Non examination of investigating officer at a criminal trial is a serious lapse on the part of the prosecution agency.

Question: Non examination of investigating officer at a criminal trial is a serious lapse on the part of the prosecution agency.

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Answer

As the Hon’ble Supreme Court has held in the case of Mohanlal Shamji Soni v. Union of India & Anr. [1991 AIR 1346] “…it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue.”

While there is a double guard duty cast upon the courts to arrive at the truth by all means possible, an equal and significant duty is also cast upon the parties to the proceeding to come to court with clean hands, i.e. to make a complete disclosure without suppression of any material facts or evidence.

In the process of proving the guilt of the accused, the investigating agencies have the duty to gather all the best possible evidence and also the public prosecutor is duty-bound to present the best evidence to prove an alleged fact or circumstance pointing towards the guilt of the accused that he committed the offence.

A failure on the part of the prosecution to lead the best possible evidence thus makes the prosecution case vulnerable leading 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 against the prosecution case is based on a simple and obvious question that the court will seek to find an answer to, is ‘why would the prosecution not lead the best evidence available to establish its case’?

Thus the inference is grounded in the assumption that the best evidence is not relied upon as it will cast serious doubt on the prosecution’s case and may benefit the accused. Section 114 of the Act gains relevance here.

Section 114 talks about when the Court may presume the existence of certain facts.

It states that: “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.

“Illustration (g): That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The Apex Court has relied upon Illustration (g) in a catena of judgments to hold that it is the duty of the prosecution to lead the 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.

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 [(2015) 7 SCC 178], wherein the judgment becomes relevant to explain the statement at hand as 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 this 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 that has a crucial bearing on the case, then such failures do not constitute faulty investigation but suppression of the best evidence.

However, in the instant 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:

1. The nature of fact required to be proved and its importance in the controversy;
2. The usual mode of proving such evidence;
3. The nature, quality, and cogency of the evidence not produced;
4. Accessibility of the evidence to the party concerned.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X