Textbook on The Law of Evidence [10 Tenth Edition] 9789350355817

Citation preview

Textbook on

The Law of Evidence Tenth Edition Chief Justice

M Monir Universal Law Publishing

animprintof (LexisNexis

CONTENTS Preface to the Tenth Edition Preface to the Eighth Edition Table of Cases

V

xli

xix

Charts at A Glance

INTRODUCTION TO LAW OF EVIDENCE Preamble 1. History of the Law of Evidence 2. Lex Fori or Rule of the Place of Trial

5

PART I

RELEVANCY OF FACIS Chapter I PRELIMINARY 1. Short title, extent and commencement 1.

Extent and Scope

2. Judicial Proceedings 3. 4.

Courts Affidavits

5.

Arbitrators

2. Repeal ofenactments.-[Repealed]htgleathe1 3.

Interpretation

Sur

clause

"Court" "Fact" Meaning of fact

11

"Relevant" "Facts in issue" 1. Facts in Issue 2. Facts in Issue and Issues of Fact

Z

"Document"

12

3. Lawful Agreement of Compromise in Writing

"Evidence" 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Meaning of Evidence English Law Indian Law Evidence of Examination-in-Chief, Cross-examination and Re-examination Types of Evidence Proof of Circumstantial Evidence Admissibility of Evidence Panchsheel' in Respect of a Case based on Circumstantial Evidence Value of Circumstantial Evidence Affidavit Witnesses may Lie but Circumstances cannot Evidence of Prosecutrix Evidence of Eye-witness

14. Injured Eye-witness

2 2 3 13 14

14 15

7 9 19

[9 20

20

15. Statement under Section 313

20

vii

Textbook on The Law of Evidence

viii

16. Statement of Truthful Witness 16.1 Distinction between Inculpatory and Exculpatory Evidence

21

17. Statement under section 313 Cr.P.C. 18. Evidence of Interested Witness 19. Court to Reappraise the Evidence

1 23

20.

Admissibility of Tape-recorded

Evidence

23

21.

Testimony of a Child (11 Years

old)

21

21

23 24

22. Judicial Scrutiny of Depositions of Witnesses 23. Post event Conduct of a Witness 24. Trustworthiness of a Witness 25. Applicability "Falsus in Uno Falsus in Omnibus" 26. Eye-witness' Reaction on Seeing a Murder

24 24

27. Conduct of Eye-witness

25 26

28. Testimony of a Witness 29. Confession of a Co-accused is not Evidence Haricharan Kurmi v. State of Bihar

25 25

under Section 3:

26

30. Discrepancies in Evidence

31. Credibility of an Eye-witness

27

32. 33. 34. 35. 36. 37. 38. 39. 40.

28

Chance Witness Natural Witness Panch Witness Stock Witness Police Witness Sterling Witness Quality of Evidence in Criminal Proof of Unlawful Possession Corroborative Evidence

28 29 29

30

Trials

30

30 30

41.

Evidence of a Tracker

42. 43. 44. 45. 46. 47. 48. 49.

Evidence of Police Officer Electoral Roll Witness to be Reliable Appreciation of Evidence Conviction of an Innocent Person Promissory Estoppel Statement of a Hostile Witness Requirement of Proof of Evidence and Extradition Act, 1962

31

1 31 31

2 32

2 33 33

50. Document Illegally Procured "Proved"

"Disproved"

"Notproved brs 0ihnit1.

Proof

2.

What is Proof?

d1

33

33

iutntt

3 53

3. Standard of Proof 4. Not Proved 5. "Evidence and Proof" 6. "Matters before it"

7. Proof in Civil and Criminal 8. 9. 10. 11. 12. 13.

34

34 34

casesiasir21i

Benefit of Doubt Reasonable Doubt Suspicion is not Legal Evidence Circumstantial Evidence in Criminal Cases Evidentiary Value of Last Seen together Evidence Legal Proof and Moral Conviction

a

34

5 6 7 39

Contents 14. Prima Facie Evidence

41

15. Fact 'not Proved - 'Disapproved'

41

"India"

41 41 42

4. "May presume"

"Shall presume" "Conclusive proof" 1. 2.

42

42

Principle What is a

Presumption?

42 43 43 43

3. Presumptions of Fact or Natural Presumptions 4. May Presume 5. Presumption under Nature 6. Shall Presume

7. Distinction between the "may Presume" and "shall Presume" 8.

Conclusive

Proof

9. Conclusive Proof - Fraud or Collusion

43 44

44

Chapter II OF THE RELEVANCY OF FACTS 5. Evidence may be given of facts in issue and relevant facts

45 45

1. Facts in Issue and Relevant Facts

2. 3. 4. 5. 6. 7. 8.

Logical Relevancy and Legal Relevancy Legal Relevancy and Admissibility Admissibility and Evidentiary Value And of no others Relevancy of Evidence under an Illegal Objection to Evidence Criminal

5 6 Search or Seizure

47 47

Cases

9. Swift Progress of Trial Proceedings 6. Relevancy of facts forming part of same transaction 1.

Principle

of Res Gestae

2. Scope and Ambit of Section 6 3. Parts of the same Transaction

1. 2.

Principle Motive

3. Circumstantial Evidence and Motive 4. Motive in Criminal Trials 5. Motive based on Direct Evidence 6.

Preparation

7. Conduct 8. Conduct of any Party

48 48 48 49 49

4. Statements Admissible as Part of the Transaction 5. Statements under Section 6 are Admitted as Original Evidence 6. Relevancy of Facts 7. Victirh's Identification Admissible 8. Inference of Guilt of Accused 9. PIL-Can be Entertained on the Basis of Newspaper Information 7. Facts which are the occasion, cause or effect of facts in issue 1. Principle 2. Opportunity for their Occurrence 3. Foot-prints 4. Tape Recorded Statement 5. Circumstantial Evidence of Bloodstains

8. Motive, preparation and previous or subsequent

46

conduct

50 50 50 51 51

51

52 52 52 52 52 54

54 55

55 56 57

57 58

Textbook on The Law of Evidence

9. 10. 11. 12.

Murder Case Tape-recording Relevancy of English Law

Appreciation

of Evidence

Complaint-Distinction

58 58

between a Complaint

and a Statement 59

13. Relevancy of Statements under any Section of the Act 14. Silence Amounting to Conduct 15. Concatenation of Full Chain 9. Facts necessary to explain or introduce relevant facts 1. Principle 2. Introductory or Explanatory Facts 3. English Law 4. Facts which S rt or Rebut an Inference Suggested by a Fact in Issue or Relevant Fact 5. Facts in Criminal Trial

6. Facts Establishing Identity of thing or Person Identity

7.

of a Person as the

Doer of a Particular

Act

8. 9. 10. 11.

Identity of Person to Establish Parentage Identification by Photograph Test Identification Parades of Suspects Delay in Holding the Identification Parades

12. 13. 14. 15. 16. 17. 18. 19.

Failure to hold Test Identification Parade Identification only in the Court Identification of Idol Evidence of Identification Parade and Section 162, Cr. P.C. Facts Fixing Time and Place Facts Showing Relation Modes of Identification Purpose of Test Identification Parade

10. Things said or done by conspirator in reference to common design 1. Principle 2. Scope 3. Meaning of Conspiracy 4. Conspirators 5. Conspirators as Agents 6. Proof of Conspiracy 7. Test of Admissibility 8. Reasonable Ground to Believe 9. Common Intention 10. Admissibility and Period of Conspiracy 11. English Law and Indian Law-Difference

59 59 60 60 60 61 61

62

62 62 62 63 63 63 63 64 65 65 66 66 67 67 67 68 68 69 69 70 71 71 71 72

12. AcquittalofsomeoftheConspirators9ti, )

e

74 74

14. 13. Essentials Criminal Conspiracy of Section 10

11. When facts not otherwise relevant become relevant 1. Principle 2. Scope 3. Plea of Alibi

74

75 75

75

4. Is Section 11 Controlled by more Specific Provisions of the Act?

7.

Section 11 and Section 32 Sections 11 and 54 Section 11 and Sections 45 to 55

8.

Exceptions

5. 6.

9. Test of

Admissibility

under Section 11

t6

78 78 78 78

Contents

10. Circumstantial Evidence Death of a Married Woman 11. Facts Inconsistent with fact in Issue or Relevant Fact 12. Highly Probable or Improbable 13. Instances of Improbability 12. In suits for damages, facts tending to enable Court to determine amount are relevant 1.

Principle

30

81 81

9

7. Modes of Proving Customyh ait ve snioosmmq ot

hsq

Transaction

9. Particular Instance 10. "Transaction by which and Instances in which" 11. Claimed 12. Section 18 of the Land 13. Recognised 14. Assertion

Acquisition

Act

unini

5iteieod

n

6

i1.Principle 2. Scope

existence of state of mind, or of body or bodily feeling

Relevancy of Similar Facts may be Summed up as Follows

90 90

to Notice?

0

0

Proceedings

intentional

3. Difference between Sections 14 and 15oq les1ege enoisrinabe to-01 or Intentional

5. Series of Similar Occurrences

16. Existence of course of business when relevant 1. 2. 3. 4. 5. 6. 7.

B8

89

1. Principle 2. Scope Accidental

55

39 89

11. Ill-will or Good-will 15. Facts bearing on question whether act was accidental or

4.

83 83 83

B8

7. Conscious Possession 8. Does Registration Amount 9. Negligence and Rashness

Matrimonial

83 83 83

S7

4. Intention 5. Knowledge 6. Notice

10.

2

84 85

Cases

14. Facts showing

82 82

33

15. Relevancy of Judgments not Inter-partes

Law as to

79

B0

4. Suits in which Damages are Claimed 13. Facts relevant when right or custom is in question 1. Principle 2. Scope Kinds of Rights and Customs 3. Section Applies to All 4. Customs and Usage 5. Essentials of Valid Custom 6. Proof of Custom

3.

79

79 30

Scope 3. Damages

16.

78

79

2.

8.

78

Principle Scope: Difference between Section 16 and Illustration () to Section 114 Course of Business Posting, Post Mark and Postal Delivery Postal Delivery Notice Sent by Registered Post: Endorsement Refused Certificate of Posting

0 1

92 92

2

92

3 3 3

93

4 94 94

94

Textbook on The Law of Evidence

xii

Admissions 17.

Admission defined 1.

What is an

Admission?

2. Requisites of an Admission 3. Admission when Evidence Distinction between Admissions and Confessions 5. Importance of the Distinction 6. Form of Admissions 7. Different kinds of Admissions 8. Admission by Conduct 9. Admission on Pure Matter of Law 10.

Admission as to Factum of Partition

11. Proof of Admission 12. Mode of Proof of Admissions 13.

Admissions

must be Taken as a whole

14. Should an Admission be put to the Maker? 15. Effect of Admissions 18. Admission by party to proceeding or his agent 1.

Principle

2. Kinds of Admissions 3. Scope (1) Admission by parties to the proceeding Parties in criminal cases

In civil suits (2) Admissions by agents Admissions by pleader, counsel or solicitor 3) Parties suing or sued in a representative character (4) Admissions by persons who have any proprietary or pecuniary interest (5) Admissions by persons from whom the parties to the suit have derived their interest 4. Privies 5. Statement of Admission in 6. Admission made on Behalf

19. Admissions

Judgment of the State by persons whose position must be proved as against

party to suit 1. Principle 2. Scope

20. Admissions by persons expressly referred to by party to suit 1.

Principle

2. Scope 3. Admissions by Referee in Criminal Cases

4 5 95

6 6 96

7 97

7 97

8 8 8 99 100 100 100 100 101 101

101 101 101 101 101 102

102 102 103

103 103 103 103 104 104 104

21. Proof of admissions against persons making them, and by or on

their behalf

1. 2. 3. 4. 5. 6.

Principle Scope Analysis of the Section As against the Person who makes them His Representative in Interest Exceptions (a) Clause (1): Statements relev under section 6) Clause (2): Statement as to existence of state of mind or body

() Clause (3; Statements relevant otherwise than as admissions

104 105 106 106 106 107 107 107

107 107

xiii

Contents

7. Effect of Admissions 22. When oral admissions as to contents of documents are relevant records are relevant 22A. When oral admissions as to contents of electronic 1. 2.

Principle

Scope

23. Admissions in civil cases, when relevant 1.

Principle

108 108 109 109 109 109 109

2.

Scope 3. Without Prejudice

24. Confession caused by inducement, threat

108 108

or promise, when irrelevant

in criminal proceeding

110

1. 2. 3. 4. 5. 6. 7.

111 111 111

Principle Scope Conditions for Relevancy of a Confession Confession Judicial Confession Mere Conduct is not a Confession Exculpatory Statements are not Confessions

8. Statement Partly Inculpatory and Partly 9. Acknowledgment of Subordinate Facts

Y /3}12o} 112

Exculpatory

10. Classes of Confession

11. Confession not made to Police Officer 12.

Confession and Admission

13. Admissibility of Confession 14. 15. 16. 17. 18. 19. 20. 21.

Omission to Obtain the Signature of the Maker Confession Recovery of Articles Test of Admissibility of Confession Test of Exclusion of Confession Confession and Article 20(3) of the Constitution Burden of Proof Effect of Section 80 Retracted Confession

22. The Rule of Prudence in the Cases of Retracted Confession 23. Extra-judicial Confession 24. Evidentiary Value of Extra-judicial Confession

25.

26. 27. 28. 29. 30. 31. 32. 33. 34.

Extra-judicial Confession - Delay in Recording Recording of Confession by Magistrate in his Private Capacity Uncorroborated Extra-judicial Confession Extra-judicial Confession to Establish Guilt Discrediting Testimony of Witness Confessional Statement Confessional Statement under Threat and Pressure Judicial or Extra-judicial Confession Proof of Judicial Confession Credibility-When Magistrate Used the Expression "Evidence"

113 114

114 115 115 116 116 116 116 117 117 117 117 117 118 118 T18 119 120 122 123 124 124 124 124 125 125 125 125

Instead of "Confession" 35. Evidentiary Value of Confession

126 126

36. 37. 38. 39. 40. 41.

126 127 127 127 127

Confession and Indian Constitution Word 'Appears or Promise Caused by any Inducement, Threat Having Reference to the Charge The Accused Person Person in Authority

e 127

xiv

Textbook on The Law of Evidence

42. Temporal Nature 43. Confession under TADA 25. Confession to police officer not to be proved 1. Principle 2. Scope 3. Section 25 and Section 26 4. Confession 5. Police Officer 6. Confession made before Officer under N.D.P.S. Act 7. Admissibility 8. Confession and F.IR. 9. Confession Recorded under TADA Act, 1987, Section 15 is Substantive Evidence 10. Confession under TADA Act and Retraction at Later Stage

128 128

128 128 128 129 130 130 131 131 131

132 133

26. Confession by accused while in custody of police not to be proved against him 1. Principle Scope

Confession 4. Custody 5. Police Officer 6. Statements not Amounting to Confession are Admissible Immediate Presence of a Magistrate Doctrine of "Excluding the Fruit of a Poisonous Tree" 9.

Section 8

27. How much of information received from accused may be proved 1. Principle 2. Scope

3. Word

Distinctly'

4. Section 27 Qualifies Sections 24, 25 and 26 5. Applicability of Section 27

6. Section 27 does not Offend the Constitution (Equal Protection of the Laws)

Section 27 and Article 14 141 141 141

7. Section 27 and Article 20 (3) (Self-incrimination) 8. Section 27 Unaffected by Sections 161, 162, Cr. P.C. 9.

Section 27 and Section 26

10. Section 27 and Narco Analysis,

11. 12.

16. 17. 18. 19. 20. 21. 22. 23. 24.

142 142

Polygraph and BEAP Tests

Essentials of Section 27 Provided that 13. Any Fact 14. "Discovery of Fact" does not Comprehend 15. Discovery of Fact

133 134 134 134 134 135 135 135 135 135 135 136 137 138 138 138

143

a Pure and Simple

Discovery Concealment of Weapon Discovery of Electric Wire Evidence Regarding Recovery Deposed to Fact Discovered in Consequence of Information Statement of the Accused Inadmissible Evidence of the Investigating Oficer Disclosure Statements Received from a Person Accused of any Offence in the Custody

Police Officer 25. Not Necessary to take the Informant Accused to the Spot

143 143 Mental Fact 144 144 145 146 146 146 147 147 148 148

of a 149

150

Contents 26. So much of such

XV

Information as Related Distinctly to the Fact

thereby Discovered 27. Whether it Amounts

to Confession or not

28. Joint Statements

29. Statement Admissible under Section 27 cannot be Proved against others 30. Information must Precede Discovery 31. Evidentiary Value of the Discovery and the Accompanying Statements 32. Pointing out Places

33. Evidence of Recovery 28. Confession made after removal of impression caused by inducement, threat or promise relevant 1.

Principle

2. Scope

29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. 1. Principle 2. Scope

4. Deception 5. Confession in Answer to Question

6. Want of Warning 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence

A2

1. Principle 2. Scope 3. Essentials of Section 30

4. Are being Tried Jointly 5. Admissibility of Confession of a Co-accused who Pleads Guilty (1) Joint trial-Warrant Cases (2) Joint Trial-Session Cases, Plea of Guilty Accepted, No Joint TrialInadmissibility of the Confession of the Accused Pleading Guilty (3) Joint trial-Summons Cases-Plea of Guilty For the same Offence

7. Confession

Affecting himself and some

9. 10

155 155

156 156

156 157 157 157 157 158 158 158 158 159

other of such Persons:

Test of Admissibility 8.

154 154 154

155 155 155

Confession Otherwise Relevant

6.

150 152 152 152 152 152 153 154

159

Applicability of the Section to Confessions made at the Trial as well as to those made before the Trial Eviderntial Value of the Confession of a Co-accused, Conviction on such Confession, whether Legal Confession of a Co-accused is not Evidence within the Meaning of Section 3 of the Evidence Act Expression "the Court may take into Consideration such Confession" Corroboration of the Confession of a Co-accused Necessary Reasons for Requiring Corroboration Nature and Extent of Corroboration

11. 12. 13. 14. 15. Retracted Confession 16. Evidentiary Value of Retracted Confession 17. Section 27 and Section 30 18. Confession Recorded by a Judicial

Magistrate

19. Confession made to an Authorised

Officer

31. Admissions not conclusive proof, but may estop

2 Scopee22uTYI terhabt ciiF? A

3eAJD

159 160 161 161

162 162 162 162 163 163 163 164 164 164 165

xvi

Textbook on The Law of Evidence

3. Admission 4. Admissions 5. Admissions 6. Admissions 7. Admissions

and Estoppels and Waiver of Presumptions are not Conclusive

165 165 165 165

Proof and may be Proved to be Untrue

or Mistaken 8.

165 166

Admissions Shift Onus

9. Admissions in Pleadings 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant 1.

Principle

CLAUSE 1. DYING

DECLARATIONS

2. Principle 3. Difference between the English Rule 4. Forms of Dying Declaration

and the Indian Law

5. Format of Dying Declaration 6.

Evidentiary

Value of a Dying Declaration

7. Admissibility of Dying Declaration 8. Dying Declaration cannot be Cross-examined 9. Some Important Guidelines About Acceptance

of Dying Declaration

10. Incomplete Dying Declaration 11. 12. 13. 14. 15.

Can a Dying Declaration form the Basis of Conviction Genuineness of Multiple Dying Declarations Dying Declaration and Medical Certificate Dying Declaration as an F.IR. Burn Case Dying Declaration Recorded by a Doctor

16. Burn Cases 17. 18.

Dying Declaration -

Site Inspection Report

Dying-declaration to his Relatives Credibility of a Dying Declaration

19. Dying Declaration Re-appreciation of Evidence 20. Effect of the Dying-declaration not Recorded by the Magistrate 21. Oral Dying Declaration 22. Procedure of Recording Dying Declaration 23. Dying Declaration and Corroboration 24.

25. 26. 27. 28. 29. 30. 31. 32.

Compliance with Section 164 of the Criminal Procedure Code Person to whom a Dying Declaration may be Made Consistency in Dying Declarations of F.L.R. as Dying Declaration

Proof of Dying Declaration

Presumption under Section 80 Applies to a Dying Declaration Unreliable Dying Declaration 33. Evidentiary Value - Discrepancy as to Place of Occurrence of a Brain Injured Person 34. Dying Declaration Reliability When Time Gap of Few Days between Declaration and Death

CLAUSE 2. DECLARATIONS IN cOURSE OF BUSINESs

OR DUTY

35. Reason of the Rule 36. Difference between the English and the Indian Rule 37. Condition Precedent to the Admissibility of the Declaration

38. Circumstances under which the Statement is Made 39. 40.

166 169 170 170 171 172 172 172 174 175 175 176 176 177 179 180 180 181 181 181 184 184 184 185 185

186

Statement Made before a Police Officer

Admissibility

166

187 187 189 189 189 190 190

190 190

191 191 191 191

191 192

Difference between Section 32(2) and Section 34

192

CLAUSE 3. DECLARATIONS

192 192

Principle

AGAINST INTEREST

Contents

xvii

41. Section 32(3) and Section 21(1) - Difference between Admissions and Statements Admissible under this Clause 42. Account Books 43. Statement against Proprietary Interest 44. Statement against Interest 45. Statement Exposing its Author to a Prosecution or Suit for Damages 46. Admissibility of Confessional Statements to the Police made by a Deceased Accomplice is Doubtful

193 193 193 193 193 194

CLAUSE 4. DECLARATIONS AS TO PUBLIC AND GENERAL RIGHTS 47.

Principle

48. Conditions of Admissibility Matter of Public or General Interest 49. Public Right or Custom, or 50. Statements must have been Made before the Commencement Controversy: Lis Mota, Section 32(4) and Section 49

CLAUSES 5 AND 6. 51. Principle

DECLARATIONS

52. Points of Difference between 53. Scope of Section 32(5)

54. Persons having Special 55. Scope of Declarations

of the 195 195 195 195 195

AS TO PEDIGREE

Clauses 5 and 6

196 196 196

Means of Knowledge

56. Admissibility ofPedigreeunderClause (6)uq ni ybtu 57.

197

Section 32(5) and Section 90

58. Clause (7)-Declarations Relating to a Transaction by which a Right is Created, etc. 59. Application of Clause (7) 60. Statement Contained in a Document Relating to any such Transaction as

is Mentioned in Section 13(a) CLAUSE 32(8): STATEMENTS MADE BY A NUMBER OF PERSONS EXPRESSING THEIR FEELINGS OR IMPRESSIONS 61. Principle 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated 1. Principle 2. Scope 3. Sections 32

and 33

4. Register of Births and Deaths 5. Conditions

of Section 33 must

be Strictly

197 197 197 198 198 198 199 199 200 200

Satisfied and the Provisions 201 201 201 201 202 202 202 202 202

used Sparingly 6. Section 33 and Section 288 of the Code of Criminal Procedure 7. Statement Recorded under Section 161 of Cr. P.C.

8. Waiver of Proof of

194 194 194 194

Inapacity to Testify

9. When the Witness is Dead 10. When the Witness cannot be Found 11. Section 512 of the Code of Criminal Procedure

12. Incapable of Giving Evidence Way by the Adverse Party 13. When a Witness is Kept Out of the 14. Unreasonable Delay and Expense 15. The Evidence must have been given in Judicial Proceedings 16. Persons Authorised by Law to take Evidence

17.RelevancyofEvidencein MutationProceedings nuie J& 7 118. Proviso 1-Identity ofParties

19. Proviso 2-The Right and Opportunity to Cross Examine

202 203 203

y 203

Lt9

203 203

xvii

Textbook on The Law of Evidence

20. Witness Dying before Conclusion of Cross-examination 21.

Admissibility

Deposition Doubtful

204

Proviso 3: Identity of Issues

204

34. Entries in books of account form when relevant 1. Principle

including those maintained in an electronie 205

205 205 205 206 206 206 206 206 206

2. Scope 3. English Law 4.

Section 34 and

Section 32(2)

5. Accounts Relevant under other Sections also 6. Ingredients of Section 34

7. Books of Accounts

8. Hotel Register Not "Books of Accounts" 9. 10. 11. 12. 13. 14. 15. 16.

Regularly Kept in the Course or Business Incorrect Entries Absence of Entry Mode of Proof of Accounts Person Calling for Account Books is Bound by All Entries Such Statements shall not be Sufficient Evidence Banker's Book Evidence Act, 1891 General Ledger Entries

35. Relevancy of entry in 1. Principle 2. Scope

3. Relevancy of Entry in Public Record 4. Contemporaneousness-Personal Knowledge 5. Entry in the Official Record by an Official or Person Authorised 6. Entry in Excess of Official Duty or by Unauthorised Person

I7. AbsenceofEntry

Public or other Oficial Register, Book or Record-Public Servant First Information Report (FIR) Recital of Relevant Facts in Judgments and Decrees Inter Partes Admissibility of Registers of Births, Marriages and Deaths Relevancy of Entry made in Govt. Land Register of Cantonment Board

13. School Registers, Records and Certificates 14. Revenue Records 15. Annual Village Papers 16. Determination of Age and Ossification Test 17. Evidentiary Value of Horoscope

18. Evidentiary Value of Entry in Voters' List 19. Official Gazette and Subordinate Legislation 20. Gazetteer 21. Patta 22. Khasa

36. Relevancy of statements in maps, charts and plans 1.

Principle

2. Scope 3. Plans made under the 4. Survey Maps

Authority

37. Relevancy of statement as to fact of public nature, certain Acts or notifications 1. Principle 2. Scope

207 207 207 207 207 208 208

public record or an electronic record made in

performance of duty

8. 9. 10. 11. 12.

of

208 209 209 209 210 210 211 211 211 211 211 212 212 212 213 214 214 214 215 215 215 215 215 215 215 215 216 216

contained in 216

xix

Contents

38. Relevancy of statements as 1.

to any law contained in law-books

Principle

2. Proof of Foreign Law 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers

1.

218 218 219 219 219 220 220 220 221 221 221 222 223 223 223

relevant to bar a second suit or trial

Principle

2. Scope

3. Relevancy of Judgment of Court 4. Respective Judgments of Civil and Criminal Courts 41. Relevancy of certain judgments in probate, etc., jurisdiction 1. Principle 2. Scope 3. Judgment in rem 4. Construction of Section 41 5. Final Judgment 6. Competent Court

7J.udgmenotP f robatC eourts ig

tqxa gaiinwrli

8. Legal Character 9. Matrimonial Jurisdiction 10. Civil Procedure Code, Order IX, rule 13

3

e

223

7

11. Judgments of Foreign Matrimonial Court 12. Admiralty Jurisdiction 13. Insolvency Jurisdiction 14. Foreign Judgments Declaring Status 15. Judgment by Compromise 42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 1. 2. 3. 4. 5. 6. 7. 43.

Principle Scope Section 42 and Section 32(4) and Section 48 Matters of Public Nature Matters of a General Nature Judgments on Questions of Custom or Usage Not Conclusive Judgments, etc., other than those mentioned in sections 40 to 42,

when relevant 1. Principle 2. Scope 3. Respective Judgments of

121

1. Principle

sosvsis ei

223 224 224 224 224 224 224

225 225 225 Z20 225 LZO

226 226

0t27

Criminal and Civil Courts 44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved 1. Principle 2. Scope 3. By a Court not Competent to Deliver it 4. Obtained by Fraud or Collusion 5. Fraud' Vitiates All Transactions 6. Fraud and Collusion: Distinguished 45. Opinions of experts

25

217

218

1. Principle 2. Scope 3. General Remarks about Judgments

40. Previous judgments

217 217 217

226 227 227 227 228 228 229 229 229 230 231

232

nuhezey7t ipi Jo 32ntzixo ul et rcoing) 233

Textbook on The Law of Evidence

2. Scope - Fact and Opinion 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

233 233 233 234 234 234 235 235

Who is an Expert? Differernce between Expert and Non-expert Witness The Competency and Credit of an Expert Expert Opinion Foreign Law Science or Art Medical Experts

Contradiction between Medical and Ocular Evidence 235 237 Admissibility of Report of Brain Mapping Test Admissibility of Telephonic Conversation Tapping by Husband of his Wife 237 Identity of the Corpus Delicti 237 Determination of Time of Death 237 Value of Medical Evidence 238 Evidence of an Armourer 239 Value of Medical Opinion as to Age 239 Official Acts have been Regularly Performed 239 Opinion of Handwriting Expert 240 In Questions as to Identity of Handwriting 240 Value of Testimony of Hand-writing Expert 241 Necessity of Handwriting Expert Opinion 241 Genuineness of Signature 242 Finger-impression 242 Value of Testimony of Finger-print Expert 242 Foot-print Expert (Section 57) 242 Fire-arms Experts 242 Post-mortem Report 243 Ballistic Expert's Opinion 243 244 Opinion as to Typewritten Matter Opinion of Expert on Type Script Value of Expert Opinion in General 244 Scientific Opinion Evidence 244 245 D.N.A. Test- When can be Ordered Recovery Commission of Crime 245

S244

36. Chemical Analysis of Drugs

245 245

37. Expert Opinion as to Musical Work 38. Policy and Regulatory Matters 39.

246 246 246

Gazetteer

40. Arbitral Tribunal

45A. Opinion of Examiner of Electronic Evidence 46. Facts bearing upon opinions of experts 1. Principle 2. Scope

47. 47A.

Opinion as to handwriting when relevant Opinion as to electronic signature when relevant 1. Principle 2. Scope 3. Rebuttal Statement

4. Evidence of Non-expert against Hand-writing Expert Value of

5. Person acquainted with Handwriting 6. Whether Hand-writing Includes Signature or Mark 7. Habitually 48. Opinion as to existence of right or custom, when relevant

o2

246 246 247 247 247 248 248 248 249 249 250 250

250 250

Contents

KXI

250

1. Principle 2. Scope: Section 49 and Section 13

250 251 251 251 251

3. Section 48 and Section 32(4)

4. 5. 6. 7.

General Custom of Rights General Customs Whether Customs Include Usage

8. Proof of Customs 49. Opinions as to usages, tenets, etc., when 1.

251

relevant

Principle

2. Sections 49 and

60-Apparent

Conflict Resolved

3. Usages 4. Tenets

21A

5. Meaning of Words, etc. 6. Special Means of Knowledge 50. Opinion on relationship, when relevant 1. Principle 2. Scope 3. Essentials of Section 50 4. Sections 50 and 32(5)

5. Opinion 6. Relationship

7. Sections 50 and 114 (Relationship of Marriage between Two Persons) of Father and Son 8. Opinion as to Relationship

9. Suit for Partition 10. Conduct 11. Special Means of Knowledge 12. Value of Evidence Relevant under

Section 50

13. Bigamy (Hindu Marriage Act) 14.

ion is

Proviso

15. Section 488 of the Criminal Procedure Code 51. Grounds of opinion, when relevant

rC

1. Principle 2. Scope of Sections 51 and 46 3. Scope of Sections 52 to 55 (Character when Relevant)

258 258 258 258 258

Character when relevant 52. In civil cases character to prove conduct imputed, irrelevant 1. Principle 2.

Scope

53. In criminal cases, previous good character relevant 1. 2.

258 259

Principle Scope

3. Value of the Evidence of Good Character 4.

259

Fact

259

53A. Evidence of character or previous sexual experience not relevant in certain cases 54. Previous bad character not relevant, except in reply 1. Principle 2. Scope 3. Character 4.

5.

12d ionbg

1 Explanation 2

Explanation

6. Character of the

252 252 252 252 252 253 253 253 253 253 254 254 254 254 254 255 255 256 256 256 257 257 257 257 257 257 258

Prosecutors

teaTt

at

259 259 260 260 260 260 261 261

Xxii

Textbook on The Law of Evidence

55.

Character as affecting damages 1. Principle 2. Scope - Is the Character of any one else Relevant? 3. Cases where Bad Character of the Plaintiff Affects the Amount

261 261 262

of Damages 4. Character 5. Reputation and

262 262 262

Rumour

PART II ON PROOF

ChapterIl FACTS WHICH NEED NOT BE PROVED 56. Fact judicially

263

noticeable need not be proved

263

1. Principle 2. What is Judicial Notice? 3. Judicial Notice as to Proper Name of a Person

oisig

57. Facts of which Court must take judicial notice 1. Principle 2. Notification 3. Licence 4. Personal Law 5. Custom 6. Law Reports

7. Clause(2)-Acts ofParliamentof theUnitedKingdom 8. 9. 10. 11.

Clause (3)-Articles of War Clause (4)-Course of Proceedings Clause (6)-Seals Clause (7-Judicial notice to be Taken of Gazetted Officers

12.

Clause (8)

13. Claus(e9)-

DivisionsofTime

rA

sloi

t

15. Public HolidaysDivisions 14. Geographical 16. Clause (11)-State of War 17. Clause (13)-The Rule of the Road on Land 18. The Rule of the Road at Sea

19. Section 57 not Exhaustive 1D 20. Reference to Appropriate Books and Documents of Reference 21. Reference to Standard Works on Matters of Public History,

Literature, Science or Art 22. The Judge cannot Utilize his Personal Knowledge 23. Judicial Notice Regarding Chemical Laboratory in Village 24. 25. 26. 27. 28. 29.

Land Acquisition Act Rise in Value of Land Increase in Rents Use of Liquor by Younger Generation Judicial notice of Increase in Prices of Landed Property Maximum Crimes are Committed in Four Wheelers with

Windows/Windshields 30. Reluctance of Public to Appear and Depose before 58. Facts admitted need not be proved 1.

Principle

2. How and when may Admissions

be Made?

o

Court

Black Films on

263 263 264 264 265 266 266 266 266 267 267 267 267 267 267 267 267 267 267

267 267 267

268 268 268 268 268 268 268 269 269 269 269 269 269 270 270

xxii

Contents 3. 4. 5. 6. 7. 8. 9. 10.

270 270

Implied Admissions or Admissions Made by Non-traverse Admissions by Counsel Admissions in Pleadings and Evidentiary Admissions Evidentiary Value of Admissions Made in Pleadings Effect of Admissions Admissibility of Document When must be Raised Is Section 58 Applicable to Criminal Trials?

270 271 271

271

272 272 272 272

Proviso

11. Suit for Declaration of Title and Possession 12. Admission Made by a Party to the Suit in an

Earlier Proceeding

Chapter IV OF ORAL EVIDENCE

273

59. Proof of facts by oral evidence 1.

273

Principle

e

2. Meaning of Oral Evidence 3. Evidentiary Value of Oral Evidence

273 273 274

4. Falsus in Uno Falsus Omnibus

5. Appreciation of Oral Evidence 6. Oral Evidence in Construction of Insurance Policy 60. Oral evidence must be direct 1. 2.

3.

274 274 274 275 275

Principle What is Hearsay

Evidence? Meaning of Direct Evidence

273

in English Law and under the

Indian Evidence Act

275

4. Statements made by Persons not Examined as witnesses may in some Cases Amount to 'Original' as Distinguished from Hearsay' or

Derivative Evidence 5. Reasons for Exclusion of Hearsay 6. Exception to the Rule against "Hearsay 7. Admissibility of Oral Evidence as to Relationship 8. Cases 9.

10.

Proviso 1: Section 60 and

Proviso 2: Compare

Section 57

with Section 165 of the Act and

Order

275 276 276 276 276 277 XVII, Rule 18 277

Chapter V OF DOCUMENTARY EVIDENCE 61. Proof of contents of documents 62. Primary evidence 1.

Principle

2. Explanation 3.

Explanation

1-Documents

Executed in Several Parts

2

278 78 s1 2728 279

19

4. Newspaper 5. Carbon Copies 63. Secondary evidence 1. Principle 2. Scope-Sections 63 and 65: Definition and Admissibility of

Secondary Evidence

3. Admissibility of Documentary 4. Loss is not Required to be Proved 5. Clause (1)-Certified Copies 5.1. Certified copy is not proof of

EvidencersdW( the execution and genuineness

279 279

oul 280 280 280 281 281 281

283 283 283

xiv

Textbook on The Law of Evidence

6. Clause (2-Copies made by Mechanical Processes and Copies Compared with such Copies 284 7. Clause (3)-Copies Made from or Compared with the Original 284 8. Clause (4)-Counterparts of the Documents 284 9. Clause (5)-Oral Accounts of the Contents of the Document Given by the Person who has himself seen it 284 10. Non-production of Draft of Will 285 11. "May be Accepted as Evidence"

285

12. Production of Documents in Court Proof of documents by primary evidence

285 285 286

1. Principle 2. Scope

286

3. Admissibility of Documents 4. Proof of Contents of Documents 65. Cases in which secondary evidence relating to documents may be given 1.

2. 3. 4. 5. 6. 7. 8. 9. 10.

Scope Admissibility of Evidence Certified Copy of Will Marked as Exhibit

without Objection

Permission to Lead Secondary Evidence Clause (a) Notice Necessary Legally Bound to Produce it Production of Secondary Evidence 11. Clause (b) 12. Admission Conclusive

13. Proving of Agreement

14. Clause (c) 15. Clause (d) 16. Clause (e)

17. 18.

Clause () Clause (g)

19. Last four Paragraphs of the Section: Degrees of Secondary Evidence 20. Admissibility of Xerox Copy on Condition of Payment of Stamp Duty and Penalty 21. Use of the Unstamped and Unregistered Document

65A. Special provisions as to evidence relating 65B. Admissibility of electronic records 1.

to electronic record

Insertion of Sections 65A and 65B

2. Video Conferencing 3. Admissibility of Tape-recorded Version under Section 65B 66. Rules as to notice to produce 1.

Principle

2. Notice to Produce is Necessary whether the Document be in the Possession of a Party or a Stranger 3. Form of notice 4. Proviso (a) Proviso (1)-When

the document is itself a notice

(b) Proviso (2)-Implied notice in pleading (c) Proviso (3) (d) Proviso (4)

286

288 288

Principle

Rule of Estoppel-Secondary Evidence Admitted

286 286

10.t 2

289 289 289 290 290 290 290 291 291 291 291 291 291 291 292 292 292

293 293 293 293 295 295 297 297 297 298 298 298 298 298 298 298

Contents (e)

XXV

298 298

Proviso (5)

() Proviso (6) 67. Proof of signature and handwriting of person alleged to have signed or written document produced 67A. Proof as to electronic signature 1.

Principle

2.

Scope

3. Judicial

Admission

298 298 299 299 299

300

4. Mode of Proof of Signature or Writing 5. Signed 6. Execution of Documents

301 301

7. Proof of Execution of Document

301 301 302 302 302 304 304 304 305 305

68. Proof of execution of document required by law to be attested 1. 2.

3.

Principle Scope Attestation of a Will

4. Will duly Executed 5. When Attesting Witnesses 6.

Need not be Called

Proviso

7.MortgagP e rovedbyCertifiedCopyy nusoh idy 8. Gift Deed 9.

o e91gosi

J7 07g t ru

Wills

10. Mode of Proof-Specific Denial rroitovbyg yd efn9tnwbob io 69. Proof where no attesting witness found 70. Admission of execution by party to attested document

305 306 306

lour.305

306 306 307

Principle 71. Proof when attesting witness denies the execution 1. Principle 2. Scope

0.3l 151Dt

ure 6 toUT

72. Proof of document not required by law to be attested Principle 73. Comparison of signature, writing or seal with others admitted or proved 73A. Proof as to verification of digital signature 1. 2. 3. 4.

Principle Scope: Modes of Proof of Signature or Handwriting By Whom it Purports to have been Written Disputed Writing can be Compared only with an Admitted or

Proved Writing 5. 6. 7. 8. 9. 10.

Word "Admitted" Comparison may be Made by the Judge, the Jury or an Expert Value of Comparison by Court Comparison of Disputed and Admitted Signatures Authenticity of Thumb-impression give his Finger Impressions Court can Order an Accused Person to

307 307 307 307 308 308 308

309 309 309 310

for 312

Purposes of Comparison 11. Testimoníal Compulsion-Under 12. Doctrine of Undue Enrichment

Article 20(3) of the Constitution of India 312 312

Public Documents

313

ste

74. Public documents 1. Scope of Sections 74

307

to 78 (Public

Documents)

2.Principle isu 3. Scope

4. Documents Forming the Acts or Records of the Acts

313 313

7H3698313 314

Textbook on The Law of Evidence

XXVi

5. Acts or Records of the Acts of the Sovereign Authority 6. Acts or Records of the Acts of Official Bodies and Tribunals 7. Acts or Records of the Acts of Judicial Officers and Tribunals 8. Distinction between the Record of the Court and the Record of the

Act of the Court

315 315

9. Sale deed 10. Revenue Records 11. Muntakhab

12. Section 74(2): Public Records kept in any State of Private Documents 13. Certified Copy of the Power-of-attorney 14. Disability Certificate 15. Income-tax Returns 16. Annual Return of a Company 17. General Land Register of Cantonment Board 18. 'Res Judicata"-Secondary Evidence 19. State Register of Driving Licence 20. Certified Copy of Annual Returm of a Company 75. Private documents

Principle 76. Certified copies of

public documents 1. Birth Certificate 2. Certified Copy of Plaint

77. Proof of documents by production of certified copies 1.

Principle 2. Scope 3. Remedy of the Aggrieved Person where Inspection

111 9

Presumptions as to documents Scope of sections 79 to 90 copies Presumption as to genuineness of certified

01asrgr

1. Principle 2. Certified Copy of Birth Certificate 80. Presumption as to documents produced as record of evidence 1. Principle Sections 80 and 33

3. Judicial Proceeding 4. Effect of the Certificate

320 320 320

wl vihevarfa onnsmu3ob1oinor1321

1. Principle 2. Scope

2.

315 315 316 316 316 316 317 317 317 317 317 318 318 318 318 318 319 319 319

of Copy has been

Wrongly Refused 4. Evidentiary Value of Marriage Certificate 78. Proof of other official documents

79.

314 314 314

by a Committing

321 322 322 323 323 323 324 324 324

Magistrate under Section 360 of

the Code of Criminal Procedure

5. StatementorConfessionof theAccused Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents 81A. Presumption as to Gazettes in electroniç forms

325 325

81.

1. 2.

82.

Principle Presumption as to Gazetteer

3. A Newspaper is not Proof

of the Facts Reported

4.

Notification admissib

Presumption as to Gazette Presumption as to document

seal or signature

Principle

325 326 326 326 326 327

in England without proof 327 327

xXvii

Contents

83. Presumption as to maps or plans made by authority of Government 1.

327

Principle

327 327 327 328 328 328 328 328 329 329 329 329 330 330 330 330

2.

Scope 3. Section 83 and section 36: Maps and Plans 4. Authenticity of Certified Copy of Thakbast Khesras and Maps 84. Presumption as to collections of laws and reports of decisions 1. Principle 2. Collections of Laws and Reports of Decisions: Sections 38 and 84 85. Presumption as to powers-of-attorney

85A. 85B. 85C. 86.

1.

Principle

2. 3.

Presumptions as to Powers-of-Attorney Authentication by a Notary Public

4. Presumption of Foreign Power-of-Attorney Presumption as to electronic agreements Presumption as to electronic records and electronic signmatures Presumption as to Electronic Signature Certificates Presumption as to certified copies of foreign judicial records

331

1. Principle 2. Scope 87. Presumption as to books, maps and charts

331

331 331 331 331 332

Principle 88. 88A.

Presumption as to telegraphic messages Presumption as to electronic messages 1.

Principle

2. Scope and Extent of the Presumption 3. Presumption as to the Date and Hour

of734. 332

of the Message 4. Mode of Proof of a Telegraphic Message 89. Presumption as to due execution, etc., of documents not produced 1. Principle

332

2. Scope 90. Presumption as to documents thirty years old 90A. Presumption as to electronic records five years old 1. Principle 2. Ancient documents 3.

Scope

4. Purporting or Proved to be Thirty Years Old 5. Any Custody which the Court in the Particular Case Considers Proper: Explanation 6. May Presume 7. Extent of the Presumption: No Presumption as to the Correctness of the Contents of the Document 8. Section 90 and Section 68 9. Evidentiary Value: Need for Corroboration

332

332 332 332 333 334 334 334 334 335

336 336 336 337 337

Chapter VI OF THE EXCLUSION OF ORAL BY

DOCUMENTARY EVIDENCE 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents 1. Scope and Ambit of Section 91

2. Oral Evidence-Reliance of 3. Three Classes of Cases where Oral Evidence is Excluded by Documentary Evidence

339 339 340 342 342

Textbook on The Law of Evidence

XXViii

4. 5. 6. 7.

(a) Cases wherein Law Requires the Document to be in Writing Voluntarily (b) Cases wherein the Parties Resort to Writing (b) (c) Cases of Writings other than the Cases Given Above in (a) and Exclusion Confined to Contract, Grant or Disposition of Property Difference between Transactions Reduced to Writing Voluntarily and those which Law Requires to be Reduced to Writing Instrument not Registered According to Law, other Evidence in Proof of the Terms of the Transaction is Inadmissible Admissibility for Collateral Purpose

8. The Date of a Document 9. Whether Oral Evidence of a Confession

be Proved by Documentary Evidence Declaration

13. Statements to the Police 14. Search Lists 15. Exception I-Appointment of a Public Servant may be Proved by Proof of his Having Acted as such 16. Exception II-Wills may be Proved by the Probate

E17. Explanation -Transaction Contained in moreDocuments than One 18. Explanation I1-Only One Original Need 19. Unregistered Documents

be Proved

92. Exclusion of evidence of oral agreement Proviso (1) Proviso (2) Proviso (3) Proviso (4) Proviso (5) Proviso (6) 1. Principle 2. Scope 3.

16/1

Sections 91 and 92

4. Hindu Law-Suit for 5. Benami

Partition

Transaction

6. Section 92 Prohibits

12. 13.

344 344

344 344 345 345 345 345

346 346 346 346 346 347 347 347 347 347 347 347 348 349 350 350

350

only Variance of Terms of Documents and

not Recitals 7. Oral Evidence not Excluded if the Terms of the Contract etc., not Reduced to Writing 8. Contract to be Reduced in Writing that a Writing does not 9. Oral Evidence is Admissible to show Representa Completed Transaction 10. The Section is not Applicable where the whole Contract has not been Reduced to Writing 11. Whether the Ostensible Executant of a Written Contract can show that he signed otherwise than as an Executant, eg., as an Agent, Partner, Surety, Witness or a

344

of the Confession or

Oral Evidence in Proof of a Deposition

11. Previous Conviction must 12. Oral Evidence of a Dying

343

to a Magistrate is Admissible

when the Magistrate has made no Record when the Record is Defective

10.

342 342 343 343

Benamidar?

"Varying" Qualifications to the Rule in Section

92 14. Plea as to Intention to Lead Oral Evidence 15. Fraud must be Contemporaneous and not Subsequent 16. Intimidation

350 351 351 351

351

351 352

352 352 352 353

xxix

Contents

17. 18. 19. 20.

Real Intention of the Parties Separate Oral Agreement Separate Written Agreement Evidence of a Separate Oral Agreement is Admissible only if it is not Inconsistent with the Terms of the Document and the Document is Silent on the Point 21. Sham Document 22. Parol Evidence

23. "Distinct Subsequent Oral Agreement"; Agreement Inferred from Acts and Conduct of the P'arties 93. Exclusion of evidence to explain or amend ambiguous document

against application of document to existing facts

1. Scope

2. Words Sense 95. Evidence Scope: 96. Evidence

353

353

353 353

the

1. Scope

2. Ambiguous 94. Exclusion of evidence

353 353

354

354 354 354 355 355

of a Document must be Understood in their Primary or Ordinary 355

as to document unmeaning in reference to existing facts Section 95 and section 97: Incorrect names and descriptions as to application of language which can apply to one only of several persons

355 356

1.

356 356

Scope--Sections 96 and 94

2. Document Bearing Two Dates 97. Evidence as to application of language to one of two sets of facts,

to neither of which the whole correctly applies Distinction,

between Sections 95, 96 and 97

98. Evidence as to meaning of illegible characters, etc. 1. Principle 2. Illegible or not Commonly Legible Characters 3. Evidence of Usage

99. Who may give evidence of agreement varying term of document Principle 100. Saving of provisions of Indian Succession Act relating to Wills Scope

356

356 357 357 357 357 357 357 358 358 358

PART II PRODUCTION AND EFFECT OF EVIDENCE OF THE

Chapter VII BURDEN OF PROOF

101. Burden of proof 102. On whom burden of proof lies 103. Burden of proof as to particular fact 1.

2. 3. 4. 5. 6. 7. 8. 9. 10.

Principle and Scope

Meaning of Rule Distinction between Burden and Standard of Proof Charge of Professional Misconduct Doctrine of Burden of Proof Distinction between Burden of Proof and Onus of Proof Burden of Proof in Right to Private Defence Burden of Proof in Defence of Insanity Illegal Gratification Burden of Proof and Presumption

359 359 359 360 360 360 361 361 361 362 362 362 362

362

Textbook on The Law of Evidence

XXX

11. Presumption of Innocenceand the Interest of the Society 12.

P13.

Presumption

Rebuttable-Effect

of

Burden of Proof in Equal Pay for Equal Work

14. Sham and Fictitious Transaction 15. Two Exceptions to the Rule that the Burden

7(16.

363 363 363 364

of Proof is on the Party

Substantially Asserting the Affirmative

364 364 364 364

DefinitionoR f easonablD e oubt

S217.

Quantum of Proof in Criminal and Civil Cases

18.

Execution

19.

Burden of Proving

that a

Transaction

Embodied in a Document was

Sham or Colourable 20. Sub-mortgage Created by Mortgagee 21. Onus as to Partition 22. Onus as to the Essence of Contract Relating to Immovable Property

cc

23. Matrimonial cases-Desertion-Adultery 24. Election 25. Wills

E 26. Monthly Tenancy and Rent 27. Presumption against Joint Family Property 28. Forgery eeE 29. Transfer of Flat (19 oE 30. Doctrine of "Reverse Burden" 104. Burden of proving fact to be proved to make evidence admissible 1.

179

Principle

2. Scope

105. Burden of proving that case of accused comes within exceptions

eE

1. Scope

2E

2. Insanity

E et

e

3. Plea of Self Defence 4. The Court shal Presume the

3 9

5631t02 25 9919brs

365 365 365 365 365 366 366 366 366 366 366 367 367 367

367 368

368 368 371 371

Absence of such Circumstances

5. Standard of ProofRequired on the Part of anAccusedand that of

7

the Prosecution

372

106. Burden of proving factespecially within knowledgeamuieivog to gni ro2372

8

1. Application of Section 106 to 2. Quantum of Punishment 3. Word "Especially"

Criminal Cases

372 373 374 374 376 376 377

4. Knowledge

5. Confiscation of Vehicle Carrying Illicit Timber 6. Burden of Proof in the Matter of Last Seen Together

eet 7. Hindu Marriage Act

Pe9. LiabilityofInsurer 3

o oban

8. Patents and Designs

P

10. Tenancy-Sub-letting 11.

tg T nis5 -155%

llustrations

107. Burden of proving death of person known to have been alive within thirty years 108. Burden of proving that person is alive who has not been heard of for

377

377 377 377

377

seven years

378

1. Scope 2. Section 107 3. Section 108

378

4. Presumptionas toDeathofFormeS r hareholder 5.

Presumption of Survivorship in Case of Simultaneous Death n

378 378 379 379

Contents

109. Burden of proof as to relationship and tenant, principal and agent 1. 2. 3.

XXxi

in the cases of partners, landlord 379 379 379

Principle Partnership Landlord and Tenant Principal and Agent

4. 110. Burden of proof as to ownership 1. Principle 2. Ownership and Possession 3. Possession: Its Meaning and Proof 4. Possession is a Substantive Right, which is Transferable and Heritable,

and by itself Constitutes Good Title against Everyone Except the True Owner Presumption that Possession Follows Title; Limitation Remedies of a Person Wrongfully Dispossessed; Summary Proceedings

379 380 380 380 380 381

381 382

under Section 2 of the Specific Relief Act or a Regular suit within

12 Years;Possessory Title 111. Proof of good faith in transactions where one party is in relation of active confidence 1. Scope 2. Distinction between Section 111, Evidence Act and Section 16(3),

Contract Act 3. Good Faith in a Contracting Party 4. "Undue Influence" 5. Position of Active Confidence 6. No Fiduciary Relationship 111A. Presumption as to certain offences Accused to Prove Innocence

112. Birth during marriage, conclusive proof of legitimacy 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Principle Scope Presumption as to Paternity of Child Valid Marriage No Presumption of Maternity Born within 280 Days When Child Born within 183 Days Conclusive Proof Conclusiveness of Presumption cannot be Rebutted by DNA Test Non-access Rebuttal of Presumption Admissibility of DNA Test Whether Court can Direct the Parties to Undergo DNA Test Mohammedan Law

113. Proof of cession

of territory

1. Principle 2. Scope 113A. Presumption as to abetment

of suicide by a married woman

1. Scope

2. Presumption as to Abetment of 113B. Presumption as to dowry death 1.

Suicide by Wife

Object

2. Why Need of Extraordinary Provision? 3.

Constitutionality-Articles

14, 20(3) and 21 of the

Constitution of India

382 383 383

383 384 384 385 385 385 385 386 387 387 387 388 388 388 388 389 389 389 389 390 390 392 392 392 392 392 393 393 394 394 395 395

xxxii

Textbook on The Law of Evidence

395 4. Unnatural Death within Two Years of Marriage 396 5. "Dowry Death" 396 6. "Soon before Death" 7. Cruelty or Harassment 397 8. When Presumption as to Dowry Death cannot be Drawn 397 397 114. Court may presume existence of certain facts 399 Presumptions-Illustrations not Exhaustive 1. Sources and Classes of 399 2. Difference between Presumptions of Law and Presumptions of Fact 401 3. Proof and Presumptions 401 4. Presumption under Negotiable Instruments Act 5. Presumptions Arising under Section 114 are not Presumptions of Law but of Fact; they are Rebuttable and Discretionary and not Exhaustive 401 6. Difference between the Presumption under Section 114 of the Evidence Act 402 and that under Section 4(1) of the Prevention of Corruption Act, 1947 7. Presumption under Section 114 Applies to Documentary Evidence also 402 8. Presumption of Approver's Evidence 402 9. Presumption of Transaction of Sale 403

10. Presumption of Valid Execution of Registered Document b 11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

u, loor1 403

Presumption as to Execution of Will Presumption as to Official Acts having been Regularly Performed Estoppel in Criminal Cases Common Course of Natural Events: Sections 114 and 112 Human Conduct: Inference From Omission to Raise a Presumption

under Section 114, whether a

Good Ground for Second Appeal? Presumption from Partial Partition Presumption as to Ownership of the Building uar Presumption of Easement Presumption of Legality of Marriage tettro7 Rebuttal of Presumption of Marriage Evidentiary Value of Marriage Certificate Hindu Law-Joint Family Acquisition of Property Presumption of Stamp

404 404 404 404

aiTiat 2tatb d

Presumption as to Service of a Letter Sent under Registered Cover Adverse Inference Motor Vehicles Act Railway Act, Section 73

Presumption against the Government from Non-production of Documents Privileged Document 0: Presumption under Section 114 Applies to Police Officials Entries in Revenue Records 114A. Presumption as to absence of consent in certain prosecutions for rape Kape

1. Definitions, etc. 2. In Cases of Consent or no Consent 3. Consent in Gang Rape Case

Chapter VIII ESTOPPEL 115. Estoppel toppel: Meaning and Principle 2. Nature of EstoPpel

.

(1) As a Rule of Evidence

403 404 404 404

405 405 405 406

406 406 406 408 408

408

408 409 409 409 409 409 412 413

414 414 415 417 417

Contents

3.

4. 5. 6. 7. 8. 9. 10. 11. 12.

(2) As a Matter of Pleading (3) As Substantive Law General Conditions of Estoppel (a) Estoppels must be Reciprocal or Mutual (b) Estoppels cannot Circumvent the Law (c) Estoppels must be Certain (d) Conflicting Estoppels Cancel each other (e) Doctrine of Promissory Estoppel Preconditions before Invoking Rule of Estoppel Kinds of Estoppel Estoppel by Matter of Record or Estoppel by Res Judicata Estoppel by Deed Estoppel by Matters in paiis Estoppel and Doctrine of Election Estoppel by itself does not Create a Cause of Action or Title Estoppel and Res Judicata Estoppel and Admission Estoppel-When not Attracted No Estoppel in Criminal Cases Estoppel should be Pleaded: Onus of Proving the Plea

13. 14. 15. 16. Constituent Elements of Estoppel 17. Meaning of Representation 18. Representation must Relate to an Existing Fact or a Past EventMere Statement of Intention or a Promise De Futuro does not Create an Estoppel 19. Estoppel by Conduct 20. Promissory Estoppel or Belief is not Representation and 21. Mere Statement of Opinion does not Create an Estoppel 22. Plea of Promissory Estoppel 23. Promissory Estoppel against Budgetary Speech of Finance Minister 24. No Estoppel against Statute 25. Estoppel against the Mahapalika

26. 27. 28. 29.

Doctrine of Principle of Principle of Withdrawal

Legitimate Expectation Legitimate Expectation and Contractual Relationship Promissory/Equitable Estoppel of Benefit Scheme Prospectively in Public Interest

30. Party to an Agreement may be Estopped from Pleading Section 92 of the Evidence Act 31. must be Intentional, though It Need "Intentionally"-Representation not be Fraudulent 32. "Caused or Permitted Another Person to Believe a Thing to be True" 33. The Representation must have been Acted upon to the Detriment of the Representee 34. How may a Representation be Made? 35. Representation by Declaration 36. Representation by Acts and Conduct 37. Plea of Estoppel by Conduct 38. Mere Attestation of Deed does not Create Estoppel 39. Estoppel against a Judgment-debtor Obtaining Time 40. Estoppel against the Landlord by Acceptance of Rent 41. Estoppel against Trustees of Religious Trust 42. Representation by Omission; Estoppel by Acquiescence; Owner

Standing by"

XXxiii 417 417 417 417 417 418 418 418 418 418 418 419 419 420 420 421 421 421 421 422 422 422

423 423 423 426 426 426 426 428 428 429 429 429

429 430 431 431 432 432 432 433 433 434 434 435

435

xxxiv

Textbook on The Law of Evidence

43. Denial of Existence of Arbitration Agreement 44. Estoppel by Negligence 45. Waiver and Estoppel 46. Applicability of Estoppel, Acquiescence and Waiver in an

Industrial Adjudication

436 437 437

47. Estoppel and Waiver-Principles not Attracted when Order is Passed without Jurisdiction 48. Housing Scheme by Development Authority whether Estoppel 49. Claiming of Mesne Profits at a Particular Rate, for Future 50. Parties Precluded from Making out a New Case 51. Suit for Eviction 52. Estoppel between the Mortgagor and the Mortgagee 53. Estoppel between the Vendor and the Vendee 54. Estoppel against a Prior Vendee or Mortgagee 55. Admission of the Receipt of Consideration in a Deed-Executant Estopped from Denying Consideration as against a Person Acting on such Admission 56. Estoppel between the Donor and the Donee 57. Estoppel and Acquiescence in Cases of Adoption

58. 59. 60. 61. 62.

436

Estoppel and Acquiescence in the Enquiry Proceedings Reclaiming Guardianship Estoppel in Cases of Marriage Estoppel and Meher in Muslim Law Wills and Trusts; Estoppel against an Executor, Administrator, Legatee, or Trustee

63. No Estoppel against a Minor Making a False Representation of Majority

64. Whether the Minor may be Estopped by the Guardian's Representatiorn, and the Guardian Estopped by the Minor's Representation 65. Minor is Estopped where the Representation Amounts to Fraud Separate

from Contract

438 438

438 438 438 439 439 439

439 439 440

441| 441

441| 441

441 442

443 443

66. Estoppel Operates only between the Representor or his Representative on 443 the One Hand and the Representee or his Representative on the Other 67. Who is Deemed to be a Representor 68. Who is Deemed to be a Representee 69. Classification of Privies or Representatives-in-interest 70. Estoppel against, or in Favour of the State 71. Equitable Estoppel 72. Estoppel against Misstatement of Fact

73. No Estoppel if Promise Devoid of Authority 116. Estoppel of tenant; and of licensee of person in possession 1. Estoppel against Tenant 2. Relationship of Landlord and Tenant of Rent 3. Denial of Title of Landlord and Non-payment Landlord-Acquisition of a Title 4. Denial of Title of 5. Change of Jural Relationship 6. The Section is Applicable only to Tenants and Licensees of

"Immovable Property" Proof of Tenancy 8. Estoppel against Landlord 9. A Sub-lessee or a Person who came into Possession by the Tenant is Estopped from Denying the Title Both of

his Lessor's Landlord

444 444 445 445 445 446 446 446 446 447 447 448 448

448

448 449

Colluding with his Lessor and 449

Contents 10. Third Persons are the Estoppel

Neither Estopped nor

XXXV

Entitled to the Benefit of 449 449 450 450 450 450

117. Estoppel of acceptor of bill of exchange, bailee or licensee 1.

Principle

2.

Estoppel

3. 4.

against a Bailee Estoppel against the Bailor Estoppel against an Agent

Chapter IX OF WITNESSES

451

118. Who may testify 1. Principle 2. Competency, Compellability, Privilege and Admissibility 3. Evidence of Prosecutrix in Rape Case 4. Witness's Capacity to Understand and Rationally Answer Questions is the only Test of Competency 5. Explanation: A Lunatic in his ucid Intervals is a Competent Witness 6. Word Disease' 7. Testimony of a Child 8. Whether the Evidence

Witness of a Child witness Recorded

451 451 452 452 452 453 453 453

without Oath

is Admissible

455 456 456

9. Conviction on the Basis of Child Witness 10. Competency and Credit of Child Witness 11. Police Witness 12. Interested Witness

457 458 459

13. Party's Lawyer as a Witness 14. Falsus in Uno Falsus in Omnibus

459

119. Witness unable to communicate verbally

459

1. Scope of Section 119 2. Competency and Mode of Taking 3. Witness under a Vow of Silence

460

120. Parties to civil suit,

Evidence of a Deaf witness

461 461

and their wives or husbands. Husband or wife of

person under criminal trial 1.

Competency of a Party and

461

of the

Husband or, Wife of a Party in

m

Civil Proceedings

462

2. Value of the Testimony of a Party in a Civil Proceeding 3. An Accused Person is Now Competent to Testify in Proceedings in which he is an Accused 4. Criminal Proceedings in which the Person Proceeded against is a

462

Competent Witness 5. Competency and Compellability of the Parties in Proceedings under the Divorce Act

463

6. Section 120 is Subject

to the Provisions of Section 122

121. Judges and Magistrates 1. What is a Privilege?

2. Privilege of Judges and Magistrates 3. Judge may Waive his Privilege, or be Ordered by

5.

Competency of a Judge to Testify in the Case which is Being

yhim

Arbitrators are Competent, but they cannot be Questioned as

Grounds of their Decision 6.

Competency of Counsel

463 463 463 464 464

the Superior Court 465

to Testify 4.

462

Tried 465

to the 465 465

xxxvi

Textbook on The Law of Evidence

7. Power of Appellate Court to Question 122. Communications during marriage 1.

Scope

2.

Communications

Trial Court

466 466 466

between Husband and Wife are Protected from

Disclosure What is a privilege? 3. A communication is Protected even if it was not Confidential, or even if

466

467

the Husband or Wife of the Witness is not a Party to the Proceedings 467 4. An Act is not Ordinarily a Communication, but it may Become One 467 5. A matrimonial Communication may Properly be Proved by the 468 Evidence of Stranger 6. The Section Applies only to Communications Made During Marriage, but 468 the Privilege Continues even after Dissolution of Marriage 7. A Communication may be Disclosed with the Consent of the Husband or 468 Wife, or the Representative in Interest of such Husband or Wife 123. Evidence as to affairs of State 469 1. Scope 469 2. Derived 469 3. Unpublished Official Records 469 4. Affairs of State 469 5. Affairs of State and Matters of State 470 124. Official communications 470 1. Sections 123 and 124: Distinction between Privilege that Arises in Respect of State Documents and one that Arises in Respect of

Communications and Official Confidence

C

2. Public Officer 3. Communications Made in Official Confidence 4. Reports and Records of Departmental Inquiries 5. The Question whether a Communication was Made in Official Confidence is for the Court to Decide, but the Public Officer Concerned is the

Sole Judge of whether it should or should not be Disclosed 6. Communications made in Official Confidence cannot be Proved by Secondary Evidence 7. There is No Adverse Inference if a Privileged Document is not Produced 125. Information as to commission of offences 1. Information for the Detection of Crime

i0

2. Scope and Extent of the Privilege 3. Privilege may be Waived Refusing to Answer the Question 4. No Adverse Inference from 126. Professional communications

Waiver of Privilege 127. Section 126 to apply to

interpreters,

etc.

128. Privilege not waived by volunteering evidence 129. Confidential communications with legal advisers 1. Rule Explained 2. No Adverse Inference can be Drawn from the Non-waiver of the Privilege 3. Privilege is Confined to Legal Advisers for the 4. Communication must have been Made in the Course and Purpose of Professional Employment 5. Communication between the Prosecutor in a State Case and his Attorney are not Privileged 6. Should the Communication have been Confidential?

470 470 471 471

472 473 473 473 473 473 474 474 474 475 475 476 476 476

476 477 477

477 478

xxxvii

Contents

130. Production of title-deeds of witness not a 1. Principle 2. A Witness who is not a Party cannot

party be Compelled

478 478 to Produce his

Documents of Title 3. Can the Court Inspect the Document to Decide the Claim of Privilege? Agreement 4. Privilege can be Waived only by a Written

131. Production of documents or electronic records which another person, having possession, could refuse to produce

478 479 479 479

1. Agent, Mortgagee, Solicitor, Trustee etc., cannot be Compelled to

Produce Privileged Documents of the Principal

479 2. Can a Legal Adviser be "Permitted" to Produce his Client's Documents 480 480 3. Section 131 Applies to a Company 480 132. Witness not excused from answering on ground that answer will criminate

Proviso

80

1. Protection from Criminating Questions as to Irrelevant Matter 2. A Witness can be Prosecuted for Making a Voluntary but not a Forced

Defamatory Statement 133.

Accomplice 1. Testimonial Competency 2. Circumstantial Evidence

481

481 481

of an Accomplice

3. Evidentiary Value of Approver/Accomplice 4. Corroboration of an Accomplice by his own Previous Statement or Demeanour 5. Who is an Accomplice? 6. Accomplices in Sexual Offences 7. Witnesses no Better than Accomplices 8. Approver's Evidence 9. Approver should be Examined before the Corroborative Evidence is

Produced

485 486 486 487 487 487 487 488

10. An Approver can be Confined only in a Judicial Lock-up or, Prison and cannot be Detained in Police Custody 134. Number of witnesses 1. Principle witness 2. A Finding may be based on the Testimony of Single 3. Number of witnesses the Offence by Members of a 4. Number of Witnesses Required to Prove 5. Statement by a Police Officer-Value of 6. All Attesting witnesses to a Will could be Called

y,gt

Chapter X EXAMINATION OF WITNESSES

494

135. Order of production and examination of witnesses 1. Order in which the Evidence of the Parties is to be LedThe Right to begin 2. The Order in which the Witness of a

Party should be Examined

494 494 is in

the Discretion of the Party Subject to the Court's Direction 3. Duty of the Court to Examine all the Witnesses Produced by a Party 4. Commission 136. Judge to decide as to admissibility of evidence 1. The Judge may Require a Party Tendering Evidence of a Fact to Show How the Evidence is Relevant

488 488 488 489 491 492 493 493

Large Unlawful Assembly

OF THE

480

495 495 496 496

496

xxxvii

Textbook on The Law of Evidence

Proof of 2. If the Evidence Tendered is Admissible or Relevant upon Another fact, the Latter fact should Ordinarily be Proved First 3. Evidence Act, 1872, 137. Examination-in-chief

Section

136-C.P.C.

497 497 498 498 498 498 498 498 498 499 501 501

1908, Section 115

Cross-examination Re-examination 138. Order of examinations Direction of re-examination 1.

Examination of Witnesses

2. Method in 3.

Examination-in-chief

Cross-examination

4. Appreciation of Evidence 5. No Examination-in-chief, No Cross-examination 6. Witness Cross-examined with Reference to a Document,

Document 501 501

how to be Dealt with 7. Cross-examination and Infringement of Right to Privacy if it Finds it 8. The Court has Power to Control the Cross-examination Assuming Unnecessary and Inordinate Length 9. Purpose of Re-examination 139. Cross-examination of person called to produce a 140. Witnesses to character Cross-examination of witnesses as to character

501 502 502 503 503 503 503 503

document

141. Leading questions 142. When they must not be asked 143. When they may be asked 1. Section 142: Leading Questions are not in General

Allowed

to be in

Examination-in-chief and Re-examination

503 503

2. Consequences of Asking a Leading Question

3. It is Discretionary with the Court to Allow or Questions if Objected to by the other Party

Disallow Leading 504 504 504 504

4. Right to Put Leading Questions where a Witness has been Recalled cannot be Asked 5. Leading Question-When 144. Evidence as to matters in writing Oral Evidence as to a Contract, Grant, or Disposition of Property

cannot be Received if the Contract, Grant or Disposition was Contained in a Document 145. Cross-examination as to previous statements in writing Scope 2. The Subject-matter of the Contradictory Statement must be Relevant the Matter in Issue 3. A witness may also be Cross-examined as to Previous Statements

.

505 505 506

to 506

Containing an Admission or Suggestion of the witness's Impartiality, and the Answers to such Question may be Contradicted under Sections 155(3) and 145 Use of Previous Statements of Witnesses 4. 5. Contradiction of Witness by Former Statement 6. First Information Report 7. Statements made to the Police During Investigation under Section 16 of the Cr. P.C. 8. Mode of Proving the Witness's Statement to the Police

9. Statements by Accused Persons 10. Oral Statements made to the Police in the Course of an

under Chapter XIV, of the Criminal Procedure Code

506 506 507 507 508 508 509

Investigation 509

Contents

xxxix

11. Statements Recorded under Section 164, of the Criminal Procedure Code 12. Inquest Report 13. Statements made to the Police otherwise than in the Course of

Investigation under Chapter XIV, of the Criminal Procedure Code 14. Provisions of Section 145 must be Complied is used to

with where a Police

Diary

Contradict a Police Officer

510

146. Questions lawful in cross-examination 147. When witness to be compelled to answer question shall be asked and when witness 148. Court to decide when compelled to answer Principle

2. Time and Character

of the Imputation

149. Question not to be asked without reasonable grounds 150. Procedure of Court in case of question being asked without reasonable grounds 1. Counsel should not Ask Question against a Witness's Character without Reasonable Grounds 2. Liability of Counsel for Asking Defamatory Questions 3. Court cannot Ask Improper Questions 151. Indecent and scandalous questions Indecent or Scandalous Questions and Inquiries 152. Questions intended to insult or annoy

Insulting

Annoying and Offensive Questions

153. Exclusion of evidence to contradict answers to questions 1. The Evidence of a Witness as to Facts in Issue

testing veracity

Hostile Witness Protection of Witnesses

155. Impeaching credit of witness 1. 2.

Impeachment of the Credit of a Witness by Extrinsic Evidence Discrepancies in Evidence of a Witness

3. Departmental Enquiry 4. Sterling Witness

156. Questions tending to corroborate evidence of relevant fact, admissible Corroborating a Witness by Questioning him on Surrounding Circumstances 157. Fornmer statements of witness may be proved to corroborate later testimony as to same fact 1.

Scope

2. A Previous

511 512 512 513 513

513 514 514 515 515 515 515 516 517 517 517 518 518 519 519 523

523 524 524 525 525 525

525 526

Statement by a Witness is in Certain Cases Admissible to

Corroborate the Evidence Given by him at the Trial; Reason of the Rule 3. The Previous Statement should have been Made either at or about the Time the Fact Took Place or before any Authority Legally Competent to Investigate the Fact

First Information Report 5. Panchnama

510 511 511

or Relevant facts may

be Contradicted 2. Prohibiting Evidence on Collateral Issues Opportunity to Observe the Events may 3. The Fact that the Witness had be Disproved 154. Question by party to his own witness 1. Principle and Scope 2. Modes of Impeaching One's Own Witness 3. 4.

509

509

15. Statement made in a Petition, Pleading, Report or Complaint

1.

509

526

527 528 528

Textbook on The Law of Evidence

158. What matters may be proved in connection with proved statement relevant under section 32 or 33

528

Corroborating or Impeaching the Credit of a Person Admitted under Section 32 or Section 33 159. Refreshing memory 1.

Refreshing

whose Statement is

Memory

528 529 530 530 530

2. Refreshing of Memory by Investigating Officer 3. Printed Matter; Newspaper; Report of a Speech 4. Experts may Refresh their Memory by Reference to Professional Treatises

530

5. Panchnama

531

160. Testimony to facts stated in document mentioned in section 159 1. Distinction between Section 159 and Section 160; Recollection of the Correctness of the Record Makes the Record Itself Evidence 2. Witness's Statement of his Belief that the Record is Correct is not Conclusive 3. Does Section 160 Apply to Copies?

161. Right of adverse party as to writing used to refresh memory 1. A Document Used to Refresh Memory must be Produced 2. Use of the Document in Cross-examination 3. Waiver of the Right to Inspect the Document 4. Police Diaries

162. Production of documents

Translation of documents 1. Scope of Section 162 2. Difference between the English Law and Section

3. Court's Power to Hold Preliminary Enquiry 163. Giving, as evidence, of document called for and 1.

Conditions

162

produced on notice

531

532 532 532 532 533 533 533 534 534 534 535 535 535 535

of Section 163

2 Documents Produced on Notice and Inspected by the Party Calling for them must, if the Producing Party Requires, be Put in as Evidence 164. Using as evidence, of document, production of which was refused on notice 1. A Party cannot Use a Document

which he Declines to Produce

2. Presumption Arising from Non-production 3.

531

on Notice

of Documents

Application to Criminal Cases

165. Judge's power to put questions or order production Principle and Scope of Power of Courts Judges Like an Umpire 166. Power of jury or assessors to put questions

535 536

537 537 537 537 538 539 540

Chapter XI

OF IMPROPER ADMISSION

AND

REJECTION OF EVIDENCE 167. No new trial for improper admission

or rejection of evidence

1. Scope of Section 167

2. Application of the Section 3. Proper Time to Object to the Admissibility of Evidence a Ground for Special Leave 4. Admission of Improper Evidence, whether

to Appeal to the Supreme Court

5. Effect of Improper Rejection of Evidence on Decision SCHEDULE-Enactments repealed Subject Index

541 541 541 542 542

543 543 544 545

CHARTS AT A GLANCE Sec. 3

Evidence includes

Circumstances evidence

Direct evidence Sec. 3 Fact means and includes

1

Any thing perceived by the senses

A mental condition of which a

person is conscious

A relevant fact (eg. facts forming part of same transaction, explaining conduct etc., introductory, explanatory facts)

Facts in issue (such as disputed fact in a case)

Sec. 3 Evidence can be categorised into

Primary and Secondary evidence

Oral and

Presumptive evidence

Documentary evidence

Original and hearsay evidence

Sec. 4

Presumptions are classified into

Presumptions of Law

Presumptions of fact (always rebuttable) Secs. 6, 7, 8,

(are both rebuttable and irrebuttable)

9, 10, 14

Facts which form a chain encircling facts in issue are

relevant facts. The following constitute relevant facts

Facts forming part of same transaction

or things done/words spoken furthering a

common design

Facts which are occasion, cause

and effect of relevant facts n issue

Facts which deal

with motive/ preparation/ previous/ subsequent conduct of person having reference to fact in issue and relevant fact

Facts necessary

to explain/

introduce/ rebut/support facts in issue

and relevant facts

Facts which show existence

of state of mind, such as

intention, knowledge, g0od tacts, negligence, rashers,

ill-will or good well etc.

IXIx

lxx

Textbook on The Law

of Evidence

Secs. 17-21

Admission can be

Oral Statement

Proved by the maker or

Made by persons indicated in

Documentary Statement

sections 18, 19 and 20

somebody on his behalf it being relevant evidence except under exceptions given in section 21

Secs. 24-28 Confession is an admission of crime

Is relevant evidence when made

May be oral or

documentary

voluntarily

Is irrelevant if made under inducement, threat or promise or made to

Is relevant if made in the presence of a

Magistrate

Is relevant if leads to the discovery of fact due to

whilst

information

accused is in

received from

police custody

accused while

a whilst police officer

he is in

police custody

Sec. 30 Confession of co-accused is admissible evidence against another accused

If both are tried jointly

If both are tried for the same offence

If the confession is legally proved

Sec. 32

Statement of relevant fact made by person who is dead or cannot be found etc., is relevant

When it

When it

relates to cause of

is made

death

n course of business

When it is against the interest of the maker

When it gives an opinion of Public

right/ custo:

matters of

general nterest

When it relates to existence of certain

When it

is made in a will or deed relating relationship to family affairs

When it

When made

is made in a document

by several persons &

relating to

expresses feelings on matter in question

a transaction

mentioned in section 13 clause (a)

Ixxi

Charts at a Glance

Secs. 40-43 Judgment of Court of Justice is relevant

When admissible

When confers or

as res judicata

When is a fact in

When relates to matters of public nature

takes away a legal

issue or is

relevant under certain provisions of the Evidence Act

character of a person

Secs. 45-50, 67 Opinions of Experts are relevant on point of

Foreign law

existence of

Art

right/custom

Handwriting identification

relationship

(Secs. 45, 46 and 67)

Science

Finger impressions

usages, tenets, etc.

