Evidence Vnr 1.pdf

Date and Time: 04 May 2020 15:47:00 IST Job Number: 116013438

Documents (95) 1. Introduction Client/Matter: -None2. 1.1 LAW OF EVIDENCE AS PROCEDURAL LAW Client/Matter: -None3. 1.2 LEX FORT Client/Matter: -None4. 1.3 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA Client/Matter: -None5. 1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872 Client/Matter: -None6. Definitions: Section 3 Client/Matter: -None7. 1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT Client/Matter: -None8. KINDS OFEVIDENCE Client/Matter: -None9. 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Client/Matter: -None10. Section 4 Client/Matter: -None11. 2.1 DEFINITION Client/Matter: -None12. 2.2 CLASSIFICATION OF PRESUMPTIONS Client/Matter: -None13. 2.3 PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT, 1872 Client/Matter: -None14. 2.4 “SHALL PRESUME, UNLESS THE CONTRARY IS PROVED”—PRESUMPTIONS UNDER OTHER ENACTMENTS Client/Matter: -None15. 2.5 “SHALL PRESUME” AND “MAY PRESUME”—QUANTUM OF PROOF IN REBUTTAL Client/Matter: -None16. 2.6 FUNCTION OF PRESUMPTIONS Client/Matter: -None17. Section 5 Client/Matter: -None18. 3.1 INTRODUCTION Client/Matter: -None| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

19. 3.2 FACT, FACT IN ISSUE AND RELEVANT FACT Client/Matter: -None20. 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT Client/Matter: -None21. 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY Client/Matter: -None22. Sections 6-16 Client/Matter: -None23. 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) Client/Matter: -None24. 4.2 SECTION 7: CAUSE AND EFFECT Client/Matter: -None25. 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT Client/Matter: -None26. 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Client/Matter: -None27. 4.5 SECTION 10: PROOF OF CONSPIRACY Client/Matter: -None28. 4.6 SECTION 11: FACTS NOT OTHERWISE RELEVANT Client/Matter: -None29. 4.7 ALIBI Client/Matter: -None30. 4.8 SECTION 12: SUIT FOR DAMAGES Client/Matter: -None31. 4.9 SECTION 13: PROOF OF CUSTOM AND RIGHT Client/Matter: -None32. 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING Client/Matter: -None33. 4.11 SECTION 15: ACCIDENTAL OR INTENTIONAL ACTS Client/Matter: -None34. 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION Client/Matter: -None35. 4.13 SECTION 16: COURSE OF BUSINESS Client/Matter: -None36. Sections 17 to 23 Client/Matter: -None37. 5.1 DEFINITION OF ADMISSION Client/Matter: -None38. 5.2 CLASSIFICATION OF ADMISSIONS Client/Matter: -None39. 5.3 USE OF ADMISSION Client/Matter: -None40. 5.4 RATIONALE Client/Matter: -None| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

41. 5.5 WHO CAN MAKE ADMISSIONS? Client/Matter: -None42. 5.6 CONDITIONS FOR PROOF OF ADMISSIONS Client/Matter: -None43. 5.7 “STATEMENTS WITHOUT PREJUDICE” Client/Matter: -None44. 5.8 ADMISSION NOT CONCLUSIVE PROOF Client/Matter: -None45. Sections 24 to 30: Confessions Client/Matter: -None46. 6.1 DEFINITION Client/Matter: -None47. 6.2 ADMISSION AND CONFESSION—DISTINGUISHED Client/Matter: -None48. 6.3 KINDS OF CONFESSIONS Client/Matter: -None49. 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY Client/Matter: -None50. 6.5 POLICY EXCLUSIONS Client/Matter: -None51. 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE Client/Matter: -None52. 6.7 “PLEA BARGAINING” Client/Matter: -None53. 6.8 “COMPOUNDING” OF OFFENCES UNDER SECTION 320 CRPC, 1973 Client/Matter: -None54. 6.9 CONFESSION “IRRELEVANT”? Client/Matter: -None55. 6.10 REMOVAL OF EFFECT OF INDUCEMENT ETC—SECTION 28 Client/Matter: -None56. 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER Client/Matter: -None57. 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY Client/Matter: -None58. 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED Client/Matter: -None59. 6.14 HOW DO SECTIONS 24 TO 27 OPERATE? Client/Matter: -None60. 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. Client/Matter: -None61. 6.16 SECTION 30: CONFESSION OF CO-ACCUSED Client/Matter: -None62. Sections 32 & 33 Client/Matter: -None| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

63. 7.1 SECTION 32 (1): DYING DECLARATION ETC. Client/Matter: -None64. 7.2 SECTION 32 (2): ENTRIES IN THE ORDINARY COURSE OF BUSINESS Client/Matter: -None65. 7.3 SECTION 32 (3) STATEMENTS AGAINST INTERESTS Client/Matter: -None66. 7.4 SECTION 32 (4) THE EXISTENCE OF ANY PUBLIC RIGHT OR CUSTOM OR MATTER OF PUBLIC OR GENERAL INTEREST Client/Matter: -None67. 7.5 SECTION 32 (5) AND (6): PROOF OF THE EXISTENCE OF RELATIONSHIP: 32 (5) AND (6) Client/Matter: -None68. 7.6 SECTION 32 (7) PROOF OF CUSTOM OR RIGHT Client/Matter: -None69. 7.7 SECTION 32 (8) STATEMENTS BY SEVERAL PERSONS— “COMPOSITE HEARSAY” Client/Matter: -None70. 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 Client/Matter: -None71. 7.9 SECTION 33 AND SECTION 326 OF CR PC, 1973 Client/Matter: -None72. 7.10 SECTION 33 AND SECTION 299 OF CR PC, 1973 Client/Matter: -None73. 7.11 DE BENE ESSE DEPOSITIONS—UK AND USA PRACTICE Client/Matter: -None74. 7.12 INDIA Client/Matter: -None75. Sections 40–44 Client/Matter: -None76. 9.1 JUDGMENTS RELEVANT INTER PARTES ONLY Client/Matter: -None77. 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY Client/Matter: -None78. 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS Client/Matter: -None79. 9.4 SECTION 42: RELEVANCY OF JUDGMENTS REGARDING MATTERS OF PUBLIC NATURE Client/Matter: -None80. 9.5 SECTION 43: JUDGMENTS RELEVANT AS FACT IN ISSUE Client/Matter: -None81. 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION Client/Matter: -None82. Sections 34–38 Client/Matter: -None83. 8.1 ENTRIES IN BOOKS OF ACCOUNTS Client/Matter: -None| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

84. 8.2 PUBLIC RECORDS Client/Matter: -None85. 8.3 RELEVANCY MAPS, CHARTS Client/Matter: -None86. 8.4 FACTS OF PUBLIC NATURE Client/Matter: -None87. 8.5 PROOF OF FOREIGN LAW Client/Matter: -None88. 8.6 PART OF LONGER STATEMENT Client/Matter: -None89. Sections 45–51 Client/Matter: -None90. 10.1 RATIONALE OF RELEVANCY OF OPINION EVIDENCE Client/Matter: -None91. 10.2 SECTION 45: OPINIONS OF EXPERTS Client/Matter: -None92. 10.3 SECTION 45A: OPINION OF EXAMINER OF ELECTRONIC EVIDENCE Client/Matter: -None93. 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE Client/Matter: -None94. 10.5 FIELDS OF EXPERTISE Client/Matter: -None95. 10.6 OPINION EVIDENCE SECTIONS 47–51 Client/Matter: -None-

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Introduction Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Introduction

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE Introduction

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1.1 LAW OF EVIDENCE AS PROCEDURAL LAW Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Introduction

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE Introduction

1.1 LAW OF EVIDENCE AS PROCEDURAL LAW Law is classified into Substantive Law and Procedural or Adjective Law.1 It is said that Substantive Law is the law that confers powers and rights or imposes duties and liabilities on persons whereas the Procedural Law deals with the procedure by which those rights, duties and liabilities are enforced in a Court of law.2 The Code of Civil Procedure 1908 (CPC 1908), Code of Criminal Procedure, 1973 (Cr PC 1973) and Evidence Act, 1872, are examples of procedural laws and the first two codes lay down what court is to be approached for civil or criminal cases, respectively, the jurisdiction of the Courts and the Evidence Act, 1872 provides for the methodology by which the cases have to be conducted in the matter of production of relevant oral, documentary and material evidence and the examination of witnesses. The Indian Constitution and the Indian Penal Code, 1860 (IPC, 1860) are examples of Substantive Laws. Thus, while section 302 of IPC, 1860 provides for death sentence as one of the punishments for the offence of murder, it is section 354, clause (5) of Cr PC, 1973 which prescribes the procedure for the execution of the death sentence i.e., that the convict shall be hanged by the neck till he is dead. The procedural laws often contain various safeguards for the accused in criminal cases and provide the flesh and blood to the bare bones of the sometimes pithy and terse provisions of substantive law. Justice Felix Frankfurter of US Supreme Court declared: “the history of American freedom is, in no small measure, the history of procedure”.3 Justice William O Douglas observed: “It is procedure that spells much of the difference between rule by law and rule by whim or caprice”.4 However, as Salmond says, “it is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure”.5 It is not correct to come to the conclusion that it is only the substantive laws that confer rights and that the procedural laws lay down only procedure. Conversely, it is also not correct to presume that substantive laws cannot contain procedural provisions or that procedural laws cannot contain provisions that confer powers and rights or impose duties.6 For instance, section 491 of Cr PC 1898, prior to its omission by amendment in 1973, conferred “Power to issue directions of the nature of a habeas corpus” on the High Courts and this writ is now part of the fundamental right conferred by Article 32 and the Constitutional right under Article 226 of the Constitution. Section 300 of the present Cr PC 1973 confers the right of the accused against double jeopardy in a manner wider than under Article 20 (2) of the Constitution.7

1

It is said that “the dichotomy was fathered by Jeremy Bentham in a 1782 work entitled Of Laws in General”. See D Michael Risinger, “‘Substance’ and ‘Procedure’ Revisited: With Some Afterthoughts on the Constitutional Problem of ‘Irrebuttable Presumptions’”, 30 UCLA L Rev (1982) 189, at 191. Procedural Law and Adjective Law are treated as synonymous by learned authors. WW Cook, “‘Substance’ and ‘Procedure’ in the Conflict of Laws”, Yale Law Journal, vol 42, 1933, p 333.

