failure to produce the seized goods before the Magistrate makes the prosecution case doubtful. In fact, the Supreme Court has gone on to hold that the failure to produce the best possible evidence, i.e., the seized goods, renders oral testimony otiose.
In cases pertaining to the NDPS Act, it has now become a settled principle of law that where there is non-production of the contraband goods alleged to have been seized from the accused, the conviction under the NDPS Act cannot be sustained as there is no evidence to connect the forensic report with the contraband that was seized from the possession of the accused.
Non-Examination of Best Witness
The Rule is attracted not only in cases pertaining to non-production of documents or seized goods but also extends to oral testimonies and witnesses. It has been held by the Hon’ble Supreme Court that that the failure to examine the best witness waters down the testimony of other witnesses.
In the case of Vijender V/s. State of Delhi, the Hon’ble Supreme Court discarded the post mortem report not only because the original had not been produced (and thus falling foul of S. 64 of the Act), but also because it had been proved through the evidence of the record clerk of the hospital where the post mortem had been conducted. The Court, relying upon S. 60 of the Act, held that the prosecution was bound to lead the best evidence available, which was to the examine the doctor who conducted the post mortem examination, especially since he was still employed with the hospital. In light of the non-examination of the doctor, the Court held the post-mortem report to be legally inadmissible.
Recently, in the case of Digamber Vaishnav V/s. State of Chhattisgarh, a three-judge bench of the Hon’ble Supreme Court observed that no attempt had been made by the prosecution to examine the witnesses who were present at the scene of the incident at the relevant time and who had first seen the deceased persons and thus held that the best evidence had been withheld.
Rule of Best Evidence in cases of circumstantial evidence
It is a settled principle of law that a conviction can be based on circumstantial evidence. However, in such cases, every circumstance needs to be proved through reliable and cogent evidence by the prosecution which would form a chain so complete as to exclude every hypothesis except the guilt of the accused. However, it is an equally settled principle of law that while dealing with cases of circumstantial evidence, the best evidence must be adduced which the nature of the case requires to be presented.
To arrive at this conclusion, the Supreme Court, in a catena of decisions has placed reliance on Wills’ Circumstantial Evidence by Sir Alfred Wills. The author has opined that the Rule of Best Evidence applies "a fortiori to circumstantial evidence" as circumstantial evidence is "inherently inferior to direct and positive testimony". Thus, whenever the best evidence is "capable of being adduced, the very attempt to substitute a description of evidence not of the same degree of force, necessarily creates a suspicion that it is withheld from corrupt and sinister motives".
In the case of Mohd. Aman v. State of Rajasthan, the Supreme Court held that a crucial circumstance which the prosecution had failed to establish was that the articles which had been seized for the purposes of fingerprints of the accused had not been tampered with before reaching the forensic laboratory. The Court held that the production of the seized article would have been the best evidence of proof of the seizure and examination for fingerprints and the non-production of the same was a glaring missing link in the chain of evidence. The Court thus disregarded the other evidence led in support of such seizure and matching of fingerprints.
Thus, from a perusal of the various decisions rendered by the Supreme Court and in light of Illustration (g) of Section 114 of the Evidence Act, it can be said that it is the duty of the prosecution to lead the best possible evidence to establish its case against the accused and a failure to do so makes the prosecution case doubtful. Further, the suppression of such evidence entitles the court to draw an adverse inference against it that the withheld evidence would have gone against it.
However, it is to be kept in mind that the presumption under Section 114 Illustration (g) of the Act is only a permissible inference and not a necessary inference. This is because Section 114 of the Act uses the expression ‘may’ instead of ‘shall’. Thus, the Rule of Best Evidence does not come to the benefit of the accused for every failure to produce evidence or examine a witness when the evidence brought on record is otherwise sufficient to prove the prosecution’s case beyond reasonable doubt and all material witnesses have been examined.
The authors are Delhi-based advocates.