Secs. 52-55 Character of parties to prove conduct

Is generally irrelevant in civil cases

Is relevant in civil

Previous good

Previous bad

cases where character affects the determination of damages

character is relevant in criminal cases

character is

irrelevant in criminal cases unless evidence

is given that accused has

good character

Secs. 56-58

nob

iniorosd Facts which need not be proved

Judicially noticeable facts

Facts admitted by

as found in section 57

parties to a suit

Oral evidence may be proved by

rtsoynOral

Allfactsexcluding contentsds of documents may be 1 proved by oral evidence

o

botnsith

evidencemust bedirect

Ixxii

Textbook on The Law

of Evidence

Secs. 61-67

Documentary evidence may be proved by

Primary evidence (means the original document)

Secondary

evidence as

mentioned in section 65 (means certified copies, photostat copies

etc. of the original) Secs. 74-78

Documents are divided into two categories

Private Documents

Public Document sections 74-78 deal with nature of public documents and proof which is to be given of them. (eg. on electoral role, Legislative Acts, records maintained by

(eg. contracts, leases,

mortgage-deed etc.)

revenue officers etc.)

Secs. 101-106

Burden of proving the fact

The person who asserts the existence of a

fact or would lose the case

if evidence is not given

Person who is The person who wants to prove specially in that his offence knowledge of comes under the fact sought exceptions contained to be in the Indian proved Penal Code

lies on

Person who wishes to prove a relevant fact

Person who is required by law to prove a fact

Secs. 107-108

Law presumes survivorships. Therefore burden of proving death of person is on

The person who affirms the death of a person

The person who asserts that the person is alive when the question is that has not been heard of for seven years

Sec. 113A

Presumption by Court of abetment of suicide by married woman When it is proved that the woman committed suicide within seven years of her marriage

When it is proved, that the woman's husband or his relative/s committed cruelty on her

.

Charts

xxiii

at a Glance

Sec. 113B

Presumption of dowry death by courts

When soon before her death the woman was subjected to cruelty/harassment

The cruelty/harassment was caused due to dowry demand

Sec. 115

Principle of estoppel applies when

A person intentionally misrepresents a fact to another

and that person acts upon such belief

The person who makes the misrepresentation is legally bound by it

The person who has acted upon the

misrepresentation gets the benefit of

estoppel Secs. 118-121

Competent witnesses

Every person is competent to satisfy unless the

A dumb

witness is a

competent witness

court thinks otherwise due to tender years, old age, disease etc.

Parties to a civil

suit along with their

Judges and Magistrates

wives/husbands are competent witnesses. In criminal cases the

competent witnesses in

husband/wife of

certain cases

accused

can De

person is a

competent witness

Sec. 133

An Accomplice

Is a person who has taken part in a crime

Is a competent

witness against the accused

Sec. 133

Testimony of accomplice

Conviction based on his testimony alone is not illegal

Courts usually insist on corroboration of the testimony of accomplice

bxiv

Textbook on The Law of Evidence

Secs. 135, 137, 138

Examination of witnesses

Is regulated by law &

practice laid down in Civil

Witness shall be first examined in chief by party that calls

Procedure Code and Criminal Code

him then cross-examined if adverse party desires, then re-examined

if party calling him so desires

.

*

INTRODUCTION TO LAW OF EVIDENCE By

Sir James Fitzjames

Stephen

Function of the law of evidence.-The Law of Evidence may be defined as a system of rules for ascertaining controverted questions of fact in judicial inquiries. It bears the same relation to a judicial investigation as logic to reasoning. The object of every judicial proceeding is the enforcement of some right or liability which invariably depends upon certain facts. The substantive law, whether it be statute law or common law, merely defines what facts go to constitute a right or liability. Before a tribunal can pronounce as to the existence of a right or liability, it must ascertain the facts which, according to the rule of Substantive Law applicable to the case, are the necessary constituents of that

right or liability. This duty of ascertaining the facts which are the essential elements of a right of liability is the primary, and perhaps the most difficult, function of a tribunal. The inquiry into these facts is regulated by a set of rules and principles which go by the name of "Law of Evidence". The first task of a Judge being to ascertain facts, the rules by which the inquiry before him is regulated should not, in their fundamentals, differ from those by which any other seeker after truth regulates his inquiries. The Physicist who ascertains the properties of matter or the Historian who is concerned with finding what happened in the past is as much a seeker after truth as the Judge who is concerned with ascertaining whether a man has encroached on his neighbour's land or stolen another

man's watch. Again, in the ordinary affairs of life we are constantly reasoning from the known to the unknown and forming judgment as to facts. Why then, it may be asked, should there be a Code of Evidence for the judicial investigation or truth differing in detail or principle from the rules which a scientific inquirer employs in his investigations or a man employs in the ordinary affairs of life? In other words, why should there be any legal rules of evidence as distinguished from the ordinary rules of reasoning? The question is a fundamental one and confronts the legislator at the very outset of his task. This was the argument of the gentleman who said to the framer of the Indian Evidence Act-"My Evidence Bill would be a very short one. It would consist of one rule to this effect: 'All rules of evidence are hereby abolished'. The absence of what we call a "Law of Evidence" in the judicature of all non-English-speaking countries, whether ancient or modern, is referable to this reason. What, then, is the explanation for the evolution of that elaborate and difficult doctrine which is known by the name of "Law of Evidence" and which is a peculiarity of the legal system of the English-speaking countries. The answer is not far to seek. It is furnished partly by the history of the judicial organisation of these countries and partly by the differences that underlie judicial inquiries and scientific investigations, notwithstanding apparent resemblance between the two. Historically, the Law of Evidence may be described as the child of the jury system. It was born, and has developed, with this ancient Anglo-Saxon institution and remains today as characteristic a feature of the legal system of English-speaking countries as, until

2

The Indian Evidence Act, 1872

quite recently, the jury system of their judicial organisation. It is not proposed here to trace the history or the rules of evidence and to show how the system of trial by jury brought these rules into being or helped to develop them. It is sufficient to notice here that most of the rules relating to admissibility, to presumptions, and to impeachment and confirmation of the credit or witnesses have been influenced in their history by, if not have had their origin in, the system of associating with the Judge "twelve men" in the administration of justice. The real origin of rules of evidence, however, lies in the

circumstances that distinguish scientific investigation from judicial inquiries. "In dealing with litigation," says Professor Thayer, "Courts are not engaged in an academic exercise. With them the search for truth is not the main matter; their desire to know this, and their ability to use it are limited by the requirements of their main business, namely, that of awarding justice, i.e, awarding it so far as they may under the rules of law, and according to established usages and forms". The process of reasoning is primarily an affair of logic, but, in law, there are various important qualifications restraining the freedom of operation of this process. These qualifications have their origin in the circumstance that time for judicial inquiries being very much limited, some decision must be arrived at within this limited time even at the risk of error. This accounts for the exclusion of much data which, though perfectly relevant to the issue in the popular sense, affords only a slender basis for inference, owing to the remoteness of its connection with the issue. Again, the principal instrument for the discovery of truth in a judicial inquiry being testimony, much relevant data is excluded on grounds of public policy, expediency or convenience. Thus, whereas, on the one hand, it is an error to suppose that legal reasoning, as compared

with reasoning in general, calls into play any different faculties or involves any different method or principle, it would be wrong to say that the Judge, in ascertaining facts in a judicial inquiry, is not fettered by certain artificial rules which are not rules of pure argumentation. These limitations on the free process of reasoning constitute the Law of Evidence, and if they can be reduced to certain principles, it is possible to classify and arrange them into a system.

What is or

what should be the

general scheme of such a

system is the next question and we can best deal with that question by examining the arrangement of this subject as given in the Indian Evidence Act. It may be remarked at the very outset that the Indian Evidence Act, which was drafted by Sir James Fitzjames Stephen, the distinguished jurist and legislator, is a unique piece of legislation the like of which is not to be found anywhere else in the world. In the symmetry of its structure, in the clearness and fullness of its outline, in the terseness of its expressions, and in the compactness of its subject-matter, the work stands out unrivalled and unparalleled. An idea of the conciseness and comprehensiveness of the work may be formed by the fact that in the 167 mostly single-sentenced sections of the Act, the framer has compressed a subject-matter which covers some 6,000 closely printed pages

of the work of an American writer, and yet, during more than hundred years that the Act has been in force, no important amendment of principle or detail has been deemed necessary, and hardly a question of evidence has ever arisen : which a solution in these 167 sections has not been found.

Scheme of the Evidence Act.-The plan of the Act is perfectly simple. The Act is divided into three main parts:

i) Relevancyof Facts, (ii) Proof and

(i) Production and Effect of Evidence. Part I of the Indian Evidence Act is concerned with defining what facts may be given in evidence in order to prove the fact in issue. This is the subject-matter of Chapter II fifth section, of the Act consisting of 50 sections beginning from sections 6 to 55. The which may be described as the corner-stone of the

structure of Part 1, specifies

the fact

Introduction

3

that may be given in evidence. For this purpose, facts are divided into (1) Facts in issue and (2) Relevant Facts, both of these classes of facts having been previously defined in section 3. The distinction between facts in issue and relevant fact is a fundamental one

and must be thoroughly comprehended to understand and appreciate the whole structure of the Act. Every right or liability which becomes the subject of litigation, always depends upon certain facts. A person who moves the machinery of the law by coming to Court as a plaintiff has, in order to get the relief claimed, to establish certain facts. If he fails to prove any one of the facts which constitute the right or liability which he seeks to enforce against the defendant, or if the defendant disproves any one of these facts, the plaintiff must be non-suited. If he succeeds in proving all such facts, the Court must award to him the relief that he claims. These facts, which are constituents of the litigated right or liability, are called "facts in issue". (Section 3). What are or may be facts in issue in a particular litigation is entirely a question of substantive law and those rules of procedure which deal with the striking of issues. (See O. XIV, R. 1, Civil Procedure Code). The Act, unlike other systems of evidence, is not concerned with this question beyond stating the properties of such facts. Since facts in issue are the necessary ingredients of the litigated right or liability, they may be given in evidence as a matter of course. (Section 5). It often happens, however, that direct evidence concerning these facts in issue is not available. In such a case, it does not mean that these facts cease to be capable of

proof. Their existence may be established as satisfactorily by circumstantial evidence as by direct evidence. Many a murder has come to light and been proved to the satisfaction of the Judge and the jury by circumstantial evidence, though there was not a single eyewitness to the occurrence. Every fact in this world is preceded and followed by a train or other facts which are connected in one manner or another with the fact in question. It is this sequence or co-existence of facts according to some law of nature governing men and things that makes it possible for us to reason to the unknown from the known. The Evidence Act provides that in order to prove the existence or non-existence of facts in issue, certain other facts may be given in evidence. The name "Relevant Facts" is given by the Act to such facts (Section 5). It takes one full chapter of fifty sections for the Act to define relevant facts (Sections 6 to 55). This part of the Act is its distinctive characteristic, distinguishing it from all other systems in the world. In other systems, the law tacitly refers to logic and general experience for relevancy, assuming that the principles of reasoning are known to its judges, every fact which is logically probative is relevant though, as we will just have occasion to see, not necessarily admissible. The Act, however, makes relevancy a matter of law, and an appeal to logic to establish the relevancy of a particular fact is irrelevant, unless the argument be founded on any such inconsistency, probability or improbability as is referred to in section 11. In the English and American systems of evidence, every fact which is logically relevant is legally relevant and admissible, unless excluded by some express rule. In those systems, therefore, admissibility in the sense of a fact being receivable in evidence, expressed in a mathematical form, is equal to logical relevancy minus fact logically relevant but expressly declared inadmissible for one reason or another. Under the Indian Evidence Act, admissibility is equal to facts declared relevant by sections 6 to 55 minus facts expressly declared inadmissible though relevant under sections 6 to 55. The Evidence Act specifies five instances of connection which may exist between the evidential fact and the fact to be proved, in order to make the former relevant. This leads to the following classification of relevant facts:proved-sections 6-16. (a) Facts connected with the fact to be (6) Statements about the fact to be proved--sections 17-39. (c) Decisions about the fact to be proved-sections 40-44. (d) Opinions about the fact to be proved-sections 45-51.

The Indian Evidence Act, 1872

(e) Character of the persons who are concerned

with the fact to be

proved

sections 52-55.

The fact to be proved may be a fact in issue or another relevant fact.

Part I of the Indian Evidence Act deals with the mode of proof. It consists of four chapters containing 45 sections.

It dealsmainlywith: ) judicianlotice

(i) oral evidence

ii) documents (iv) classes of document (v) writings, when exclusive, and (vi) principles of provisions in documentary evidend

Part IIl of the Indian Evidence Act deals with the subject of Production of Evidence'. This part contains 3 chapters and 67 sections. The general questions considered in this Part may be stated as follows: (1) Whose duty is it to prove a particular fact? (Burden of proof). (2) What inference does the proof of a particular fact raise as to the existence of another fact? (Presumptions). (3) When may a party be precluded from proving a particular fact? (Estoppel).

4) What are the rules relating to the examination of witness?-a subject which may be further sub-divided into the following questions:

) Who iscompetentto testify?(Competency). i) What matters may not be testified to at all? (Privilege). (ii) iv)

How are witnesses to be examined? How may the credit of witnesses be impeached or confirmed?

(v) What is the effect of improper admission or rejection of evidence? These rules overlap each other. Therefore, more than one of these rules may be applicable to the circumstances of a particular case, and the same result may be arrived at by applying one rather than another of these rules. The specific cases of burden of proof dealt with by the Act are the following: (1) If a man is shown to be alive within 30 years, the burden of proving that he is dead is on the person who asserts it (Section 107); but if it is shown that the person in question has not been heard of for seven years by those who would have naturally heard of him, the burden of proving that he is still alive is on the person who affirms it. (Section 108). (2) Where any persons are shown to have been acting as partners, landlord and tenant or principal and agent, the burden of proving that they have discorntinued that relationship is on the person who asserts this fact. (Section 109).

3) Where a person is shown to be in possession, the burden of proving that he is not the owner is on the person alleging this fact. (Section 110). (4) Where one of the parties to a transaction stands to the other in a position of

active confidence, the burden of proving the good faith of the transaction is on the party standing to the other in that position. (Section 111.).

INTRODUCTION TO LAW OF EVIDENCE By

Sir James Fitzjames

Stephen

Function of the law of evidence.-The Law of Evidence may be defined as a system of rules for ascertaining controverted questions of fact in judicial inquiries. It bears the same relation to a judicial investigation as logic to reasoning. The object of every judicial proceeding is the enforcement of some right or liability which invariably depends upon certain facts. The substantive law, whether it be statute law or common law, merely defines what facts go to constitute a right or liability. Before a tribunal can pronounce as to the existence of a right or liability, it must ascertain the facts which, according to the rule of Substantive Law applicable to the case, are the necessary constituents of that right or liability. This duty of ascertaining the facts which are the essential elements of a right of liability is the primary, and perhaps the most difficult, function of a tribunal. The inquiry into these facts is regulated by a set of rules and principles which go by the name of "Law of Evidence". The first task of a Judge being to ascertain facts, the rules by which the inquiry before him is regulated should not, in their fundamentals, differ from those by which any other seeker after truth regulates his inquiries. The Physicist who ascertains the properties of matter or the Historian who is concerned with finding what happened in the past is as mucha seeker after truth as the Judge who is concerned with ascertaining whether a man has encroached on his neighbour's land or stolen another man's watch. Again, in the ordinary affairs of life we are constantly reasoning from the known to the unknown and forming judgment as to facts. Why then, it may be asked, should there be a Code of Evidence for the judicial investigation or truth differing in detail or principle from the rules which a scientific inquirer employs in his investigations or a man employs in the ordinary affairs of life? In other words, why should there be any legal rules of evidence as distinguished from the ordinary rules of reasoning? The question is a fundamental one and confronts the legislator at the very outset of his task. This was the argument of the gentleman who said to the framer of the Indian Evidence Act-"My Evidence Bill would be a very short one. It would consist of one rule to this effect: 'All rules of evidence are hereby abolished'. The absence of what we call a "Law of Evidence" in the judicature of all non-English-speaking countries, whether ancient or modern, is referable to this reason. What, then, is the explanation for the evolution of that elaborate and difficult doctrine which is known by the name of "Law of Evidence" and which is a peculiarity of the legal system of the English-speaking countries. The answer is not far to seek. It is furnished partly by the history of the judicial organisation of these countries and partly by the differences that underlie judicial inquiries and scientific investigations, notwithstanding apparent resemblance between the two. Historically, the Law of Evidence may be described as the child of the jury system. It was born, and has developed, with this ancient Anglo-Saxon institution and remains today as characteristic a feature of the legal system of English-speaking countries as, until

2

The Indian Evidence Act, 1872

quite recently, the jury system of their judicial organisation. It is not proposed here to trace the history or the rules of evidence and to show how the system of trial by jury brought these rules into being or helped to develop them. It is sufficient to notice here that most of the rules relating to admissibility, to presumptions, and to impeachment and confirmation of the credit or witnesses have been influenced in their history by, if not have had their origin in, the system of associating with the Judge "twelve men" in the administration of justice. The real origin of rules of evidence, however, lies in the circumstances that distinguish scientific investigation from judicial inquiries. "In dealing with litigation," says Professor Thayer, "Courts are not engaged in an academic exercise. With them the search for truth is not the main matter; their desire to know this, and their ability to use it are limited by the requirements of their main business, namely, that of awarding justice, i.e., awarding it so far as they may under the rules of law, and according to established usages and forms". The process of reasoning is primarily an affair of logic, but, in law, there are various important qualifications restraining the freedom of operation of this process. These qualifications have their origin in the circumstance that time for judicial inquiries being very much limited, some decision must be arrived at within this limited time even at the risk of error. This accounts for the exclusion of much data which, though perfectly relevant to the issue in the popular sense, affords only a slender basis for inference, owing to the remoteness of its connection with the issue. Again, the principal instrument for the discovery of truth in a judicial inquiry being testimony, much relevant data is excluded on grounds of public policy, expediency or convenience. Thus, whereas, on the one hand, it is an error to suppose

that

legal

reasoning, as compared

with reasoning in general, calls into play any different faculties or involves any different method or principle, it would be wrong to say that the Judge, in ascertaining facts in a judicial inquiry, is not fettered by certain artificial rules which are not rules of pure argumentation. These limitations on the free process of reasoning constitute the Law of Evidence, and if they can be reduced to certain principles, it is possible to classify and arrange them into a system. What is or what should be the general scheme of such a system is the next question and we can best deal with that question by examining the arrangement of this subject as given in the Indian Evidence Act. It may be remarked at the very outset that the Indian Evidence Act, which was drafted by Sir James itzjames Stephen, the distinguished jurist and legislator, is a unique piece of legislation the like of which is not to be found anywhere else in the world. In the symmetry of its structure, in the clearness and fullness of its outline, in the terseness of its

expressions, and in the compactness of its subject-matter, the work stands out unrivalled and unparalleled. An idea of the conciseness and comprehensiveness of the work may be formed by the fact that in the 167 mostly single-sentenced sections of the Act, the framer has compressed a subject-matter which covers some 6,000 closely printed pages of the work of an American writer, and yet, during more than hundred years that the Act has been in force, no important amendment of principle or detail has been deemed necessary, and hardly a question of evidence has ever arisen for which a solution in these 167 sections has not been found.

Scheme of the Evidence Act.-The plan of the Act is perfectly simple. The Act is divided into three main parts:

i) Relevancy ofFacts, (ii) Proof and (iii) Production and Effect of Evidence. Part I of the Indian Evidence Act is concerned with defining what facts may be given in evidence in order to prove the fact in issue. This is the subject-matter of Chapter I of the Act consisting of 50 sections beginning from sections 6 to 55. The fifth section, which may be described as the corner-stone of the structure of Part 1, specifies the fact

Introduction that may be given in evidence. For this purpose, facts are divided into (1) Facts in issue and (2) Relevant Facts, both of these classes of facts having been previously defined in section 3. The distinction between facts in issue and relevant fact is a fundamental one and must be thoroughly comprehended to understand and appreciate the whole structure of the Act. Every right or liability which becomes the subject of litiga always depends upon certain facts. A person who moves the machinery of the law by coming to Court as a plaintiff has, in order to get the relief claimed, to establish certain facts. If he fails to prove any one of the facts which constitute the right or liability which he seeks to enforce against the defendant, or if the defendant disproves any one of these facts, the plaintiff must be non-suited. If he succeeds in proving all such facts, the Court must litigated award to him the relief that he claims. These facts, which are constituents of the right or liability, are called "facts in issue". (Section 3). What are or may be facts in rules of issue in a particular litigation is entirely a question of substantive law and those procedure which deal with the striking of issues. (See O. XTV, R. 1, Civil Procedure Code). The Act, unlike other systems of evidence, is not concerned with this question beyond ingredients of stating the properties of such facts. Since facts in issue are the necessary the litigated right or liability, they may be given in evidence as a matter of course. (Section 5). It often happens, however, that direct evidence concerning these facts in issue is not available. In such a case, it does not mean that these facts cease to be capable of

proof. Their existence may be established as satisfactorily by circumstantial evidence as by direct evidence. Many a murder has come to light and been proved to the satisfactiorn of the Judge and the jury by circumstantial evidence, though there was not a single eyewitness to the occurrence. Every fact in this world is preceded and followed by a train or other facts which are connected in one manner or another with the fact in question. It is this sequence or co-existence of facts according to some law of nature governing men and things that makes it possible for us to reason to the unknown from the known. The Evidence Act provides that in order to prove the existence or non-existence of facts in issue, certain other facts may be given in evidence. The name "Relevant Facts" is given by the Act to such facts (Section 5). It takes one full chapter of fifty sections for the Act to define

relevant facts (Sections 6 to 55). This part of the Act is its

distinctive

characteristic, distinguishing it from all other systems in the world. In other systems, the law tacitly refers to logic and general experience for relevancy, assuming that the principles of reasoning are known to its judges, every fact which is logically probative is relevant though, as we will just have occasion to see, not necessarily admissible. The Act, however, makes relevancy a matter of law, and an appeal to logic to establish the relevancy of a particular fact is irrelevant, unless the argument be founded on any such inconsistency, probability or improbability as is referred to in section 11. In the English and American systems of evidence, every fact which is logically relevant is legally relevant and admissible, unless excluded by some express rule. In those systems, therefore, admissibility in the sense of a fact being receivable in evidence, expressed in a mathematical form, is equal to logical relevancy minus fact logically relevant but

expressly declared inadmissible for one reason or another. Under the Indian Evidence Act, admissibility is equal to facts declared relevant by sections 6 to 55 minus facts expressly declared inadmissible though relevant under sections 6 to 55.

The Evidence Act specifies five instances of connection

which may exist between

the evidential fact and the fact to be proved, in order to make the former relevant. This

leads to the following classification of relevant facts:(a) (6) (c) (d)

Facts connected with the fact to be proved-sections 6-16. Statements about the fact to be proved-sections 17-39. Decisions about the fact to be proved-sections 40-44. Opinions about the fact to be proved-sections 45-51.

4

The Indian Evidence Act, 1872

(e)

Character of the persons who are concerned with the fact to be proved sections 52-55. The fact to be proved may be a fact in issue or another relevant fact.

Part II of the Indian Evidence Act deals with the mode of proof. It consists of four chapters containing 45 sections. It deals mainly with:

i) judicialnotice (i) oral evidence

ii)documents iv) classes of document (v) writings, when exclusive, and (vi) principles of provisions in documentary evidence. Part IIl of the Indian Evidence Act deals with the subject of Production ofEvidence This part contains 3 chapters and 67 sections. The general questions considered in this Part may be stated as follows: (1) Whose duty is it to prove a particular fact? (Burden of proof). (2) What inference does the proof of a particular fact raise as to the existence of another fact? (Presumptions). (3) When may a party be precluded from proving a particular fact? (Estoppel). 4) What are the rules relating to the examination of witness?-a subject which

may be further sub-divided into the following

questions:

) Who is competent to testify?(Competerncy). i) What matters may not be testified to at all? (Privilege). 1i) How are witnesses to be examined? (iv) How may the credit of witnesses be impeached or confirmed? (v)What is the effect of improper admission or rejection of evidence? These rules overlap each other. Therefore, more than one of these rules may be applicable to the circumstances of a particular case, and the same result may be arrived at by applying one rather than another of these rules. The specific cases of burden of proof dealt with by the Act are the following: (1) If a man is shown to be alive within 30 years, the burden of proving that he

is dead is on the person who asserts it (Section 107); but if it is shown that the person in question has not been heard of for seven years by those who would have naturally heard of him, the burden of proving that he is still alive is on the person who affirms it. (Section 108). (2)

Where any persons are shown to have been acting as partners, landlord and tenant or principal and agent, the burden of proving that they have discontinued that relationship is on the person who asserts this fact. (Section 109). (3) Where a person is shown to be in possession, the burden of proving that he is not the owner is on the person alleging this fact. (Section 110). (4) Where one of the parties to a transaction stands to the other in a position of

active confidence, the burden of proving the good faith of the transaction is on the party standing to the other in that position. (Section 111.).

.

THE INDIAN EVIDENCE ACT, 1872 (1 of 1872)

[15th March, 1872] Preamble.-WHEREAs it is expedient to consolidate, define and amend the law of Evidence; it is hereby enacted as follows: SYNOPSIS 1.

2. Lex Fori or Rule of the Place of

History of the Law of Evidence

Trial

Comments 1. History of the Law of Evidence The enacment of Indian Evidence Act was a landmark judicial measure in Indian History as the entire system of concepts refers to the acceptability of the law. Before passing of the Act there was no single exhaustive code containing the law of evidence of uniform application in the country. The rules of evidence were different in case of different individual based on different social groups and communities of India, as well as his or her caste, religion and social faith. In the three Presidency Towns of Calcutta, Madras and Bombay the courts followed the English rules of evidence. The Mofussil courts, on the other hand, fell back upon the Mohammedan and English rules of evidence. Later on, some regulations and enactments were passed. Act 11 of 1855 partially codified the law of evidence in its application to courts both in the Mofussil and in the Presidency towns. By the time the Act was passed a vast body of 'customary rules', mainly derived from English law, had developed chaotically. A need to replace the chaos by a code was felt and in 1868 Mr. Henry Maine prepared a draft of the ILaw of Evidence. It was discarded as not suited to ndian conditions. In 1871, Mr. James Stephen made a new draft which became Act 1 of 1872. Though the Act is a consolidating statute, yet it is not exhaustive. In addition to the

general rules of evidence provided in the Act, there are other rules of evidence relating to special subjects contained in other enactments, eg section 4 of the Prevention of Corruption Act, (Act II of 1947) and section 66(2) of the Bombay Prohibition Act, 1949, created new presumptions against the accused. Now it is not open to the Courts to apply principles of equity, justice and good conscience, in matters of evidence nor they throw light upon the issue. The principles of exclusion can admit irregular evidence of evidence laid down in the Act must be strictly applied and cannot be-relaxed at the discretion of the Court. The Act is mainly based on Taylor's Evidence. In the words of Sir James Fitzjames Stephen, "it is an attempt to reduce the English Law of Evidence in the form of express propositions arranged in their natural order with some modifications rendered necessary by the peculiar circumstances of India." Hence, a reference to English authorities is not 1.

Union of India v. T.R. Verma, 1958 SCR 499: AIR 1957 SC 882: 1958 SCJ 142.

5

6

The Indian Evidence Act, 1872

[Pre.

only permissible but useful.! They are referred to by way of illustrations and are not in any way binding.2 However, they form a most valuable guide to the Courts in India.

2. Lex Fori or Rule of the Place of Trial The Evidence Act 'being' an adjectival law, all questions of evidence must bedecided according to the law of the forum in which the action is tried." Even where evidence is taken on commission or otherwise from abroad, its admissibility is determined by the law of evidence of the country where the action is being tried." The law of evidence is therefore, the lex fori, ie, the law of the place where the question arises. Thus, "whether a witness is competent or not, whether a certain fact be proved by writing or not, whether a certain evidence proves a certain fact or not, that is to be ascertained by the law of country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it". The law of evidence is essentially procedural law with overtones of substantive law in certain respects. For example, the doctrine of estoppel prevents a man from asserting his rights (section 115

of the Evidence Act).

1. Parbhoo v. Emperor, AIR 1941 All 402: 1941 All LJ 619 (FB). 2. Surat Dobni (in re:), 10 Cal 302. 3. Rudolf Stallman (in re:), ILR 39 Cal 164 (185): 12 Cr LJ 505: 12 IC 273. 4. Foote's Priv. International Law, 5th Ed., 569; see also Bain v. Whitehaven HLC 1 (19).

Railway Co., (1850) 3

PART I

RELEVANCY OF FACTS Chapter I

PRELIMINARY 1. Short title, extent and Indian Evidence Act, 1872.

commencement-This

Act may be called the

It extends to the whole of India "Iexcept the State of Jammu and Kashmirl and applies to all judicial proceedings in or before any Court, including Courts-martial, **[other than Courts-martial convened under the Army Act] (44& 45 Vict., c. 58) ***[the Naval Discipline Act (29 & 30 Vict., c. 109) or®[***] 00the Indian Navy (Discipline) Act, 1934 (34 of 1934) ©0[or the Air Force Act] (7 Geo. 5, c. 51) but not to affidavits to proceedings before an arbitrator;

"presented to any Court or Officer, nor

and it shall come into force on the first day of September, 1872. sYNOPSIS 1. 2.

Extent and Scope Judicial Proceedings

3.

Courts

4. 5.

Affidavits Arbitrators

Comments 1. Extent and Scope the State of Jammu and Kashmir. The Act extends to the whole of India except It applies to all judicial proceedings before (1) any Court or (2) a Court-martial

and Indian Marine Courts except those constituted under the Army Act, the Naval Discipline Act or the Air Force Act. It does not apply to (1) affidavits, (2) arbitration proceedings, (3) proceedings under the Income-Tax Act, and (4) proceedings before a court martial under the Army Act.

Subs. by Act 3 of 1951, sec. 3 and Sch., for "except Part B States". * Ins. by Act 18 of 1919, sec. 2 and Sch. I. See section 127 of the Army Act (44 and 45 Vict.,

58). **

Ins. by Act 35 of 1934, sec. 2 and Sch. The words "that Act as modified by" omitted by the A.O. 1950. See now the Navy Act, 1957 (64 of 1957) OOO Ins. by Act 10 of 1927, sec. 2 and sch. 1. #As to practice relating to affidavits, se, the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 30(c) and Sch. 1, Order XIX. See also the Code of Criminal Procedure, 1973 (Act 2 of 1974), sections 295 and 297.

8

The Indian Evidence Act, 1872

Sec. 1

In Roop Singh Negi v. Punjab National Bank it was held that the provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice shall be. 2. Judicial Proceedings The term is not defined by the Evidence Act but is defined in section 2(1) of Cr. P.C. as a proceeding in the course of which evidence is or may be legally taken on

oath. An inquiry is judicial, if the object of it is to determine a jural relation between one person and another or a group of persons, or between him and community generally.2 An enquiry in which evidence is legally taken is included in the term judicial proceeding* But an enquiry about matters of fact, for example ina departmental enquiry, where there is no discretion to be exercised and judgement to be formed but something is to be done in a certain event as duty, is not a judicial but an administrative duty. Similarly, proceedings before a Magistrate not authorised to conduct any enquiry or before a Collector under the Land Acquisition Act* or an inquest before the Coroner under the Coroners Act, 18713 are not judicial proceedings.

In respect of quasi-judicial enquiries, the strict rules of evidence in the Evidence Act

do not apply. The Income-tax proceedings are not judicial proceedings. The Act does not apply to tribunals. They are to observe the rules of natural justice in the conduct of an inquiry 3. Courts The definition of the word 'court' as given in the Evidence Act includes Judges and

Magistrates and all persons, except arbitrators legally authorised to take evidence. It is not meant to be an exhaustive

definition.

It is an

inclusive

definition

framed for the

purposes of the Evidence Act. 4. Affidavits Section 3(3) of the General Clauses Act, 1897, provides that an 'affidavit' shall include affirmation and declaration in the case of persons by law allowed to affirm or declare

instead of swearing The Act does not apply to affidavits. Matters to which affidavits are confined are regulated by Order XIX, rules, 1, 2 and 3 of the Code of Civil Procedure and sections 295 and 297 of the Code of Criminal Procedure. Generally, in practice the courts in applications for transfer of civil case, stay of execution or for extension of time under section 5 of the Limitation Act require an

affidavit in proof of the point asserted. So, even though the Evidence Act categorically does not apply to affidavit, 5.

proving a fact by an

affidavit is not barred.10

Arbitrators

The provisions of the Evidence Act do not apply to proceedings before an arbitrator. But though the arbitrators are unfettered by the technical rules of evidence, they are 1.

AIR 2008 SC (Supp)

921: (2009) 2 SCC

Government of Maharashtra,

(2008) 1 SCC

570 (581) (para 23); see also Naresh Govind Vaze v. 514.

2. Queen Empress v. Tulja, ILR (1887) 12 Bom 36 (42). 3. Queen Empress v. Bharma, (1886) 11 Bom 702 FB. 4. Ezra v. Secretary of State, (1903) ILR 30 Cal 36: 7 Cal WN 249 5. Tanajirao Martinrao Kadambande v. HJ. Chinoy, (1960) 71 Bom LR 732.

6. Suman v. State of Tamil Nadu, 1986 Cr LJ 1662 (1681) (FB): AIR 1986 Mad 318 (337): 1986 Writ LR447.

7. Gurmukh Singh v. Commissioner of Income-Tax, AIR 1944 Lah 353 (2): (1914) 12 TR 393: ILR (1945) Lah 173 (FB). 8. 9.

Union of India v. T.R. Verma, 1958 sSCR 499: AIR 1957 SC 882: 1958 SCJ 142. Public Prosecutor (Andhra Pradesh) v. Logisetty Ramayya, 1975 Cr LJ 144: 1975 MCJ 155: 1974

Andh LT 372. 10. Sheoraj v. A.P. Batra, AIR 1955 All 638: 1955 Cr LJ 1451.

9

Preliminary

Sec. 3]

bound to conform to the principles of natural justice. Arbitrators are bound to conform to the rules of natural justice. Their awards are likely to be set aside for failure to observe the rules of natural justice.

2. Repeal of enactments.-{Rep.

by the Repealing Act, 1938 (1 of 1938), sec.

2 and Schedule.]

3. Interpretation clause.-In this Act the following words and expressions are used in the

following

the context: "Court"Court"

senses, unless a

contrary

intention

appears from

includes all Judges* and Magistrates, **and all persons,

except arbitrators, legally authorised to take evidence. Comments In Jagadguru Annadanishwara Maha Swamiji v. V.C. Allipur,2 the Supreme Court has held that "Court' includes a tribunal whose decision is final and/or is authorised to take evidence. Again in a case it has been observed that the terms "tribunal", "Court" and

the "Civil Court" have been used in the Code of Civil Procedure differently. All "Civil Court" are not "Courts". Similarly all "Civil Courts" are "Courts" but all "Courts" are not "Civil Courts". The broad distinction between a "Court" and a "tribunal" is that whereas the decision of the "Court" is final, the decision of the "tribunal" may not be. The "tribunal", however, which is authorised to take evidence of witnesses would "Court" within the meaning of section 3 of the Evidence ordinarily be held to be a Act, 1872. It is not an exhaustive definition. There may be other forums which would also come within the purview of the said definition.3 Where the State of Madhya Pradesh had created a separate forum for the purpose of determination of dispute arising inter alia out of the works contract, the Supreme Court held that the Tribunal is not one which can be said to be a domestic tribunal. The members of the Tribunal are not nominated by the parties. The disputants do not have any control over their appointments. The Tribunal may reject a reference at the threshold. It has the power to summon records. It has the power to record evidence. Its functions are not limited to one Bench. The Chairman of the Tribunal can refer disputes to another Bench. Its decision is final. It can award costs. It can award interests. The finality of the decision is fortified by a legal fiction created by making an award a decree of a Civil Court. It is executable as a decree of a Civil Court. The award of the Arbitral Tribunal is not subject to the provisions of the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996. The Tribunal has to determine a lis. There are two parties before it. Its proceedings are judicial proceedings subject to the revisional order which may be passed by the High Court. The Tribunal for all intent and purport is a court. The Patna High Court has held that the Commissioner who has been authorised to take evidence of the witnesses is a Court. The Rent Controller,° the Election 1.

Suppu v.

Govindachary,

11 Mad 85.

C. the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 2, the Indian Penal Code (Act 45 of 1860), sec. 19; and, fora definition of "District Judge," the General Clauses Act, 1897 (10 of 1897), sec. 3 (17). * Cf. the General Clauses Act, 1897 (10 of 1897), sec. 3 (32) and the Code of Criminal Procedure,

1973 (Act 2 of 1974). 2.

AIR 2009 SC 3256: 2009 AIR SCW 3287: (2009) 4 SCC 625 (626) (para 8).

3. Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation, AIR 2009 SC (Supp) 2474: 2009 AIR SCW 6262: (2009) 8 SCC 646 (683-684) (para 67). 4. State of Madhya Pradesh v. Anshuman Shukla, AIR 2008 SC 2454: 2008 AIR SCW 3760: (2008) 7

SCC 487 (497) (para 28). 5. Jyoti Narayan v. Brijnandan Sinha, AIR 1954 Pat 289: 1954 Cr LJ 942. 6. G. Bulliswamy v. C. Annapurnamma, AIR 1976 AP 270: 1976 Ren CR 329: 1976 Ren C] 344.

10

The Indian Evidence Act, 1872

Sec. 3

Tribunals and Coroners before whom evidence can be adduced have been held to be Courts.2 In Brajnandan Sinha v. Jyoti Narains it has been held that any tribunal or authority whose decision is final and binding between the parties is a Court. In view of this the Court further held that a Court of enquiry is not a court. In Sitamarhi Central Coop. Bank Ltd. v. Thakur Jugal Kishore Sinhat a Division Bench of the Patna High Court has held that Assistant Registrars appointed under the Bihar and Orissa Cooperative Societies Act are Courts. The Court said that, when a question arises as to whether the authority constituted under a particular Act exercising judicial or quasi-judicial power is a court or not, the following tests must be fulfilled before the said authority can be termed as a Court:

i) the dispute [which is to be decided by him] must be in the nature of a civil suit; (i) the procedure for determination of such a dispute must be a judicial procedure; and (ii) the decision must be a binding one. in Thakur Jugul Kishore Sinha This judgment has been affirmed by the Supreme Court v. Sitamarhi Central Co-op. Lid5

"Fact"-Fact" means and includes (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustrations (a) That there are certain objects arranged in a certain is a fact. (b) (c)

order in a certain place,

That a man heard or saw something, is a fact. That a man said certain words, is a fact. That a man holds a certain opinion, has a certain

(d)

intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e)

That a man has a

certain

reputation,

is a fact.

Comments Meaning of fact The Act adopts Bentham's classification of facts into 'physical' and 'psychological' facts. Those which can be perceived by the five human senses are physical or external facts as illustrated by clauses (a), (b), and (c) while those which exist only in the mind are "psychological or internal facts as found in clauses (d) and (e), eg., motive, intention, knowledge, good faith or opinion. A shooting B is a physical fact; but his intention in doing so is a psychological evidence or circumstantial fact. The former can be proved by direct as well as indirect evidence i.e, by proof of facts from which a reasonable inference as to the intention may be drawn. The latter cannot be proved by direct evidence except by the confession of the person as it is not possible to peep into the mind of another. However, the state of a man's mind is as much a fact as the state of his digestion. A man's mental condition can be indicated by his conduct or his words. The former is circumstantial, while the latter is direct evidence. 1. Prem Chand v. O.P. Trivedi, (1967) 65 All LJ 5.

2. 3.

Tanajirao Martinrao Kandambande v. H.J. Chinoy, 71 Bom LR 732. AIR 1956 SC 66: 1956 SCJ 155: (1955) 2 SCR 955.

4.

AIR 1965 Pat 227: 1965 (1) Cr LJ 748: 1966 BLJR 15.

5.

AIR 1967 SC 1494: 1967 Cr LJ 1380: (1967) 3 SCR 163.

11

Preliminary

Sec. 3

Thus, the legal connotation of 'fact' differs from the popular meaning in that the former also includes mental condition. Facts in the Act include (1) factum probandum, ie., the principal fact to be proved, and (2),factum probands, i.e., the evidentiary fact from which the former follows immediately

or by inference.

"Relevant".-One fact is said to be relevant to another when the one is

connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. The word 'relevant' means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself

or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other (Stephens Digest). Relevancy implies relationship and such relationship with the facts in issue either convinces or tend to convince the judge as to the existence or otherwise of the facts in issue. The facts that are recognised to be relevant under the Act are contained in sections 5 to 55

Thus, "of all rules of evidence, the most universal and the most obvious is this that the evidence adduced should be directed and confined to the matters which are in dispute or which form the subject of investigation. Evidence may be rejected as irrelevant on the ground that the connection between the principal and evidentiary facts is too remote and conjectural". (Best). Thus, relevant facts are not themselves in issue but are foundations of inference regarding facts in issue.

"Facts in issue"-The expression "facts in issue" means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation.-Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,* any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

Ilustrations rOA is accused of the murder of B.

At his trial the following facts may be in issue: That A caused B's death; That A intended to cause B's death;

That A had received grave and sudden provocation from B; That A at the time of doing the act which caused B's death, was, by reason of

unsoundness of mind, incapable of knowing its nature. 1. Facts in Issue 2 Facts in Issue and Issues of Fact

SYNOPSIS 3. Lawful Agreement of Compromise in

Writing

Comments 1. Facts in Issue

Facts in issue' are the set of facts from which some legal right, liability or disability which is the subject-matter of the inquiry, necessarily arises, and upon which a decision must be arrived at. The "necessary constituents" of a right or liability are called 'facts in issue', if their existence is asserted by one party and is denied by the other. Thus, a contest or a dispute may be called the soul of facts in issue. In a civil case, facts in issue 1. Andhra State v. Arisetty Sriramulu, AIR 1957 AP 130: (1957) 8 STC 153: 1957 Andh LT 1021.

See now the Code of Civil Procedure, 1908 (5 of 1908) as to the settlement of issues, see Sch. I,

Order XIV.

The Indian Evidence Act, 1872

12

Sec. 3

are determined by the process of framing issues. In a criminal case the charge itself constitutes the facts in issue. For their identification facts in issue are dependent on the

substantive law that is applicable. 2. Facts in ssue and Issues of Fact In a civil case, the court is required to frame issues under

Order XIV, rule 1 of the

Civil Procedure Code, on all disputed facts which are necessary for a case. As a result of pleadings on both sides when a material fact is affirmed on the one side and denied on the other side, the question which is to be determined between the parties is called an issue of fact. Whenever the court records an issue of fact, the fact to be asserted or denied in response to such issue is a fact in issue. The subject matter of an issue of fact framed under the Civil Procedure Code is always a fact in issue. In other words, the 'fact in issue' under the Evidence Act becomes the issue of fact in the language of Civil Procedure Code.

"Document""Document"* means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations A writing** is a document;

Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.

3. Lawful Agreement of Compromise in Writing Statements of parties or their counsel, recorded on oath, read over and accepted by the parties or their counsel to be correct and then signed by the parties or their counsel would be a valid compromise in writing, and it would come within the term

"document".

"Evidence"-"Evidence" means and

includes

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2)

*all documents including electronie records produced for the inspection of the Court),

such documents are called documentary evidence. 1. 2.

Meaning of Evidence English Law

3. 4.

Indian Law Evidence of

SYNOPSIS 7. 8.

Admissibility

of Evidence

Panchsheel in Respect of a Case based on

Circumstantial Evidence Examination-in-Chief,

examination and Re-examination 5. Types of Evidence 6. Proof of Circumstantial Evidence

Cross-

9. Value of Circumstantial Evidence 10. Affidavit 11. Witnesses may Lie but Circumstances cannot

Cf. the Indian Penal Code (Act 45 of 1860), sec. 29 and the General (10 of 1897), sec. 3(18). 1. Pushpa Devi Bhagat v. Rajinder Singh, AIR 2006 SC 2628: 2006 AIR SCW 566 (579-583) (paras 23-25 and 29).

Clauses Act, 1897 3549: (2006) 5 SCC

. Cf. definition of writing in the GeneralClauses Act, 1897 (10 of 1897),sec. 3(65). *** Subs. by Act 21 of 2000, sec. 92 and Sch. I, for "all documents produced for the inspection of the Court" (w.e.f. 17-10-2000).

Preliminaryee

Sec. B]

12. 13. 14. 15. 16.

Evidence of Prosecutrix Evidence of Eye-witness Injured Eye-witness Statement under Section Statement of Truthful

29.

313 Witness

21. Testimony of a Child (11 Years Old) 22. Judicial Scrutiny of Depositions

of

Witnesses 23. Post event Conduct of a Witness Trustworthiness of a Witness 24.

26.

Applicability Omnibus" Eye-witness

- "Falsus in Uno Falsus in Reaction

of

A

Co-accused

is

not

toEvidence under Section 3: Haricharn Kurmi v. State of Bihar

16.1 Distinction between Inculpatory and Exculpatory Evidence 17. Statement under Section 313 Cr.PC 18. Evidence of Interested Witness 19. Court to Reappraise the Evidence 20. Admissibility of Tape-recorded Evidence

25.

Confession

13

on

Seeing

Murder 27. Conduct of Eye-witness 28. Testimony of a Witness

a

30. 31. 32. 33. 34. 35. 36. 37.

Discrepancies in Evidence Credibility of an Eye-witness Chance Witness Natural Witness Panch Witness Stock Witness Police Witness Sterling Witness

Quality of Evidence in Criminal Trials 38. Proof of Unlawful Possession 39. 40.

Corroborative Evidence

41. 42. 43. 44.

Evidence of a Tracker Evidence of Police Officer Electoral Roll 45. Witness to be Reliable 46. Appreciation of Evidence 47. Conviction of an Innocent Person 48. Promissory Estoppel 49. Statement of a Hostile Witness Requirement of Proof of Evidence and Extradition Act, 1962 50. Document Illegally Procured

Comments 1. Meaning of Evidence "The word 'evidence' signifies in its original sense, the state of being evident i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate proof. The fact sought to be proved is called the principal fact; the fact which tends to establish it, the

evidentiary

fact" (Best). .

2. English Law According to Stephen

the word 'evidence' is used in three senses: (1) words uttered, and things exhibited in Court, (2) facts proved by those words or things, which are regarded as groundword of inference as to other facts not so proved, and 3) relevancy of a particular fact to matter under inquiry. 3. Indian Law Under the Indian Evidence Act the term evidence has a more definite meaning viz., the first one. Evidence thus signifies only the instruments by means of which relevant facts are brought before the Court. Evidence is generally divided into three categories: (1) oral or personal, (2) documentary, and (3) material or real. But the Act only recognizes the first two categories. Real or material evidence is supplied by material objects for inspection of the Court e.g., weapon of offence or stolen property. A police officer has to send to the Magistrate any weapon or other article when upon investigation evidence is found to be sufficient against the accused [section 170(2), *Cr. P.C.] (See also section 218, 2Cr. P.C.). Under section 60 of the Act the Court may require the production of a material thing for its inspection. Strictly speaking such material is not evidence under the Indian Evidence Act. The definition of 'evidence' must be read together with that of 'proved'. The combined result of these two definitions 1. Introduction 3 (4). 2. See now Criminal Procedure Code, 1973.

Sec. 3

The Indian Evidence Act, 1872

14

is that, 'evidence' as defined by the Act is not the only medium of proof and that in addition to it there are a number of other 'matters' which the Court has to take into consideration when forming its conclusions. Thus, the definition of 'evidence' in the Act is incomplete and narrow. In State of Maharashtra v. Dr. Praful B. Desai, the Supreme Court has held that under section 3 of the Evidence Act, besides oral and documentary evidence, electronic record can also be admitted as evidence. The Court further that evidence ruled in criminal matters could be by way of electronic records, which would also include video-conferencing. Hence "what is not evidence": (1) a confession or the statement of one accused under section 342, Cr. P.C3 (2) demenour of witnesses (section 361, Cr. P.C., O. 18, R. 12, C.P.C} (3) local investigation or inspection (O. 26, R. 9); (O. 18, R. 18, C.P.C.; sections 293, 539B, 4Cr. P.C) (4) Facts judicially noticeable without proof (sections 56, 57 Act) (5) Material objects (section 60 Act).

Though these matters are not 'evidence' yet they are media of proof and form part of the material on which the decision of the

Court may be based.

Evidence

is to be

weighed and not counted. In Ramdas v. State ofMaharashtras it has been held that the factual statements which find place in the first information report but are not deposed to by the informant or any other witness cannot be treated as evidence in the case. Statements made before and even the findings arrived by even a statutory commission

appointed under the Commission of Inquiry Act, 1952 are inadmissible in any subsequent proceedings civil or criminal. The Courts are not bound by the conclusions and findings rendered by such commissions. Such statements and even conclusions based on such statements cannot be used as evidence in any Court.

4. Evidence of Examination-in-Chief, Cross-examination and Re-examination The 'evidence' as defined by the Indian Evidence Act is not to examination-in-chief, cross-examination or re-examination of a witness und section 137. Evidence means and

includes all statements which the court permits or requires to make before it in relation to matters of fact under enquiry.0 Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable.l 5. Types of Evidence (1) Primary and Secondary.-It may be oral or documentary. Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered by his senses. It is called direct evidence as opposed to hearsay (section 60). As a rule hearsay evidence is not admissible, but there are some exceptional cases of hearsay evidence which are admissible. Such exceptional cases of hearsay evidence are examples of secondary oral evidence or indirect evidence (e.g., sections 32, 33).

Primary documentary evidence is the evidence of the original documents (section 62), while secondary documentary evidence is the evidence of copies etc. of documents which are admissible under certain circumstances. (Secs. 63, 65).12 1.

Introduction

3(4).

2. 2003 (2) RCR (Criminal) SC 771. 3. Bhairon Prasad v. Laxmi Narayan Das, 1924 N 385. 4. See now Criminal Procedure Code, 1973.

5. LaxmanJairam v. E., 38 BLR1122; E. v. Tuti Babu, ILR 25 (33), (written statement); Kashmira Singh v. State of Madhya Pradesh, 1952 Cr LJ 839 (SC): 1952 SCJ 201: AIR 1952 SC 159. 6.

Joy Coomar v. Buddhoo Lal, 9 C 363.

7. State of Orissa v. Chhaganlal Sundarka, 1977 Cr LJ 319 (328): ILR 8. AIR 2007 SC 155: 2007 AIR SCW 5675: (2007) 2 SCC 170 (174)

1975 Cut 1384. (Para 4).

9 StateBank of India v. National HousingBank, AIR 2013 SC 3478 (paras 53 and 53). 10. Rajesh BhalchandraChalke v. State of Maharashtra, AIR 2011 (NOĆ) 160 (Bom). 11. Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 (para 89).

12. (Seealso sections 65A, 65B, relating to electronic records and admissibility records, as amended by the Information

Technology Act, 21 of 2000).

of electronic

Preliminary

Sec. 31

15

(2) The Best Evidence or the original evidence means primary evidence. The Best Evidence Rule excludes secondary evidence. (3) Real and personal. (4) Oral and documentary. (see Definition of Evidence). (5) Direct and indirect (hearsay). The word 'direct' evidence is used in two senses (a) as opposed to hearsay evidence and (b) as opposed to circumstantial evidence. In the first sense, direct evidence is the evidence of a fact actually perceived by a witness with his own senses or an opinion held by him, while hearsay evidence is e.g., what someone else had told the witness to have seen or heard by him. In section 60 the word 'direct is used in contradistinction

with 'hearsay' evidence. (6) Direct and Circumstantial.-English text-writers divide evidence into (a) direct or positive evidence and (b) indirect or circumstantial evidence. In this sense direct evidence is that which goes expressly to the very point in question and proves it, if believed, without aid from inference or deductive reasoning, eg., eye-witness to a murder is direct evidence. Circumstantial evidence does not prove the point in question directly, but establishes it only by inference. Thus, if there is no eye-witness to a murder the fact that A had the motive to murder B or that A was seen running away with a blood-stained knife from B's room where B was found dead immediately after B's cries were heard would be circumstantial evidence as against A. 6. Proof of Circumstantial Evidence Circumstantial

evidence means the evidence of circumstances and is sometimes

referred to presumptive evidence: A is charged with the murder of B. At the trial a witness C, on behalf of the prosecution, gives evidence that he saWA running away from the murder place, with blood stained knife in his hand, evidence given by C will be called circumstantial evidence. In G. Parshwanath v. State of Karnataka the evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". The Court further observed that, in cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these 1.

AIR 2010 sC 2914: 2010 AIR SCW 5052: (2010) 8 sCC 593.

Sec. 3

The Indian Evidence Act, 1872

16

facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground

for the conclusions consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court. Four things are essential to prove guilt by circumstantial evidence: (1) That the circumstances from which guilt is established must be fully proved; (2) That all the facts must be consistent with the hypothesis of guilt of accused; 3) That the circumstances must be of a conclusive nature and tendency; (4) That the circumstances should, to a moral certainty, actually exclude every

hypothesis except the one proposed to be proved.

In Bodh Raj v. Stateof Jammu and Kashmir,2 the Supreme Court held that circumstantial evidence can be the sole basis for a conviction provided the conditions precedent before

conviction on circumstantial evidence are fully established. The conditions are: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established. (2) The facts so established should be consistent with the hypothesis of the guilt of the accused. (3)

Circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In other words circumstantial evidence must be both exclusive and conclusive i.e., it must exclude the hypothesis of innocence of the accused and must conclusively establish his guilt. The circumstantial evidence should not only be consistent with the guilt of the

accused, but should be inconsistent with his innocence. In order to sustain a conviction on circumstantial evidence, the prosecution must establish that the chain of circumstances consistently pointing to the guilt of the accused

and inconsistent with his innocence. Proof of motive and opportunity

are

regarded

as

two

of

the

crucial

tests

of

circumstantial evidernce. It has been held by the court that when there is no eyewitness to the occurrence and the prosecution evidence comprises only circumstantial evidence, the motive and the conduct of the accused are not only relevant but are of paramount

1. State v. Shanker Prasad, AIR 1952 All 776: 1952 Cr LJ 1585; Ratan Lal v. Rex, 1949 A 222; Q.E. v. Hos Nath, 1941 ALJ 416; Mangleshwari Prasad v. State of Bihar, AIR 1954 SC 715: 1954 Cr LJ 1797; Bhagat Ram v. State of Punjab, AIR 1954 SC 621: 1954 Cr LJ 1645. AIR 2002 SC 3164: 2002 AIR SCW 3655: 2002 Cr LJ 4664. 3.

Gambhir v. State of Maharashtra, AlR 1982 SC 1157 (1159): 1982 Cr LJ 1243: (1982) 2 SCC 351.

4. State of Uttar Pradesh v. Desh Raj, AIR 2006 SC 1712: 2006 C LJ 2108: (2006) 9 SCc 278 (282) (para 16).

Sec. 3]

17

Preliminary

importance in order to establish his guilt. It is well settled that interested evidence is not necessarily unreliable evidence. Sometimes circumstantial evidence may be more reliable than direct evidence but it should be of a conclusive character and must point towards the guilt. But mere conjecture, surmises or picking up some sentence from here and there, cannot

hold

the accused

guilty of offence.2 7. Admissibility of Evidence When a question pertaining to the admissibility of evidence before an Indian Court arises, it has to be determined with reference to the provisions of the Indian Evidernce Act, 1872. Alternatively, the question may be determined under a special enactment, which may either make such evidence admissible, or render it inadmissible. The special enactment in the instant case is MCOCA. 8. 'Panchsheel' in Respect of a Case based on Circumstantial Evidence In Sharad Birdhichand Sarda v. State of Maharashtra,*a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. The Court laid down the following five tests to be satisfied in a case based on

circumstarntial

evidence:

(1) The circumstances from which the conclusion of guilt is to be drawn should

be fully established. (2) The facts so established should be consistent only with the hypotheses of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In Padala Veera Reddy v. State of Andhra Pradesh,5 the Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In Balwinder Singh v. State of Punjab,5 it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those 1.

Hari Obula Reddi v.

State of Andhra Pradesh, AIR 1981 SC 82 (87, 88): 1980 Cr LJ 1330: (1981)

3 SCC 675.

2. Lakhwinder Singh v. State of Punjab, 1998 Cr LJ 468 (P&H). 3. State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari, (2013) 12 SCC 17 (para 10). 4.

(1984) 4 SCC 116: AIR 1984 SC 1622: 1984 Cr LJ 1738.

5. 1991 CC (Cri) 407: AIR 1990 SC 79: 1990 Cr LJ 605. 6. AIR 1996 SC 607: 1996 Cr LJ 883: 1995 AIR SCW 4555.

18

The Indiarn

Evidence Act, 1872

Sec. 3

circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. In Harishchandra LadakuThange v. State ofMaharashtra, while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which and inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In State of Uttar Pradesh v. Ashok Kumar Srivastava,- emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonable capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty. In Ram Singh v. Sonia3 while referring to the settled proof pertaining to circumstantial evidence, the Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain ofevents have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.

In jagar Singh v. State of Punjab, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, the Court stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. The decision of the Supreme Court in Aftab Ahmad Ansari v. State of Uttaranchal was the

timely reminder of the abovementioned requirements in the following words: "In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does 1. 2. 3. 4. 5.

AIR 2007 SC 2957: 2007 AIR SCW 5394: (2007) 10 SCALE 464. AlR 1992 SC 840: 1992 Cr LJ 1104: 1992 AlR SCW 640. SCW 1278: (2007) 3 SCC 1. AlR 2007 SC 1218: 2007 Cr LJ 1642: 2007 AIR (2007) 13 SCC 90: 2008 AIR SCW 33: 2008 Cr LJ 808. SCW 1008. (2010) 2 SCC 583: AIR 2010 SC 773: 2010 AIR

Sec3.

19

Preliminary

not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the

accused, howsoever extravagant and fanciful it might be." 9. Value of Circumstantial Evidence Ordinarily circumstantial evidence cannot be regarded as satisfactory as direct evidence. Therefore, such evidence must be used with caution. Incrimating facts and

circumstances must be incompatible with innocence of accused

or guilt of any other

person. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with

principal fact sought to be inferred from those circumstance 10. Affidavit The expression 'affidavit' has been commonly understood to mean a sworn statement in writing made especially under oath or an affirmation before an authorised Magistrate or officer. The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject-matter and in order to add sanctity to it, he swears or affirms the truth of the statements in the presence of a person who in law is authorised either to administer oath or to accept the affirmation. In Veer Singh Kolhari v. State Bank of India3 it was held that the affidavit is not evidence within the meaning of section 3 of the Evidence Act.

11. Witnesses may Lie but Circumstances cannot It is true that the testimony of witnesses may not be credible in some cases. Therefore, facts are provable not only by witnesses but also by circumstances. It is well settled that when a prosecution case rests on circumstantial evidence only, those circumstances should in the first place be firmly established, and further there should bea definite pointer towards the guilt of the accused.* 12. Evidence of Prosecutrix In the cases of sexual assault, the victim is not an accomplice to the crime but is a

victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of

physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (6) to section 114 which require it to look for corroboration. The Court also said that the courts must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it ften « acts the w e personality of the tim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated 1. State of Uttar Pradesh v. Satish, (2005) 3 SCC 114: 2005 (2) SCALE 33: AIR 2005 SC 1000.

2. S. Amutha v. C. Manivanna Bhupathy, 2007 AIHC 426 (NOC): 2007 (2) CTC 97: AIR 2007 164 (167) (Para 12): See also M. Veerabhadra Rao v. Tek Chand, 1984 (Supp) SCC 571: AIR

Mad 1985

SC 28: (1985) 1 SCWR 42.

3.

AIR 2009 Ori 29 (DB); See also Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, AIR 2013 SC 58: 2012 AIR SCW 6177: (2013) 4 SCC 465 (para 31). 4. Shripad Shivram Kulkarni v. State of Maharashtra, AIR 1981 SC 34 (38): 1980 Cr LJ 1292: (1980) 4 SCC 491.

20

The Indian Evidence Act, 1872

Sec. 3

in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

13. Evidence of Eye-witness The Supreme Court has observed that minor embellishment should not render the evidence of eye-witnesses unbelievable. The Supreme Court has held that if discrepancy is trivial and does not amount to any contradiction it does not render the prosecution evidence doubtful.2 In Krishna Mochi v. State of Bihar, the Supreme Court has held that even if a major portion of evidence is found to be deficient and the residue is sufficient to prove the guilt of the accused, his conviction can be maintained. The Supreme Court in ShamsherSingh v. State of Haryana, opined that in a case of proof for murder it is not necessary that in all cases all witnesses present at the time of the occurrence should be examined. Thus, it was held that a mere non-examination of one of the eye-witnesses to speak on the same point does not impair the prosecution when the eye-witnesses examined fully support the prosecution case. Unexplained omission to examine independent eye-witnesses would give rise to adverse inference when evidence of such eye-witnesses are not found reliable and it raises serious doubts on point of their presence on scene of ocurrence." Where the incident of assault on the deceased took place on the road in broad day light, the evidence of the eye-witnesses that they were able to see specific parts played by different accused could not be disbelieved only because they watched the incident from a little distance. Moreso, when the time taken inflicting as many as 36 injuries on the deceased would be sufficient for them to make observation as to the role played by each

accused. An eye-witness version cannot be discarded by the Court merely on the ground that such a witness happened to be a relation or friend of the deceased. The concept of

interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statement. But where the presence of the eye-witnesses is proved to be natural and the statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness. 14. Injured Eye-witness Evidence of an injured eye-witness stands on a higher pedestal." 15. Statement under Section 313 Statement under section 313 of the Code of Criminal Procedure is taken into consideration to apPpreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said 1. Mohd. Imran Khan v. State (Govt. of NCT of Delhi), 2012 Cr LJ 693: 2011 AIR SCW 6821: (2011) 10 SCC 192. 2. State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247: AR 1999 SC 3916: 1999 AIR SCW 4008: 2000 Cr LJ 44. 3. AIR 2002 SC 1965: 2002 AIR SCW 1909: 2002 AIR SCW 1909. 4. AlR 2002 SC 3480: 2002 AIR SCW 4070: (2002) 7 SCC 536. 5. Hem Raj v. State of Haryana, AIR 2005 SC 2110: 2005 AIR SCW 1885: 2005 (3) SCALE 482. Subhash Krishnan v. State of Goa, 2012 Cr LJ 4369: 2012 AIR SCW 4699: AIR 2012 SC 3003 (para 26). Dayal Singh v. State of Utaranchal, AIR 2012 SC 3046: 2012 AIR SCW 4488: 2012 Cr LJ 4323 (para 10). Shyam Babu v. State of Uttar Pradesh, 2012 Cr LJ 4550: 2012 AIR SCW 4846: AIR 2012 SC 3311 8. (para 15).

21

Preliminary

Sec. 3]

statement cannot be treated as evidence within the meaning of section 3 of the Evidence

Act. 16. Statement of Truthful Witness Even if there is a contradiction is no ground to reject the whole of the

ent of a witness on any material point that testimony of such witness.2

16.1 Distinction between Inculpatory and Exculpatory Evidence The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. The Court said that if court permits the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the "right against self-incrimination" will be rendered meaningless. The law confers on "any person" who is examined during investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. The court further held that it is also likely that the information or material collected at an earlier stage of investigation can prove to be inculpatory in due course. In Atmaram v. State of Madhya Pradesh, the Court held that every variation or discrepancy

in the

statement

of a witness

cannot belie the case of the

prosecution

per se.

In this case, most of the witnesses have turned hostile and have not fully supported the case of the prosecution, but that by itself would not be a circumstance for the Court to reject the statements of prosecution witnesses, who are reliable and worthy of credence and more particularly, when their presence at the place of occurrence has been established beyond reasonable doubt. 17. Statement under section 313 Cr.P.C. The Statement of the accused made under section 313, Cr.PC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under section 313, Cr.PC cannot be treated to be evidence within the meaning of section 3 of the Evidence Act, 1872. 18. Evidence of Interested Witness The evidence of a witness cannot be discarded merely on the ground that he is either partisan or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly are convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate

1. Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85: AIR 2010 SC 3594: 2010 Cr LJ 4715; See also Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 (para 41). 2. Narayan Chetanram Choudhary v. State of Maharashtra, AlR 2000 SC 3352: (2000) 8 SCC 457: 2000 SCC (Cri) 1546. 3. Selvi v. State of Karnataka, (2010) 7 SCC 263: AIR 2010 SC 1974: 2010 AIR SCW 3011. 4. AIR 2012 SC 1956: 2012 AIR SCW 2972: 2012 Cr LJ 2882.

22

The Indian Evidence Act, 1872

3

the accused, his testimony should have corroboration in regard to material particulars before it is accepted." any infirmity as such, The evidernce of an interested witness does not suffer from but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth such

evidence could be relied upon even without corroboration. The theory that the witnesses being close relatives and consequently being partisan witnesses, should not be relied upon, was repelled by the Court in the case of Dalip Singh v. State of Punjab, wherein it was held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real

culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. Each case must be judged on its own facts. Our observations are only made to combat what is so often put

forward

in cases before the

court as a

Each case must be limited to general rule of prudence. There is no such general rule. and be governed by its own facts. the court in Masalti v. State of A similar view had been taken in a later decision of Uttar Pradesh, wherein the Court observed that the mechanical rejection of partisan or interested witnesses evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. Once, the statement of a witness is found trustworthy and is duly corroborated by other evidence, there is no reason for the Court to reject the statement of such witness, merely on the ground that it was a statement öf a related or interested witness3 the Apex Court has held that the In Ashok Kumar Chaudhary v. State of Bihar relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as

postulates that the person an "interested" witness. It is trite that the term "interested concerned has some direct or indirect interest in seeing that the accused is, somehow or the other, convicted either because he had some animus with the accused or for some other oblique motive. 1. Pulicherla Nagaraju v. State of Andhra Pradesh, AIR 2006 SC 3010: 2006 AIR SCW 4143: (2006) 11 SCC 444 (453) (para 16); See also Ram Singh v. State of Madhya Pradesh, AIR 2009 SC 282:

2008 AIR SCW 7256: (2008) 13 SCALE 367; Kapildeo Mandal v. State of Bihar, 2007 AIR SCW 7420: AIR 2008 SC 533: 2008 Cr LJ 730. 2. Jaisy v. State, Rep. by Inspector of Police, AIR 2012 SC 478: 2012 Cr LJ 1024: 2012 AIR SCW 238. 3.

AIR 1953 SC 364: 1953 SCJ 532: 1954 SCR 145; see also State of Rajasthan v. Teja Ram, (1999) 3 SCC 507: AIR 1999 SC 1776: 1999 AIR SCW 1514; Amzad Ali v. State of Assam, (2003) 6 SCC

270: AIR 2003 SC 3587: 2003 Cr LJ 3545; State v. Saravanan, AIR 2009 SC 152: 2008 AIR SCW 7060: (2008) 13 SCALE 253; Arumugam v. State, AlR 2009 sC 331: 2008 AIR SCW 7354: (2008) 13 SCALE 487. 4.

AIR 1965 SC 202: (1965) 1 Cr LJ 226: (1964) 8 sCR 133; see Poonam Chandraiah v. State of Andhra Pradesh, 2008 AIR SCW 5429: AIR 2008 SC 3209: 2008 Cr LJ 4298.

State of Haryana v. Shakuntla, AIR 2012 SC 2123: 2012 AlR SCW 2952: 2012 Cr LJ 2850. 5. 2008 AR SCW 3739: 2008 Cr LJ 3030: AIR 2008 SC 2436 (2438) (para 7). 6.

Sec3.

Preliminary

23

In Mallanna v. State of Karnataka, the Apex Court has held that merely because of the witnesses being related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they support prosecution case in material particulars. The credibility of the witness has to be tested on the touchstone

of truthfulness and trustworthiness. In Amitsingh Bhikaramsingh Thakur v. State of Maharashtra- the Court has observed that the relationship would not result in the mechanical rejection of the testimony of the witnesses. Settled norms of appreciation of evidence require that the evidence of such witnesses is to be assessed with caution. While appreciating the evidence of witness considering him as the interested witness, the Court must bear in mind that the term 'interested' postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that witnesses had reason to shield actual culprit and falsely implicate the accused. 19. Court to Reappraise the Evidence Corroboration of evidence with mathematical niceties cannot be expected criminal cases and trivial discrepancies ought not to obliterate an otherwise acceptable

in

evidence. 20. Admissibility of Tape-recorded Evidence The Supreme Court set the following guidelines as to the admissibility of the tape-

recorded evidence: 1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker. 2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial. 3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded. 4. The tape-recorded statement must be relevant. 5. The recorded cassette must be sealed and must be kept in safe or official

custody.

6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances. 21. Testimony of a Child (11 Years old) In a case 'B' was arrested in connection with abducting and killing of children. A boy aged 9 years who escaped from abduction attempt twice stated that he knew the 1.

AIR 2007 SC (Supp) 887: (2007) 8 SCC 523 (529) (para 22); see Girja Prasad v. State of Madhya Pradesh, (2007) 7 SCC 625: AIR 2007 SC 3106: 2007 AIR SCW 5589; Bathula Nagamalleswar Rao v. State, AIR 2008 SC 3227: 2008 AIR SCW 5456: (2008) 6 SCALE 169. 2. AlR 2007 SC 676: 2007 Cr LJ 1168: (2007) 2 SCC 310 (322) (para 21); see also Vinay Kumar Rai v. State of Bihar, AIR 2008 SC 3276: 2008 Cr LJ 4319: 2008 AIR SCW 5541. 3. Takdir Samsuddin Sheikh v. State of Gujarat, AIR 2012 SC 37: 2011 AIR SCW 6486: 2012 Cr LJ 621. 4. Rajesh Kumar v. State of Himachal Pradesh, 2009 Cr LJ 335: 2008 AIR SCW 6833: AR 2009 SC 1 (4) (para 11).

Leela Ram v. State of Haryana, AIR 1999 SC 3717: 1999 AIR SCW 3756: (1999) 9 SCC 525. 5. All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, AIR 2009 SC 1314 (1328-29): 2009 6. AIR SCW 2424: (2009) 5 SCC 417; Ram Singh v. Col. Ram Singh, AIR 1986 SC 3: 1985 (Supp) SCC 611; Ziyauddin Burhanuddin Bukhari v. Brijmohon Ramdass Mehra, (1976) 2 SCC 17: AIR 1975 SC 1788: 1975 Supp SCR 281.

24

The Indian Evidence Act, 1872

Sec. 3

accused B' who was the uncle of his classmate. The boy had narrated both the attempts made by B to his parents whose initial reaction was not to treat it seriously. It was only when B' was arrested that the boy and his family members realised how narrowly their child had escaped. The Supreme Court observed that in such circumstances the rejection of testimony of the boy and his father was not proper. In a case of murder, the first accused came to the house of the deceased along with a bottle

of liquor as usual and handed over the same to the deceased, and, thereafter,

indulged in illicit intimacy with the second accused (the wife of the deceased). Both the of their object they accused decided to do away with the deceased and in furtherance took a nylon rope and

strangulated

the deceased.

Immediately,

thereafter, they dug a

hole in the floor of the hut and buried the dead body in the said hole. The entire incident was witnessed by the daughter of the deceased, who was ten years old at the time of occurrence and 14 years old when she deposed before the Trial Court. She was threatened by the accused that if she revealed the occurrence to anybody, she would have to face dire consequences. After ten days of the occurrence she revealed entire incident to the father of the deceased. The main challenge of the accused was that her evidence, being a child witness, is not reliable. The Supreme Court held that there can be no reason to disbelieve her evidence which has withstood the test of cross-examination. The court further held that it cannot be forgotten that the accused No. 2 is her mother and no reason to falsely implicate the accused No. 2 mother in murder of father, and conviction

can be based on testimony of child witness.

22. Judicial Scrutiny of Depositions of Witnesses Depositions of witnesses whether prosecution or defence or court witnesses are oral evidence in a case and hence the

scrutiny

thereof shall be

without any predilection or

bias. No witness is entitled to get better treatment merely because he was examined asa prosecution

witness or even as a court witness. It is judicial

scrutiny which is warranted

in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses. 23. Post event Conduct of a Witness The Supreme Court has observed that the post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by

everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would therefore, be different 24.

Trustworthiness of a Witness The Supreme Court observed that in view of the fact that she was deposing before

the High

Court with respect to the events which had taken place

over a period of three

years some inconsistencies of a minor nature can be regarded as natural. She has given

more details while deposing before the Sessions Court, but they are not improvements of such nature as would create any doubt regarding their trustworthiness. She had not made any attempt to hide or conceal the part played by her. The Court added that having carefully scrutinised her statement we find that she has given full and correct version of the incident. Her evidence before the court was also consistent. The Supreme Court held that both the courts below were justified in accepting her evidence and recording conviction of the appellant. 1.

2.

State of Maharashtra v. Damu Gopinath Shinde, AlR 2000 SC 1691: 2000 (6) SCC 269: 2000 Cr LJ 2301: JT 2000 (5) SC 575. Balaji v. State, represented by Inspector of Police, 2010 Cr LJ 1934: 2009 AIR SCW 7517: AIR 2010

SC 278 (279-280) (paras 2, 6 and 15 to 17). 3.

State of Uttar Pradesh v. Babu Ram, (2000) 4 SCC 515: AIR 2000 SC 1735: 2000 Cr LJ 2457: 2000

All LJ 1439. 4.

Rammi v. State of Madhya Pradesh, AIR 1999 SC 3544: 1999 AIR SCW 3546: 1999 Cr LJ 4561.

Sec. 3]

25

Preliminary

A submission was made that her evidence against Krishnendu has not been believed by the High Court and by implication it would mean that she had not told the truth. The Supreme Court observed that the High Court did not accept her evidence because it was of the view that it was unsafe to rely upon it in the absence of the independent corroboration and the non-acceptance of her evidence against Krishnendu did not introduce any infirmity in her evidence or create any doubt regarding her reliability as a witness.

25. Applicability - "Falsus in Uno Falsus in Omnibus" The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has no application in India. If major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular

material witness or material particular would not run it from the beginning to end. The maxim has no application in India and the witnesses cannot be branded as liars. The maxim has not received general acceptance nor has this maxim come to Occupy the status of a rule of law. It is merely a rule of caution

In Prem Singh v. State of Haryana' it was observed that the doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". The Supreme Court in Ranjit Singh v. State of Madhya Pradesh, held that the legal maxim is not applicable in India and the court has to assess to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded. 26. Eye-witness' Reaction on Seeing a Murder It is fallacious to suggest that a particular witness should have said this or that on seeing the incident. Unless the reaction demonstrated by an eye-witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub the reaction as unnatural."

27. Conduct of Eye-witness The conduct of eye-witness to murder in going to the house of his of reporting the incident to the police cannot be said to be unnatural,

uncle instead impairing the creditworthiness of his evidernce. The post event conduct of a witness varies from person-to-person. It cannot be a cast iron reaction to be followed as a model by every one witnessing such event. Different persons would react differently on seeing any serious crime and their behaviour and conduct would, therefore, be different. Therefore, having 1.

Ranadhir Basu v. State of West Bengal, AIR 2000 SC 908: (2000) 3 SCC 161: 2000 Cr LJ 1417.

2. Bur Singh v. State of Punjab, 2008 AIR SCW 7067: (2008) 13 SCALE 334: AIR 2009 SC 157 (160) (Para 13); See also Poonam Chandraiah v. State of Andhra Pradesh, 2008 AIR SCW 5429: AIR 2008 SC 3209: 2008 Cr LJ 4298; Nisar Ali v. State of Uttar Pradesh, AIR 1957 SC 366: 1957 SCJ 392: 1957 SCR 657: 1957 Cr LJ 550: 1957 SCC 128. 3. 2009 AIR SCW 4486: (2009) 7 SCALE 637: AIR 2009 SC 2573 (2575) (Para 13).

4. 2011 Cr LJ 283: AIR 2011 SC 255: 2010 AIR SCW 6676: (2011) 4 SCC 336.

5. State of Karnataka v. Yarappa Ready, 1999 AIR SCW 4276: 2000 Cr LJ 400: AIR 2000 SC 185 [Cri.

A. No. 248 of 1986, dated 14-9-1987 (Kant) Reversed]. See also Rana Pratap v. State of Haryana, AIR 1983 SC 680: 1983 Cr LJ 1272 (1983) 3 SCC 327; Appabhai v. State of Gujarat, SC 696: 1988 Cr LJ 848: 1988 Supp SCC 241.

AIR 1988

The Indian Evidence Act, 1872

26

witnessed a

dastardly

murder, it was not unnatural

for the said

Sec.

3

witness to go to his

uncle. In a case of murder, the Prosecution witnesses stated that they had left the injured in lurch and had disappeared from the scene making deceased to cringe an auto driver to take him to hospital. The Court observed that no close friend would behave like this in such a grave situation. Besides they did not inform about the occurrence to anybody police in the midnight of the date of occurrence. In these till they were asked by the circumstances, the Supreme Court held that the conduct of the witnesses was unnatural and unbelievable and their presence at the time of occurrernce was doubtful and their testimonies could not be accepted.2 Where the witness who witnessed the assault on the deceased, was his neighbour but instead of informing about the assault to the victim's family, straightway went home. Further, he deposed that he came to know of the death of the victim only the next morning. His conduct was held to be quite unnatural and

his testimony doubtful. 28. Testimony of a Witness Discussing the reliability of the testimony of a witness the Supreme Court has observed that unless the discrepancies and contradictions are so material and substantial and that too in respect of vitally relevant aspects of facts deposed, the witness cannot be

straight-away condemned and the evidence discarded in its entirety. In State (NCT of Delhi) v. Navjot Sandhu5 the hideouts furnished links between the accused and the deceased terrorist. The testimony of the witness who was running the hostel where the terrorists stayed was found to be reliable. It was held that this testimony cannot be discarded on the ground that the witness did not produce record of their

stay. 29.

