Judge's gut feeling about a witness is 'utterly useless' in court
Supreme Court says trial judges must stop recording subjective impressions like 'nervous' or 'insincere' — because they fade with time and can't be reviewed.
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Supreme Court says trial judges must stop recording subjective impressions like 'nervous' or 'insincere' — because they fade with time and can't be reviewed.
The judge wrote: 'Witness appeared uncomfortable, hesitant, hollow insincere.' The Supreme Court just called that note-taking — utterly useless. The observation sat in the trial court record like a small, unremarkable stone — a judge's fleeting impression of a witness, jotted down during testimony. But when the case reached the Supreme Court, that single note became the centre of a quiet but significant ruling about how trials should actually work.
Could a judge's gut feeling about a witness — written down in a moment — ever be used to decide a case years later? The Supreme Court said no. And in doing so, it told every trial judge in the country to stop recording subjective impressions that cannot be reviewed, verified, or challenged.
When the judge wrote down a feeling
The case, Kishan Lal Gupta v. Dujodwala Industries And Ors., was a civil dispute where witness credibility mattered. One side said one thing. The other said another. The trial judge had to decide who was telling the truth.
During the witness examination, the judge made a note. Not about what the witness said — but about how the witness seemed. The judge wrote that the witness appeared "uncomfortable, hesitant, nervous, hollow insincere." It was a subjective impression, recorded in the judge's own words, based on nothing more than the judge's personal observation of the witness's body language and tone.
That note sat in the case file. When the matter reached the Supreme Court, the judges had to decide: was this kind of note useful? Could it help an appellate court (a higher court that reviews the trial court's decision) understand what happened in the trial?
Why a judge's memory fades
The Supreme Court recognised a problem that every trial lawyer knows but rarely says aloud: judges forget. The impression a witness leaves on a judge's mind during testimony tends to fade with time. A trial that stretches over months or years — with hearings spread out, witnesses appearing on different dates — makes it worse.
In many Indian trial courts, different judges record evidence at different stages. One judge might hear the first witness. Another judge might hear the second. A third judge might ultimately decide the case. The judge who writes the final judgment may never have seen any witness testify at all.
"The impressions left on the mind of a judge by a witness tend to fade with the passage of time," the Court observed. "In piecemeal trials spread over long periods, various judges might record evidence while the judge deciding the case might have had no advantage of looking at the demeanour of witnesses."
This is not a rare scenario. It is the daily reality of Indian trial courts, where case backlogs and frequent transfers of judicial officers mean that the judge who hears the evidence is often not the judge who writes the judgment. The file moves from bench to bench, but the subjective feeling — the "hollow insincere" — stays frozen in the record, untestable and unreviewable.
The problem with 'hollow insincere'
The Court looked at the specific note the trial judge had made. "Witness appeared uncomfortable, hesitant, nervous, hollow insincere." What did those words actually mean? Could an appellate court — reading the case file years later — understand what the trial judge saw? Could the witness ever challenge that impression? Could the opposing lawyer cross-examine a judge's feeling?
The answer to all these questions was no. A subjective impression recorded in a judge's own words cannot be tested. It cannot be verified. It cannot be reviewed. It is, the Court concluded, "utterly useless" in many common trial scenarios.
The Court was clear: trial judges "should not record the impressions left on the mind of a judge by a witness such as, appearing uncomfortable, hesitant, nervous, hollow insincere, avoiding to tell the truth, and a witness answering questions confidently in an unruffled, straightforward manner giving the true ring."
This was not a suggestion. It was a direction. A rule for how trial judges must behave.
The mechanics of recording demeanour
To understand the full weight of this ruling, one must look at the procedural mechanics of a trial. In a typical civil suit, witness examination unfolds in stages: examination-in-chief (the party's own lawyer asks questions), cross-examination (the opposing lawyer tests the witness), and re-examination (clarifications). During this process, the trial judge sits as a passive observer — listening, watching, and under the Evidence Act, noting the demeanour of the witness.
Demeanour, in legal terms, refers to the witness's conduct, appearance, and manner while giving evidence. It includes the tone of voice, hesitation before answering, shifts in posture, or a nervous glance towards the lawyer. The law has long permitted a judge to use these observations to assess credibility. But the law has never clearly defined how those observations should be recorded.
Consider a hypothetical: a witness in a property dispute is asked about a signature on a deed. The witness pauses. The witness looks down. The witness speaks in a low, uncertain voice. The trial judge, sitting three feet away, senses something is wrong. The judge writes: "Witness appeared hesitant."
That note, under the old practice, could become part of the judgment. But what does "hesitant" mean? Was the witness nervous about lying — or just nervous about being in court? Was the pause a sign of dishonesty — or a sign that the witness was trying to remember a genuine fact? The note itself provides no answer. It is a conclusion, not a fact.
The Supreme Court's ruling forces the judge to go one step back. Instead of writing "hesitant," the judge must write what the camera would have seen: "The witness paused for eight seconds before answering. The witness's hands were trembling. The witness avoided eye contact with the lawyer." These are observable facts. They can be verified. They can be challenged. They can be understood by an appellate court years later.
A brief history of demeanour in Indian law
The concept of demeanour evidence is not new to Indian law. Section 280 of the Code of Criminal Procedure, 1973, explicitly requires a magistrate to record the demeanour of a witness if the magistrate considers it material. Similarly, Order 18 Rule 12 of the Code of Civil Procedure, 1908, allows a judge to record remarks about the demeanour of a witness.
But these provisions have always been interpreted loosely. Trial judges, over decades, have treated them as permission to write down their personal impressions. "The witness was evasive." "The witness was not truthful." "The witness appeared to be lying." These phrases appear in countless trial court judgments across India.
The Supreme Court's ruling in Kishan Lal Gupta v. Dujodwala Industries And Ors. changes this. It draws a sharp line between what is permissible and what is not. A judge may record what the witness did — but not what the judge felt about it. The distinction is subtle but critical.
For decades, appellate courts have been reluctant to disturb a trial judge's findings on credibility, precisely because the trial judge had the advantage of seeing the witness. The Supreme Court's ruling does not take away that advantage. It simply says: if you want to use that advantage, you must create a record that preserves it for review. A note that says "witness appeared insincere" preserves nothing. A note that says "witness was sweating and avoiding eye contact" preserves everything.
Why this matters for every trial
For practising lawyers, this ruling changes how they read trial court records. A judge's note that says "witness appeared insincere" is now worthless on appeal. It cannot be cited. It cannot be relied upon. The appellate court will ignore it.
For trial judges, the message is clear: stick to what you can see and hear. Record the behaviour, not your interpretation of it. Your job is to create a record that another judge — years later, in a different courtroom — can read and understand.
For litigants, this ruling is a protection. A case should not be decided based on a judge's fleeting impression that cannot be questioned. The record must be transparent. The reasoning must be reviewable.
The ruling also reinforces a broader principle of procedural fairness. In piecemeal trials, where different judges record evidence at different stages, the judge who decides the case may have no advantage of looking at the demeanour of witnesses at all. In such cases, subjective impressions recorded by a previous judge are not just useless — they are misleading. They create a false sense of certainty in a record that is, by its nature, incomplete.
THE PLAY: When recording witness demeanour, write only what a camera would capture — never what only your gut can feel.
The Court ended where it began: with a judge's note that said nothing useful at all. The note — "uncomfortable, hesitant, nervous, hollow insincere" — is now a cautionary tale. It is a reminder that a judge's gut feeling, however strong, is not evidence. It is not reviewable. It is not reliable. And in the eyes of the Supreme Court, it is utterly useless.