2

Sir James Fitzjames Stephen said: A law may be divided into Substantive Law, by which rights, duties, and liabilities arc defined, and the Law of Procedure, by which the Substantive Law is applied to particular cases. See, Digest of Law of Evidence (London, 1876), Macmillan and Co, Introduction, p IX. Sir Stephen further observed: “The law of procedure includes, amongst others, two main branches, — (1) the law of pleading, which determines what in particular cases are

Page 2 of 2 1.1 LAW OF EVIDENCE AS PROCEDURAL LAW the questions in dispute between the parties, and (2) the law of evidence, which determines how the parties are to convince the court of the existence of that state of facts which, according to the provisions of substantive law, would establish the existence of the right or liability which they allege to exist”. Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 8. Phipson says: “Law is commonly divided into Substantive Law, which defines rights, duties, and liabilities; and Adjective Law, which defines the procedure, pleading, and proof, by which Substantive Law is applied in practice.” The term “procedure” “is, however, often used to include the other two”. Phipson, Manual of the Law of Evidence, ed TS Elliott, 12th Edn, 1987, p 1. 3

Malinski v New York, 324 US 401, 414 (1945), at p 590.

4

Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123 (1951), at p 179.

5

Salmond on Jurisprudence, 12th Edn, PJ Fitzerald ed, (London, 1966), p 461.

6

Thomas O Main observes: “laws could be both substantive and procedural or could be neither substantive nor procedural” and that some procedural rules have substantive orientation and vice versa. Thomas O Main, “The Procedural Foundation of Substantive Law”, Washington University Law Review, vol 87, 2009, pp 10 and 15. This paper is available from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=1113916 (Last accessed in April 2019). As Kelsen points out, procedural law also deals with the “organs” (Courts) that apply the law and their powers and jurisdiction and, hence, have substantive content. Hans Kelsen, General Theory of Law and State, (Cambridge, Mass, 1945), p 129.

7

While section 300 covers both autrefois convict and autrefois acquit, Article 20 (2) deals only with autrefois convict.

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1.2 LEX FORT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Introduction

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE Introduction

1.2 LEX FORT In Latin, lex means law and forum means Court and lex fori means the law of the Court. Suppose an Indian Hindu marries an American Christian in Paris, sets up his matrimonial home in Geneva and later seeks divorce in Mexico. In this case, the Mexican Court will have to first decide which law will be applicable to the case to adjudicate on the issues of grounds of divorce. Let us assume that according to the Mexican Law the case has to be decided according to the law of the place where the parties have set up their matrimonial home i.e., the Swiss law. It means that the Mexican Court will apply the Swiss substantive law and decide whether the petitioner had the right to seek a divorce or not. But the Court will follow the Mexican Law relating to its own jurisdiction and other procedures of the Court in conducting the trial of the case. In other words, the Mexican Court will apply its own procedural law as lex fori or the law of the Court in matters concerning the procedure but apply Swiss law in matters relating to the substantive rights of the parties. If in this case the husband has pleaded cruelty by the wife as a ground of divorce, the question whether cruelty is a ground of divorce will be decided by the Court according to Swiss law but whether in fact the husband has approached the correct Court in Mexico for filing the case and, if he did, whether he could adduce proper proof of cruelty through witnesses and documents will be decided by the Court according to Mexican procedural law as the lex fori. Thus, choice of the Court will result in the choice of the lex fori with regard to choice of procedural law.

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1.3 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Introduction

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE Introduction

1.3 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA8 As Sarkar points out, “before the introduction of the Indian Evidence Act, 1872, there was no complete or systematic enactment on the subject”. Within the Presidency towns of Calcutta, Bombay and Madras, the Courts established by the Royal Charter followed the English rules of Evidence. Outside the Presidency towns, the law was vague and indefinite as there were no fixed rules of evidence.9 The mofussil Courts were held to be not bound to apply the English rules of evidence and they were also held to be not bound by the rules of evidence contained in the customary Hindu Law and Muslim Law.10 Consequently, there was a certain amount of caprice and arbitrariness in the administration of the law of evidence11 and perhaps this anarchy paved the way for the eventual enactment of the Indian Evidence Act based on the English rules of evidence. Though some attempts have been made between 1835 and 1853 through legislative action to codify and reform the existing rules of evidence, the attempts proved to be fragmentary and desultory. Though the Act of 1855 proved to be “the most important and contained valuable provisions”, this Act also “did not contain a complete body of rules”.12 1.3.1 First Evidence Bill of the Indian Law Commissioners What proved to be the curtain raiser for the Indian Evidence Act of 1872 was the Draft Bill on Evidence of 1868 prepared by the Indian Law Commissioners under the Chairmanship of Mr Henry James Sumner Maine13 (later Sir Henry Maine). Mr Maine described the existing state of judicial anarchy in the administration of law of evidence as “eminently unsatisfactory” but also found that the wholesale importation of the English rules of evidence as unsuited to Indian conditions. However, the Draft Bill did not pass even the stage of the first reading in the Parliament and it was subjected to criticism on the grounds that the Bill was not sufficiently simple for its application by the Indian judges who were not well versed in English rules of evidence, and that the Bill was incomplete in certain respects. 1.3.2 James Fitzjames Stephen’s Bill on Evidence of 1871 It was the Bill on Evidence prepared by James Fitzjames Stephen14 in 1871 that was ultimately passed into the Indian Evidence Act, 1872.15 The Act, generally acclaimed as a great example of craftsmanship in draftsmanship, was entirely based upon the English rules of evidence16 and was compendious consisting of only 167 sections.17 The Act was so well received that, in his Digest of Law of Evidence, Sir Stephen mentions that he was asked by Mr Coleridge, the then Attorney General,18 to prepare a draft Evidence Bill for England and Sir Stephen prepared the draft. However, the Bill was never passed as the Parliament was prorogued and the Bill fell through.19 While commenting on the Bill Mr Stephen stated that the Bill was drafted on the lines of the Indian Evidence Act, 1872 and the objective has been to “enable students to obtain a precise and systematic acquaintance with it in a moderate space of time, and without a degree of labour disproportionate to its importance in relation to other branches of the law”.20 This comment of Sir Stephen is equally applicable to the Indian Evidence Act, 1872 also. Sir Stephen was also responsible for the drafting of the Indian Contract Act, 1872 and the Criminal Procedure Code, 1898.21 Speaking of Sir Stephen’s lasting contribution to the Indian Evidence Act, 1872 John Heydon observes:

Page 2 of 3 1.3 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA

Although it has been amended it has not been changed substantially. It was examined twice with great thoroughness by the Law Commission of India, in 197722 and 200323, but no proposal for radical amendment was made then, or at any other time. It was enacted only for British India (and thus for places like Aden which were technically part of British India). But it also went into force in numerous other parts of India (in some of the princely states) before 1947. After independence the Act was extended to, and remains in force in, the whole of the Republic of India (save for Jammu and Kashmir). It is also in force in Pakistan, Bangladesh, Sri Lanka and Burma. It has heavily influenced the laws of Malaysia, Singapore, Brunei, Kenya, Nigeria, Uganda, Zanzibar, parts of the West Indies and even parts of Australia--the Christmas and Cocos (Keeling) Islands. T O Elias said it ‘is a model of its kind’.24

Though the Indian Evidence Act, 1872 purports to “consolidate, define and amend the Law of Evidence”,25 the Act does not exhaust the whole corpus of the rules of evidence.26 For instance the Cr PC 1973 contains an exclusionary rule of evidence in section 162 under which the statements made by any person to the police during the course of investigation are barred from being used in a Court of law. Similarly, section 306 and 307 of Cr PC permit the magistrate to tender pardon to an accomplice for getting true and full disclosure of facts. This is obviously an exception to section 24 of the Evidence Act which bars confessions made under inducement, threat or promise proceeding from a person in authority. In fact the Cr PC contains a whole Chapter XXIII on “Evidence in Inquiries and Trials”. Similarly, the CPC also contains provisions on “Admissions” (O XII), on “Hearing of the Suit and Examination of Witnesses” (O XVIII) and other provisions which directly relate to evidence. It must, however, be stated that though certain rules relating to evidence may be found in enactments other than the Evidence Act,27 the Evidence Act is a complete code in itself and no judge can override the mandatory provisions of the Evidence Act and admit evidence not admissible under the statute.

8

See, ND Basu, Law of Evidence, 6th Edn, PM Bakshi, ed, (New Delhi, 1998), pp 12 ff.

9

See, Sudeepto Sarkar and V Manoher, Sarkar’s Law of Evidence: In India, Pakistan, Bangladesh, Burma and Ceylon, 14th Edn, vol 1 (1993), p 1.