Confession of a Co-accused is not Evidence under Section 3: Haricharan Kurmi

v. State of Bihars The Constitution Bench referred to section 3, of the Evidence Act and observed that confession of a co-accused is not evidence within the meaning of section 3 of the Evidence Act. It is neither oral statement which the court permits or requires to be made before it as per section 3(1) of the Evidence Act nor does it fall in the category of evidence referred to in section 3(2) of the Evidence Act which covers all documents produced for the inspection of the court. The court observed that even then section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused. Thus, though such a confession may not be evidence as strictly defined by be taken into consideration by section 3 of the Evidence Act, it is an element which may the criminal court and in that send, it may be described as evidence in a non-technical way. The court further observed that section 30 merely enables the court to take the confession into account. It is, not obligatory on the court to take the confession into account. The court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the 1. Babasaheb Apparao Patil v. State of Maharashtra, 2009 AlR SCW 936: (2008) 15 SCALE 205: AIR 2009 SC 1461 (1465) (para 15). 2. State of Tamil Nadu v. Subair, 2009 Cr LJ 1777: 2009 AIR SCW 438: AIR 2009 SC 1189 (1193)

para 4). 3.

Surajit Sarkar v. State of West Bengal,

2013 Cr LJ 1137: 2013 AIR SCW 648: AIR 2013 SC 807

para 43). 4. Joseph v. State of Kerala, AIR 2000 SC 1608: (2000) 5 SCC 197: 2000 Cr LJ 2467. 5. AIR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600. 6. AIR 1964 SC 1184: (1964) 1 SCWR 446: (1964) 6 SCR 623.

Preliminary

Sec. 3]

27

court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right. The Court clarified that though confession may be regarded as evidence in that generic sense because of the provisions of section 30 the of Evidence Act, the fact remains that it is not evidence as defined by section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the

court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

30. Discrepancies in Evidence It is to be born in mind that some discrepancies in the ocular account of a witness, unless they are vital, cannot per se affect the credibility of the evidence of the witness. Unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Merely because there is inconsistency in evidence, it is not sufficient to impair the credibility of the witness. It is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding his evidence. The court further held that while appreciating the evidence, the court should not attach undue importance to minor discrepancies. The discreparncies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experiences of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witnesses altogether, if it is otherwise trustworthy. In Shivappa v. State of Karnataka, it was held that the minor discrepancies or some improvements also would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in court. When the medical evidence is in consonance with the principal part of the oral/ ocular evidence thereby supporting the prosecution story, there is no question of ruling out the ocular evidence merely on the ground that there are some inconsistencies or contradictions in the oral evidence3 31. Credibility of an Eye-witness It has been held by the Supreme Court that non-examination of the investigation officer does not in any way create a dent in the prosecution case and neither does it affect the credibility of an otherwise trustworthy testimony of the eyewitness. In a trial for murder case the Apex Court has held that evidence of a witness should not be discarded merely because he was a relative of the deceased." The Court in Sonelal v. State of Madhya Pradesh, observed that, merely because the eye-witnesses are family members, their evidence cannot per se be discarded. When there 1. Babasaheb Apparao Patil v.

State of Maharashtra, 2009 AIR SCW 936: (2008) 15 SCALE 205: AIR

2009 SC 1461 (1464-1465) (Paras 12, 14); see State of Uttar Pradesh v. M.K. Anthony, AlR 1985 SC 48: (1985) 1 SCC 505: 1985 Cr LJ 493.

2. 3.

AlR 2008 SC 1860: 2008 AIR SCW 2608: 2008 Cr LJ 2992. Kathi Bharat Vajsur v. State of Gujarat, AlR 2012 SC 2163: 2012 AIR SCW 2902: 2012 Cr LJ 2717.

4. Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519: AIR 2003 SC 4664: 2003 AIR SCW 5095; Bahadur Naik v. State of Bihar, AlIR 2000 SC 1582: (2000) 9 SCC 153: 2000 Cr LJ 2466. 5. Guddu v. State of Madhya Pradesh, (2004) 1 SCC 414: AIR 2004 SC 261: 2003 AIR SCW 5977. 6. 2008 AIR SCW 7988: (2008) 14 SCC 692: AlR 2009 SC 760 (762-763) (Paras 6 and 13)

28

The Indian Evidence Act, 1872

Sec. 3

Mere statement that being is allegation of interestedness, the same has to be established. relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship isnot a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt analyse evidence to find out whether it is cogent and credible. a careful approach and The Court further held that the over insistence on witnesses having no relation with

the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. 32. Chance Witness Chance witness is a witness who appears at the place of occurrence per chance and

the presence of whom may not be natural in context to the occurrence. But, that principle on branding a witness a chance witness

has undergone a

transformation.

It is no longer a

proposition which could be universally

applicable to all such cases where theappearance

of a person at or around the place of occurrence could be accidental. The Court said that it now stands resolved since long that no one could be said to be a chance witness merely because he was purposelessly appearing roaming in or around a place where he happened to witness any offence being committed by some set of persons. The Court said that Indians have no set norms and habits of spending time and may often be found

roaming around aimlessly at any place at any moment of time. If a person who aimlessly or even purposely was at such a place that he had seen the occurrence being committed in his presence, he could not be said to be a chance witness. The court further said that

the possibility of a person being a chance witness may not be inferred merely on asking, facts of the case have to be considered before any finding regarding a person beinga chance witness is recorded. In the murder trial the eye-witness specifically stated the purpose for which they had come out of their house at that particular moment of time when the occurrence had taken place. Both of them had stated that they had started from their house for their tubewell. This appears not unusual. The only son of eye-witness had been murdered a few years back by the appellants. As such an old man of 65 years like the informant was forced with the widow of his deceased son to venture out for carrying out the agricultural operations so as to sustaining themselves in the daily rut of life. The court held that such eyewitnesses could not be said to be chance witness. In a murder trial, committed on a street, by describing the independent witnesses as 'chance witnesses it cannot be implied that their evidence was suspicious and their presence at the scene doubtful. Their evidence could not be trusted aside or viewed with suspicion on the ground that they were mere 'chance witnesses'. The Court cannot be throw of evidence of chance witness merely because he happened to be present by chance In Thangaiya v. State of Tamil Nadu it was held that the chance witness happened to be independent witness and they had no enmity towards the accused. Thus the clear, cogent evidence of independent witness could not be discarded by treating him as chance witness.

33. Natural Witness The Court found that the evidence of the injured witnesses who were close relatives of the deceased had really not embellished or exaggerated the case of the prosecution. 1. Chandra Bhan v. State, 2012 Cr LJ 3150: 2012 (4) ALJ 465: 2012 (4) ADJ 34 (NOc) (Al); Seealso Kallu v. State of Haryana, 2012 AIR SCW 4605: 2012 Cr LJ 4244: AIR 2012 SC 3212 (para 9). 2. Sarvesh Narain Shukla v. Daroga Singh, 2007 AIR SCW 6843: (2007) 12 SCALE 290: AIR 2008 SC 320 (325) (Para 11). 3. 2005 AIR SCW 76: (2004) 10 SCALE 319: AIR 2005 SC 1142.

Preliminary

Sec.

29

They were the most natural witnesses and there was nothing on record to doubt their presence at the place of occurrence. By no stretch could it be stated that the presence of the said witnesses at the scene of crime and at the time of occurrence was improbable. Their version was consistent and nothing was suggested to bring any kind of inherent improbabilities in their testimonies.' In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on objective parameters and not to be thrown overboard on the ground that the witnesses are related to either

spouse.

34. Panch Witness The Supreme Court found no force in the submission that the panch witness to the recovery was the resident of a building which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and had acted earlier as a panch witness in test identification parade. The police when searching for a panch, need not go to far-off place from the police station as the panchnama is required to be recorded in a close proximity of time, to the accused apprehending his disclosure statement. Therefore, the panch witness, being from a nearby place, the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. If the panch witness is picked up from a far-off place, criticism would be why he was not from a nearby place." 35. Stock Witness There is no reason to draw inference that a panch witness was a stock panch witness

only on the ground that he had also been the witness in another case. It cannot be inferred unless it is shown that he had acted in such capacity in a very large number of cases. 36. Police Witness

There is no principle of law that a statement made in court by a police personnel has

to be disbelieved. It may or may not be believed. It is not that all policemen will lies. There are good and bad people in all walks of life. There are good and bad policemen as well. The Court cannot assume that every statement of a policeman is necessarily false. The evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact situation, a duty is cast on the

Court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable, it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined.° The statement of a police officer can be relied upon and it can even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record. A witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity against the accused so as to implicate him falsely. 1.

Thoti Manohar v. State of Andhra Pradesh, AIR 2012 SC (Supp) 380: (2012) 7 SCC 723 (para

37). 2. Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012 AIR SCW 4300: (2012) 7 SCC 288: AIR 2012 SC 2586 (para 32).

4. 5. 6.

7.

Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 (paras 1972 and 1973). Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCCi (para 1974). C. Ronald v. State Union Territory of Andaman & Nicobar Islands, 2012 Cr LJ 672: 2011 AIR SCW 797: (2011) 9 SCALE 59. Kalpnath Rai v. State, (1997) 8 SCC 732: AIR 1998 SC 201: 1997 AIR SCW 4166. See also Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 (para 1737). Govindaraju alias Govinda v. State by Sriramapuram P.S., 2012 AIR SCW 1994: 2012 Cr LJ 1991: AIR 2012 SC 1292 (para 19).

The Indian Evidence Act, 1872

30

Thus, there can be no

prohibition

Sec.3

to the effect that a policeman

cannot be a witness or

that his deposition cannot be relied upon if it inspires confidence. See commentary on section 118.

37. Sterling Witness The 'sterling witness' should be of a very high quality and caliber. His version should, therefore, be unassailable. The Court considering the version of such witness

should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness could be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length, however strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the person involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of the other supporting material such as the recoveries made, the weapon used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version qualifies all other such similar tests to be applied, it can be held that such a witness can be called a 'sterling witness'. His version can be accepted

by the Court without any corroboration and based on which

the guilty can be punished.

To be more precise, the version of the said witness on the

core spectrum of the crime

should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting material for holding the offender guilty of the charge alleged.2

38. Quality of Evidence in Criminal Trials The courts are concerned with quality and not quantity of evidence and in a criminal trial conviction can be based on the sole evidence of a witness if it inspires

confidence. 39. Proof of Unlawful Possession The Supreme Court has held that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985, cannot by itself be used as admissible evidence of proof of unlawful possession of contraband on the accused. An illegal search cannot entitle the prosecution to raise a presumption under section 54

of the Act. 40. Corroborative Evidence Sections 156 and 157 say that when a witness whom it is intended gives evidence of any relevant fact, he may be questioned 1.

Madhu v. State of Karnataka, 2013 AIR SCW 6766: (2013)

to corroborated

as to any other circumstances 14 SCALE 502: AIR 2014 SC 394

para 11). 2. Rai Sandeep v. State of NCT of Delhi, AIR 2012 SC 3157 (para 15). 3. Sheelam Ramesh v. State of Andhra Pradesh, 2000 Cr LJ 51: 1999 AIR SCW 4080: AIR 2000 SC 118.

State of Punjab v. Baldev Singh, AIR 1999 SC 2378: 1999 AIR SCW 2494: 1999 Cr LJ 3672; Virumal Mulchand v. State of Gujarat, 1974 Cr 1J 277: (1974) 3 SCC 565: AIR 1974 SC 334,

Distinguished).

Sec. 3]

Preliminary

31

which he observed at or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. A sees B hit by a car and run over. The car does not stop but notes the number He lodges a complaint to police. Police arrests

driver and put him for trial rash and negligent driving A is the principal witness, when he gives oral evidence but at the end, the complaint given by him to the police, show to him regarding accident and if he says yes, it is marked as exhibit, it is corroborative evidence. 41. Evidence of a Tracker

The services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an

accused. 42. Evidence of Police Officer The evidence of the police officer cannot be discarded when it is found to be reliable. The Supreme Court upheld the conviction by the High Court.2 43. Electoral Roll The electoral roll is not cogent evidence to prove the second marriage of the husband, because it is hearsay evidence and the court cannot accept it as conclusive evidence. 44. Witness to be Reliable The court held that the mere relationship of the witness with the deceased is no ground to discard their testimony if it is otherwise found to be reliable."

45. Appreciation of Evidence In State of Uttar Pradesh v. M.K. Anthony' it has been observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is

undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences turn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court betore whom the witness gives evidence had the opportunity to form the opinion about the general error of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation,

retention and reproduction differ with individuals. 1.

Dinesh Borthakur v. State of Assam, 2008 AIR SCW 3301: (2008) 5 SCC 697: AIR 2008 SC 2205

(para 39). 2. Ram Kumar v. State (N.C.T.) 2299.

of Delhi, AlR 1999 SC 2259: 1999 Cr LJ 3522: 1999 AIR SCW

3. Raj Kumari Jaiswal v. Ramesh Kumar Jaiswal, 2007 AIHC (NOC) 275 (Cal). 4. Rachamreddy Chenna Reddy v. State of Andhra Pradesh, AIR 1999 SC 994: 1999 Cr LJ 1445: 1999 AIR SCW 618. 5. AIR 1985 SC 48: (1985) 1 SCC 505: 1985 Cr LJ 493; see State v. Saravanan, AlR 2009 SC 152: 2008 AIR SCW 7060: (2008) 13 SCALE 253.

32

The Indian Evidence Act, 1872

Sec. 3

In Takdir Samsuddin Sheikh v. State of Gujarat, it was held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/ improvements/embellishments etc., had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its entirety. Every small discrepancy or minor contradiction which may erupt in thestatementsof a witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be treated as fatal to the case of the prosecution. The court must examine the statement in its entirety, correct perspective and in light of the attendant circumstances.2 When a statement is recorded in Court, and the witness speaks under oath, after he understands the sanctity of the oath taken by him either in the name of God or religion, it is then left to the Court to appreciate his evidence under section 3 of the Indian Evidence Act, 1872. The judge must consider whether a prudent man would appreciate such evidence, and not appreciate the same in aceordance with his own perception. The basis for appreciating evidence in a civil or criminal case remains the same. However, is involved, by in view of the fact that in a criminal case, the life and liberty of a person way of judicial interpretation, courts have created the requirement of a high degree of deficient, in case residue is proof. Even if major portion of the evidence is found to be sufficient to prove the guilt of the accused, it is the duty of the Court to separate grain from chaff. Falsity of particular material witness or material particular could not ruin it from the beginning to the end

46. Conviction of an Innocent Person A criminal court cannot af rd to deprive the liberty of appellants without having at least a reasonable level of certainty that the appellants were the real culprits which has not been established in the present case.

47. Promissory Estoppel The Supreme

Court has held that the appellate

authority

(in question) erred in

thinking that because of the approval of the plan by the Panchayat, or conversion of land use by the Collector or grant of a letter of intent by Central Government, the principle of promissory estoppel' applied to the facts of the case. There can be no estoppel against a statute and the industry cannot seek a 'no objection certificate' after violating the policy

decision of the Government. 48. Statement of a Hostile Witness A hostile witness cannot be termed as wholly

wholly reliable cannot lend interested in the case. 1. 2. 3.

corroboration to the statement of the plaintiff who is highly

AIR 2012 SC 37: 2011 AIR SCW 6486: 2012 Cr LJ 621. Prem Prakash v. State of Haryana, AIR 2011 SC 2677: 2011 Cr LJ 4281: 2011 AIR SCW 4203. R. Shaji v. State of Kerala, AIR 2013 SC 651: 2013 AIR SCW 1095: (2013) 14 SCC 266 (para

61). 4. Ramesh Harijan v. State of Utar Pradesh, 2012 AIR 1979 (para 24). 5.

6.

reliable witness. A witness who is not

CW 2990: 2012 Cr LJ 2914: AIR 2012 SC

Rang Bahadur Singh v. State of Uttar Pradesh, (2000) 3 SCC 454: AIR 2000 SC 1209: 2000 Cr LJ 1718: 2000 All LJ 860. A.P. Pollution Control Board II v. M.V. Nayudu, (2001) 2 SCC 62: 2000 AIR SCW 4573: 2001

CLC 102. 7.

Ashok Kumar

Uttamchand Shah

Civ LJ 835: 1999 (2) CCC 712.

v. Patel Mohammad Aswal Chanchad, AIR 1999 Guj 108: 1998 (3)

33

Preliminary

Sec. 31

49. Requirement of Proof of Evidence and Extradition Act, 1962 The definition of "evidence" under section 3 of the Act may not be applicable stricto sensu in an enquiry proceeding under the Extradiction Act, 1962. 50. Document Illegally Procured Even if a document is procured by improper or illegal means, there is no bar to its admissibility, if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the Court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the Court must conclude that it is genuine and free from tampering or mutilation.

"Proved"-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him.3

Evidence which proves or tends to prove the factum probandum indirectly by means of certain inferences or deductions to be drawn from its existence and their connection with facta probantia, is "circumstantial Evidence"

"Disproved"-A

fact is said to be disproved

when, after considering the

matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

"Not proved"-A fact is said not to be proved when it is neither nor disproved.

proved

SYNOPSIS 1.

Proof

2.

What is Proof?

3. 4. 5.

Standard of Proof Not Proved "Evidence

10. 11.

Suspicion is not Legal Evidence Circumstantial Criminal Evidence in Cases 12. Evidentiary Value of Last Seen Together

Evidence

and Proof

6. "Matters before it" 7. Proof in Civil and Criminal Cases 8. Benefit of Doubt 9.

Reasonable

13. Legal Proof and Moral 14.

Prima Facie

Conviction

Evidence

15. Fact 'not Proved - Disapproved'

Doubt

Comments 1. Proof

Proved, disproved and not proved. 2. What is Proof?

The word 'proof seems properly to mean anything which serves, immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition; and the proofs of matters of fact are generally our senses, the testimony of witnesses, documents and the like. (Best, Section 10). Absolute

certainty is seldom to be had in human affairs.

Mathematical Science alone admits of absolute proof. Hence, 1. Sarabjit Rick Singh v. Lnion of ndia, AIR 2008 SC (Supp) 368: SCC 417 (432) (para 37). 2. Umesh Kumar v. State of Andhra Pradesh, 2013 AIR SCW 6062: SCC 591 (para 35). 3. 4.

proof does not mean proof (2007) 14 SCALE 263: (2008) 2 (2013) 11 SCALE 28: (2013) 10

Prem Thakur v. State of Punjab, AIR 1983 SC 61 (63): 1983 Cr LJ 155:

(1983) 1 SCR 822.

Dhira Choudhury v. State of Assam, 1982 Cr LC 373: 1982 Cr LJ 572 (575-576) (Guj).

5. Expression 'disproved' occurs in section 4 only but 'not proved' does not occur elsewhere.

34

The Indian Evidence Act, 1872

Sec. 3

to rigid mathematical demonstration, because that is impossible; it must meanevidence as would

induce a reasonable

man to come to a conclusion.

The proof of fact does not

depend upon the accuracy of statements, but upon the probability of it havingexisted.2 Hence, the definition of proof speaks of probability. Had judicial proof meantabsolute

proof, it would have excluded circumstantial evidence. Except where artificial probative value is assigned to certain facts by presumptions, the Act affords no guidance on the question whether on facts it is or not sufficient to prove another fact. On this point the Judge like a prudent man has to use his own judgment and experience and cannot be bound by any rule except his own judicial discretion. The cumulative effect of all the circumstances established by evidence and the nature of these circumstances have to be taken into consideration, and then it is to be judged whether, having regard to the ordinary course of human conduct, it is sate to presume that the offence was committed by the accused. The definition of 'disproved' is merely a converse proposition of the definition of 'proved'. 3. Standard of Proof The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the defendant relies. 4. Not Proved It indicates a state of mind between two states of minds (proved and disproved), when one is unable to decide how the matter precisely stands. 5. "Evidence and Proof" These two terms are not synonymous. Proof is often confounded with 'evidence' and applied to denote the medium of proof, whereas in strictness it marks the impact or effect of evidence. Thus, evidence differs from proof as cause from effect. Under the Evidence Act, formal proof, of documents can be waived. Therefore, a document cannot cease to be a piece of evidence unless it has been formally proved." 6. "Matters before it" Proof is not the result of evidence alone. Evidence is only one of the media of proof, and so when forming its conclusions court has to consider a number of other matters which are not strictly covered by the definition of evidence as given in the Act, eg. admissions of parties, result of local inspection, presumptions arising in the case and which courts take judicial notice. Court can take into account besides 'evidence' facts other instruments of proof in arriving at its decision; and that is why the legislature has not used the term 'evidence' in the definitions of 'proved' and 'disproved' but has used the wider expression 'matters before it'.

7. Proof in Civil and Criminal Cases The rules of evidence for civil and criminal cases are, in general, the same; that some

provisions

in the

Act are peculiar to criminal cases as the relevant issues arise

only in criminal cases, eg, confessions (Sections 24 to 30); character (Sections 53, 54); incompetency of parties as witnesses (Section 120), character of prosecutrix in rape case 1. Hawkins v. Powells Tillery Steam Coal Co. Ltd., (1911) 1 KB 988 (995);: 104 LT 365: 80 LJKB769; Emp. v. Shafi Ahmad, 31 BLR 515; E. v. Rain Dat, 34 Cr LJ 538. 2. 3.

Anam Swain v. State, AlIR 1954 Ori 33: 19 Cut LT 14: 1954 Cr LJ 132. Bhairon Prasad v. Laxmi Narayan Das, 1924 N 385.

4. State v. Shanker Prasad, AIR 1952 All 776: 1952 Cr LJ 1585. 5. M.S. Narayana Menon v. State of Kerala, AIR 2006 SC 3366: 2006 AIR SCW 4652: (2006) 6 SCC 39 (51) (para 32). 6. 7. 8.

Emp. v. Shafi Ahmad, 31 BLR 515. Anam Swain v. State, AIR 1954 Ori 33: 19 Cut LT 14: 1954 Cr LJ 132. Ramniklal Kothari v. Bhuneshwar Singh, AIR 1971 Pat 115 (121): 1970 BLJR 954: 1971 Cr

623.

35

Preliminary

Sec.

(Section 155), while some provisions hold good for civil cases ornly, e.g., admissions (Sections 18 to 20), character (Sections 52, 55). The doctrine of estoppel applies to civil cases only (Sections 115 to 117). As to the standard of proof in civil and criminal cases, Denning, L.J, observed"It is true that by our law there is a high standard of proof in criminal cases than in civil cases, that this is subject to the qualification that there is no absolute standard in either case. In criminal case the charge must be proved beyond reasonable doubt, but there may be degrees of proof beyond that standard..So also in civil cases.. here may be degrees of probability." There is thus a marked difference as to the effect of evidence in civil and criminal cases. In a civil case a mere preponderance of probability is a sufficient basis of decision. And hence courts can decide on balance of probability. In a criminal case the fundamental principle is Tt is better that ten guilty mern should escape than one innocent man should suffer.2 Acting on this principle courts have insisted on a much higher degree of proof in criminal cases than civil cases. The rule as stated above is nowhere enacted in the Act, but even if it is not a rule of law, it is a rule of prudence founded on public policy, as to the accused and the consequences of wrong conviction are much more serious both the society than those of a wrong acquittal. In Chako v. Joseph,5 the court has held that whether the proceedings be civil or criminal, the definition of the expression 'proved in section 3 must apply with equal force. The earlier decisions only administer a rule of caution that in a criminal case a higher degree of probability must be insisted before disputed questions of facts are held to be proved. Hence in a criminal trial persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable doubt. In Razik Ram v. Jaswant Singh Chouhan, the court held that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of "proved" in section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition is that of a person of prudence and practical good sense. "Proof" means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence

which may be

sufficient to regard a fact as proved

in a civil

suit,

may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be

established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt not being the doubt of a timid, fickle or vacillating mind as to the veracity of the change, it must hold the same as not proved. Burden on Accused.-See sections 105, 106. 8. Benefit of Doubt

This fundamental principle of criminal law is found in the Roman Legal System, It has no application to civil cases, and benefit of doubt cannot be given to the defendant 1.

Bater v. Bater, (1950) 2 All ER 458 (459): (1951) P 35.

2.

Per

Holroyd J. in Sarah Hobson's case, 1 Lewin's

Crown cases, 261.

3. 2003 (3) RCR (Criminal) (Ker) 491. 4.

Parke B. in R. v. Sterne, cited in Best, section 95.

5. 6.

(1975) 4 SCC 769: AIR 1975 SC 667. Edara Venkata Rao v. Edara Venkayya, 1943 M 38 (2).

36

The Indian Evidence Act, 1872

Sec. 3

The prosecution must prove the corpus delicti, i.e., the fact that the offence charged has been committed by someone. Then it must prove that the accused has committed the offence. Sometimes the evidence led leaves the mind in a state of doubt as regards the accused's guilt. In such cases benefit of doubt must go to the accused. If the impact of evidence is to create doubt then it cannot be said that the prosecution has discharged the burden of proving the guilt of the accused.' However, the doubt must be of a reasonable mind, ie., in the words of Cockburn, C.J., "not the doubt of a vacillating mind that has not moral courage to decide upon a difficult or complicated' question, and therefore takes shelter in idle scepticism", (Tichborne case) No man can be convicted where the theory

of his guilt is no more likely than the theory of his innocence. The Supreme Court has observed that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime andescape The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be streched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose

credibility with the community. The evil of acquitting a guilty person light-heartedly, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law and this in turn leads to a public demand for harsher legal presumptions against indicated

persons' and more severe punishment to those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection

of the guiltless. For all these reasons it is true to say that a miscarriage of

justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.4 The Court in Ramesh Harijan v. State of Uttar Pradesh3 held that the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. 9. Reasonable Doubt Doubts would be called reasonable if they are free froma zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case 1.

Emperorv. Panchkari Dutt, AIR 1925 Cal 587: 26 Cr LJ 782.

2.

Kenny 397 (403) (R. v. Castra). See also Sher Mohammed v. E., AIR 1945 Lah 27: 46 Cr LJ 407; Emp. v. Shafi Ahmed, 31 BLR 515. Emp. V. Shivdas Omkar, 15 BLR 515. State of Rajasthan v. Yusuf, 2009 Cr LJ 3470: 2009 AIR SCW 4109: AIR 2009 SC 2674 (2681)

3. 4.

para 27); See also Shivaji Sahabrao Bobade v. State of Maharashthra, (1973) 2 SCC 793 (807) (para 5.

19): AIR 1973 SC 2622: (1973) 2 SCWR 426. 2012 AIR SCW 2990: 2012 Cr LJ 2914: AIR 2012 SC 1979.

6. State of Punjab v. ukhchain Singh, 2009 AIR SCW 1060: (2008) 15 SCALE 342: AIR 2009 SC 1542 (1551-1552) (Para 39); See also State of Goa v. Pandurang Mohite, AIR 2009 SC 1066: 2009 AIR SCW 222: (2008) 16 SCALE 72.

Sec. 3]

37

Preliminary

The concepts of probability, and the degree of it, cannot obviously be expressed in terms of units to be mathemaically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of Criminal Justice." In Gurbachan Singh v. Satpal Singh,2 it was observed that the standard adopted must be the standard adopted by a prudent man which, of course, may vary from case-tocase, circumstances to circumstances. Exaggeration devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicious and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasornable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to the investigated. 10. Suspicion is not Legal Evidence Suspicion however grave cannot take the place of positive proof" It may be good ground for shifting the evidence minutely but no judicial decision can rest on suspicion or conjecture. The sea of suspicion has no shore and the court that embarks upon it is without a rudder and compass. or of highly placed Truth is neither the monopoly nor the preserver of the affluent

persons. 11. Circumstantial Evidence in Criminal Cases It is said circumstantial evidence is merely direct evidence indirectly applied. And direct evidence when closely analysed, is found to possess the interential quality (Burrill Cir. Evidence, p. 213). Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial

evidence; (i) the facts alleged as the basis of any legal inference must

be clearly proved and beyond reasonable doubt connected with the factum probandum; i) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (ii) in all cases, whether of direct or circumstantial evidence the best evidence

must be adduced

which

the nature of the case admits;

(iv) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (v) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

As to the quantum of circumstantial evidence necessary for convicting an accused the rule is that the facts proved must be incompatible with the innocence of the accused 1.

Chhotanney v. State of Uttar Pradesh, 2009 AIR SCW 1680: (2009) 3 SCALE 171: AIR 2009 SC 2013 (2015) (para 10); see also State of Uttar Pradesh v. Krishna Gopal, AIR 1988 SC 2154: JT 1988 (3) SC 544: 1988 (3) Crimes 195. AIR 1990 SC 209: 1990 Cr LJ 562: JT 1989 (4) SC 38: (1990) 1 SCC 445.

3.

Aswini Kumar Roy v. E., 10 CWN 219; Palvindar Kaur v. State of Punjab, AIR 1952 SC 354: 1953 SCR 94: 1952 SCJ 545: 1953 Cr LJ 154; Ata Mohamed v. Crown, 1950 L 199 (FB); Padala Veera Reddy v. State of Andhra Pradesh, 1991 SCC (Cri) 407: AlR 1990 SC 79: 1990 Cr LJ 605; National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600: AIR 2013 SC 1299: 2013 AIR SCW 2016. 4. 17 CWN 49. 5. Kishan Chand Mangal v. State of Rajasthan, 1983 Cr LJ 1: AIR 1982 sC 1511: (1982) 2 SCC 466.

38

The Indian Evidence Act, 1872

Sec.3

and incapable of explanation upon any other reasonable hypothesis than that of his guilt! It is well settled when a prosecution case rests on circumstantial evidence only, those circumstances should, in the first place be firmly established, and further there should be a definite pointer towards the guilt of the accused.2 It is well settled that where the

inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the irst place, be cogently established. And that, while witnesses may lie, circumstances do not." In Ashish Batham v. State of Madhya Pradesh5 it is also well established the Supreme Court once again reiterated the same principles relating to circumstantial evidence which should guide the courts while administrating criminal justice as has been succinctly laid down as early as in 1952 in Hanuman Govind, Madhya Pradesh.° In Hanumant's case it was held that "in dealin Nargundkar v. State with circumstantial evidence the rules specially applicable to such evidence must beborme in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof." In a case of circumstantial evidence where two interpretations are possible, it is obviously not right to adopt the interpretation which is unfavourable to the accused, in preference to the favourable one, unless there is some specific reason to justify the adoption of the unfavourable interpretation." Since the failure of one link breaks the chain, every link in the circumstantial evidence must be proved" and none should be required to answer the charge without a clear proof of Corpus delicti (Best

section 441). The Supreme Court has held that, when the prosecution relies upon circumstantial evidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to

circumstantial evidence. In Padala Veera Reddy v. State of Andhra Pradesh," the Supreme Court laid down that, when a case rests upon circumstantial evidence, such evidence must satisfy the

following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 1.

Ramkala Prasad v. Emperor, AIR 1946 All 191: 47 Cr LJ 611; Nazir v. State, PLD 1960 Lah 189; Mohmad Sabir, 1952 SCJ 343; Kutuhal Yadav v. State of Bihar, 1954 SCJ 715: AlR 1954 SC 720:

1954 Cr LJ 1802; Bhagat Ram v. State of Punjab, AIR 1954 SC 621: 1954 Cr LJ 1645. 2. Shripad Shivram Kulkarni v. State of Maharashtra, AIR 1981 SC 34 (38): 1980 Cr LJ 1292: (1980) 4 SCC 491 3. Rama Nand v. State of Himachal Pradesh, AIR 1981 SC 738 (743): 1981 Cr LJ 298: (1981) 1 SCC

511. 4.

Lakshman Prasad v. State of Bihar, AIR 1981 SC 1388 (1389): 1981 Cr LJ 1010: 1981 SCC (Cri)

642. 5. AIR 2002 SC 3206: 2002 AIR SCW 3710: 2002 Cr LJ 4676. 6.

AIR 1952 SC 343: 1953 Cr LJ 129: 1952 SCJ 509; See also Sudama Pandey v. State of Bihar, (2002)

1 SCC 679: AIR 2002 SC 293: 2001 AIR SCW 5012 and Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702: 2001 AIR SCW 4209. Nazra v. State, PLD 1960 Lah 739. Per Adam J., in Niru Bhagat v. Emperor, 24 Cr LJ 91: AIR 1922 Pat 582. Inspector of Police, Tamil Nadu v. Bala Prasanna, (2008) 11 SCC 645 (656) (para 26); State of Goa v. Pandurang Mohite, AIR 2009 SC 1066: 2009 AIR SCW 222: (2008) 16 SCALE 72. 10. Gejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355: 2007 Cr LJ 1792: (2007) 9 SCC 315 (322) (para 16). 1991 SCC (Cri) 407: AIR 1990 SC 79: 1990 Cr Ly 605; Chattar Singh v. State of Haryana, AIR 11. 2009 SC 378: 1989 Supp (2) SCC 706 (710-11) (para 10). 7. 8. 9.

39

Preliminary

Sec. 3 (3) the circumstances, taken

cumulatively

should form a chain so complete that

there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In Hanumant Govind Nargundkar v. State of Madhya Pradesh, it was observed that it is well to remember that in cases where the evidence is of a čircumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. The Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. The

court further held that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. The Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. The Court also held that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in C. Chenga Reddy v. State of Andhra Pradesh3 wherein it has been observed that in a case based on circumstantial evidence, the settled law is that the

circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 12. Evidentiary Value of Last Seen together Evidence The evidence of being last seen may be relied upon or may form the basis for a conviction which, however would depend upon the facts and circumstances of each case. In some cases the court also looks for corroborative evidence; in some cases the court

may rely thereupon fully4 In State of Rajasthan v. Kanshi Ram,? when accused husband was last seen together

with deceased wife in the house in the evening, but from the next morning the house 1. AIR 1952 SC 343: 1953 Cr LJ 129: 1952 SCJ 509. 2. Ram Singh v. Sonia, AIR 2007 SC 1218: 2007 Cr LJ 1642: 2007 AIR SCW 1278: (2007) 3 SCC 1

(22) (para 39). 3. (1996) 10 SCC 193: AIR 1996 SC 3390: 1996 AIR

SCW 2903; see also Mohd. Azad v. State of West

(2008) 14 SCALE 52; State of Uttar Pradesh v. Bengal, AIR 2009 SC 1307: 2009 AIR SCW 752: Ashok Kumar Srivastava, AlR 1992 SC 840: 1992 Cr LJ 1104: 1992 AIR SCW 640. Amrit Singh v. State of Punjab, AIR 2007 SC 132: 2006 AIR SCW 5712: (2006) 12 SCC 79 (84)

para 5.

15).

(2006) 12 SCC 254.

The Indian Evidence Act, 1872

40

Sec. 3

was found locked for three days and after forced opening of the doors of the house dead bodies of the wife and the children were found lying inside the house butaccused remained untraceable and was arrested about two weeks later, burden lay on accused to satisfactorily explain what happened during the period between he being last seen together with the deceased and his arrest as the same was within his special knowledge but accused failed to explain the same or to give any other explanation to prove his innocence. The Supreme Court held that the inference must be drawn against theaccused which itself is a serious incriminating circumstance against him and this provides an

additional link in thé chain of proved circumstances against him. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In a case of murder the Supreme Court has held that the duration of time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. The Court further held that there can be no fixed or strait-jacket formula for the duration of time gap in this regard and it would dependupon the evidence led by the prosecution to remove the possibility of any other person meeting intervening period, that is to say, if the prosecution is able to lead the deceased in the such an evidence that likelihood of any person other than the accused, being the author of crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider

time gap would not affect the prosecution case. 13. Legal Proof and Moral Conviction However morally convicted a judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as proved." Once the evidencecomes before the court and stands the test of severe legal scrutiny that evidence constitutes legal proof. Then the dividing line between such proof and moral conviction vanishes. The State of Uttar Pradesh v. Satish, (2005) 3 SCC 114 (123) (Para 22): 2005 (2) SCALE 33; see also Chattar Singh v. State of Haryana, 2008 AIR SCW 7426: AIR 2009 SC 378: 1989 Supp (2) SCC 706 (710-11) (para 10). 2. State of Goa v. Sanjay Thakran, AIR 2007 SC (Supp) 61: 2007 AIR SCW 2226: (2007) 3 SCC 755 (776) (para 34); see also State of Goa v. Pandurang Mohite, AlR 2009 SC 1066: 2009 AIR SCW 222: (2008) 16 SCALE 72. 3. Barindra Kumar Ghosh v. Emperor, ILR (1910) 37 Cal 467: 14 Cal WN 1114.

1.

Sec.

41

Preliminary

judge cannot import his the law

which he has to

personal knowledge.

The judge cannot set for himself above

administer or make it or

mould it to suit the exigencies of a

particular occasion2 The circumstantial evidence should not be consistent with the guilt of the accused, but should be inconsistent with his innocence, and suspicion, however, grave, cannot take the place of proof. In the instant case, the learned Trial Judge rightly concluded that the accused persons could neither be convicted of murder nor of culpable homicide not amounting to murder." 14. Prima Facie Evidence

It is evidence of a fact which the court must take as proof of such fact unless it is held disproved by further evidence; when a prosecution case rests on circumstantial

evidence only, those circumstances should, in the first place, be firmly established, and further there should be a definite pointer towards the guilt of the accused. The court has held that it is immaterial that trap witnesses are not independent. Witness credibility-Appellate Court should not discard trial court's opinion about credibility of witness on the sole ground that part of his testimony was not reliable.' 'Disapproved' 15. Fact 'not Proved The Supreme Court has observed that a fact which is not proved does not necessarily mean it is a false one. Section 3 of the Evidence Act gives definitions of various words

definition of "disapproved". nor disapproved. The word

and expressions. The expression proved' is followed by the A fact is said to be "not proved" when it is neither proved false thing. It will proved is not necessarily a fact disproved. A fact which is not be false. A doubt lingers about its truth. Merely because it jump to the conclusion that it is disproved. A fact is disproved who claims that an alleged fact is not true. For disproving on the person who alleges that the fact is not true.3 disapproved'

is

normally

said to be :

thus be seen that a fact not proved may be true or may is not proved, one may not normally by the person a fact the burden is always

*["India"-"India" means the territory of India excluding the State of Jammu and Kashmir.] [the expressions "Certifying Authority", **[electronic signaturel, ***[Electronic "information", Signature Certificatel, "electronic form", "electronic records", "secure electronic record", "secure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information

Technology Act, 2000 (21 of

2000).]

4. "May presume"-Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. 1.

Mithan v. Basir, 7 WR 27 (PC).

2.

Barindra, 25 Cr LJ 815. Gambhir v. State of Maharashtra,

AIR 1982 SC 1157 (1159): 1982 Cr LJ 1243: (1982) 2 SCC 351; G. Gabriel v. State of Kerala, 1982 Ker LJ 510: 1982 Ker LT 772: 1983 Cr LJ 94 (97) (Ker). 4. State of Orissa v. Trinath Dash, 1982 Cr LJ 942 (952) (Ori). 5. Shripad Shioram Kulkarni v. State of Maharashtra, AlR 1981 SC 34: 1980 Cr LJ 1292: (1980) 4 SCC 491 (1296). 6. State of Uttar Pradesh v. G.K. Ghosh, AIR 1984 SC 1453: 1983 (2) Crimes 856: (1984) 1 SCC 254 (FB).

3.

New India Assurance Co. Ltd. v. Shakuntala Bai, AlR 1987 MP 244. 8. Naval Kishore Somani v. Poonam Somani, AlR 1999 AP 1.

*Subs. by Act 3 of 1951, section 3 and Sch, for the definition of "State" and "States", which was inserted by the A.O. 1950. ** Ins. by Act 21 of 2000, Sec. 92 and Sch. II (w.e.f. 17-10-2000).

*** Subs. by Act 10 of 2009, sec. 52(a), for "digital signature" and "Digital Signature Certificate" respectively (w.e.f. 27-10-2009).

42

[Sec.4

The Indian Evidence Act, 1872

"Shall presume"-Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved,

unless and until it is

disproved. "Concusive

proof"-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving

it. SYNOPSIS 1.

Principle

2.

What is a

Presumption?

3. Presumptions of

Fact or

6.

Shall Presume

7.

Distinction

and "shall Presume"

Natural 8.

Presumptions

between the "may Presume"

Conclusive Proof

9. Conclusive Proof - Fraud or Collusion

4. May Presume 5. Presumption under Nature

Comments 1. Principle In other systems of evidence, the subject of presumptions constitutes a very intricate adopted a simpler, and a more logical branch of the law of evidence. The Act has classification of the subject. presumptions: The following is a tabular classification of

PRESUMPTIONS Presumptions of Fact

Presumptions of Law

or

or

Natural Presumptions They are always permissive,

Artificial Presumptions

rebuttable, and do not constitute a branch of Jurisprudence. They are indicated in the Act by the expression 'may presume

They are always obligatory, may be rebuttable or irrebuttable and constitute a branch of Jurisprudence

(Ss. 86 to 88, 90 and 114)

Rebuttable Presumptions of Law They are indicated in the Act by the expression "shall presume" (Ss. 79 to 85, 89 and 105)

Irrebuttable Presumptions of Law They are indicated in the Act by the expression "conclusive proof (Ss. 41, 112 and 113).

2. What is a Presumption? rence of fact drawn from other known or proved facts. In Presumption is an other words presumption is a legal or factual assumption drawn from the existence of certain facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that courts shall draw a particular inference from a particular fact or from a particular evidence, unless and until the truth of such

inference is disproved. Presumptions help in determining the probative force of evidence by bringing the estimation of probative force under some inflexible rules excluding

judicial discretion. A presumption is an inference of fact

drawn from other known or proved facts. It is

of three types, (1) "may presume", (i) "shall presume" and (ii) "conclusive proof". "May presume" leaves it to the discretion of the court to make the presumption according to 1.

M.S. Narayana Menon v. State of Kreala, (2006) 6 SCC 39 (52) (para 39).

Sec. 4

13

Preliminary

the circumstances of the case. "Shall presume" leaves no option with the court not to make the presumption. The court is bound to take the fact as proved until evidence is given to disprove it. In this sense such presumption is also rebuttable. "Conclusive proof" gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combating that effect. In this sense, this is irrebuttable

presumption. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. The term "Presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a Judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal.

Presumption literally means "taking as true without examination or proof. A presumption is not in itself evidence,

but only makes a prima facie case for a party

for whose

benefit

it exists.2 3. Presumptions of Fact or Natural Presumptions These are inferences which the mind naturally and logically draws from given facts without the help of legal directions. Such inferences are drawn not by virtue of any rule of law, but by the spontaneous operation of our reasoning faculty. These presumptions fall more properly within the province of logic and do not constitute a branch of jurisprudence. 4. May Presume Presumptions of fact are permissive in the sense that the court has discretion to draw or not to draw them.3 They are also rebuttable as their evidentiary value may be negatived by contrary proof. Thus, these presumptions afford a provisional proof. That a person found in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen is a presumption of this type. (Section 114(a). For other illustrations of presumptions of fact (see sections 86 to 88, 90 and 114).

5. Presumption under Nature Presumption in regard to due execution and proof of document under section 90 is

discretionary" 6. Shall Presume

There being presumptions of law are always obligatory; and a judge cannot refuse to draw the presumption. Such presumptions are either (1) rebuttable or (2) irrebuttable. Rebuttable presumptions of law are indicated by the expression 'shall presume'. They hold good unless and until there is contrary evidence, e.g., the Court shall presume the genuineness of every Government publication. (Section 84)5 7. Distinction between the "may Presume" and "shall Presume" n the matter of "may presume", the court has an option to raise the presumption or not, but in the "shall presume', the court must necessarily raise the presumption. Where a court has option to raise a presumption and in fact raises such the distinction between "may presume" and "shall presume" comes to an

fact is presumed till it is

1.

P

presumption, end and the

disproved.

Me

i v. Commissioner of Income-tax, Bangalore, (2007) 1 SCC 789 (800) (para 23). 2. Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 (519) (para 15). 3. Bommadevara v. Sana, 1932 M 343. 4. Ali Hasan v. Matiullah, AIR 1988 All 57. 5. See sections 79 to 85, 89 and 105.

44

The Indian Evidence Act, 1872

8. Conclusive

Sec. 4

Proof

Whenever it is mentioned that a fact is a 'conclusive proof of another fact, the court has no discretion at all and cannot call upon a party to prove that fact, eg, section 41 of the Act provides inter alia that a final judgment, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character But Courts are not bound to treat a registration endorsement as conclusive proof.! There is no difference between the phrases 'conclusive evidence' and 'conclusive proof as both are cases of irrebuttable nature. Under section 14(2) of the Foreign Marriage Act, the registration certificate isdeemed to be conclusive evidence of the fact that the marriage is solemnised under the Foreign

Marriage Act, no evidence with regard to the fact that the marriage was solemnised under the Hindu Marriage Act can be allowed under section 4 of the Evidence Act because such fact stands proved by virtue of the deeming provision2

9. Conclusive Proof - Fraud or Collusion However, the court will not allow evidence to be adduced for the purpose of disproving the conclusiveness but it will not prevent a party who alleges fraud or collusion from establishing that the document is vitiated by such factors, and except regarding the said limited sphere the conclusiveness of the document would remain

beyond the reach of controvertibility3

1. 2.

Mallo v. Bukhtawari, AIR 1985 All 160. Minoti Anand v. Subhash Anand, AIR 2011 Bom 61: 2011 (5) Bom CR 624:

812. 3. Cheeranthoodika Ahmmedkutty v. Parambur 1853.

Mariakutty

(2011) 2 Mah

Umma, (2000) 2 SCC 417: AIR 2000 SC

ChapterI OF THE RELEVANCY OF FACTS 5. Evidence may be given of facts in issue and relevant facts-Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are

hereinafter

declared to be

relevant, and of no others. Explanation.-This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Ilustrations (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A's trial the following facts are in issue: A's beating B with the club; A's causing B's death by such beating; A's intention to cause B's death. (b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings,

otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure. SYNOPSIS 6. Relevancy of Evidence under an llegal

1. Facts in Issue and Relevant Facts 2. Logical Relevancy and Legal Relevancy

3. Legal Relevancy and Admissibility 4. Admissibility and Evidentiary Value And of no others 5.

Search or Seizure 7. Objection to Evidence 8. Criminal Cases 9. Swift Progress of Trial Proceedings

Comments 1. Facts in Issue and Relevant Facts The relevant facts are those which are in the eye of the law so connected with the facts in issue that they render the latter probable or improbable (Sections 6 to 55). This is legal relevancy which must be distinguished from logical relevancy. 2. Logical Relevancy and Legal Relevancy The theory of relevancy is essentially based on logic or the casual connection between events. Relevancy according to the Act means the connection of events or their cause and effect. According to Stephen, "The word relevant means that any two facts to which it is applied are so related to each other that, according to the common course of events, one either taken by itself or in connection with other facts, proves -or renders probable the See now the Code of Civil Procedure, 1908 (5 of 1908).

1. Facts in issue: see definition

in section 3.

45

46

The Indian Evidence Act, 1872

Sec. 5

past, present or future existence or non-existence of the other". However, whatever is logically relevant is not necessarily legally means what is legally admissible in evidence

within

the

This is logical relevancy. relevant. Legal relevancy

frame-work of sections 6 to

55. Thus, a fact which is logically relevant may not be legally relevant. Legal relevancy requires a higher standard of evidentiary force. It includes logical relevancy, and demands a close connection between the fact to be proved and the fact offered to prove it. Hence whatever is legally relevant is logically relevant but not vice versa, e.g., the statement of the accused: "I have kept in the field the knife with which I killed B" is logically relevant to prove the guilt of the accused, but section 27 of the Act provides that only so much of the information as relates distinctly to the fact thereby discovered may be proved, ie., is relevant and hence the latter portion of the accused's statement, viz., "with which I killed B" though logically relevant is not legally relevant and hence inadmissible in evidence.

3. Legal Relevancy and Admissibility They do not mean the same thing. They are not synonymous terms. Admissibility means receivability in evidence. All legally relevant facts are not admissible in evidence, e.g, communications during marriage or between a client and his legal adviser may be facts in issue or relevant facts but they are inadmissible on grounds of public policy (Sections 122 and 129). Similarly, all admissible facts are not 'relevant' in the sense of Chapter II of the Act. The tenth Chapter of the Act makes admissible some facts which are not covered by relevancy of facts as set out in the second Chapter, e.g, previous statements which are proved under sections 157 or 155 to corroborate or contradict a witness are admissible but are not declared to be relevant under Chapter

I Public Policy' considerations of fairness, the particular necessity for reachingspeedy decisions-these

and similar reasons cause constantly the necessary rejection of much

evidence entirely relevant. All admissible evidence is relevant, but all relevant evidence is not admissible. 4. Admissibility and Evidentiary Value The value of Admissibility and When a document to be considered by

a piece of evidence cannot affect its admissibility in any way. the probative force of a piece of evidence are quite different things. is to be proved and relied upon in evidence, there are three aspects the Court, viz.:

() the proof of the execution of the document,

i) the proof of the contents of the document, and ii)

the evidentiary value of the document as a whole.

5. And of no others

This section excludes everything which is not covered by the purview of some other section which follows in the statute." These words impose a duty on the Court to exclude irrelevant evidence. Section 298, of the Criminal Procedure Code, expressly casts this duty on Court. See Order XII, Rule 3, of the Civil Procedure Code. The party contending that a fact is admissible must point out the provision in the Act it is admissible.

under which

6. Relevancy of Evidence under an Illegal Search or Seizure In Pooran Mal v. Director ofInspectiom(Investigation)5 it was held that if the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence, no provision of which is challenged as violating the Constitution-permits relevancy as the only test of admissibility of evidence (section 5 of Act) and, secondly, that Act or any 1.

Best Evidence, (252).

2. Zenna Sorabji v. Mirabelle Hotel Co. (Pot.) Ltd., AIR 1981 Bom 446 (457).

3. Collector of Gorakhpur v. Palakdhari Singh, (1889) 12 All 143 (FB). 4. See now Criminal Procedure Code, 1973. 5.

(1974) 93 ITR 505: AIR 1974 SC 348: (1974) 2 SCR 704.

Sec. 5]

47

Of the Relevancy of Facts

other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor it is open before the Court to strain the language of the Constitution, because some American Judges of the American constitutional protections from the provisions of Supreme Court have spelt out certain the American Constitution. The law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In Barindra Kumar Ghose v. Emperor' the learned Chief Justice Sir Lawrence Jenkins said: "Mr. Das has attacked the searches and has urged that, even if there was jurisdiction

to direct the issue of search warrants, as I hold there was, still the

provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As Jimutavahana with his shrewd common sense observes-"a fact cannot be altered by 100 texts," and as his commentator quaintly remarks: "If a Brahmana be slain, the precept 'slay not a Brahmana does not annul the murder". But the absence of the precautions designed by the legislature lends support to the

argument that the alleged discovery should be carefully scrutinized." In Emperor v. Allahdad Khan-, the

Superintendent

of Police and a

Sub-Inspector

searched the house of a person suspected of being in illicit possession of excisable articles and such articles were found in the house searched. It was held that the conviction of the owner of the house under section 63 of the United Provinces Excise Act, 1910, was not rendered invalid by the fact that no warrant had been issued for the search, although it was presumably then intention of the legislature that in a case under section 63, where it was necessary to search a house, search warrant should be obtained beforehand. In Kuruma v. Queens, where the Privy Council had to consider the English law of Evidence

in its application to Eastern Africa, their Lordships propounded the rule that the test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained. 7. Objection

to Evidence

It is not the law that the evidence of an interested witness should be equated that of a tainted

evidence or that of an approved

so as to

require

corroboration

with as a

matter of necessity. 8. Criminal Cases

All criminal cases must strictly conform to the rules of procedure and hence it is said that an acused on his trial can consent to nothing. The ground of waiver of objection is not available in a criminal

trial.

Explanation.-Illustration (b) of section 5 makes its meaning clear. This explanation precludes a party from claiming relief upon facts or documents not referred to in his pleadings. 1. ILR (1910) 37 Cal 467: 14 Cal WN 1114: 11 Cr LJ 453. 2. (1913) ILR 35 All 358. 3. 1955 AC 197 (203): (1955) 2 WLR 223: (1955) 1 Al ERR 236 (PC). AIR 1976 SC 2304 (2310): 1976 Cr LJ 1757: (1976) 4 ScC 4. Sarwan Singh v. State of Punjab, 369.

48

The Indian Evidence Act, 1872

[Sec. 5

9. Swift Progress of Trial Proceedings The practice which can be a better substitute is whenever an objection is raised during evidence taking stage regarding admissibility of any material or item of oral evidence the trial court can make a note of such objections subject to such objections being decided at the last stage in the final judgment. The above procedure if followed will have two advantages. First is that the time of the trial court during evidence taking stage would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or in revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection without bothering to remit the case to the trial court again for fresh disposal.

6. Relevancy of facts forming part of same

transaction.-Facts which,

though not in issue, are so connected with a fact in issue as to torm part of the same transaction, are relevant, whether they occurred at the same time

and place or at different times and places.

Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the *[Government of India] by taking

part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and

forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A.

The goods were delivered to several is a

relevant

intermediate persons successively. Each delivery

fact.

SYNOPSIS 1.

Principle

of Res Gestae

5.

2. Scope and Ambit of Section 6 3. Parts of the same Transaction 4. Statements Admissible as Part

Statements

under Section 6 are Admitted

as Original Evidence of

the

Transaction

6.

Relevancy of Facts

7. 8. 9.

Victim's Identification Admissible Inference of Guilt of Accused PIL-Can be Entertained on the Basis of

Newspaper Information

Comments 1. Principle of Res Gestae Section 6 enacts the rule treated by

English and American

of Res Gestae. In fact the

of sections 6, 7, 8, 9

subject-matter

authors under the head and 14 is treated under

Res Gestae by English law books. It is difficult to define the content of res gestae. In Bhairon Singh v. State of Madhya Pradesh< the Supreme Court has pointed out that the rule embodied in section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form

part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances 1.

Bipin

Shantilal Panchal v. State of Gujarat,

must be simultaneous with the incident or AIR 2001 SC 1158: 2001 AIR SCW 841: (2001) 3

SCC 1.

Subs. by the A.O.1950, for "Queen". 2.

2009 Cr LJ 3738: 2009 AIR SCW 4526: AlR

2009 SC 2603 (2608) (Para 16).

49

Of the Relevancy of Facts

Sec. 6)

substantial contemporaneous that is made either during or immediately before or after its occurrence. Phipson says: Res gestae has given rise to four conflicting conceptions which are: (4) the main fact in relation to its constituent details, (i) only details of such

fact, (iii) surrounding circumstances of the principal fact, and (iv) total whole composed of both the principal fact and surrounding circumstances. Res gestae in short means surrounding or accompanying circumstances which are inseparable from the facts in issue and are necessary to explain the nature of the main act. They include acts or declarations accompanying or explaining the transaction or fact in issue. 2. Scope and Ambit of Section 6 The purpose of incorporating section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness2 It is an exception to the general rule

where under the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of resgestae, must have been made contemporaneously with the acts or immediately thereafter.3 Section 6 of the Evidence Act and some of the succeeding sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to "hearsay" rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. transaction or not is Whether the statement made by a witness was a part of the same to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being

no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking

through a person thus excluding the possibility of any design behind it. Prof. Wigmore says: Under the present exception (to hearsay) an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, ie., as the natural effusion of a state of excitemernt. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurence, provided it is near enough in time to allow the assumption that the exciting influence continued. In Javed Alam v. State of Chhattisgarh5 the Supreme Court has held that the section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of resgestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. 3. Parts of the same Transaction Where the transaction consists of different acts, in order that the chain may constitute the same transaction they must be connected together by 1. 2.

Phipson Evidence, 7th Edn., pp. 54-55. Krishan Kumar Malik v. State of Haryana,

of such acts proximity of

(2011) 7 SCC 130 (138): AIR 2011 SC 2877: 2011 Cr

4274 3.

Bhairon Singh v. State of Madhya Pradesh, 2009 Cr LJ 3738: 2009 AIR SCW 4526: AIR 2009 SC 2603 (2608) (Para 16); See also Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883: (1999) 9 SCC 507: 2000 Cr LJ 29 (SC); See also Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC

130 (138): AIR 2011 SC 2877: 2011 Cr LJ 4274. 4. 5.

Gentela Vijayavardhan Rao v. State of Andhra Pradesh, (1996) 6 SCC 241: 1996 AIR SCW 3555: AIR 1996 SC 2791. (2009) 6 SCC 450.

50

The Indian Evidence Act, 1872

Sec.

6

time, proximity or unity of place, continuity of action and community of purpose or design. Where several offences form one transaction the one is evidence to show the character of other. Thus, when robbery and murder form one transaction, possession

of stolen property which is presumptive evidence of robbery would be presumptive evidence of murder as well. 4. Statements

Admissible as Part of the Transaction

Two requisites are necessary for reception of statements as part of same transaction, viz., (1) statements must be made during the transaction and (2) they must be spontaneous so as to exclude the possibility of being fabricated. First Information Report under section 154, of the 'Cr. P.C. may be admissible as part of resgestae. Acts and declarations accompanying the transaction or the facts in issue are treated as res gestae and admitted in evidence The test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction." It is, therefore, that for describing the concept of "res gestae", one would need to examine

whether the fact is such as can be described by use of

words/phrases such as

"contemporaneously arising out of occurrence", "actions having live ink to the fact", "acts perceived as a part of the occurrence", exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like.6 5. Statements under Section 6 are Admitted as Original Evidence They are not hearsay because "in such cases it is the act which creates the hearsay and not the hearsay the act". It is submitted that these statements are substantive evidence, ie., evidence of the truth of the matter stated. Such statements may be also admissible under sections 157 or 155 to corroborate or contradict the testimony of the matter. 6. Relevancy of Facts Where rape was committed on a married woman and the prosecutor immediately narrated the entire occurrence to the mother-in-law evidence was admissible under section 6 of the Evidence Act. Thus, a statement of a person who had come to the spot of murder after the occurrence to the effect that the persons present there were saying that the accused had killed the deceased without indicating that they had actually witnessed the murder, is only hearsay under section 6. and cannot be admissible

7. Victim's

Identification

Admissible

The Supreme Court has observed that the act of the assailant intruding into the courtyard during dead of the night, victim's identification of the assailant, her the gun at her, are pronouncement that appellant was standing with a gun and his firing all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction and is therefore, admissible under section 6 of the Evidence Act. The Supreme Court came to the conclusion that his statement indicating that the injured told him that his nephew had fired on him would become admissible under section 6 of the Evidence Act.3 1. 2. 3. 4. 5. 6.

Hadu v. State, AIR 1951 Ori 53: 1950 Cut 509. Queen Empress v. Sami, ILR 13 Mad 426: 1 Weir 290. See now Criminal Procedure Code, 1973. Mahla Singh v. E., 1931 L 38: 130 IC 410: 32 Cr LJ 522. Bhaskaran v. State of Kerala, 1985 Cr LJ 1711: I LR (1985) 1 Ker 846: 1985 Mad LJ (Cr) 108. State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari, AIR 2013 SC 1441: 2013 AlR SCW

1652: (2013) 12 SCC 17 (para 41). 7. Gajan Singh v. State of Haryana, 2003 (1) RCR (Criminal) P&H 191. 8. Sukhar v. State of Uttar Pradesh, AlR 1999 SC 3883: (1999) 9 SCC 507: 2000 Cr LJ 29 (SC).

Of the Relevancy of Facts

Sec. 71

51

8. Inference of Guilt of Accused or the explanation offered Where the accused on being asked offers no explanation is found to be false, then that itself forms an additional link in the chain of circumstances to point out his guilt. If all circumstances are taken into consideration which have been proved beyond reasonable doubt, the conclusion is irresistible that all these circumstances point towards the guilt of the accused and inconsistent with his innocence. 9. PIL-Can be Entertained on the Basis of Newspaper Information The Full Bench of the Madhya Pradesh High Court in S.P. Anand v. RegistrarGeneral, Madhya Pradesh High Court, wherein it was held that normally, a PIL cannot be entertained solely on the basis of information published in the newspapers but if the Chief Justice or a Judge

designate finds that a

particular

information

published

in the

newspapers reveals gross violation of a fundamental right guaranteed under Part of the Constitution

II

of a person who does not have ready access to the court for some

incapacity or the other, particularly the right to life and liberty granted under Article 21 of the Constitution, and the Chief Justice or Judge designate has reason to believe the information to be true, a PIL can be entertained only on the basis of such

published in the newspapers. 7. Facts which are the occasion, cause or effect

of facts

in

information

issue.-Facts

which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations (a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair

with money in his possession, and that he showed it, or mentioned the fact that he had it, to third persons, are relevant. (b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. (c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts. SYNOPSIS 1. Principle 2. Opportunity for their Occurrence 3. Foot-prints

4. 5.

Tape Recorded Statement Circumstantial Evidence of Bloodstains

Comments 1. Principle Section 6 dealt with facts which formed part of the same transaction. Section 7 embraces a larger area and provides for the admission of several classes of facts, which

though not possibly forming part of the transaction are yet connected with it in particular modes and are hence relevant, when the transaction modes of connection are:

itself is under

inquiry. These five

i) occasion, (ii) cause,

(ii) effect, 1. Vasa Chandrasekhar Rao v. Ponna Satyanarayana, (2000) LJ 3175. 2. 2008 (3) MPLJ 596: 2008 (4) SCT 352: AIR 2009 MP 1

6 SCC 286: AIR 2000 SC 2138: 2000 Cr (8) (Para 14).

52

The Indian Evidence Act, 1872

Sec.7

(iv) as giving opportunity for its occurrence, (v) or constituting the state of things under which it happened. These modes of connection are really different aspects of causation and therefore valuable means of discovering the truth.

2. Opportunity for their Occurrence No deed can be done without an opportunity. E>xclusive opportunity need not be shown. The proof of opportunity negatives a number of hypothesis and reduces the number of persons who might have possibly committed the crime to a limited number. However, mere opportunity is not enough. There can be no crime without opportunity, but there is a wide gulf to be bridged over by evidence between opportunity and

commission. 3. Foot-prints Evidence of foot-prints is admissible under this section2 (See section 45). 4. Tape Recorded Statement Tape recorded statement being a recorded fact regarding a relevant conversation is admissible under this section.3 5. Circumstantial Evidence of Bloodstains Bloodstain was noted by the Forensic Science Laboratory on the motorcycle seized by the police pursuant to the information received from A-1 (Sharad Dhakar) during group (The blood group his interrogation. The said bloodstain was found to be of "O of the deceased was also '0). This circumstance though established by the prosecution is not decisive enough to point to the involvement of that accused in the murder of

the deceased. If there were other circumstances, apart from recovery of some jewellery belonging to the deceased from the possession of this accused, perhaps the aforesaid circumstance relating to the bloodstain found on the motorcycle would have lent support to an inference against him. The Supreme Court held that it is difficult to reverse the order of acquittal passed in favour of A-1 in respect of major counts of offence and dismissed the appeal filed by the State

8. Motive, preparation and previous or subsequent conduct.-Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence

against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.-The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. 1. This is 2. Sadik v. 3. Nirmala 4. Manish

illustrated by a famous case found in Best's Evidence (11th Edn. p. 428.) E., 43 Cr LJ 308. v. Ashu Ram, 2000 Cr LJ 2001: 2000 (2) Raj LR 83: 2000 (2) Raj LW 720 (Raj). Dixit v. State of Rajasthan, (2001) 1 SCC 596: AIR 2001 SC 93: 2000 AIR SCW 3914.

53

of the Relevancy of Facts

Sec. 8)

Illustrations (a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are

relevant. (b) A sues B upon a bond for the payment of money. B denies

the making of the

bond. The fact that, at the time when the bond was alleged to be made, B

required

money for a particular purpose is relevant.

A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. (d) The question is, whether a certain document is the Will of A.

The facts that, not long before the date of the alleged Will, A made inquiry into matters to which the provisions of the alleged Will relate, that he consulted vakils in reference to making the Will, and that he caused drafts or other Wills to be prepared of which he did not approve, are relevant.

(e)A isaccused of a crime. The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(

Thequestion is,whetherA robbedB.

The facts that, after B was robbed, C said in A's

presence-"the

police are coming

to look for the man who robbed B", and that immediately afterwards A ran away, are relevant. (g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend him money, and that D said to C in A's presence and hearing"I advise you not to trust A, for he owes B 10,000 Rupees", and that A

went away without making any answer, are relevant facts. (h) The question is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter, are relevant.

) A isaccusedof a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint offence, the circumstances under which, and the terms in which, the

relating to the complaint was

made, are relevant.

The fact that he said he had been robbed, relevant, as conduct under this section, though it

without making any complaint, is not may be relevant as a dying declaration

under section 32, clause (1), or as

evidence under section 157.

corroborative

54

The Indian Evidence Act, 1872

Sec.8

SYNOPSIS 1. 2. 3. 4. 5. 6. 7. 8. 9.

Principle Motive Circumstantial Evidence and Motive Motive in Criminal Trials Motive based on Direct Evidence Preparation Conduct Conduct of any Party Murder Case Appreciation of Evidence

10. 11.

12.

Tape-recording Relevancy of Complaint: Distinction between a Complaint and a Statement English Law

13.

Relevancy

of

Statements

under

any

Section of the Act 14. Silence Amounting to Conduct 15. Concatenation of Full Chain

Comments 1. Principle Section 7 lays down that facts which are the occasion, cause or effect or which constitute the state of things under which they happened, or opportunity for their occurrence are relevant.

of relevant facts, which afford an

Section 8 is wider than section 7 in its application. Under this section motive, preparation and conduct are declared to be relevant facts. There is hardly any action without a motive and it is said that an action without a motive would be an effect without a cause. Often it is important to find out whether the accused had any interest or motive in committing the offence. Hence, motive is relevant. So preparation is also relevant.

Premeditated action must necessarily be preceded not only by impelling motives but also by appropriate preparation. Preparation is an instance of previous conduct of the party which influences the facts in issue or relevant facts. Evidence of motive or preparation assumes significance when a case depends upon circumstantial evidence only. Conduct previous or subsequent of either of the party or his agent is also relevant,

under this section. 2. Motive A fact showing or constituting motive is relevant. Motive is that which moves or induces a person to act in a certain way. According to Woodroffe it is the emotion supposed to have led to the act. There can be no action without a motive, which must exist for every voluntary act. Generally speaking the voluntary acts of the same persons have an impelling emotion or inducing cause, i.e., motives. It is difficult to prove motive by direct evidence and hence it is sought to be established by circumstantial evidence, viz., conduct of person. Motive is a fact which is only within the knowledge of a person doing the act, and which no human being but the party himself can divine. It is the emotion which implies man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. In Ranganayaki v. State by Inspector of Police,° the court has held that the

mere fact that prosecution failed to translate mental disposition of accused into evidence does not mean that no such mental condition existed in the mind of the assailants. Motive is relevant because the ordinary feelings, passions and propensities under which parties act, are facts known by observation and experience; and they are so uniform in their operation that a conclusion may be safely drawn that, if a party acts in a particular manner, he does so under the influence of a particular motive. The presence of motive is relevant under section 8 of the Evidence Act as it goes to show the mens rea of crime. Motive, preparation and opportunity, are mental acts

covered by this section. 1. Gangaram v. Emp., 22 Cr LJ 529. 2.

Hazrat Gul Khan v. E., 29 Cr LJ 546.

3. 4.

2004 AIR SCW 6613: AIR 2005 SC 418: Com. v. Webster, 5 Cuch 295 (316).

5.

Vinayak Datta Durbhatkar v. State, AIR 1970 Goa 96 (101): 1970 Cr LJ 1081

(2004) 8 SCALE 734.

55

Of the Relevancy of Facts

Sec. 81

Existence of a motive for

committing a crime is not an absolute requirement

of law

but it is always a relevant factor, which will be taken into consideration by the courts as it will render assistance to the Courts while analysing the prosecution evidence and determining the guilt of the accused. There is no relevance of motive when the prosecution case is fully established by

reliable ocular evidence coupled with medical evidence. 3. Circumstantial Evidence and Motive In Sheo Shankar Singh v. State of Jharkhand,s the Court held that where prosecution relies circumstantial evidence on the one hand and those where it relies upon the

testimony of eye-witnesses on the other in the former category of cases proof of motive is given the importance it deserves, for, proof of a motive itself constitutes a link in the

chain of circumstances upon which the prosecution may rely. Proof of motive recedes into the background in cases where the prosecution relies upon an eye-witnesses account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not mean that proof of motive even in a case which rests on an eye-witnesses account does

not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses.

Where the case based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the court on its guard to scrutinize the evidernce very closely to ensure that suspicion, emotion or conjecture do not take the place of proof. The absence of motive in a case depending entirely on circumstantial evidence, is a factor that weighs in favour of the accused as

it "often forms the fulcrum of the prosecution story."" In Subedar Tewari v. State of Uttar

Pradeshs,it was held that the evidence regarding existence of motive which operates in the mind of assassin is very oftern than not within the reach of others. The motive may not even be known to the

victim

of the crime. The motive

may be known

to the assassin and

no one else may know what gave birth to the evil thought in the mind of the assassin. 4. Motive in Criminal Trials It has to be kept in mind that a person does not commit a grave illegal act which

might expose him to prosecution and possible disgrace unless he is prompted by some strong motive. But it is not possible to prove motive in every case. Prof. Wigmore has observed, that, 'it is always possible that this necessary emotion (i.e., motive) may be undiscoverable and thus the failure to discover it, does not signify its non-existence'. The prosecution can only suggest motive in case it is unable to establish it. Where the

positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. Evidence as to motive is relevant merely for the purpose of lending assurance to the evidence as to the commission of the crime and fortifying it. 1. Alagupandi v. State of Tamil Nadu, AIR 2012 SC 2405: 2012 AlR SCW 3479 (para 19). 2. Lokesh Shivakumar v. State of Karnataka, AIR 2012 SC 956 (para 8). 3.

AIR 2011 SC 1403: 2011 Cr L 2139: (2011) 3 SCC 654.

4.

Munish Mubar v. State of Haryana, 2013 Cr LJ 56: 2012 AlR SCW 5454: AIR 2013 SC 912.

5. R. Shaji v. State of Kerala, AlIR 2013 SC 651 (para 19). 6. AIR 1989 SC 733: 1989 Cr LJ 923: JT 1988 (4) SC 387. 7. Shreekantiah Ramayya Munipalli v. State of Bombay, 1955 SCJ 233: AIR 1955 SC 287: 1955 SCR

1177. 8.

Gurucharan Singh v. State of Punjab, AlR 1956 SC 460: 1956 Cr LJ 827.

6

The Indian Evidence Act, 1872

Sec.8

The failure of the prosecution to prove motive need not necessarily result inacquittal when ocular evidernce is reliable.' Thus, where two persons were seriously injured and one lost his life and if evidence of injured witness is accepted, the presence of motive is hardly relevant.2 It has beern held by the Supreme Court that failure of the prosecution to prove motive need not necessarily result in acquittal when ocular evidence is reliable and corroborated by medical evidence.3 It must be borne in mind that in the absence of clear and cogent evidence pointing to the guilt of an accused person, the proof of motive, however, adequate, cannot by itself,

sustain a criminal

charge." Existence of a motive for

committing

a crime is not an

absolute requirement of law but it is always a relevant factor, which will be taken into consideration by the courts as it will render assistance to the courts while analysing the prosecution evidence and determining the guilt of the accused. Motive assumes importance when the case rests solely on circumstantial evidence.On the other hand, mere evidence of motive can never supply the want of reliableevidence, direct or circumstantial of the commission of the crime. Motive cannot thus supply the gaps in the prosecution evidence.° Mere absconding by itself does not necessarily lead to a firm conclusion of a guilty mind.' Motive may be immaterial and intention is by and large material to prove mens rea. Motive is the reason which induces the man to do an act, while intention shows the nature of the said act. Motive is a factor to be considered

in awarding punishment. It has been held by the Rajasthan High Court that motive plays an important role in criminal cases but if other incriminating circumstances are absent in the case, motive by itself cannot be made the basis of conviction It is not conclusive to hold a person having a strong motive to be criminal. In cases where the prosecution has direct evidence of the ocurrence motive recedes to the depends upon the assessment of background. In that event the fate of the case largely

the evidence of the eye witness. The adequacy of motive is of little importance. VWe know from the experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time pressing difficulties (Campbell LJ).0 Illustration (a) refers to motive in a crime. Illustration (b) refers to motive in a civil proceeding

5. Motive based on Direct Evidence The Supreme Court has held that in view of section 27

of the Evidence Act the accused cannot be disbelieved merely because he was not interrogated on the spot where he was present and was interrogated later on when the crime articles were

recovered. 1. Joseph alias jose v. State of Kerala, 2003 AIR SCW 2507. Balram Singh v. State of Punjab, 2003 AIR SCW 2656: AIR 2003 SC 2213: 2003 (3) Crimes 43. 3. Padan Pradhan v. State, 1982 (53) Cut LT 305: 1982 Cr LJ 534 (536) (Ori). 4. Gurucharan Singh v. State of Punjab, AIR 1956 SC 460: 1956 Cr LJ 827. 5. Alagupandi v. State of Tamil Nadu, 2012 Cr LJ 3363: AIR 2012 SC 2405: 2012 AIR SCW3479 6. Rammun v. E., 27 Cr LJ 709. 7. Martu v. State of Uttar Pradesh, AIR 1979 SC 1050 (1058). Imji alias Imia v. State of Rajasthan, Raj Cr Cases 1980 V 231 (240). 9. Ram Jiyawan v. State, 1985 ALJ 857 (DB); See also Subal Ghorai v. State of West Bengal, 2013

AIR SCW 3627: (2013) 4 SCC 607 (para 40). 10. Reg. v. Palmer, quoted in VWills, 'Circumstantial evidence', 6th Edn., 63. 11.

State of Uttar Pradesh v. Babu Ram, (2000) 4 SCC 515: AIR 2000 SC 1735: 2000 Cr LJ 2457 2000 All LJ 1439 [Cri. A. Nos. 498 (506) of 1993 and Ref. No. 3 of 1993, 23-4-1994 (Al),

Reversed).

57

Of the Relevancy of Facts

Sec. 8 6. Preparation

Preparation means the means and measures necessary for commission of any offence (Mayne's Criminal Law). Premeditated crime must necessarily be preceded by appropriate preparation. The common instances are of possession of poison or lethal weapons, etc., without reasonable excuse. Preparation on the part of the accused to accomplish the crime, or to prevent its discovery or to aid his escape or to avert suspicion are relevant on the question of his guilt. Intention, preparation and attempt to. do an offence are the three stages preceding the commission of a crime. Mere preparation is not punishable under the Penal Code except under certain special circumstances as for example the preparation to commit dacoity (Section 399, IP.C.) llustration

(e) refers to a preparation

Tllustration (d) refers to

of a crime.

preparation in a civil

matter.

7. Conduct

Conduct, whether previous or subsequent must have reference to the suit or proceeding or to facts in issue or facts relevant to the suit or proceeding and must influence or be influenced by facts in issue or relevant facts. Conduct made relevant by section 8 is conduct which is directly and immediately

influenced by a fact

in issue or

relevant fact and it does not include action resulting from some intermediate cause such as question or suggestion by other persons. Preparation and previous attempts to commit the offence are instances of previous conduct of the party influencing the facts in issue or relevant facts. Evidence of a previous attempt by accused to import goods by deceiving the Customs Officer in another port was held admissible in proving his guilt on a charge for similarly importing goods in the Port of Karachi.2 Under section 8(2) the following facts are relevant in a criminal inquiry: (a) Accused's conduct shortly before or after the commission of offence which

influenced or was influenced by his commission; (b) Statements made by him which accompany and explain such conduct; and (c) Statement

made to him or in his presence and

hearing

which

affects his

conduct. Witnesses to certain crimes run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a Court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individual to individual. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that, if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, (as is in the instant case), then his testimony becomes questionable and is likely to be discarded3

In A.N. Venkatesh v. State of Karnataka, the dead body of the kidnapped boy was alleged to have been recovered on pointing out of the particular spot by the accused persons. The presence of accused persons at 1. Queen Empress v. Abdullah, ILR (1885) 7 All

a place where the ransom 385: 1885 All

WN 78 (FB); see

demand was to Explanation

2 to

2.

section 8. Mohan Lal v. E., 39 Cr LJ 123.

3.

Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 (paras 21 and 26).

4.

2005 AlIR SCW 3914: See also Dharam Deo Yadav v. State of Littar Pradesh, (2014) 5 SCC 509

(para 22).

8

The Indian Evidence Act, 1872

be fulfilled and their action of fleeing on spottingg police party statement was held to be admissible

under section 8 but not

Sec.8 and also their disclosure under section 27, of the

Evidence Act. Section 25 of the Evidence Act can be pressed into service only insofar as it relates to such of statements that would implicate the accused himself while the other part of the statement not relating to the crime would be covered by section 8 of

the Evidence Act. v. Public Prosecutor, High Court ofAndhra The court in Animireddy Venkata Rammana Pradesh held that the absence of the accused and that they were absconding for a long time to show the conduct on their part and that had they been really innocent andfalsely implicated, their presence would have been noticed in the village on the same night and infact they could have been witnesses to inquest etc.

