Paulo Makimela v. R. Crim. App. 295-D-68, 9/8/68, Biron J.

The accused was convicted of escaping from lawful custody c/s 116, Penal Code. The only evidence for the prosecution was that of a court orderly who testified that the accused escaped while the orderly was taking a ground of eight prisoners, including accused, to remand prison. He said the accused was apprehended after a short chase. The accused’s defence was that the orderly had become angry and assaulted him that he had moved away and stood at a distance to avoid the assault but that he had made no attempt to escape. On appeal, the accused argued that the testimony of one witness was insufficient to support the conviction.

Held: (1) S. 143, Evidence Act provides that, subject to any other written law, “no particular number of witnesses shall in any case be required for the proof of any fact.” Thus additional witnesses were not required as a matter of law.

   On the other hand, s. 122, which contains no change in substances from s. 114, Indian Evidence Act, provides, “The court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events [and] human conduct ……” Illustration (g), Indian Evidence Act, provides that the court may presume “that evidence which could be, and is not, produced would, if produced, be unfavorable to the person who withholds it”. In the present case, the court presumes that the testimony of others present at the time of the escape would have been unfavorable to the prosecution as the accused’s defence “is by not means implausible”. Conviction quashed.