10 R v Khairulla, 6 WRCr 21 (per Peacock, CJ). 11 See, Sudeepto Sarkar and V Manoher Sarkar, Sarkar’s Law of Evidence: In India, Pakistan, Bangladesh, Burma and Ceylon, 14th Edn, vol 1 (1993), p 1. 12 See, Sudeepto Sarkar and V Manoher Sarkar, Sarkar’s Law of Evidence: In India, Pakistan, Bangladesh, Burma and Ceylon, 14th Edn, vol 1 (1993), p 2. 13 Mr Maine was for seven years the Law Member of the Governor General’s Council of India and the famous founder of Comparative School of Jurisprudence. He was born in India in 1822 and died at Cannes, France in 1888. 14 Mr Stephen (later Sir James Stephen) was appointed, on the recommendation of his predecessor Sir Henry Maine, as the Law Member of the Governor General’s Council of India from 1869 to 1872. See, for an interesting biography of Sir Stephen by his brother Leslie Stephen, The Life of Sir James Fitzjames Stephen, (London, 1895), now available on the Internet from 28 May 2009 at http://www.archive.org/details/lifeofsirjamesfi00stepuoft (last accessed in April 2019); and also KJM Smith, “Stephen, Sir James Fitzjames, first baronet (1829–1894)”, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edition, May 2006 [http://www.oxforddnb.com/view/article/26375 (Last accessed in April 2019). Sir James Stephen was a contemporary of John Austin, the “Father of Jurisprudence” and founder of Analytical School of Jurisprudence, and Sir Stephen was referred to as “esteemed and faithful friend” of John Austin by Mrs Sarah Austin in her “Preface” to John Austin, Lectures on Jurisprudence or, The Philosophy of Positive Law, vol 1, 3rd Edn, Robert Campbell, ed, (London, 1869), p 13. Sir James Stephen was a cousin of the famous jurist AV Dicey, the author of the classic An Introduction to the Study of the Law of the Constitution (1885) and the uncle of the author Virginia Woolf. 15 Sir Stephen said: “In the years 1870–1871 I drew what afterwards became the Indian Evidence Act (Act i of 1872). This Act began by repealing (with a few exceptions) the whole of the Law of Evidence then in force in India, and proceeded to re-enact it in the form of a code of 167 sections, which has been in operation in India since September 1873. I am informed that it is generally understood, and has required little judicial commentary or exposition.” Sir James Fitzjames Stephen, A Digest of Law of Evidence, Introduction, (London, 1876), p III. 16 Sir Stephen observed: “The Indian Evidence Act is little more than an attempt to reduce the English law of evidence to the form of express English law propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.” Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence, (London, 1872), Macmillan Co, p 2.

Page 3 of 3 1.3 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA 17 See for a brief history of the Act, S Rangarajan, Revised by Versha Vabini, “Law of Evidence”, http://14.139.60.114:8080/jspui/bitstream/123456789/738/13/Law%20of%20Evidence.pdf (Last accessed in April 2019). 18 Mr Coleridge was later elevated as Lord Coleridge. 19 Sir Stephen was also entrusted with drafting a Criminal Procedure Code for England, and the UK Law Commission says that he “endeavoured to adapt his Indian models to English uses”. This draft Bill also fell through with when the Parliament was prorogued. The Law Commission says that the Bill came in for criticism on the ground, inter alia, of the “quality of work”. UK Law Commission, Criminal Law: Codification of the Criminal Law, (Law Com No 143), (London, 1985), pp 1–2. 20 James Fitzjames Stephen, A Digest of Law of Evidence (1876, London), Introduction, p IV. 21 John D Heydon, “Reflections on James Fitzjames Stephen”, Queensland Law Journal, July 2010, p 1. See also, KJM Smith, James Fitzjames Stephen, Portrait of Victorian Rationalist, (Cambridge University Press 1988). 22 69th Report under the Chairmanship of Justice Prahlad B Gajendragadkar. Referring to the 69th report, the 185th Report of the Law Commission says: That Report ... is probably one of the most scholarly works ever produced by the Law Commission of India in the last five decades. The Report contains such abundant research material good enough for half a dozen post graduate students or PhD scholars. The amount of industry put in by the Fifth Law Commission in preparing the 69th report by going into the very origin of every section and every principle of law, with references to comparative law in various countries, is indeed unsurpassable. Unfortunately, it was kept pending from 1977 to 1995. The task before the present Commission to review such a report is therefore extremely daunting. The 185th Report, Pt II, Introduction, p 2. 23 185th Report under the Chairmanship of M Jagannadha Rao, J. This report, which came 25 years after the 69th report, is as scholarly and thorough-going as the 69th report and threw new light on various provisions and illustrations of the Indian Evidence Act, 1872 in the light of later developments in India and elsewhere. 24 Heydon, “Reflections on James Fitzjames Stephen”, Queensland Law Journal, July 2010, p 10. 25 See the Preamble to the Act. 26 See, Ratanlal and Dhirajlal, The Law of Evidence, 21st Edn, Y V Chandrachud and V R Manoher, ed (New Delhi, 2004), 2009 reprint, p 2. 27 See, for instance, Bankers Books Evidence Act, 1891 and Commercial Documents Evidence Act, 1939.

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1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Introduction

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE Introduction

1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872 1. Short title, extent and commencement—This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court, including Court-martial, other than Courts-martial convened under the Army Act (44 and 45 Vict.,c.58), [the Naval Discipline Act (29 and 30, Vict.,c.109) or the Indian Navy (Discipline) Act,1934 (34 of 1934) or the Air Force Act (7Geo.5.,C51)] but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September,1872.

1.4.1 “Territory of India” Under section 1, the Indian Evidence Act, 1872 came into force on 1 September 1872 and its territorial application “extends to the whole of India except the State of Jammu and Kashmir”. Section 3 defines “India” as “the territory of India excluding the State of Jammu Kashmir”.28 Though the term “territory” is derived from the Latin term “terra” which means land, the legal concept of “territory” includes not only the land but also inland waters like rivers and lakes, a belt of coastal sea called Territorial Sea up to a distance of 12 nautical miles and aerospace above the land and Territorial Sea. So, “territory” is three dimensional comprehending land, water and aerospace. Under Article 1, clause 3 of the Constitution, the territory of India shall comprise the territories as specified in the First Schedule, namely, (a) the territories of the States and (b) the Union Territories, and (c) such other territories as may be acquired. India acquired territories by (i) the liberation of Goa, Diu and Daman from the Portuguese colonial rule (1961), (ii) by voluntary merger of Sikkim with India (1976) and (c) by exchange (cession) of certain enclaves of territory with the then East Pakistan (Berubari Enclaves) under the Nehru-Noon Pact, 1958 as finally implemented by the Land Boundary Agreement between India and Bangladesh signed by Indira Gandhi and Sheikh Mujeebur Rahman of 1974. 1.4.2 “Judicial Proceedings” The Evidence Act, 1872 applies to all “judicial proceedings”. The term “judicial proceeding” is not defined in the Act and there appear to be three tests for the determination of whether a proceeding is judicial or not: 1. Objective Test: “An enquiry 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 the community generally; but, even a judge, if not acting with such an object in view, is not acting “judicially”.29 Here “jural” means relating to law or to legal rights and obligations. 2. Functional Test: Section 2, clause (i) of Cr PC defines as follows: “‘Judicial Proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath”. In P Rajangam v State of Madras30, a Division Bench observed: All men are mortals, but all mortals are not men. A judicial proceeding may be one in which evidence is or may be legally taken on oath; but all proceedings in which evidence is taken on oath do not necessarily mean judicial proceedings.Here the test is whether the body

Page 2 of 4 1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872 conducting the proceeding is authorized by law to receive evidence and decide on the basis of that evidence.31 3. Approach or Process Test: Another very important test that is invariably applied is whether the decisionmaking process involves the application of a judicial mind or judicial discretion which is guided by the evidence adduced by both the parties. This test distinguishes the judicial proceeding from a proceeding or an enquiry conducted by an administrative body where the final outcome depends on the facts discovered by the body which is not clothed with any discretion. Fact-finding and enquiry commissions come under this category. It must be remembered that just because a legislative enactment provides that a body shall be deemed to be a Court for the purposes of summoning documents and following the principles of natural justice (like giving notice to and hearing both the parties) it does not make its proceedings judicial. Those proceedings, in spite of having certain trappings of a Court, are not strictly judicial proceedings. A proceeding may be a quasi-judicial proceeding without being strictly a judicial proceeding. It is obvious that all the above three tests are to be applied cumulatively in the determination of the nature of a proceeding as judicial or not. Consequently, •

Departmental Proceedings32 against employees in disciplinary matters, disciplinary proceedings under Article 311 for the dismissal, reduction in rank of the civil servants of the Central and State Governments are not judicial proceedings.

•

With regard to proceedings before Labour Court or Industrial Tribunal under the Industrial Disputes Act, 1947, in Shankar Chakravarthi v Britannia Biscuits, 1979 AIR 1652 : 1979 SCR (3) 1165, the Supreme Court held: The Labour Court or Tribunal has to decide the lis between the parties on the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is nonetheless a quasijudicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. It would not be open to it to decide the lis on any extraneous consideration. Justice, equity and good conscience will inform its adjudication.

•

Position of Commissions of Enquiry is also the same. For instance, section 4 of the Commission of Enquiry Act, 1952 provides:

Section 4. Powers of Commission—The Commission shall have the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namelya. Summoning and enforcing the attendance of any person from any part of India and examining him on oath. b. Requiring the discovery and production of any document. c. receiving evidence on affidavits d. requisitioning any public record or copy thereof form any court or office e. issuing commissions for the examination of witnesses or documents f.

Any other matter which may be prescribed.