Mere presence in an unlawful assembly may attract vicarious/constructive liability without any overt act having been proved against such person if such person can be proved to have been a member of an unlawful object, at the crucial stage of the incident.5

assembly and to have shared common

8. Conduct of any Party The word party includes the plaintiff, the defendant, and their agents in a civil suit, and in a criminal case the accused, committed the private complainant or the person against whom the offence is. The section does not apply to the conduct of a witness. The conduct of an accused is relevant against him but not against a co-accused Conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after commission

of the offence. Instances of relevant conduct under section 8 are: Preparation and previous attempts to commit the offence; fabricating false evidence; absconding by the acused immediately after the commission of an alleged offence is a relevant fact pointing to his culpability unless he can explain such conduct. [See Illustration (c) to section 91. In Dr. Lagu's case where the proof of the charge of murder by poisoning rested principally on circumstantial evidence, the majority of the Supreme Court Judges held that the evidence as to the conduct of the accused in respect of the property of the deceased before and after death was material link in the chain of evidence which the Court could consider, along with the other evidence in determining whether murder had in fact been committed and

committed by the accused 9. Murder Case Appreciation

of Evidence

guilt at a public place Statement of a witness that the accused had confessed his where other persons were also standing is not reliable and not admissible wnder

section 8 of the Act. 10. Tape-recording Tape-recorded conversation is admissible, provided, first the conversation is relevant to the matters

in issue, secondly, there is

1. Sandeep v. State of Uttar Pradesh, 2. 3.

identification

(2012) 6 SCC 107 (para

of the voice, and, thirdly, the 49).

AlR 2008 SC 1603: 2008 AIR SCW 1777: (2008) 5 SCC 368 (376) (para 16). Subal Ghorai v. State of West Bengal, 2013 AIR SCW 3627: (2013) 4 SCC 607.

4. Khijiruddin v. Emperor, (1926) 27 Cr LJ 266: AIR 1926 Cal 139. 5. Des Raj Sharma v. State, AlR 1951 Simla 14: 1951 All WR 33. 6. Vikranjit Singh v. State of Punjab, 2006 AIR SCW 6197: 2007 Cr LJ 2000: (2006) 12 SCC 306 (Para 17). 7.

Pritamsingh v. State of Punjab, 1956 Cr LJ 805 (SC): AIR 1956 SC 415.

8.

Anant

Chintaman Lagu v. State of Bombay, AIR 1960 SC 500: 1960 SCJ 779: (1960) 2 SCR 460.

9. Deshraj v. State of Utar Pradesh, 1985 ALJ 1391.

59

Of the Relevancy of Facts

Sec. 81

accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-record. Illustration (d) shows previous conduct; Illustration (e) is an example of previous and subsequent conduct of accused. These illustrations are instances of natural presumptions which the Court may draw. Explanation 1-Under section 8 conduct of a party is relevant. According to the first explanation the word conduct does not include statements unless those statements accompany and explain acts other than statements. Mere statements as distinguished from acts do not constitute conduct. Conduct may include statements as well as acts. But there is a clear

difference

between a statement and an act. A

statement

consists

of

words, whether spoken or written or spelled out as would be done by a mute person on his fingers or otherwise. Acts, however, exclude words and cannot be translated into words. The evidence of false explanation is not only relevant under section 8 of the Indian Evidence Act but it is of considerable importance on the peculiar facts and circumstances of this case where it was given soon after alleged occurrence and it was apparently designed to give to the facts an appearance favourable to the

accused. Statements accompanying facts are part of the resgestae just as are the acts themselves. They are known as verbal acts. There may be a case in which a person whose

conduct is

in dispute mixes up together action and statement. For instance a person is seen running down a street in a wounded condition calling out the name of the assailant and the circumstances under which injuries were inflicted. Here what the person says and what he does may be proved as a whole.

11. Relevancy of Complaint-Distinction The distinction between a complaint

between a Complaint and a Statement and a mere statement is that the former

is

expressive of feeling, the latter of knowledge. The former evidences conduct, but the latter has no such tendency. A complaint is made with a view to redress or punish and is made to some one in authority, the police for instance, or a parent or some other person whom the complainant is justly entitled to look for assistance and protection. 12. English Law In English law when a complaint and its terms are admitted as relevant under this evidence provision they cannot be stated as evidence of the facts stated, and are merely with the story of non-consent and of the consistency of the conduct of the complainant told in the witness box. 13. Relevancy of Statements under any Section of the Act The explanation does not affect relevancy of statements if they are otherwise admissible under other provisions of the Act, as under section 157 for the purpose of corroborating the conmplainant's testimony or under sections 155 for contradicting it. In a rape case as a combined

effect of sections 8 and 157 it was held that the

evidence of

the mother of the ravished girl of eight, to whom the victim had complained shortly after the outrage was relevant and was sufficient for the purpose of corroborating her evidence5

1. R.M. Malkani v. State of Maharashtra,

AlR 1973 SC 157 (162): 1973 Cr LJ 228: (1973) 1

471; Ziyauddin Burhanuddin Bukhari v. Brijmohon Ramdass Mehra, (1976) 2 SCC 17: AIR SC 1788: 1975 Supp SCR 281; Lachhamandas v. Deep Chand, AIR 1974 Raj 79: 1973 Raj LW ILR (1973) 23 Raj 894. 2. Emperor v. Nanua, AIR 1941 All 145: ILR 1941 All 280: 42 Cr LJ 485. 3. Golam Majibuddin v. State of West Bengal, 1972 Cr LJ 1342 (1345) (SC).

4. QueenEmpress v. Abdullah, ILR (1885) 7 All 385: 1885 All WN 78 (FB). 5. Rameshuwar v. State of Rajasthan, AIR 1952 SC 54: 1952 SCJ 46: 1952 SCR 377.

SCC

1975 409:

60

The Indian Evidence Act, 1872

Sec.8

14. Silence Amounting to Conduct In some cases silence or keeping quiet may amount to conduct. An accused has a right to remain silent if he wishes. Hence no presumption of guilt arises by reason of the silence of the accused. Thus, the maxim qui faci consentire (silence gives consent) must be applied very cautiously. For silence to carry incriminating force, there must be circumstances which give opportunity to speak. 15. Concatenation of Full Chain The Supreme Court has observed that absconding by itself need not necessarily lead to an inference of culpable mind against the absconder. The disappearance of A-2 from the locality was contemporaneous with the apprehension of A-1. Even after resorting to legal measures to trace out A-2 he remained underground until he was caught unawares. The Supreme Court added that the broad features of absconding of A-2 cannot be sidestepped as an innocuous circumstance. Of course absconding by itself has no decisive implication, nevertheless it has utility to form link to concatenate the full chain.

9. Facts necessary to explain or introduce relevant facts.-Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish

the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for

that purpose.

Illustrations (a) The question is, whether a given document is the Will of A. The state of A's property and of his family at the date of the alleged Will may be relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant,

though the fact that there was

a dispute may be relevant

if it affected the relations between A and B. (c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant, under section 8, as conduct subsequent to and affected by facts in issue. The fact that, at the time when he left home, he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. (d) A sues B for

inducing

C to break a contract of service made by him with

A.C., on leaving A's service, says to A-"I am leaving you because B has made me a better offer". This statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says, as he delivers it-"A says you are to hide this". B's statement is relevant as explanatory of a fact which is part of the transaction. () A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction. 1. 2.

Hadu v. State, AIR 1951 Ori 53: 1950 Cut 509. Manish Dixit v. State of Rajasthan, (2001) 1 SCC 596: AIR 2001 SC 93:

2000 AIR SCW 3914.

61

Of the Relevancy of Facts

Sec.9]

SYNOPSIS 10. Test ldentification Parades of Suspects Principle Holding the ldentification 11. Delay in Introductory or Explanatory Facts Parades English Law 12. Failure to hold Test Identification Parade Facts which Support or Rebut an Inference 13. Identification only in the Court Suggested by a Fact in Issue or Relevant 14. Identification of Idol Fact

1.

2. 3. 4.

5. Facts in Criminal Trial 6. Facts Establishing ldentity Person 7.

Identity

of a

Person

as

the

15. of

thing Doer

of

or a

Particular Act 8.

Identity of Person to

Establish Parentage

16. 17. 18. 19.

Evidence of Identification Parade and Section 162, Cr. P.C. Facts Fixing Time and Place Facts Showing Relation Modes of Identification Purpose of Test Identification Parade

9. Identification by Photograph

Comments 1. Principle

Section 7 deals with the admissibility of facts which are the occasion, cause or effect of facts in issue. Section 9, on the other hand, is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that

kind of evidence which if considered separately and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them. The section makes relevant facts: (a) which support or rebut an inference suggested by a fact in issue or relevant tact; or (b) which are necessary to explain or introduce a fact in issue or relevant fact; (c)

rwhich

establish

the

identity

of a

person

or a

thing

whose

identity

is

relevant; (d)

which fix the time or place at which any fact in issue or relevant fact has occurred; or (e) which show the relations of the parties by whom any fact in issue or relevant purpose. fact was transacted, in 'so far as they are necessary tor that

These last words indicate the limit within which such explanatory facts may be used.

As per section 9 of the Evidence Act, facts which

establish the

identity

of an

accused are relevant. Identification parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to the test identification parade may be used by the court for the purpose of corroboration. The purpose of test identification is to test and strengthen trustworthiness of the substantive evidence of a witness in court. It is for this reason that test identification parade is held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as the Magistrate is expected to take all possible

precautions.

2. Introductory or Explanatory Facts These facts are explained by illustrations (a), (b), (d), (e) and () to section 9, and also by Illustration (c) to section 6, and illustration (d) to section 8. Iustrations (d), (e) and () to section 9 are important as they show that the statements made by a person who is not the agent of a person against whom they are to be used

behind his back, may be used against him. Illustration () is founded on the famous Lord Garden's case and it illustrates the principle that in cases of riot, conspiracy etc. the declarations of all concerned in the 1. Ram Babu v. State of Uttar Pradesh, (2010) 5 SCC 63: AIR 2010 SC 2143: 2010 Cr LJ 2856.

62

The Indian Evidence Act, 1872

Sec.

9

common object although not defendants are admissible as explanatory of the common object. Before questioning a witness, as to the main fact, it is generally desirable and some time necessary to question him about some preliminary facts. Such preliminary facts may have no bearing on the facts in issue; but since they lead to the main fact they are made admissible under this section so as to make the main fact more easily comprehensible. Under section 142 the court may permit even leading questions on

introductory matters. The subject of explanatory evidence concerns more the accused or the defendant. Defence of alibi is also explanatory evidence, as its relevancy lies in its entireinconsistency

with the hypothesis 3. English

that the accused committed the crime.

Law

lustrations (d) and (e) show that the explanatory statements are admissible no matter whether the person against whom they are made heard them or was present when they were made. Thus, under the Indian Law it is not necessary that the person against whom the statement is made should be present when it is made. The English Law requires the presence of the person against whom it is made. Such statement is excluded from the evidence as hearsay unless it is made in the presence of the person

whose conduct it affects. Hence, Norton has commented that a very dangerous innovation is introduced by section 9, whereby a person may suffer by statements put in their mouths from behind their backs. (Norton Evidence, pages 118, 119). It is argued that illustrations (c) and (e) admit hearsay evidence. It is, however, submitted that statements in these illustrations are not intended to be used as truth of the matter mentioned therein but merely as explanatory of some other facts. Thus, in llustration (e) B's statement to A's wife that A had given the stolen property to him etc., is no evidence of the fact that the property was given by A to B and that A had requested B to ask A's wife to hide it. Facts which Support or Rebut an Inference Suggested by a Fact in Issue or Relevant Fact This part of the section is merely a paraphrase of section 11. Sections 9 and 11 read with section 21 amply justify the Court in admitting all previous statements made by the accused which had bearing upon his guilt, subject to sections 25 and 26 and provided they are not self-serving. These sections are not controlled by the "Criminal Procedure Code. They are corroborative evidence under section 157.-

4.

5. Facts in Criminal Trial If a witness is found

unreliable in respect of

one part of the case, he can be relied

upon in respect of the other part of case.3 Market rate and rental value of neighbouring lands are admissible to determine the value of the land that is being acquired.4 6. Facts Establishing

ldentity of thing or Person

Identity may be thought of as a quality of a thing or person. Questions as to the identity may arise in two ways: (1) a person's identity with an ascertained person as in the well-known Bhowal Sanyasi case, or (2) his identity as the doer of a particular act, eg, murder in a criminal trial or executing a will in a civil proceeding. "Where a party's identity with an ascertained person is in issue, it may be

proved or disproved not by direct testimony or opinion evidence but presumptively by 1. See now Criminal Procedure Code, 1973. 2. Madan Garu v. R., 73 IC 963. 3. Swami Dayal v. State of Uttar Pradesh, 1985 ALJ 1220. 4. Lalchand v. Corporation of Calcutta, AlR 1953 Cal 428. 5. AIR 1942 Cal 478.

63

Of the Relevancy of Facts

Sec.

similarity or dissimilarity of characteristics, eg, age, height, size, hair, complexion, voice, handwriting, manner or dress, distinctive marks, faculties or peculiarities including blood group as well of residence, occupation, family relationship, education, trance, religion, knowledge of particular people, places or facts and other details of personal history" (Phipson 9th Edition 137). 7. Identity

of a Person as the

Doer of a Particular

Act

The identity of a person as a doer of a particular act comes in question in both civil and criminal cases. In such cases the range of the relevant facts is much wider and is

perhaps coextensive with the whole field of relevancy inasmuch as every fact showing that the person in question is the author of a particular act is admissible

under one section

or another of the Act unless barred by some provisions of Part I. 8. Identity of Person to Establish Parentage In the case of Nirmaljit Kaur v. State of Punjab,' the dispute between the parties related to the identity of the child. According to the petitioner the child was not his, whereas the respondent contended that the child was his daughter. After hearing both the parties court directed that the issue should be resolved scientifically, and DNA test will be better for the same.

9. Identification by Photograph The Supreme Court has held that identification by photo is admissible in for framing charges. However, the evidence would become substantive

evidence evidence on identification by the witness of the accused in the Court.2 During the course of investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigation officer by showing the photographs of the suspect and he shall not first show a single photograph but should show more than one photograph of the same person if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in

advance. It has been held by the Supreme Court of the accused

through

photograph

that in certain circumstances

can serve the same

purpose as a test

identification identification

parade. The Apex Court recognised this possibility by looking at the practices of detecting agencies for identification of criminals engaged in Interpol and other crime drug

trafficking,

narcotics and other

international

crimes. In such cases it is a common

practice to resort to identification through photographs." 10. Test Identification Parades of Suspects The identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. It is desirable that a test identification parade should 1.

AIR 2006 SC 607: 2005 AIR SCW 6253: (2006) 9 SCC 363 (Para 1).

2.

Umar Abdul Sakoor Sarathia v. Intelligence Officer, Narcotic Control Bureau, (2000) 1 SCC 138: AIR 1999 SC 2562: 1999 Cr LJ 3972. 3. D. Gopalakrishran v. Sadanand Naik, (2005) 1 SCC 85: AIR 2004 SC 4965: 2004 Cr LJ 4664. 4. Laxmi Raj Shetty v. State of Tamil Nadu, AIR 1988 SC 1274: JT 1988 (2) SC 180: 1988 (2) Crimes 107.

The Indian Evidence Act, 1872

64

[Sec. 9

be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the

prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. Whether test identification parade is necessary or not would depend on the facts and circumstances of each case. The

purpose of test

identification

parade is to test the

veracity of the witness and his capacity to identify the unknown persons whom the witness must have seen only once. The apex court in Vijay v. State of Madhya Pradesh? has observed that the test identification parade is not a substantive piece of evidernce, yet it may be used for the purpose of corroboration, for believing that a person bought before the court is the real person involved in the commission of the crime. However, the test identification parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. Where an accused is not previously known to the identifying witnesses as in case of dacoity, identification parades are generally held. If the accused is already known to the witness the identification by the witness is a farce. Failure to hold identification parade

does not make the identification in court inadmissible, yet the omission considerably affects the weight to be attached to such identification. TI parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting TI parade is two-fold. First is to enable the witnesses to satisty themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom witnesses had seen in connection with the said occurrance

11. Delay in

Holding the Identification Parades

In Munna Kumar Upadhyaya v. State of Andhra Pradesh, there was some delay in holding the identification parade. The Court held that the delay per se cannot be fatal to the validity of holding an identification parade. The purpose of the test identification parade is to provide corroborative evidence and is more confirmatory in

its nature. Where the entire traumatic sequence of events might have clearly etched in victim's memory, even though it may have taken only two minutes, the Supreme Court was of the view that the delay of about six years in recording her evidence was immaterial as the episode did not (understandably) fade away from her memory. Where the accused 1.

2. 3. 4. 5. 6. 7. 8.

Hem Singh v. State of Haryana, AlR 2009 SC (Supp) 1653: (2009) 6 SCC 748 (755) (Para 20); Maru v. State of Uttar Pradesh, (1971) 2 SCC 75: AIR 1971 SC 1050: 1971 Cr LJ 913, Mohd. Kalim v. State of Rajasthan, (2008) 11 SCC 352; Amitsingh Bhikaramsingh Thakur v. State of Maharashtra, AlR 2007 SC 676: 2007 Cr LJ 1168: (2007) 2 SCC 310 (315-316) para 13 && 14). Sukhipal Singh, (2009) 4 SCC 385 (392) (Para 26). State of Uttar Pradesh v. AIR 2011 SC (Cri) 940: 2010 AIR SCW 5510; See also State of Himachal (2010) 8 SCC 191 (199): Pradesh v. Lekh Raj, (2000) 1 SCC 247: AIR 1999 SC 3916: 1999 AIR SCW 4008: 2000 Cr LJ 44. Chauhan v. R., 148 IC 1192.

Kanta Prasad v. Delhi Administration, 1958 SCJ 668: AIR 1958 SC 350: 1958 SCR 1218. Ankush Maruti Shinde v. State of Maharashtra, AlR 2009 SC 2609: 2009 AIR SCW 4022: (2009) 6 SCC 667 (673) (Para 21). (2012) 6 SCC 174: 2012 Cr LJ 3068: AIR 2012 SC 2470. Kunjumon v. State of Kerala, (2012) 13 SCC 750 (paras 22 and 23).

Of the Relevancy of Facts

Sec. 9]

65

were arrested long after the occurrence but the test identification parade was held within a period of three weeks from the date of arrest, it was held to be no unusual delay. 12. Failure to hold Test

Identification

Parade

Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in Court inadmissible or unacceptable. The failure to hold a Test Identification Parade (TIP) is not fatal to the case of the prosecution, but the trial judge will need to be circumspect in accepting the identification of an accused by a witness in Court if the accused is a stranger to the witness." Where it did not seem that the incident lasted for a long time and the eye-witnesses could not be said to have got sufficient opportunity to see the faces of the accused who were on the run, failure to hold the test identification parade was held to be a serious drawback in the prosecution case.

13. Identification only in the Court In a case of gang rape, the victim of gang rape had named accused Nos. 1 to 4 in deposition. She had not named the FIR, but she named only accused Nos. 1 to 3 in her

accused Nos. 5 and 6 either in the FIR or in her deposition. The witness had also named only accused No. 1. The Supreme Court observed that the Test Identification Parade was therefore required to be conducted for identification of the accused Nos. 4, 5 and 6. In absence of any Test Identification Parade having been held or they having been identified in the court, the accused Nos. 4, 5 and 6 cannot be held guilty of commission of the offence.

In Sheo Shankar Singh v. State of Jharkhand° it was held that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a Test Identification Parade then provides corroboration to the witness in the court who claims to identity the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the realm of investigation. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. cation is to test and strengthen the trustworthiness of The purpose of prior test ider that evidence. It is a rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. The identification parades belong to the

stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the

investigating

agency to hold, or confers a right uporn the accused to claim a

test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts 1. Chandra Prakash v. State of Rajasthan, (2014) 8 SCC 340 (para 33).

2. Shyamal Ghosh v. State of West Bengal, AlR 2012 SC 3539: 2012 AIR SCW. 4162: (2012) 7 SCC 646 (para 80). 3. Kunjumnon v. State of Kerala, (2012) 13 SCC 750 (para 20). 4. Balbir v. Vazir, AlR 2014 SC 2778 (para 22). 5. Viswanathan v. State, Rep. by Inspector of Police, Tamil Nadu, 2008 AIR SCW 3246: AIR 2008 SC 2222 (2225) (Paras 12-16): (2008) 5 SCC 354.

6.

AIR 2011 SC 1403: 2011 Cr LJ 2139: (2011) 3 SCC 654.

66

The Indian Evidence Act, 1872

of fact. In

appropriate cases it may accept the evidence of

Sec. 9

identification even without

insisting on corroboration. Identification in the Court for the first time alone may not form the basis ofconviction, but this is not an absolute rule.2 The Court identification itself is a good identification in the eyes of the law. It is not always necessary that it must be preceded by the test identification parade. It will always depend upon the facts and circumstances of the case. In one case, it may not even be necessary to hold the test identification parade while in the other, it may be essential to do so. Thus, no straitjacket formula can be stated in this regard." The substantive evidence is the statement of a witness in Court and the purpose of test identification parade is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of earlier identification

proceeding 14. Identification

of Idol

Where the recovery memo was not produced in court and there was no proof to show that the idol seized from the place of recovery identification was kept in a sealed condition the identification was held to be farce.5

15. Evidence of Identification Parade and Section 162, Cr. P.C. The Pakistan Federal Court has held that when a witness gives details of the commission of a crime and of persons committing it, the act of the Police Officer in subsequently asking the witness to point out those persons amounted to a desire on the part of such officer to test the power of observation of such witness and when evidence of the result of such test was given later on, the object was not to prove or use a statement made to the Police during investigation, but to show that the person who was previously unknown to the witness was rightly pointed by him at a test. Such evidence can be given under section 9 in proof of the identity of the accused as the doer of a certain act and without contravening section 162, Criminal Procedure Code. That section was not a specific provision to the contrary within the meaning of section 1(2), °Criminal Procedure Code so as to exclude such evidence of identity. The Supreme Court of India has held that the evidence regarding test identification parades held at the instance of the Police and under their active supervision are hit by section 162, of the Cr. P.CS It is submitted that section 162 does not come into play where the identification parade is held wholly by a Magistrate where no policeman is present and the witnesses identify the suspects before the Panch. The witness must depose in court that he identified the accused as a culprit. An identification parade has by itself no independent value. It is a corroboration of the evidence given by the witness in court. Primary and substantive evidence as to identify is

only, oral testimony in court but without 1.

Malkhansingh 3535.

2.

Shyamal Ghosh v. State

identification test it was not necessaryandhence

v. State of Madhya Pradesh, (2003) 5 SCC 746: AIR 2003 SC 2669: 2003 Cr L of West Bengal, AIR 2012 SC 3539: 2012 AIR SCW 4162: (2012) 7 SCC

646 (para 80). 3.

Ravi Kapur v. State of Rajasthan, AIR 2012 SC 2986: 2012 AIR SCW 4659: (2012) 9 SCC 284

(para 35). Hasib v. State of Bihar, AIR 1972 SC 283: 1972 Cr LJ 233: (1972) 4 SCC 773 (para 5). Seealso Kunjumon v. State of Kerala, (2012) 13 SCC 750 (para 15). 5. Lala v. State of Uttar Pradesh, 1985 ALJ 950. 6. See Criminal Procedure Code, 1973. 7. 8.

Tbrahim v. Crown, (1954) 2 FCR Pak 202. Ramkishan Mithanlal Sharma v. State of Bombay,

903. 9.

Kanai Lal, 51 Cr LJ 1507.

AIR 1955 SC 104: 1955 SCJ 129: 1955 SCR

67

Of the Relevancy of Facts

Sec.

superfluous. The testimony by the Magistrate that the witness identified the accused in the identification parade, is mere hearsay, if the identifying witness fails to identify the accused in court. The previous

statement of such witness can be made admissible in two ways, (1) either under section 228 of the Criminal Procedure Code, when his previous statement in the committing Magistrate's Court can be brought on record where the witness had

identified the accused in the committing Magistrate's Court but failed to pick him up in the Sessions trial, (2) or to elicit from the witness at the trial that he had identified certain persons in the parade and that the persons whom he identified were persons whom he had seen taking part in the crime. In that case the court may hold proved the identification by other evidence under section 9. Evidence of expert trackers as to identify the foot-prints is relevant. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identify of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Criminal Procedure Code. Failure to hold a test identification parade would not make inadmissible the evidence

of identification in court." 16. Facts Fixing Time and Place They

are

admissible

either

as

introductory

or

explanatory

of

the

res gestae

principle. 17. Facts Showing Relation Relation means the feelings of parties to one another see Ill. (6). Such facts are admissible as explanatory of or as occasioning or causing a fact in issue or relevant fact. For relationship by blood see sections 32(5), 50.

18. Modes of Identification The Supreme Court has observed that at the relevant time P.W. 2 may have been stunned when firing was resorted to by Tuna Singh and the two acquitted co-accused as it was done at the spur of the moment. The act of Shivjee Singh in immobilising

the deceased while lying down and letting Kedar Singh chop off his head

should have

been an act comparatively slower and by that time P.W. 2 had gathered his wits and identified the assailants. It has also been observed that even on a full dark night there is never total darkness. 1.

Hari Nath v. State of Uttar Pradesh, AIR 1988 SC 345: 1988 Cr LJ 422: JT 1987 (5) SC 316.

2.

Pritam Singh v. State of Punjab, AlR 1956 SC 415: 1956 Cr LJ 805. Mahabir v. State of Delhi, 2008 AIR SCW 3869: 2008 Cr LJ 3036: AIR 2008 SC 2343 (2346-2347) Para 12); see Jadunath Singh v. State of Uttar Pradesh, (1970) 3 SCC 518: AIR 1971 SC 363:

3.

1971 Cr L 305;HarbhajanSingh v. Stateof Jammu & Kashmir, (1975) 4 SCC 480: AIR 1975 SC 1814: 1975 Cr LJ 1553; Dalbir Singh v. State of Haryana, AIR 2008 SC 2389: 2008 Cr LJ 3061:

2008 AR SCW 3957; Shyamal Ghosh v. State of West Bengal, AlR 2012 SC 3539: 2012 AIR SCW 4162: (2012) 7 SCC 646 (para 80).

68

The Indian Evidence Act, 1872

(Sec. 9

There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. Identification is possible by voice too. Therę is positive evidence to show that the temple light was on, with the aid of which P.W. 2 claims to have identified the assailants. The occurrence took place at about 8 p.m. in the month of September when normally a place of worship becomes a visiting point. Thus neither can the presence of P.W. 2 at the spot be doubted nor can his ability to identify theassailants be questioned. His testimony was rightly believed by the court below. The accusedwas taken inside jail in presence of complainant and other witnesses before the identification parade. A conviction cannot be based on such identification of the accused2

19. Purpose of Test Identification Parade The test identification, held at the investigation stage by the investigating officer, has two-fold purpose: to identify the property subject-matter of the alleged offence or the person concerned in the alleged offence and to assure the investigating authority that should be held the investigation is proceeding along the right lines. For this purpose, it at the earliest, so that the memory does not fade in the meanwhile.° The purpose of test identification parade is also to test and strengthen the trustworthiness of the evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in Court as to the identity of the accused who are

strangers to them, in the form of earlier identification proceedings. This rule ofprudence, however, is subject to exceptions.

10. Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything

said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the

persons believed to so

conspiring, as well for the purpose of proving the existence of the conspiracy as for the

purpose of showing that any such person was a party to it.

Illustration ) Reasonable ground exists for believing that A has joined in a conspiracyto wage war against the "[Government of India].

i) The facts that B procured arms in Europe for the purpose of the conspiracy, C collected

money in Calcutta

for a

like object, D persuaded

persons to join the

conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. SYNOPSIS 1.

Principle

4.

2.

Scope

3.

Meaning of Conspiracy

5. Conspirators as Agents 6. Proof of Conspiracy

Conspirators

1. Kedar Singh v. State of Bihar, AlR 1999 SC 1481: 1999 Cr LJ 601: 1998 AIR SCW 2. Lali alias Jagdeep Singh v. State of Rajasthan, (2003) 12 SCC 666. 3. 4.

4017.

Kunjumon v. State of Kerala, (2012) 13 SCC 750 (para 15). Shyamal Ghosh v. State of West Bengal, AIR 2012 SC 3539: 2012 AIR SCW 4162: (2012) 7 SCC

646 (para 80). * Subs. by the A.0. 1950, for "Queen".

69

Of the Relevancy of Facts

Sec. 10]

7. Test of Admissibility 8. Reasonable Ground to Believe 9. Common Intention 10. Admissibility and Period of Conspiracy

11. English Law and Indian Law: Difference 12. Acquittal of some of the Conspirators 13.

Essentials of Section 10

14. Criminal Conspiracy

Comments 1. Principle

This section deals with the admissibility reference to the common design. In civil cases the principal is bound by person cannot ordinarily be held responsible instigated by him or done with his consent.

of things said or done by a

conspirator in

the acts of his agent. In criminal cases, a for the acts of others unless they have been In other words, ordinarily there cannot be

vicarious criminal liability. This section provides that in prosecutions for conspiracy when concert and connections between conspirators is reasonably believed to exist, whatever is said, done or written by each conspirator in reference to their common intention is admissible as evidence against others. The rule is founded on the identity of interest and community of the purpose existing between the parties. Section 10 is thus based on the principle of agency. When concert has once been proved, the doctrine applies that each party is an agent for all others and acts done by one in pursuance of the common design are admissible against the fellow conspirators. 2. Scope

Section 10 is an exception to the rule that one cannot be criminally responsible for the acts and statements of others. The leading English case is of Queen v. Blake. It illustrates at once what is admissible and what is not admissible. Two accused A and B were charged for conspiracy to defraud the Customs Officers by certain imported goods to be carried away from a Port without payment of full customs duty. It was held that evidence of entries made by A in several documents used for carrying out the fraud was admissible against B also, but the evidence of a cheque drawn by A in favour of B after the fraud was completed was not admissible. Lord Wright in explaining Blake's case observes. "The words the common intention' signify a common intention existing at the time when the thing was said, done or written by one of them".3 Generally a statement by a third person behind the back of a party is inadmissible against him. It would be unfair to him that he should be prejudiced by

words which he h Following

neither opportunity nor power to contradict or explain.

are the exceptions made to this

principle

on the

ground

of

public

policy: (1) Section 6: Words

accompanying a material fact and so

closely

connected

to

form part of the same transaction. (2) Section 10: Statements of conspirators. (3) Section 33: Depositions.

4) Section 14: Statement by a person with reference to his bodily or mental

feeling

etc.

(5) Section 32: Dying declaration. (6) Section 8: Illustrations (), (k) complaint in rape etc.

It may be noted that this rule which provides that a man shall be chargeable with the acts and declarations of his agent or fellow conspirator is not a rule of evidence because by reason of the attraction of the principle of agency the act of one becomes the act of all. In other words, the question is one of the substantive law and its solution is not to be sought in any principle of evidence (Wigmore section 1079). 1. Emp. v. Shafi Ahmad, 31 Bom LR 515. 2. (1844) 6 QB 126: 115 ER 49.

3.

Mirza Akbar v. R., 67 IA 336.

70

The Indian Evidence Act, 1872

Sec.

0

In Kehar Singh v. State (Delhi Admn.), it was analysed that the section 10 of the Act will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. The court further held that section 10 of the Evidence Act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act done or statement made by one is

admissible against the co-conspirators. In State (NCT of Delhi) v. Navjot Sandhu2 (popularly known as the Parliament Attack's case), while referring to the various decisions the Supreme Court stated the legal position that the court cannot overlook that the basic principle which underlies section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible asagainst another conspirator restricts it to the statement made during the period when theagency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under section 10. The Court analysed the ingredients of section 10 as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy:

(2) If the said condition is fulfilled, anything said, done or written by anyone common intention will be evidence against the of them in reterence to their other; (3) Anything said, done or written by him should have been said, done or written by him after the intention was formed by anyone of them; (4) It would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) It can only be used against a co-conspirator and not in his favour.

3. Meaning

of Conspiracy

In Mulcahy v. R., Willes, J., laid down that a 'conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests on intention only, it is not indictable. When the two agree to carry it into effect, the very plot is an

act in itself.3 Thus, conspiracy consists in a combination or an agreement. It has three essential elements, namely; (a) two or more persons, (b) agreement, (c) unlawful purpose or

criminal object. The essernce of object of conspiracy is the agreement or plot itself. When agreement is proved, no overt act in furtherance of the common object of the agreement-need be proved. The actual concert between the parties is itself the overt act. Brett, J, in R. v. Aspinall, observed that: "It is not necessary in order to complete the offence, that any 1.

AIR 1988 SC 1883: JT 1988 (3) SC 191: (1988) 17 Rep 306.

2. AlR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600. 3. 1868 LR 3 HL 306 (317). 4. Jhabwala v. E., 34 Cr LJ 967.

Of the Relevancy of Facts

Sec. 101

71

one thing should be done beyond the agreement. The conspirators may repent and stop or may have no opportunity or may be prevented or may fail. Nevertheless, the crime is complete; it was completed when they agreed." This is the view adopted in the definition of a conspiracy in section 120A, LP.C, However, a mere act to do a civil wrong is not

actionable, unless there has been some overt act causing damage2 But when such overt act has been done, then in a suit founded on such cause of action, the acts, etc., of the persons who have conspired to cause a civil injury will be admissible against each other under section 10. Conspiracy is something more than a joint action of two or more persons to commit an offence; otherwise, in every trial for an offence committed by two or more persons jointly, a mass of hearsay evidence would become relevant to the prejudice of the accused. There must be reasonable proof that two or more persons have conspired. Direct evidence of conspiracy is rare. It is to be inferred from circumstances. de 4. Conspirators

The Supreme Court has observed that the question of using anything said, done or written by any one of such conspirators would arise only if the facts were to help to sustain the first limb of section 10 of the Evidence Act i.e. there is reasonable ground to is believe that two or more persons have conspired together to commit an offence. But it open to the Court, even at this stage to consider the materials relating to what an accused would have said, done or written with reference to the common intention between the accused for the purpose of deciding whether there is reasonable ground to believe that the said accused would have been one of the conspirators.3 5.

Conspirators

as Agents

The Supreme Court has observed that the only condition for application of the rule in section 10 of the Evidence Act is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence. The basic principle which underlies section 10 is the theory of agency and hence every conspirator is an agent, of his associate in carrying out the object of the conspiracy. Section 10 permits "anything said, done, or written by any one of such persons in reference to their common intention" to be recorded as a relevant fact against each of the persons believed to have so conspired. It is not necessary that a witness should have deposed to the fact so transpired

between conspirators. A dialogue between them could be proved through any other legally permitted mode.8 6. Proof of Conspiracy Conspiracy being a matter of inference Lord Mansfield has observed "that the evidence as to the actual facts of conspiring 'must be collected from collateral circumstances'." In the case of R. v. Parnell, Fitzarld, J. observed that "there is no such necessity that there should be express proof of a conspiracy, such as proof that the parties actually met and laid their heads together and then and there actually agreed to carry out a common purpose. Nor is such proof, usually attempted. It may be that the alleged conspirators 1. (1876) 2 QBD 48 (58). 2.

Templeton v. Lourie, 25 B 230.

3. Barindra Kumar Ghose v. Emperor, (1910) ILR 37 Cal 467: (1910) 14 Cal WN 1114. 4. Suraj Prakash v. State (Delhi Administration), (1986) 2 Crimes 556 (Del). 5. State of Tamil Nadu v. J. Jayalalitha, (2000) 5 SCC 440: AIR 2000 SC 1589: 2000 SCC (Cri) 981.

6. State v. Nalini, (1999)5 SCC 253: 1999 SCC (Cri) 691; Sardul Singh Caveeshar v. State of Bombay, AlR 1957 SC 747: 1957 SCJ 780: 1958 SCR 161.

7. State of Gujarat v. Mohd. Atik, AIR 1998 SC 1686: (1998) 4 SCC 351: 1998 SCC (Cri) 936. 8. State of Maharashtra v. Damu Gopinath Shinde, AlR 2000 SC 1691: 2000 (6) SCC 269: 2000 Cr LJ 2301: JT 2000 (5) SC 575.

9. (1881) 14 Cox 505.

72

The Indian Evidence Act, 1872

Sec. 10

have never seen each other and have never corresponded; one may never have heard the names of the others and yet by law they may be parties to the same criminal agreement It matters not at what stage persons have entered the conspiracy. By the fact of joining, he ratifies what has been actually done and sanctions all to be done thereafter, in furtherance

of the common purpose." If a specific instance of the particular offence was proved against any accused, that would furnish the best corroboration of the offence of conspiracy, because conspiracy was the root and the specific instances, were the fruits. If conspiracy is not established, association of a co-accused with main accused is rendered unbelievable.* In the case of State of Punjab v. Barkatram", the Supreme Court of India held that the statements made by the accused persons to the Customs Officer do not amount to the statements made to the Police Officer and hence are admissible in evidence In Blake's case it was observed: "The words written or spoken may be a declaration accompanying an act and indicating the quality of the act as being an act in the course of the conspiracy or the words written or spoken may in themselves be acts done in

the course of the conspiracy. This being the principle, their Lordships think the words of section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one of the other with reference to the past acts, done in the actual

conspirator in the absence course of carrying out the matter to hold Conspiracy after it has been completed. But it would be a very diffi that any narrative or statement or confession made to a third party after the common intention of conspiracy was no longer operating and had ceased to exist is admissible

against the other party. There is then no common intention of the conspirators to which the statement can have reference." 7. Test of Admissibility In order to decide whether any act done or statement made or thing written by an alleged conspirator is admissible against any person, the test is to see whether there is reasonable ground to believe that a conspiracy existed between him and such person and secondly whether such act, statement or writing had reference to their common

intention. In Saju v. State of Kerala', the Supreme Court explained the condition for applicability of section 10, as follows: "Act or action of one of the accused cannot be used as evidence against the other.

However,

an exception has been carved out under section 10 of the

Evidence Act in the case of conspiracy. To attract the applicability of section 10 of the Evidence Act, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other." 8. Reasonable Ground to Believe These words mean that there must be prima facie evidence in support of the evidence of conspiracy between the two accused, and it is then only that anything said, done or written by one can be used against the other 1. R.v. Parnell, (1881) 14 Cox 505. 2. Kalidas, 39 Cr LJ 151. 3. S. Swamirathnam v. State of Madras, AIR 1957 SC 340: 1957 Cr LJ 422. 4. 5.

Abdul Sattar v. Union Territory, Chandigarh, AIR 1986 SC 1438: 1986 Cr LJ 1072: 1985 SCC (Cri) 505. AIR 1962 SC 276: (1962) 1 Cr LJ 217: (1962) 3 SCR 338.

6.

Balmukund v. Crown, 1915, PR No. 17 of 1915 (Cr).

7.

(2001) 1 SCC 378: AIR 2001 SC 175: 2001 Cr LJ 102.

8.

Niamat Singh, (1953) 2 All 250.

73

Of the Relevancy of Facts

Sec. 10

9. Common Intention Common intention must exist at the time when the thing was said, done or written by one of the conspirators: Things said done or written while the conspiracy was on oot are relevant as evidence or the common intention, once reasonable ground is shown to believe in its existence. Hence, any narrative or statement or confession made to a

third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party.' In a conspiracy to hush up a pending criminal case by bribing a Police Officer, the statement of B that A a goldsmith

who was found melting ornaments in front of his shop has sent me with the money in pursuance of the talk we had with you on the 24th as a reward for hushing up the case against A were held admissible against A and B in proof of conspiracy. It was held that the object of conspiracy had not been accomplished as this statement was made in course of conspiracy and accompanied the act of payment meant as bribe. In the case of Sardul Singh Caveeshar the Supreme Court of India has held that "In criminal trials on a charge of conspiracy evidence not admissible under section 10 of the Evidence Act as proof of the two issues to which it relates, viz., of the existence of conspiracy any of the fact that a particular person being a party to that conspiracy

is not admissible at all. But it is necessary to appreciate clearly that what is sought to be admitted in such a case is something said or done or written by any one of the co conspirators behind the back of others, as being in law attributable to the others and what conspiracy is sought to be proved by such evidence taken by itself is existence of the as between

the alleged

conspirators

and that a

conspiracy. It is such evidence that is inadmissible

particular

person was a

party to the

otherwise than under section 10."

10. Admissibility and Period of Conspiracy Conduct of each individual conspirator as evidenced by his acts etc. is evidence against himself under section 8, irrespective of the time to which it relates. Such conduct intention. It would be relevant is also relevant under section 14 as showing his criminal for rebutting the defence of the accused, viz., of innocent participation, under sections 8 and 14. But

conduct of a

co-conspirator

is relevant

under

section 10 only so far as it

relates to the period of conspiracy. On arrest of an accused statements made by other terminated on his co-conspirator against him are not admissible as the conspiracy had arrest qua him.* When confession was made by the accused after common intention of invoked parties was no longer in existence, the court held that section 10 cannot be against the co-accused. Under the principle contained in section 10 of the Evidence Act, once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other. Section 10 of the Evidence Act has been deliberately enacted in order to make such acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of the crime.

11. English Law and Indian Law-Difference The provisions of section 10 are wider than those of English Law in two respects: (A)

Under English Law an act must have been done or declaration made in execution or in furtherance of the common object while under section 10, to establish the admissibility of the act or declaration it is sufficient to show

1.

Mirza Akbar v. Emperor, AIR 1940 PC 176: 43 Bom LR 20: 41 Cr LJ 871 (PC).

2. 3. 4. 5.

Badri Rai v. State of Bihar, 1959 SCJ 117: AIR 1958 SC 953: 1958 Cr LJ 1434. Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747: 1957 SCJ 780: 1958 SCR 161. Sital Singh v. Emperor, AIR 1920 Cal 300: ILR 46 Cal 700: 21 Cr LJ 5. Sidharth v. State of Bihar, 2005 AIR SCW 5010: (2005) 7 SCALE 700: AIR 2005 SC 4352.

6. Shivanarayan Laxminarayan Joshi v. State of Maharashtra, AlR 1980 SC 439 (442): 1980 Cr LJ 388: (1980) 2 SCC 465.

74

The Indian Evidence Act, 1872

that it has reference to the common

Sec. 10

intention as section 10 uses the words 'in

reference to'. The illustration shows the comprehensive nature of the law. However, the words in reference to it are limited to the period of conspiracy and do not refer to what preceded or succeeded the period of the conspiracy under this

section. (B) Under English Law the act of a conspirator must have been done or declaration made before the person against whom it is sought to be given in evidence, ceased to be a member of the conspiracy; in Indian

Law the act or declaration would be admitted even though it was made after the person against whom it is sought to be given in evidence, terminated his connection with the

conspiracy. 12. Acquittal of some of the Conspirators An accused may be tried alone for conspiracy and convicted, although his that they also are guilty co-conspirators do not appear, provided the Court is satisfied or dead; but if tried jointly one accused cannot be convicted if the other or all the others When two persons are charged for conspiracy both of them must be are acquitted.

convicted or acquitted2 13. Essentials of Section 10 (1) There must be reasonable ground to believe in the existence of the conspiracy, established by prima facie evidence before anything said, done or written by any of the accused can be used against the other. (2) It must be proved that the accused where parties to the conspiracy. (3) The acts, declarations, etc., of each conspirator must be in reference to their

common intentions. 4) The acts, etc., must be confined to the period of conspiracy, i.e., between the time when such intention was entertained by any of them and the time of the accomplishment

of the object of the conspiracy. 5) Things said, done or written by a conspirator after the conspiracy had beencarried into effect and the common intention was no longer operation eg. narrative of past acts are not admissible against conspirator. (6) Section 10 applies to a criminal

offence or

to a tort.

(7) Conspiracy contemplates something more

than mere joint action.

(8) Section 10 is exception to the rule against

hearsay.

14. Criminal Conspiracy The Supreme Court has observed that the High Court was right in holding that the charge of criminal conspiracy against A2 had not been proved beyond doubt, and was rightly acquitted of the charge under section 302 read with section 120B of the Indian Penal Code. However, as the accused was found to have actively participated in causing disappearance of the dead body of the deceased there was no reason to believe that the murder had been committed by A1, was convicted and sentenced under section 201 of the Indian Penal Code3

11. When facts not otherwise relevant become relevant.-Facts not otherwise

relevant are relevant (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. 1. Blunner, 1902 KB 339. 2. Queen v. Munning, (1883) 12 QBD 241: 53 LJ MC 85. 3. State of Kerala v. P. Sugathan, AIR 2000 SC 3323: (2000) 8 SCC 203: 2000 SCC (Cri) 1474.

Of the Relevancy of Facts

Sec. 11]

Illustrations (a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance

from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant. SYNOPSIS 1.

Principle 2. Scope 3. Plea of Alibi Controlled by more Specific 4. Is Section 11 Provisions of the Act? 5.

Section 11 and

6.

Sections 11 and

7.

Section 11 and

Section 32 54 Sections 45

to 55

8.

Exceptions

9. Test of Admissibility under Section 11 10. Circumstantial Evidence Death of a

Married Woman

10. Facts Inconsistent with Fact in Issue or Relevant Fact 12. Highly Probable or Improbable 13. Instances of Improbability

Comments 1. Principle Under section 9 the accused can lead evidence to rebut the inference raised by the fact relied upon by the prosecution. Similarly, under section 11, the accused can lead evidence as to facts inconsistent with it or which renders its existence improbable or non existence probable. Woodroffe has observed that section 11 is very similar to section 9 as regards rebutting an inference and forms an instance of sections overtopping one another. In fact the portion of section 9, viz., "facts which support or rebut inference suggested by a fact in issue or relevant fact" is merely a paraphrase of section 11. According to Wigmore, the subject-matter of this section is based on the argument from essential inconsistency. The following are common cases of this argument; (i) the absence of a person charged in another place [See Illustration (a) to section 11] (i) the absence of a husband (non-access)

(Section 112) (ii) the survival of any alleged deceased person after the supposed time of death, (iv) the self-infliction of the alleged harm. While section 7 defines relevancy in quasi-scientific language the present section contains a statement in a popular

language. The practical

to make every relevant fact as admissible in

effect of sections 7 and 11 is

evidence.

2. Scope

This section has been expressed in very wide terms, but it does not mean that any and every fact which has a bearing however, remote, on any fact in issue or relevant fact, is relevant. If it were so that would amount to wiping out the theory of relevancy unfolded in the preceding sections and would let on record a mass of collateral facts and would create confusion in Court and prejudice to the parties. Before a fact can be relevant under this section it must be shown to be admissible. In the case of Vajiram, Telang. J, has observed that the "the words of section 11 are very wide and it may be safely laid down that all evidence which would be held to be admissible by English Law would be properly admitted under this section of the Act."

3. Plea of Alibi The word "alibi", a Latin expression means and

implies in common acceptation "elsewhere": it is a defence based on the physical impossibility of participation in a crime by an accused in placing the latter in a location other than the scene of crime at 1.

16 Bom

414 (430).

76

The Indian

Evidence Act, 1872

Sec.

the relevant time, shortly put, the presence of the accused elsewhere when an offence was committed. The Supreme court in Dudh Nath Pandey v. State of Uttar Pradesh; it was stated that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. In Subhash Chand v. State of Rajasthan,5 it was observed that literal meaning of alibi is "elsewhere". In law this term is used to express that defence in a criminal prosecution, where the party-accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. Denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not, by any stretch of reasoning of logic, amount to pleading alibi. It is the duty of a Judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (Section 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the Public Prosecutor and the defence Counsel,

without any hint

of partisanship and

without appearing to frighten or bully witnesses.

He must take the

prosecution and the

defence with him. The court, the prosecution and

the defence

must

work as a team whose goal is justice, a team whose captain is the

judge. The Judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with

the young, flatter and the old. In Jayantib Bhenkarbhai v. State of Gujarat, it was stated that the word "alibi" is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an acused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to faster the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered

only when the burden, which lies on the prosecution, has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the prosecution in proving of the guilt of the accused and the

evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such standard that the Court may entertain 1. 2. 3.

Munshi Prasad v. State of Bihar, (2002) 1 SCC 351: AIR 2001 SC 3031: 2001 AIR SCW 4174 1981 Cr LJ 618: (1981) 2 SCC 166: AIR 1981 SC 911. (2002) 1 SCC 702: 2001 AIR SCW 4209.

4. 5.

Ram Chander v. State of Haryana, (1981) 3 SCC 191: AIR 1981 SC 1036: 1981 Cr LJ 609. (2002) 8 SCC 165 (175): 2002 Cr LJ 4734: AIR 2002 SC 3569.

Sec. 11]

77

Of the Relevancy of Facts

some reasonable doubt regarding his presence at the place and time of occurrence, the

Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves may slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person

who wishes the Court to believe in its existence. The Court said that while weighing the prosecution cases and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the court. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence. 4. Is Section 11 Controlled by more Specific Provisions of the Act?

All evidence must be logically relevant is absolutely essential. However, being logically relevant does not insure admissibility. It must also be legally relevant. A fact which in

connection

with

the

other facts renders

probable

the existence

of a fact

in

issue may still be rejected, if, in the opinion of the judge and under the circumstances of the case, it is considered essentially misleading or too remote. Alibi is governed by section 11 of the Evidence Act and burden to prove an alibi is always on the accused

and he must prove it to the satisfaction of the court.3 In a case of attempt to murder the plea of alibi taken by one of the accused on the

ground that during the period of the incident he was ill and was undergoing treatment for typhoid under a government doctor, the High Court found that the Medical Officer had not proved his having treated the said co-accused for typhoid during the period of the incident. No document or register of the hospital was produced to show that the accused was an indoor patient in the hospital. There was nothing to show that he was treated in a private hospital. The Medical Officer had deposed that he had issued the

certificate on the demand of the accused. The doctor did not maintain any register of the certificates issued by him,

particularly

when he said that he had private practice also.

In circumstances, the Supreme Court held that the High Court was right in disbelieving the plea of alibi.4 It is well-settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place

of occurrence. In a murder case where the plea of alibi is taken by the accused and while weighing the prosecution case against the defence case, the balance tilts in favour of the accused, the prosecution case would fail and the accused would be entitled to the benefit of that

reasonable doubt which would emerge in the mind of the court. 5. Section 11 and Section 32

"As a general rule, section 11 is controlled by section 32, where the evidence consists of statements of persons who are dead or who cannot be found. But this rule is subject to certain exceptions. When the question is whether the statement of a person who is dead or who cannot be found is relevant and admissible under section 11 although it is

not admissible under section 32, the test applied would determine its admissibility under section 11 when it is altogether immaterial whether what the dead man said was true

1. Jitendra Kumar Upadhyay v. State of Haryana, (2012) 6 SCC 204 (para 71). 2. Burr. Jones, Blue Book, section 136. 3. 4.

Dalel Singh v. Jag Mohan Singh, (1981) 83 Punj LR 9 (12, 13). Asharam v. State of Madhya Pradesh, AIR 2007 SC 2594: 2007 AIR SCW 4619: (2007) 11 SCC

164 (170) (Para 18). 5.

State of Maharashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63: 1984 Cr LJ 4: (1984) 1

SCC 446. 6.

Jayantibhai Bhankar Bhai v. State of Gujarat, (2002) 8 SCC 165: 2002 Cr LJ 4734: AIR 2002 SC

3569.

78

The Indian Evidence Act, 1872

Sec. 11

or false, but highly material that he did say it. In these circumstances no amount of cross-examination could alter the fact, if it be a fact, that he did say the thing and if nothing more is needed to bring the thing said in under section 11, then the caseis outside section 32."1 6. Sections 11 and 54

Section 54 makes the evidence of accused's bad character irrelevant. Such evidence, therefore, cannot be admitted under section 11 on the ground that his bad character

makes it highly probable that he committed the crime. 7. Section 11 and Sections 45 to 55

The general rule is that opinion evidence is inadmissible. Sections 45 to 55 recognize exceptions to this rule. Therefore, opinion which is not admissible under sections 45 to 55 cannot be made admissible under section 11 on the ground that it makes the existence

or non-existence of a fact in issue or relevant fact highly probable or improbable. 8. Exceptions

Some exceptions to the above principle that section 11 is controlled by other provisions of the act are also available, e.g. Admissions may be proved as against that maker but not by or on behalf of him, except in three cases mentioned in section 21. However, under section 11, in several cases, admissions have been held to be admissible in favour of makers also. A map filed with the plaint in a previous suit was held admissible under section 11, even if it amounted to an admission in favour of the maker, because it made the existernce of the Chabutra, the subject matter of the suit as improbable.

9. Test of

Admissibility

under Section 11

In order that a collateral fact may be admissible as relevant under section 11 two requiremernts are necessary: (i) that the collateral fact must itself be established by

reasonably conclusive evidence; and (ii) that it must, when established, afford areasonable presumption or Sub-section be not relevant facts such facts

inference as to the matter in dispute. (2) of section 11 of the Evidernce Act makes facts which may otherwise to the controversy where by themselves, or in connection with other make the existence or non-existence of any fact in issue probable or

improbable. 10. Circumstantial Evidence Death

of a Married Woman

In the case of death of a married women caused by extensive burn injuries the chain of circumstantial evidence was found to be complete. In the instant case the Husband and Wife were staying together. Broken bangles were found in the verandah and the dead body was found in the centre of the cot. There was delay in sending information to the father of the deceased. The accused had taken a false plea of alibi. The Supreme Court observed that the chain of circumstances is complete and the High Court was justified

in reversing the order of acquittal of the trial court 11. Facts Inconsistent with fact in Issue or Relevant Fact Section 11(1) is based on the principle of inconsistency, while section 11(2) is based on that of probability. In the first clause the inconsistency or contradiction is complete, while in the second it is not so. Thus, illustration (a) is an instance of perfect alibi. As A was present in Lahore, it is impossible that he could have committed the crime in Calcutta. While illustration (b) is an instance of imperfect alibi, for that A was at some distance, it was not altogether impossible for him to have committed the offence. It affords a weak defence, based on probability and hence it is not a conclusive alibi. The theory of alibi is 1. D.R. Sethana v. Mirza Mohd., 9 Bom LR 1047. 2. Gokul Prasad v. Mahant Hari, 1947 Oudh 98. 3. Jawala Singh v. Prem Singh, AIR 1972 Del 221 (226). 4. Khavar Sultan v. Rukha Sultan, 6 Bom LR 983. 5. State of Rajasthan v. Mahavir, (1999) 1 SCC 199: AIR 1998 SC 3041: 1998 AIR SCW 2900.

79

Of the Relevancy of Facts

Sec. 12]

that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged and therefore with personal participation in the act. The usual theory of essential inconsistency is that a certain fact cannot co-exist with the doing of the act in question, and therefore, if that fact is true of a person of whom the act is alleged, it is impossible that he should have done the act [See section 11(a)].

12. Highly Probable or Improbable These words point out that the connection between the facts and issue and collateral facts sought to be proved must be so immediate as to render the coexistence of the two

highly probable. Instance of Probability: Where the accused was to

commit

a

dacoity,

charged for possession of arms and for conspiracy

the fact

that one of the accused

was seen

showing

a

revolver to another with whom he was alleged to be conspiring is relevant under section 11 Where the question was whether a certain lease was intended to be perpetual, the fact that a number of other leases granted at about the same time, under similar circumstances were intended to be perpetual was held admissible under this section to show that the lease in dispute was also perpetual.3 In State of Haryana v. Shakuntala, the trial court had examined the possibility that the distance between the factory and place of occurrence, which was nearly 5 kilometres or so, the possibility of the accused going to the factory after the occurrence could not be ruled out.

13. Instances of

Improbability

In a murder case three eyewitnesses deposed that the accused shot the victim from 25 feet while attempting to escape. The medical evidence showed that the circular wound

of entry of the bullet on the back of the deceased had burnt inverted margins and that such an injury could be caused only from a distance of less than a yard. It was held improbable and the that the medical evidence rendered the eye-witness account highly accused was acquitted, as his guilt was not proved beyond reasonable doubt.

12. In suits for damages, facts tending to enable Court to determine amount are relevant.-In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant. SYNOPSIS 1. 2.

3. Damages 4. Suits in which Damages are

Principle

Scope

Claimed

Comments 1. Principle Sections 6 to 11 define relevancy. Stephen says "sections 6 to 11 enumerate specifically the different instances of the connections between cause and effect which occur most frequently in judicial proceedings. Sections 12 to 55 give instances of relevant facts as

defined above." 2.

Scope Court to admit any fact which will help it to determine Section 12 enables the the quantum of damages. The amount of damages is a fact in issue admissible under section 5. In. this respect section 12 appears superfluous. 1. 2.

Emperor v. Vyapoory

3. 4.

Narsingh v. Ram Narayan, 30 Cal 883. AIR 2012 SC 2123: 2012 AIR SCW 2952: 2012 Cr LJ 2850.

Moodeliar, 8 Cal LR 197: 6 Cal 655 (662),

Sarojkumar Chakravarty v. Emnp., 59 Cal 1361.

5. Santa Singh v. State of Punjab, AIR 1956 SC 526: 1955 Cr LJ 930.

The Indian Evidence Act, 1872

50

Sec.

12

3. Damages Damages are the pecuniary satisfaction which a plaintiff may obtain. They may be claimed either for breach of contract or for torts. The cases in which damages may be recovered is a portion of the particular branch of substantive law under which suchcases are brought. The damages awarded for the breach of a right are a remedy prescribed by the substantive law. All that section 12 does is to say that if a fact will according to

the rule of substantive law, in question, affect the quantum of be given in evidence.

damages, that fact may

4. Suits in which Damages are Claimed The kind of facts admissible in actions for damages vary according to the nature of the actions, eg., for breach of contract, seduction, breach of promise to marry, libel, trespass, malicious prosecution, etc. In order to determine the amount of damages, i.e., for increasing or diminishing the amount of the damages good faith, honesty of purpose and absence of malice are

relevant in mitigation of damages. Injury to feeling is totally irrelevant in an action on contract as an element ofdamages, but in an action for tort heavy damages may be awarded on this ground- In defamation cases, also, damages may be awarded for this reason. In a divorce suit, the only guide to had sustained and the ascertain the amount of damages would be the loss the husband damages would be the same whether the co-respondent be rich or poor. Section 73 of the Contract Act deals with the measure of damages on a breach of contract. Section 55 of this Act prescribes the condition under which evidence of character may be tendered in civil cases with a view to determine damages that the plaintiff is bound to In Shaikh Gafoor v. State of Maharashtra,5 it was held plaintiff to prove the damages prove all the items of the damages. The onus on the is not less heavy because the claim is undefended or ex parte. The duty to assess the damages however, is entirely upon the Judge, and more or less resorting to rules, which regulate practice of courts. A Judge has to decide and determine every question which will ultimately enable the parties to obtain the final judgment in the case in question, such as, the proper measure of damages to be applied, remoteness of damage, and the amount which the plaintiff is actually entitled to as damages. The amount of damages, which the court can award is, however, limited by its pecuniary jurisdiction. The Court further held that no court can assess the damages with anything like mathematical precision and accuracy in all cases. However, in cases admitting of proof, the amount must be worked out with reasonable certainty. The difficulty in assessing damages is no ground for refusing to fix or for giving nominal damages based on the material brought on record by the plaintiff. The Court cannot refuse the assessment of damages simply because the plaintiff failed to adduce the best evidence available.s

question.-Where the 13. Facts relevant when right or custom is in question is as to the existence of any right or custom, the following facts are

relevant:(a)

any transaction

by which the right or custom in question was

created, claimed, modified, recognised, asserted, or denied, or which was inconsistent with its existence; (b)

particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed,

asserted or departed from. 1.

Hamlin

v. Great N. Rly. Co., 26 LJ Ex 20.

2.

Thomas v. Thomas, 52 Cal 379.

3.

AIR 2008 (NOC) 1637 (Bom).

81

Of the Relevancy of Facts

Sec. 13]

Illustration The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the

fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was neighbours, are relevant

stopped by A's

facts. SYNOPSIS

1.

9.

Principle

10.

2. Scope

3. Section Applies to All Kinds of Rights and Customs 4.

Customs and Usage

5. Essentials of Valid Custom 6. Proof of Custom 7. Modes of Proving Custom Transaction

8.

Particular

Instance

"Transaction by which and Instances in

which" 11. Claimed 12. Section 18 of the Land

Acquisition

Act

13. Recognised 14. Assertion

15. Relevancy of Judgments not Inter-partes 16.

Cases

Comments 1. Principle

This section states the facts that are relevant when any right or custom is in question, and for the purposes mentioned therein. Sub-section (a) makes transactions relevant, while sub-section (b) makes particular instances relevant. All transactions and instances which have some connection, however, remote, with a right or custom are not admissible. Only those transactions and instances as mentioned in clauses (a) and (6) are relevant. 2. Scope

This section deals with continuing rights which might be interrupted without being necessarily destroyed. By reason of their wide terms sections 13 and 11 are sought to be pressed into service when attempts to show the relevancy or admissibility of a fact in Mohamad under other provisions of the Act fail. The scope of the section is explained Amin v. Hasan, thus: "The cases this section is intended to meet are those in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial, where transactions may be supposed to have gone on modifying,

asserting, denying, creating, recognising it or being inconsistent with its existence, leaving it after all that has been given in evidence, fair matter for judicial considerations, as to whether the Court should or should not decree it." The section merely says as to which facts are relevant. It does not say how these relevant facts are to be proved. For that, one has to look to the other provisions of the Act.

3. Section Applies to All Kinds of Rights and Customs The section applies to all kinds of rights, whether of full ownership or falling short of the ownership like rights of easement, etc. It applies to both corporeal as well as incorporeal rights. A right of way is an incorporeal right, while ownership is a corporeal right. A right may be (1) Public [Section 32(4)] (2) General (Section 48) or (3) Private (See

ill. to section 13). The term right' thus comprehends any and every kind of right known to the law, including the right of ownership. 4. Customs and Usage This section applies to all kinds of customs ancient or otherwise. Custom must be ancient, but usage may be of a comparatively recent origin. Usage is a fact while custom is law. There can be usage without custom but not custom without usage. Usage is inductive, based on consent of persons in a locality, while custom is deductive making established local usage a law (Wharton's Law Lexicon). 1. 31 Bom 143: 9 Bom LR 65.

2.

Uttar Pradesh Government v. Church Missionary Trust Association, 229 IC 421.

82

The Indian Evidence Act, 1872

Sec. 13

Customs are also of three kinds. (1) Public (Section 32(4); (2) General (Section 48); and (3) Private, eg., family customs. Public custom is nowhere defined in the Act. It is

any custom which is a matter of public interest. General custom is defined to include customs common to any considerable class of persons (Section 48), eg., Custom of a religion or caste. Private custom includes family custom and usages.

5. Essentials of Valid Custom A custom to be recognizable by courts must be:-(1) ancient, (2) continuous and uniform, (3) reasonable, (4) certain, (5) compulsory, (6) peaceable, and (7) not immoral. The burden of proving a custom lies on the party setting it up. 6. Proof of Custom To prove a custom (1) the evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law, and this conviction must be inferred from the evidence. Oral evidence of witnesses who depose to having heard of the custom from theirdeceased ancestors is admissible.' (2) Evidence of acts of the kind, acquiescence in these acts, their publicity, decisions of Courts or even of Panchayats upholding such acts, thestatements of experienced and competent persons of their belief that such acts were legal and valid will all be admissible, but it is obvious that although admissible, evidence of this latter kind will be of little weight if unsupported by actual examples of the usageasserted As to the legal position regarding the proof of a custom it is well-settled that a custom must be ancient, invariable, certain and continuous. 7. Modes of Proving Custom A general custom may be proved by the opinion of living persons who would be likely to know its existence (Section 48). A public custom may be proved by opinion of such persons or by the opinion of persons who cannot be produced as witnesses, if such opinion is contained in a statement made before any controversy as to such custom arose Section 32(4)]. A custom whether public, general or private may be proved or disproved by statements of deceased perSons contained in any deed, will, or other document which relates to a transaction by which that custom was claimed, modified, recognised,asserted or denied [Section 32(7)] or by proof of such transaction itself [Section 13(a)] or particular instances in which a custom was claimed, recognised, or exercised or in which itsexercise was disputed, asserted, or departed from [Section 13(b)]. Judgments relating to custom of a public nature are admissible under section 42. The most cogent evidence of custom is not that which is afforded by the expression of opinion as to its existence but by the examination of the instances in which thealleged custom has been acted upon, and by the proof, afforded by judicial decisions,revenue or private records or receipts that the custom has been enforced A custom may be very satisfactorily proved by evidence or particular instances so numerous as to justify the Court in finding in favour of the custom. Custom is a mixed question of law and fact" It is held that a clear proof of custom will outweigh the written text of Law. Questions as to the existence of a custom or usage having force of law quite often come as mixed questions of fact and law.'

1. Sri Krishna Dutt v. Ahmadi Bibi, AIR 1935 All 187: ILR 57 All 588. 2. Gopalayyam v. Raghupatiyyam, (1873) 7 MHC 250 (254). 3. Mumtaz Begum v. S. Aman-ul-lah Khan, AIR 1973 J&K 28 (31): 1972 JK LR 565. 4. Lachman Rai v. Akbar, 1 All 440. 5. Bhagwat Sharma v. Baijnath Sharma, AIR 1954 Pat 408: 1954 BLJR 313: 33 Pat 423 (FB). 6. Collector of Madura v. Mutu Ramlingam, 1 BLR 12. 7.

Janardhaman

LJ 94.

Pillai v. Kaliamma,

AIR 1968 Mad 105 (107): ILR (1968) 1 Mad 548: (1968) 2 Mad

Sec. 13]

8.

83

Of the Relevancy of Facts

Transaction

A transaction is a business or dealing which is carried on or transacted between two or more persons. It is something which had been concluded between persons by a

cross or reciprocal action, and in its largest sense it means that which is done.' A written statement in a suit is not a transaction. 9. Particular Instance

An instance is that which offers itself or is offered as an illustrative case, something

cited in proof or exemplification. 10. "Transaction by which and Instances in which" A transaction in which there is mere assertion or denial of right or custom as distinguished from a transaction by which right or custom is asserted or denied is not within clause (a). Neither a transaction nor an instance in which there is mere assertion or denial of right or custom comes within section 13, and only those transactions are admissible by which the right or custom was asserted or denied.2 A recital in a deed is not a transaction by which a right is asserted, but is a mere instance of its assertion.

It is a mere statement and does not come either under clause (a) or clause (b). It may

be admissible under other provisions of the Act. In absence of direct title deeds, acts of ownership are the best proof of the title.3 Certified copies of a decree recognising a person's interest

regarding

holding in

dispute is admissible in evidence under section 13(a) of the Evidence Act. 11. Claimed The word 'claimed' denotes a demand or assertion. It indicates that the right is asserted to the knowledge and the presence of the person whose right would be affected by the establishment of the claim. The mere assertion or a right in a document to which

the person against whom the fight is asserted is not a party nothing, is not to claim the right."

and of which he knows

12. Section 18 of the Land Acquisition Act An award of the Collector is an offer of compensation made on behalf of the Government. The Government is bound by the offer but not the claimant, for he can seek a reference to the Court from the award under section 18 of the Land Acquisition

Act. 13. Recognised

Judicial recognition of a custom is relevant under this section as an instance of the custom being recognised. But a judicial decision is far from having the same importance as a clear cut instance of custom, recognised by the parties themselves. 14. Assertion The word 'assertion' indicates some act or deed which may or may not follow a statement. It also includes a verbal statement not amounting to and not accompanied by any act if the statement amounts to a claim. The language of section 13 is very wide, and covers the assertion of right in a previous suit where it was in dispute. It is not necessary that a right should have been asserted successfully, mere assertion thereof is

sufficient to make it relevant." 1.

Guju Lal v. Fateh Lal, ILR 6 Cal 171: 6 CLR 439 (FB).

2. Brojendra v. Mohim Chandra, AlR 1927 Cal 1: 31 Cal WN 32. 3. 4.

Per Jackson J., in Collector of Rajshahye v. Doorga Soondari Debia, 2 WR 212. Dukhiram Dey v. Mrityunjoy Prosad Daw, AIR 1982 Cal 294 (299): (1982) 1 Cal LJ 256: 1982 (1)

Cal HN 206. 5.

Jyoti Prasad v. Bharat Shah Babu, AlIR 1936 Pat 543: 15 Pat 260.

6.

H. Narayaniah v. Land Acquisition Oficer, Bangalore, AIR 1981 KNT 26 (27): (1980) 2 Kant LJ

441: 1981 Land LR 7. 7. Diwan Singh v. Shanti, (1936) 17 Lah 809. 8. Ramkumar Das v. Harnarayan Das, 1926 Cal 727.

84

The Indian Evidence Act, 1872

Sec. 13

Thus, in a matrimonial case if the wife is beaten inside the house by husband the wife cannot produce independent corroborative evidence which may consist of members of the family of the husband or neighbours. Entries of the Census Register are inadmissible in evidence. The entry made in the list of tenants cannot have a greater evidentiary value than an entry made in the record-of-rights."

15. Relevancy of Judgments not Inter-partes This controversial question is a subject of many conflicting decisions. The following types of judgments both inter-partes and non-inter-partes are made admissible under the provisions of the Act: (1) Judgment in support of a plea of res judicata in a civil case (Section 40 read with section 11, C.P.C.). with (2) Judgment of autre fois acquit in a criminal case (Section 40 section 403, Cr. P.C.). (3) Judgment in rem (Section 41). (4) Judgment relating to a matter of public nature (Section 42). Judgments inter-partes are always admissible both in civil and criminal cases.

However, the question whether a judgment which does not fll within any of theabove categories, and is not inter-partes is admissible or not had given rise to much controversy, which has been practically set at rest by the pronouncements of the Privy Council and of the Supreme Court of India. The controversy was touched off in the leading case of Gujiju Lal v. Fateh Lal, decided by a Full Bench of the Calcutta High Court in which a judgment not inter-partes was sought to be admitted in evidence as a transaction within the meaning of section 13(a). It was a suit for possession of property in which the plaintiff's success depended upon proof of the fact that A survived B. In a previous case between the defendant, and a third person it had been found that A survived B. The plaintiff put in evidence this prior judgment in proof of the fact that A survived B. The question referred to the Full Bench was whether the previous judgment, not being inter-partes, was Act. Four out of not a fact within as mentioned in

admissible in evidence under section 13, the five judges, (Mitter, J, dissenting) the meaning of section 11(2) that the section 13, and (3) that the judgment

or any held that judgment was not

other provision of the (1) the judgment was was not a transaction admissible as proof of

the facts that A survived B. This decision provoked numerous conflicting authorities of various High Courts. However, the Privy Council in the case of Ram Ranjan Chakerbarti v. Ram Narain Singh parties. Thereafter, admitted in evidence judgment and orders not between the same in a subsequent judgment of Dinomoni Chowdharani v. Brojo Mohini, the Privy Council admitted police orders made under section 145, 'Cr. P.C., to prevent breaches ofpeace in cases of dispute of immovable property to show that such orders were made, who were parties to the dispute, what the land in dispute was and who was declared entitled to retain possession. The Privy Council held that on general principles and under section 13 orders made under "Cr. P.C. are admissible. Hence Woodroffe's criticism that the expression of opinion by the Privy Council as regards section 13 is obiter, it is submitted, is untenable.

1. Abha Astavans v. Suresh Astavans, AIR 1984 (NOC) 131. 2. 3.

Bandaru Mutyalamma v. Bandaru China Appanna, (1968) 1 Andh WR 429 (432). Hanutmal Asaram Mandha v. Nathu Venkoba, AIR 1967 Bom 190: 1963 Mah LJ 557: 65 Bom LR 654.

4.

ILR 6 Cal 171: 6 CLR 439 (FB).

5. 22 Cal 533 (PC): 22 IA 60 (PC). 6. (1901) 29 IA 24 (PC). 7. See now

Criminal

Procedure Code, 1973.

Of the Relevancy of Facts

Sec. 14]

85

The Supreme Court of India has held in Sital Das v. Sant Ram that in a dispute as to the succession to the office of Mohant, a previous judgment in a suit by the former Mohant is admissible as a transaction in which a person from whom one of the parties purported to derive his title, asserted his right as a spiritual collateral of the former Mohant and on that footing got a decree. In view of these authoritative decisions, Guju Lal's case may be taken to have been overruled to that extent. The High Court has held that statements made in previous litigation bind only the parties and the person making the statement and not a person who is not a party to

that litigation2 16. Cases

The Supreme Court of India in Srinivas Krishnarao Kango v. Narayan Devji Kango, held that a judgment in a previous suit for maintenance in which the quantum of maintenance awarded was to depend on the extent of joint family property and was to be a charge on that property, is to be admissible in a subsequent suit for partition of the joint family property to prove the extent ot such property. Where there is nothing to show that the omission to comply with the conditions of the Rule (Order I, rule 8, Civil Procedure Code) has been inadvertent the judgment even though not conclusive is yet relevant under section 13 of the Evidence Act as evidence of an instance in which the right claimed by the plaintiff in the present case had been successfully asserted

14. Facts showing eristence of state of mind, or of body or bodily feeling.Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant. *[Explanation 1-A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. Explanation 2.-But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant

within the meaning of this section, the previous conviction of such person shall also be a

relevant fact.]

Illustrations (a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession, to be stolen. **I(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant. 1.

AlR 1954 SC 606.

2. Pritam Kaur v. Chanan Singh, 2003 (3) RCR (Civil) 229: 2003 PLJ P&H 374. 3.

AIR 1954 SC 379: 1954 SCJ 408: 1955 SCR 1.

4.

Narain Dass v. Atma Ram, AIR

1974 Raj 144 (146): 1974 Raj LW 136.

Subs. by Act 3 of 1891, sec. 1, for Explanation. *Subs.

by Act 3 of 1891, sec. 1, for Ilustration (b).

86

The Indian Evidence Act, 1872

Sec. 14

The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.] which B knew to be ferocious. (c) A sues B for damage done by a dog of B's, The facts that the dog had previously bitten X, Y, and Z, and that they had made

complaints to B, are relevant. (d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person. (e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A's intention to harm B's reputation by the

particular publication in question. The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B. () A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

)A

is sued by B for the price of work done by B, upon a house of which A is

owner, by the order of C, a contractor. A's defence is that B's contract was with C. The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that Cwas in a position to contract with B on C's own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did

not disprove A's good faith. () A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A's having previously shot at B may be proved. G)A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing intention of the letters. (k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts. 0) The question is, whether A's death was caused by poison. Statements made I A during his illness as to his symptoms, are relevant facts. (m) The question is, what was the state of A's health at the time when anassurance

on his life was effected. Statements made by A as to the state of his health at or near the time in question

are relevant facts.

87

Of the Relevancy of Facts

Sec. 14]

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. The fact that B's attention was drawn on other occasions to the defect of that particular carriage, is relevant. The fact that B was habitually negligent about the carriages which he let to hire, is irrelevant.

(o) A is tried for the murder of B by intentionally shooting him dead. The fact that A, on other occasions shot at B is relevant, as showing his intention to shoot B.

The fact that A was in the habit of shooting at people with intent to murder them, is irrelevant. (p) A is tried for a crime.

The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant. SYNOPSIS 1.

Principle

2.

Scope

6. 7.

3. Law as to Relevancy of Similar be Summed up as Follows 4. Intention 5. Knowledge

Facts may

Notice Conscious

Possession

8. Does Registration 9.

Amount to Notice?

Negligence and Rashness

10.

Matrimonial

Proceedings

11.

Il-will or Good-will

Comments 1. Principle

This section deals with the relevancy of facts showing the existence of a person's feeling. The section is based on (1) state of mind, (2) state of body, or (3) state of bodily the principle that facts which tend to prove the existence or non-existence of a mental state are presumptive evidence of the existence or norn-existence of that mental state. Facts are either physical or psychological. A physical fact is any thing, state of things, or relation of things, capable of being perceived by the senses. A psychological fact is any mental

condition of which a person is conscious. Thus, state of body is a physical

fact, while state of mind or state of bodily feeling is a psychological fact. Facts showing state of mind viz., interntion, knowledge, good faith, negligence, rashness, ill will or good will etc., are relevant when such state of mind is in issue. According to Bowen, L.J. in Edington v. Fitz Maurice

"The state of man's mind is as much as a fact as the state of

his digestion. It is true that it is very difficult to prove what the state of man's mind at particular time is, but if it can be ascertained it is as much as a fact as anything else." These psychological facts are incapable of direct proof, hence, their existence can be ascertained either by confession of a person's own mental condition or by presumptive interences from surrounding circumstances of other physical facts. Therefore, the most cogent evidence is offered by circumstantial evidence of other external or collateral facts. A personal statement and act before or after the fact in issue supply the data for an inference as to the intention or guilty knowledge, as mens rea is generally an indispensable element in a criminal case. By and large the definitions of offences in the LP.C. set out the requisites of mensrea. To establish mens rea proof of particular intention or knowledge with which a particular criminal act is done can be led under section 14, eg, on a charge of receiving stolen property under section 411, IP.C., that an accused received the same with the knowledge that it was stolen can be proved under section 14.

