AIR 1960 PATNA 111

Patna High Court

Hon'ble Judge(s): Untwalia , J

(A) Evidence Act (1 of 1872) , S.114 Illus.— Withholding evidence - No adverse inference unless other party has called for it. It is for the suitor to decide which would be the best evidence to prove his case, and, for failure to produce one piece of evidence, an adverse inference should not be drawn against the party who has chosen not to file it, unless the other side had called for that evidence. Anno : C. J. I. Evi. Act, S.114, N.47. (B) Railways Act (9 of 1890) , S.74A, S.74C, S.74D— Scope - Onus of proof - Failure to record condition of package in forwarding note by railway - S.74C and S.74D held attracted. The position of a consignment booked at owner's risk rate, as provided in S. 74C, is now a different one. But, in regard to a case sought to be brought under section 74A, the onus is still on the railway to prove by legal and reliable evidence the recording of the condition of the package on the forwarding note either by the sender or its agent.(Para 6) Where the railway has not succeeded in establishing that in the forwarding note the sender or its agent had recorded the condition of the bale as being defective or improperly packed, the case is governed by S. 74C of the Railways Act, and the bale must b....