In Dr Subramanian Swamy v Arun Shourie, (2014),33 one of the issues was whether when a sitting Supreme Court Judge is appointed as a Commissioner by the Central Government under the 1952 Act, does he carry with him all the powers and jurisdiction of the Supreme Court? The Supreme Court held that the sitting judge does not carry with him the status of the Apex Court judge as he exercises only the statutory function under the 1952 Act. The Court further held that: the Commission has the powers of civil court for the limited purpose as set out in that Section. It is also treated as a civil court for the purposes of Section 5 (4). The proceedings before the Commission are deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code,

Page 3 of 4 1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872 but “the Commission appointed under the 1952 Act in our view is not a Court and making the inquiry or determination of facts by the Commission is not of judicial character”. On the other hand, some of the proceedings relating to election offences under the Representation of People Act, 1951 are of a quasi-criminal nature,34 and the provisions of the Evidence Act, 1872 are made applicable to the proceedings under the act and they are considered as judicial proceedings.35 1.4.3 Arbitration Proceedings Section 1 of the Indian Evidence Act, 1872 clearly provides that the Act does not apply to “proceedings before an arbitrator” and it does not make any distinction between statutory arbitrations under, for instance, section 10 of the Industrial Disputes Act, 1947 or private arbitrations under the Arbitration and Conciliation Act, 1996. The Arbitration and Conciliation Act, 1996 repealed the old Arbitration Act, 1940 and provides in section 19, clause (1) that the arbitral tribunal constituted under the Act “shall not be bound by the CPC, 1908 or the Indian Evidence Act, 1872”. Under clause (2), the parties are free to agree on the procedure to be followed by the tribunal and, failing that agreement, the tribunal under clause (3) may “conduct the proceedings in the manner it considers appropriate”. Under clause (4), “the power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence”. It is significant that the Act gives total autonomy to the parties in this respect and does not even require that the procedure agreed to by the parties or laid down by the arbitrator shall comprise the principles of natural justice. Though section 89, clause (1)36 of the CPC 1908 provides for settlement of disputes by arbitration by reference by the Court,37 clause 2 (a) provides that these arbitration proceedings shall be deemed to be proceedings under the Arbitration and Conciliation Act, 1996. In the light of what has been stated above, arbitration proceedings under section 89 of CPC 1908 also are not governed by the Evidence Act, 1872. 1.4.4 “Courts Martial” Section 1 of the Indian Evidence Act, 1872 states that the Act shall apply to “Court-martial, other than Courtsmartial convened under the Army Act, 1950 (44 and 45 Vict.c.58), [the Naval Discipline Act (29 and 30, Vict., c.109) or the Indian Navy (Discipline) Act, 1934 (34 of 1934) or the Air Force Act, 1950 (7 Geo 5, C 51)”. The four enactments referred to are the Acts of the UK and the Courts Martial set up under those acts are not governed by the Act. However, these Acts have their Indian counterparts in Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957 which were enacted by the Indian Parliament after the independence, and the Evidence Act, 1872 applies to the Courts Martial set up under those Acts, subject to their other provisions. Section 133 of the Army Act, 1950, section 130 of the Navy Act, 1950, and section 132 of Air Force Act, 1950 provide identically: “The Indian Evidence Act, 1872, (1 of 1872) shall, subject to the provisions of this Act, apply to all proceedings before a courtmartial”. As the three enactments contain detailed provisions regarding evidence and procedure, to that extent the application of the Evidence Act will be restricted. 1.4.5 “Affidavits” An affidavit38 is a sworn statement made by a person as to the truth of the facts within his knowledge mentioned therein. Order XIX, rules 1, 2, 3 and 4 of CPC 1908 and section 297 of Cr PC 1973 regulate the operation of affidavits. Order XVIII, rule 4 of CPC as amended in 1999 requires that “in every case” examination in chief shall be given by affidavit and that cross-examination and re-examination shall be by oral evidence recorded by a Commissioner appointed for the purpose. Section 296 of Cr PC deals with “Evidence of formal character on affidavit” and provides: (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

The Supreme Court rules of 201339 provide in O IX dealing with “Affidavits”:

Page 4 of 4 1.4 TERRITORIAL APPLICATION OF THE EVIDENCE ACT, 1872

1. The Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. 2. Upon any application evidence may be given by affidavit; but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent, and such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

Under section 3 of the Evidence Act, 1872 oral evidence is defined as statements made by witnesses in a court of law and as affidavits are not statements made by witnesses in a court of law, the affidavits were held to be not evidence.40 Section 1 of Evidence Act expressly excludes the affidavits from its purview and provides that the Act does not extend “to affidavits presented to any Court”.

28 Section 18 of IPC, 1860 contains an identical definition of the term “India”. 29 Queen Empress v Tulja, (1887) 12 Bomb LR 36. 30 P Rajangam v State of Madras, AIR 1959 Mad. 294. 31 In an oft-quoted passage Spankie, J, said that judicial proceeding is “any proceeding in the course of which evidence is or may be taken, or in which any judgment, sentence or final order is passed on recorded evidence”. R v Ghulam Ismail, 1 ILR All 1. 32 See, Commissioner of Police, Delhi v Narendra Singh, AIR 2006 SC 1800, where it was held that a confession made to a police officer would be admissible in a departmental proceeding as section 25 of the Indian Evidence Act, 1872 is not applicable to such proceedings. 33 AIR 2014 SC 3020 : 2014 (7) SCJ 149. 34 See, Jagdev Singh v Pratap Singh, AIR 1965 SC 183 where the Supreme Court observed that the Petitioner in an election petition has to prove the election offence beyond all reasonable proof and not merely on the basis of preponderance of probabilities. See also Golla Jayamma v District Collector, Mehboobnagar, 2009 (2) All LT 344 where the AP High Court held similarly. 35 See section 87 (2) of the Representation of People Act, 1951. 36 As amended by the Act 46 of 1999, w.e.f 1 July 2002. 37 This is known as Court-annexed arbitration. 38 Section 3 of the General Clauses Act, 1897, merely states that “affidavit” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. 39 The Supreme Court rules were promulgated by the Supreme Court in exercise of powers under Article 145 of the Constitution to “make rules for regulating generally the practice and procedure of the Court”, and have been brought into force by the Chief Justice of India w.e.f. 19 August 2014. Gazette Extraordinary, https://www.sci.gov.in/supremecourt-rules-2013. (Last accessed in April 2019). 40 See, Rita Pandit v Atul Pandit, AIR 2005 AP 253; and FDC Ltd v Federation of Medical Representatives of India, AIR 2003 Bom 371.

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Definitions: Section 3 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Definitions: Section 3

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE DEFINITIONS: SECTION 3

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1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > Definitions: Section 3

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE DEFINITIONS: SECTION 3

1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT Section 3 contains important definitions of the terms that are used in the Evidence Act, 1872. 1.5.1 “Court” “Court” includes all Judges41 and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.

Though the above definition uses the word “includes” giving an impression that it is an inclusive and not an exhaustive definition, the last part of the provision “all persons, except arbitrators, legally authorised to take evidence” indicates the criterion for identifying what a Court is. The same test is applied by section 2 (i) of Cr PC 1973 in defining “judicial proceeding” as: “Judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath.

Section 20 of IPC, 1860 defines “Court of Justice” as: The words “Court of Justice” denote a judge who is empowered by law to act judicially alone, or a body of judges, which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially.

It has been pointed out above that section 1 of the Indian Evidence Act, 1872 uses the words “judicial proceedings in or before any Court” and that three tests may be applied to determine the nature of judicial proceedings, namely, objective, functional and process tests. While section 20 of IPC, 1860 applies the process test of acting judicially, section 3 of the Evidence Act and section 2 (i) of Cr PC apply the functional test of whether the body is legally authorised to take evidence. Obviously, the Courts established under CPC 1908 and Cr PC 1973 and constituted under the Constitution of India are typically Courts. Then the question that arises is whether or not the provisions of other Central or State Acts under which the tribunals are constituted empower the tribunals to receive evidence in deciding the cases before them. For instance, the Central Administrative Tribunal Act, 1985 provides in section 22 (1) (Procedure and Powers of Tribunal) that the CPC will not apply to the Tribunal but shall be “guided” by the principles of natural justice and shall have the power to regulate its own procedure. Clause (3) of section 22 confers on the Tribunal certain powers of a Civil Court in matters including summoning of a person and examining him on oath, requiring production of documents, receiving evidence of affidavits. In Shell Co of Australia v Federal Commission of Taxation, 1931 AC 275 : 1930 All ER 671 (PC) Lord Shankey observed: ... there are tribunals with many of the trappings of a court, which, nevertheless, are not courts in the strict sense of exercising judicial power”. Recently the Indian Supreme Court held that “... all tribunals are not courts though all courts are

Page 2 of 5 1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT tribunals. 42

It is submitted that the test applicable under section 3 of the Evidence Act, 1872 for determining whether a body is a Court or not is not whether the Evidence Act will apply to the proceedings before the body, because that is exactly the question to be decided, but whether the body is “legally authorized to take evidence”. If the answer is yes, the Evidence Act would apply to it unless its application is expressly excluded by the Act under which that body is constituted. In Associated Cement Co Ltd v PN Sharma, AIR 1965 SC 1595, Gajendragadkar, CJ, observed: As in the case of courts, so in the case of Tribunals, it is the State’s inherent judicial power which has been transferred and by virtue of the said power, it is the State’s inherent judicial function which they discharge. Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the state transfers its judicial functions and powers mainly to the courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to Tribunals by entrusting to them the task of adjudicated upon special matters and disputes between parties.43

Departmental proceedings for taking disciplinary action against an employee have been held by a long chain of decisions as not amounting to judicial or Court proceedings and the punishment that may be meted out to the employee will not attract the doctrine of Double Jeopardy as the proceedings and the penalty that may be imposed on the employee do not amount to prosecution and punishment. As far as the arbitral tribunals are concerned, of course section 3 makes it clear that arbitrators do not come within the definition of the term “Court”. But the words “legally authorised to take evidence” in section 3 should be taken to mean not “authorised under the law” but “authorised by the law”. Section 19 of the Arbitration and Conciliation Act, 1996 offers an interesting insight into the question and states: Determination of rules of procedure.—(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

While clause (1) of the above provision expressly excludes the application of CPC 1860 and Evidence Act, 1872, clause (2) states that “the parties are free to agree on the procedure to be followed the arbitral tribunal in conducting its proceedings”. If the parties fail to agree on procedure, clause (3) leaves the matters entirely to the discretion of the tribunal, which “includes the power to determine the admissibility, relevance, materiality and weight of any evidence”. From this and other provisions of the Arbitration and Conciliation Act, 1996 it is clear that arbitration is privatised to a great extent and the very constitution, composition and procedure of the “tribunal” is left to the agreement by the parties. While the “tribunal” might be “authorised” to take evidence, the authority does not flow from the statute itself directly but from the agreement of the parties or the tribunal’s own discretion as stated by the Act. 1.5.2 “Fact”, “Fact in Issue” and Relevant Fact The definitions of the terms mentioned above are discussed in the chapter on Relevancy. 1.5.3 “Proved”, “not Proved” and “Disproved” The term proof is not defined in the Evidence Act, 1872 but the terms “Proved”, “Not Proved” and “Disproved” are defined in section 3 as follows:

Page 3 of 5 1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT

“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 existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. “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 proved nor disproved.