1. 29 Ch D 483.

88

The Indian Evidence Act, 1872

Sec. 14

Occasionally in civil cases also a person's state of mind in doing an act is relevant as in actions founded on fraud, slander, negligence, false imprisonment, malicious prosecutions etc. The rejection of general facts by the first explanation rests on the ground that the collateral matter is too remote, if indeed there is any connection with thefactum probandum. The second explanation is merely a particular application of the general rulecontained

in the body of the section. 2. Scope facts. The principle on which evidence The section provides for admission of similar show that because the defendant has committed of similar facts is admissible is not to one crime therefore he would be likely to commit another, but to establish the animus of the act, and rebut, by anticipation the obvious defences of ignorance, accident,mistake or other innocent state of mind (Phipson). The section gets rid of all the technicalitiesas which evidence is admissible or the time within which the fact, to the class of cases in given as evidence of mental or bodily condition, must have occurred. The only point for the Court to consider is whether the fact can be said to show the existence of the state

of mind or body under investigation, (Cunnigham).2 The Supreme Court of India down that 'Evidence in rebuttal of intention can be led by the defence and to give evidence in

in, Sardul Singh Caveeshar v. State ofBombay has laid of a very likely and probable defence on the question prosecution as part of its case. To anticipate a likely rebuttal of such defence is in substance nothing more

than the letting of evidence by the prosecution of the requisite criminal intentionbeyond reasonable doubt.' 3. Law as to Relevancy of Similar Facts may be Summed up as Follows Similar facts though generally inadmissible to prove the main fact or transaction or identity or connection of party with it, or to show a general disposition of habit or doing the act in question, are within certain limits admissible for certain purposes thus: (A) Where the nature of the case requires cumulative instances similar facts are admissible to prove the main fact of repeated acts of ownership in regard to a property on question of title or custom (Section 13) or the market value of

properties

similarly situated (Section 9).

main fact is of a continuous nature or when similar facts are closely connected with and explanatory of which similar facts are admissible as part

(B) Whern the

of the same transaction (Section 6). (C) When the question is with what mind was an act done, eg, intention, similar facts are admissible to show the state of mind (Section 14). (D) Where the question is whether an act was accidental or intentional, evidence of similar facts

showing

a series of

similar

such occurrences is admissible to

rebut even by anticipation the defence of accident or mistake (Section 15). (E) Experts can testify as to similar facts or experiments made in support of their evidence (Section 45). (F) Where the doings or habits of animals are in question, similar facts are admissible. [Illustration (c) to section 14]. llustrations (e), (), (g), (h), (i), G) show different kinds of intentions, viz, malice,

fraud, good faith, bad faith, etc. Illustration (i) is the case of R. v. Voke and (g) is that of R. v. Robinson Ilustrations (a) to (d) refer to guilty knowledge. llustrations (0, (g), (h) are of good faith, (n) is ot

1. 7th Ed.,p. 167. 2. P. 121. 3. AIR 1957 SC 747: 1957 SC] 780: 1958 SCR 161. 4. 1823 R and R 531 5. 2 East PC 1110.

89

Of the Relevancy of Facts

Sec. 14]

negligence and knowledge, (k), (), (m) are of mental and bodily feeling. Illustrations (n), (o), (p) illustrate

Explanation 1. The portion of evidence declared

irrelevant in these

llustrations is noteworthy. 4. Intention

Intention is a state of mind. A man is taken to intend the natural and probable consequences of his act. This presumption of the English Criminal Law, as pointed out by Mukherji, J., in Hazrat Gul Khan v. Emp.,' cannot be quite easily applied to the Indian Criminal Law in view of the distinction that the Indian Penal Code makes between intention and knowledge. To ascertain what a person's intention was, the court is entitled to take into consideration events both previous and subsequent to the relevant date.2 As direct evidence of intention is difficult, circumstantial evidence must there e be resorted to in proof of intention. The best circumstantial proof of the intention of the person in doing an act is the nature of the act, his conduct and the circumstances surrounding the act." In a case under section 3 of the Preventive Detention Act, 1950, the Supreme Court of India held that as a matter of abstract law, of course, the state of man's mind can be proved by evidence other than that of man himself. In that case an affidavit filled by the Minister's secretary was held as legally sufficient proof.4 In Ram Narayan v. State of Punjab5 it was held that though the burden of proof as to the dishonest intention with which a document was forged as used by the accused lies on prosecution, it is not necessary that it must be proved by affirmative evidence. If the prosecution proves the fact that the accused had prepared a false document and had withdrawn money on its strength, the burden as to proof of intention must be taken to have been discharged, because the natural inference from such conduct is that the accused was actuated by

dishonest intention. The probative force, both of preparation and of previous

attempts, on the presumption that an intention to commit the offence was framed the accused which persisted until power and opportunity were found execution. Such evidence will be admissible both under sections 8 and 14

manifestly rests in the mind of to carry it into of the Evidence

Act.6

A person's inner intentions are to be read and understood from his acts and omissions. The law judges not what is in his mind but what he has said or written or done. The Latin meaning 'external action reveals inner secrets applies. 5. Knowledge

The explanation of any admission or conduct on the part of a party, must if the party is alive and capable of giving evidence must come from him and the Court would not imagine an explanation which a party himself has not chosen to give3 6. Notice

A person is said to have notice of a fact when

but for wilful abstention from inquiries or search,

he actually

knows that fact, or when,

which he ought to have made or but

tor his gross-negligence, he ought to have known it, (Section 4,

Transfer of Property

1. 32 CWN 345 (352). 2.

American Home Products v. Mac Laboratories, AlR 1986

SC 137: (1986)

Civ Cas 665 (685) (SC). 3. D.LR. v. Karuna, 22 Cal 164. 4. State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317: 1952 SCR 5.

AIR 1955 SC 322: 1955 Cr LJ 871.

6.

Appu v. State, AIR 1971 Mad 194 (197): (1971) 2 Mad

LJ 53: 1971 Cr

1 SCC 465: (1986) 1 Cur

674: 1952 Cr LJ 1269. LJ 615.

7 SaharaIndia Real Estate Corporation Limited v. Securities and Exchange Board, AR 2012 SC 3829: 2012 AlR SCW 4923: (2013) 1 SCC 1 (paras 105 and 106).

8. Arjun Singh v. Virendra Nath, AIR 1971 Al 29 (35).

90

The Indian Evidence Act, 1872

Sec. 14

Act). Notice may be actual or constructive. An imputed notice as distinguished from a constructive notice is notice through agent. 7. Conscious

Possession

The question of knowledge is linked

with the question of

conscious possession. In

for possession of a prohibited article, if the facts a case where the accused is charged established are of such a nature that they do not entirely exclude the possibility of that article being in his luggage without his knowledge it was held that the conviction on

the basis of possession cannot be sustained. Motive is a matter which can be determined conduct. Evidence of character, conduct and state of 14 and 63 of the Evidence Act3

from the appellanť's character and mind is admissible under sections8,

8. Does Registration Amount to Notice? The definition under the Transfer of Property Act provides that registration of an instrument affecting immovable property, is notice of such an instrument. This provision is in advance of the English Law, where actual search is necessary to impute notice to

any one. 9. Negligence and Rashness The evidence to show that in a particular case the accused was negligent or rash would be admissible, but evidence which tends merely to show that he is habitually so, will not be admissible. Where the accused is charged for rash driving, evidence of other

instances of rash driving by accused is not admissible. Where a surgeon was charged for negligence in a particular operation, evidence to show that he had been negligent or

skillful in other similar operations was held inadmissible. 10. Matrimonial Proceedings The Evidence Act does not exclude examination of mental or bodily state of aperson. The court hearing a matrimonial proceeding has the jurisdiction to appoint a commission Doctor for examining the _party to know and report whether he or she was able to

consummate the marriage.'

11. Ill-will or Good-will It is nothing but bad faith and good faith. A thing is said to be done in good faith, where it is done honestly, whether it is done negligently or not (Section 3, General Clauses Act). The presumptions in law against misconduct generally presume good faith in human transactions and therefore, generally the burden of proving bad faith is on the party alleging it. Party's good faith in doing an act can be gathered from the facts which would justify it. To show the bona fide of a party's belief, as to any matter, it is admissible to show the state of knowledge and that he had reasonable grounds for such belief or that it was shared by the community or even individuals, similarly situated to

himself [Phipson]* Explanation 1-Under this explanation evidence of general reputation is excluded. Woodroffe points out that the rejection of the general fact rests on the ground that the matter is too remote, if indeed there is connection, with the factum probandum. Thus the evidence relating to the state of mind of a person must show that the state of mind 1. Kettle Well v. Watso, LR 21 Ch D 658 (724). 2. Prithvi Singh v. State of Bombay, 1960 SCJ 584. 3. Ashok Dubey v. State of Madhya Pradesh, 1980 MPLJ 300 (316). 4. Monks v. Whitley, (1912) 1 Ch 735 (757). 5. Collet v. E., 1929 MWN 395. 6. R. v. Whitehead, (1848) 3 C&K 202. Cited in Phipson Evidence, 6th Edn., 165. 7. G. Venkatanarayana v. Kurupati Laxmi Devi, AIR 1985 AP 1: 1985 Mat LR 43: (1985) 1 Hindu LR 698.

8. 6th Edn., 149.

91

Sec. 15]

Of the Relevancy of Facts

exists not only generally but in

reference to the particular matter in question. Evidence

of general disposition, habit or tendencies, is inadmissible. ' Anything having a distinct and immediate reference to the particular matter is admissible. See illustrations (a) and (b). The purport of this explanation is found in Illustrations (n), (o), (p).

Explanation 2.-Woodroffe remarks that the second explanation is merely a particular application of the general rule contained in the body of the schedule. See sections 310, 311, explanation 511, Cr. P.C., as to evidence of bad character of accused. (Section 54). This states that where the previous commission of an act is relevant, say for enhanced punishment, the previous conviction of the person should also be a relevant fact. See Ilustrations (e) and () to section 43.

15. Facts bearing on question whether act was accidental or intentionalWhen there is a question whether an act was accidental or intentional, *[or done with a particular knowledge or intention,] the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Illustrations (a) A is accused of burning

down his house in order to obtain

money for which

it is insured.

The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment tending to show that the fires were

from a different insurance office, are relevant, as not accidental. (b) A is employed to receive money from the

debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether this false entry was accidental or intentional. The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant. (c) A is accused of

fraudulently

delivering

to B a counterfeit

rupee.

The question is, whether the delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A delivered rupees to C, D and E are

relevant,

as

showing

that

the

delivery

counterfeit

to B,

was

not

accidental. SYNOPSIS 1. Principle 2. Scope 3. Difference

4. Accidental or Intentional 5. Series of Similar Occurrences between

Sections 14 and 15

Comments 1. Principle

This on is an application of the general rule laid downi section 14. It is merely a deduction from the more general provisions of section 14. Where it is uncertain whether an act was done with a guilty knowledge or intention, or whether it was innocent or accidental, proof that it formed one of a series of similar acts raises the presumption that the act in question and the others together forming a series, were done upon a system and were therefore not innocent or accidental. The words of the section as well as those form part of one of illustration (a) show that it is not necessary that all the acts should transaction, but that they should be parts of a series of similar occurrences. In illustration 1. Emp. v. Gangaram, 22 BLR 1274. 2. E. v. Debendra Prasad, (1909) TLR 36 Cal 573: 10 Cr LJ 91. 3. See now Criminal Procedure Code, 1973.

Ins. by Act 3 of 1891,sec. 2.

92

The Indian Evidence Act, 1872

Sec. 15

(a) the fact that the houses of the person insured against fire were successively burnt down on different occasions is relevant to prove that the incidents were not accidental but part of a design or plan. Where design, system, criminal intent or guilty knowledge on the part of the prisoner, is to be proved or the defence of accident or the like is to be

met, prosecution may give in evidence other instances of the prisoner having committed offences similar to that for which he is under trial. (Archbold, p. 33). The section deals with the second principle laid down in the leading case of Makin.' Evidence of similar facts is admitted to prove knowledge of the fact under consideration or a party's intention with respect therein. Such evidence is received not because a person committing one offence is likely to commit another offence of a similar nature, but to show the intention or knowledge of the accused and rebut the defence of accident, mistake or innocent intent. Woodroffe observes that the facts are admitted as tending to show system and therefore intentional. It will always be a matter of discretion, whether there is suficient and reasonable connection between the fact to be proved and evidentiary fact. If there is series, and this is the gist of the section. no common link they cannot form a

2. Scope Section 15 cannot apply unless the act forms part of similar occurrences. Section 14 provides that facts showing the existence of any state of mind, such as intention or knowledge are relevant, when the existence of any such state of mind is in issue or relevant; while this section provides specifically for allowing evidence of similar Occurrences, in each of which a person doing the act was concerned whenever there is a question whether an act is done with a particular knowledge or intention. 3. Difference between Sections 14 and 15 The points of distinction between these two sections are as follows: (1) Section 15 deals with facts admissible in proof of only two states of mind, viz., intention or knowledge. Section 14 deals not only with facts which are admissible in proof or every kind or state of mind like negligence, good faith etc., but also with facts which are admissible to prove a particular class of physical facts, viz., state of the body of a person. (2) Under section 15 the evidentiary fact must be such as formed part of a series of similar ocCurrences, in each of which the person doing the act was concerned, no such limitation is imposed on the evidentiary fact by section 14 and every fact is provable under that section that goes to show the state of mind which

is in question 4. Accidental or Intentional It is not correct to say that section 14 only deals with intention as opposed toaccident. The words 'or done with a particular knowledge or intention' must not be overlooked in constructing section 15.+ When there is an issue whether the act charged was designed or accidental or done with guilty knowledge, evidence is admissible of a series of similar acts, by the accused done on other occasions because a series of acts with the self-same characteristics is unlikely to be produced by action or inadvertence. 5. Series of Similar Occurrences In determining relevancy under section 15 two points are material: (1) that there must be a question whether the act was intentional or accidental or was done with a particular knowledge

or

intention,

and (2) the section 15 does not apply unless it is sought to be

proved that the act forms part of a series of similar occurrences. 1.

63 LJ PC 41: 1894 AC 57 (PC).

2. Emp. 3. M.L. 4. E. v. 5. R. v.

v. Harjivan, 50 Bom 174. Pritchard v. Emperor, AlR 1928 Lah 382: 30 Cr LJ 18. Panchu Das, 47 Cal 671: 58 IC 929: 21 Cr LJ 849 (FB). Sins, 1946 KB 531 (537).

93

Of the Relevancy of Facts

Sec. 161

Similar occurrences mean similar instances. In order to be admissible under section 15 other instances must be similar to the instance charged, though they need not be part of the transaction charged. The rule as stated by

Mookerji, J., is as follows:

Facts similar to, but not part of the same transaction as the main fact, are not in general admissible to prove either the occurrence of the main fact or the identity of its author. But evidence of similar facts although in general inadmissible to prove the main fact or the connection of the parties therewith, is receivable, after evidence aliunde on these points has been given to show the state of mind of the parties with regard to such fact, in other words evidence of similar facts may be received to prove a party's knowledge of the nature of the main fact or transaction to rebut even by anticipation the defence of accident, mistake, or

innocent condition of mind'.

16. Existence of course of business when relevant.-When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations (a) The question is, whether a

particular letter was

despatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant. (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. SYNOPSIS 1. Principle 2. Scope: Difference

between Section 16 and

5. 6.

by

Registered

Post:

Endorsement Refused

llus. () to Section 114 3.

Postal Delivery Notice Sent

7.

Course of Business

Certificate of Posting

Delivery

4. Posting, Post Mark and Postal

Comments 1. Principle

The section lays down that whenever it is necessary to prove that an act was done, the existence of general course of business or office (public or private) according to which it naturally would have been done, is a relevant fact and proof of it is admissible. 2. Scope: Difference between Section 16 and Illustration () to Section 114 The rules enacted in the present section and in llus. (f) to section 114 are really parts of the same process of inference, the former declaring that the general course of business according to which an act would naturally have been done is relevant and may be proved, while the latter making the course of business when proved, the foundation for the inference that the act was done. The subject matter of section 16 is a matter of presumption. relevancy, while that of Illus. (f) to section 114 is of The section relates to private as well as public offices. Illus. (a) refers to the former, while Illus. (b) to the latter, viz., the Post Office itself. 3. Course of Business

Business is that which occupies the time and attention and labour of men for the purpose ot protit or improvement. The expression 'course of business' means the ordinary course of a professional avocation or mercantile transactions of trade or business. This expression is used also in section 32(2) and Illus. (f) to section 114. 1. E. v. Debendra Prasad, (1909)

ILR 36 Cal 573: 10 Cr LJ 91.

2.

Smith v. Andersorn, 15 Ch D 484.

3.

Ningauwa

v. Bharamappa, 23 Bom 63 (66).

94

The Indian Evidence Act, 1872

Sec. 16

4. Posting, Post Mark and Postal Delivery The posting of a letter may be proved by the person who posted it or by showing the fact for which posting may be presumed. The postmark on an envelope is primafacie evidence of three things: (i) that the mark was generally affixed by an officer of the Post

Office concerned, (i) the time of posting, (ii) the place of posting. 5. Postal Delivery The Illus. (b) to section 16 only means that each one of the fact stated therein is relevant. It cannot be read as indicating that without a combination of these facts, no

presumptions can arise as to the receipt of the letter. It cannot be urged that unless there is proof also of non-return from the Dead Letter Office, mere evidence of the posting of a letter is not enough to create a presumption as to the receipt by its addressee.

6. Notice Sent by Registered Post: Endorsement Refused Where it is proved that a registered letter has been correctly addressed and posted and is not proved to have come back, it may be presumed that it reached its destination at the regular time and duly delivered to the addressee.' Where notice was correctly addressed and despite intimation by post office not accepted and returned unserved it was held that the notice could be presumed to have been served? Where a notice to

quit was sent by registered post and was produced in Court in the original cover with , it was held an endorsement stating the refusal by the addressee to receive that it was sufficient service of the notice and fixed the addressee with notice of its contents thereof and he cannot plead ignorance.3 7. Certificate of Posting When it is proved that the letter was posted under a certificate of posting, it must be presumed that it reached the addressee. Presumption not only as to posting of letters but also their due receipt by addressee can be raised." If copy of a letter which hasbeen posted is produced together with the certificate of posting, and the sender says that the original was written and posted the copy is admissible and the Court may consider this evidence as sufficient proof of the receipt of the original by the addressee.

Admissions 17. Admission defined.-An admission is a statement, *loral or documentary or contained in electronic forml, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under

the circumstances, hereinafter mentioned. SYNOPSIS 1.

What is an

Admission?

9.

2. 3. 4.

10.

5. 6. 7. 8.

Requisites of an Admission Admission when Evidence between Admissions Distinction Confessions Importance of the Distinction Form of Admissions Different Kinds of Admissions Admission by Conduct

1.

7 Cr LJ 251.

2.

P.T. Thomas v. Thomas Job, (2005) 6 SCC 478:

3. Jogendro 4. Dhanpati 5. Mohinder Subs. by

and

Admission

on Pure Matter of Law

Admission as to Factum of Partition

11. Proof of Admission 12. Mode of Proof of Admissions 13. 14.

Admissions Should an

must be Taken as a whole Admission be put to the

Maker? 15. Effect of Admissions

AIR 2005 SC 3575: 2005 AIR SCW 4593.

Chunder v. Dwarkanath, 15 Cal 681. Devi v. Corporation of Calcutta, 55 CWN 751. Kaur Kochhar v. Punjab National Bank Limited, New Delhi, AlR 1981 Del 106. Act 21 of 2000, sec. 92 and Sch. II, for "oral or documentary" (w.e.f. 17-10-2000).

Sec. 17]

95

Of the Relevancy of Facts

Comments 1. What is an Admission? An admission is a statement oral or documentary made by a party to a proceeding

or his representative connected with the subject-matter of the suit or facts relevant thereto and made under the circumstances mentioned in the Act. The definition of admission given in section 17 is incomplete as it does not mention the persons by whom it can be

made nor the circumstances under which it can be made. The list of persons by whom an admission can be made is found in section 18 of the Act and the circumstances under which it can be made are mentioned in sections 18-30. Thus, an admission is a statement suggesting an inference, as to the fact in issue or relevant fact made by persons mentioned in section 18 and under circumstances contained in sections 18 to 30. 2. Requisites of an Admission

) It is astatement, oral or documentary; (ü) the statement must suggest any inference as to any fact in issue or relevant fact; (ii) it must be made by any of the following persons as mentioned in sections 18 to 20:

(a) Party to the proceeding (Section 18). (b) Agent authorised by such party (Section 18).

()

Party's representatives, i.e., party suing or sued in a representative character making an admission (Section 18).

(d) Person jointly interested in the subject-matter of the proceedings, i.e., person who has any proprietary or pecuniary interest in the subject matter of the proceedings (Section 18). (e) Person from whom the parties to the suit have derived their interest or title to the subject matter of the suit (Section 18).

(

Person whose position or liability is necessary to prove against a party to a suit. This is a case of admission by strangers to the suit if they occupy such a position or are subject to such a

liability (Section 19).

(g Referee, i.e., person to whom a party to the suit has expressly referred for information

or opinion

(Section 20). This is also a case of admission

by a

stranger. (h)

Statements section 18.

made by

accused

are

also

admissible

as

admission

under

Statement must be made under the following circumstances: (a)

Admission by representative of a representative character (Section 18).

party,

if

made

while

holding

such

(b) Admission by person jointly interested, if made during the continuance of such interest (Section 18).

(c) Admission by person, from whom the parties to the suit have derived interest or title, if made during the continuance of such interest (Section 18). (d) Admission by strangers to the suit; when their statements would be relevant (e)

in a suit brought by or against them (Section 19). Admission by a referee in a reference to a matter in dispute (Section 20).

3. Admission when Evidence Though in a prior statement an assertion in one's own interest may not be evidence, a prior statement adverse to one's interest would be evidence. In fact, it would be best evidence the opposite party can rely upon. The Supreme Court in Mritunjoy Sett v. Jadunath Basak,2 held that an admission made in a court of law is a valid and relevant piece of evidence to be used in other 1. Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju, AIR 2006 Sc 543: 2005 (2006) 1 SCC 212 (224-25) (Para 15).

2. (2011) 11 SCC 402: AIR 2011 SC 2496: 2011 AlR SCW 2974.

AIR SCW 6197:

96

The Indian Evidence Act, 1872

Sec

17

legal proceedings. Since an admission originates (either orally or in written form) from the person against whom it is sought to be produced, it is the best possible form of evidence. Admission of a party in the proceeding either in the pleadings or oral is the best evidence and the same does not need any further corroboration. Admission constitutes a substanial piece of evidence which can be relied upon for proving the veracity of the facts incorporated therein. When once the admission asnoted in a statement either oral or documentary is found, the whole onus would shift to the

party who made such an admission and it will become as imperative duty on such party to explain it. In the absence of any satisfactory explanation, it will have to be presumed to be true.

It is needless to state that an admission in order to be complete and to have

the value and effect referred to therein, should be clear, certain and definite, without any

ambiguity, vagueness or concession. 4. Distinction between Admissions and Confessions 'Admission'

The term

is defined in section 17 but a 'confession' is not defined in the

Act. In State (NCT of Delhi) v. Navjot Sandhu, (commonly known as Parliament attackcase) the Supreme Court made a distinction between "confession" and "admission". The Court observed that an admission is a statement, oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession.

charged with a In the case of that 'it is only guilt in straight

A

confession is an admission

made at any time by a person

crime, standing or suggesting the inference that he committed thecrime. Om Prakash v. State of Uttar Pradesh,3 the Supreme Court has laid down when the statement of the accused can be read as a plenary admission of and clear terms that it can be taken as a confession of the crime.'

Admission

in pleadings or Judicial

admissions, by themselves, can be made the

foundations of the rights of parties." An admission made even to a stranger at any time even before the controversy arose is admissible. A confession to be admissible must be true and voluntary.

5. Importance of the Distinction For two reasons the distinction between them is important. A statement made by an accused may be either admission or a confession. If it is an admission, it is admissible under section 21 unless it amounts to a confession which is admissible under sections 24

to 30. If the statement is found to be tainted with improper inducement, threat or promise, it will be hit by section 24 and will be inadmissible as a confession. However, it may still be admissible under section 21 as an admission, provided it suggests an inference as to the fact in issue or relevant fact, provided also that it was not made to a police officer during investigation. Secondly, a statement made by the accused against his co-accused is admissible under section 30 only if it amounts to a confession. But if it falls short of a confession, it is admissible against its maker as an admission,

but not against his co-accused.

6. Form of Admissions Admissiorns are receivable which are contained depositions, petitions, deeds, account books even if not 1.

Ahmedsaheb

v. Sayed

Ismail,

AIR

2012 SC 3320: 2012

in letters, previous pleadings, regularly kept, horoscopes, first AIR

SCW 4287: (2012) 8 SCC 516

para 12). 2.

Vathsala

Manickavasagam

v. N. Ganesan, (2013) 9 SCC 152 (para 22). 4.

Distinction between

Admissions and Confessions 3.

AIR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600 (662) (Para 27).

4. 5.

Queen Empress v. Babulal, 1884 All WN 229: ILR 6 All 509 (539) (FB). AIR 1960 SC 409: 1960 Cr LJ 514.

6.

Satish Mohan Bindal v. State of Uttar Pradesh, (1985) 11 All LR 566: 1985 All CJ 507: AIR 1986

All 126 (Para 9).

Sec. 17]

Of the Relevancy of Facts

7

information reports etc. Even statements in cancelled, invalid instruments or unstamped documents are receivable.' Statements made in a document which is inadmissible for want of proper attestation or registration may be admitted as admissions Admissions may be implied from the acquiescence of a party. The general rule is that they are admissible against the party making them but not against any other party.* Exceptiorns to this rule are in sections 18 to 20. An admission made in a pleading is not to be treated in the same manner as an

admission in a document. An admission made by a party to the lis is admissible

against

him proprio vigore.

7. Different kinds of Admissions An informal admission may be made in any way. It has, therefore, much less weight than formal admission and may be much easily explained away. But, if clearly proved and sufficiently explicit in terms, it shifts the burden of proof. There are exceptions to the admissibility of informal admissions. In criminal cases involuntary confession (Section 24) and in civil cases admissions are made in communications marked without prejudice. (Section 23). Admission, unless explained, furnishes the best evidence.° An admission would bind the maker of admission only in so far as facts are concerned but not in so far as it relates to question of law.' Minor variation between the "what eye witnesses said in examination" and "at the cross-examination" does not affect his credibility when the witness is consistent as to point of substance 8. Admission by Conduct

n certaincases,conduct, i.e., flight, silence, demeanour may amount to an admission. Strictly speaking conduct itself cannot be construed as an admission as it is neither oral nor documentary (Section 17).

9. Admission on Pure Matter of Law

In England, admissions are receivable to fact (Phipson Evidence 6th Ed., p. 233). Under

prove matter of law or mixed law and the Indian Act an admission is defined

as a statement suggesting inference, as to the fact in issue or relevant fact and hence it seems that an admission on a pure point of law is not within the scope of sections 17 to 31, and hence is not binding on the party making it, nor does it estop him under

section115. Admission on the point of limitation regarding the question whether a pronote is time-barred or not. Any admission made in ignorance of law or under duress cannot bind the maker of the admission. 10. Admission as to Factum of Partition

An admission should be of a precise fact and can pin down a person to the very admission and not one which can lead to other inference or that the statement can lead to characterize that as an admission in respect of a different fact. A statement that the plaintiff was residing in a separate house does not necessarily mean to say or necessarily

lead to only inference of the family having been partitioned. It may be there was a partition or it may not. If such is the inference that one can draw from the statement 1. 2. 3. 4.

Section 162, Cr. P.C, Pakala Narayana Swami v. Emperor, AIR 1939 PC 47: 40 Cr LJ 364. Baboo Mahesh Chander v. Baboo Umbika Chander, 23 WR 325. Shamlal v. Laxmi Narayan, ILR 1939 All 366. Sailesh Chandra Sarkar v. Bireshwar, AIR 1930 Cal 559: 126 IC 715.

5. Gautam Sarup v. Leela Jetly, AIR 2009 SC (SupPp) 363: (2008) 7 SCC 85 (89) (Para 14). 6. Rami Dayauwala & Sons (P.) Ltd. v. Inoest Import, AIR 1981 SC 2085 (2093): (1981) 1 SCC 80: (1981) 1 SCR 899.

. Banarsi Das v. Kanshi Ram, AlR 1963 SC 1165 (1169): (1964) 1 SCR 316: 1963 SCD 758. 8. Stateof Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 (623): (1980) Supp SCC 455: 1981 Cr LJ9. 9. Shrilerishna v. Kurukshetra University, Kurukshetra, AIR 1976 SC 376: (1976)1 sCC 311: (1976) 2 SCR 722.

98

The Indian Evidence Act, 1872

Sec. 17

that the plaintiff was living in a separate house, the learned Judge of the lower appellate court construing that as an admission, for holding that it proves the tactum of partition is an illogical conclusion and can never be sustained.

11. Proof of Admission The proof of admission is not open to the objection that it is hearsay. Where the full text of the speech is not available, but the maker of the speech admitted that the speech as reported in the newspaper does more or less tally with the views expressed by him, the report of the speech can be relied on to determine whether the maker of speech was guilty of corrupt practice mentioned in sub-section (3A) of section 123 of the Representation of People Act, 1951.2

12. Mode of Proof of Admissions Two

questions

arise

(1)

whether

an

admission

must

be

taken

as a whole;

(2) whether it should be put to a party making it. 13.

Admissions must be Taken as a whole Generally, an admission made by a person whether amounting to a corntession or not cannot be split up only part of it be used against him. An admission must be used as whole or not. But where a statement, which is sought to be given in evidence forms part of a larger statement, evidence shall be given of so much of the statement as is necessary to the full understanding of the nature and effect of the statement. (Section39). However, if there is other evidence in the case, the Court in the light of the evidence may

believe it in part and disbelieve the rest. In K.S. Venkatesh v. N.G. Lakshminarayanas the court held that if an admission is in writing and if an opposite party wants to make use of that statement as an admission then the whole statement containing the admission must be taken together to ascertain what the party has conceded against himself. Unless the whole is received the true meaning of the part which is evidence against him cannot be ascertained. An admission unless it is separable has to be taken as a whole or not at all. If a statement is not capable of

dissection because that particular part is in extricably connected with the other part then it must be read as a whole. A

plaintiff

cannot be allowed

to dissect a written

statement. He cannot be allowed to avail only those parts of the written statement which are favourable to him, and discard the other parts of the written statement which are not favourable to him. Such dissection of the written statement is not permissible in law. In other words a statement in writing cannot be taken out of context or read in part, so as to bind the maker of the statement when the intention of the maker of such statement is to the contrary, as could be gathered from reading the entire statement. Equally it is not open to the court to dissect a statement and pick up a part which is incriminating and reject a part which is exculpatory. It is to be remembered that an admission contained

in a pleading is a piece of substantive evidence, which can be acted upon even without putting it to the maker of such statement. A distinction must also be drawn between the case where an admission by one party has merely the effect of relieving the other party from giving proof of a particular fact, and the case where one party, failing to adduce independernt evidence in his favour attempts to rely on the statement of the other party as an admission. In the latter case, as the party relies on the admission, he must take the whole of it together, in the former case, the one party cannot be said to use the admission of the other as evidence at all.

1. G. Ranganath v. Govindappa, 2008 AIHC 2786: 2008 (6) Kant LJ 285: AIR 2008 Kant 151 (156) (Para 29). 2.

Ebrahim Suleiman Sait v. M.C.

Mohammad,

SCJ 568.

3. 2007 AIHC 3583 (3588) (Karn) (Para 18).

AIR 1980 SC 354 (356): (1980) 1 SCR 1148: 1980 (1)

Sec. 17]

99

Of the Relevancy of Facts

14. Should an Admission be put to the Maker? On this point there is a conflict of views. It has been held in several decisions that

when an admission is sought to be given in evidence, it must be put to the party making it to enable it to explain the admissions. However, it is submitted that this view is untenable. The Privy Council decision in Bal Gangadhar Tilak v. Shriniwas Pandit which is relied on is an authority for this view. In that case certain documents were used and inferences drawn from them by the Bombay High Court to discredit the evidence of the witnesses in the case, without these documents or inferences drawn from them being put to them. This was held to be contrary to section 145, which provides that when it is intended to contradict the witness by a previous inconsistent statement of his, his attention must be drawn to that part of the statement by which it is intended to contradict him. Section 145 does not apply to admissions. An admission is admissible proprio vigore and is given in evidence as substantive evidence and not for contradiction purposes. Further rule in Ude Bhan's, offends against the well recognised rule that an admission shifts the onus and that it was for its maker to get rid of it by showing that it was untrue. Further it is an original evidence and not a hearsay and hence the maker need not be called at all. An admission duly proved is admissible evidence irrespective of whether the party making it appears in the witness-box or not and whether such party appearing as witness was confronted

with those statements in case that party made a statement

contrary to the admission. The purpose of contradicting the witness under section 145 of the Evidence Act is quite different from the purpose of proving the admission. 15. Effect of Admissions Admissions are not conclusive proof of matters admitted, but they may operate as estoppel, i.e., the person cannot be permitted to deny it (Section 31). A party's admission must be presumed to be true until the contrary is shownS Admissions founded on hearsay or consisting of merely of declarant's opinion or belief are receivable in evidence but their weight is slight. As compared with a confession it is a weak type of proof. Evidence of oral admissions ought always to be received with great caution. Such evidence is necessarily subject to much imperfection and mistake; for either the party himself may have been misinformed, or he may not have clearly expressed his meaning, or the witness may have mis-understood him or may purposely misquote the expression used. But where the admission is deliberately made and precisely identified the evidence it affords is often of the most satisfactory nature (Taylor, $ 61). It is clear that the purpose of contradicting the witness under section 145 of the Evidence Act is quite different from the purpose of proving the admission. "Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. However, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true".7 Admission is only a piece of evidence and can be explained. It does not conclusively bind a party unless it amounts to an estoppel. Value of an admission has to be determined by keeping in view the circumstances in which it was made and to whom. 1.

lde Bhan v. Daulat Ram, 170 IC 315; See Bishwanath Prasad v. Duarka Prasad, (1974) 1 SCC 78: (1974) 2 SCR 124: AIR 1974 SC 117.

2. 39 Bom 441. 3. Ude Bhan v. Daulat Ram, 170 IC 315. 4. Birabara Rout v. Pullabh Rout, (1972) 38 Cut LT 161 (168-69). 5. Nathoo Lal v. Durga Prasad, AlR 1954 SC 355: 1954 SCJ 557: 1955 SCR 51. 6. Punjab University v. Prem Chand Handa, AIR 1971 Punj 177 (181): 1971 Cur LJ 20. 7. Ujali Padhani v. Rushi, (1972) 38 Cut LT 110 (113-114). 8. Rakesh Wadhawan v. Jagdamba Industrial Corporation, AIR 2002 SC 2004: 2002 AIR SCW 2044:

(2002) 5 SCC 440.

AIS

100

The Indian Evidence Act, 1872

Sec.

17

Thus, in Bishwanath Prasad v. Dwarka Prasad, the question was whether certain properties belonged to the defendant while certain other properties were liable to

partition. The opposite party had made a statement in an earlier suit that certain properties belonged to the defendant. Similar admissions were made by the plaintiff and his father in the earlier

suit. Krishna Iyer, J., regarded

this as a relevant piece of evidence against

the plaintiff. 18. Admission by party to proceeding or his agent.-Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly

authorized by him to make them, are admissions. by suitor in representative character-Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statementsmade by(1) party interested in subject-matter.-persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (2) person from whom interest derived-persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. SYNOPSIS 2. Kinds of Admissions

4. Privies 5. Statement of Admission in Judgment

3. Scope

6.

1.

Principle

Admission

made on Behalf of the State

Comments 1. Principle The general rule is that an admission can only be given in evidence against the

party making it, and not against any other party. To this rule there are certain exceptions mentioned in sections 18 to 20.

Broadly stated so as to

include these exceptions the rule

is that the declaration of party to the record or of one identified in interest with him, are as against such party receivable as evidence. The identity of interest which determines the relevancy of the admission includes (1) agency, (2) proprietary or pecuniary interest which nominal interest, (c) derivative interest. includes (a) joint interest, (b) real as opposed to

2. Kinds of Admissions Admissions, the Supreme Court observed, generally arise when a statement is made by a party in any of the modes provided under sections 18 to 23 of the Evidence Act, 1872. Admissions are of many kinds; they may be considered as being on the record

as actual if they are either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly, as between parties by agreement or notice 3. Scope

Sections 18 to 20 mention the person by whom the admissions must be made and the circumstances under which they must be made as defined in section 17. Section 18 deals with declarations of the parties to the record or of person who are identified in 1.

(1974) 1 SCC 78: (1974) 2 SCR 124: AlR

2.

Uttam Singh Duggal & Co. Ltd. v. 2000 AIR SCW 2924.

1974 SC 117.

United Bank of ndia,

(2000) 7 SCC 120: AIR 2000 SC 2740:

101

Of the Relevancy of Facts

Sec. 18)

interest with them. Sections 19 and 20 deal with

declaration by the person other than

these, i.e., strangers.

(1) Admission by parties to the proceeding The word 'proceeding' in section 18 refers to proceedings in which the matter stated by the party is in issue.

Parties in criminal cases In criminal cases as evidence, the accused is the party,

his admissions are receivable subject to the exclusionary rules contained in sections 24 to 26. Where the cognizance is taken on private complaints the complainant becomes the party. Where cognizance is taken orn a police

report, the

aggrieved

person is in the

position

of a mere

witness

whose prior inconsistent statements are receivable not as admissions but by way of self contradictions under section 145. In civil suits All plaintiffs and defendants are parties to the suits. A statement made by the party in a former suit between the same or different party is admissible. The proceeding may be civil or criminal. (2) Admissions by agents He who sets another person to do an act as his agent is bound by such act as it has been done under his authority and so is affected by admissions made by the agent in the course of exercising that authority. Thus, the admissions of an agent are admissible because the principal is bound by the acts of his agent done in the course of business

and within the scope of his authority. The rule admitting the declarations of the agent is founded upon the legal identity with the principal, such declarations are, therefore, binding on principal only so far as the agent had authority to make them. (Taylor S605). The fact of agency must be first established before the statement of the agent can be relevant as an admission.

Partners of a firm are agents of each other and of the firm. Therefore, an admission made by one partner in conducting any transaction of the firm is evidence against the firm and its other members (section 18, para 1). Further such an admission will also be admissible under clause (1) of the third paragraph of section 18, being made by persons having a proprietary or pecuniary interest in the subject matter of the proceedings. In the same way, the manager of a joint Hindu family is the agent of other members and has the authority to do acts for their common necessity or benefits and in the absence of fraud or collision his acts are binding on other members of the family. under section 30, An admission by an agent is no evidence in criminal cases except when the confession of an agent may be admissible against the principal if both are being jointly tried for the same offence.

Admissions by pleader, counsel or solicitor Admissions of a counsel or pleader on a point of law cannot bind the party, but admissions of the fact made by a pleader on his client's behalf are binding on the

client. representative character (3) Parties suing or sued in a When a party sues or is sued in a representative capacity, e.g., as a trustee,

executor or

administrator or the like, his representative capacity is distinct from his ordinary capacity, and only admissions made in the former capacity are receivable whereas statements made betore he acquired the representative character are

inadmissible.

(Wigmore, S. 1076).

(9 Admissions by persons who have any proprietary or pecuniary interest They must be made during the continuance of such interest. An admission made by one of several parties in fraud of others-jointly interested will not bind others. 1.

Govindji Jhaver v. Chhotalal Velsi, 2 Bom LR 651.

102

The Indian Evidence Act, 1872

Sec. 18

(5) Admissions by persons from whom the parties to the suit have derived their interest A tenant derives a title from the landlord. Such admissions are relevant if made during the continuance of the interest of the persons making the statement. Admissions of one person are also evidence against others in respect of privity between them. According to this clause there must be privity, i.e., mutual or successive relationship to the same

right of property. In Mariam Hussain v. Syedani,' the Karnataka High Court has observed that statements made by the parties to the proceedings or their agents are admission in the suit. However, in order to become admissions, the party should be a person interested in the subjectmatter. The statement should be made in their character as persons so interested, then Before the Court can act on the statement is an that the said statement of a party to the proceedings and in holdin has proprietary admission, the said statement should have been made by a person who

only their statements could be treated as admissions.

interest or a pecuniary interest in the schedule property on the date of the statement. statement made by a person after parting with his interest in the schedule property so as to harm the interest of the person who owns the property on the date of the statement, cannot be treated as admission. If on the day the statements were made he has no pecuniary or proprietary interest, the said statement cannot be treated as admission under section 18 of the Act. It would be manifestly unjust that that a person, who has parted

with his interest in property, should be empowered to divest the right of another claiming under him, by any statement which he may choose to make. Otherwise it may encourage dishonesty, and the legal proceedings would lose its solemnity. "During the continuance of interest" mentioned in section 18 only means while the interest was subsisting and before that interest was parted with. Admission in order to be relevant must be made during the continuance of the interest of the person making them. Statements by person from whom the parties have derived interest are admissible only when the admissions are of a date prior to the date of transfer. A purchaser is not bound by an admission of his vendor subsequent to the purchase. The Court, in Chironjilal v. Khaton Bi2 held that under section 18 of the Evidence Act, the admission of a person could be an admission only if it would be made during the continuance of his interest but once he has parted with his interest in the property his admission is not admissible. That would be manifestly unjust that a person who has parted with his interest in property should be empowered to divest a right of another claiming in him by any statement which he may choose to make subsequently. 4. Privies Privies are distributed in several classes according to the manner of their relationship: (1) Privies in blood, as heir and ancestor, and coparceners, (2) Privies in law, as executor to testator; or administrator to the intestate etc., (3) Privies in estate or interest, as donor and donee, lessor or lessee joint tenants etc. (Taylor, section 787). 9rtt The grounds upon which admissions are evidence against those in privity with the party making them are that they are identified in interest. The two clauses in the third paragraph are not mutually exclusive. The first includes all those mentioned in second and the other persons in addition.

5. Statement of Admission in Judgment A statement in a judgment or order as to what had takern place in court is conclusive and an aggrieved party should apply to the same judge for review. Appellate court cannot wipe out the effect of admission on considering the evidence on record." 1. 2007 AlHC 2272 (2286-2287) (Karn) (para 44). 2. 1995 (1) Civ LJ 216: 1994 MPLJ 923: AIR 1995 MP 238 (para 11). 3.

Timmalpathi

v. Sakalchand, (1951) 1 MLJ 244.

4. GangadharDas v. GadadharDas, AlR 1986 Ori 173.

V

Sec. 20]

103

Of the Relevancy of Facts

6. Admission made on Behalf of the State The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to reside from his admission at a subsequent stage of the

same proceedings, it is also trite that an admission made contrary to law shall not be binding on the State.

19. Admissions by persons whose position must be proved as against party to

suit.-Statements made by persons whose position or

liability, it is necessary

to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or

liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.

Ilustration A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owed B rent is an

1

admission,

and is a

relevant

fact as

against A, if A denies that C did owe rent to B. SYNOPSIS 1.

Principle

2. Scope

Comments 1. Principle

Statements of persons who are strangers to the suit are in general not admissible as admissions. Sections 19 and 20 are the two exceptions to the general rule contained in section 18 and they indicate when and under what circumstances admissions by strangers are receivable. The admissions by third persons are sometimes known as occasions admissions. The object of this section is not to lay down that certain sections are relevant and admissible but to add to the category of persons whose statements might amount to admissions. The section gives another instance of statements made by a third party and yet classed as admissions. 2. Scope

In order to be admissible under this section a statement must satisfy the evidentiary requirements of sections 17 and 18. When a statement falls under the terms of this section it becomes by reason of section 21, provable against and not in favour of the party against whom the position or liability of the maker of the statement is necessary to be

proved in the suit. The llustration to this section shows the liability of A to B being dependent on the liability of C, a stranger, the admission of his liability by C, which against his own interest, is relevant in the matter of proof of A's liability to B. Thus, where the liability of an agent to his principal depends upon the liability of a

third party with whom the agent contracted on the principal's behalf, any statement by the third party about his position is an admission against the parties

20. Admissions by persons expressly referred to by party to suit.-Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration The question is, whether a horse sold by A to B is sound. A says to B"Go and ask C. C knows all about it".

C's

statement

admission. 1. State of Haryana v. M.P. Mohla, (2007) 1 SCC 457 (465) (para 25) 2. Sivalingam v. Sakthivel, AIR 1989 Mad 252: (1989) 1 DMC 420: (1988) 102 Mad LW 348.

is an

104

The Indian Evidence Act, 1872

Sec. 20

SYNOPSIS 1.

Principle

3.

2. Scope

Admissions Cases

by

Referee

in

Criminal

Comments 1. Principle This section contains the second exception to the general rule laid down in section 18, and states that admissions by referees, i.e., strangers are admissible. If a man refers another upon any particular business to a third person, he is bound by what the third person, i.e., referee says or does concerning it as much as it that had been said or done by himself. The reason is that when a party refers to another person for a statement of his views, the party approves of his utterances in anticipation and adopts that as his

own. The principle is the same as that of reference to

arbitration.

2. Scope

It is immaterial whether the referee has or has not any peculiar knowledge on the subject or whether the reference is made expressly or by conduct evincing an intention to rely on the statement as correct. (Phipson Evidence, 6th Ed., p. 252). In the English Law admissions by referees on matters of law are as much provable as those on matters of fact, but the definition of an admission in section 17 that anadmission of Law would, it is apprehended, must relate to a matter of fact and not to a matter

make such admissions inadmissible in India. Admissions by referees are relevant but not conclusive, unless they fall within therule of estoppel enacted in section 115 of the Act, or the reference amounts to an adjustment of a pending suit, or to an admission in pleadings. In the case of an admission under section 20 it may also be shown like all other admissions that it was made by mistake

or it is untrue or fraudulent. 3. Admissions by Referee in

Criminal Cases The rule which makes admission by a referee admissible against the referee, applies

to criminal cases as well. Thus, where the accused told a constable that his wife would make out a list of certain property, a list afterwards made out by her was held admissible

against her husband. According to section 20 of the Evidence Act, if a party to a suit agrees to be bound by a statement of fact made by a third party, the statement of that third party when made, is to be treated as an admission by the party who made the offer and if both the parties agree to refer a matter to a third party his statement will be binding on both

the parties." The compromise arrived at between the counsel for the plaintiff on behalf of his client and the defendant-appellant would be covered by section 20 of the Evidence Act and the plaintiff would be bound by the statement made by the defendant on the two crucial issues if the same is found to have been made strictly in accordance with the

terms offered by him.*

21. Proof of admissions against persons making them, and by or on their behalf.-Admissions are relevant and may be proved as against the person

who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases: 1.

S. Bhattacharjee (1957) 1 Cal 7.

v.

Sentinel

Assurance Co. Ltd.,

AIR

1955 Cal 594: (1956) 26 Com Cas 1: ILR

2. R. v. Mallary, 13 QBD 33; Phipson Evidence, 6th Edn. (253). Suraj Kaur v. Soni Dutta, (1976) 78 Punj LR 46 (54) (P&H). 4. Thakur Singh v. Inder Singh, 78 Punj LR 601: ILR (1977) 1

(290).

P&H 512: AIR 1976 P&H 287

Sec. 21

(1)

105

Of the Relevancy of Facts

An

admission

may be proved

by or on behalf of the person

making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct

rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Ilustrations (a) The

question

between A and B is, whether a certain deed is or is not forged,

A affirms that it is genuine, B A may

that it is forged.

prove a statement

by B that the deed is genuine,

and B may prove a

statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged. (b) A, the Captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2). (c)A is accused of a e ommitted by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and

bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2). (d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are

explanatory of conduct influenced by facts in issue. (e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skilful

doubted whether it was counterfeit

person to examine the coin, as he

or not, and that the person did examine

it and

told him it was genuine. A may prove these facts

for the reasons stated in the last preceding illustration. SYNOPSIS

1.

Principle

2.

Scope

3. Analysis of the Section makes them 4. As against the Person who 5. His Representative in Interest 6. Exceptions

(a) Clause (1): Statements relevant under section 2 (b) Clause (2): Statement as to existence of state of mind or body c)Clause (3): Statements relevant otherwise than as admissions 7. Effect of Admissions

Comments 1. Principle Sections 17 to 20 define

admissions. The present section makes admissions relevant

and provable. The role of law with respect to self-regarding evidence is that when in

106

The Indian Evidence Act, 1872

Sec. 21

the self-serving form it is not in general receivable, but that in the self-harming form, it is, with few exceptions, receivable and is usually considered proof of a very satisfactory kind. As a general rule, man shall not be allowed to make evidence for himself. But on the other hand universal experience testifies that, as men consult their own interest and seek their own advantage whatever they say or admit against their interest oradvantage may with tolerable safety be taken to be, true as against them, at least, until the contrary appears. (Best, section 518). Not only would it be manifestly unsafe to allow a person to make admissions in his own favour which should affect his adversary but, also such

evidence has, if any, but a very slight and remote probative force. As a general rule,

claiming made it.

admissions

made by a man are evidence against him and those through him and an admission cannot be proved on behalf of the person who

2. Scope Sections 18 to 21 apply to both civil

and criminal cases. The principle laid down in section 21 is subject to the exclusionary rules in sections 24 to 26 of the Evidence Act and section 162, Cr. P.C. If the statement is not hit by sections 24 to 26 it will be admissible under section 21 which makes all admissions, whether amounting to confessions or not, admissible. A statement made by a person to the police is admissible, at his trial as an admission, if it does not amount to confession, and is not made in the course of an investigation under Chapter XIV of Cr. P.C. The accused went to a police station and lodged a First Information Report of a murder, narrating the events preceding the commission of the offence and stating further how the offence was committed. It washeld that the narrative ofthee antecedent events was admissible as admissions not amounting to confessions. Illustration (c) is an instance of this rule. In the case of Sardul SinghCaveeshar v. State ofBombay it was held that letters written by the accused, if true, were relevant under this section, but are of course evidence against themselves.

3. Analysis of the Section The section contains three

propositions:

(1) An admission is relevant and may be

proved against the author of it and his representative in interest [See Illustration (a)]. (2) Generally an admission cannot be proved by or on behalf of the maker, or by his representative in interest [See illustration (a)]. (3) Admissions can be proved by the maker or on his behalf or by his representative only under the three following circumstances: (a) When it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32 [See llustrations (b) and (c)] (b) When it consists of a statement of the existence of any state of mind or body made at or about the time when such state of mind or body existed and is accompanied by conduct rendering its falsehood improbable. [See Tllustrations (d) and (e)]. (c) When it is relevant otherwise than as an admission. [See Ilustrations (d) and

(e). In

lustrations

(b) to (e) there is

some ground

of probability

that the statement is

true. 4. As against the Person who makes them The expression means as against the person by or on whose behalf they are made. Thus where an admission is made by a referee or by the agent of the party or by aperson jointly interested with a party, the admission is provable, as against the party on whose 1. Legal Remembrancer, Bengal v. Lalit Mohan Singh Roy, AIR 1922 Cal 342: ILR 49 Cal 167: 22 Cr

LJ 562. 2.

AIR 1957 SC 747: 1957 SCJ 780: 1958 SCR 161.

107

Of the Relevancy of Facts

Sec. 21]

behalf it is made. The rule as regards

statements made by a person is that they may be

proved only when they are against him; otherwise a party may manufacture any amount of evidence in his own favour. 5. His Representative in Interest This expression includes all persons who are in admission or the person in whose behalf the admission was section 18). See section 47 of the Code of Civil Procedure. execution sale is in privy, with and is the representative in so as to be bound by the latter's admission

privity with the maker of the made. (See commentary on The purchaser at any ordinary interest of the judgment-debtor

6. Exceptions

Admissions cannot be proved by or on behalf of the person who makes them. Because a person will always make statements that are favourable to him. There are these exceptions to this principle. Admissions in favour of the maker are received on the principle of necessity or unavailability as the person being dead or not available, and no better evidence can be had. (a) Clause (1): Statements

relevant under section 32

This clause contains the first exception. Statement falling

within any of the eight

clauses to section 32, become admissible under that section, if their maker is dead or is not otherwise available as a witness. Where the statement is against the interest of the maker of the statement, apart from section 32, it is provable as an admission even during the life time of the maker under the first para of section 21. The first exception in section 21 provides that a statement is admissible even in favour of its maker and during his life time, if on the death of the maker, it would be admissible under any of the clauses of section 32. See

illustrations

(b) and (c).

Statements as to the date of birth of a person contained in his deposition and in his affidavits are admissible under section 21(1) read with section 32(5), if made by a person having special means of knowledge, whether personal or hearsay.

(b) Clause (2): Statement as to existence of state of mind or body This clause contains the second exception, to the effect that when the existence of a state of

mind

or body is a fact in issue or

relevant

fact, any fact may be

proved

which shows the existence of that state of mind or body. Section 14 merely declares that such facts are relevant. The present clause shows that such facts or statements may be

proved on behalf of maker, notwithstanding the general rule that persons evidence for themselves by what they choose to say (Norton). However, sought to be given in evidence in favour of the declarant they must be been accompanied by conduct rendering their falsehood improbable. See

cannot make when they are shown to have illustrations (d)

and (e).

(c) Clause (3): Statements

relevant

otherwise

than as admissions

This clause contains the third exception. This exception provides that

the facts which

are admissible under sections 6 to 13 will not be rendered inadmissible because they may be proved on behalf of the person making them. Illustrations (d) and (e) illustrate

this exception. Thus, entries in books of accounts regularly kept are admissible under section 34, even if they amount to admissions in one's own favour. Thus, the fact which is relevant

under

clause (1) of section 8 and clause (1) of section 11 as

inconsistent

with relevant fact, e8, the establishment of a prisoner's innocence by circumstances incompatible with the facts on which his guilt has been sought to be proved or under section 14, as evidencing intention, knowledge or good faith shall not be rejected simply 1. Ramani Pershad v. Mahant Adaiya, 31 C 380. 2. Ishan Chunder Sirkar v. Beni Madhub Sirkar, 1 Cal WN 36: ILR 24 Cal 62 (FB).

3. Ramanathan Chetty v. Murugappa Chetty, AIR 1917 Mad 930: 33 IC 969.

108

The Indian Evidence Act, 1872

Sec. 221

because it assumes the form of admission by the party who made it. Declarations of predecessor in title may be receivable in favour of their successors otherwise than as admission, e,g., as part of acts of ownership under section 13. Normally a statement in the judgment of a court must be accepted to be true unless

it is properly challenged. Even mere incorporation of a ground in the memorandum of appeal has been held not to constitute a sufficient challenge to the correctness of such

a statement.'

7. Effect of Admissions The effect usually given to admissions proved against persons who make them is destructive and not constructive. Whether they are true or not does not matter. In effect

they destroy the force of inconsistent statements made subsequently. An admission is not conclusive as to the truth of the matter stated therein. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel." It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses Where a court passed a decree on the basis of a compromise

between A and B and

A alleged that the compromise deed was not signed by him, the burden of proof is on A to prove that he was not a signatory. A self-serving admission is not admissible in evidence, unless it comes within any of the exceptions under section 21 of the Evidence Act. This admission does not come within the ambit of section 21, and is, therefore inadmissible in evidence.

22. When oral admissions as to contents of documents are relevant. Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is

in question. */22A. When oral admissions as to contents of electronic records are relevant.-Oral admissions as to the contents of electronic records are not

relevant,

unless the genuineness of the electronic record produced is in

question.] SYNOPSIS 1. Principle

2. Scope

Comments 1. Principle The general rule is that the contents of written instrument which is capable of being produced must be proved by the instrument itself and not by parol evidence. [Taylor, section 396]. 1. Nrusinghanath Deb v. Banamali Panda, AIR 1970 Ori 218 (221). 2. Ram Naresh v. Board of Revenue, Uttar Pradesh, 1986 ALJ 157. 3. Nagubai Ammal v. B. Shama Rao, 1956 SCR 451: AIR 1956 SC 593: (1956) SCC 321; See also K.S. Srinivasan v. Union of India, 1958 SCR 1295: AIR 1958 SC 419: 1958 SCJ 777. 4. Suraj Mal v. State (Delhi Administration), AIR 1979 SC 1408 (1409): 1979 Cr LJ 1087: (1979) 4 SCC 725. 5. Munji Singh v. Kalawati, 1984 ALJ 390. 6. Jagabandhu Senapathi v. Bhagu Senapathi, (1973) 1 CWR 809: ILR 1973 Cut 553: AIR 1974 On 120 (126). 7. Krishnawati v. Hans Raj, AIR 1974 SC 280 (283): 1975 (1) SCJ 87: (1974) 2 SCR 524. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Sec. 23]

109

Of the Relevancy of Facts

2. Scope

The contents of a document must be proved by the production of the document, unless secondary evidence of its contents is admissible under section 65 of the Evidence Act. Oral admissions as to the contents of a document are merely secondary evidence Section 63(5)], therefore, consistent with section 65 this section provides that oral evidence of the contents of a document is inadmissible unless (1) party proposing to give such section 65(2) evidence can make out a case for admission of secondary evidence under or the genuineness or forgery of the document itself is in question. the contents In the English Law, a party's parol admissions are receivable to prove of a document without notice to prove or without accounting for the absence of the original. This rule of the English Law is not followed in the Indian Evidence Act which makes section 22 definitely an improvement upon the English rule.

23. Admissions in civil cases, when relevant.-In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. in this section shall be taken to exempt any Explanation.-Nothing barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126. SYNOPSIS 1. 3.

Principle Without Prejudice

2.

Scope

Comments 1. Principle

This section protects admissions marked without prejudice'. Confidential overtures of pacification and any other offers or propositions between litigating parties, expressly or impliedly made 'without prejudice' are excluded on grounds of public policy. Without this protective rule it would be often difficult to take any steps towards an amicable compromise or adjustment, Lord Mansfield has observed that all men must be permitted to buy their peace, without prejudice to them, should the offer not succeed, such offers being made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, on being sued for £ 100, should offer the plaintiff £ 20 and at the same time such offer was 'without prejudice' this is not admissible in evidence, for it is irrelevant to the issue. It neither admits nor ascertains any debt and is no more than saying that he would give £ 20 to be rid of the action. 2. Scope

The section provides that in ivil cases an admission is not relevant when it is made (1) upon an express

condition

that evidence of it is not to be given, or (2) under

circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given ut sit finis litium (it is for the interest of the State that there should be an end of litigation). The section applies to civil as well as criminal cases. 3. Without Prejudice The section protects communications marked 'without prejudice'. The expression means without prejudice to the author of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted, a complete contract is established

not the letter although written 'without prejudice operates to alter the old state of things and to establish a new one. But if the

compromise

is not accepted the letter

marked

without prejudice' cannot be admitted in evidence, without the consent of the other side, in which case the privilege will be deemed to be withdrawn. The reply to a letter marked 1. Abbas Pedda v. Q.E., 25 Cal 736.

110

The Indian Evidence Act, 1872

Sec. 23

without prejudice' cannot be admitted in evidence, even though not expresslyendorsed as 'without prejudice'. The words once used will exclude the entire correspondence. Where the plaintiff, to save limitation, relied upon a postcard, written by the defendant without prejudice' in which he promised to pay Rs. 30 and acknowledged his liability to pay any sum that may be due, the postcard was held to be inadmissible unde this section. The rule excluding communications marked 'without prejudice' is notattracted unless some person is in dispute or negotiation with another and terms are offered for

the settlement thereof2 In civil cases no admission is relevant if it is made in the circumstances from which the court can infer that the parties agreed together that the evidence of it should not be given.3 Admissions before an arbitrator are not excluded under this section unless theywere

made on the express condition that

they would not be given in evidence.

Explanation.-Professional communicatiorns made by a client to his legal advisor are generally protected from disclosure (Section 126). But a legal adviser can be compelled

by the Court to give evidence of any communication made in furtherance of any illegal purpose or to any facts observed by the legal adviser showing that any crime, fraud has been committed since the commencement of his employment (Section 126).

24. Confession caused by inducement, threat or promise, when irrelevant in

criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,* having referenceto proceeding from a person in authority the charge against the accused person, and sufficient, in the opinion of the Court, to give the accused persongrounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. SYNOPSIS 1. Principle 2. Scope 3. Conditions

16. Test of Admissibility of Confession 17. Test of Exclusion of Confession for

Relevancy

of

18.

4. Confession 5. Judicial Confession 6. Mere Conduct is not a Confession 7. Exculpatory Statements are

Confessions 8. Statement Partly

Inculpatory

not

Article

20(3)

and Partly

9. Acknowledgment of Subordinate Facts 10. Classes of Confession 11. Confession not made to Police Officer 12. Confession and Admission

of the

Burden of Proof Effect of Section 80 Retracted Confession

22.

The

Rule

of

Prudence

in the Cases of

25.

Confession

Extra-judicial

Extra-judicial Delay

in

Recording 26.

Recording of Confession by Magistrate in

his Private Capacity

13.

Admissibility of Confession

14.

Omission to Obtain the Signature of the

27. 28.

Maker Recovery of

19. 20. 21.

Retracted Confession 23. Extra-judicial Confession Value of 24. Evidentiary Confession

Exculpatory

Confession

and

Constitution

Confession

15.

Confession

Uncorroborated Extra-judicial Confession Extra-judicial Confession to Establish

Guilt

Articles

1. Madhavrao Ganesh Pantore v. Gulabbhai Lallubhai, 23 Bom 177. 2. Bhanjaram v. E., 11 CWN XXVI (n). 3. Ram Murti Devi v. Reoti Saran, 1984 AWC Supp 243; Surjit Kaur v. Gurcharan Singh, AIR 1973

bT

Punj 18 (19): 1972 Cur LJ 577: 74 Punj LR 726. prohibition of such For (2 of 1974), section 316.

inducements,

etc., see the

Code

of

Criminal

Procedure, 1973

Sec. 24]

29. Discrediting Testimony of Witness 30. Confessional Statement 31. Confessional Statement under Threat and Pressure

32. Judicial or Extra-judicial

Confession

33. Proof of Judicial Confession

34.

Expression

"Evidence"

36. Confession and Indian Constitution 37. Word 'Appears' 38. Caused by any

Instead

of

"Confession"

Inducement,

Threat or

Promise 39. Having Reference to the Charge 40.

Credibility- When Magistrate Used

the

35.

111

Of the Relevancy of Facts

The Accused Person

41. Person in Authority

Temporal Nature 42. Confession under TADA 43.

Evidentiary Value of Confession

Comments 1. Principle

A confession is a kind of admission. It is as such relevant, but under certain circumstances is declared to be irrelevant, as under section 24 when it is caused by inducement, threat or promise. Thus section 24 enacts a rule of exclusion to the relevancy of confession. It is a rule of policy (Taylor). A confession is received in evidence on the presumption that no person will voluntarily make a statement which is against his interest, unless it be true. It is excluded from evidence if it is vitiated by inducement, etc. because the force of a confession

depends upon its voluntary character. Wigmore says such confession is untrustworthy as testimony. According to Phipson the ground of rejection of such confession is the

possibility of the prisoner having been induced by hope or fear to eliminate himself falsely. Such a tainted confession is rejected not because law is afraid of having truth

elicited, but because the law is jealous about not having the truth.' Another

and

more sensible reason for the rule is the danger

of

encouragement

to

the police and other persons engaged in the pursuit of evidence to extort confession by torture, etc., in the hope of professional advancement (Taylor). 2. Scope

In India the substantive law of confession is contained in sections 24 to 30 of the Evidence Act, while the adjective law is found in sections 163, 164, 364, 533 of the Code of Criminal Procedure. Sections 24 to 26 1lay down when confessions are not relevant, i.e., provable. While sections 27 to 29 are limitations to their operation. Section 24 excludes

confessions obtained by inducement, etc. Section 25 bars al confessions made to police officers under any circumstances, whether voluntary or involuntary, while section 26 shuts out confessions made in police custody, except those made in the presence of a

Magistrate. 3. Conditions for Relevancy of a Confession (1) It must not be caused by inducement, threat or promise (Section 24). (2) It must not be made to a police officer (Section 25), subject to the provisions of section 27.

(3) It must be made in the immediate presence ofa Magistrate when the accused is in the custody of police officer (Section 26). (4) It must be made after the impression, caused by any inducement, etc., has been

fully removed (Section 28). (5) The confession of an aceused is relevant only against himself, subject to section 30.

An unambiguous confession, if admissible in evidence and free from suspicion of falsity is a valuable piece of evidence possessing a high probative force. 1. Per William, J. in R. v. Mansfield, (1881) 14 Cox CC 639. 2. See now Criminal Procedure Code, 1973. 3. Thimma v. State of Mysore, AIR 1971 SC 1871: 1971 Cr LJ 1314: (1971) 1 SCR 215.

112

The Indian Evidence Act, 1872

Sec. 24

A person against whom an accusation, is levelled would, therefore, be an accused

person. 4. Confession What a "confession" is, is a very relevant question. The expression has not been defined in the Evidence Act. Stephen in his Digest of the Law of Evidence' (Article 21) defines it thus: "A confession is an admission

made at any time by a person charged

with crime, Stating or suggesting the inference that he committed that crime" The words "suggesting the inference that he committed that crime" create some difficulty and confusion in realizing the true import of the expression. This difficulty and confusion has been warded off by Lord Atkin in Pakala Narayana Swami v. Emperor? thus: "...no statement that contains self-exculpatory matter can amount to aconfession, if the exculpatory statement is of some fact which if true would negative the offence

alleged to be confessed.

Moreover, a confession

must either admit in

terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver, which caused a death with no explanation of any other man's possession is not a confession even though it strongly suggests that the accused has committed the murder. Some confusion appears to have been caused by the definition of confession in Article 21 of the Stephen's Digest of the Law of Evidence,

which defines a confession as an admission made at any-time by a

person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the with admissions generally, is applying himself to learned author, after dealing admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles confession secured by inducement, made upon oath, made definition is not contained in the Evidence under a promise of secrecy. The Act, 1872; and in that Act it would not be consistent with the natural use of language

to construe

confession

as a statement

by an accused

"suggesting the

inference that he committed the crime."

According to Wigmore: "A confession

is an

acknowledgment in express words, by the accused in a

criminal case, of the truth of the guilty fact charged or of some essential part of it. It is to this class of statements only that the present principle of exclusion

applies.3 The Supreme Court of India has followed the Privy Council in the leading case of Palvindar Kaur v. State of Punjab,* Mahajan, J, has observed "The confession must either admit in terms the offence or at any rate, substantially all the facts which constitute the

offence. The admission of gravely incriminating fact, even conclusively incriminating fact is not by itself a confession. The statement that contains self-exculpatory (self-defending) or other matter cannot amount to a confession, if the exculpatory statement is of thesame facts which, if true, would negative the offence alleged to be confessed. The statement which when read as a whole is of exculpatory character and in which the prisoner denies his guilt is not confession, and cannot be used in the evidence to prove his guilt." 1.

Narendra

Narottamdas

Kapadia

v.

Central

Bureau

of

Investigation,

(1982) 1

Bom CR 1

(161-162). 2.

AIR 1939 PC 47 (52): 40 Cr LJ 364: 66 IA 66.

3. 4.

Khagesuar Khatna v. State, 1993 Cr LJ 2374: 1993 (1) Crimes 84: 1993 (1) Ori AIR 1952 SC 354: 1953 SCR 94: 1952 SCJ 545: 1953 Cr LJ 154.

LR 37 (Ori).

Of the Relevancy of Facts

Sec. 24]

113

Hence, three things fall outside the pale of a confession: (1) guilty conduct, (2) exculpatory statements, and

(3) acknowledgment of subordinate facts, colourless with reference to the actual

guilt (Wigmore). In Ajay Singh v. State of Maharashtra,' the Supreme Court reiterated that "confession" is a statement made by an accused which must either admit in terms of the offence, or

at any rate substantially all the facts which constitute the offence. The word "Statement" includes both oral and written statement. Communication to another is not however an essential component to constitute a "Statement". An accused might have been overheard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note writing. All the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted

upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time-to-time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of

the confession; (ii) truthfulness of the confession; (ii) corroboration. Confessions may be divided into two classes i.e., judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course

of

judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court." 5. Judicial Confession

A Judicial confession undoubtedly is admissible in evidence. It is a relevant fact. A judgment of conviction can also be based on a confession if it is found to be truthful, deliberate and voluntary and if clearly proved. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged on the basis of the entire prosecution case. In State (NCT of Delhi) v. Navjot Sandhu,5 the Supreme Court observed that the

confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession, be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in 1.

AIR 2007 SC 2188: 2007

AR

SCW 3845: (2007) 12 SCC 341 (346) (para 10); see also Shiva

Karam Payaswami Tewar v. State of Maharashtra, AIR 2009 SC 1692: 2009 AIR SCW 1226: (2009) 1 SCALE 717.

2. Aloke Nath Dutta v. State of West Bengal, (2006) 13 SCALE 467: (2007) 12 SCC 230 (265)

(para 87). 3. State of Punjab v. Harjagdev Singh, 2009 AIR SCW 4133: (2009) 8 SCALE 568: AIR 2009 SC 2693 (2694) (para 7). 4. 5.

Babubhai Udesinh Parmar v. State of Gujarat, AIR 2007 SC 420: 2007 Cr LJ 786: (2006) 12 SCC

268 (273) (para 12). AIR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600; See Mohtesham Mohd. Ismail v.

Spl. Director Enforcement Directorate, (2007) 8 SCC 254: AlR 2007 SC (Supp) 1656. A

114

The Indian Evidence Act, 1872

Sec. 24

an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognising the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a confession made to a police officer. The court in Mohd. Azad v. State of West Bengal, it has been observed that confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest

credit, because it is presumed to flow from the 6. Mere A

highest sense of guilt.

Conduct is not a Confession contession

is a species of

admission.

It is

defined

in

section 17 as an oral or

documentary statemernt. Hence it follows that mere conduct like absconding is not a contession. To amount to a confession, the act or conduct must amount to an assertion. What is not an assertion is only a circumstantial piece of evidence. Giving a specimen of one's writing on a blank paper for comparison of hand-writing is neither a confession nor a statement.? 7. Exculpatory Statements are not Confessions A confession being an admission made by a person stating that he committed the crime, exculpatory statements denying guilt are not confessions, and therefore, not within the present rule of exclusion. Thus, where an accused admits the killing, but asserts that it was done in

statement

self-defence is not a confession.

denying the larceny but

Nor a statement

showing an alibi or a

admitting the possession and accounting for it is a

confession

In Paloindar Kaur's the accused was charged for murdering her husband,by administering potassium cyanide. In her confession the accused stated that she had kept the potassium cyanide which was a material for developing photos in the almirah by the side of the medicine bottle of the deceased and that the deceased took the potassium cyanide by mistake. The High Court accepted her inculpatory statement, viz., that she had kept the potassium cyanide bottle but rejected the exculpatory part, viz., taking it by the deceased through mistake. Mahajan, J., observed, "The Court thus accepted the inculpatory part and rejected the exculpatory part. In doing so, it contravened the well-accepted ruling regarding use of confession and admission that it must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. (See also Om Prakash v. State of Uttar Pradesh).5 1. AIR 2009 SC 1307 (1313) (para 21): 2009 AIR SCW 752: (2008) 14 SCALE 52 2. E. V. Ramarao Mangesh Burde, AIR 1932 Bom 406: ILR 56 Bom 304: 33 Cr LJ 666. 3. Wigmore (Section 821) Gopal v. Crown, 51 Cr LJ 786: AIR 1950 HP 18. 4. Paloindar Kaur v. State of Punjab, AlR 1952 SC 354: 1953 SCR 94: 1952 SCJ 545: 1953 Cr 154. 5.

AIR 1960

SC 409: 1960 Cr LJ 514.

115

Of the Relevancy of Facts

Sec. 24]

Thus, the statement made by the accused containing an exculpatory matter which if accepted would absolve him from all liability, cannot amount to a confession." It is enough that whole of the confession is tendered in evidence so that it may be open to court to reject the exculpatory part and accept the inculpatory part if there is other evidence to prove its correctness In Aghnoo Nagesia v. State of Bihar the Supreme Court held that a statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him. The whole of it should be

tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. The Court further held that a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-contessional

statement. Each part discloses some

incriminating

fact, i.e., some fact

which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only

that admission but also, every other admission of an incriminating

fact contained in the

statement is part of the confession.

8. Statement Partly Inculpatory and Partly Exculpatory No doubt when the accused makes a statement regarding any fact which is partly inculpatory and partly

exculpatory, the Court is bound to consider the statement as a

whole. Murder confession made by the accused to police at the time when he was under arrest, that he had committed murder is clearly inadmissible in evidence.* However, when the statement of the accused covers two different and independent facts, it is open to the it as to another

Court to accept the statement so far as it relates to one fact and to reject

fact which is proved beyond doubt by the prosecution evidence. In Vijendrajit Ayodhya Prasad Goel v. State of Bombay5 the accused was charged under section 66 (b) read with section 81 of the Bombay Prohibition Act for possessing in his godown rectified spirit

without permit. 9. Acknowledgment of Subordinate Facts By reason of the decision in Narayanswami'sô and Paloindar Kaur's it is now wellsettled that acknowledgment of a subordinate fact not directly involving guilt is not a confession. Thus, the mere admission of a person's presence at the time and place of the crime by itself is not a confession." The correct test to determine whether a statement is an

admission

or a confession

is to examine

the

statement as a

see whether it amounts to an admission of guilt or of substantially

whole.

and to

all the facts which

constitute the offence. If it does, it is a confession. If it does not, it is not" It is only when 1. Jaya Singh Madakami v. State of Orissa, 1986 Cr Ly 117: (1985)1 2. Kustu Balsu v. State, 1986 Cr LJ 662 (689). 3.

Ori LR 627.

(1966) 1 SCR 134: AIR 1966 SC 119: 1966 Cr LJ 100.

4. Yash Pal v. State of Uttar Pradesh, 1988 ALJ 85 (DB). 5. 1953 SCJ 328: AIR 1953 SC 247: 1953 Cr J 1097. 6. Pakala Narayana Swami v. Emperor, AlR 1939 PC 47 (52): 40 Cr LJ 364: 66 IA 66. 7. Paloindar Kaur v. State of Punjab, AIR 1952 SC 354: 1953 SCR 94: 1952 SCJ 545: 1953 Cr LJ 154.

8.

Allah WNarayo v. Emp., ILR

1939 K 800.

.Queesn Empress v. Jagrup, ILR (1885) 7 All 646: 1885 All WN 131.

116

The Indian Evidence Act, 1872

Sec.

24

an accused speaks with an animus confitendi that his utterance becomes a confession. Thus, a statement which is not a plenary admission of guilt is not a confession even when it suggests an inference of guilt and is not sufficient in law to sustain a conviction.

10. Classes of Confession ed into two A confession may be oral or documentary. Confessions may be classes: Judicial and extra-judicial. A judicial confession is that which is made before the Magistrate or in Court, in the due course of legal proceedings, eg., that which isrecorded under sections 164 and 364 of the 'Code of Criminal Procedure. A confession which is proceedings is an extra-judicial neither made to a Magistrate nor in the course of legal confession. It is an admission under section 21. A confession made before a Magistrate, in his private capacity is an extra-judicial confession, admissible when proved by the person to whom it was made.2 A confession made to the police, if overheard by other persons present does not make it an extra-judicial confession. 11. Confession not made to Police Officer The Supreme Court has observed that the power conferred by section 164 of the Criminal Procedure Code could be exercised only by a Judicial Magistrate. Even a police officer on whom power of a Magistrate has been conferred is forbidden from recording a confession.

Sub-sections (2) and (4) deal with

procedure

which such Magistrate has

to follow while recording inculpatory statements made by persons. Confession made to a Police Officer can be recorded by him without any of the constraints incorporated in section 164 of the Code but the same is forbidden from use in evidence. The ban contained in section 25 of the Evidence Act is an absolute ban. There is no such ban in regard to a confession made to any person other than the police officer except when such confession was made while he was in police custody. The inculpatory statement made by any person under section 108 of the Customs Act is to a non police personnel

and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. The Court has to be satisfied in such cases that any inculpatory statement made by an accused person to a Gazetted Officer must also pass the tests prescribed in section 24 of the Evidence Act. If such a statement is vitiating premises enumerated in section 24, Evidence Act, that impaired by any of the statement becomes useless in any criminal proceedings. The Supreme Court has held that a statement recorded by Customs Officer under section 108 of the Customs Act is admissible in evidence. The Court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any premises envisaged in section 24 of the Evidence Act. Such an exercise can be made only after the appeal is regularised by granting leave to appeal and since in the present case leave was declined on a wrong

interpretation of law the impugned 12. Confession

order had to be interfered with3

and Admission

(See commentary

on section 17).

13. Admissibility of Confession A confession can be accepted only if it is voluntary as well as true. If thecircumstances of the case throw any doubt on its voluntary character the confession must always be rejected. A confession if proved satisfactorily, to be voluntary and genuine, is legal

and sufficient proof of the guilt

of the accused, without

corroboration, but ordinarily

the practice is to require some support for a confession, some corroboration from facts established outside the confession, and receivable consistently with the surrounding circumstances, about which there is no doubt. 1. See now 2.

R. v.

3.

Assistant

Criminal

Gopinath,

Procedure

Code, 1973.

13 WR 69.

Collector,, Central Excise v.

(Cri) 1275: AIR 2000 sC 2901: 2000

Duncan

ELT 280.

Agro

ndustries

Ltd., (2000) 7 SCC 53: 2000 SCC

117

Of the Relevancy of Facts

Sec. 24]

There is a common

thread in the scheme of admissibility

of

admissions/confessions

under the Indian Evidence Act, 1872, namely, that the admission/confession is admissible only against the person who had made such admission/confession. Notionally, it would be inappropriate

to implicate a person on the basis of a statement made by another.

Therefore, the next logical conclusion is that the person who has made the admission/ confession (or at whose behest, or on whose behalf it is made) should be a party to the proceeding because that is the only way a confession can be used against him.

Admissibility of admissions/confessions would depend on whether they would fall in the realm of "facts in issue" or "relevant facts"2 14. Omission to Obtain the Signature of the Maker The Supreme Court observed that while recording confessional statement, if there is omissiorn to obtain the signature of accused at the end of the confession, the same is admissible and the omission made by the competent officer is curable in view of the

provision contained in section 463, Cr PC. 15. Confession - Recovery of Articles In the instant case the accused, during his interrogation, made a statement in the presence of the panchas which led to the discovery of an axe, hoe, lungi and other clothes of the deceased, but there was no evidence on record to show that these clothes belonged to the deceased. The Supreme Court did not accept the statement of the accused as a confession since the prosecution, because of lack of evidence failed to establish nexus of the articles recovered with the present crime*

16. Test of

Admissibility of Confession

For admissibility, a confession must be first shown to be voluntary. A voluntary confession means a confession not caused by inducement, threat or promise and does not mean a confession made willingly as all confessions made in consequence of inducement, etc., are voluntary in the latter sense of the term. A confession which is voluntary is admissible, even if it is false. On the contrary, a confession which is not voluntary is not admissible, however true it may be. The question whether a confession whether it is true. These two questions voluntary is a question of fact, so is the question are entirely separate from each other. The one effects the admissibility, the other the value of the confession. A confession that is voluntary is not necessarily true and conversely, a confession that is true may not be voluntary. Once a confession is rejected as involuntary, the question whether it is true or sufficient for conviction does not at all

have to be considered. An involuntary confession will be admissible in civil proceedings as admission against the 17. Test of Exclusion of If the confession is inadmissible in evidence. degree of assurance than the Act.

18. Confession and

maker but its weight will be affected due to inducement, etc. Confession shown to be made in consequence of inducement, etc., it is The use of the words 'appears to the Court' connotes a lesser what is required in the case of 'proof defined in section 3 of

Article 20(3) of the Constitution

Confession is an admission of guilt. Normally, nobody would like to as he is

fully

admit his guilt

aware that the same would be used against him. That apart,

1. State of Maarashtra v. Kamal Ahmed Mohammed Vakil Ansari, AIR

there is

2013 SC 1441: 2013 AIR SCW

1652: (2013) 12 SCC 17 (para 17.5).

2. State ofMaharashtra v. Kamal Ahmed Mohammed Vakil Ansari, AlR 2013 SC 1441: 2013 AIR SCW 1652: (2013) 12 SCC 17 (para 12). Ahmed Hussain Vali Mohammed Saiyed v. State of Gujarat, AlR 2010 SC (Supp) 846: 2010 AIR SCW 2548: (2009) 7 SCC 254 (272) (para 53) 4.

Dwarka Das Gehaumal v. State of Gujarat,

(1999) 1 SCC 57.

5.

Fatehchand v. E., 26 Cr LJ 937.

6.

Kassimuddin

7.

Nathu v. State of Uttar Pradesh, 1956 Cr LJ (SC) 152: AIR 1956 SC 56.

v. E., 62 Cal 312.

118

The Indian Evidence Act, 1872

Sec.

24

constitutional right for the accused that he shall not be subjected to any 'testimonial compulsion'. Under Article 20(3) of the Constitution, the accused person has a protection from being compelled to be a witness against himself'

19. Burden of Proof The burden of proving a voluntary or involuntary character of a confession under the English Law, lies on the prosecution. It is for the prosecution to establish that the prisoner's statement was free and voluntary and upon the accused to negative the voluntariness of the confession (Cave, J.).2 The Supreme Court of India has observed in the case of Hem Raj Devilal v. State of Ajmer3 that the principle of Thomson's case is wellsettled, but it does not mean that a mere assertion by the accused that he was threatened or tutored or that an inducement was offered to him can be accepted as true without more evidence. The suggestion must be rejected when there is no material whatsoever to hold that the prisoner was threatened or beaten, and the story of tutoring is on the face of it incredible. It is the duty of the Court to enquire very carefully into all the circumstances under which the confession was takern, and particularly the length of time during which the accused was in custody. Where the accused was kept in a lock-up to which the police had an easy access, that circumstance was held to throw a grave doubt on the voluntary character of the confession.° In order that a confessional statement may be admissible and used against an accused, it must be proved to be voluntary If the voluntary character of the signature is challenged, this inevitably puts in issue,

the voluntary character of the statement itself" 20. Effect of Section 80

It is held that in the case of a judicial confession properly recorded conformably with sections 164, and 364, of the "Cr. P.C., a presumption of it having been made voluntarily arises under section 80 of the Evidence Act" The correctness of this view is open to

question. Section 80 raises a presumption, under certain circumstances that the document is genuine. It is true that under section 164, of the *Cr. P.C. a Magistrate recording a the confession to hāve been made voluntarily. confession has to certify that he believes Though there may be a presumption under section 80 that the Magistrate in question believed it to be voluntary, there canrnot, it is submitted, be a further presumption under that section, that the confession was in fact voluntary. 21. Retracted Confession Sometimes an accused is found to resile from his confession in the Committing Magistrate's Court or in the Sessions Court. Generally where an accused adheres at the trial to a previous judicial or extra judicial confession, it may, if the Court believes it, be acted upon without corroboration." It is a settled rule of evidence that unless a retracted

confession is

corroborated

conviction on its strength alone." should be

1.

corroborated

in each

Ayyub v. State of Uttar Pradesh,

in material

particulars,

it is not prudent to base a

Although it is not necessary that a retracted confession material

particulars,

but it is

sufficient

AIR 2002 SC 1192: 2002 AIR SCW 968: (2002) 3 SCC 510 (51)

para 18). 2. R. v. Thomson, (1893) 2 QB 12: 3.

62 LJMC 93.

1954 SCR 1133: AIR 1954 SC 462: 1954 Cr LJ 1313.

Q.E. v. Narayan, 25 Bom 543. 5. Tulsiram Kanu v. State, 1953 SCJ 612: AIR 1954 SC 1: 1954 Cr LJ 225. 6. Benar Singh Tanti v. State of Assam, 1977 Cr LJ 296 (297). 7. Ajodha v. State, (1981) 2 All ER 193 (200) (PC). 8. See now Criminal Procedure Code, 1973. 9. Bakshan v. E., 1936 Lah 247. 10. E. v. Dhani, 20 Cr LJ 721. 11.

that there is a

Puran v. State of Punjab (U), AIR 1953 SC 459: 1953 Cr LJ 1925:55 Punj LR 158.

119

Of the Relevancy of Facts

Sec. 24]

general corroboration of the important incidents mentioned in the confession.' Expression "corroboration of material particulars" does not imply that there should be meticulous examination of entire material particulars. It is enough that there is broad corroboration in conformity with general trend of confession. But a retracted confession stands on a different footing. When a retracted confession is given in evidence, the Court has first to see if it is admissible. From the view of the admissibility alone, the mere fact that the confession is retracted is immaterial, unless it is shown to be improperly induced." Where there is only his own retracted confession, as against the accused and there is no independent evidence to corroborate his confession it is unsafe to convict the accused

solely on the basis of the retracted confession. Retracted confession without independent corroboration cannot sustain conviction. Where the original confession was truthful and voluntary, the Court can rely upon such confession to convict the accused in spite of a subsequent retraction and its denial in statement under section 313, Cr. P.C., 1973. Voluntary and free confession, even if later on retracted, can be relied upon and subsequent retraction and denial of such confessional statements in the statement of the accused result of an afterthought.°

under section 313, Cr. P.C., 1973 is only a

22. The Rule of Prudence in the Cases of Retracted Confession A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. In Pyare Lal Bhargava v. State of Rajasthan, the four-judges Bench of the

Supreme

Court observed thata retracted confession may form the legal basis of a conviction if the court is satisfied that it was true

voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corro rat It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted

and was

confession is true

and

voluntarily

made and has been

corroborated

in material particulars. In Shankaria v. State ofRajasthan, the confession was retracted by the appellant when he was examined at the trial under section 311 of the Criminal Procedure Code. The Court held that a confession, if voluntary and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under section 164 Cr. P.C., the court must apply a double test: 1. State of Uttar Pradesh v. Boota Singh, AIR 1978 SC 1770 (1775): 1978 Cri App R (SC) 340: 1978 All LJ 1156. 2. Parmananda Pegu v. State of Assam, 2004 AlR SCW 4930: AlR 2004 SC 4197: (2004) 7 SCC 779. 3. Ghulam Mohammad v. Emperor, AIR 1942 Lah 271: 44 Cr LJ 77. Gendra Brhama v. State of Assam, 1981 Cr LJ 430 (437) (Gau). 5. Palanisamy v. State of Tamil Nadu, AlR 1986 SC 593: (1986) 1 Crimes 599: (1986) 1 SCC 693 (SC). 6. Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC1 (para 226). 7. State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600 (664) (para 32). 8. AIR 1963 ŠC 1094: 1963 All LJ 459: (1963) 2 Cr LJ 178; see Bharat v. State of Uttar Pradesh, (1971) 3 SCC 950: 1972 SCC (Cri) 198. 9. AIR 1978 SC 1248: 1978 Cr LJ 1251: (1978) 3 SCC 435 (443) (para 23); See also Aloke Nath Dutta v. State of West Bengal, (2006) 13 SCALE 467: (2007) 12 SCC 230 (265-267).

da

120

The Indian Evidence Act, 1872

(1) (2)

Sec. 24

Whether the confession was perfectly voluntary? If so, whether it is true and trustworthy?

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply thesecond

test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging

the reliability of sucha confession, or for that matter of any substantive pieceofevidence, there is no rigid canon of universal application. The Court should carefully examinethe confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturaly fits in with the rest of the evidence and the surrounding circumstances, it may be taken to havesatisfied the second test. When the confession is held to be admissible then the court is to consider what weight should be given to it. As a matter of prudence and caution, which has sanctified itself in a rule of law, a retracted confession cannot be made solely the basis of conviction, unless the same is corroborated. It will be sufficient that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the

confession. Court may convict an accused on his confession alone; although retracted at a later

stage, usually the court wants some corroboration of the confessional statement. The principle that a retracted confession, though it is not on par with evidence of an accomplice or such other tainted evidence, requires corroboration to satisfy theconscience of the Court that the statement is true, will not apply to the statement recorded under the provisions of the Foreign Exchange Regulation Act.3 23. Extra-judicial Confession It may be oral or documentary. In order to prove an oral extra-judicial confession the person to whom it was made by the accused must depose to it. If it is contained in a document, made by the prisoner or by someone else who heard the statement, the document must be produced or its non-production accounted for to make secondary evidence of the contents of the documents admissible. (See sections 64 and 65). The document containing what the accused states is not the substantive evidence and can only be used to refresh the memory of the witness or to corroborate or contradict the oral testimony of the witness in Court. In the famous Nanavati case, a statement made by the accused Nanavati to the Chowkidar of the building immediately after the shooting, was held to be an extra-judicial confession and treated as a direct piece of evidence of the guilt of the accused. An extra-judicial confession has to be inculpatory and must give substantial details of the manner of the commission of offence. In the case of RatanGond v. State of Bihar the Court accepted the extra-judicial confession made by the accused in the house of the Mukhia of the village before some villagers. An extra-judicial confession must be received with great care and caution.° Similarly, the Supreme Court accepted the 1.

Subramania Goundan v. State of Madras, AIR 1958 SC 66: 1958 Cr LJ 238: 1958 SCR 428 (440); See Balbir Singh v. State of Punjab, AIR 1957 SC 216: 1957 Cr LJ 481.

2. Badal Seikh v. State of West Bengal, (1986) 2 Crimes 316 (Cal). 3. P.S. Barkathali v. Director of Enforcement, New Delhi, AIR 1981 Ker 81 (84): 1981 Ker LT 833. 4. 5. 6.

M.A. Antony v. State of Kerala, AIR 2009 SC 2549: 2009 AIR SCW 4448: (2009) 6 SCC 220 (230). AIR 1959 SC 18: 1959 SCJ 222: 1959 SCR 1336. Havaldar Singh v. E., 33 Cr LJ 379.

Sec. 24]

121

Of the Relevancy of Facts

extra-judicial confession made before a Village Headman.' It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witness who speaks to such a confession In Baldev Singh v. State of Punjab,* the Supreme Court held that the evidence of extra-judicial confession is generally of a weak nature. No conviction ordinarily can be based solely thereupon unless the same is corroborated in material particulars. Extra-Judicial confession must be found to be reliable. In Keshav v. State of Maharashtrat it was alleged that the accused

made confession the wife of the deceased, who neither disclosed it to anyone nor lodged an FIR in that respect. The Court observed that the said extra-judicial confession was not reliable. Macaulay has observed that "words may easily be misunderstood by an honest

man. They may easily be be apprehended literally. A particle, a tense mood and innocence." (History

misconstrued by knave. What was spoken metaphorically may What was spoken ludicrously may be apprehended seriously. or an emphasis may make the whole difference between guilt of England, Vol. I, Ch. 5, p. 583). Thus, it would be dangerous

in the extreme to act on a confession

put into the mouth of the accused by a witness

who had a strong motive for implicating someone else in the murder" Extra-judicial contession in order to be treated as reliable must be reproduced in exact words.° An extrajudicial confession can be accepted as evidence when the Court is satisfied that it is both voluntary and true and is not a result of inducement threat or promise as envisaged under section 24 of the Evidence Act, or was brought about in suspicious circumstances to circumvent sections 25 and 26 to the Act.

It has been held by the Supreme Court that in order to make an

extra-judicial

confession reliable it must be shown that it was voluntarily made. The Supreme Court has held in State of Karnataka v. M.N. Ramdas,5 that there is no reason why an extrajudicial confession made to a stranger cannot be relied upon. In case the accused had committed murder and had immediately revealed the fact to PW2, who was a stranger to the accused, the court observed that there was no reason why PW2 would want to implicate the accused into murder and there being enough corroborative evidence the extra-judicial confession made to PW2 could be safely relied upon. The Supreme Court has very clearly stated in State of Rajasthan v. Raja Ram,° that it is not open to any court to start with a presumption than an extra-judicial confession is a weak type of evidence. The Court held that an extra-judicial confession if voluntary and true and made in a fit state of mind can be accepted and made the basis of the conviction of the accused, but the confession will have to be proved like any other fact.

1.

Sivakumar v. State by Inspecter of Police, AIR 2006 SC 653: 2006 Cr LJ 536: (2006)

1 SCC 714

(723) (para 41). 2. Narayan Singh v. State of Madhya Pradesh, AIR 1985 SC 1678: (1985) 4 SCC 26:

1985 Cr LJ

1862.

3. (2009) 6 SCC 564: AIR 2009 SC (Supp) 1629: 2009 AIR SCW 3730; Ponnusamy v. State of Tamil Nadu, AIR 2008 SC 2110: 2008 AlR SCW 3184: (2008) 4 SCC 587 (598) (para 28); Mohd. Azad V. State of West Bengal, AIR 2009 SC 1307: 2009 AIR SCW 752: (2008) 14 SCALE 52. 4. AIR 2007 SC (Supp) 1150: (2007) 13 SCC 284 (287) (para 9). 5. Harold White v. King, 1945 MWN 620 (PC). Uttar 6. Lakshmi Jani v. State of Orissa, (1986) 1 Crimes 321 (323); relying on Rahim Beg v. State of Pradesh, AlR 1973 SC 343: 1972 Cr LJ 1260: (1972) 3 SCC 759; Heramba Brahma v. State of Assam, AIR 1982 SC 1595: 1983 Cr LJ 149: (1982) 3 SCC 351. 7. State of Haryana v. Jagbir Singh, 2003 (4) RCR (Criminal) SC 555: 2003 AIR SCW 5180: AIR 2003 SC 4377. 8.

9.

AIR 2002 SC 3109: 2002 AIR SCW 3583: (2002) 7 SCC 639. AlR 2003 SC 3601: 2003 Cr LJ 3901: (2003) 8 SCC 180: 2003 (4) RCR

(Criminal)

SC 239.

122

The Indian Evidence Act, 1872

[Sec. 24

The Supreme Court has held that in the present case there was sufficient evidence to show that the appellant made a voluntary extra-judicial confession without undue

influence, pressure, promise or inducement. Where

retracted

judicial

confession was sought to be corroborated by another nfesssion, t Court refused to be swayed by such corroboration, retracted extra-judicial and in the absence of any other evidence connecting the accused with the crime, the accused was acquitted. No conviction can be based in cases of unreliable extra-judicial confession. Similarly, an extra-judicial confession before a village gram rakshi (village guard) is also inadmissible Where the accused after murdering his wife and children, made a confession to his close friend, the evidence of friend, was found

reliable and a conviction on that basis

was held proper." 24. Evidentiary Value of Extra-judicial Confession The evidentiary value of an extra-judicial confession must be judged in the fact situation obtaining in each case. It would depend not only on the nature of the circumstances but also the time when the confession had been made and the credibility

of the witness who testifies thereto. The Supreme Court has observed in State of Rajasthan v. Raja Ram, that an extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of evidence as to the contession the witness to whom it has been made. The value of the evidence. It is not open to any depends upon the reliability of the witness who gives the court to start with a presumption that extra-judicial confession is a weak type ofevidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses wh0 speak to such a confession. Such a Contession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of a witness who appears to be unbiased,

not even remotely inimical to the accused, and in respect of whom nothing is brought have a motive of attributing an untruthful out which may tend to indicate that he may statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. The Court further said that if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. In Pancho v. State of Rajasthan, it was observed by the Supreme Court that an extrajudicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record.

1.

Guru Singh v. State of Rajasthan, (2001) 2 SCC 205: AIR 2001 SC 330: 2001 Cr Ly 487.

2.

Badal Seikh v. State of West Bengal, (1986) 2 Crimes 316 (Cal).

3.

State of Rajasthan v. Rudia, (1985) 1 Crimes 125; Kunjami Bheeme v. State of Madhya Pradesh, 1984 Cr LJ 1374: 1984 (2) Cr LC 322: 1983 (2) Crimes 424.

4. Ratna Munda v. State of Orissa, 1986 Cr LJ 1363. 5. State of Uttar Pradesh v. M.K. Anthony, AIR 1985 SC 48: (1985) 1 SCC 505: 1985 Cr LJ493 6. Kulwinder Singh v. State of Punjab, AIR 2007 SC 2868: 2007 AIR SCW 5215: (2006) 12 SCC 558

(545) (para 31). 7.

AIR 2003 SC 3601: 2003 Cr LJ 3901: (2003) 8 SCC 180 (192): 2003 (4) RCR

(Criminal) SC 259

(para 19); see Aloke Nath Dutta v. State of West Bengal, (2006) 13 SCALE 467: (2007) 12 SCC 230 (259-262); Chattar Singh v. State of Haryana, 2008 AIR SCW 7426: AIR 2009 SC 378: 1989 8.

Supp (2) SCC 706 (710-11) (para 10). AlR 2012 SC 523: 2012 AlR SCW 452: (2011) 10 SCC 165 (169) para 16.

Sec

Of the Relevancy of Facts

24]

123

There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. In Nazir Khan v. State of Delhi2 the Court held that a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense

of guilt. In Munna Kumar Upadhyaya v. State of Andhra Pradesh,3 it was held that the extrajudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The

extra-judicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. The extra-judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely. In this case, confession was made by the accused to the prosecution witness prior to his arrest. Prosecution witness was not a stranger to the accused as he had attented the betrothal ceremony and the marriage of the accused. There was no reason for the witness to unnecessarily implicate the accused as he had no animus against him. The Court held that the said extra-judicial confession, which was voluntary and truthful could not be disbelieved. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be

difficult

for the court to base a conviction

on such a confession.

The extra-

judicial confession, though a weak type of evidence, can form the basis for conviction if the confession made by the accused is voluntary, true and trustworthy. In other words, if it inspires confidence, it can be acted upon.°

25. Extra-judicial Confession Delay in Recording The Supreme Court has observed the raping a minor child and thereafter killing the victim girl could not have been talked to or discussed with any or everybody so casually. There must be some cogent reason for making a confession of this nature. This piece of evidence, the Supreme Court added throws doubt upon the credibility of the witness. The extra-judicial confession of the accused as regards his involvement in the crime is said to have been made after a delay of 20 days without any explanation whatsoever. The delay in recording extra-judicial confession before a person wholly unconnected with the police is always a matter of great suspect. The Supreme Court endorsed the High Court's decision in rejecting the confessional statement. The Supreme Court upheld the 1. Sansar Chand v. State of

Rajasthan, (2010) 10 SCC 604: AIR 2011 SC (Cri) 99: 2011 AIR SCW

372.

2. AIR 2003 SC 4427: 2003 AIR SCW 5068: (2003) 8 SCC 461 (482) (para 24). 3. (2012) 6 SCC 174: 2012 Cr LJ 3068: AIR 2012 SC 2470; See also R. Kuppusamy v. State Rep. by Inspector of Police, Ambeiligai, AIR 2013 SC 3608: 2013 AIR SCW 1293: (2013) 3 SCC 322 (para 8). 4 Ram Singh v. Sonia, AIR 2007 SC 1218: 2007 Cr LJ 1642: 2007 AIR SCW 1278: (2007) 3 SCC1 (25) (para 48). 5. Sahadevan v. State of Tamil Nadu, AIR 2012 SC 2435: 2012 AIR SCW 3206: (2012) 6 SCC 403 (para 14). 6. Sahib Husain v. State of Rajasthan, (2013) 9 SCC 778 (para 15).

124

The Indian Evidence Act, 1872

Sec. 24

judgment of the High Court that the charge against the respondent has not beenproved beyond reasonable doubt and his conviction cannot be sustained.

26. Recording of Confession by Magistrate in his Private Capacity In State of Punjab v. Harjagdev Singh,2 the Supreme Court has observed that, if the accused made the confession before a Magistrate, who is not especially empowered to record confession under section 164 of the Code of Criminal Procedure or in his private capacity or a Magistrate so empowered but receiving the confession at the stage when section 164 of the Code does not apply, would be treated as a extra-judicial confession.

27. Uncorroborated

Extra-judicial Confession

The Supreme Court also observed that even if proceeded on the assumption that the prosecution has succeeded in proving the same it would not further its case inabsenceof proof of any other circumstances pointed to the guilt of the appellant. The Court added that the extra-judicial confession made jointly by all accused was suspicious,improbable and uncorroborated and the accused was entitled to acquittal.3

28. Extra-judicial Confession to Establish

Guilt

In a case an extra-judicial confession was allegedly made before a witness who was a close relative of the accused. There was a delay of 20 days in recording his statement.

The Supreme Court observed that the Investigating Officer had explained that he had summoned the witness but as he was not found his statement could not be recorded earlier. There is no material to infer that he had not gone to the police station even though he was informed. The evidence suffers from no infirmity and there is no reason to interfere with the findings recorded by the Courts below that his evidence is in sufficient and as such not reliable to establish the guilt of the appellants.4 The principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused are as follows: i) The extra-judicial confession is a weak evidence by itself. It has to beexamined by the Court with greater care and caution.

(i) It should be made voluntarily and shall be truthful.

(ii) It should inspireconfidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v)

For an

extra-judicial

confession to be the basis of

conviction, it should not

suffer from any material discrepancies and inherent improbabilities. (vi)

Such

statement

essentially

has to be

proved

like any

other fact and in

accordance with law.3 29. Discrediting Testimony of Witness The Supreme

Court has observed

that P.W. 5 is an

independent

witness and his

testimony inspires confidence which has been relied upon by the trial court. TheSupreme Court added that the defence has utterly failed to bring on record any circumstance which could be made a basis for discrediting the testimony of the aforesaid witness. 1. 2.

State of Punjab v. Gurdeep Singh, AlR 1999 SC 3724: 1999 Cr LJ 4597: 1999 AIR SCW 3764. State of Punjab v. Harjagdev Singh, 2009 AIR SCW 4133: (2009) 8 SCALE 568: AIR 2009 SC 2693

(2694) (para 7). 3.

Surinder

Kumar v. State of Punjab, AIR 1999 SC 215: 1999 Cr LJ 267: 1998 AIR SCw 3580. [Cr.

A. No. 281-D.B. of 1994. dated 10-12-1996 (P&H) reversed]. 4.

Ram Khilari v. State of Rajasthan, AIR 1999 SC 1002: 1999 Cr LJ 1450: 1999 AIR SCW 629. Sahadevan v. State of Tamil Nadu, AIR 2012 SC 2435 (para 22): 2012 AIR SCW 3206: (2012) b

SCC 403. 6. Sanjay v. State (N.C.T. of Delhi), (2001) 3 SCC 190: AlR 2001 SC 979: 2001 AIR SCW 767.

125

Of the Relevancy of Facts

Sec. 24]

30. Confessional Statement

The Supreme Court has observed that relying solely upon the alleged confessional statement of the appellant, the trial court convicted her for committing the murder of her brother-in-law and the High Court affirmed the conviction. The Supreme Court has held that the statement so made by her cannot be said to be a confessional one as the

circumstances in which she claimed to have caused the death of her brother-in-law would clearly exculpate her in view of section 100 of the Indian Penal Code. In other words, the statement of the appellant could not be entertained in evidence much less pressed into service to make it the basis of conviction. 31. Confessional Statement under Threat and Pressure The appellant stated that his confessional statement was made under threat and pressure when he was in custody. The Supreme Court observed that merely saying so was not enough to prove that the confessional statement was made under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor had he made any complaint thereafter till his statement came to be recorded

under section 313, of the

Criminal

Procedure Code. It was

only

at the trial that this allegation was made. The Supreme Court upheld the trial court's decision in holding that the confessional statement was voluntarily made and could be used against him. The confessional statement made by the accused corroborates the testimony of the intelligence officer2 32. Judicial or Extra-judicial Confession The Supreme Court has observed that so far as the extra-judicial confession is concerned in the present case two confessions were made by the accused., at

the panchayat. In the first confession no accused was named and it was stated incrossexamination that the name might not have been recorded by mistake. In the secondconfession the names of large number persons were referred to as to have confessed their guilt, including the appellant. It even included the names of persons who were not even the accused. The Supreme Court held that the alleged confession by a large number of persons is more in the nature of general and vague term and before a confession isrelied upon it

must be clear and unequivocal whether it is a judicial or an extra-judicialconfession. The trial court rightly rejected the confessions but, unfortunately the HighCourt very casually accepted them which cannot be sustained. 33. Proof of Judicial Confession A confession made in the course of the trial or enquiry is required by law to be reduced to writing. Hence, oral evidence thereof is inadmissible, except to a limited

extent mentioned in section 553, Cr. P.C. If a confession is properly recorded under section 164, 4Cr. P.C., the

production

of the

document

containing the record of the

confession, is under section 80 of the Evidence Act, sufficient proof of the fact that the statement contained in the document was made by the prisoner. Where a strict and faithful compliance with section 164, 4Cr. P.C. is made, it can safely be assumed that the confession is voluntary. Where the provisions of section 164 are not complied with by the Magistrate, the confession is of no evidentiary value even if it is admissible in evidence.? In Nazir Ahmad v. King Emperor" case the Privy Council decided that where 1. Champa Rani Mondal v. State of West Bengal, (2000) 10 SCC 608.

2. Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras, AlR 1999 SC 2355: 1999 AIR 3.

SCW 2457: 1999 Cr LJ 3663. Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310: AIR 2000 SC 3062: 1999 Cr LJ 4070.

4. See now 5.

Criminal

Procedure Code, 1973.

Bakshan v. E., 1936 Lah 247.

6. Kusta Balsu v. State, 1986 Cr J 662 (669) relying on Dagdu v. State ofMaharashtra, AIR 1977 SC 1579: 1977 Cr LJ 1206: (1977) 3 SCR 636.

7. Jagmal v. E., AIR 1948 All 211: 49 Cr LJ 243. 8. 1936 (63) IA 372: AIR 1936 PC 253.

126

The Indian Evidence Act, 1872

Sec. 24

the Magistrate does not act nor purports to act under section 164 and nothing is tendered in evidence as recorded or purporting to be recorded under the section, oral evidence of the Magistrate is not admissible. 34.

Credibility-When

Magistrate

Used

the

Expression

"Evidence"

Instead of

"Confession" The Supreme Court has observed that there has been full compliance with provisions of section 164(2) and the confessional statement made freely and voluntarily by the accused on bail cannot be rejected merely because the Magistrate has used the expression "evidence" instead of "confession" while warning the accused.

35. Evidentiary Value of Confession Blackstone has denounced this species of evidence as the weakest and most suspicious

of all evidence.Bertrand Russellsays in Power

"In India it is rampant

..For

the

taming of the power of the police one essential requiremernt is that a confession shall never in any circumstances be accepted as evidence". While other equally great authorities have held it as the most satisfactory proof of guilt, the true view appears to be that if the making of the confession is proved beyond question it is the highest sort of evidence (Wigmore) and one of the most effective proofs in law, as it is presumed that, as a free agent, no man would make a confession against himself if the facts confessed were not true. Confession must be true and voluntary and if it is retracted it needs general corroboration." Whena confession is found to be voluntary and true, thereafter the Court can go into the question of its sufficiency. For determining whether the confession is true the Court must carefully examine its contents and must then compare them with other evidence and apply to them the test of probability. If the Court finds that the material statements in the confession are inconsistent with the evidence of eye witnesses, it must be held that the prosecution has failed to prove that the confession is true and it must be put aside It is, therefore, too late in the day to urge that the confessional statement cannot be believed in part and disbelieved in part" A confession is direct piece of evidence but before such evidence can be accepted, it must be established by cogent evidence as to what were the exact words used by the accused and even if the confession was established, prudence and justice demand that such evidence should not be used the sole ground of conviction and it may be used as a corroborative piece of evidence°

36. Confession and Indian Constitution Article 20(3) of the Constitution of India protects an accused person against testimonial compulsion. In the case of Kalawati v. State of Himachal Pradesh, it was held that Article 20(3) was no

bar in using a retracted confession against the accused. It does not contemplate the suppression of truth. If a confession is found to be obtained

by compulsion it will be hit by section 24 of the Evidence Act, and you cannot invoke Article 20(3). Sections 24 to 30 of the Evidence Act take care of the constitutional rights by excluding

from evidence all self-incriminatory statements whether voluntary or otherwise 1.

M.A. Antony v. State of Kerala, AIR 2009 SC 2549: 2009 AIR SCW 4448: (2009) 6 SCC 220 (233)

para 27). 2. Bala Majhi v. State of Orissa, AIR 1951 Ori 168: 1952 Cr LJ 1743: ILR 1951 Cut (Ori) 65 (FB). 3. Soura Majhi v. State, (1986) 1 Crimes 717. 4. Sarwan Singh v. State, AIR 1957 SC 637: 1957 Cr LJ 1014: 1957 SCJ 699. 5. Babu Lal v. State, 1981 (20) DLT 354: 1982 (84) Pun LR 40: 1982 Cr LJ 41 (44) (Del). 6. Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1965) 2 SCWR 484: 1966 Cr LJ 68. See also Sucha Singh v. State of Haryana, (2013) 14 SCC 552 (para 13). 1953 SCR 546: 1953 Cr LJ 668: AIR 1953 SC 131. 8. Ram Lalwani v. State, 1981 Cr LJ 97 (100): 1980 (18) DLT 141. 7.

Sec. 24]

127

Of the Relevancy of Facts

37. Word 'Appears' The use of the word 'appears' indicates a lesser degree of probability than would have been necessary if proof had been required. Section 24 does not require the same cogency of evidence as is necessary to prove a fact. The word 'appears' is important in importing judicial discretion in the matter of admitting or rejecting a confession.' The value of the evidence as to the confession just like any other evidence depends upon the veracity of the witnesses to whom it is made. It is not an invariable rule that the Court should not accept the evidence if not the actual words but the substance were given.2 Where the co-accused had only named some accused persons in his confessional

statement, participation of other accused persons in the crime would not become doubtful on the ground of non-disclosure of their names in the confessional statement of the accused. There may be various reasons for their non-disclosure.3

38. Caused by any Inducement, Threat or Promise If a confession appears to be caused by any inducement, threat or promise, it becomes involuntary and is irrelevant and hence must be excluded from evidence. The principle of section 24 is that an involuntary confession becomes untrustworthy. The inducement to offer a pardon is very common. It may be expressed or implied from the conduct of the person in authority. It may not be made directly to the prisoner. The inducement may

take the form of a promise or threat and it involves both -a promise of forgiveness if disclosure is made and threat of prosecution, if it is not made. A confession caused by third degree methods is involuntary. 39. Having Reference to the Charge Charge' means a criminal charge or a charge of an offence in a criminal

proceeding.

A confession obtained by an inducement relating to some collateral matter unconnected with the charge will not be excluded from evidence. 40. The Accused Person

The Bombay High Court in the case of Bhagwandas, and the Patna High Court in the case of Emperor v. Cunna* has held that section 24 would apply even if the confessor was not an accused at the time he made the confession. It is submitted that the proposition cannot be stated so widely. Since the section uses the words "having reference to the charge against the accused", it is clear that there must be some sort of a proceeding pending and some charge against him under investigation, at the time he made a confession. It is not necessary that the confessor should have been actually in custody or formally charged or complained or informed against, it is sufficient that at the time the confession was made, criminal proceedings were in prospect.

41. Person in Authority This expression does not mean a person having control over the prosecution of the accused. The test appears to be, has the person in authority to interfere in the matter in the apprehension, detention, or under enquiry, as for example, a person engaged prosecution of the accused or who is empowered to examine him.' The belief of the 1. Emperor v. Narayan Raghunath, ILR 32 Bom 111: 6 Cr LJ 164 (FB). 2. Buti v. State of Orissa, (1982) 53 Cut LT 130 (137, 138): 1982 Cr LJ 938; See also Mulk Raj v. State of Uttar Pradesh, AIR 1959 SC 902: 1959 Cr LJ 1219: 1960 All Cr R 37; Maghar Singh v. State of Punjab, AIR 1975 SC 1320: 1975 Cr LJ 1102: (1975) 4 SCC 234; Manguli Dei v. State of Orissa, AlR 1989 SC 483: 1989 Cr LJ 823: JT 1988 (4) SC 104. 3. Krishna Mochi v. State of Bihar, AIR 2002 SC 1965: 2002 AIR SCW 1909: 2002 Cr LJ 26A5. 4. 42 Bom LR 938. AIR 1920 Bom 270: 22 Bom LR 1247: 22 Cr LJ 68. 6.

Smith v. E., 19 Cr LJ 189.

7. Reg. v. Navroji, (1872) 9 BHC 358. 8. Santokhi Beldar v. Emperor, AIR 1933 Pat 149: ILR 12 Pat 241: 34 Cr LJ 349 (SB) (FB).

128

The Indian Evidence Act, 1872

Sec. 24

accused that the person to whom he made a confession were persons in authority is

not sufficient to bring them within the term. A prosecutor is a person in authority. The Bombay High Court has held that a member of a Panchayat is not a person in authority2 But the Calcutta High Court took the contrary view.

42. Temporal Nature The inducement must be of a wordly nature and not spiritual or religious. A mere moral exhortation to tell the: truth is not objectionable.3

43. Confession under TADA In recording the confession of an accused, the compliance with section 15 of the Terrorist and Distruptive Activities (Prevention) Act, 1987 and the rule 15 made

thereunder, is mandatory. It is necessary before making the confessional statement that the accused must be warned that confessional statement if made will be used against him and further he is not bound to make the same. Writing the certificate and making the memorandum to this effect are mandatory to prove that the accused was explained and that if he made it, it could be used that he was not bound to make a confession against him as evidence, that the confession was voluntary arnd that it was taken down by the police officer fully and correctly. These matters are not be left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous the person record regardis the matter of recording the confession in the presence making it.4 25. Confession to police officer not to be proved.-No confession made to a

police officer,* shall be proved as against a

person accused of any

offence.

SYNOPSIS 7. 8. 9.

1. Principle 2. Scope 3. 4.

Section 25 and Section 26

Confession

5. Police Officer 6. Confession made before Officer

under

Admissibility Confession and F.IR. Confession Recorded under TADA Act, 1987, Section 15 is Substantive Evidence 10. Confession under TADA Act and Retraction at Later Stage

N.D.P.S. Act

Comments 1. Principle Under this section, a confession made to a Police Officer is

inadmissible in evidence,

except so far as provided under section 27. The principle behind this exclusion is that a confession thus made is untrustworthy. The reason for the rule is to put a stop to the extortion of confessions by the Police by malpractices; and to avoid the danger of admitting false confessions.° In England, however, a confession made to a Police Officer

is not inadmissible (Phipson). 2. Scope

This provision does not exclude all statements made to the police but onlyconfessions made by the accused. A statement even if it goes against the accused is admissible if it does not amount to a confession° 1.

E. v. Ganesh, 50 Cal 127.

2.

E. v. Fermand, 4 Bom LR 785.

3. 4.

It is immaterial

whether the Police Officer to whom a

K.E. v. Akhileshwari, (1925) 4 Pat 646. LJ 830: (2000) 2 SCC 254 (para S.N. Dube v. N.B. Bhoir, AIR 2000 SC 776: 2000 Cr (2013) 13 SCC 1 (para 2596). Yakub Abdul Razak Memon v. State of Maharashtra, * As to statements made to a police officer investigating a case, see the Code Procedure, 1973 (2 of 1974), section 162. 5. Queen Empress v. Babulal, 1884 All WN 229: ILR 6 All 509 (539) (FB). 6. Barindra Kumar Ghose v. Emperor, ILR (1910) 37. Cal 467: 14 Cal WN 1114: 11 Cr

31). Seealso of Criminal

LJ 453.

129

Of the Relevancy of Facts

Sec. 25]

confession is made is the officer

investigating

the case or not. The fact that he is a Police

Officer is sufficient to invalidate the confession, to whatever crime it may refer. Woodroffe observes that "the terms of the section are imperative and a confession made to a Police Officer under any circumstances is inadmissible in evidence, against the accused. Thus,

the rule enacted by this section is without

limitation or qualification except being subject

to section 27." 3. Section 25 and

Section 26

These two sections do not overlap. Section 26 does not qualify the present one, but means that no confession made by a prisoner in custody to any person other than a Police Officer, shall be admissible, unless made in the presence of a Magistrate. The two sections lay down two clear and definite rules. In section 25 the test for excluding the confession is "to whom was it made." If it was made to a Police Officer, it must be rejected. While in section 26 the test for excluding the confession is "under what circumstances was it made". If it was made while the accused was in the custody of a Police Officer, it will be excluded, unless made in the presence of a Magistrate. Hence, a confession made to a Police Officer, evern in the presence of a Magistrate is inadmissible. Sections 25 and 26 of the Evidence Act although seek to achieve the same purpose

but they operate in somewhat two different fields. Section 25 raises an embargo as regards proof of confession before a police officer. The same need not be in police custody, whereas section 26 raises a bar as regards admissibility of such a confession if made by an accused in the custody of a police officer although such a confession might have been made before a person, who was not a police officer. The policy underlying sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever, "

unless made in the immediate presence of a Magistrate shall be presumed to have been obtained under the circumstances mentioned in section 24 and, therefore, inadmissible except so far as is provided by section 27 of the Act. If the provisions of the Evidence Act are not

attracted in a

departmental

proceeding, a fortiori

sections 25 and 26 shall

not apply. The primary test to decide if an officer is a Police Officer, is whether the officer concerned under the Special Act, has been invested with all the powers exercisable by an officer-in-charge of a police station under Chapter XIV (Now Chapter XII) of the

Criminal Procedure Code; qua investigation of offences under that Act, including the power to initiate prosecution by submittinga report (charge-sheet) under section 173 of the Code. In order to bring him within the purview of a "Police Officer" for the purpose of section 25, of the Evidence Act, it is not enough to show that he exercises some or even many of the powers of a Police Officer conducting an investigation under the Code There is no doubt that an excise officer, exercising powers of entry, search, seizure, arrest and investigation of offences under the Assam Opium Prohibition Act, 1947, is a Police Officer for the purpose of section 27 of the Evidence Act." It has been repeatedly held by the Supreme Court thata customs officer discharging duties under the Customs Act or the Sea Customs Act is not a Police within the purview of section 25 of the Evidence Act.° 1.

Officer coming

Zwinglee Ariel v. State, AIR 1954 SC 15: 1954 Cr LJ 230.

2. Commissioner of Police, New Delhi v. Narender Singh, AIR 2006 SC 1800: 2006 AlR SCW 1958: (2006) 4 SCC 265 (272, 274) (para 21 & 29-31). 3. See now Criminal Procedure Code, 1973. AIR 1981 SC 379 (392): 1980 Cr LJ 1424: (1980) 4. Balakishan A. Devidayal v. State of Maharashtra, 4 SCC 600. 5. Ahmed Noor Khan v. State of Assam, AIR 1972 Gau 7 (10): 1972 Cr LJ 779. 6. P.S. Barkathali v. Director of Enforcement, Neiv Delhi, AlR 1981 Ker 81 (83): 1981 Ker LT 833.

130

The Indian Evidencè Act, 1872

Sec. 25

In M.A. Antony v. State of Kerala,! the doctor recorded the history of injury and also the confession. The statement made by the independent witness, the doctor, hasbeen accepted by both the courts below. In the examination-in-chief, the doctor has statedthat, "I had examined Antony as per the request of Dy. S.P. of area concerned." TheSupreme Court held that there is no material to show that the said Dy. S.P. was present at the time when the statement was recorded. Dy. S.P. does not state that he hadaccompanied the accused to doctor's house. Secondly there is no material on record nor is there any

suggestion made to doctor that

when she had recorded the said confessional statement,

any police person was present with the appellant-accused. Thus, the criticism of the defence that the said statement is not fit to be accepted as it has been recorded in the presence of the police officers is without any material on record, and it is absolutely admissible and reliable.

4. Confession See commentary

on section 24. Statements made by an

accused in the course of an

investigation are excluded by section 162, 4Cr. P.C. This section covers a confession made to a Police Officer before any investigation has begun or otherwise not in the course of an

investigation." Each and every statement made to a Police Officer is not excluded under this section but those only which amount to a confession are excluded. 5. Police Officer This term should not be read in a strict technical sense, but according to its more comprehensive and popular meaning, it includes an officer vested with the powers of police by law whether he is called a Police Officer or by any other name and exercises other functions also under other provisions of law.3 The term Police Officer is wider than the term contained as in section 1 of the Police Act, 1861.° Under the Bombay Police Act, 1951, a Police Officer means any member of the police force, appointed under that Act, but the term 'Police Officer under section 25 is wider in its import. A Police Patel in Bombay is a Police Officer. A Police Officer does not cease to be a Police Officer for purposes of section 25 even if he is also invested with Magisterial powers. The controversy on the question whether a Preventive Officer in the Customs Department is Court of India has held in State a police officer or not is now set at rest as the Supreme of Punjab v. Barkatram that he is not a police officer and that the confession made to him by an accused is admissible in evidence. Powers of arrest, search and custody of documents seized were undoubtedly given to the

Enforcement

Officers by sections 19A,

19B, 19C, 19D and 19G (Now 34, 35, 36, 37

and 41) of the Conservation of Foreign Exchange Regulation Act, but nevertheless the fact remains that such powers are more akin to those conferred on the Customs Officers by the Customs Act. It is, as such, pertinent to note that a Customs Officer is not a police

officer as held by the Supreme Court in Ilias v. Collector of Customs,Madras.10Similarly in Percy Rustomji Basta v. State of Maharashtra," their Lordships observed:

1.

AIR 2009 SC 2549: 2009 AIR SCW 4448: (2009) 6 SCC 220 (234) (paras 29, 30).

2. See now Criminal Procedure Code, 1973. 3. Kartar Singh v. State, 1952 Cr LJ 1090: ILR 1952 Patiala 186. 4. Queen v. Hurribole Chunder Ghose, (1876) ILR 1 Cal 207: 25 WR Cri 36. 5. Nanoo Sheikh Ahmed v. Emperor, ILR (1927) 51 Bom 78: AIR 1927 Bom 4: 28 Cr LJ 122 (FB). 6. R. v. Akhia, 23 NLR 23. 7. R. v. Bhima, 17 Bom 485. 8. Jas Bahadur v. 9. AIR 1962 SC 10. AIR 1970 SC 11. AIR 1971 SC

Eof

E., 31 Cr LJ 823. 276: (1962) 1 Cr LJ 217: (1962) 3 SCR 338. 1065: 1970 Cr LJ 998: (1969) 2 SCR 613. 1087: 1971 Cr LJ 933: (1971) 1 SCC 847; See also Surjeet Singh Chhabra v. Union

Indi, (1997) 1 SCC 508: AIR 1997 SC 2560: 1997 AIR SCW 2507.

ta

Of the Relevancy of Facts

Sec. 25]

131

Customs Officer making inquiry under section 107 of the Customs Act is not a police officer and a person against whom inquiry is made is not an accused person, and further that statements made by such a person in inquiry are not statements made by a person accused of any offence." The Supreme Court has held that statements recorded by a Customs Officer

under the Customs Act are admissible in evidence and are not hit by the provisions of section 25 of the Evidence Act or Article 20(3) of the Constitution.' It would therefore, appear, that the statements made to an Enforcement Officer whose powers are similar and akin to those of a Customs Officer, are admissible in evidence. If admission/confession made by the charged employee before police authorities was taken into consideration, his subsequent acquittal by criminal court on the selfsame evidence could not be ignored.3 6. Confession made before Officer under N.D.P.S. Act In Raj Kumar Karwal v. Union of India,4 the Supreme Court has held that officers of the Department of Revenue Intelligence who have been vested with powers of an officer-incharge of a police station under section 53 of the N.D.P.S. Act, 1985, are not "police officers" within the meaning of section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. Again in a case the Supreme Court considering the provisions of section 67 of the N.D.P.S. Act and the views expressed in Raj Kumar Karwal case, the court said that it is clear that a statement made under section 67 of the N.D.P.S. Act is not the same as a statement made under 161 of the Code of Criminal Procedure, 1973, unless made under threat or coercion. It is this vital difference, which allows a statement made under section 67 of the N.D.P.S. Act to be used as a confession against the person making it

and excludes it from the operation of

sections 24 to 27 of the Evidence Act.

7.

Admissibility Section 25 makes a confession to a Police Officer inadmissible against the accused in a criminal trial but it is not made inadmissible for all purposes. It may be used in

favour of the confessing accused in certain circumstances or in favour of a co-accused.' A confession made toa Police Officer may be proved as an admission in civil proceedings. A confession made to a Police Officer can be used to impeach the credit of the confessor if he is examined as a witness for another accused in separate proceedings. Confession of accused who has retracted requires general corroboration. It can be

taken into consideration for convicting the co-accused. 8. Confession and F.L.R.

The Evidence Act draws a distinction between statements which amount to confessions and those which are admissions falling short of confessions, and statements of the latter kind are admissible unless they are hit by section 162, 'Cr. P.C. Where a 1.

Harbansingh Sardar Lenasingh v. State of Maharashtra, AIR 1972 SC 1224: 1972 Cr LJ 759: 1972 SCC (Cri) 843. 2. Fr. Mario Pires v. Director of Enforcement, New Delhi, 1982 Cr LJ 461 (463-64) (Goa). 3. Roop Singh Negi v. Punjab National Bank, AIR 2008 SC (Supp) 921: (2009) 2 SCC 570 (581). 4,

(1990) 2 SCC 409: AIR 1991 SC 45: 1991 Cr LJ 97.

5. Kanhaiyalal v. Union of India, AIR 2008 SC 1044: 2008 AIR SCW 627: (2008) 4 SCC 668 (682)

para 44-45).

6.

See Gulab v. E., 26 Cr LJ 5.

7. E. v. Pitambar Jina, 2 Bom 61. 8.

Bishen Das v. Ram Labhaya, 1915 PR 106 (Civil).

9. Keratali v. E., 35 Cr LJ 1178. 10. Shail Nageshi Pare v. State of Maharashtra, AIR 1985 SC 866: 1985 Cr LJ 1173: (1985) 2 SCC 341. 11. See now

Criminal

Procedure Code, 1973.

132

The Indian Evidence Act, 1872

Sec. 25

confession is contained in the F.I.R. the whole report neèd not of a statement which have no connection with actual narrative be admitted." A statement by a person admitting that he was one of the dacoits buying stolen property, is not a confession and is admissible even if made to the police. Where a confessional

be excluded and portions relating to the crime may with the dacoits and saw of the offence of dacoity

statement is made to a customs officer and it is not alleged that

the police were present at that time such statement is clearly admissible in evidence3 Confessional statements made by the accused persons before the customs officers are undoubtedly admissible in evidence Confessional statement made by a detainee before the police can be relevant material

for subjective satisfaction of authorities An Inspector of the Railway Protection Force cannot be deemed to be a Police Officer within the meaning of section 25 of the Evidence Act, and therefore, any confessionalor incriminating statement recorded by him in the course of an inquiry under section8(1) the said section.° of the 1966 Act, cannot be excluded from evidence under 9. Confession Recorded under TADA Act, 1987, Section 15 is Substantive Evidence The Supreme Court has observed that it is not possible to accept the contention that as the accused were in police custody the confessional statements are neither admissible in evidence nor reliable. Custodial interrogation in such cases is permissible under law to meet the grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The defence contention that the guidelines suggested in Kartar Singh v. State of Punjab, were not followed is without any basis because in the present case the confessional statements were recorded prior to the decision in that case, the said guidelines are neither incorporated in the Act nor in the Rules made by Parliament. The Supreme Court has added that this Court did not hold in Kartar Singh's case (supra) that if suggested guidelines are not followed then the confessional statement would be inadmissible in evidence. Similar contention was also negatived by the Supreme Court in S.N. Dube v. N.B. Bhoir," by holding that a police officer recording the confession under section 15 of Terrorist and Disruptive Activities (Prevention) Act, 1987 is really not bound to follow any other procedure, framed by the Bombay High Court for recording the confession by a Magistrate of the under section 164 of the Criminal Procedure Code; the said guidelines do not by themselves apply to a recording of confession under section 15 of 1987 Act and it is for the court to appreciate the confessional statement as a substantive piece of evidence and find out

whether it is voluntary and truthful. In State v. Nalini the Supreme Court negatived the contention that a confessional statement is not a substantive piece of evidence and cannot be used against theco-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another accused, by holding that 1. Bharosa Ramdayal v. Emperor, AIR 1941 Nag 86: ILR 1940 Nag

2.

Adhiklal v. E., AIR 1942 Pat 156: 43 Cr LJ 615.

3. Hazari Singh v. Union of India, AIR 1973 SC 62 (64): 1973 SCC 4. State of Maharashtra v. P.K. Pathak, AIR 1980 SC 1224 (1226): 923. 5. Suman v. State of Tamil LR 47 (FB). 6. 7. 8. 9.

679: 42 Cr LJ 390.

(Cri) 312: (1973) 3 SCC 401. (1980) 2 SCC 259: 1980 Cr L

Nadu, 1986 Cr LJ 1662 (1681): AlR 1986 Mad 318 (Para 39): 1986 Writ

Balakishan A. Devidayal v. State of Maharashtra, AIR 1981 SC 379 (388, 393): 1980 Cr LJ 1424 (1980) 4 SCC 600. (1994) 3 SCC 569: 1994 Cr LJ 3139: (1994) 2 SCR 375. (2000) 2 SCC 254: AIR 2000 SC 776: 2000 Cr LJ 830. (1999) 5 SCC 253: 1999 SCC (Cri) 691.

Sec. 26]

133

Of the Relevancy of Facts

to that extent the provisions of the Evidence Act including section 30 would not be applicable.1 The handcuffing of the appellant accused or another policeman being present in the room with the chain of his handcuff or armed guards present outside the room to be such to constitute that the appellants confessional statement was not made voluntarily. The Supreme Court held that in the present case the confessional statement of the accused would not only be admissible but was voluntary and truthfully made by him on which the prosecution could rely for his conviction. 10. Confession under TADA Act and Retraction at Later Stage In Abdulvahab Abdulmajid Shaikh v. State of Gujarat,5 the accused was arrested by the police and as he expressed his willingness to make a confession, he was produced before the Dy. Commissioner of Police (DCP) and told that he was not legally bound to give a voluntary statement and that in case any statement is found to be false, it would be used against him. The DCP had taken all precautions to ascertain that the confession was voluntary. All formalities had been complied with and these facts were incorporated in the confessional statement. There is nothing on record to show that the accused was under pressure to give any confession. When he was produced before the Magistrate, he had no case that he was put under pressure or third-degree methods had been used against him to extract the confession. When he was questioned under section 313 Cr PC, he had only stated that he had not given any confession as recorded by the DCP. The facts indicated that the confession was voluntary and was recorded by the DCP after apprising him that he was not bound to give a confession and in case he gave the confession, it would be used against him. Therefore, there is no force in the conterntion of the accused-appellants regarding the inadmissibility of the confession. There is ample evidence to show that the confession was truthful and gained support from other items of evidence.

26. Confession by accused while in custody of police not to be proved against him.-No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate,* shall be proved as against such person.

**IExplanation-In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. exercising George ***[***] or elsew re, unless such headman is a Magistrate the powers of a Magistrate

under the Code

of Criminal

Procedure, 1882 (10

of 1882)°I. 1. 2. 3. 4. 5.

Principle Scope Confession Custody Police officer

SYNOPSIS 6. Statements not Amounting to Confession are Admissible 7. 8.

Immediate Presence of a Magistrate Doctrine of "Excluding the Fruit

of a

Poisonous Tree" 9.

Section 8

1. Lal Singh v. State of Gujarat, (2001) 3 SCC 221: AIR 2001 SC 746: 2001 AIR SCW 389. 2. Gurdep Singh v. State (Delhi Administration), AIR 1999 SC 3646: 1999 AIR SCW 3667: 1999 Cr LJ 4573. 3.

(2007) 4 SCC 257 (261-264) (para 8 to 13).

A Coroner has been declared to be Magistrate for the purposes of this section, see the Coroners Act, 1871 (4 of 1871), section 20. ** Ins. by Act 3 of 1891, sec. 3. *** The words "or in Burma" omitted by the A.O. 1937. See now the Code of Criminal Procedure, 1973 (2 of 1974).

134

The Indian Evidence Act, 1872

Sec. 26

Comments 1. Principle This section is a further extension of the principle laid down in section 25. Theobject is to prevent the abuse of the powers by the police. Under section 26 no confessionmade by a person in custody to any person other than a police officer, shall be admissible unless made in the immediate presence of the Magistrate. The reason is that a person in the

custody of the police is presumed to be under their influence and it provides opportunities for offering inducement or extorting confessions. The presence of the Magistratesecures the free and

voluntary

nature of the confession

and the confessing person has the

opportunity of making a statement uncontrolled by any fear of the police." While it is true that a confession made before an officer of the Department ofRevenue Intelligence under the N.D.P.S. Act may not be hit by section 25 yet such a confession must be subject to closer scrutiny than a confession made to private citizens or oficials

who do not have investigating powers under Act. 2. Scope Section 25 applies to confessions made to the police. Section 26 governs confessions to any person other than the police. Hence, sections 25 and while in police custody made

26 do not lay down identical propositions. They provide Section 25 bars a confession

made to a

Police

Officer

two clear and definite rules whether

the confessor is in the

custody of the police or not. While section 26 goes further and enacts that the confession made to any person like a fellow-prisoner, doctor, visitor, etc., while the confessor is in the police custody, is inadmissible unless made in the presence of a Magistrate. Section 26 does not control or qualify the last section, and hencea confession made to a Police Officer is inadmissible even if it was made in the presence of a Magistrate. The law is imperative in excluding what comes from an accused person in the custody of

the police, if it incriminates him." 3. Confession See commentary on section 24.

4. Custody Custody' has the same meaning in section 26 and section 27. A formal accusation or arrest is not necessary to constitute custody as understood in section 26 or section 27.5A person is in

custody from the time when he, either is an accused or as a suspect comes

into the hands or surveillance of a Police Officer and cannot leave.' It is sufficient if the state of affairs is such wherein the accused can be said to have come into the hands of the police officer or can be said to have been under the surveillance or restriction. He will be deemed to be in custody if he is not permitted to depart at his own free-will The custody may not be legal." Even the temporary absence of a policeman on guard does not make it less a police custody. An accused who was in Magisterial custody was sent to a hospital.

In the medical

examination

room the accused made a confession of his

guilt to another patient within the hearing of the doctor. It was held that theconfession was inadmissible as the accused was in the police custody, even though the policemen 1.

Hiran

Miya (in re:), (1877) 1 CLR 21.

2.

Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, 2007 AIR SCW 497: AIR 2007 SC 794: 2007 Cr LJ 1157.

3. Per Mahmud, J. in Queen Empress v. Babulal, 1884 All WN 229: ILR6 4. Queen v. Hurribole Chunder Ghose, (1876) TLR 1 Cal 207: 25 WR Cri 36. 5.

B. v.

Mathews,

10 Cal 1022.

6. Chhobylal, AIR 1954 All 667. 7.

Maharani v. E., 1947 All 7.

8. 9.

Allah Ditta v. Emperor, AIR 1937 Lah 620: 38 Cr LJ 1082 Emperor v. Jagia, AIR 1938 Pat 308: 39 Cr LJ 428.

All 509 (539) (FB).

Sec. 271

135

Of the Relevancy of Facts

were standing outside the verandah.' Woodroffe has rightly observed that "some sort of custody appears to be sufficient." Statement made by the accused to a doctor of a Government Hospital though incriminating is not a confession. It is not hit by section 26 and hence admissible.2 The

accused was in police custody in a different case on the date when he was first brought before the Magistrate for recording his confession; but the Magistrate being aware of the procedure did not record his confession on that date and sent him to correctiornal home. He recorded his confession on the succeeding day. The Magistrate certified that during recording of confession no police personnel were present in his chamber. It was held that it could not be said that the accused was in police custody when his confession was recorded.3 5. Police Officer See commentary

on section 25.

6. Statements not Amounting to Confession are Admissible If a statement made by a person in police custody does not amount to a confession, and is otherwise relevant, eg., as an admission, it will be admissible. The test to determine whether the statement amounts to a confession is whether the statement admits in ternms the offence or at any rate substantially all the facts constituting the offence. The Supreme Court has held that an extra-judicial confession is not hit by section 26; State of Andhra Pradesh v. Gangula Satya Murthy 7. Immediate Presence of a Magistrate A confession is admissible, if made to a Magistrate or to a person other than a Police

Officer but in the immediate presence of the Magistrate, but it will be inadmissible if it is made to a Police Officer even in the presence of a Magistrate. A Coroner is a Magistrate. (See section 20 of the Coroner's Act, 1871). Confession to a private person in the presence of the police is barred by section 26. A statement made to the police and heard by a private person cannot be regarded as an extra-

judicial confession as it is hit by this section. 8. Doctrine of "Excluding the Fruit of a Poisonous Tree" In Selvi v. State of Karnataka,3 it was held that the statements made in custody are considered to be unreliable unless they have been subjected to cross-examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a Judicial Magistrate which can be given weightage. The doctrine of "excluding the fruit of a poisonous tree" has been incorporated in sections 24, 25 and 26 of the Evidence Act, 1872. 9. Section 8

Sections 25 and 26 are not controlled by section 8. Section 8, so far as it permits, the proof of a statement as conduct must be read subject to sections 25 and 26.

27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

1. Emp. v. Mellangauda, 11 Bom LR 683. 2 State of Kerala v. Ammini, AIR 1988 Ker 1: 1988 Cr LJ 107: (1987) 1 Ker LT 928 3. Mohd. Jamiluddin Nasir v. State of West Bengal, (2014) 7 SCC 443. 4.

(1997) 1 SCC 272: AIR 1997 SC 1588: 1997 AIR

SCW 351.

5. (2010) 7 SCC 263 (333): AIR 2010 SC 1974: 2010 AIR SCW 3011.

(FB).

136

The Indian Evidence Act, 1872

Sec. 27

sYNOPSIS 1. Principle 2. Scope

18. Evidence Regarding Recovery 19. Deposed to 20. Fact Discovered in Consequence of

3. Word Distinctly 4.

Sections 24, 25

Section 27 Qualifies

Information 21.

26 5. Applicability of Section 27 6. Section 27 does not

Constitution

and

Offend

Section 27 and

the

Article 14

22. Evidence of the Investigating Officer 23. Disclosure Statements 24.

(Equal Protection of the Laws) 7.

Section

27

and

Article

20

Section

27

Unaffected

by

Sections

16. Discovery Concealment of Weapon

a

Person

Accused

of

the Custody of a Police

25.

Not

26.

So

Necessary

to

take

the Informant

27.

Distinctly to the Fact thereby Discovered Whether it Amounts to Confession or

Accused to the Spot

161,

10. Section 27 and Narco Analysis Polygraph and BEAP Tests 11. Essentials of Section 27 12. Provided that 13. Any Fact 14. "Discovery of Fact" does not Comprehend a Pure and Simple Mental Fact 15. Discovery of Fact Discovery of Electric Wire

from

Officer

(Self-

162, Cr. P.C. 9. Section 27 and Section 26

17.

Received

any Offence in (3)

incrimination) 8.

Statement of the Accused Inadmissible

much of such

Information

as Related

not 28. Joint Statements 29.

30. 31.

32. 33.

Statement

Admissible

under Section 27

cannot be Proved against others Information must Precede Discovery Evidentiary Value of the Discovery and the Accompanying Statements Pointing Out Places Evidence of Recovery

Comments 1. Principle Sections 24 to 26 state the rules of exclusion of confessions. Section 24 forbids confessions caused by inducement, etc. Section 25 hits confessions made to a police officer. While section 26 excludes confessions made by the accused while in poice custody. But although such improperly obtained confessions are inadmissible under these provisions, they may lead to the discovery of facts, things, documents, etc., in consequence of some information contained in the confession made by the accused in custody. When a statement (whether amounting to a confession or not) leads to the discovery of some dead body, weapon or ornaments, the presumption of falsity attached to the excluded confessions disappears and that part of the information which relates distinctly to the discovery of a fact is held to be admissible by the theory of confirmation by subsequent facts, Hence in State of Uttar Pradesh v. Deonman Upadhyaya' case Shah, J, has observed that "section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police

officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore, declared provable in so far as it distinctly relates to the fact thereby discovered." In other words as observed by Bhagwati, J. in the case of Ramkishan v. State ofBombay- "The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence."3

1.

AIR 1960 SC 1125: 1960 Cr

LJ 1504: 1961 (2) SCJ 334 (337):

(1961) 1 SCR 14. See also QE. v.

v. State of Bombay, AIR 1955 SC

104: 1955 ScJ 129: 1955 SCR903

3. Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 1955 Cr LJ 196 (208).

104: 1955 SCJ 129: 1955 SCR903

Nana, 14 Bom 260 (FB). 2.

Ramkishan Mithanlal Sharma 1955 Cr LJ 196.

Sec. 27]

137

Of the Relevancy of Facts

A reading of section 27 of the Evidence Act makes it clear that what is allowed to be proved is the information of such party thereof as relates distinctly to the fact thereby

discovered. The very language of this section indicates statement by an individual accused and the discovery in pursuance of such statement. A joint statement followed by a joint recovery is inadmissible.2 Thus, if the confession is supported by the discovery of a fact it is presumed to be proved and not to have been extracted. It is obvious that the provisions of section 27 Evidence Act are not restricted

to

"confessions", but its net is much wider that can contain all statements containing information that lead to discovery of facts. 2. Scope

The important point about section 27 is that it is an exception to the exclusionary rules enacted in sections 24, 25, 26 which are themselves exceptions to the general rule

that the confession is provable against its maker as an admission. According to section 27, when any fact is deposed to as discovered in consequence of information received from an accused person in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered,

may be proved. As an exception, section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against

him, if the same leads to the discovery of an unknown fact. The rationale of sections 25 and 26 of the Evidence

Act is, that police may

procure a confession by coercion or threat.

The exception postulated under section 27 of the Evidence Act is applicable only if the confessional statenment leads to the discovery of some new fact. The relevance under the exception postulated by section 27 aforesaid, is limited "... as relates distinctly to

the fact thereby discovered....". The rationale behind section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, section 27 aforesaid has been incorporated as an exception to the mandate contained in

sections 25 and 26 of the Evidence Act. In State of Rajasthan v. Bhup Singh,6 the Supreme Court observed the

following:

the conditions prescribed in section 27 of the Evidence Act, 1872 for unwrapping the cover of ban against admissibility of the statement of the accused to the police (1) a

fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the Custody of a police officer when he supplied the information; (4) the fact so discovered

should have been deposed to by the witness. If these conditions are satisfied, that part of the information given by the accuse which led to such recovery gets denuded of the

wrapper of prohibition and it becomes admissible in evidence. Section 27 renders information admissible on the ground that the discovery of a tact pursuant to a statement made by a person in custody is a guarantee of truth of 1. Gendra Brahma v. State of Assam, 1981 Cr LJ 430 (Gau).

2.

Kanuri Yanadi v. State of Andhra Pradesh, 1985 Cr LJ 1822; contra AIR 1958 All 467: 1958 Cr LJ 821.

3. Nabi Mohammed Chand Hussam v. State of Maharashtra, 1980 Cr LJ 860 (873): 1979 Bom CR 680

(Bom) 4. Ahmed Noor Khan v. State of Assam, AlR 1972 Gau 7 (10): 1972 Cr LJ 779. 5. Madhu v. State of Kerala, (2012) 2 SCC 399: AIR 2012 SC 664: 2012 AIR SCW 782. 6. JT 1997 (1) SC 479: 1997 SCC (Cri) 1032: (1997) 10 SCC 675 (para 14); Sahadevan v. State of

Tamil Nadu, 2012 Cr LJ 3014: AIR 2012 SC 2435: (2012) 6 SCC 403 (para 36).

138

The Indian Evidence Act, 1872

Sec. 27

the statement made by him and the legislature has chosen to make on that ground an

exception to the rule prohibiting proof of such statement Under section 26 the exact statement of the accused which led to the discovery is needed. The statement is to be recorded by the police officer in as far as possible in the

language of the accused

3. Word Distinctly' The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually

discovered in consequence of information given by the accused, it affords someguarantee of truth of that part, and that part only, of the information which was the clear,immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." 4. Section 27 Qualifies Sections 24, 25 and 26 It is unsatisfactory as it opens with a proviso. Hence, for determining its scope, it is

necessary to know as to which of the preceding provisions of sections 24, 25 or 26 does it control. In English Law, the confession made by an accused person to a police officer or whilst he is in police custody is admissible. Hence, the rule in section 27 is an exception only to the rule corresponding to section 24. But the Supreme Court of India has held that section 27 is a proviso to all the three preceding sections. Section 27 qualifies not only section 26 but cuts down the operation of sections 24 and 25 as well. In the Babulal'scase' the majority of the Full Bench held that section 27 is a proviso to sections 25 to 26. The Supreme Court has held that: "Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act." Thus if an accused person makes a statement in consequence of some improper inducement, threat or promise and some fact is discovered as a result of the statement, the statement cannot be excluded from evidence under section 24 Thus, the position in law that section 27 qualifies sections 24, 25 and 26 in effect modifies the

protection

given to the accused by these three provisions in respect of excluding his

confessional statements from being proved against him. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly sections 25 and 26 5.

Applicability of Section 27 The position of law in relation to section 27 of the Evidence Act was elaboratelymade clear by Sir John Beaumont in Pulukuri Kottaya v. Emperor, wherein it was held: "Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements 1.

State of Uttar Pradesh v. Deoman Upadhyaya, AlR 1960 SC 1125: 1960 Cr LJ 1504: 1961 (2) SCJ 334: (1961) 1 SCR 14.

Phusu Koiri v. State of Assam, 1986 Cr LJ 1057 (Gau). Mohmed Inayatullah v. State of Maharashtra, AlR 1976 SC 483: 1976 715; see also Amitsingh Bhikaramsingh Thakur v. State of Maharashtra, LJ 1168: (2007) 2 SCC 310. Mistri v. R., 10 Cr LJ 439 (FB). 4. 5. 1884 All WN 229: ILR 6 All 509 (539) (FB).

3.

(1) SCJ 517: (1976) 1 SCR

AIR 2007 SC 676: 2007 Cr

6. E. v. Remis, 1947; Pat. Neharu Mangatu v. E., ILR 1937 Nag 268.

i

7. Mohmed Inayatullah v. State of Maharashtra, AIR 1976 SC 483 (485): SCR 715. 8. AIR 1947 PC 67: 74 IA 65: 48 Cr L 533.

1976 (1) SCJ 517: (1976)1

AlE IO. LI1)S0uh

i

Sec. 271

139

Of the Relevancy of Facts

made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon s0 much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of

information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or

ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the

two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence

might be induced to confess by the exercise of

undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to section 26, added by section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in

the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the informant to discovery of the fact that a knife is concealed in the house of the commission his knowledge, and if the knife is proved to have been used in the of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant." In State of Uttar Pradesh v. Deoman Upadhyaya' the Supreme Court held that sections 25 and 26 were manifestly

intended to hit an evil, viz., to guard

against the danger of

receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery 1.

AIR 1960 SC 1125: 1960 Cr LJ 1504: 1961

(2) SCJ 334: (1961) 1 SCR 14.

tusinie

140

The Indian Evidence Act, 1872

of a fact

pursuant

to a statement

Sec.

27

made by a person in custody is a guarantee of truth

of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The accused Deoman had made a statement to hand over the gandasa which he stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending article 14 of the Constitution of India, 1950 was unenforceable. In State of Maharashtra v. Damu Gopinath Shinde, the Supreme Court has held that the basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but it results in discovery of a fact it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as

envisaged in section. In Gulab Chand v. State of Madhya Pradesh where ornaments of the deceased were recovered from the possession of the accused immediately after the ocCurrence, the Court held that it is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. In Madhu v. State of Kerala' it was held that as an exception, section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of sections 25 and 26 of the Evidence Act is, that

police may procure a confession by coercion or threat. The exception postulated under section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by discovered..". section 27 aforesaid, is limited "... as relates distinctly to the fact thereby The rationale behind section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself substantiates the truth of the confessional statement. And since it is truth that a court must

endeavour

to search,

section 27 aforesaid has been

incorporated as an

exception to the mandate contained in sections 25 and 26 of the Evidence Act. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under the Indian criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then

the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settledcanons

of criminal jurisprudence

1. AIR 2000 SC 1691: 2000 (6) SCC 269: 2000 Cr LJ 2301: JT 2000 (5) SC 575. 2. AlR 1995 SC 1598: 1995 AlR SCW 2504: 1995 SCC (Cri) 552. 3.

(2012) 2 SCC 399: AIR 2012 SC 664: 2012 AIR SCW 782.

4.

State of Rajasthan v. Shera Ranm, AIR 2012 SC 1: (2012) 1 SCC 602: (2011) 13 SCALE 140.

Sec. 271

141

Of the Relevancy of Facts

6. Section 27 does not Offend the Constitution Section 27 and Article 14 (Equal Protection of the Laws) The first objection raised against the validity of section 27 was that it was unconstitutional as it violates Article 14 of the Constitution guaranteeing equal protection of the laws, since section 27 makes an unjust discrimination between statements made by persons in custody, and persons not in custody, inasmuch as statements made by persons in custody, leading to the discovery of a fact are made admissible under section 27. Since statements made by persons not in custody under similar circumstances are not provable and persons not in custody enjoy better protection against self-incrimination, this distinction appears to be somewhat paradoxical. A Full Bench of the Allahabad High Court upheld this contention and declared section 27 to be void as offending against Article 14. But the Supreme Court, in appeal negatived the contention and held that the classification between persons in custody and persons not in custody was manifestly reasonable and refused to strike down section 27. 7. Section 27 and Article 20 (3) (Self-incrimination) In State of Bombay v. Kathi Kalu Oghad,? it was urged that section 27

was ultra vires as it offends against the protection guaranteed under Article 20(3) against testimonial compulsion. The Supreme Court of India in Kathi Kalu Oghad's case held that compulsion not being inherent or implicit the fact of the information having been received from a person in custody, the contention that section 27 of the Evidence Act necessarily infringes Article 20(3) of the Constitution cannot be accepted. Sinha, CJ, observed that whether compulsion was used or not "will be question of fact in each to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it"3 The Delhi High Court has laid down that a person during his police-interrogation cannot demand as of right the presence of a lawyer. The Court observed that section 162, Cr. P.C. and sections 24 to 30 of the Evidence Act already have taken care of the

constitutional right by excluding from evidence all self-incriminatory statements whether voluntary or involuntary. But at the same time a police officer should bear in mind that presence of a lawyer will avoid any criticism of any confession that may be made by the person concerned during the interrogation.3 Section 162 of the °Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of investigation at any

enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by the section 145 of the Indian Evidence Act. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 32(1) of the Indian Evidence Act or permitted to be proved under section 27 of the Indian Evidernce Act." 8. Section 27 Unaffected by Sections 161, 162, Cr. P.C. In Deoman Upadhaya's case, it was held that the

amendment

of

section

162,

Cr. P.C. that nothing in that section affects the provisions of section 27 has now set an 1. State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125: 1960 Cr LJ 1504: 1961 (2) SCJ 334 (337): (1961) 1 SCR 14; See also Queen Empress v. Nana, 14 Bom 260 (FB). 2.

(1963) 1 SCJ 195: AIR 1961 SC 1808:

(1961) 2 Cr LJ 856.

3. State of Uttar Pradesh v. Deoman Upadhyaya, 1961 (2) SCJ 334 (337): AIR 1960 SC 1125: (1961) 1 SCR 14.

4. Ram Lalwani v. State, 1981 Cr LJ 97 (100): 1980 (18) DLT 141; contra: Abdul Rajak Haji Mohammed v. Union of India, 1986 Cr LJ 2018: 1986 (10) ECC 237: 1986 (25) ELT 305 (Bom). 5. Jagir Singh v. State, 1986 Cr LJ 841: 1985 Mad LW (Cri) 214: 1985 Mad LJ (Cr) 493. 6. See now Criminal Procedure Code, 1973. 7. Hazari Lal v. State (Delhi Administration), AIR 1980 SC 873 (876): 1980 Cr LJ 564: (1980) 2 SCC 390.

142

The Indian Evidence Act, 1872

Sec.

27

old conflict at rest. Section 162 of the 1Code of Criminal Procedure also enacts a rule of evidence. "By the combined operation of section 27 of the Evidence Act and section 162 of the 'Code of Criminal Procedure, the admissibility in evidence against the person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact, depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time when he made it, otherwise it is not". (Per Shah, J.). 9. Section 27 and Section 26 Even though section 27 is in the form of a proviso to section 26, the two sections

do not necessarily deal with evidence of the same character. The ban imposed by section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to the discovery of facts. By section 27 even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as it distinctly relates to the fact

discovered.

By section 26 a confession

made in the presence of a

Magistrate is made provable in its entirety. 10. Section 27 and Narco Analysis, Polygraph and BEAP Tests In Selvi v. State of Karnataka", it was held that no individual should be forcibly subjected to any of the techniques (namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test) in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. The Court left room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does ne test. not exercise conscious control over the responses during the administration However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with section 27 of the Evidence Act, 1872 but the same should be supported with the guidelines givern by the National Human Rights Commission (Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000) are as under:

(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. i) If the accused volunteers for a lie detector test, he should be given accessto a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (ii) The consent should be recorded before a Judicial Magistrate.

During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the

iv)

statement that is made shall not be a

"confessional"

statement to the Magistrate

but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. 1. See now Criminal Procedure Code, 1973. 2. State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125: 1960 Cr LJ 1504: 1961 (2) S) 3.

334: (1961) 1 SCR 14. (2010) 7 SCC 263: AIR 2010 SC 1974: 2010 AIR SCW 3011.

143

Of the Relevancy of Facts

Sec. 27]

(vii) A full medical and factual narration of the manner of the information received must be taken on record. These Guidelines should be strictly adhered to and

similar safeguards should be adopted for conducting the "narco analysis technique" and the "Brain Electrical Activation Profile" test. 11. Essentials of Section 27 (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered in consequence of some information received from the accused (and not by the accused's own act). 3) The information may or may not amount to a confession. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of the police officer. The word "custody" cannot be said to mean only when the accused is actually taken into custody by the police officer. (6) The discovery must be related to the fact deposed to.

thereupon that portion only of the information

(7) And to the fact

which relates distinctly

discovered can be proved, the rest of the statements of the accused being

inadmissible. In Anter Singh

v. State of Rajasthans it was held that the first condition necessary for bringing section 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused mu be in police custody. The last but the most important condition is that, only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. 12. Provided that It is rather unusual for a section to open with a proviso. It is now well-settled that the proviso contained in section 27 governs sections 24, 25 and 26. 13. Any Fact The fact of which

evidence is to be given

ought to be a relevant fact, i.e., a material

fact. The relevancy of the fact discovered must be proved by other evidence that the articles discovered were connected with the offence charged. 'Fact' as defined in section 3 includes both physical and psychological facts. The Supreme Court of India has held in Udaibhan v. State of Uttar Pradesh, that "a discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence".