An analysis of the definition of the term “proved” mentioned above gives an insight into the criteria that go into the process of proof. (1) A fact is said to be proved when the Court (2) after considering the matters before it (3) (a) either believes it to exist or (b) considers its existence so probable (4) that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. The above definition is very significant in that it refers to four pivotal factors: (1) it is the Court which is the forum that decides; (2) the Court decides on the basis of evidence or “matters” before it; (3) it relates to proof of “a fact” not the entire case; and (4) the standard of proof is neutral standard of an ordinary prudent man. It is noteworthy that the Evidence Act, 1872, neither in the above definition of “proved” nor in chapter VII on “Burden of Proof” makes any distinction between different standards of proof in civil and criminal cases.44 Under criterion (3) mentioned above, the Court (a) either believes a fact to exist or (b) considers its existence so probable. It is very significant that the Act does not insist on “certainty” but only “belief” and “probability”. The “belief” and “probability” are not uncanalised subjective inferences but conclusions arrived at after scrutinizing all relevant facts and “after considering the matters before it”. The Supreme Court pointed out: Section 3 of the Evidence Act refers to two conditions – (i) when a person feels absolutely certain of a fact – ‘believe it to exist’ and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence .... The degree of proof need not reach certainty but must carry a high degree of probability.45

•

As Justice VR Krishna Iyer observed, “Relevancy is tendency to make a fact probable”.45

•

But, in arriving at the conclusions mentioned above the Court shall not apply the high standards of a judicially trained mind, but place itself in the shoes of a “prudent man” and see whether such “a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists”.

•

At a time when the jury system was in vogue, the standard of a “prudent man” was institutionalized in the form of a jury consisting of 12 ordinary prudent persons drawn from different walks of life. The jury was required to decide all questions of fact whereas the judge would decide the questions of law. After the abolition of the jury system in India, the judge is required to perform both the functions.

As the Evidence Act, 1872 deals with rules of evidence applicable to the Court proceedings, it is the Court which has to decide whether a fact exists or not. In other words, it is the satisfaction of the Court that is determinant. •

The satisfaction of the Court has to be arrived at only “after” considering the matters before it i.e., as discussed above, it is the Court’s objective satisfaction. The Court’s satisfaction relates to and founded upon the consideration of the matters before it.

Page 4 of 5 1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT •

It is significant that the Evidence Act does not confine the “matters before” the Court only to “evidence” admissible under the Act (Sections 5–55) but extends to other matters.

These “matters” would include: •

affidavits, admissions, confessions, Court’s personal visits,46 demeanour of witnesses,47 Court’s own assessment of probative value of evidence and reliability of witnesses.

•

“Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so”.48

•

Section 280 of Cr PC requires that, after recording the evidence of a witness, the Court “shall also record such remarks (if any) as he thinks material respecting the demeanour of such witnesses whilst under examination”. It is said that “the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses”.49

•

Order XVIII, rule 12 of CPC 1860 also provides that “the Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination”.

•

Under section 313, clause 1 of Cr PC 1973, the Court may put such questions to the accused as the Court considers necessary, without even administering an oath to him (Clause 2). An accused cannot be technically considered as a witness if an oath is not administered to him. section 313, clause 4 says that “that the answers given by the accused may be taken into consideration in such enquiry or trial”.

•

“The expression “matters” has wider connotation than the word “Evidence” .... this does not mean that the Court can look into anything and everything by bringing it within the contours of the word “matter”. The word “matter” has been used because the Court has been empowered by the Evidence Act to raise some presumptions as in section 114 of the Act, which permits the Court to presume the existence of any fact which it thinks likely to have happened in their relation to the facts of the particular case”.50

It must, however, be pointed out that while the definition of the word “proved” in section 3 does not make any distinction whatsoever between civil and criminal proceedings in the matter of proof of facts by either party, the final conclusion of the Court as to whether the plaintiff in a civil case or the prosecution in a criminal case has discharged the “burden of proof” depends on different standards of proof. The topic of burden of proof and standards of proof is discussed in chapter XVIII. 1.5.4 “Disproved” and “Not Proved” A fact is said to be “disproved”, when, after the application of the tests mentioned above with regard to “proved”, the Court comes to the conclusion that a fact does not exist, it is said to be disproved. On the basis of the same criteria, if the Court is not in a position to decide whether a fact exists or does not exist, then the fact is said to be “not proved”. So, the Evidence Act, 1872 makes a distinction between “disproved” and “not proved” and both are not synonymous. While “proved” shows a state of certainty in the Court’s mind about the existence of a fact, “disproved” shows a state of certainty about the non-existence of a fact. On the other hand, “not proved” exhibits a state of uncertainty where the Court is not in a position to conclude, because of inadequacy of evidence, that either a fact exists or does not exist and it has an open mind on the matter. While that may be so as a general rule, at the conclusion of a criminal prosecution if the Court comes to the conclusion that the guilt is either “disproved” or “not proved”, the outcome of uncertainty will be the acquittal of the accused. In M Krishnan v The State through the Inspector of Police, District Crime Branch, Sivagangai,51 the Division Bench of Madras High Court aptly observed: In civil law and service jurisprudence, there is a world of difference between ‘not proved’ and ‘disproved’. In criminal jurisprudence, there is no distinction between these expressions namely ‘not proved’ and ‘disproved’, as both would result only in one consequence, namely acquittal.

Page 5 of 5 1.5 SECTION 3 OF THE INDIAN EVIDENCE ACT 41 The term “Judge” is defined in section 19 of the IPC, 1860: “The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment”. Under section 2 (y) of Cr PC 1973 the above definition in IPC, 1860 is deemed to have been adopted by Cr PC 1973. The Judges Protection Act, 1985 provides a similar definition in section 2. CPC 1908 gives a narrower definition for its own purposes in section 2 (8) which says: “‘Judge’ means the presiding officer of a Civil Court”. 42 SD Joshi v High Court of Bombay, (2011) 1 SCC 252, at p 268, para 62. 43 See also UOI v R Gandhi, (2010) 11 SCC 1 : 2010 (5) Scale 514, where the Supreme Court observed: “These Tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts.” See also, Madras Bar Association v UOI, (2014) AIR 2015 SC 1571 : (2014) 10 SCC 1. where the Supreme Court struck down National Tax Tribunal Act, 2005 on the ground that the constitution, composition and powers of the National Tax Tribunal established by the Act violated the basic structure of the India Constitution. 44 See the discussion this aspect in chapter XVIII infra. 45 Bhagwan Jagannath Markad v Maharashtra, AIR 2016 SC 4531 : 2016 (10) SCJ 363. para 18 (Last accessed in April 2019); Vijayee Singh v State of UP, (1990) 3 SCC 190, paras 18, 28–30. 45 Bhagwan Jagannath Markad v Maharashtra, AIR 2016 SC 4531 : 2016 (10) SCJ 363. para 18 (Last accessed in April 2019); Vijayee Singh v State of UP, (1990) 3 SCC 190, paras 18, 28–30. 46 Order XVIII, rule 18, CPC 1908, provides: Power of court to inspect.- The court may at any stage of a Suit inspect any property or thing concerning which any question may arise and where the court inspects any property or thing it shall, as soon as may be practical, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit. Section 310, Similarly, section 310, Cr PC 1973, provides for inspection by Court of places and provides: “Local inspection.- (1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.” In Kulwinder Singh Alias Rocky v Punjab, (2015), Punjab-Haryana High Court, Criminal Misc. No.5223 of 2015, decided on 18 February 2015 (Punjab and Haryana High Court). it was held: “Any of the party as a matter of right cannot ask the Judge or Magistrate to visit and see the place of occurrence. If this is allowed, then every accused will file an application under section 310 Cr PC. asking for the Magistrate to inspect the spot/place of occurrence. It is not the work of the Judge or the Magistrate to inspect the site or to collect the evidence for any party. This provision is made for the Court itself that if Judge or Magistrate wants to inspect the spot or the place of occurrence and in his/her opinion necessary for the purpose of properly appreciating the evidence, then he/she can visit the spot.” It was also held that where there is no dispute as to the place of occurrence of the crime and there is no need for the visit, the Court cannot be required to inspect the place. Kanta Devi v State of HP, (2015) ILR 2015 (IV) HP 484. 47 Section 280 of Cr PC requires that after recording the evidence of a witness, the Court “shall also record such remarks (if any) as he thinks material respecting the demeanour of such witnesses whilst under examination”. Order XVIII, rule 12 of CPC 1860 also provides that “the Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination”. 48 Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, para 7. 49 Muralidhar Gidda v Karnataka, (2014) 5 SCC 730. 50 K Ramaraj v State, (2013), 2014 (2) Mad LJ (Crl) 41 : 2014 (1) CTC 289. 51 M Krishnan v The State through the Inspector of Police, District Crime Branch, Sivagangai, (2014), para 40.

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KINDS OFEVIDENCE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > KINDS OFEVIDENCE

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE KINDS OFEVIDENCE

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1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE > KINDS OFEVIDENCE

I INTRODUCTION, DEFINITIONS AND KINDS OF EVIDENCE KINDS OF EVIDENCE

1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE 1.6.1 What is “Evidence”? The term “evidence” is derived from the Latin root evidere which means “to show clearly; to ascertain; to prove”. In Kalyan Kumar Gogoi v Ashutosh Agnihotri, (2011) 2 SCC 532, the Supreme Court observed: The word ‘evidence’ is used in common parlance in three different senses: (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or nonexistence of disputed facts.

However, “evidence” is not the same thing as “proof” and a clear distinction must be drawn between the two terms. Evidence is the means and proof is the result.52 Evidence is the tool by which proof is obtained. Thus, for instance, that A killed B can be “proved” if there is testimony of witnesses who saw A killing B or other circumstantial evidence like their previous enmity (motive), finger prints from which it can be concluded that A killed B. Here the testimony of the witnesses and other circumstances are the evidence by which A’s guilt can be proved. Then, how is evidence defined?53 Some say that “‘evidence’ is the means of ascertaining the truth in a law suit”.54 Similarly, Taylor defines evidence as: “All legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation”.55 The use of the term “truth” in this context can be very tricky. If a police officer is shot and killed by the terrorists at a traffic junction while going to his office in a car, and no witnesses are forthcoming to come to Court and depose or offer evidence against the killers for fear of harm to themselves, the accused will be acquitted by the Court as his guilt is not proved because of absence of evidence. Here the “truth” is that the police officer was, indeed, killed by the terrorists but “proof” is that they are found “not guilty”. Here, absence of evidence of guilt is not evidence of absence of guilt. It may be contended that the plea of “not guilty” by the accused is not an assertion of his innocence but merely a demand for proof of his guilt.56 Just as the fact that the accused is finally acquitted by a Court of law may only mean that his guilt has not been proved to the satisfaction of the Court and may not in all cases mean that he is in fact innocent,57 so also the fact that he is convicted does not invariably mean that he is in fact guilty and not innocent. In Union Territory Chandigarh v Pradeep Kumar, P&H, 201658 (2016) it was observed: If a candidate is acquitted or discharged, it could not always be inferred that he was falsely involved and he had no criminal antecedents. All that may be inferred is that he was not proved to be guilty.

As it is well said, “since law operates on facts, justice is contingent on factual truth”.59 Thus, there is a stark difference between “real” truth and “forensic”60 truth. The hiatus between the “real” truth and “forensic” truth can, indeed, be troubling to judicial conscience and the Courts sometimes feel helpless. Thus, in a case of 201261 the Supreme Court, acquitting the appellant accused of rape, said: The demeanour of PW-2 Aruna, the tears in her eyes, her walking out of the court after looking at the appellant, pricks the

Page 2 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises. We are unable to come to a conclusion that the trial court’s judgment is perverse. For want of legal evidence we will have to set aside the appellant’s conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt.

Forensic truth depends on the ability of a party to a suit or criminal proceeding to persuade the judge to come to the conclusion whether or not something is proved to his satisfaction on the basis of evidence admissible under the law. Black’s Law Dictionary defines “Evidence” in the context of the adversarial proceeding and states: Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.62

Thus, the emphasis is on “inducing belief” not as to truth but “as to their contention”. Though one speaks of something being proved by a party, in a true forensic sense a party can only adduce evidence and proof is determined by the Court, and in that sense all proof, whether of a particular fact or the entire case, is an adjudicatory outcome.63 In other words, parties adduce evidence and the Court decides the “truth”. That is why Jeremy Bentham said: “What is proof? In the most extended signification ..., it means a fact supposed to be true ... “64 The outcome of this process in a Court of law may not necessarily conform to the “real” truth, however desirable it may be that it should so conform. The Scottish Law Commission stated: It is sometimes maintained that the object of leading evidence in a criminal trial is, or should be, the elucidation of the truth. That statement, however, requires considerable qualification. First, the matter to be elucidated is not the whole truth about all the circumstances of the events narrated in the libel, but only the question whether the Crown has proved beyond reasonable doubt that the accused committed the crime charged against him. While a verdict of “guilty” answers that question in the affirmative, a verdict of “not guilty” or “not proven” only means that that question has not been so answered: it is not a determination of the accused’s innocence. And whatever the verdict, it may not reflect the truth .... It is rather a serious attempt to reach a conclusion on the question whether the accused’s guilt has been proved beyond reasonable doubt, .... In fact, however, the criminal trial is not an exercise in which the truth is pursued at all costs.65

Peter Murphy in his Practical Guide to Evidence refers to an anecdote: A frustrated judge in an English adversarial court, after witnesses had produced conflicting accounts, finally asked a barrister, “Am I never to hear the truth?” ‘No, my lord’, replied counsel, ‘merely the evidence.66

Peter Murphy further observes: A judicial trial is not a search to ascertain the ultimate truth of the past events inquired into, but to establish that a version of what occurred has an acceptable probability of being correct. It is in the nature of human experience that it is impossible to ascertain the truth of past events with absolute certainty.67

The main constraints are: 1. Time and cost of litigation that limit the scope of a legal proceeding; 2. In Common Law system, the Courts themselves cannot search for relevant evidence but must reach their verdict solely on the basis of evidence adduced by the parties. 3. Law itself contains rules which exclude relevant evidence for a variety of reasons.68 The basic components of judicial process like principles of natural justice “make a difference” and the outcome can be very unexpected and upsetting. As Megarry, J, memorably stated in John v Rees, [1970] ChD 345, at p 402: As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

The technicalities of the rules of evidence have in fact led some eminent jurists like Bentham,69 Salmond70 and Cross71 to deprecate the subject of law of evidence altogether.72

Page 3 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Some authors define “evidence” in a manner relatable and confined to judicial proceedings. Thus Phipson defines “evidence” as “the testimony, whether oral, documentary or real which may be legally received in order to prove or disprove some fact in dispute”.73 This definition does not concern itself with the value judgment of “finding or establishing the truth” but focuses on (a) what is legally admissible as evidence and (b) the objective of proving or disproving some fact on the basis of that evidence in a Court of law.74 Salmond also says that “one fact is evidence of another when it tends in any degree to render the existence of the other fact probable”.75 1.6.1.1 What is “Proof”? As was discussed already, the term “Proved” is defined in section 3 in terms of Court’s belief and assessment of probability. Proof is a mental process by which one arrives at the conclusion that a fact exists or does not exist on the basis of evidence. Proof is different from mere faith or assumption. Proof depends on certain objective criteria on the basis of which one is persuaded to come to the conclusion that a fact exists. This is sometimes called “objective satisfaction”. Thus, the Supreme Court pointed out: There is no doubt that in any proceeding, judicial or quasi judicial, there is requirement of proof and such requirement cannot be substituted by surmise and conjecture. But proof may be established directly on the basis of the evidence adduced in the proceeding or the allegation of fact may be established by drawing reasonable inferences from other facts established by evidence.76

In contrast to this, “subjective satisfaction” means satisfaction of a person about the existence of something which is based, not on what are called “hard facts”, but merely on his belief. It is like saying that “I believe that something exists because I think it exists”. Thus, one can say very truthfully that he believes, for instance, in the existence of ghosts though he cannot prove their existence. Thus, proof depends on the mental process of assessing and appreciating certain facts or data by a person on the basis of which he is persuaded to arrive at a compelling conclusion. But, however objective one might try to be, the very human process of choice of particular facts as “relevant” and exclusion of certain other facts as “not relevant”, “appreciation” and “assessment” of those facts and arriving at certain “conclusions” involve necessarily and inevitably a degree of subjectivity. In fact, Friedrich Nietzsche, the German philosopher, once said: “There are no facts, only interpretations”.77 Sir James Stephen observed: “Judicial decisions must proceed upon imperfect materials, and must be made at the risk of error”.78 Thus, the human and, hence the subjective, element does not permit of Euclidean certainty that makes one say that two plus two is always four.79 As Taylor80 perceptively observes: None but the mathematical truth is susceptible of that high degree of evidence called demonstration, which excludes all possibility of error. In the investigation of matters of fact such evidence cannot be obtained; and the most that can be said is, that there is no reasonable doubt concerning them.

Echoing the same opinion, the Supreme Court observed: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to the conclusion.81

The Apex Court said: The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of degrees of probability and the quantum of proof.82

It is stated in The Encyclopedia Britannica: Probability which necessarily implies uncertainty, is a consequence of our ignorance.... Thus, if the question were put, Is lead heavier than silver? some persons would think it is, but would not be surprised if they were wrong; others would say it

Page 4 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE is lighter; while to a worker in metals probability would be superseded by certainty.83

It was this relativity and subjectivity of human evaluation and the need for humility that prompted Justice Robert H Jackson to make his famous observation about US Supreme Court in Brown v Allen, 344 US 443 (1953): Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that, if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.84

1.6.2 Definition of Evidence Section 3 of the Evidence Act, 1872 defines “Evidence” as follows: “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 electronic records produced for the inspection of the Court; such documents are called documentary evidence. From the above definition it is clear that evidence “means and includes” two categories: (1) Oral evidence which consists of (a) “statements” (b) made by “witnesses” (c) in the “Court” (d) in relation to (e) “matters of fact” (f) under enquiry; and (2) Documentary evidence which consists of (a) documents (b) including electronic records (c) produced (d) for the inspection of the Court.85 The crucial question is: Is the definition of the term under section 3 an exhaustive one? In Hardeep Singh v Punjab, (2014),86 the Supreme Court has held that “the definition of word “evidence” under the Evidence Act, 1872 is exhaustive” which means that there are no categories other than oral and documentary evidence. However, in Kalyan Kumar Gogoi v Ashutosh Agnihotri, AIR 2011 SC 760, the Supreme Court observed: Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.

But it is clear from the use of the term “includes” in the section that it is only an inclusive definition and not an exhaustive definition of “evidence”. One important kind of evidence that the section does not expressly mention is what is called “material”, “real” or “objects” evidence that refers to things like knives and pistols that may be adduced in evidence. Material evidence is neither oral nor documentary. Sir James Stephen explained the reason for the omission of this category and stated: A third class might be formed of things produced in court, not being documents, such as the instruments with which a crime was committed, or the property to which damage had been done, but this division would introduce needless intricacy into the matter. The reason for distinguishing between oral and documentary evidence is that in many cases the existence of the latter excludes the employment of the former; but the condition of material things, other than documents, is usually proved by oral evidence, so that there is no occasion to distinguish between oral and material evidence.