(Kapur, J).

The information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the "Cause and effect." That

information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under section 27 and cannot be proved." 1.

Amitsingh

Bhikaramsingh

Thakur v. State of Maharashtra, AlIR 2007 SC 676: 2007 Cr LJ 1168:

(2007) 2 SCC 310 (321) (para 19). 2. Umed v. State of Madhya Pradesh, 1978 ALJ 616 (621, 622). 3. (2004) 10 SCC 657: AIR 2004 SC 2865: 2004 Cr LJ 1380; See also Sanatan Naskar v. State. of West Bengal, (2010) 8 SCC 249: AIR 2010 SC 3570: 2010 Cr LJ 3871. 4. AIR 1962 SC 1116: (1962) 2 Cr LJ 251: 1963 (1) SC] 454 (456). 5. Himachal Pradesh Administration v. Om Prakash, AlR 1972 SC 975 (984, 985): 1972 (1) SCI 691: (1972) 2 SCR 765.

144

The Indian Evidence Act, 1872

Sec. 27

14. "Discovery of Fact" does not Comprehend a Pure and Simple Mental Fact In State (NCT of Delhi) v. Navjot Sandhu,' it was held that the 'discovery of fact' does not a pure and simple mental fact or state of mind relating to a physical objectdissociated from the recovery of the physical object [that is, it does comprehend the second limb of the definition of 'fact' contained in section 3 "Fact" (2) of the Evidence Act, 1872]. 15. Discovery of Fact In a case of child sacrifice a brass pitcher used for collecting blood of children was recovered at the instance of the aceused. There was blood on the pitcher and it was for the accused to explain how it was. The Supreme Court observed that when the accusedeven denied the seizure of the pitcher, such a denial in this context is not inconsequential. In another case a similar denial was treated by this court as sufficient to provide a 'missing link' to the chain of circumstances. The Court added that no doubt the information permitted to be admitted inevidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." In the present case the fact discovered by the investigating officer is that A3 had carried the dead body to the spot on a motor cycle. The recovery of the dead body from the same canal was antecedent to the information which the investigating officer obtained. The broken glass piece was recovered from the same spot and that piece was found to be part of the tail lamp of the motor cycle of the accused. It can safely be held that the investigating officer discovered the fact that the accused had carried the dead body on the particular motor cycle upto the spot. The Supreme Court held that in view of the said discovery of the fact the information supplied by the accused that the dead body was carried on his motor cycle upto the particular spot is admissible in evidence. The information proves the prosecution case to the above mentioned extent." In State (NCT of Delhi) v. Navjot Sandhu, it was held that the discovery of fact cannot be equated to the object produced or found because the information given by the accused exhibited knowledge or mental awareness of informant as to its existence at the particular place. Dhivar the accused was found guilty of the In State of Maharashtra v. Bharat Fakir offence of rape and murder of a three year old girl. On the basis of information given by the accused certain articles used in the commission of the offence were recovered from the tall grass while others were recovered from where they were buried. It was contended that no reliance could be placed on the information given by the accusedas the articles were found in an open place. The court rejecting the contention said that unless the articles were discovered at the instance of the accused, their hidden state remained unhampered and it was only the accused who knew where they were until he disclosed it. the question was whether discovery of In Bodh Raj v. State of Jammu and Kashmir weapon of assault on the basis of information given by the accused while in custody, was sufficient to fasten the guilt of the accused. The court expressed the view that the exact information given by the accused which leads to the recovery of the incriminating article must be proved and only then could such information become the basis of convicting the accused. In the words of the court "It is... necessary for the benefit of both the accused and prosecution that the information given should be recorded and proved and if not so recorded and proved the exact information must be adduced through evidence. The basic idea embedded in section 27 of the Evidence Act is the Doctrine of 1.

AIR 2005 SCW 4148: 2005 (6)

2. 3.

State of Maharashtra v. Suresh, (2000) 1 SCC 471: JT 1999 (9) SC 513. State of Maharashtra v. Damu Gopinath Shinde, AIR 2000 SC 1691: (2000) 6 SCC 269: 2000 LJ 2301: JT 2000 (5) SC 575. 2001 AIR SCW 4609: AIR 2002 SC 16: 2002 Cr LJ 218. AIR 2002 SC 3164: 2002 AR SCW 3655: 2002 Cr LJ 4664.

4. 5.

SCALE 177: (2005) 11 SCC 600.

145

Of the Relevancy of Facts

Sec. 271

Confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is

true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information." The court further observed that it is now well settled that recovery of object, is not discovery of fact envisaged under section 27. It also embraces the place from which the object was produced, and the knowledge of accused as to it. The court further emphasised that the information admitted under section 27 must relate to "the fact thereby discovered" and must not be truncated as to make it insensible. The court, therefore, held that the mere statement that the accused led the police and witnesses to the place where he had concealed the article is not indicative of the information as contemplated under section 27. In Salim Akhtar Mota v. State of Uttar Pradesh,2 the Apex Court has again held that it is fallacious to treat the "fact discovered" under section 27 as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. In mspector of Police, Tamil Nadu v. Balaprasanna, the Supreme Court has held that the prosecution while relying upon the confessional statement leading to discovery of articles under section 27 of the Evidence Act has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. 16. Discovery Concealment of Weapon The Supreme Court has observed that the designated court was inclined to believe the fact that the police officer who recorded the said information would have stopped eliciting from the accused anything regarding the spot where the weapon was kept or at least the place where the spot is located, or at least some other idea regarding the place of such concealment of the weapon. The designated court pointed out that from the very same place a similar weapon was recovered first a couple of days ago pursuant to the information elicited from another accused by the very same police officer. The designated court found it difficult to place reliance on the recovery as pursuant to the information allegedly made by the accused. A doubt has been entertained that when the investigating officer recovered a firearm from the very same place two days earlier he Court would have left the place without making a detailed search at all. The Supreme held that the reasons stated by the trial court cannot be dubbed as unreasonable and

the court of appeal cannot interfere

with an order of acquittal

upholding that the said

reasons are so unreasonable. In Nisar Khan v. State of Uttaranchal,? the Apex Court has observed that when the evidence was on record that the accused were arrested and pursuant to a disclosure statement made by them, the arms were recovered from the bank of river, where they had been hidden under the sand and covered with the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in the error in holding that the recovery has not been proved as those the High were recovered from a place which is frequented by the public. This finding of Court is contrary to the evidence on record. The Supreme Court reiterated that it is now well-settled principle of law that the recovery pursuant to the disclosure statement made by the accused under section 27 of the Evidence Act is admissible in evidence. The Court 1. See also State of Maharashtra

v. Damu Gopinath Shinde, AlR 2000 SC 1691: 2000 (6) SCC 269:

2000 Cr LJ 2301: JT 2000 (5) SC 575. 2. 2003 (3) RCR (Criminal) SC 67.

3. AIR 2009 SC (Supp) 648: (2008) 11 SCC 645 (652) (para 14). 4. State of Maharashtra v. Girish Ghanshyam Dube, (2000) 9 SCC 400: 2001 AIR SCW 2309. 5.

(2006) 9 SCC 386 (388)

(para 6).

146

The Indian Evidence Act, 1872

(Sec. 27

in Dhananjoy Chatterjee v. State of West Bengal,' held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under section 27 of the Act. It was also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It was further also held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.

17. Discovery of Electric Wire In Bhagwan Das v. State (NCT)

of Delhi2 the accused had given a statement to the

SDM in the presence of a Police Inspector which led to discovery of the electric wire by which the crime was committed. The court held that the disclosure was admissible as evidence under section 27 of the Evidence Act. 18. Evidence Regarding Recovery The Investigating Officer is not obliged to obtain signatures of an accused in any statement attributed to him while preparing a seizure memo for the recovery of any article covered by section 27 of the Evidence Act. But if any signature has been obtained by an Investigating Officer there is nothing wrong or illegal about it. The Supreme Court held that the signature of the accused in the seizure memo would not vitiate the evidence regarding the recovery of axes." However, in Govindaraju alias Govinda v. State by Sriramapuram P.S. the Supreme Court has held that absence of the signatures of the accused on the memos upon their disclosure

statements, is a defect in the recovery of

weapons. Minor omissions/contradictions regarding labelling and sealing of the recovered article are not really the contradictions, which go to the root of the matter. In the instant case, non-examination of the watchman, or omission of the factor regarding electricity being not mentioned in the panchnama, or norn-collection of broken lock are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence

of recovery. Where recovery was made on the disclosure by the accused, its evidentiary value would not be affected by the fact that panch witnesses were all police personnel 19. Deposed to The phrase means 'can be proved'. The exact infornmation should be deposed to

before this provision comes into play. Section 27 is not attracted, if the police officer does not depose to the exact information given by the accused and states only that "in consequence of a certain

statement

made by the

accused", or "at the instance of the accused .... However, the evidence given by the police officer that Beleram, a person pointed out by accused No. 1, dug out the tin box containing ammunition at the instance of accused No. 1, was admitted against accused No. 13

1. (1994) 2 SCC 220: 1995 AIR SCW 510. 2.

AlR 2011 SC 1863: 2011 AIR SCW 2867: 2011 Cr LJ 2903.

3.

State of Rajasthan v. Teja Ram, (1999) 3 SCC 507: AIR 1999 SC 1776: 1999 AIR SCW 1514;, Suni

4.

Chifford Daniel v. State of Punjab, (2012) 11 SCC 205 (para 38). AIR 2012 SC 1292: 2012 AIR SCW 1994: (2012) 4 SCC 722 (para 51).

5. 6.

Yakub Abdul Razak Memon v. State of Maharashtra, Munish

(2013) 13 SCC 1 (para 1976).

Mubar v. State of Haryana, 2013 Cr LJ 56: 2012 AIR SCW 5454: AIR 2013 SC 9N2

(para 25). 7. Naresh, 1924 Cal 593. 8.

Ramkishan

903.

Mithanlal

Sharma v. State of Bombay, AIR 1955 SC 104: 1955 SCJ 129: 1955 S

Sec. 271

20. Fact Discovered

147

Of the Relevancy of Facts

in Consequence of

Information

When a statement made by an accused person while in custody of a police officer is tendered in evidence under section 27 on the ground that an article which is concealed and the accused's knowledge about its whereabouts, are discovered in consequence of the statement, the words included in the statement with regard to the authorship of the concealment, e.g., "T have concealed", "I have hidden", or "I have kept" are admissible in evidence under section 27 of the Act. Before section 27 of the Indian Evidence Act can come into play, there must be a fact discovered in consequence of some information received from an accused person. Thus, information given by the accused person is the cause which sets the police in motion, while the facts discovered in consequence of the said information is the result. Facts consist of physical facts like knife or the psychological facts like the knowledge of the accused person that the knife is hidden in a particular place. The fact discovered embraces the object found, the place from which it is produced and the knowledge of the accused as to its existence. Thus, both according to the Privy

Council and the Supreme Court of India the facts discovered cover not only the physical facts discovered, but it also covers the psychological fact, viz., the knowledge of the accused that he had concealed the object in that place. The reason for

including the

knowledge of the accused person in the import of the words "fact discovered" is given by Sir John Beaumont in the case of Kottayya as follows:"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user or the past history of the object produced is not related to its discovery, in the setting in

which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house," does not lead to the discovery of knife; knives were discovered many years ago. It leads to the discovery of the fact that the knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant." It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances and to failure to explain one

of the circumstances

would not be fatal to the prosecution case

and cumulative effect of all the circumstances. 21. Statement of the Accused Inadmissible The Supreme Court observed that there is nothing in section 27 of the Evidernce Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is opern or accessible to others it would vitiate the evidence under section 27 of the Act. Any object can be concealed in places which are open or accessible to others. The Supreme Court added that the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not then it is immaterial that the concealed place is accessible to others. 1. State v. Rama Shidappa, 54 Bom LR 316 (FB); See also Q.E. v. Nana, 14 Bom 260 (FB). 2. Udaibhan v. State of Uttar Pradesh, AIR 1962 SC 1116: (1962) 2 Cr LJ 251: 1963 (1) ScJ

(456). 3. Pulukuri Kottaya v. Emperor, AIR 1947 PC 67: 74 IA 65: 48 Cr LJ 533. 4. Imspector of Police, Tamil Nadu v. john David, (2011) 5 SCC 509: 2011 Cr LJ 3366: 2011 AIR SCW 2764. 5. State of Himachal Pradesh v. Jeet Singh, 1999 Cr LJ 2025: 1999 AIR SCW 982: AIR 1999 SC 1293

Cri. 4 No. 100 of 1998 D/25-7-1990 (HP) Reversed.

454

148

The Indian Evidence Act, 1872

Sec. 27

22. Evidence of the Investigating Officer The Supreme Court has observed that information leading to recovery of weapons is admissible evidence under section 27 of the Evidence Act, but admissibility alone would not render the evidence pertaining to the above information reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily give by the accused. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. In the instant case there are material discrepancies in the evidence of the eye-witness and that of the Investigating Officer regarding the time when the police took the accused in custody. The Supreme Court added that the evidence of the Investigating Officer regarding recovery of weapons at the instance of the accused cannot be relied upon especially when the public prosecutor has avoided putting any questions in that regard to those witnesses when opportunity for re-examination

was provided to him. In Lakhwinder Singh v. State of Punjab; certain incriminating material was recovered from place of occurrence which was witnessed by the police inspector and an independent witness. But in this case the independent witness was not examined and the police inspector was shown in the duty register to have departed from the police station a day before the Investigation Officer took up the investigation. The court held that the seizure made was doubtful. When recovery of incriminating articles is witnessed by thousands of people it casts a doubt on the information given by the accused as such a large gathering cannot remain present unless the people had already come to know that there was going to be recovery. It has been held in State of Uttar Pradesh v. Arun Kumar Guptat that the recovery of bloodstained earth and weapon as incriminating articles from the place of occurrence of the crime is doubtful without chemical examination. In a case the shirt worn by the deceased was recovered on the basis of a statement of accused specifying the place where he had concealed it. Pursuant to the said statement the shirt was recovered therefrom. The Supreme Court observed that the statement of the accused would fall within the purview of section 27 of the Evidence Act and, if it is believed, it would show that the shirt was concealed by the accused. The Supreme Court held that it did not find any reason to disbelieve the evidence of the investigating officer regarding recovery of the shirt.3 In spite of the fact that in case there is no independent witness to the recoveries and the panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case the defence did not ask the investigating officer in the crosS-examination as to why an independent person was not made the

panch witness. 23. Disclosure Statements The Supreme Court has observed that section 27 of the Evidence Act is a proviso to sections 25 and 26 of the Act and renders information admissible on the ground of discovery of a fact

pursuant to a statement made by a person in custody. It is a guarantee of truth of the statement made by him and the legislature has chosen to make on that

ground an exception to the rule prohibiting proof of that statement. The Supreme

Court

held

that on the basis of evidence

conspectus of the case the trial court 1. Rammi v. State of Madhya Pradesh, 2. 2003 AIR SCW 2777: AIR 2003 SC

adduced in the whole

rightly concluded that the accused having adagger AIR 1999 SC 3544: 1999 AIR SCW 3546: 1999 Cr LJ4561 2577: 2003 Cr LJ 3058.

3. 4.

Babudas v. State of Madhya Pradesh, (2003) 9 SCC 86: 2003 AIR SCW 2483. 2003 AIR SCW 231: AIR 2003 SC 801: 2003 Cr LJ 894.

5.

State of West Bengal v. Mir

Mohammad Omar, AlR 2000 SC 2988: (2000) 8 SCC 38: 2000 Al

SCW 3230. 6. Munish Mubar v. State of Haryana, AIR 2013 SC 912: 2012 AIR SCW 5454: (2012) 10 SCC 4 (para 32).

Sec. 27]

Of the Relevancy of Facts

149

had used the deadly weapon and killed the deceased while the other three accused who

had participated in the crime indulged in robbery. The statements insofar as they concern the use of various articles in commission of crime and recovery of such articles and stolen items, would forma valid and admissible piece of evi ence for the consideration of the court. The history given to the doctor at the time of treatment would not be strictly an extra-judicial confession, but would be a relevant piece of evidence, as these documents had been prepared by the doctor in the normal course of her business. Even the accused did not dispute that they were given treatment by the doctor in relation to the injuries.2 24. Received from a Person Accused of any Offence in the Custody of a Police

Officer "Before the provisions of section 27 of the Evidence Act are attracted, two essential requirements should be satisfied, viz., that the person making the statement is accused of any offence and is also in the custody of a police officer. It is only then that the

information leading to the discovery could be received in evidence. If either of the two conditions is not complied with, the statement would fall outside the purview of that section."3

This section, being in the nature of exception, must be strictly construed. Therefore the section has no application where the person giving information is an accused but not in custody or is in custody, but not an accused or is neither an accused, nor in custody.*

It is not necessary that he should have been accused of and in custody for the offence confessed. A person went to the police station and stated "I went to the west facing room and finding my wife sitting wounded her and she became senseless." The police officer went to the room and found the corpse of the woman there. This statement was held inadmissible on the ground that at the time of making it the informant had not been accused of any offence. Statement of accused leading to the discovery of the article was not admissible. The expression 'accused of any offence' is descriptive of the person against whom evidence relating to the information alleged to have been given by him is made provable under section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a

condition of its applicability Custody does not necessarily mean detention or confinement. Submission to custody by word or action under section 46(1), Cr. P.C., may amount to custody.0 Police custody does not mean formal arrest. It also includes police surveillance and restriction of the movements of the person concerned by the police. The expression "custody" in section 27 of the Evidence Act connotes some restraint on the freedom of a person whether by word or action. It was held that it did not mean custody after formal arrest.2 1. Sanjay v. State (N.C.T. of Delhi), (2001) 3 SCC 190: AIR 2001 SC 979: 2001 AIR SCW 767.

2. Munna Kumar Upadhyaya v. State of Andhra Pradesh, (2012) 6 SCC 174 (para 55): 2012 Cr LJ 3068: AIR 2012 SC 2470.

3. Malladi Ramaiah (in re:), 68 Andh LW 600: 14 Bom 260 (FB). 4. Mathura v. E., 24 Pat 671. 5. Kamakshi Naidu (in re:) 1943 Mad 89. 6. Deonandan Dusadh v. E., 29 Cr LJ 790.

7. Abdul Sattar v. Union Territory, Chandigarh, AIR 1986 SC 1438: 1986 Cr LJ 1072: 1985 SCC (Cri) 505. 8. State of Uttar Pradesh v. Deoman Upadhyaya, AlR 1960 SC 1125: 1960 Cr LJ 1504: 1961 (2) SCJ 334: (1961) 1 SCR 14.

9. See now Criminal Procedure Code, 1973.

10. Santokhi Beldar v. Emperor, AIR 1933 Pat 149: ILR 12 Pat 241: 34 Cr LJ 349 (SB) (FB).

11. Gurdial Singh v. Emperor, 1932 (33) Cr LJ 756: AIR 1932 Lah 609. 12. Onkar v. State of Madhya Pradesh, 1974 ALJ 377 (384); See also Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509 (para 22).

The Indian Evidence Act, 1872

150

ISec. 27

In Deoman Upadhya's case, Shah, J., has observed that "When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police.

Section 46 of the 'Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody:

submission

to the

custody by word or

action by a person is suficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of section 27 of the Indian Evidence Act." 25. Not Necessary to take the Informant Accused to the Spot The Supreme Court in State (NCT of Delhi) v. Navjot Sandhu,2 the court held that though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz, the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of section 27. It would be subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to thespot, it will have no bearing on the point of admissibility under section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence. 26. So

much

of

such

Information

as

Related

Distinctly

to

the

Fact thereby

Discovered The strict view was propounded by Lord Williams, J., of the Calcutta High Court in the case of Remembrancer of Legal Affairs v. Bhajoo Majhi. According to him the practice in England is to adopt the stricter interpretation in view of the history of the rule. Hence,he held that the only fact admissible under section 27 is that in consequence of information received from an accused person the relevant fact was discovered and that the details of the information as for example the statement "I threw the deceased into the river" cannot be admitted. Thus, according to this authority to give a natural meaning to the wording of section 27 would be to render section 26 practically useless. According to this strict view the portion of information admissible is "that the deceased is in the river" only. While the words, "I threw" indicating the authorship of concealment of thecorpse in the river by the accused are not provable. The other extreme view was taken by the Full Bench of the Madras High Court in Athappa Goundan, wherein the whole statement was held to be admissible viz., that the accused and his co-accused had killed the victim by gagging his mouth with a cloth and

throttling his neck with hands and also by putting a rope and pressing it, connecting the rope and the cloth directly with the offence and hence the whole information was held to be

admissible

1. See now

(Beasley, C.J.).

Criminal

Procedure Code, 1973.

2. AIR 2005 SCW 4148: 2005 (6) SCALE 177: (2005) 11 SCC 600. 3. 57 Cal 1062: AIR 1930 Cal 291 4. (1937) 38 Cr LJ 1027: AlR 1937 Mad 618: ILR 1937 Mad 695 (FB).

Sec. 27]

151

Of the Relevancy of Facts

Discovery of the dead body of the deceased,or the information given by the accused when he was in police custody is not a conclusive circumstance though undoubtedly it raises a strong suspicion against the accused.

In Bhika v. R. Beaumont, C.J., observed that, "This court has pointed out over and over again that a statement that the accused has committed murder does not fall within section 27, because it is a statement not required to lead up to the production of the property. It is quite enough to say that he would show the property belonging to the deceased."

This view was upheld by the Privy Council in Kotayya's case.3 That case set at rest the controversy between the restricted interpretation as adopted by the Madras High Court. Therein Beaumont, C.J., held: "But if to the statement (I will produce a knife concealed in the root of my house) the words be added 'with which I stabbed A', those words are inadmissible since they do not relate to the discovery of the knife, in the house of the

informant." The Supreme Court of India has also followed the view

of the Privy Council in Ram

Kishan Mithanlal Sharma v. State of Bombay.* In that case the court has stated that where the information consists of a statement made by the accused to the police officer and

the police officer is obviously precluded from proving the information or part thereof unless it comes within the four corners of the section. If the police officer wants to prove the information, or the part thereof, the Court will have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. Proof by photographs is essential. If the police decides to get the discovery of any. articles to be photographed three important things ought to have been included in the photographs: (1) the object recovered, (2) the accused, and (3) witnesses. It is well settled that section 27 must be very strictly construed. The expression "from a person accused of any offence" appearing therein is significant and it seems to have been used designedly because a joint statement of a number of persons cannot be said to be an information received from any particular one of them. As a necessary corollary, facts discovered in consequence of joint information cannot be used as against any one of them. Thus, the recovery of the gold tops from Jagdish cannot be said to have taken place in consequence of the disclosure made by either of these appellants as contemplated by section 27 of the Evidence Act, 1872.6

In Udaibhan v. State of Uttar Pradesh, the Supreme Court has clearly laid down the

extent of the admissible information in these words: "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence." It may be noted that contrary to the modern English rule (Taylor's Evidence, 902) and the rule prevalent in several jurisdictions of America, the law in India is that only that part of a statement in which the accused describes how he disposed of the material object is admissible under this section.

1. Bakshish Singh v. State of Punjab, AIR 1971 SC 2016 (2018): AIR 1971 SC 2016: 281. 2. (1944) 45 Cr LJ 221: AIR 1943 Bom 458. 3. Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67: (1947) 48 Cr LJ 533. 4. AIR 1955 SC 104: 1955 SCR 903: 1955 Cr LJ 196 (208) (SC). 5. State (Delhi Administration) v. Mohinder Lal, ALJ 1985 (NOC) 7. 6. Oudh Ram v. State, 1982 Cr LJ 1656 (1664, 1665) (Del). 7. AIR 1962 SC 1116: (1962) 2 Cr LJ 251: 1963 (1) SCJ 454.

1971 UJ (SC)

152

The Indian Evidence Act, 1872

Sec. 27

If the truth of the statement given by the accused was established through recoveries made pursuant to the statement, the argument that his statement was under pressure from the police is misconceived. 27. Whether it Amounts to Confession or not This expression has been used in order to emphasize the position that even though it may amount to a confession which is hit by sections 24, 25 and 26, yet that much information which relates distinctly to the fact thereby discovered, can be proved against the accused. In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him.2 28. Joint Statements In Lachman Singh v. States information articles was given to the police by several of

as to the concealment of nating the accused. It was contended that only

the information which is first given is admissible under section 27, and if the prosecution fails to satisfy the Court as to which of the accused gave the information first, section 27 cannot be used against any of the accused. 29. Statement Admissible under Section 27 cannot be Proved against others Such statements may be proved only against the maker but not against another person. When an incriminating article is discovered but not at the instance of theaccused, section 27 is not attracted.3

30. Information 'must Precede Discovery Where a certain spot had been discovered in consequence of accused's statement, his

subsequent statement "I got those ornaments in may share in the Rajoi Dacoity" which followed the discovery is inadmissible. A discovery in pursuance of the statement of the accused can give rise to a strong

suspicion about the complicity of the accused in the crime, but is by itself does not necessarily establish the charge against the accused.'

31. Evidentiary Value of the Discovery and the Accompanying Statements The discovery of a fact under section 27 always adds something to the knowledge of the investigating officer. But a conviction on such evidence alone is unsafe where the place pointed by the accused is in the possession of other persons or accessible to the public as in such cases the inference is reasonably possible that the article might have been put there by somebody else and the accused might merely have knowledge of the place where it was put.° In Trimbak v. State of MadhyaPradesh,10where the onlyevidence against the accused was that in consequence of the information received from him some stolen property was recovered from an open place accessible to all, the facts of such a recovery and the statement made by him which led to it were held as relevant factsunder section 27 by the Supreme Court, but it was also held that they do not necessarilyprove

his possession of the recovered property despite the presumption under illustration a) to section 114 of the Evidence Act. 1. Sucha Singh v. State of Haryana, (2013) 14 SCC 552 (para 14). 2. Jafer Husain Dastagir v. State of Maharashtra, AIR 1970 sC 1934 (1936);: 1970 LW (C)138: (I970) 2 SCR 332. 3.

1952 SCJ 230: AIR 1952 SC 167: 1952 Cr LJ

863. But see Rekatulla, PLD 1962 Dacca 261.

4. Satish Chandra v. ., 1945 Cal 137. 5. Prakash v. State of Madhya Pradesh, (1986) 3 Crimes 454 (458). 6. Amiruddin Ahmad v. Emp., 12 Cr LJ 35. 7. Jaya Singh Madakami v. State of Orissa, 1986 Cr LJ 117: (1985) 1 Ori LR 627. 8. Sohan Singh v. Emperor, 31 Cr LJ 774: AIR 1930 Lah 91. 9. Public Prosecutor v. Pakkiriswami, 1929 Mad 846: 57 Mad LJ 548. 10. 1954 Cr LJ 335: AIR 1954 SC 39 (SC).

153

Of the Relevancy of Facts

Sec. 271

Ina case of murder on the discovery statement of the accused a dharia was discovered, but is contained no trace of blood. It was held, that no useful purpose is served by the

discovery. 32. Pointing

out Places

When after recovery of stolen property from the accused's possession, he points out the places from where the articles were stolen, it amounts to an inadmissible confession discovery. and has nothing to do with In a case recovery of incriminating article was made from an open place easily accessible to others, and the recovery was made three weeks after the occurrence. It was held that such recovery is without any value.° The recovery of an incriminating article from a place which is open and accessible to others, alone cannot vitiate such recovery under this section when the same is corroborated by the testimony of the prosecution witness (as in the instant case).* It is not correct that a recovery made from an open space or a public place which was accessable to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that it will be accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage. Merely because the contraband was recovered from a public place i.e. a place accessible to the public at large, the same does not mean that the recovery is to be discarded. In case, articles have been hidden by digging up the earth, covering the same with garbage or other material, the public may not have taken note of it. The same remained in the specific knowledge of the accused ie. where and also the manner in which the said articles were hidden. If, however, the accused states that he would show the property belonging to the victim and then leads to the recovery of such property, then that statement would be

admissible. Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. Where the Sub-Inspector deposed that the accused had stated to him that he would give the clothes of the deceased which he had placed in a pit above a brick kiln and that thereafter the accused took out the clothes from the pit, the statement of the accused was held admissible. In the case of Sudhir Chandra Das v. State

the dao and

umbrella

were

recovered

pursuant to the disclosure statement made by the accused to the investigating officer. Ina case of murder the accused, while in custody of the police, revealed the possibility of the deceased having been buried in the backyard of her residential house. The accused has pinpointed the exact place which was to be dug up. He marked the exact area. He also made an oral statement that box was buried beneath the area so marked, location where of showed that it was a big area, flooring of which had been well plastered with cement having Cuddapah storne slabs. The video showed that the slabs had been laid there much 1. Prabhubai Sengabhai Vasava v. State of Gujarat, (1986) 3 Crimes 248 (Guj). LJ 1347: AIR 1956 Punj 224: 58 Pun LR 320. 2. State v. Parkash Singh, 1956 Cr 3. Abdul Sattar v. Union Territory, Chandigarh, AlIR 1986 SC 1438: 1986 Cr LJ 1072: 1985 SCC (Cri) 505.

4. State of Himachal Pradesh v. Jai Chand, 2013 Cr LJ 4001: AlR 2013 SC 3349: (2013) 10 SCC 298

(para 26). 5.

Yakub Abdul Razak Memon v. State of Maharashtra,

(2013) 13 SCC 1 (paras 1708 and 1797).

6. Dusasan Bhoi v. State of Orissa, 1981 Cr LJ 1452: (1981) 52 CLT 126 (135). 7. Oudh Nath Pandey v. State of Uttar Pradesh, 1981 Cr LJ 618 (621): AIR 1983 SC 911: 1981 All

L 228. 8. 9.

Pershadi v. State of Uttar Pradesh, AIR 1957 SC 211: 1957 Cr LJ 328. AIR 1971 Tripura 8: 1971 Cr LJ 86.

154

The Indian Evidence Act,

earlier and were not of recent origin. In this situation of confession made by accused would be admissible

1872

Sec. 27

the Court held that only that part which led to recovery of fact

33. Evidence of Recovery The only evidence against the appellant is the discovery stated to have been made by him of 7 gms of charas. The evidence clearly discloses that the police was already informed about the place where charas was concealed before the appellant had taken the Police to that place. The Supreme Court observed that the coconut tree from whose stem the charas was found was

admittedly

standing in open space accessible to all and

it is difficult to uphold the finding of the courts below that it was the appellant who concealed the charas there and that it was found only on the basis of the disclosure statement made by the appellant and therefore the conviction of the appellant will have to be set aside2

Where from the evidence of the investigating officer it was clear that the statement of the accused leading to the recovery of dead body was made while he was in custody and the same was in the presence of police officers, though, at that time some other persons were also present in the police station, the

recovery

of the dead body is a fact

which is admissible in evidence under this section. Once recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of the group of blood found on the article recovered loses

significance 28. Confession made after removal of impression caused by inducement, threat or promise relevant.-If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or

promise has, in the opinion of the Court, been fully removed, it is relevant. sYNOPSIS 1.

Principle

2. Scope

Comments 1. Principle Section 28 lays down the conditions under which a confession rendered irrelevant

by section 24 may become relevant. A confession is admissible after the impression caused by inducement, etc., has been fully removed because it then becomes free and voluntary. The confession as mentioned in the section should

be voluntary and received as a result of reflection and

free determination, unaffected and uninduced by original threat or promise. 2. Scope Section 28 is an exception to section 24 and hence its proper place should have been just after section 24. One method to bring about satisfaction as to the voluntary nature of a confession is to give time for reflection to the person concerned so as to compose himself, before recording the confession. The burden of proving that the original impression iscompletely removed is on the person who desires to have the second confession declared relevant. The burden is on the prosecution. Swamy Shradhananda v. State of Karnataka, AlR SCC 288 (309) (para 37). 2. Krishan Mohar Singh Dugal v. State of Goa, AlR 3917. 1.

Murmu

2007 SC 2531: 2007 AIR SCW 4513: (2007) 12 1999 SC 3842: 2000 Cr LJ 18: 1999 AlR SCW

3.

Chunda

v. State of West Bengal, AIR 2012 SC 2160: 2012 Cr LJ 2861: (2012) 5 SCC 753

4.

R. Shaji v. State of Kerala, 2013 AIR SCW 1095: (2013) 2 SCALE 186: (2013) 14 SCC 266 (para

para 16). 31).

5. Nazra v. State, PLD 1960 Lah 189.

155

Of the Relevancy of Facts

Sec. 29]

29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.-If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. SYNOPSIS Principle 2. Scope 3. Confession

4. Deception 5. Confession in Answer to Question

1.

Otherwise

Relevant

6. Want of Warning

Comments 1. Principle The principle

of section 29 is

that a confession

which is shown to be

otherwise

relevant does not become irrelevant merely because of the circumstances like breach of promise of secrecy, etc., as mentioned in the section. The principle of exclusion of a confession is its testimonial entrust, worthiness or involuntary character and hence a confession obtained by deception, etc., is not deemed to be irrelevarnt. Thus, the general principle is that the illegality of the source of evidence of the use of deception or immoral practice in obtaining it does not affect its reception. 2. Scope

The section states the following five non-invalidating origins of a confession: (1) A promise of secrecy; (2) Deception; (3) Drunkenness; (4) Interrogation; and (5) Want of warning These are not exhaustive. Section 29 refers to such confessions only as are not governed by or contemplated in sections 24 to 28, ie., to say confessions not made to a Magistrate or police officers or persons in authority. The section is meant to dispel doubts with respect to extra-judicial confessions made under circumstances, similar to those which make judicial confessions

inadmissible. 3. Confession Otherwise Relevant If a confession is not obtained by any inducement, etc., (Section 24), or if it is not a confession made to the police (Section 25), or if it is not a confession made while in police custody to any person other than a Magistrate (Section 26), and if a confession does not violate any one of the conditions operative under sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the face of confessional statements which are otherwise admissible the Court has still to consider whether they can be accepted as true. 4. Deception Where a confession was obtained from the prisoner on his being given to understand that his brother-in-law had given out that the prisoner was guilty, the confession was held admissible." 1. Emperor v. Jamuna Singh, AIR 1947 Pat 305: 25 Pat 612. 2. Dagdu v. State of Maharashtra, AIR 1977 SC 1579: 1977 Cr LJ 1206: (1977) 3 SCR 636. 3. Q.v. Ram Churan Ghosh, 20 WR Cr 33.

156

The Indian Evidence Act, 1872

Sec. 29

5. Confession in Answer to Question Under sections 342, 164 and 364 of the 'Code of Criminal Procedure, the examination of the accused is to be in the form of questions and answers and though the accused is not bound to answer the questions asked, the answers, if given, cannot be ignored on the ground that the accused need not have answered them. However, severe interrogation or lengthy cross-examination of the accused may in certain voluntary character of the confession.

circumstances affect the

6. Want of Warning In Nazir Ahmed v. Emp.,2 the Privy Council has held that the Magistrate recording a confession must comply with the provisions of section 164 of the Code of Criminal Procedure. Hence, if the warning required by that section is not given it appears that the confession would be inadmissible. Statements made by a person in sleep are not admissible due to the suspension of the faculty of judgment, but a statement made when an accused is drunk is admissible. If a police officer gives an accused liquor, in the hope of his saying something and the accused makes any statement, that statement is admissible.3 Section 29 of the Evidence Act provides inter alia, that if a confession is otherwise relevant, it does not become irrelevant merely because the accused was not warned that he was not bound to made such confession, and that evidence of it might be given

against him. This section makes an exception in the case of the two warnings, but there is nothing in this section to do away with the necessity of questioning the accused for the purpose

of finding out whether the confession was made voluntarily, or not

30. Consideration of proved confession affecting person making it andothers jointly under trial for same offence.-When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

IExplanation.-"Offence", as used in this section, includes the abetment of, or attempt to commit the offence.]

Illustrations (a) A and B are jointly tried for the murder of C. It is proved that A said-"B and I murdered C". The Court may consider the effect of this confession as against B. (b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said-"A and I murdered C". This statement may not be taken into consideration by the Court against A, as B

is not being jointly tried. SYNOPSI 1.

Principle

2.

Scope

Confession some other

3.

Essentials of Section 30

Admissibility

7.

4. Are being Tried Jointly 5.

Admissibility

of

Confession

8. of

a

Co-

accused who Pleads Guilty 6.

Affecting himself and of such Persons; Test ot

Applicability of the Section to Contessions made at the Trial as well as to those made

before the Trial

For the same Offence

1. See now Criminal Procedure Code, 1973. 2. 63 IA 372. 3. Rex v. Spillsbury, (1835) 7 CO & P 187.

4.

Shanti v. State, 1977 Cr LJ 2053 (2069) (Ori): Ins. by Act 3 of 1891, sec. 4.

AIR 1978 Ori 19: ILR 1977 Cut 719.

9.

Evidential Value of a Co-accused,

of the Confession Conviction on such

Confession, whether Legal

10. Confession

ofa

13. Reasons for Requiring Corroboration 14. Nature and Extent of Corroboration Retracted of 15. Evidentiary Value

Co-accused is not

Evidence within the Meaning of Section 3 of the Evidence Act 11. Expression "the Court

may

take

into

Confession 16. 17.

Retracted Confession Section 27 and Section 30

18. Confession

Consideration such Confession" 12.

157

Of the Relervancy of Facts

Sec. 30]

Recorded

by

made

an

a

Judiial

Magistrate

Corroboration of the Confession of a Coaccused Necessary

19.

Confession

to

Authorised

Officer

Comments 1. Principle

This section is an exception to the general rule of the English Common Law that a confession is only evidence against the confessor and not against others. The reason is that when a person makes a confession which affects both himself and another, the fact of self-implication takes the place, as it were, of the sanction of an oath, or is rather supposed to serve as some guarantee for the truth of the accusation against the other.

"When a person admits his guilt and exposes himself therefor

there is a

guarantee

for his

truth."

to the pains and penalties provided

(West, J.).

The

guarantee,

however,

is a

very weak one, for if the fact of self-implication is not in all cases a guarantee of the truth of a statement even as against the person making it, much less is it so as against another. While such a confession deserves ordinarily very little reliance it is nevertheless impossible for a Judge to ignore it, and he need no longer pretend to do so, the provisions

of this section being inserted for the purpose of relieving him from the attempt to perform an intellectual impossibility. 2. Scope This section makes a departure from the Common Law of England under which the confession of an accused person is only evidence against himself, and cannot be used against the others. The Roman Law is also the same as the English Law. Hence, this provision is criticised by the Courts and commentators. Section 30 is characterised as introducing a "rather dangerous element" by Glover, J.2 and "as a very exceptional and extraordinary provision" by Reilly, J.," In re, Lilaranm Ganganmull, Coutts Trotter, C.J.

observed, that "I have always thought that this was a most unsatisfactory exception and was a needless tampering with the wholesome rule of the English Law that a confession Is only evidence against the person who makes it." 3. Essentials of Section 30

The section will apply if the following conditions

are fulfilled:

(1) that more persons than one are being tried jointly, (2) that the joint trial is permissible by law, (3) and that the joint trial is for the same offence or for its abetment or attempt. Further we may add, that (4)

there must be a confession,

implicate the maker substantially to the extent as (5) the confession of guilt must the other accused, and (6) the confession must be duly proved. 4. Are being Tried Jointly (See Illustrations). The law as to joint trials is contained in section 239 of the Code of Criminal Procedure. In order to make a confession of one accused admissible against 1. R. v. Daji Narsu, (1882) 6 Bom 288 (291).

2. R. v. Jaffar Ali, 29 WR 57 Cr. 3. In re. Periashwami Moopan, AIR 1931 Mad 177: ILR 54 Mad 75: 32 Cr LJ 448. 4.

81 1C 817.

5. See now

Criminal

Procedure Code, 1973.

The Indian Evidence Act, 1872

158

Sec. 30

another, there should not only be a joint trial in fact, but such joint trial should be legal, i.e., permitted by the law. If the maker of the statement is dead and therefore not on trial with the person against whom it is sought to be proved, the section will not apply.2 An approver cannot be deemed as being jointly tried with the accused. 5. Admissibility

of Confession of a Co-accused who Pleads Guilty

The question as to when a joint trial

terminates

becomes

material when one of the

co-accused pleads guilty. The position varies with the category of the three-fold type of trial, namely; (1) Warrant trial, (2) Sessions trial, (3) Summons trial.

(1) Joint

trial-Warrant

Cases

In a warrant case the trial covers the whole of the proceedings. Therefore, a confession made by an accused in the course of a trial of a warrant case by a Magistrate, in which

the confessor implicates himself and others who are being tried with him, is admissible against the latter, even if the confession takes the form of a plea of guilty.

(2) Joint Trial-Session Cases, Plea of Guilty Accepted, No Joint of the Confession of the Accused Pleading Guilty

Trial-Inadmissibility

In Sessions cases, however, the plea of the accused is recorded at the very outset, and the trial starts after the plea is recorded. If the accused pleads guilty at the outset and is convicted on his plea, the trial as against him comes to an end. Therefore, where out of the accused persons committed to the Court of Sessions, some plead guilty, and this plea being accepted, they are convicted, they can no lornger be treated as being jointly tried with the rest of the accused who have not pleaded guilty and against whom the case proceeds, and any confession made by the former will not be admissible against

the latter. Sessions trials; Plea of guilty not accepted, joint trial; admissibility of the confession of the accused pleading guilty Where the Sessions Judge refuses to accept a plea of guilty and proceeds to hear the

prosecution evidence, the accused pleading guilty is still on his trial and any confession made by him will be admissible against others. The Calcutta High Court inMohammad Yusuf v. E., has observed that the practice of refusing to accept the plea of guilty and proceeding to try the accused in order that his confession may be taken into consideration against his co-accused is illegal and abuse of the process of the Court. Sessions trial-Plea of guilty-Neither accepted nor refused to be accepted

Confession inadmissible Where the plea of guilty is neither expressly accepted nor expressly refused to be accepted, and the accused pleading guilty is allowed to stand in the trial, but the Court intends ultimately to convict him on his plea of guilty, it is improper to take the confession of the accused pleading guilty into consideration against those of theaccused

who take their trial.

(3) Joint trial-Summons Cases--Plea of Guilty As in the Sessions trial so in the summons cases the plea of the accused is recorded at the outset of the trial and therefore a plea of guilty in the summons cases has the same effect on the question of joint trial as in the Sessions cases. (Sections 242, 243 of

the "Code of Criminal Procedure). 1. Q.E. v. Jagat Chandra, 22 Cal 50. 2. Dengo Kondero v. E., 1938 Sind 94. 3. Sheobhajan Ahir v. King Emperor, AlR 1921 Pat 499: 2 Pat LT 125.

4. Amdumiyan Gulzar v. E., AlR 1937 Nag 17 (FB). 5. Shankar v. E., 1926 All 318. 6. 58 Cal 1214: 1931 Cal 341: 113 IC () 342: 32 Cr LJ 667. 7. See now Criminal Procedure Code, 1973.

Sec. 30]

Of the Relevancy of Facts

159

6. For the same Offence

The joint trial must be for the same offence or for its abetment or attempt. The expression 'same offence' means the identical offence and not an offence of the same kind. It means an offence falling within the same definition and arising, out of the same transaction.- If the trial is not for the same offence, e.g., where one accused is being tried for theft and the other for receiving stolen property, the confession of one is not admissible against another.* Where two accused, were tried jointly for the same kind of offence under section 411 of the Indian Penal Code, but the property in respect of which they were charged was different in the case of each of the accused, it was held that the confession of one could not be taken into consideration against another. Judicial opinion differs as to whether the word 'offence' includes 'offences' and whether the confession must implicate the maker in all the offences for which he and the other accused are being jointly tried. As section 30 should be strictly construed, it is submitted that the view that the confession must implicate the maker and other accused in all the offences appears to be the correct view. 7. Confession Affecting himself and some other of such Persons: Test of

Admissibility See commentary on section 24. The test to determine whether a statement

amounts to a confession under section 30 is whether the statement by itself is sufficient for the conviction of its maker of the

offence for which he is tried jointly with those against whom that statement is sought to be given. The confession of a co-accused can be taken into consideration if it fulfils the conditions laid down in section 30. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration.3 To use a popular and well understood phrase "the confessing prisoner must tar himself and the person or persons implicated with one and the same brush." (Straight, J.)5 Exculpatory or explanatory statements are inadmissible under this section as they cannot be said to affect the maker. If, on reading the confession as a whole, it appears that the maker was trying to throw the main blame on his companion and to make out that he himself was an unwilling spectator of the crime, the confession cannot at all be taken into consideration against the co-accused. Thus, the confession to be admissible

under section 30, it must not be exculpatory but must also inculpate the maker himself substantially to the same extent as the other. 8. Applicability of the Section to Confessions

made at the Trial as well as to those

made before the Trial The section is not limited in its application to confessions made before the trial or enquiry. Confessions made during the course of a trial are equally admissible. A statement made by the accused, examined under section 342 of the Code of Criminal Procedure, is not admissible against the co-accused. There is nothing in section 30 to restrict a confession to one recorded before a Magistrate.0 1. Kundan v. E., 1948 Sind 65. 2. Bhansali Babu v. Kutch State, 1951 Cr LJ 1473. 3. Bishnu Bunwar v. Emp., 1 CWN 35. 4. Fakruddin v. E., 6 Lah 176. 5. Balbir Singh v. State of Punjab, AIR 1957 SC 216: 1957 Cr LJ 481. 6. E. v. Ganraj, 2 All 444 (446). 7. Rajhuman Kundanmal v. Emperor, AlR 1937 Sind 218: 38 Cr LJ 965. 8. See now Criminal Procedure Code, 1973. 9. Desraj Sharma v. State, AlR 1951 Simla 14. 10. Athappa Goundan v. Emperor, (1937) 38 Cr LJ 1027: AIR 1937 Mad 618: ILR 1937 Mad 695

(FB).

160 9.

The Indian Evidence Act, 1872

Sec. 30

Evidential Value of the Confession of a Co-accused, Conviction on such Confession, whether Legal The Privy Council in Emperor v. Lalit Mohan Chuckerbutty', observed that the proper

way to approach a case

involving

confession

of a co-accused is, first, to marshal the

evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. In Kashmira Singh v. State of Madhya Pradesh2 the Supreme Court of India has held that: "The confession of a co-accused is not evidence" within the meaning of that term as defined in section 3 of the Evidence Act. It is not required to be recorded on oath and it cannot be tested by cross-examination. It is evidence of a very weak type and is much weaker even than the evidence of an approver or an accomplice It is settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom." EDA only in support of other evidence and The confession of a co-accused can be used cannot be made the foundation of a conviction, nor can it be called in aid to supplement evidence and in no case can it be used to fill-up the gaps in the prosecution evidence This statutory principle has been followed by Haricharan Kurmi v. State ofBihar and Mohammad Hussain Umar Kochra v. K.S. Dalipsinghji. The confession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the

evidentiary value of it alone. Once there are sufficient materials to reasonably believe that there was concert and connection between persons charged with common design it is immaterial as to whether they were strangers to each other or ignorant of actual role of each of them." The only limited use which can be made of a confession of a co-accused is by way

of furnishing an additional reason for believing such other evidence as exists It is well settled that the requirement of section 30, Evidence Act, before it is made to operate against the co-accused should be strictly established.3 Confession of a co-accused is not substantive evidence against the other accused Confession

of a co-accused is not

substantive

evidence as defined in section 3 and can

only be taken into consideration against the other accused. Hence, a conviction of an accused person cannot be founded on the confession of the co-accused only if there is no substantive evidence on record on which such conviction can be based. But, if there was other evidence on which conviction can be based the confession of the co-accused 1.

ILR (1911) 38 Cal 559: 10 Ind Cas 582: 12 Cr LJ 2.

2.

1952 Cr LJ 839 (SC): 1952 SCJ 201: AIR 1952 SC 159

3.

Mohtesham Mohd. Ismail v. pl. Director Enforcement Directorate, (2007) 8 SCC 254 (262-263) (para 19): AIR 2007 SC (Supp) 1656; See also Prakash Kumar v. State of Gujarat, AIR 2005 SC 1075: 2005 AIR SCW 493: (2005) 2 SCC 409; Haroon Haji Abdulla v. State of Maharashtra, AlIR 1968 SC 832: 1968 (2) SCJ 534: (1968) 2 SCR 641.

4.

Indra Mohon v. State of Assam, 1982 Cr Mizoram, 1984 Cr CJ 1055 (Gau).

5.

AIR 1964 SC 1184: (1964) 1 SCWR 446: (1964) 6 SCR 623. AlR 1970 SC 45: 1970 Cr LJ 9: (1970) 1 SCR 130; Rajnikanta 25 (29-30).

6.

7.

LJ (NOC) 127 (Gau); Zohmingliana v. Government of

Mehta v. State, (1979) 47 Cut LT

Government of NCT of Delhi v. Jaspal Singh, (2003) 10 SCC 586: JT 2003 (7 SC 302: (2003) 6

SCALE 181. 8. 9.

Hem Raj v. State of Ajmer, 1954 SCR 1133: AIR 1954 sSC 462: 1954 Cr LJ 1313. Nabi Mohammed Chand Hussam v. State of Maharashtra, 1980 Cr LJ 860 (875): 1979 Bom CR 680

(Bom).

Sec. 30]

161

Of the Relevancy of Facts

can be referred to as lending assurance to that conclusion and for fortifying it.

Therefore,

where there is no other evidence against an accused person except the confession of a

co-accused, his commitments or conviction

would be illegal

A different view is taken

in E. v. Gangappa. It has been held by the Punjab and Haryana Court that all the statements recorded under section 108 of the Customs Act, 1962 are admissible in evidence but by virtue of section 30 of the Evidence Act it is not substantive piece of evidence. evidence to convict The confession of a co-accused cannot be treated as substantive other than the person who made the confession on the evidentiary value of it. It is,

however, well established and reiterated in several decisions of the Supreme Court that based on the consideration of other evidence on record and if such evidence sufficiently supports the case of the prosecution and if it requires further support, the confession of a co-accused can be pressed into service and reliance can be placed upon it. In other words, if there are sufficient materials to reasonably believe that there was concert and connection between the persons charged with the commission of an offence based on a

conspiracy, it is immaterial even if they are strangers to each other and were ignorant of the actual role played by them of such acts which they committed by joint effort." 10 Confession of a Co-accused is not Evidence within the Meaning of Section 3 of the Evidence Act The Constitution Bench of the Supreme Court in Haricharan Kurmi v. State of Bihar, observed that the confession of a co-accused is not evidence within the meaning of section 3 of the Evidence Act. It is neither oral statement which the court permits or requires to be made before it as per section 3(1) of the Evidence Act nor does it fall in the category of evidence referred to in section 3(2) of the Evidence Act which covers all produced for the inspection of the Court. The Court observed hat even then section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused. Though such a confession may not be evidence as strictly defined by section 3 of the Evidence Act. Section 30 of the Evidence Act merely enables the court to take the confession into account. Thus, the Court has clarified that though confession of a co-accused may be regarded as evidence in generic sense because of the provisions of section 30 of the Evidence Act, the fact remains that it is not evidence as defined in section 3 of the Evidence Act.

11. Expression "the Court may take into Consideration such Confession" The expression "the Court may take into consideration such confession" is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a coaccused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession." In Ram Prakash v. State of Punjab," it was held that a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of section 30 of the Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction 1. Nathu v. State of Uttar Pradesh, 1956 Cr LJ (SC) 152: AR 1956 SC 56. 2. Makkey (in re:), 1943 Mad 278. 3. 38 Bom 156: 12 IC 911

Tarlochan Singh v. Assistant Commissioner (Customs), 2003 (1) RCR (Criminal) 5. Mohd. Jamiluddin Nasir v. State of West Bengal, (2014) 7 SCC 443 (para 144).

P&H (DB) 48.

6.

AIR 1964 SC 1184: (1964) 1 SCWR 446: (1964) 6 SCR 623.

7.

Bishnu Prasad Sinha v. State of Assam, AIR 2007 SC 848: 2007 AIR SCW 569: (2007) 11 SCC

467 (481) (para 42). 8.

AIR 1959 SC 1: 1959 Cr LJ 90: 1959 SCJ 181.

162

The Indian

Evidence Act, 1872

Sec. 30

of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. 12. Corroboration of the Confession of a Co-accused Necessary However, the question whether a conviction can be legally based on the uncorroborated confession of a co-accused is of merely academic interest, since the universal practice of the High Courts in India is to require corroboration of such a confession.

13. Reasons for Requiring Corroboration The Court proceeds on the presumption under illustration (b) to section 114 that an accomplice is unworthy of credit, unless he is corroborated in material particulars (but see also

section

133). A

confession

of a co-accused

stands on a

lower

footing than the

evidence of an accomplice, as the confession prisoner neither speaks under the sanction of oath nor can his statement be tested by cross-examination. While the statement of an accomplice is "evidence", that of a confessing prisoner is not evidence. Corroboration is required as the accomplice is desirous of earning the favour of the Court in the hope of a lenient sentence. The real danger is that an accomplice is telling a story which in gerneral outline is true and it is easy for him to work into the story matter which is untrue. It is a settled view that evidence of an approver should be considered with great caution.

14. Nature and Extent of

Corroboration

Apart from the confession from a co-accused, the foundation of a case against the co-accused is the other corroborative evidence. The two general principles bearing upon the nature and extent of corroboration are as follows:

Firstly, that corroboration must be on material particulars. The corroborating evidence must be such as implicates the non-confessing prisoner, eg, which confirms in some material particulars not only the statement of the confessing prisoner that the crime was committed but also the statement that the non-confessing prisoner committed it (Scott,J. Corroboration must point out indubitably to the identification of the person charged with the particular act with which the confession of the accused connects it. Merely pointing of a stolen property some months after the theft is not sufficient corroboration of such a confession on a charge of

house-breaking.*

Secondly, corroboration must be an accomplice, nor by the confession an inferior evidential value. Tainted quantity. When there are two sets of be used to corroborate the other.

by independent evidence and not by testimony of of another co-accused, as such a confession carries evidence is not made better by being doubted in evidence, each requiring corroboration, one cannot

15. Retracted Confession In Ram Prakash v. State of Punjab,°

the

Supreme

Court

of India

laid down as

follows: "The Evidence Act nowhere provides that if a confession is retracted it cannot be taken into consideration against the co-accused, or the confessing accused, there is nothing to prevent the Court from taking a retracted confession into consideration not only against its maker but also against the other accused. However, although retracted confession may be taken into consideration against the co-accused, its value is extremely weak and there can be no conviction without the fullest and strongest corroboration on material particulars. Corroboration in the full sense implies corroboration not only as to the factum of the crime but also 1.

Bhuboni Sahu v. King, AIR 1949 PC 257: 1949

Cr LJ 872.

2.

Krishnalal Naskar v. State, 1982 Cr LJ 1305 (1310) (Cal).

3.

E. v. Sabitkhan, 43 Bom 739.

4. 5.

Q.E. v. Dosu Jiva, 10 Bom 231. Shariffv. E., 1944 Lah 172.

6.

AIR 1959 SC 1: 1959 Cr LJ 90: 1959 SCJ 181.

Sec. 30]

Of the Relevancy of Facts

163

as to the connection of the co-accused with the crime. The amount of credibility which can be attached to a retracted confession depends upon the facts and circumstances of each case, and as a matter of prudence and practice a Court should not ordinarily act upon the retracted confession of the co-accused without the fullest corroboration. The weight to be attached to a retracted confession must depend upon whether the Court thinks that the person retracting was induced by

consideration that the confession was untrue or by realisation that it had failed to secure the benefits the hope of which inspired it as against its maker. However, a retracted confession may constitute a sufficient basis for confession provided it is true and voluntary. The retracted confession can be used only in support of other evidence and cannot be made the foundation of a conviction. It cannot be used to support the evidence of the

otheraccomplices. It can form basis of conviction if corroborated. Confession by one of the accused can be used against the other when conspiracy on their part is proved." 16. Evidentiary Value of Retracted Confession A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused. It was so held in Bhuboni Sahu v. King,* stating: "The court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one elemernt in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence." held that in a case In Aloke Nath Dutta v. State of West Bengal,3 the Supreme Court of retracted confession, the courts should evidently be a little slow in accepting the confession, although the accused may not be able to fully justify the reasons for his retraction. Caution and prudence in accepting a retracted confession is an ordinary rule. Although if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction. The Court further held that whatever be the terminology used, one rule almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession. The Court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthfulness, the same, in no circumstances, should be compromised. 17. Section 27 and Section 30

A confession which is inadmissible against its maker by reason of sections 24, 25 or 26 is also inadmissible against a c0-accused, but if it becomes admissible against its maker by reason of any discovery under section 27, it would be admissible also against the co-accused, provided it is a confession in the sense in which this word is used in section 30 and affects its maker and the co-accused. 18. Confession Recorded by a Judicial Magistrate In a case a confession was recorded by a Judicial Magistrate at Ahmednagar whereas the accused was locked up in the sub-jail at Newasa where a Judicial Magistrate was available. Rejecting the contention as to why a Magistrate belonging to a distant place 1. Bhimappa v. E., AIR 1955 Bom 484. 2. Mohammad Hussain Umar Kochra v. K.S. Dalipsinghji, (1970) 1 SCR 130.

3. 4. 5.

State of Kerala v. Ammini, AIR 1949 PC 257: (1949)

AR 1970 SC 45 (56-57): 1970 (1) SCJ 149:

AIR 1988 Ker 1: 1988 Cr LJ 107: (1987) 1 Ker LT 928 (FB). 50 Cr LJ 872: (1948-49) 76 LA 147 (156). (2006) 13 SCALE 467: (2007) 12 SCC 230 (270-272) (para 111-117); See also Puran v. State of Punjab (), AIR 1953 SC 459: 1953 Cr LJ 1925: 55 Pun LR 158; Balbir Singh v. State of Punjab, AIR 1957 SC 216: 1957 Cr LJ 481; Nand Kumar v. State of Rajasthan, (1963) 2 Cr LJ 702: (1963) 2 SC] 422: (1963) 2 SCR 890 (SC).

164

The Indian Evidence Act, 1872

was asked to record the confession

in preference

to a

Magistrate

Sec.

30

at a near place, the

Supreme Court observed that Newasa is a taluk located within the territorial limits of Magistrate Ahmednagar was asked to the district of Ahmednagar and the Chief Judicial nominate a Magistrate within his jurisdiction for recording the confession. There could have been a variety of reasons for the Chief Judicial Magistrate for choosing a particular Magistrate to do the work. The Supreme Court held that when not even a question was put to the Magistrate who recorded the confession and the investigating officer as to why the Chief Judicial Magistrate, Ahmednagar did not assign the work to a Magistrate at Newasa, it is not proper for the High Court to have used that as a ground for holding that the voluntariness of the confession was vitiated." 19. Confession made to an Authorised Officer The Supreme Court has observed that it is well settled that the confession made by a person as against the co-accused cannot be used as substantive evidence. It can only be used as a corroborative piece. The Supreme Court held that in the absence of any reliable substantive evidence the confessional statement cannot be used for any purpose as against the co-accused.

The Court also observed that there is no legal

requirement that a confession should

be made to an authorised officer. Any person can give evidence in a court regarding a confession made by an accused to him. If such a confession was made to a Magistrate the law requires the same to be recorded in a manner prescribed in law. If a confession is made to any other person the court has to consider whether the evidence of that

person can be believed which depends upon the credibility of the witness evidence.2

giving such

31. Admissions not conclusive proof, but may estop.Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels

under the provisions hereinafter contained. SYNOPSIS 6. 7.

Admissions of Presumptions Admissions are not Conclusive Proof and may Proved to be Untrue or Mistaken 8. Admissions Shift Onus

1. Principle 2. Scope 3. Admission 4. 5.

Admissions Admissions

and Estoppels and Waiver

9. Admissions in Pleadings

Comments 1. Principle This section deals with the effect

of admissions with regard to their conclusiveness. It means that admissions whether written, oral or implied from conduct or assumed character are not conclusive of the matter admitted, i.e., although they are good evidence against the party making them or his representative-in-interest, he is not bound by them and is at liberty to prove that they were made under a mistake of law or fact, or were

untrue or were made under threat, inducement or fraud unless they operate as estoppels under sections 115 to 117, i.e., unless his opponent has been induced to alter his condition and to act upon those admissions. Therefore, admissions, whether written or oral which do not operate by way of estoppels, constitute only a prima facie rebuttable evidence against their makers, and those claiming under them, as between them and others. It is no doubt true that the evidentiary value of admissions depends upon the circumstances of the case, but ordinarily and it cannot be easily rejected." 1.

State of Maharashtra LJ 2301: JT 2000 (5)

an admission is a valuable piece of evidence

v. Damu Gopinath Shinde, AIR 2000 SC 1691: 2000 (6) SCC 269: 2000 Cr SC 575.

2. Sasi v. State of Kerala, (2000) 10 SCC 360. 3. Veerabasavaradhya v. Devotees of Lingadagudi Mutt, AlR 1973 Mys 280 (288).

165

of the Relevancy of Facts

Sec. 31] 2. Scope

Admissions which are relevant under this section should be distinguished from admissions in pleadings. Section 31 is not applicable to admissions in pleadings, which are conclusive for purposes of the suit in which they are made. 3. Admission

See commentary

under section 17.

1t9

4. Admissions and Estoppels An admission is a piece of evidence which can be used against the party making it, while estoppel is a sort of conclusive admission (See section 115). But if an admission is made by X to Y under such circumstances that Y was justified in acting on it and altering his position it may amount to an estoppel creating a new and substantive right for Y. The weight to admission depends upon the circumstances under which they were essence of estoppel that a party is wholly estopped or precluded made, but it is the from contradicting his former representation or conduct. Hence, estoppel is a conclusive

admission. On the other hand admissions are not conclusive proofs of the matter admitted, but in (civil cases) the persons making the admissions may be estopped from disproving them and they thus operate as conclusive proof. Further, estoppel cannot generally be taken advantage of by strangers. It only binds their parties and the privies. An estoppel is only a rule of evidence and an action cannot be founded

upon it.

A statement under section 20, Arbitration Act, would not always amount to estoppel on a joint reading of the said section with section 31 of the Evidence Act.2 As the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus onto the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established.3 5. Admissions and Waiver Admissions as used in the Civil Procedure Code are termed as judicial admissions which may operate as a waiver, relieving the other side from the necessity of tendering evidence to prove the fact thus admitted. 6. Admissions of Presumptions Admissions resemble presumptions in that they are conclusive as to the fact to which

they relate, unless the party against whom they are tendered brings forward evidence to destroy them or explain them away. (Powell's Evidence, section 422). 7. Admissions are not Conclusive Proof and may be Proved to be Untrue or Mistaken Conclusive proof is defined in section 4. When a fact is declared to be conclusive

proof of another, a Court cannot allow evidence to be given for the purpose of disproving the fact conclusively proved. Section 31 provides that admission, unless it operates as an estoppel, is not conclusive. An admission though not conclusive proof raises a

presumption that it is true until the contrary is shown." An admission is of no evidentiary value when once it is

proved to be untrue." The section says an

admission is not a

conclusive proof but it corroboration. It deals

does not say that an admission is not sufficient proof without with the effect as to the conclusiveness of an admission. The

1. Abdul Aziz v. Mariyam Bibi, AR 1926 All 710: ILR 49 All 219. 2. Ramji Lal v. Ram Sanehi Lal Pandey, AIR 1973 All 351 (355). 3. United India Insurance Co. Ltd. v. Samir Chandra Chaudhary, (2005) 5 SCC 784: 2005 AIR SCW 5195. 4. Nathoo Lal v. Durga Prasad, AIR 1954 SC 355: 1954 SCJ 557: 1955 SCR 51; Kishori Lal v. Chaltibai, AIR 1959 SC 504: 1959 SCJ 560: 1959 SCR Supp (1) 698.

5. Bazbahadar v. Raghubir, 1927 All 385.

166

The Indian Evidence Act, 1872

Sec.

31

express admission of a party to a suit or an admission implied from his conduct furnishes strong evidence against him. 8. Admissions Shift Onus The burden of proving that an admission is untrue is on the person who wishes to get rid of it, and a fact admitted to be true will be presumed to be true until the contrary is proved.! An admission of adoption is an admission of both the fact and the validity of the adoption, and the burden of proving the contrary lies on the person making such

admission. 9. Admissions in Pleadings An admission made in a prior litigation is not conclusive and may be proved to be wrong. A party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit, and certainly not for

all time." A party who makes an admission for certain purposes in summary proceedings does not necessarily admit the correctness of the claim of the other party. His admission of the claim does not mean that he admits it for all purposes. Statements

by persons

Scope of sections 32 and

who

cannot be called

33.-Statements

as witnesses

by persons who

cannot be called as

witnesses. The provisions of these two sections constitute further exceptions to the hearsay rule. 32. Cases in which statement of relevant fact by person who is dead or

written or verbal, of relevant cannot be found, etc., is relevant.-Statements, cannot be found, or who has person who is dead, or who facts made by a become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the

following cases (1)

when it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) or is made in course of business.-When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed

by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; 1.

Fim Malik Des Raj v. Firm Pira Lal, AIR 1946 Lah 65 Lah 65: 47 Pun LR 391 (FB). 2. Sooratha Singa v. Kanaka Singa, AIR 1920 Mad 648: ILR 43 Mad 867. 3. S.T. Chendikamba v. K.I. Viswanathamayya, AIR 1939 Mad 446: 1939 1 Mad LJ 227. 4. Ramabai Shriniwas Nadgir v. Govt. of Bombay, AIR 1941 Bom 144: 43 Bom LR 232. 5. Ramruprai v. Firm Mahadeo, 1940 Pat 653.

167

Of the Relevancy of Facts

Sec. 32]

or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker-When the statement is against the

s

pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general

interest.When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public

l terest,oftheexistenceofwhich,if itexistedhewould , o srn orgenerain have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship-When the statement relates

to the existence of any relationship *[by blood, marriage or adoption between persons as to whose relationship *[by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) or is made in will or deed relating to family affairs-When the statement relates to the existence of any relationship *[by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or

upon any tombstone, family portrait, or other thing on which such statements are

usually made, and when such statement was made

before the question in dispute was raised. (7) or in document relating to transaction

(a)-When

mentioned in section 13, clause

the statement is contained in any deed, will

document which relates to any such transaction as is

or other

mentioned in

section 13, clause (a).

(8) or is made by several persons, and erpresses feelings

relevant

to

matter in question--When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations (a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(6) The question is as to the date of A's

birth.

An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a Son, is a relevant

fact.

Ins. by Act 18 of 1872, sec. 2.

168

rt

The Indian Evidence Act, 1872

Sec.332

(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of

business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

d) day.

The question is, whether a ship sailed from Bombay harbour on a given

A letter written by a deceased member of a merchanť's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating from Bombay harbour, is a relevant fact. that the ship sailed on a given day (e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact. (0 The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. G) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. G) The question is, what was

the price of grain on a certain day in a particular a deceased banya in the ordinary course of market. A statement of the price, made by his business is a relevant fact.

(k) The question is, whether A,

father of B.

dead,was

A statement by A that B was his son,

is a relevant fact.

) The question is, what was the date of the birth of A.

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. (m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage

with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. SYNOPSIS 1.

12. Genuineness

Principle

CLAUSE 1. DYING DECLARATIONS 2. 3.

Principle Difference between the English Rule and the Indian Law 4. Forms of Dying Declaration 5. Format of Dying Declaration Value of 6. Evidentiary a Dying

7. 8.

Declaration Admissibility of Dying Dying

Declaration

Declaration cannot

be

Important

Guidelines

of Conviction

Dying

Declaration

and

Medical

14.

Dying

Declaration as

an F.LR.

15. Burn Case Dying Declaration Recorded by a Doctor 16. Burn cases Dying Declaration Site Inspection Report Dying-declaration

About

19. Dying Declaration Evidence

Declaration Form the Basis

Dying

Certificate

Cross-

Acceptance of Dying Declaration 10. Incomplete Dying Declaration 11. Can a Dying

13.

17. 18.

examined 9. Some

Multiple

Declarations

20.

Credibility

Effect

of

to his Relatives of a Dying Declaration

the

Re-appreciation of Dying-declaration

Recorded by the Magistrate 21. Oral Dying Declaration

not

22.

of

Procedure

Recording

Dying

Declaration 23. Dying Declaration and Corroboration 24. Statement made before a Police Officer 25. Compliance with section 164 of

43. Statement against Proprietary Interest 44. Statement against Interest 45.

the

to

26. Person to Whom a Dying Declaration may be Made 27. Consistency in Dying Declarations 28. Admissibility of F.IR. as Dying

Declaration 29. Proof of Dying

Declaration Presumption under Section 80 Applies to

a Dying

Declaration

34. Reliability - When Time Gap of Few Days between Declaration and Death

35. Reason of the Rule 36. Difference between the English and

Difference Section 34

between

CLAUSE 3.

the

to the Admissibility which the Statement Section

32(2)

Account Books

a

Police

Made

by

a

Deceased

PUBLIC AND GENERAL RIGHTS 47. Principle 48. Conditions of Admissibility 49. Public Right or Custom, or

Matter

of

Public or General Interest the Commencement of the Controversy: Lis Mota, Section 32(4) and Section 49 CLAUSES 5 AND 6.

and

DECLARATIONSs

AS TO PEDIGREE 51. 52.

Principle Points of

Difference

between

Clauses 5

Special

Means

of

Knowledge 56.

Admissibility

of Pedigree under Clause

(6)

57. 58.

Section 32(5) and Section 90 Clause (7): Declarations Relating

Transaction by which

to a

a Right is Created,

etc.

59. 60.

Statements

having

55. Scope of Declarations

Principle

Admissible under this Clause 42.

to

CLAUSE 4. DECLARATIONS AS T0

and

DECLARATIONS

Admissions

the

54. Persons

41. Section32(3) and Section 21(1) - Difference between

Author

Accomplice is Doubtful

AGAINST INTEREST 40.

its

and 6 Scope of Section 32(5) 53.

CLAUSE 2. DECLARATIONS IN COURSE OF BUSINESS OR DUTY

39.

Exposing

50. Statements must have been Made before

31. Unreliable Dying Declaration 32. Evidentiary Value - Discrepancy as to Place of Occurrence 33. Dying Declaration of a Brain Injured Person

Indian Rule 37. Condition Precedent of the Declaration 38. Circumstances under is made

Statement

Prosecution or Suit for Damages 46. Admissibility of Confessional Statements

Criminal Procedure Code

30.

169

Of the Relevancy of Facts

Sec. 32]

Application of Clause (7) Contained in a Document Statement Relating to any such Transaction as is Section 13(a) Mentioned

CLAUSE 32(8): STATEMENTS MADE BY A NUMBER OF PERSONS EXPRESSING THEIR FEELINGS OR IMPRESSIONS 61.

Principle

Comments 1. Principle Written or verbal statements as to relevant facts made by a person (a) who is dead, (b) who cannot be found, (c) who has become incapable of giving evidence, (d) whose

attendance cannot be procured without unreasonable delay or expense, are relevant under section 32 in the following circumstances: (1) when it relates to the cause of his death (a dying declaration), (2) when it is made in the course of business,

(3) when it is against the pecuniary or proprietary interest of the person

making

it, (4) when it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom has arisen, (5) when it relates to the existence of any relationship between persons and about which the maker has knowledge, and was made before the question in dispute arose,

170

The Indian Evidence Act, 1872

Sec. 32

(6) when it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree or upon any tombstone or family portrait and was made before the question in dispute had arisen, (7) when it is contained in any deed, will or other document, (8) when it is made by several persons and expresses feelings relevant to the matter in question.

CLAUSE 1. DYING

DECLARATIONS

2. Principle Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Sub-section (1) of section 32 makes the statement of the deceased admissible

which is generally described as "dying declaration" Dying declarations are statements oral or documentary made by a person as to the cause of his death or as to the circumstances of the transactions resulting in his death. The grounds of admission of a dying declaration are:

firstly, necessity, for the victim being generally the only principal eye-witness to the crime, the exclusion of his statement might defeat the ends of justice; and secondly, the sense of impending

death which creates a sanction equal to the

obligation of an oath. In order to be a valid dying declaration as specified under section 32(1) of the Evidence Act, primarily such statement of a dead person could be relevant to the cause of his death or any of the circumstances of the transactions which resulted in his death and that too in cases in which the cause of his death comes into question. That apart, it is by now settled that for a statement to be accepted as a dying declaration, it should have passed the rigorous tests laid down in various judicial pronouncement as such a statement would be a self-inflicting one. The general principle on which this species of evidence is admitted is that they are

declarations made in extremity, when the party is at the point of death and when every hope of this world has gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.3 Section 32 of the Evidence Act nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration. Section 32 also does not state that a dying declaration should be made only in expectation

of death. declaration should be made in any prescribed The law does not provide that a dying manner or in the form of questions and answers. But when a Magistrate records a dying

declaration, preferably it should be in question and answer form.

The declaration should

be taken down in the exact words of the person making it.° At the same time, under section 32(1) of the Indian Evidence Act the statements of a deceased person relating to the cause of his death, or the circumstances or the transaction resulting in the death of 1. Ravi Kumar v. State of Tamil Nadu, AIR 2006 SC 1448: 2006 AIR SCW 1037: (2006) 9 SCC 240 (243) (para 5). 2. Mohd. Jamiluddin Nasir v. State of West Bengal, (2014) 7 SCC 443 (para 52). 1 Leach 500:. 168 ER 352; Bhajju v. State of Madhya 3. Per Eyre LC.B. in R. v. Woodcock, (1789) Pradesh, 2012 AIR SCW 1963: 2012 Cr LJ 1926: (2012) 4 SCC 327 (para 23). 4. Kulwant Singh v. State of Punjab, (2004) 9 SCC 257: 2004 AIR SCW 778: AIR 2004 SC 2875. 5. Rabi Chandra Padhan v. State of Orissa, (1980) 49 Cut LT 88 (92-96);: 1980 Cr LJ 1257: AIR 1980 SC 1738 (1740). 6. Majan Mia v. State, AIR 1970 A&N 121 (123).

171

Of the Relevancy of Facts

Sec. 32]

the deceased, alone are admissible.! Where the main evidence consists of statements and letters written by the deceased directly connected with or related to the author's death, the said statement would fall within section 32, the distance of time notwithstanding Clause (1) of section 32 of the Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that "hearsay evidence" is "no

evidence" and the evidence which cannot be tested by cross-examination of a witness is not admissible in a court of law. The purpose of cross-examination is to test the veracity of the statement made by a witness. But the requirement of administering oath and crossexamination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A man on the deathbed will not tell lies.3 The Court further said that when a person is facing imminent death, when even a shadow of continuing in this world is practically over, every motive of falsehood is vanished. The mind is changed by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his maker for his act.4

The principle underlying admissibility of dying declaration is reflected in the wellknown legal maxim: nemo moriturus praesumitur mentire i.e., a man will not meet his maker with a lie in his mouth. A dying man is face-to-face with his maker without any motive for telling a lie. Mathew Arnold said, "truth sits upon the lips of a dying man." The great poet Richard II also said at another place: "Where words are scarce, They are seldom spent in vain; They breathe the truth,

That breathe their words in pain." 3. Difference between the English Rule and the Indian Law In English Law a dying declaration

is

admissible

only

on a

criminal

charge

of

homicide or manslaughter, whereas in India it is admissible in all proceedings, civil or criminal. Secondly, under the English Law the declarations should have been made under the sense of impending death, whereas under the Indian Law it is not necessary that the maker of the statement at the time of making the statement be under a shadow of death and should entertain the belief that his death was imminent.3 Under the English Law the declarant must have been competent as a witness, thus imbecility or tender age will exclude the declaration. It is, however, doubtful whether this rule is applicable in India. The credit of such a declarant may be impeached in the same way as that of a witness

actually examined in a court. There is clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, credence 1. Public Prosecutor, Andhra Pradesh v. Appallaneni Haribabu, (1975) 1 Andh WR 304 (309). 2. Sharad Birdi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622: 1984 Cr LJ 1738: (1984) 4 SCC 116. 3. Vikas v. State of Maharashtra, AIR 2008 SC (Supp) 1356: (2008) 2 SCC 516 (527) (para 35); See also Shakuntala v. State of Haryana, 2007 AIR SCW 4895: AIR 2007 SC 2709: (2007) 10 SCC 168; Sunder Lal v. State of Rajasthan, (2007) 10 sCC 371: 2007 AIR SCW 3240. AIR 2008 SC 1426: 2008 AIR SCW 1437: (2008) 4 SCC 265 (271) 4. Sher Singh v. State o Punjab (para 16); see Babulal v. State of Madhya Pradesh, (2003) 12 SCC 490: AIR 2004 SC 846: 2003

AIR SCW 7074. 5. State of Haryana v. Mange Ram, 2003 (2) RCR (Cri) SC 786: AIR 2003 SC 558: 2002 AIR SCw 5195. 6.

Niamat Khan v. E., 32 Cr LJ 51.