Then the criticism would be that even documents are also proved by oral evidence. To that Sir Stephen’s reply was: It may be said that in strictness all evidence is oral, as documents or other material things must be identified by oral evidence before the court can take notice of them. It is unnecessary to discuss the justice of this criticism, as the phrase

Page 5 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE ‘documentary evidence’ is not ambiguous, and is convenient and in common use.87

Whatever may be “the needless intricacy” arising out of the mention of the category of material evidence, the fact is that the category would remain in any case. That was why he preferred to refer to material objects in section 60 in the context of the production of objects to which oral evidence relates. James Thayer criticized that “Stephen’s limitation of the term “evidence” to (1) the statements of witnesses and (2) documents, seems too narrow”. Thayer said: When in a controversy between a tailor and his customer, involving the fit of the coat and wears it during the trial; as in Brown v Foster, 113 Mass., at p 13788, a basis of inference is supplied otherwise than by reasoning or by statements, whether oral or written; it seems impossible to deny to this the name of ‘evidence’. It is what Bentham called ‘real evidence,’ –a valuable discrimination when it is limited to that which is presented directly to the senses of the tribunal.89

Paul Kirk90 points out that “physical” evidence has the unique quality of not being amenable to easy misrepresentation. He aptly states: ... physical evidence cannot be wrong; it cannot perjure itself; it cannot be wholly absent. Only in its interpretation can there be error. Only human failure to find, study and understand it can diminish its value.

It is obvious that at the time of drafting of the Evidence Act, 1872, guns and bullets were not in vogue as widely as now, and more modern electronic and other gadgets were unknown as tools and instruments of crime. In the present global crime scenario, material or real evidence cannot be viewed any more merely as the objects or things, on par with paper documents, to which oral evidence relates, but should be treated as an independent third category of evidence because of its critical importance and be brought under the rubric of inclusive definition of “evidence” under section 3. Apart from the above, the chapter on relevancy of the Indian Evidence Act, 1872 declares certain “facts” as relevant under its sections such as “dying declaration” under section 32 (1) and confession of the co-accused under section 30 which do not fall within the scope of the two categories of section 3. Those facts can be relevant only as evidence. The Criminal Procedure Code 1898 also declares that reports of Government experts “may be used as evidence” (section 293), affidavits of formal character “may be read in evidence” (section 296) and statements recorded by a Magistrate (section 164) may be sent to the Magistrate trying the case and so on. Section 14 of the Family Courts Act, 1984, provides: Application of Indian Evidence Act, 1872.- A Family Court may receive as evidence any report statement documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act 1872 (1 of 1872).

Under the above provision Family Court “may receive as evidence”, for instance, reports of experts on DNA profiling “whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872”. In Kunhiraman v Manoj, II (1991) DMC 499, the trial Court called for, received and relied upon a DNA report from CCMB, Hyderabad, confirming paternity and this verdict was affirmed by the Kerala High Court. In Boraiah Alias Shekar v State, 2003 (1) Andh LD 951 : 2003 Cr LJ 1031, Karnataka High Court held: It is clear to us that the words, reading, using, receiving, giving or admitting in evidence cannot but have the same meaning and import .... The phrase “read in evidence” means read as substantive evidence, which is the evidence adduced to prove a fact in issue ...

Hence, evidence is evidence if the Indian Evidence Act, 1872 or the Procedural Codes or other statutes declare certain facts as evidence, and evidence does not lose its intrinsic character whatever may be the degree of its reliability. Though, for instance, section 60 mandates with great repetitive emphasis that oral evidence, “must”, “in all cases”, “whatever” be direct, Indian Evidence Act, 1872 itself provides for many exceptions to that “hear-say rule” by way of admissions, confessions, dying declarations. The distinction between “direct” and “hearsay” oral evidence and “primary” and “secondary” documentary evidence is related not to the definition but based on the Best

Page 6 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Evidence rule that the probative value of evidence of the former in both the categories is considered is higher than the latter. Similarly, the distinction between “substantive” and “corroborative” evidence relates to the use that evidence is put to by the Court but not to the definition of evidence itself. It may be borne in mind that these terms and distinctions are not common parlance usages but part of forensic terminological usage. Some categories which are universally accepted for more than a century like “hearsay” and “circumstantial” evidence do not occur anywhere in the Indian Evidence Act, 1872. Hence, it is submitted, with respect, that a restrictive interpretation of “evidence” in section 3 is unwarranted and counter-productive, and that dying declarations, confessions, admissions, accomplice’s evidence, confession of the co-accused, section 162 and section 164 Cr PC statements should all be considered as species of the “inclusive” definition of “evidence” in section 3. Some of them may be generic but are not non-technical terms.91 Some of them may be relevant and admissible at the threshold level, and some may become admissible on the fulfillment of certain conditions. Legal policy issues of relevancy and admissibility and probative value should not detract from the definitional scope of the term “evidence. Hence, “oral” and “documentary” evidence defined in section 3 should be taken not as the only or exclusive categories of evidence but as typical and inclusive categories. Otherwise, legal fraternity will be left with the untenable option of treating material objects, confessions of accused and a host of other critical evidence as no “evidence” at all within the meaning of section 3. 1.6.3 Substantive and Corroborative Evidence The above important distinction is discussed under sections 145 and 157 in chapter XXIII. 1.6.4 Classification of Evidence Evidence may be classified as follows92:

1.6.4.1 Oral Evidence: Section 59 states that “All facts, except the contents of documents, may be proved by oral evidence” and, as stated above, section 3 defines “oral” evidence as: “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”. The ingredients of this definition are: Oral evidence (a) consists of “statements” (b) made in a Court of law (c) by witnesses “Statements” In Bhogilal Chunilal Pandya v Bombay, AIR 1959 SC 356 : (1959) SCJ 240 : (1959) Cr LJ 389, the Supreme Court, dealing with the meaning of the term “statement” in different provisions of the Indian Evidence Act, 1872 observed: the word statement is not defined in the Act. We have, therefore to go to the dictionary meaning of the word, in order to discover what it means. Assistance may also be taken from the use of the “word statement” in other parts of the Act to discover in what sense it has been used therein.

Based on lexicographical meaning, the Court said that “primary meaning of the word “statement”... is something that is stated” and “another meaning that is given is ‘written or oral communication’”. As section 3 deals with “oral” evidence, the statements of the witnesses have to be by word of mouth. Though there is no doubt that a statement may be made to someone in the sense of a communication that is not its primary meaning. The essence of “statement” is expression of ideas and the essence of “communication” is the intended or actual conveyance of those ideas to somebody. There can be expression without communication; but there cannot be communication without expression. “The word ‘statement’ has been used in a number of sections of the Act in its primary meaning of ‘something that is stated’ and that meaning should be given to it ... “93 As will be seen under section 32 (1), it has been held by the Courts that a statement would amount to a dying declaration irrespective of whether it was communicated to another or not.94 Again, under section 119, in the case of testimony by a “dumb witness”, his signs

Page 7 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE and gestures as well as written replies have been held to be “oral evidence”.95 As under the definition of “oral evidence” in section 3, the statement of the witness in the Court has got to be “oral” and communicated in the open Court, oral dying declaration falls outside its purview as it is not made in the Court, where as deposition of a dumb witness is “deemed” to be oral evidence under section 119. Thus, under section 3 “oral evidence” would mean statements by word of mouth made by witnesses in a Court of law subject to the exception that under section 119 signs and gestures as well as written replies by a witness who is unable to speak are deemed to be oral evidence.96 “Witness” The term witness is not defined anywhere in the Indian Evidence Act, 1872. From the above definition, it is clear that under the Indian Evidence Act, 1872, a witness is a person who is called upon to give evidence in a Court of law. The statements made outside the Court are not strictly oral evidence. The topic of definition of witness is discussed in detail under section 118. (1) Direct and Hearsay Evidence97 Distinction The first classification of oral evidence mentioned above is Direct and Hearsay evidence.98 Section 60 deals with direct evidence and requires that oral evidence about any fact must be given by witnesses who themselves have seen, heard or perceived by other senses (like smell, touch, and taste) and not by those who heard about it from somebody else.99 As the law relating to the hearsay rule is entirely based on the English Common Law, it will be useful to study the vicissitudes that the rule has gone through in England and other Common Law countries. The distinction between hearsay and original evidence was stated by Lord Wilberforce in Ratten v R, [1972] AC 378, p 387 as follows: The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, ie., as establishing some fact narrated by the words.

Section 4 of the New Zealand Evidence Act, 2006 defines “hearsay statement” as meaning “a statement that—(a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents”. In other words, the truthfulness of a statement is sought to be proved through a witness who was not the person who made the statement. For instance, if C has made a statement that he has seen A killing B, C would be the proper person to testify in a Court of law that he made the statement and that what he said is true but if, instead of C, D is called as a witness to prove that C made the statement and that what C said is true, D’s testimony will be hearsay. In fact, Sir James Stephen said: “...the word ‘hearsay’ is nearly, if not quite, equivalent to ‘irrelevant’”.100 As Supreme Court observed, “direct evidence is sometimes referred to as ‘original evidence’ and hearsay evidence is referred to as ‘indirect or derivative evidence’”.101 Kinds of Hearsay (a) Express Hearsay and Implied Hearsay: R v Baldree (2013)—Supreme Court of Canada Sometimes a distinction is made between “express hearsay” and “implied hearsay”: (a) “I am calling Mr X because he sells drugs” (express) and (b) I am calling Mr X because I want to buy drugs from him” (implied) and the import of both the statements is same i.e., Mr X sells drugs. Here, what is sought to be proved is not that a call was, in fact, made, but that Mr X is a drug peddler. Giving this example in its landmark decision on hearsay evidence in R v Baldree,102(2013) the Supreme Court of Canada said that “there is no principled or meaningful distinction” between them and the same exclusionary rules apply equally to both of the out of Court hearsay statements.103 (b) Individual and Composite Hearsay Hearsay is also classified into (a) Individual Hearsay and (b) Composite Hearsay. Where A testifies about B’s statements, it is individual hearsay and where he testifies about what a group of individuals have said, it is composite hearsay.104 Illustration (n) to section 32 is an example of Composite Hearsay and says that the remarks of a crowd of individuals about the libelous character of a caricature are admissible under section 32. See also the discussion under section 32 (8) infra.