172

The Indian

Evidence Act, 1872

[Sec. 32

and relevancy of a dying declaration is is in hopeless condition and expecting

only when the parties making such a statement an imminent death. So under the English law, actual danger of should have been made when in

for its admissibility, the declaration death and the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, when the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of 'a man will not meet his Maker with a lie in his mouth. 4. Forms of Dying Declaration There is no particular form to be employed in making a dying declaration. It may be oral or in writing, or may even be partly oral and partly in writing. On the other hand, it may be neither oral nor written, that is to say, it may consist of only some signs or gestures made by the deceased.2 In J. Ramulu

v. State of Andhra Pradesh,s a dying

declaration

was recorded by the

Investigating Officer with the help of the gestures of the deceased because acid was thrown on his face, neck and chest due to which he was unable to see and speak. Besides he had make some statement in writing on chits and by signs and gestures though the same was not relied upon not because of it being with the help of his signs andgestures but because of other infirmities in it. There is no particular form or procedure prescribed for a dying declaration nor is it required to be recorded only by a Magistrate. 5. Format of Dying Declaration There is no format prescribed for recording a dying declaration. Indeed, no such format can be prescribed. Therefore, it is not obligatory that a dying declaration should be recorded in a question-answer form. There may be occasions when it is possible to do so and others where it may not be possible to do so either because of prevailing situation or because of the pain and agony that the victim might be suffering at that point of time.° No doubt it is emphasised by the Supreme Court that recording of such a statement in the form of questions and answers is the more appropriate method which should generally be resorted to. However, that would not mean that if such a statement otherwise meets all the requirements of section 32(1) of Evidence Act and is found to be worthy of credence, it is to be rejected only on the ground that it was not recorded in

the form of questions and answers. 6. Evidentiary Value of a Dying Declaration By enacting section 32 the Legislature in its wisdom has placed a dying declaration on par with evidence on oath for the reason that at the time when a man is in danger of losing himself it is not likely that he would speak lies and involve an innocent person. There is no absolute rule of law nor is there any rule of prudence which has ripened into a rule of law that a dying declaration cannot form the sole basis of a conviction unless it is corroborated by independent evidence. The circumstances which lend strength and assurance to a dying 1.

Bhajju v. State of

declaration are as follow: Madhya Pradesh, 2012 AIR SCW 1963: 2012 Cr LJ 1926: (2012) 4 SCC 327

(para 25). 2. 3. 4.

Queen Empress v. Abdullah, ILR (1885) 7 All 385: 1885 All WN 78 (FB). See also ChadrikaRam Kahar v. King-Emperor, AIR 1922 Pat 535. AIR 2008 SC 1505: 2008 Cr LJ 1918: 2008 AIR SCW 1602. Ashabai v. State of Maharashtra, AIR 2013 SC 341: 2013 AIR SCW 333: (2013) 2 SCC 224 (para 15).

5.

Surinder Kumar v. State of Punjab, (2012) 12 SCC 120 (para 19).

6.

Satish Chandra v. State of Madhya Pradesh, (2014) 6 SCC 723 (para 34).

Sec. 32]

173

Of the Relevancy of Facts

1. That it was

recorded

by a competent

Magistrate

after taking all proper

precautions.

:

it was spoken. 2. That it was taken down in the exact words in which 3. That it was made shortly after the assault when there was no opportunity of

it being coloured by impressions received from others. That the deceased had ample opportunity of observa on.

202

5. That the incident happened in a sufficiently lighted place.to ys9n 6. That the deceased had made more than one statement and all of them were consistent as to the circumstances of the occurrence and the identity of the

attackers. 7. That the deceased was not under any fear or pressure at the time of making the statement2 Though a dying declaration is entitled to great weight. It is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the

court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear

opportunity to observe and identify the assailant. Once the court is satisfied that the

declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of convection unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.3

To make admissible of dying-declaration

without corroboration, the Supreme Court

in Surinder Kumar v. State of Haryana*, observed that though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the Court must be satisfied that the dying-declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinize the dying-declaration carefully and must ensure that the declaration is not the result of tutoring or prompting or imagination. Where a dying-

declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it should be rejected. The dying-declaration which suffers

from infirmity cannot form the basis of conviction. The law is well-settled that a dying declaration is admissible in evidence and the

admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction.

A Court of facts is not excluded from acting

upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of

evidence,

stands

on

the same

footing

as any

other

piece of

evidence.

It

has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances 1.

Khushal Rao v. State of Bombay, AIR 1958 SC 22: 1958 SCC 28: 1958 SCR 552.

2. Kishan Lal Sethi v. Jagan Nath, AIR 1990 SC 1357: 1990 Cr LJ 1500. 3. Muthu Kutty v. State by . spector of Police, T.N., (2005) 9 SCC 113: AIR 2005 SC 1473: 2004 AIR SCW 7396; See also State of Rajasthan v. Wakteng, (2007) 14 SCC 550: AlR 2007 SC 2020: 2007 AIR SCW 3802; Shaik Nagoor v. State of Andhra Pradesh, AIR 2008 SC 1500: 2008 Cr LJ 2079: 2008 AIR SCW 1590; Dashrath v. State of Madhya Pradesh, AlR 2008 SC 316: 2007 AlR SCW 6837: (2007) 12 SCC 487. 4. 2012 AlR SCW 494: 2012 Cr LJ 1043: (2011) 10 SCC 173 (183) (Para 28).

The Indian Evidence Act, 1872

174

Sec. 32

coming to its notice, the Court may, as a rule of the infirmities are such as would render a dying conscience of the Court, the same may be refused the conviction.' If the dying declaration is made

prudence, look for corroboration and if declaration so infirm that it pricks the to be accepted as forming the basis of voluntarily and truthfully, by a person who is physically in a condition to make such statement, then there is no impediment

in relying on such a declaration.2 The evidence furnished by the dying declaration must be considered by the Judgejust as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of a dying declaration which do not arise in the case of assessing the value of a statement made in Court by a person claiming to be a witness of the OCcurrence.

The deceased must be fully conscious while making the dying declaration. The documents which are desired to be treated as dying declarations should be of such a nature as to inspire full confidence of the Court in their correctness. There should not be any discrepancy in them which should throw doubt upon the veracity of the contents. However, such statements need to be corroborated by independent evidence? Great weight must necessarily be attached to the dying declaration recorded shortly after the occurrence. But the Courts must, be circumspect and cautious in evaluating the worth of such a statement.

If the statement of the dying person passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration. A dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaratiorn. Besides he is neutral person. It is a settled law that, if the prosecution solely depends on the dying declaration, the normal rule is that the Courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by

cross-examination.10

7. Admissibility of Dying Declaration The admissibility of the dying declaration is based upon the principle that thesense of impending death produces in man's mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth 1.

2. 3.

Bhajju v. State of Madhya

Pradesh, 2012 AIR SCW 1963: 2012 Cr LJ 1926: (2012) 4 SCC 327

(para 26). Manoj v. State of Haryana, (2013) 9 SCC 190 (para 14). Vaswant Narayan Pawar v. State of Maharashtra,

AIR 1980 SC 1270: 1980

Cr LJ 1009: 1980 SCC

(Cri) 845. 4.

State of Uttar Pradesh v. Chet Ram, AIR 1989 SC 1543: 1989 Cr LJ 1785:

(1989) 2 SCC 425.

5.

Habibullah v. State, (DB) 1986 ALJ 267. Habib Usman v. State of Gujarat, 1979 Cr LJ 708: (1979) 3 SCC 358: AIR

1979 SC 1181 (1183).

7. Baij Nath v. State of Uttar Pradesh, 1982 ALJ 1027 (1030). 8. Kusa v. State of Orissa, 1980 Cr LJ 408: (1980) 2 SCC 207 AIR 1980 SC

559 (563); See Paniben

v. State of Gujarat, AR 1992 SC 1817: 1992 AIR SCW 2050: (1992) 2 SCC 474 (17, 18). 9. Samadhan Dhudaka Koli v. State of Maharashtra, 2009 AIR SCW 212: (2008) 16 SCALE 66: AlK 2009 SC 1059 (1062) (para 11). 10. Ashabai v. State of Maharashtra,

para 11.

AIR 2013 SC 341: 2013

AIR

SCW 333: (2013) 2 SCC 224

15). Ravi Kumar v. State of Tamil Nadu, AIR 2006 SC 1448: 2006 AIR SCW 1037: (2006) 9 SCC 240

(243) (para 5).

Sec. 32]

Of the Relevancy of Facts

175

The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.'

8. Dying Declaration cannot be Cross-examined The dying-declaration is enshrined in section 32 of the Evidence Act, 1872, as an

exception to the general rule contained in section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e., it must be the evidence of a witness, who says he saw it. The dying-declaration is, in fact, the statement of a person, who cannot be called as witness and cannot be cross-examined. Such statements themselves are relevant facts in certain cases.

9. Some Important Cuidelines About Acceptance of Dying Declaration In Paniben v. State of Gujarat? the Supreme Court on the basis of its own earlier decisions has summed up certain guidelines to be followed by the courts while dealing with the dying declarations:

i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

i) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

ii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration."

(iv) Where dying declaration is suspicious, it should not be acted upon without

corroborative evidence. (v) Where the deceased was unconscious and could never make any dying

(vi) (vii)

(vii)

1.

2. 3.

declaration the evidence with regard to it to be rejected. A dying declaration which suffers from infirmity cannot form the basis of

conviction.8 Merely because a dying declaration does not contain the details as to the

occurrence, it is not to be rejected. Equally, merely because it is a brief statements, it is not to be discarded. On the contrary the shortness of the statement itself guarantees truth.

Varikuppal Srinivas v. State of Andhra Pradesh, AIR 2009 SC 1487: 2009 AIR SCW 975: (2009) 3 SCC 415 (418) (para 11); See also Mohan Lal v. State of Haryana, (2007) 9 SCC 151: AIR 2007 SC (Supp) 1139. AIR 1992 SC 1817: 1992 AIR SCW 2050: (1992) 2 SCC 474 (480-81). Munnu Raja v. State of Madhya Pradesh, (1976) 3 SCC 104: AIR 1976 SC 2199: 1976 Cr LJ 1718.

State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416: 1986 Cr LJ 836: (1985) 1 SCC 552. 4. K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618: AIR 1976 SC 1994: 1976 Cr LJ 5. 1548. Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264: AIR 1974 SC 332: 1974 Cr LJ 361. 6. Kake Singh v. State of Madhya Pradesh, (1981) Supp SCC 25: AlR 1982 SC 1021: 1981 Supp SCC

7. 25: 1982 Cr LJ 986. 8.

Ram Monorath v. State of Uttar Pradesh, (1981) 2 SCC 654: (1981) 3 SCR 195: 1981 SCC (Cri) 581.

State of Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 (623): (1980) Supp SCC 9. 455: 1981 Cr LJ 9. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505: 1980 Supp SCC 769: 1979 Cr LJ 1122. 10.

The Indian

176

Evidence Act, 1872

Sec. 32

(ix)

Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (xi) Where there are more than one statement in the nature of dying declaration,

one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to trustworthy and reliable, it has to beaccepted. 10. Incomplete Dying Declaration If a dying declaration though incomplete due to death, is categoric in character and makes a clear accusation against the accused it can be acted upon. Corroboration would not always be necessary, if it is complete in its accusation." Where the version contained in the dying declaration is found inconsistent with the actual facts collected in the course of the investigation, the dying declaration should not be given importance. In a case of murder under the TADA Act, some of the names of the accused, which were merntioned in the confessional statements recorded under the TADA Act, were absent in the dying declaration, due to incompleteness of the dying declaration. The Court

held that though the dying declaration was incomplete, yet it did not reject completely the idea of the presence of other accused as detailed in the confessional statements of the accused and thus it did not negate the admissibility of the confessional statements. In Khushalrao's case, the Supreme Court of India pointed out that its observation in that it was not safe to convict an accused the earlier case of Ranm Nath Madho Prasad only on the evidence of a dying declaration, without any independent corroboration was an obiter dictum. 11. Can a Dying Declaration form the Basis of Conviction If the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the acused and if a dying declaration is acceptable as truthful event

in the absence of corroborative evidence, court may act upon it and convict. A truthful, coherent and consistent dying declaration need no corroboration and conviction may be based on it.0 Thus, if the dying declaration passes the test of scrutiny it can be relied on as the sale basis of conviction.

1.

Nanahau Ram v. State of Madhya Pradesh, AIR 1988 SC 912: 1988 Supp SCC 152: 1988 Cr LJ

936. 2.

State of

Uttar Pradesh v. Madan

Mohan,

AlR

1989 SC 1519: (1989) 3 SCC 390: 1989 Cr 1J

1485. 3.

Mohanlal

Gangaram Gehani v.

State of Maharashtra,

(1982) 1 SCC 700: AIR 1982 SC 839 1982

Cr L 630 (2). 4. 5.

Muniappan v. State of Madras, 1962 SCJ 21: (1962) 3 SCR 869: AIR 1962 SC 1252. Surinder Kumar Malhi v. State of Himachal Pradesh, 1985 Cr LJ 1436: ILR 1984 HP 793: 1985 (2) Rec Cri R 15 (HP).

6.

Ahmed Hussain Vali Mohammed Saiyed v. State of Gujarat, AIR 2010 SC (Supp) 846: 2010 AIR SCW 2548: (2009) 7 SCC 254 (277) (para 76).

7. Ram Nath Madhoprasad v. State of Madhya Pradesh, AlR 1953 SC 420: 1953 Cr LJ 1772 (SC). I 8. Vithal Somnath More v. State of Maharashtra, AIR 1978 SC 519: (1978) 1 SCC 622: 1978 Cr 644.

9. State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416: 1986 Cr LJ 836: (1985) 1 SCC 5 TrilochanSahoo v. State of Orissa, 1985 Cr LJ (NOC) 110 (Ori). 10.

State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416: 1986 Cr LJ 836: (1985) 1 SCC 552/ Dilli Rao v. State of Bihar, 1986 Cr LJ 1483. 11. Raja Ram v. State of Rajasthan, (2005) 5 SCC 272.

Sec. 32]

177

Of the Relevancy of Facts

The Supreme Court in Panneerselvam v. State of Tamil Nadu, held that it cannot be laid down as an absolute rule of law that the dying-declaration cannot form the sole basis of the conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. In a case the Supreme

Court

has

observed

that

the

dying

declaration

can be

the sole basis of conviction, if inspiring full confidence of the Court in its truth and voluntariness. The Court, in State of Rajasthan v. Wakteng" held that conviction can be based solely on the dying declaration, without any corroboration, the same should not be suffering from any infirmity i.e., it should be found to be true and voluntary. In P. Mani v. State of Tamil Nadu,4 it was held that the indisputably conviction can be recorded on the basis of dying declaration alone but therefor the same must be wholly reliable. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. The Supreme Court has clearly stated the principle that section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of section 32 makes the statement of the deceased admissible, which is generally described as a "dying declaration" The dying declaration is the last statement made by a person at a stage when he is in serious apprehension of death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the

truth. Normally, in such situations the Courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the court can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration.' The statement of the deceased giving a brief sketch about how the accused persons arrived at the scene of occurrence and started assaulting the prosecution party, can be admissible as a dying declaration at a stage when no more can be expected of an injured person who died the next day. 12. Genuineness of Multiple Dying Declarations Law relating to appreciation of evidence in the form of more than one dying declaration is well-settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied (2008) 17 SCC 190: AIR 2009 SC 508: 2008 AIR SCW 4787. 2. Kalawati v. State of Maharashtra, AIR 2009 SC 1932: 2009 AIR SCW 1548: (2009) 4 SCC 37 para 14).

(40)

3. (2007) 14 SCC 550 (554) (para 14): AIR 2007 SC 2020: 2007 AIR SCW 3802. AIR 2006 SC 1319: 2006 AIR SCW 1053: (2006) 3 SCC 161.

Bhaju v. State of Madhya Pradesh, 2012 AlR SCW 1963: 2012 Cr LJ 1926: (2012) 4 SCC (para 22). 6. M. Sarvana v. State of Karnataka, 2012 AIR SCW 4292: (2012) 7 SCC 636 (para 18).

327

7.

224

5.

Ashabai v. State of Maharashtra,

(para 15).

AIR 2013 SC 341: 2013 AIR SCW 333: (2013) 2 SCC

178

The Indian Evidence Act, 1872

[Sec. 32

upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. While serutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances. contradictory or are at variance Where the multiple dying declarations are either with each other to a large extent, the test of common prudence would be to first examine which of them is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters. In Sanjay v. State of Maharashtra, deceased in the first dying declaration stated that while she was pumping the stove it suddenly burst and her saree caught fire. She shouted loudly and then her husband rushed towards her and extinguished the fire. Nothing was alleged against the appellant in it. Rather it showed that the appellant tried to save the deceased. In the subsequent dying declaration deceased stated that she poured kerosene on her and set herself ablaze because she was angry with her husband. In view of different dying declarations the Court held that it would not be safe to uphold the conviction of the appellant for abetment to suicide and he has to be given benefit

of doubt. In State of Maharashtra v. Sanjay D. Rajhans, the Supreme Court has observed that it is not the plurality of the dying declarations that adds weight to the prosecution case,but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full of confidence of the court in its truthfulness and correctness. Inasmuch as the correctness of dying declaration cannot be

tested by cross-examination of its maker, 'great caution must be exercised in considering the weight to be given to this species of evidence'. When there is more than one dying declaration genuinely recorded, they must be tested on the touchstorne of consistency and probabilities. They must also be tested in the light of other evidence on record. Similarly, in the case of Muthu Kuty v. State by Inspector of Police, T.N.,5 the Supreme Court has held that where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying could be held to be trustworthy and reliable, it has to be accepted. In Vallabhaneni Venkateshwara Rao v. State of Andhra Pradesh,6 it has been held that

the second dying declaration is not a mere improvement

of first dying declaration. The

story projected in the first dying declaration is entirely different from that of dying declaration. The story of the first dying declaration has been given new case has been projected in the second dying declaration by introducing eye-witnesses and new set of accused. Hence, both the dying declarations believed. 1.

Amol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468 (471) (para 13).

2.

Shudhakar v. State of Madhya Pradesh, AlR 2012 SC 3265: 2012 AIR SCW

thesecond up and a new set of cannot be

4397: (2012) 7 SCC

569 (para 21). AIR 2007 SC 1368: 2007 AIR SCW 1710: (2007) 9 SCC 148 (150) (para 12 & 16). AIR 2005 SC 97: 2004 AIR SCW 6320: (2004) 13 SCC 314 (322) (para 17); Bijoy Das v. Stateof West Bengal, (2008) 4 SCC 511: AIR 2008 SC (Supp) 1353: 2008 AIR SCW 1034. 5. (2005) 9 SCC 113: AIR 2005 SC 1473: 2004 AIR SCW 7396.

3. 4.

6.

(2009) 6 SCC 484 (489) (para 20).

Sec. 32]

179

Of the Relevancy of Facts

When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the

other. 13. Dying Declaration and Medical Certificate The Supreme Court has observed that in the absence of a medical certificate that the injured was in a fit state of mind at the time of making the declaration, subject to the opinion of the Magistrate that the injured was in a fit state of mind at the time of making the declaration is not enough to admit the dying declaration. In the instant case the certificate appended to the dying declaration by the doctor did not comply with the requirements of certifying that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate only said that the "patient is conscious

while recording the statement." In view of these material omissions the dying declaration was not accepted as evidence. In medical science the two stages, namely; being conscious and in a fit state of mind are distinct. The Supreme Court has held that the statement in the dying declaration that the accused poured kerosene on her and thereafter, she also poured kerosene on herself and that "they have burnt me with a lighted match stick" raises a reasonable doubt as to whether she was in a fit disposing state of mind at the time when the dying declaration was recorded. In Atbir v. Govt. (NCT ofDelhi),5 the Supreme Court has observed that while recording the dying-declaration factors such as mental condition of the maker, alertness of mind memory, evidentiary value, etc., have to be taken into account. In Laxman v. State of Maharashtra, the Constitutional Bench of the Supreme Court held that if the person recording the dying declaration is satisfied that the declarant was

in fit mental condition to make the dying declaration then such dying declaration would not be invalid solely on the ground that the doctor has not certified as to the condition of the declarant to make the dying declaration. Again in a case the Supreme Court has observed that the court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally the court places reliance on the medical evidence for reaching the conclusion

whether the person making a dying declaration was ina fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially. rule of caution, and, therefore, the voluntary and truthful nature of a statement can be established otherwise.5 As a general rule it is advisable to get evidence of the declarant 1. Ashabai v. State of Maharashtra,

AIR 2013 SC 341: 2013

AIR SCW 333: (2013) 2 SCC 224

(para 15). 2. Paparambaka Rosamma v. State of Andhra Pradesh, 1999 AIR SCW 3440: AIR 1999 SC 3455: 1999 Cr LJ 4321. [Cri A. No. 662 of 1996, dated 26-3-1997 (AP Reversed)). (2010) 9 SCC 1: AIR 2010 SC 3477: 2010 AIR SCW 5461.

4. (2002) 6 SCC 710: AIR 2002 SC 2973: 2002 AIR SCW 3479. 5. Sher Singh v. State of Punjab, AlR 2008 SC 1426: 2008 AIR SCW 1437: (2008) 4 SCC 265 (271)

para 16).

180

The Indian Evidence Act, 1872

Sec. 32

certified from a doctor. In appropriate cases the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement.

In Gaffar Badshaha Pathan v. State of Maharashtra2 the deceased died due to burn

injuries but the accused relied upon the dying declaration in support of the defence of accidental death. It was held that burden on the accused to prove dying declaration is much lighter. He has only to prove reasonable probability. In such circumstances dying declaration could not be rejected on the ground that it does not contain on endorsement of the doctor of the fitness of the lady

to make the statement, as the certificate of the

doctor only shows that the lady was in

a conscious state.

In Ram Krushna Roy v. State of Orissa*, the court held that merely absence of endorsement that the deceased was not in a fit state of mind to give the statement

is not material when death of deceased was admitted to be unnatural and doctor, an independent witness, has clearly stated in his evidence that at the time when he recorded the dying-declaration the deceased was conscious and in a fit state of mind. Certification made by the doctor with regard to the condition of the declarant is definitely the last word. Though ordinarily and in the normal course such an opinion should be accepted and acted upon by the Court, yet in cases where the circumstances so demand such opinions must be carefully balanced with all other surrounding facts and circumstances as in the instant case, the declarant had slipped into a coma even before completing the statement which certainly would have seriously affected his capacity to make such a statement."

14. Dying Declaration as an F.LR. The Police also took the statement of the deceased which was treated as an FLR. and the same can be treated as a dying declaration. The two dying declarations made

by the deceased at two different points of time to two different persons corroborate each other and there is no inconsistency in those two declarations. The Supreme Court held that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused person and the prosecution case must be held to have been established beyond reasonable doubt5 The statement of a deceased recorded by a police complaint and not as a dying declaration can be taken

officer in a routine manner as a as a dying declaration after the

death of the injured if he was found to be in a fit health to make a statement.

15. Burn Case Dying Declaration Recorded by a Doctor In the instant case the doctor stated that he found the deceased having 90% burns, that she was conscious, cooperative and oriented regarding time, place and person. The deceased made the statement in Hindi while the doctor recorded it in English. He did not read over and explain the contents of the document to the deceased and he also did not obtain her signature or thumb impression on the document. No other person had attested the statement alleged to have been made by the deceased before the witness. The Medical Officer also in charge of the ward endorsed stating that the deceasedwas

not in a fit condition for making the statement. The Supreme Court held that on the facts

1.

Ashabai v. State

of Maharashtra,

AIR 2013 SC 341: 2013 AIR

SCW 333: (2013) 2 SCC 24

(para 15). 2. 2005 AR SCW 3264: (2004) 10 SCC 589. 3. 2012 Cr LJ 3351: 2012 AlR SCW 3541: AIR SC (Cri) 2012 SC 1092. 4. Murugesan v. State, 2012 AIR SCW 5627: (2012) 10 SCC 383: AIR 2013 SC 274 (para 31). 5.

Koli Chunilal Savji v. State of Gujarat, AIR 1999 SC 3695: 1999 AIR SCW 3727: 1999 Cr 4582. 6. Paras Yadav v. State of Bihar, (1999) 2 SCC 126: AIR 1999 SC 644: 1999 AIR SCW 296.

Sec. 32]

181

Of the Relevancy of Facts

and circumstances of the case it would not be safe to convict the accused solely on the basis of the dying declaration made by the deceased In Jiban Das v. State of Tripura; the deceased person received burn injuries on28-12003 at about 1.00 pm. Immediately, thereafter she was hospitalized. Her dying-declaration was recorded by the medical officer on 30-1-2003 at 3.45 p.m. Investigati Officer also thereafter examined her and recorded her statement. That Statement recorded by Investigating Officer has not been proved but the statement recorded by the mostindependent and reliable agency i.e., the doctor has been proved. The court held that there was no animosity of the accused with the doctor. There is also nothing on therecord that the doctor was interested in any way with the victim lady or her parentalfamily. His evidence has not been shaken at all, which is corroborated by other witness of prosecution. The doctor himself recorded the statement, there could not be a questionabout the mental and physical fitness of the deceased in making such statement. The recording of statement by the doctor himself indicates that the deceased was mentallyand physically well capable of making such statemernt. The court held that the deceasedwas not tutored, prompted or advised or that it was simply her imagination. In P.V. Radhakrishna v. State of Karnataka,3 the question before the court was whether a dying declaration

made

by a person

who

had

suffered

85% burn

injuries

could

be

relied upon? The court held that the percentage of burns alone would not determine the probability or otherwise of making a dying declaration as physical state or injuries of the declarant do not by themselves determine the mental fitness of the declarant to make the statement.

16. Burn Cases Dying Declaration - Site Inspection Report However, where the dying declaration was recorded by an Executive Magistrate and there was evidence to show that there was no doctor present to ascertain the condition of the patient while the statement was being made it was not safe to rely upon the same as a dying declaration.

17. Dying-declaration to his Relatives In Bable v. State ofChhattisgarh,5 the Supreme Court has held that the dying declaration made by the deceased to his relative cannot be lost sight of by the court. To the rule of inadmissibility of hearsay evidence, oral dying-declaration is an exception. The dying declaration would be reliable, cogent and explains the events that had happened in their normal course which was not only a mere possibility but leaves no doubt that such events actually happened as established by the prosecution. Once there exists reliable, cogent and credible evidence against one of the accused, the mere acquittal of other accused will not frustrate the case of the prosecution. 18. Credibility of a Dying Declaration In

the

instant

case,

the

Supreme

Court

has

observed

that

there

were

serious

discrepancies in the testimony of the three witnesses with respect to the dying declaration made by the deceased. The Apex Court found that the three witnesses, who were closely related to the deceased, had made different statements with respect to the same declaration made by the deceased to them. According to the complaint recorded the deceased had made the dying declaration two months after the alleged incident. It was only on regaining consciousness on 6th November, 1976 she made her first oral dying declaration in which she named the accused. But in the second dying declaration made 1. Jai Karan v. State of N.C.T, Delhi, AlR 1999 SC 3512: 1999 AIR SCW 3508: 1999 Cr LJ 4529. 2. 3.

2012 Cr LJ 3237: 2012 (5) Gau LR 452: 2012 (2) Gau LT 1049. 2003 (3) RCR (Criminal) SC 870: AIR 2003 SC 2859: 2003 Cr LJ 3717 (SC).

4. Jai Prakash v. State of Haryana, AIR 1999 SC 3361: 1999 AIR SCW 244: 1999 Cr LJ 837. 5.

AIR 2012 SC 2621: 2012 Cr LJ 3676: 2012 AIR SCW 3962.

182

The Indian Evidence Act, 1872

Sec. 32

to the Magistrate on 11th November, 1976, she did not name any of the accused even when specifically questioned by the Magistrate. The Supreme Court observed that the

trial court had rightly noted the discrepancies in the two dying declarations and acquitted the appellant. Appreciating the fact that the two dying declarations recorded did not establish the guilt of the appellant the Supreme court held that the High Court had erroneously evaluated the conflicting dying declarations and had committed an error in setting aside the acquittal

of the appellant and convicting him under section 302 of the

Indian Penal Code. In Girdhar Shankar Tawade v. State of Maharashtra,2 the Apex Court has observed that it is well settled that dying declarations have to be dealt with due care and admitted as evidence only upon proper circumspection. In Sheikh Mehboob alias Hetak v. State of Maharashtra, the endorsements in medical record mentioned that there was history of 'accidental burns' at one place and at another place that there was history of 'self inflicted burns'. Dying declaration itself suggested that the deceased had started to make a statement which suggested of his having poured kerosene oil on himself and set himself on fire as the accused were demanding interest and beating him. The circumstances raised serious doubts as to the credibility of dying declaration. Therefore, the dying declaration was held to be not reliable. In Kanti Lal v. State of Rajasthan, it was observed that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, the Court must be satisfied that the deceased was in fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution. In this case, the Court observed that the Naib Tahsildar who recorded the statement did not take any certificate from the doctor to prove that the deceased was in a fit state of mind to give statement nor did he record any endorsement to that effect on

the alleged dying declaration. According to the doctor, dying declaration was recorded by the Reader of the Tehsildar and not by the Naib Tehsildar. It was also proved on record that said witness did not ask preliminary questions from the deceased before the dying declaration allegedly made by her was recorded. It was also the evidence of Naib Tehsildar that after recorded the alleged statement of the deceased, he did not seal the dying declaration and unsealed document was handed over to Station House copy of the Tehreer submitted to Officer. He did not produce on record the original him by a constable requesting him to visit the hospital for recording the alleged dying declaration of the deceased, and a carbon copy whereof was produced by him during his cross-examination. A categorical refusal of putting her signature orthumb-impression on the alleged dying declaration by mother of the deceased would further go to prove that the alleged dying declaration was not at all recorded by the witness in the room ot the hospital where the deceased was lying before she died. Alleged dying declaration did not bear endorsement of witness to the effect that it was read over and explained to the deceased. In these circumstances, the Court held that the alleged dying declaration suffered from a number of basic infirmities and such dying declaration cannot said to be admissible and be accepted as genuine document. 1.

2. 3. 4.

Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310: AIR 2000 SC 3062: 1999 Cr LJ 4070. 2002 AIR SCW 2140: AIR 2002 SC 2078: 2002 Cr LJ 2814.

2005 AIR SCW 1595: 2005 (3) SCALE 55: JT 2005 (3) SC 137. 2009 AIR SCW 4147: 2009 (1) DMC 681: AIR 2009 SC 2703 (2708) (para 21 & 22).

Sec. 32]

Of the Relevancy of Facts

183

In a case of murder, the accused sprinkled acid on the face, neck and chest of the

deceased with a mug. The deceased shouted for help which attracted the attention of his

family members, who were sitting in the verandah of their house. They immediately came to the spot and took the deceased to a hospital for medical treatment. The deceased got

severe burn injuries. One of his family member lodged an FIR. The police officer went to the hospital and recorded the statements off prosecution witnesses. On the next day

the Investigating Officer recovered burnt leaves of small plants and acid-mixed earth and control earth from the place of occurrence. The Investigating Officer again went to the hospital where the deceased gave his statement by gestures and writing on small chits to him. The statement of the deceased was recorded after obtaining permission from the Doctor. On requisition sent by the Inspector of Police to Metropolitan Magistrate, Hyderabad, he came to the hospital and recorded the dying declaration of the deceased. He stated that the declarant was not able to speak and see due to burn injuries but he was responding by gestures to the questions put to him. He gave him pen and a

paper to write his statement who wrote the answers on the proceedings of the dying declaration and named the accused. The Court observed that the Magistrate did not make any endorsement on the proceedings of the dying declaration that the declarant was physically and mentally fit throughout the proceedings. Similarly, the Doctor on duty also did not specifically state in his endorsement that the declarant was physically and mentally in a fit state to make the statement. The Court also observed that the dying

declaration was not free from doubt and embellishment. The Investigating Officer, who recorded the statement of the deceased on small chits which the prosecution did not place on the record of the case. It clearly and

plainly

showed that the deceased made some

statement to him which in all probability did not contain the names of the accused who were responsible for throwing acid on face, neck and chest. Those chits were important

documentary evidence which were deliberately withheld by the prosecution from the Court with clear intention of suppressing the true versiorn of the deceased, subscribed by him on some paper chits at the first available opportunity. The two of the prosecution witnesses clearly and plainly deposed that the deceased made tutored statement to the Magistrate at the behest of their relatives who had been the regular visitors of the ward where the deceased before death was lying and they had compelled the deceased to mention the names of the accused along with other accused. The suppression and withholding of the first dying declaration made to the Investigating Officer, by itself creates suspicion and reasonable doubt as to the correctness and truthfulness of dying declaration allegedly made by the deceased to the Metropolitan Magistrate. The Court also observed that the Doctor, in whose presence the Metropolitan Magistrate recorded the dying declaration was not examined by the prosecution to corroborate the correctness and truthfulness of the dying declaration on which conviction was recorded by the Trial Court. The Court held that the dying declaration was not reliable and the conviction was

Wrongly recorded. The report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb-impression on the same. The Supreme Court held that the report was admissible under section 32 of the Act. Where the Magistrate who recorded the dying declaration had taken necessary precautions, mere presence of some of the close relatives of the deceased would not affect the credibility of the dying declaration and the claim that there was wrong description of

1. J. Ramulu v. State of Andhra Pradesh, AlR 2008 SC 1505: 2008 Cr LJ 1918: 2008 AIR SCW 1602.

2. Dharam Pal v. State of Uttar Pradesh, 2008 Cr LJ 1016: 2008 AIR SCW 357: AIR 2008 SC 920

(925) (para 10, 11).

184

The Indian Evidence Act, 1872

Sec. 32

names in the dying declaration was not a material contradiction which would affect the prosecution case.! Where while recording the history of the patient, the victim of burn, the doctor had noted that she got burnt in an accidental fire while cooking food, in view of the categorical statement by the deceased in her dying declaration to the contrary, the doctor's note in the patient's history would not affect the prosecution case.2Where the declarant stated that her mother-in-law sprinkled kerosene oil on her and burnt her but she did not make any allegation against her sister-in-law, though she also was present there, the veracity of her dying declaration could not be doubted."

19. Dying Declaration - Re-appreciation of Evidence In a case the High Court on re-appreciation of evidence came to the conclusion that the statement of the deceased was not at all reliable. The High Court taking into consideration all factors concluded that the deceased had not given the statement as deposed by the Investigating Officer. The Supreme Court observed that there was no other evidence led by the prosecution against the respondents and held that the High

Court was right in acquitting the respondents. 20. Effect of the Dying-declaration not Recorded by the Magistrate In Atbir v. Govt. (NCT of Delhi), it was held that merely because the dying-declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. The court further held that the statement of the injured, in the event of her death may also be treated as FIR. In State of Karnataka v. Shariffs the Supreme Court has held that there was no requirement of law that a dying-declaration must necessarily be made before a Magistrate.

It is not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that evidence is available to show that the dying declaration is voluntary and truthful.

21. Oral Dying Declaration The Supreme Court has observed that the evidence of the prosecution witnesses clearly establish beyond reasonable doubt that the deceased was conscious and in a fit state to make statements on the date of the incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of a number of witnesses as their evidence does not suffer from any infirmity which would render the dying declaration as doubtful or unworthy of evidence. The lapse on the part of the investigating officer should not be taken in favour of the accused as it may have been committed designedly or because of negligence. The Supreme Court added that the prosecution evidence is required to be examined de hors to find out whether the said evidence is reliable or not. The Supreme Court held that, there is no reason to disbelieve the oral dying declaration as deposed by a number of witnesses and as recorded in the fard-beyan of the deceased. The fard-beyan was recorded by the Police Sub-Inspector on the scene of occurrence of the incident. The medical evidence of witnesses also corroborates the prosecution version. The Courts below have rightly convicted the accused for the

offence of murder." 1. Rakesh v. State of Haryana, (2013) 4 SCC 69 (paras 13 and 20). 2. Rakesh v. State of Haryana, (2013) 4 SCC 69 (para 14). 3. Annapurna v. State of Uttar Pradesh, 14 SCC 727 (paras 2 and 4).

State of Karnataka v. Narayan Babu Sanadi, AIR 1999 C 848: 1999 Cr LJ 589: 1998 AIR SCW 3942. 5. (2010) 9 SCC 1: AlR 2010 SC 3477: 2010 AIR SCW 5461. 6. (2003) 2 SCC 473: AIR 2003 SC 1074: 2003 AIR SCW 60. Surinder

Kumar v. State of Punjab, AIR 1999 SC 215: 1999 Cr LJ 267: (2012) 12 SCC 120 (para

20). 8.

Paras Yadav v. State of Bihar, (1999) 2 SCC 126:

AIR 1999 SC 644: 1999 AIR SCW 296.

Sec. 32

sIn

Of the Relevancy of Facts

185

a case where, admittedly, the alleged dying declaration had not been made to

any doctor or to any independent witness, but only to the mother who, arrived at the hospital on the same day, when doctor had already operated deceased for his injuries and thereafter he was lying on the bed in unconscious condition with oxygen tubes having been inserted in his nostrils. The prosecution had not brought on record any medical certification to prove that after operation the deceased was in a fit condition to make the declaration before his mother. The evidence of alleged oral dying declaration by the deceased to his mother was relied upon by the prosecution and accepted by the Trial Court and the High Court. The Supreme Court held that it was not cogent, satisfactory and convincing to hold that the deceased before his death was in a fit condition to make oral declaration to his mother. It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination 22. Procedure of Recording Dying Declaration The law does not provide who can record a dying declaration, nor is there any records a dying prescribed form, format, or procedure for the same. The person who declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the Court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity There is no statutory prescription as to in what manner or the procedure to be followed for recording a dying declaration to fall within the four corners of section 32(1) of the Indian Evidence Act, 1872. The presence of the Magistrate, certification of the doctor as to the mental or physical status of the person making the declaration, were all developed by judicial pronouncements. It will have to be found out whether in the facts and circumstances on a statement alleged to have of any case the reliance placed upon by the prosecution been made by the deceased prior to his death can be accepted as a dying declaration, will

depend upon the facts and circumstances that existed at the time of making the statement. In that case it would mainly depend upon the date and time vis-a-vis the occurrence when the statement was alleged to have been made, the place at which it was made, person to whom the statement was made, the sequence of events, which led the person concerned to make the statement, the physical and mental condition of the person who made the statement, the cogency with which any such statement was made, the attending circumstances, whether throw any suspicion as to the factum of the statement said to have been made or any other factor existing in order to contradict the statement said to have been made as claimed by the prosecution, the nexus of the person who made the statement to the alleged crime and the parties involved in the crime, the circumstances which made the person to come forward with the statement and the last but not the least, whether the said statement fully supports the case of the prosecution.3 23. Dying Declaration and Corroboration There is no rule of law or rule of prudence that a dying declaration cannot be accepted unless it is corroborated. In the present case, upon a close scrutiny, it must be held that the dying declaration is the truthful version of the occurrence which narrates the 1. Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 232 (240) (para 25). 2. State of Madhya Pradesh v. Dal Singh, AIR 2013 SC 2059: 2013 AIR SCW 2978: (2013) 14 SCC 159 paras 20 and 21). See also Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758 (para 10). 3. Rafique v. State of Uttar Pradesh, AIR 2013 SC 2272: 2013 AIR SCW 3869: (2013) 12 SCC 121 (para 24).

186

The Indian Evidence Act, 1872

Sec. 32

circumstances leading to the death of its maker. The said statement was made immediately after the occurrence and there is no reason to doubt about its veracity and correctness. The circumstances surrounding the dying declaration are clear and convincing which have been corroborated in material particulars. The Supreme Court held that the prosecution has proved its case beyond all reasonable doubt." Once

the

Court

is

satisfied

that

the

declaration

was

true

and

voluntary,

it

undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence The law does not insist upon the corroboration of dying declaration before corroboration to a dying declaration is only a rule it can be accepted. The insistence of

of prudence.s 24. Statement Made before a Police Officer Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same facts before 'any authority legally competent to investigate the fact, but its use is limited to corroboration of the testimony of such witness. A statement made before a police officer during investigation cannot be used to corroborate the testimony of the witness because of the clear interdict contained in section 162 of the Criminal Procedure Code. However, a statement made to a Magistrate is not affected by the prohibition contained in that section. A Magistrate can record a statement in terms of the provisions of section 164 of the Code and such statement will either be elevated to

the status of section 32 of the Evidence Act if the maker of the statement subsequently

dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under section 164 becomes usable to corroborate the witness as provided in section 157 of the Evidence Act or contradict him in terms of section 155 of the

Act. In Paras Yadav v. State of Bihar it was held that lapse on the part of the investigating officer is not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. The court further held that a statement of the deceased

recorded

dying-declaration

by a police

officer in a routine

can also be treated as

manner as a

dying-declaration

complaint

and not as a

can also be treated as dying-

declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement. The

question is whether the statement earlier made by the deceased under section 161, Cr. P.C. in previous investigation would be admissible as per the second part of section 32(1) of the Evidence Act, which says that the statement made by a person as

to the "circumstances of the transaction which resulted in his death" would beadmissible. The Supreme Court held that the earlier statement of the deceased was not in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and had no even the remotest connection or reference to the death of the deceased and thus would not be admissible under section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under 1.

Gulam Hussain v. State of Delhi, (2000) 7 SCC 254: AIR 2000

SC 2480: 2000 Cr LJ 3949.

Bhajju v. State of Madhya Pradesh, 2012 AIR SCW 1963: 2012 Cr LJ 1926: (2012) 4 SCC 327 (para 24). 3. Ashabai v. State of Maharashtra, AIR 2013 SC 341: 2013 AIR SCW 333: (2013) 2 SCC 224 (para

2.

15). 4. Ram Prasad v. State of Maharashtra, AIR 1999 SC 1969: (1999) 5 SCC 10: 1999 Cr LJ 2889. 5. (1999) 2 SCC 126: AIR 1999 SC 644: 1999 AR SCW 296.

187

Of the Relevancy of acts

Sec. 32]

section 162 Cr. P.C. for proof of such statement, but it would not be admissible under section 32 of the Evidence Act. In Heeralal v. State of Madhya Pradesh2 it was held that where after recording statement under section 161 Criminal Procedure Code, 1973, the victim succumbs to her injuries, it can be treated as

dying

declaration and will be admissible

under section 32 of the Act.

The court further observed that there is no technical compartment which prescribed that police statement of victim could not be treated as dying declaration, if it satisfies all ingredients. In this case injured wife herself named accused as assailant and narrated fact that it was her husband who had poured kerosene oil and set her to fire. Her statemernt under section 161 cannot be discarded not it can be said that same is not dying-declaration merely on ground that in dying-declaration it was not stated that at time of recording of her dying declaration she was found to be in a fit state of health to give statement. In State unsafe to base reliance of Rajasthan v. Shravan Ram° it was held that it is trite law that is on the statement made under section 161, CrPC, 1973 as a dying declaration without any corroboration. Although corroboration as such is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of the declaration. In a case where dying declaration had been recorded by the Station House Officer

(SHO) in the surgical ward of Government Hospital, without finding out whether the deceased was in a fit state of mind and health to give dying declaration. Significantly, the doctor stated that he did not remember at what time dying declaration was recorded and he did not know whether the deceased was in a fit

condition to give a statemernt and he

also did not know in which language the deceased replied to the questions put to him. In that position, the Supreme Court held that such a dying declaration could not be relied upon. Where the doctor in the Civil Hospital examined the patient and permitted the police officer to record the statement of the injured and stated that he was present while the statement of the injured was being recorded and after that he examined the patient and gave the fitness certificate, there was no reason to discard the dying declaration

25. Compliance with Section 164 of the Criminal Procedure Code The admissibility of a dying declaration is not dependent upon the compliance with section 164 of the Criminal Procedure Code. 26. Person to whom a Dying Declaration may be Made It is immaterial to whom the declaration is made. It may be made to a Magistrate, to a police officer, a public servant or a private person. It may be in writing or oral, or made by signs and gestures in answer to questions when the declarant is unable to speak. It may take in the form of a First Information Report' or a statement before the investigation* But, a police, under section 162 of the Criminal Procedure Code, during dying declaration recorded by a Magistrate is entitled to command more credence than the one recorded by a Police Officer. 1.

Vinay D. Nagar v. State of Rajasthan, AlR 2008 SC 1558: 2008 AIR SCW

1709: (2008) 5 SCC 597

(608) (para 24). 2. 2012 Cr LJ 861; See also Sri Bhagwan v. State of Uttar Pradesh, (2012) 11 SCALE 734: AIR 2013 SC (Cri) 387: (2013) 12 SCC 137 (paras 20-24); Rafique v. State of Uttar Pradesh, AIR 2013 SC 2272: 2013 AIR SCW 3869: (2013) 12 SCC 121 (para 26). 3. AIR 2013 SC 1890: 2013 (3) Crimes 240: (2013) 12 SCC 255 (para 22). 4. State of Rajasthan v. Wakteng, AIR 2007 SC 2020: 2007 AIR SCW 3802: (2007)

(para 12). 5. Narayan Manikrao Salgar v. State of Maharashtra, (2012) 8 SCC 622 (paras 14 6. Allah Baksh v. Crown, 1951 FCR 193. 7. E. v. Mohammad Sheikh, 1943 Cal 74

14 SCC 550 (554) and 15).

8. E. v. Mahadeo Dewoo, 47 Bom LR 992.

9. Mohd. Azeezuddin v. State of Andhra Pradesh, 1985 Cr LJ 336; See also Dilip Singh v. State of Punjab, AIR 1960 SC 1305: (1961) 1 SCR 88: 1961 (2) SCJ 58.

The Indian Evidence Act, 1872

188

In a Delhi case there were two

conflicting

dying

declarations.

ISec. 32

On a difference of

opinion between two Learned Judges the matter was referred to the third Judge who compared the dying declarations recorded by the police officer and found that it was a fabricated document and found the accused guilty of bride burning In the instant case the two dying declarations that were recorded gave conflicting versions. The first one which was duly recorded by the doctor in the presence of two other doctors, stated that the victim had been burnt by her mother-in-law and husband for failure to bring dowry. Contradicting version could not be proved by a competent witness. The court relying upon the statement recorded by the doctor convicted the accused.2 In Kulwant Singh v. State of Punjab,s it has been held that it is not essential that a dying declaration should be made only before a Magistrate. Section 32 of the Evidence Act nowhere states that the dying

declaration

must be recorded in the presence of a

Magistrate or in other words any statement which has not been recorded before the Magistrate cannot be treated to be dying declaration. In Vidhya Devi v. State of Haryant the dying declaration recorded by a police officer in the presence of doctor, who had given an opinion that the deceased was in a fit state on mind to make the statement, was held to be credible and reliable and sufficient to establish the guilt of the accused. Dying declarations duly recorded by respectable witnesses cannot be rejected A dying declaration recorded by a Police Officer if found truthful may form the basis

conviction. Where the dying declaration was not recorded by a Magistrate, it may not be a ground to disbelieve the entire prosecution case. But the effect of the statement being not recorded before a Magistrate would depend upon the facts and circumstances of each case and no hard-and-fast rule can be laid down therefore.' Where the declaration was recorded by the investigation officer and the time and signature of the deponent were absent-The credibility of the declaration as a dying of declaration is doubtful. Such a declaration cannot be accepted.3

Where it is clearly proved that the original dying declaration was lost and was not available the prosecution is entitled to give secondary evidence.? No presumption can be drawn that contents of a declaration are adverse to the prosecution case (Section 114). The Supreme Court in a case has observed that unless the dying declaration is in a question and answer form it is difficult to know to what extent the answers have been suggested by the questions put to the victim. A dying

declaration

which was not in a question and Supreme Court.° However, a dying declaration in a question and answer form was accepted deceased recorded in the injury report by the 1. Inder Kaur v. State (Delhi 2. 3. 4.

answer form was thus rejected by recorded by an Investigating Officer in a Calcutta case. A statement of medical officer, and corroborated by

the not the the

Administration), (1986) 30 Del LT 245.

AIR SCW 3303. Harbans Lal v. State of Haryana, AIR 1993 SC 819: 1993 Cr LJ 75: 1992 (2004) 9 SCC 257: 2004 AIR SCW 778: AlR 2004 SC 28 5; See Dayal Singh v. State of Maharashtra, (2007) 12 SCC 452: 2007 AIR SCW 3326. AIR 2004 SC 1757: (2004) 9 SCC 476: 2004 AIR SCW 882.

Ganpat Mahadeo Mane v. State of Maharashtra, AlR 1993 SC 1180: 1993 Cr LJ 298: 1992 AIR SCW 3442. 6. Urgen Sherpa v. State of Sikkim, (1985) 1 Crimes 278. 7. Balbir Singh v. State of Punjab, AlR 2006 SC 3221: 2006 AIR SCW 4950: (2006) 12 SCC 283

5.

(288-289) (para 18 and 20). 8. State (Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250: 1986 Cr LJ 155: (1985) 2 Crimes 758. 9.

Aher Rama Gova v. State of Gujarat,

1979 Cr LJ 1081: (1979) 4 SCC 500: AIR 1979 SC 1567

(1568). 10. Naraina v. State of Uttar Pradesh, 1984 ALJ 1241 (DB). Amar Ghosh v. State of West Bengal, (1986) 2 Crimes 349. 11.

Of the Relevancy of Facts

Sec. 32]

189

entries in the bed head ticket, was treated as a dying declaration and the accused was

convicted on a charge of murder.

27. Consistency in Dying Declarations Consistency in dying declaration, is a very relevant factor and cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. In MehiboobsabAbbasabi Nadaf v. State of Kerala, where four dying declarations were recorded, the Court

observed

that

the

conviction

can

indisputably

be based on a single

dying declaration. But, before it can be acted upon, the same must be held to have been

rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In the instant bride-burning case too there were four dying declarations with some contradictions in them but the main aspect, namely, implicating her mother-in-law and sisters-in-law as well as the role played by them was consistent throughout. They were treated to be consistent for the purpose of Conviction.4

28. Admissibility of F.I.R. as Dying Declaration The Supreme Court has observed that the High Court was right in holding that the F.LR. as well as the statement given by the injured to the Investigating inadmissible as a dying declaration under section 32 of the Evidence Act.

Officer

is

29. Proof of Dying Declaration The method

of

proving

the

record

of such a

declaration

is to examine

the person

who recorded it as to what the deceased had said or to examine some persons who were present and had heard the statement made. Before a declaration of a deceased man is admitted, proof must be given

that the

person who made it was dead, and the burden of proving this is on the person who wishes to give the statement in evidence. Where the doctor deposed that the condition of the victim who makes the dying declaration varies from patient to and depends upon patient ability to speak a complete sentence, the dying declaration was accepted as a basis for conviction.A dying declaration made by deceased in a hospital before the judicial magistrate, with the doctor's certificate stating that the patient remained conscious during the period of recording the statement was held admissable and a conviction

under sections 302 and 34 of I.P.C. was upheld

by the Supreme Court.8 In a Rajasthan case a dying

declaration

was

made

in a

local

dialect

but

was

recorded in Hindi. It was held that there was no infirmity in the recording of the dying declaration.° 1.

Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134: (1991) 1 SCC 166: 1990 Cr LJ 2276.

2. Samadhan Dhudaka Koli v. State of Maharashtra, 2009 AIR SCW 212: (2008) 16 SCALE 66: AIR 2009 SC 1059 (1063) (para 16). 3. AIR 2007 SC 2666: 2007 AIR SCW 4820: 2007 Cr L 3737. 4. Ashabai v. State of Maharashtra, AIR 2013 SC 341: 2013 AIR SCW 333: (2013) 2 SCC 224 (paras 14 and 16). See also Hiraman v. State of Maharashtra, (2013) 12 SCC 586: 2013 AIR SCW 2134: 2013 AIR SCW 2134. 5. Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883: (1999) 9 SCC 507: 2000 Cr LJ 29 (SC). 6. See sec. 104 post. See also Maqsoodan v. State of Uttar Pradesh, AIR 1983 SC 126 (129): 1982 ALJ

1524: 1983 Cr LJ 218.

7. 8.

Gurdeep Bagga v. State (Delhi), (1986) 1 Crimes 686 (694). Surinder 2415.

Kumar

v. State of Haryana, JT 1992 (2) SC 64:

9. See also State of Assam v. Muhim

AR

1992 SC 2037: 1992 AIR

Barkataki, AIR 1987 SC 98: (1986) 4 SCC 439: 1987 Cr

SCW

L 152,

(oral dying declaration even when the G.D. containing the same was not produced relied on by the Supreme Court).

190

The Indian Evidence

Act, 1872

Sec. 32

30. Presumption under Section 80 Applies to a Dying Declaration A dying declaration must stand or fall as a whole. Ordinarily, a dying declaration should be either accepted or rejected as a whole.'

When an

integral

part of a dying

declaratiorn is false, the residual part cannot be accepted. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated."

A dying declaration if true can be acted upon without corrorboration. It is well-settled by a catena of decisions that if the Court is satisfied that the dying declaration represents a truthful version of the occurrence in which the deceased received injuries which led to his death, then, even in the absence of any independent corroboration, a conviction can be founded thereon. should be subjected To pass the test of credibility and reliability, a dying declaration to a closer scrutiny, as the author thereof is not available for cross-examination.

31. Unreliable Dying Declaration Where the dying declaration of a bride burning victim was recorded in the hospital, but the certificate of the doctor about the deceased's fitness to make the dying declaration, and the signature or thumb impression of the deceased were not obtained, it was held that the dying declaration could not be relied upon. Where there were three successive dying declarations made by the deceased, but none was recorded, and there was no mention of the dying declaration in the F.IR. given to the police, it was held that the circumstances suggest that there was no dying declaration made.3

32. Evidentiary Value - Discrepancy as to Place of Occurrence In a case of death by burn injuries, the High Court placed reliance on the dying declaration, inspite of discrepancy in it as to the place of occurrence were exist. But the Supreme Court set aside the sentence and conclusion recorded by the Trial Court and High Court. It was held that according to the deceased, the ocurrence took place in the bedroom. It is to be noted that no mark of burn injury was noticed in the bedroom and

they were noticed in the kitchen. Another aspect which assumed great importance was that in the dying declaration the deceased stated that she was brought to the hospital by a neighbour but the official records showed that she was brought to the hospital by the accused sister-in-law

33. Dying Declaration of a Brain Injured Person The Supreme Court has observed that even if the injured Something or even speak out something after sustaining severe and it is extremely unsafe to place any credence on such statements of the injured would have been impaired due to brain injury and, declaration made by him cannot be relied upon. 1.

was able to mutter serious brain injuries, as the brain function

therefore, the dying

Kishan Singh Mansa Singh v.

State, AlR 1963 Punj 170 (175): 64 Punj LR 1064: ILR (1962) 2

Punj 955: (1963) 1 Cr LJ 469; 1953 All LJ 615.

State v. Kanchan Singh, AR 1954 All 153 (156): 1954 Cr LJ 964:

2. State of Maharashtra v. Uttam Kharbari Dhage, 1997 Cr LJ 2513 (Bom). 3. Onthan (in re:), (1975) 2 MLJ 318 (322). 4. State of Uttar Pradesh v. Ram Sagar Yadav, AlR 1985 SC 416: 1986 Cr LJ 836: (1985) 1 SCC 52. 5. Rabi Chandra Padhan v. State of Orissa, (1980) 49 CLT 88 (92-96): 1980 Cr LJ 1257: AIR 1980 SC 1738; See also Kachlhwa v. State of Rajasthan, 1986 Cr LJ 306: 1985 Raj LR 92: 1985 Raj LW 97; Padmaben Shamalbhai Patel v. State of Gujarat,

(1991) 1 SCC 744: 1991 AIR SCW 464.

6. Trilochan Sahoo v. Stateof Orissa, 1985 Cr L (NOc) 110 (Ori). 7. Madhu Bala v. State (Delhi Administration), 1990 (1) All Cri LR 859: 1990 Cr LJ 790 (Del) 8. State (Delhi Administration) v. Mohinder Lal, ALJ 1985 (NOC) 7. 9. Shaikh Bakshu v. State of Maharashtra, 2007 (6) AIR Bom R 81: 2007 AIR SCW 4120: (2007) 11 SCC 269 (273) (para 14). 10. State of Rajasthan v. Teja Ram, (1999) 3 SCC 507: AIR 1999 SC 1776: 199 AlR SCW 1514.

Sec.

191

Of the Relevancy of Facts

32]

34. Reliability - When Time Gap of Few Days between Declaration and Death In Maniben v. State of Gujarati the accused was alleged to have caught the deceased's hair from behind as she was about to climb the staircase for going to the first floor, and forcibly threw her on the floor, poured some kerosene over her body, and the other accused (appellant) allegedly lighted the matchstick and set her ablaze. The accused contented that her dying declaration could not have been relied upon as the death took place after 25 days of the incident. The Apex Court held that a dying declaration need not cease to be one only because death took place 25 days after the incident. Dying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days.

Illustration (a) explains the first clause. CLAUSE 2. DECLARATIONS IN COURSE OF BUSINESS OR DUTY 35. Reason of the Rule

The considerations which have induced the Courts to recognise this exception against the hearsay rule are principally these: that in the absence of all suspicions of sinister motives a fair presumption arises that entries made in the ordinary course of business are correct, since the process of invention implying trouble, it is easier to enter what is true than what is false: that such entries usually forma link in the chain of circumstances which mutually corroborate each other; that false entries would be likely to bring clerks into disgrace with their employers; that as most entries made in the course of business are subject to the inspection of several persons as error would be exposed to speedy discovery; and that as the facts to which they relate are generally known but to few persons, a relaxation of the strict rules of evidence in favour of such entries may often

prove convenient, if not necessary for the due

investigation of truth.

(Taylor, section

697).

Under section 32(2) of the Indian Evidence Act a memorandum made in the ordinary course of business is admissible in evidence 36. Difference between the English and the Indian Rule Under the English Law: (1) The

declaration

must

have been made

contemporaneously

with

the fact

recorded; (2) The declarant must have had personal knowledge of the facts recorded; 3) The declaration must have been made in the discharge of duty to a third person, a mere personal custom not involving responsibility, being insufficient; and (4) The declaration is evidence only of the precise fact that it was the writer's duty to record and not of other matters which, though contained in the same statement, are merely collateral.3 Under the Act though these considerations may affect the weight of the evidence they do not affect its relevancy which is determined by the fact that the declaration was made in the ordinary course of business or in the discharge of professional duty.3 37. Condition Precedent to the Admissibility of the Declaration In order to found a case for the reception of a statement under this clause, it must be proved that the declarant is dead, or that he cannot be called as a witness for any of the reasons mentioned in the section and the burden of proving this is on the person who wishes to give such statements in evidence. 1. 2007 Cr LJ 3187: AIR 2007 SC 1932: (2007) 10 SCC 362

(366) (para 18): See also Mohan Lal v.

State of Haryana, (2007) 9 SCC 151: AIR 2007 SC (Supp) 1139; Uka Ram v. State of Rajasthan, (2001) 5 SCC 254: 2001 AIR SCW 1478: AIR 2001 SC 1814: 2001 Cr LJ 1821. 2. P.K. Rukmini Bai v. Venkateswara Silk House, Bangalore, AlR 1972 Mys 143 (146): (1971) 2 Mys LJ 6351: 1972 Ren CR 272. 3. Chambers v. Bernasconi, (1831) 1 CM & R 374.

4. Tika Ram v. Moti Lal, 52 A 464: 1930 A 299: 126 IC 29.

192

The Indian Evidence Act, 1872

Sec. 32

A carbon copy made by one uniform process of certificate of doctor given in discharge of professional duty is admissible. If the Commissioner is dead when the trial of the suit commences, the statements in the report obviously are admissible in evidence under section 32(2) of the Evidence Act.2 If the statement is in writing, it must be duly proved. This may be done by adopting any recognised mode of proving hand-writing, eg., by calling a witness who saw the deceased write, or who is acquainted with his hand-writing or by expert testimony. If the entry is more than 30 years old, the proof of hand-writing may in appropriate cases be dispensed with.

38. Circumstances under which the Statement is Made Statement must have been made in the ordinary course of business

and not on a

special occasion or for a special purpose. In the ordinary course of business' means in the usual course and routine of business. The business may be of a temporary nature. The expression 'course of business' is also used in sections 16, 34, 47 and 114 of the Evidence Act. 39. Difference

between Section 32(2) and Section 34

See commentary on section 34. Tllustrations.-Illustrations (b), (¢) (d), (g), (h) and (Gj) refer to section 32(2). Illus. (b)

and () to section 21 also refer to this clause. The clause is based on the leading English case of Price v. Tarrington." In that case an action was brought against the price of beer sold and delivered. In order to prove the delivery the plaintiff relied on a book containing an account of the beer delivered by his dray-man. It was the duty of the dray-man to sign the book duly. The signature and the death of the dray-man, who personally knew of the items of delivery were proved. The entries were held to be good evidence for the

plaintiff. CLAUSE 3. DECLARATIONS

AGAINST

INTEREST

40. Principle Under this clause a statement of a dead person can be admitted in evidence, when it

is against the pecuniary or proprietary interest of the person making it, on the principle that in the ordinary course of affairs a person is not likely to make a statement to his own detriment, unless it is true. Self-interest is a sufficient security against wilful misstatement, mistake of fact or want of information on the part of the declarant. The place of the test of oath and

cross-examination

is in some measure

supplied

by the circumstances of a

declarant and the character of his statement. Under this clause statements by a deceased are admissible provided: (1) he had personal knowledge of the facts stated, (2) the facts were to his immediate prejudice, (3) he knew the facts to be prejudicial, and (4) This (1) (2) (3)

1.

the interest affected by the statements was pecuniary or proprietary. clause comprises three classes of declarations against the declarant's interest: pecuniary interest, proprietary interest, and personal liberty or property by tending to charge him with a crime or tosubject him to payment of damages.

Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702: 1989 CAR 56: 1989 Cr LR 235 (1989) 1

Crimes

384:

(1989) 1 SCC 432:

(1989) 1 SCR 123:

(1989) 1

SCALE

74: JT 1989 (1) SC

106: 1989 Cr LJ 841.

Laxmi Narayan v. State of Bank of India, AIR 1969 Pat 385 (391): ILR 48 Pat 204. 3. (1703) 2 Smith LC (11th Edn.) 320.

2.

Sec. 32]

193

Of the Relevancy of Facts

Conditions precedent to the admissibility of statements under this clause are same as under clause 2.

41. Section 32(3) and Section 21(1)

Difference

between

Admissions and Statements

Admissible under this Clause An admission being a statement which suggests any inference as to a fact in issue or relevant fact (section 17) may take the form of a self-harming or self-serving statement. But when an admission takes the form of a self-serving statement, section 21 makes it inadmissible in favour of its maker or his representative-in-interest unless it is of such a

nature that if its maker were dead, it would be relevant as between third persons under section 32. Therefore, a statement which amounts to a declaration against interest, within the meaning of this clause, is receivable in favour of as well as against a stranger after its maker is dead. It is also admissible in favour of the maker or his representative-ininterest during the maker's life time. Documents which do not come under any of the

clauses of section 32 are admissible against a person, if they would have been admissible as admissions against the person through whom he claims.' A statement is against the pecuniary interest of a person when it has the effect of charging him with a pecuniary liability to another or discharging some other person upon whom he would otherwise have a claim. A statement whereby a man charges himself with the receipt of money is in most cases a statement against his pecuniary interest. 42. Account Books Account books containing charging and discharging entries are admissible.

43. Statement against Proprietary Interest The presumption of law is that person in possession of property is the absolute owner thereof (section 110). Therefore, declarations made by a deceased person tending to cut down, charge or fetter his presumably absolute interest are admissible as being contrary to his proprietary interest. A declaration in disparagement of title to land is relevant, if it is made whilst the deceased declarant was in actual possession of the property2 In Bhagwati PrasadShah'scases it was held that statements made by the deceased in the registered mortgage bond that he was separated from joint family is relevant under section 32(3) as it is against his interest. The assertion that other coparceners were also separated is admissible as connected matter and as an integral part of his statement under section 32(3) and not under section 32(7). 44. Statement against Interest The statement must be to the immediate prejudice of the declarant.* It must be prima facie against the declarant's interest, i.e., to say, the natural meaning of the statement standing alone must be against the interest of the person who made it. Declarations made subsequent to the transaction are admissible in evidence under section 21 and section 32(3) of the Indian Evidence Act only against the party who made

them and not in his favour. 45. Statement Exposing its Author to a Prosecution or Suit for Damages

According to the English law, the interest involved must be pecuniary or proprietary, no other, even though of a penal kind, will suffice. The Indian Evidence Act however, departs from the English rule by making admissible statements, which if true, would expose their author to a criminal

prosecution or to a suit for damages. The Indian rule

is more consistent with the principle on which such hearsay is admitted. 1. Rani Srimati v. Khagendra Narayan Singh, 34 1A 127 (PC). 2.

Ramdas v. Ajudhiadas, 63 IC 685.

3.

Bhagwati Prasad Sah v. 115.

Dulhin

Rameshwari

Kuer,

AlR 1952 SC 72: 1951 SCR 603: 1952 SCJ

4. Ramnathan v. Muragappa, 33 IC 969. 5. Bhim Singh v. Kan Singh, (1980) 3 SCC 72: AIR 1980 SC 727 (737).

194

The Indian Evidence Act, 1872

46.

Admissibility

of

Confessional

Sec. 32

Statements to the Police made by a Deceased

Accomplice is Doubtful In

some cases a

statement

made

by a

deceased

accomplice

in

the course of

investigation, incriminating himself and others is held admissible.! If the maker would have been alive it would have been inadmissible against the maker himself I reason of sections 25 and 26. A

statement

of this

kind is

inadmissible

under

section 30 as a

deceased accomplice cannot be tried jointly with the co-accused. It is therefore, doubtful whether the special rule enacted in section 30 can be read subject to section 32(3)2 Such a statement is hit by section 162 of the Criminal Procedure Code. Illustrations (e) and (0 refer to this clause. The leading case on the subject is Higham v. Ridgway.

In that case the books of a

deceased man mentioning payments made to the midwife were put in by the plaintiff to prove the birth of a child on a particular day. The entries in the book showed that the midwife was paid for services by the father of the child. The court held that the entries

were properly admitted as they were made in prejudice of the party making them, vi., that he had received his dues. CLAUSE 4. DECLARATIONS AS TO PUBLIC AND GENERAL RIGHTS 47. Principle In proof of public or general rights and customs or matters of public or general interest statements made by deceased persons having competent knowledge as to the existence of such rights, etc., and as to the general reputation thereof in the neighbourhood, if made ante litem motam, ie., before the beginning of any controversy are admissible. Such statements are known as declarations as to public and general rights. They are admissible even if they be no more than evidernce of reputation or hearsay. The reason for this rule is that the origin of the rights claimed is usually so ancient and the rights themselves are of such undefined and general character that direct proof of their existence and nature can seldom be obtained. The reason for this exception favouring hearsay evidence is partly due to the necessity as without such evidence ancient rights could rarely be established and partly due to the fact that public nature of the rights minimizes the risk

of mis-statement 48. Conditions of Admissibility There are several conditions

necessitating the

admissibility

of evidence urnder this

clause:(1) The statement must be in the form of an expression of opinion of a person

who cannot be called as a witness for any of the reasons mentioned in section 32.

(2) The opinion must relate to the existence or non-existence of a public right or custom or a matter of public or general interest. (3) The

opinion

aware of the relates. (4) The

opinion

must be of a

person

who

would

have been

likely to be

existence of the right, custom or matter to which the opinion must

have been

expressed

betore

any

controversy

as to the

existence of that right arose. 49. Public Right or Custom, or Matter of Public or General Interest Public rights are those that are common to all members of the State, eg, rights ot

highway and ferry or of fishery or tidal rivers. 'General rights' are those affecting any considerable section of the community, eg, questions as to the boundaries of a village. 1. Mahomed v. E., 1929 Lah 54. 2. See Keratali v. E., 61 Cal 967. 3. (1808) 10 East 119.

4.

Busold v. Newaz Ahmad Khan, AlR 1929 Cal 533: 33 Cal WN 439.

Of the Relevancy of Facts

Sec. 32]

195

The Act does not define the expression public right' but 'general right', which is defined in section 48 as including rights common to any considerable class of persons. This clause does not expressly refer to 'general rights but they seem to have been included in "matters of public or general interest". The terms 'public' and 'general' are sometimes used as synonymous, meaning nearly what concerns a multitude of persons, (Taylor S 609). The term 'interesť does not mean that which is interesting for gratifying

curiosity or love of information or amusement but that in whicha class of the community have a pecuniary

interest or some interest by which the legal rights or liabilities are affected. Statements must give the declarant's opinion and must not be a mere repetition or hearsay. Section 32(4) should be read with sections 48 and 49. Declarations as to private

rights are

inadmissible as they are not likely to be so

commonly, or correctly known and are more likely to be misrepresented. 50. Statements must have been Made before the Commencement of the Controversy: Lis Mota, Section 32(4) and Section 49 In order to prevent a bias the statements must have been made ante litem motam. The recitals in a document are admissible under this section. The history dealing with the founding of a temple is a matter of general interest and when a statement about it is made by a deceased person at a time when there was no controversy on the question, that statement would clearly come within the scope of this clause. Statements which are not admissible under clause (4) of section 32 cannot become admissible under section 49 as the latter section read with section 60 is applicable only to the opinion of a living witness who is actualy examined in court. Illustration (1) refers to Clause 4. CLAUSES 5 AND 6. DECLARATIONS AS TO PEDIGREE 51. Principle

These two clauses reproduce with some modifications the English law on the subject. The grounds of reception of declarations as to pedigree are (1) death, (2) necessity, and (3) the peculiar means of knowledge and absence of interest to misrepresent the declarants: members of the family having the greatest interest in securing the best opportunity of obtaining and the least motive for falsifying information on such subject (Phipson, 6th Edn, section 307). 52. Points of

Difference

between

Clauses 5 and 6

(1) The declaration under clause (5) may relate to the existence of relationship between persons alive or deceased, while clause (6) applies to declarations of relationship

between deceased persons only: (2) Clause (5) requires the declaration to proceed from a person having special means of knowledge, but clause (6) does not expressly impose this restriction, presumably because no stranger can be a party to the preparation of the documents of the kind mentioned in the clause as there is an implied assumption that the statements contained means of knowledge. in them were made by persons having special (3) Under clause (5) the declaration may be oral or written and may have been made on any occasion ante litem motam and in any manner, but clause (6) requires that a statement must be contained in some document of the kind mentioned therein. Both clauses, however, require that the statement should have been made before any controversy as to the relationship sought to be proved by the statement arose. 53. Scope of Section 32(5)

The Supreme Court of India has laid down the four essential conditions for the application of section 32(5) in the case of Dolgovinda Paricha v. Nimai Charan Misra, 1. K. v. Bedfordshire, (1855) 4 E&B 535.

2. 3.

Dunraven v. Liewellyan, 15 QB 791. AIR 1959 SC 914: 1960 SCJ 879: (1959) 2 SCR 814: 1959 26 Cut LT 130: 1959 SCR Supp (2) 814.

196

The Indian

Evidence Act, 1872

Sec. 32

namely, that (1) the statements verbal or written of relevant facts must have been made by person who is dead etc., (2) they must relate to the existence of any relation by blood, marriage or adoption, (3) the person making the statement must have special means of knowledge as to the relationship in question, and (4) the statement must have been made before the question in dispute was raised. The declarations may take the form of an oral statement, family correspondence, the recitals in deeds, wills, pleadings, depositions, school registers, etc. It is not necessary that the statement should be relevant to the matter in issue in respect of which it was made

and it is immaterial whether it was made in a judicial proceeding or otherwise. Statements made in an unregistered will, subsequent to the dispute could not be admitted under section 32(5) of the Evidence Act. Statement by several persons some of whom are dead and some alive are admissible as a statement of the deceased person under section 32(5). In Paricha's case the pedigree was held admissible though one of the persons was dead and two were alive. 54. Persons having Special Means of Knowledge Under the English law declarations are receivable only from persons connected by blood with the person or family whose pedigree is in question or from the husbands or wives of persons so connected and must not proceed from mere relatives of such husbands or wives, nor from friends, servants or neighbours of the family nor from the family solicitor. The Act makes relevant declarations from all persons having special means of knowing the relationship, e,g., from family priest, servant etc. A statement in a deed of adoption by a deceased widow is admissible under section 32(5)3 Where in a case all the witnesses deposed regarding the marriages of the members of their own families as they had personal knowledge about the relationship between the two spouses and it being a direct evidence, it was held that their statement could not be labelled as opinion statement under section 32 of the Evidence Act, 1872.4

55. Scope of Declarations The rule of the English Law is particularly strict in the matter of evidence regarding a pedigree and the admission of hearsay evidence in pedigree cases is confined to the proof of pedigree and does not apply to proof of the fact which constitute a pedigree such as death, birth and marriage when they have to be proved for other purposes. But in India the rule is not so strict and the declarations of a deceased declarant have been admitted on questions of age, birth, death, marriage, etc. A horoscope is admissible under this clause Entry of age of a person in the school register is a relevant piece of evidence but

slight evidence to the contrary may displace it' 56. Admissibility of Pedigree under Clause (6) Pedigrees are written statements of relationship and as such relevant under clauses (5) and (6) on proof of the facts that they represent statements made ante litem motam by

persons

who are dead, etc.

However,

clause (6), unlike clause (5) does not

expressly require that a statement must have been made by a person having special means of knowledge of the relationship. The evidence admissible under clause (6) relates 1.

Biro v. Atma Ram, AIR 1937 PC 101: 64 IA 92: 167 IC

346.

2.

Chakicherla Audilakshmamma 1973 Ren CR 438.

AP 149 (155): (1972) 2 Andh WR 346:

3.

Punjab Rao v. Shesh Rao, 62 Bom LR 726.

v. A. Ramarao, AlR 1973

4. Shakuntala Devi v. Amar Nath, AIR 1982 P& A statement made to the police if otherwise inadmissible cannot be used under this section.

159.Refreshing memory.-A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory.-Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document: Provided the Court be satisfied that there is sufficient reason for the

non-production of the original. An expert treatises.

may

refresh

1. Refreshing Memory 2. Refreshing of Memory

his

1. 2.

Printed Speech

5.

Matter;

by

reference

to

professional

SYNOPSIS 4. Experts may Refresh their Memory Reference to Professional Treatises by Investigating

Officer 3.

memory

Newspaper;

Panchnama

Report of a

-

Hari Ram v. E., 1926 L 122: 89 IC 897: 26 Cr LJ 1425. Niamat Khan v. E., 1930 L 409: 127 IC 850; Hari Ram v. E., 1926 L 122: 89 IC 897: 26 Cr LJ 1425. 3. See now Criminal Procedure Code, 1973. 4. Craft v. Com., 81 Ky 252. 5. See Wigmore, SS 1031-32.

6.

Bhondu v. Rex, AIR 1949 All 364: 1949 ALJ 174: 50 Cr LJ 561.

by

530

The Indian Evidence Act, 1872

Sec. 159

Comments 1. Refreshing Memory Sections 159-161 deal with the extent to which, and the mode in which, a witness may refer to a writing in order to refresh his memory while giving evidence. Although a witness should always state what he himself remembers, he may, nevertheless, when giving evidence refresh his memory as to details by referring to documents made by himself or by another by his orders at or very shortly after the date on which the event in question occurred. Such documents, if written by someone else, must have been read and approved by him shortly after the event. The reason of the rule is that the witness should not suffer from a mistake and may explain an inconsistency.' If a witness wants to refresh his memory, the facts which entitle him to do so ought to be first elicited from him, namely, that he has no clear recollection but wants to refresh his memory by seeing the document, that the document was written in his presence at or about the time when the incident took place, and that he had read the document at that time and found the contents to be correct. Before a witness is allowed to refresh his memory from the deponent any writing made by him it must be shown that the writing was made by likely that the at the time of the occurrence or so soon after that the Court considers it transaction was at that time fresh in his memory.

2. Refreshing of Memory by Investigating Officer The Supreme Court has observed that an investigating officer must answer questions in Court, as far as possible, only with reference to what he had recorded during investigation. Such records are the contemporaneous entries made by him and hence for refreshing his memory it is always advisable that he looks into those records before answering any question. The court held that the objection of the defence when investigating officer wanted to reply by referring to the records of investigation is untenable and unjustified. Records of investigating officer are in nature of contemporaneous entries made by him for the purposes of refreshing his memory. The court said that it is always advisable that he look into his records before answering any concerned question.4 3. Printed Matter; Newspaper; Report of a Speech

The word "writing" includes printed matter. A witness who heard a speech may refresh his memory by referring to a newspaper account of it, if he read it soon afterwards, and if, at the time he read it, he knew it to be correct.5 4. Experts may Refresh their Memory by Reference to Professional Treatises Expert opinion is often founded on knowledge derived from professional treatises and, therefore, the section provides that an expert may refresh his memory by reference to professional treatises. "n all cases where skilled witnesses are called to pronounce their opinions on some scientific question, they may refresh their memory by referring to professional treatises" A horoscope can be used, not as substantive evidence, but to help in proving the date of birth."

1. 2. 3. 4. 5.

Holiday v. Holgate, 17 LT 18, per Montagu Smith, J. Sobitri Thakurain v. F.A. Savi, 12 Pat 359: AIR 1933 Pat 306 (324): 145 IC 1. Panalal Shaw v. Nanigopal Biswas, AIR 1949 Cal 103: 52 CWN 922: 3 DLR Cal 47. State of Karnataka v. Yarappa Ready, 1999 AIR SCW 4276: 2000 Cr LJ 400: AIR 2000 SC 185. Ram Chandra v. E, 120 IC 798: 1930 L 371: 31 Cr LJ 168; Topham v. McGregor, (1844) 1 C & K 302; Dyer v. Best, (1866) 4 H&