Page 8 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Hearsay Rule Sir James Stephen observed that a witness who testifies in a Court of law might be (1) telling the truth, or (2) be mistaken or (3) uttering falsehood, and if he is a direct witness he can be assessed by the judge.105 In R v Bradshaw, 2017 SCC 35, para 19–20, (2017) the Supreme Court of Canada said: The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination. Hearsay is an out-ofcourt statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination.

In R v Youvarajah, 2013 SCC 41, para 18, (2013),the Supreme Court of Canada observed: “Hearsay evidence — an out-of-court statement tendered for the truth of its contents — is presumptively inadmissible” and The law has conventionally favoured the evidence of witnesses who give evidence in court because they can be observed, under oath or affirmation, and their credibility and reliability can be tested by cross-examination.

Reasons for preferring direct evidence Thus, the reasons for preferring direct evidence and rejecting hearsay evidence are: •

Direct evidence is first hand information and is trustworthy whereas hearsay is secondhand and unreliable.

•

Direct evidence is original and hearsay is derivative evidence.

•

Even if the witness giving hearsay is speaking the truth that X told him, X himself may be telling falsehood but as X is not the witness he is not on oath and cannot be cross-examined.

•

Direct witness owns responsibility for what he deposes but the witness giving hearsay passes the buck to the person from whom he derived his information.

•

Oath administered to direct witness carries some sanctity in that he undertakes to speak the truth about what he deposed. A witness giving hearsay can swear only to what some other person told him but cannot vouchsafe for its truth.

•

Direct witness is liable for perjury if he speaks falsehood about what he testified but the witness giving hearsay cannot be held for perjury as pleads ignorance about the truth or otherwise of what he says.

•

While direct witness can be properly cross-examined, witness giving hearsay cannot be, in the nature of the things.106

Given the dangers that hearsay evidence presents, “[t] he fear is that untested hearsay evidence may be afforded more weight than it deserves” and “while all relevant evidence is generally admissible, hearsay is presumptively inadmissible”.107 Hence, between direct and hearsay evidence, law prefers the former and, as a rule, rejects the latter. The Supreme Court of United Kingdom observed in R v Horncastle (Appellants) (on appeal from the Court of Appeal Criminal Division) (2009), [2009] UKSC 14: Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony... There were two principal reasons for excluding hearsay evidence. The first was that it was potentially unreliable. It might even be fabricated by the witness giving evidence of what he alleged he had been told by another.108 Quite apart from this, the weight to be given to such evidence was less easy to appraise than that of evidence delivered by a witness face to face with the defendant and subject to testing by cross-examination.109

Page 9 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE In the decision in R v Riat, [2012] EWCA Crim 1509, the Court of Appeals in England clarified the Horncastle decision and held that Horncastle did not lay down any general rule that hearsay evidence must be shown to be reliable before it can be admitted but the Court has to scrutinize, as per the provisions of Criminal Justice Act (CJA), 2003, whether, inter alia, “Is there a specific “interests of justice” test at the admissibility stage?” The Best Evidence Rule: Court—Sentinel on the qui vive The hoary principle which is the hub and fulcrum of the Law of Evidence is that the best possible evidence only must be considered by the Courts in the adjudication of disputes. This principle contains two different but related notions: 1. Only those facts with high probative value should be considered as “best” evidence; and 2. Those facts with high probative value must be proved by the “best” possible method. The first principle relates to relevancy of facts and the second principle refers to mode of proof of those relevant facts. These two notions that ought to be kept distinct and separate are often conflated in the context of the Best Evidence rule. Chief Justice Holt propounded the Best Evidence rule in Ford v Hopkins, 1 Salk 283 (1701), and stated: “The best proof that the nature of the thing will afford only is required”. Sir James Stephen stated: “The rule which requires that the best evidence of which a fact is susceptible should be given, is the most distinct of the rules ... “110 While Sir Stephen was speaking of best “evidence”, Holt CJ was speaking of best “proof”. The Supreme Court of India observed that “the idea of best evidence is implicit in the Evidence Act”111as section 60 requires oral evidence to be direct in all cases whatever, and section 64 requires that documents must be proved, as a rule, by primary evidence. The Supreme Court of United Kingdom observed: Jury trials are presided over by a judge who acts as gatekeeper as to what is and what is not permitted to be placed before the jury as evidence. This is an important safeguard for the defendant. The basic principle is that only the ‘best’ evidence is placed before the jury, that is, the evidence that is most likely to be reliable.112

Phipson says: The maxim that ‘the best evidence must be given of which the nature of the case permits’ has often been regarded as expressing the great fundamental principle upon which the law of evidence depends.113

The principle means that the evidence with highest intrinsic probative value should always be preferred. As applied to oral evidence, the principle would mean that direct evidence should be preferred to hearsay, and as applied to documentary evidence the principle would mean that primary evidence should be preferred to secondary evidence. The Best Evidence Rule is also applied in the context of relevancy of facts so as to require that law of evidence should pick up only those logically relevant facts with high probative value and declare them as legally relevant. The head note of section 136 of the Indian Evidence Act, 1872 mandates: “Judge to decide as to admissibility of evidence” and makes the Court the gate-keeper---the sentinel on the qui vive. “Demise” of Best Evidence rule in England? However, the rule excluding hearsay evidence has been criticized by legal fraternity on the ground that the rule is too strict and inflexible, and excludes hearsay evidence even if it is cogent and reliable.114 This proposition requires elucidation: 1. The Best Evidence rule ensures that only those facts which have high probative value are declared as relevant. 2. Facts relevant under (1) above are those (a) which are not barred by the exclusionary rules and (b) which come under the exceptions to the hearsay rule as applied to both oral and documentary evidence. 3. The Best Evidence rule also ensures that the relevant facts are proved by the best method possible—by direct oral evidence and primary documentary evidence. 4. The emerging fourth dimension to the Best Evidence rule is that there may be facts which are hearsay according to the above traditional rules but which according to the Court trying the case have a degree of reliability that the Court ought to take into consideration to secure ends of justice in the case.

Page 10 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE In Myers v DPP, [1965] AC 1001, at pp 1019–20 Lord Reid observed that the hearsay rule was “absurdly technical” and that “it is difficult to make any general statement about the law of hearsay which is entirely accurate”. In the landmark judgment in R v Youvarajah, 2013 SCC 41, paras 20, 21, the Supreme Court of Canada observed: Over time, however, the law has recognized that in certain circumstances, it may be safe to rely on out-of-court statements for the truth of their contents. Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made (for example, dying declarations and declarations that are adverse in interest). In addition to the traditional exceptions, however, this Court developed a principled approach that permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of necessity and reliability. This is a flexible case-by-case examination.

In R v Governor of Pentonville Prison, ex parte Osman, [1990] 1 WLR 277, the Court of Appeal of England said that it would be “more than happy to say goodbye to the best evidence rule” and that though “the little loved best evidence rule has been dying for some time the recent authorities suggest that it is not quite dead”. In R v Wayte, (1983) 76 Cr App Rep 110, pp 116–7, Beldam J, pointed out that “it is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not” and that “the party has the original” meant only “a party who has the original of the document with him in court, or could have it in court without any difficulty”. It is said that “the best evidence rule is ... now applied so rarely as to be virtually extinct”115 and that “even in its heyday, the best evidence rule was not an absolute rule; its application depended on the particular circumstances of each case” and that it “is no more than a rule of practice to the effect that the court would attach no weight to secondary evidence of the contents of a document unless the party seeking to adduce such evidence had first accounted to the satisfaction of the court for the non-production of the document itself”.116 In R v Bradshaw, 2017 SCC 35, para 23 a landmark decision, the Supreme Court of Canada said: Eventually, a more flexible approach to hearsay developed through the jurisprudence. Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities.

The Court pointed out: Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance.117 The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not ‘state [d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination’. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying.118

UK “Abolishes” Common Law Rules of Best Evidence It will be useful to examine the extent to which the Common Law relating to Best Evidence Rules is abolished in England with regard to: 1. Oral evidence in (A) civil and (B) criminal proceedings 2. Documentary evidence in (A) civil and (B) criminal proceedings (1) Oral Evidence---Common Law Hearsay Rule During the last two decades, the legal fraternity in England expressed the opinion that it is time to abolish the

Page 11 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Common Law rule of Hearsay. It is said that while, on the one hand, the rule barred hearsay evidence, too many exceptions have come to be grafted to the rule making it needlessly complex and cumbersome. In Uentouris v Mountain (No 2), [1992] 1 WLR 887, p 899 Balcombe LJ, observed: “...the modern tendency in civil proceedings is to admit all relevant evidence and the judge should be trusted to give only proper weight to evidence which is not the best evidence”. In 1991, the Law Commission of England recommended the abolition of the rule excluding hearsay but subject to certain safeguards. It was thought that hearsay rule should be related not to admissibility but to the weight to be given to evidence.119 The Law Commission in 1993 mentioned “...the first guiding principle which we have adopted i.e., that all relevant evidence should be admissible unless there is good reason for it to be treated as inadmissible” and “...we believe that the fact that it is hearsay should no longer be a ground for making it prima facie inadmissible”.120 Hence, the Law Commission recommended the repeal of Pt I of the Civil Evidence Act, 1968 which dealt with hearsay rules.121 The proposed repeal was accordingly affected and the Civil Evidence Act, 1995 was passed. (A) Civil Proceedings Section 1 of Civil Evidence Act, 1995 provides: (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay. Clause (2) of section 1 lays down: (2) In this Act— (a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and (b) references to hearsay include hearsay of whatever degree. (3) Nothing in this Act affects the admissibility of evidence admissible apart from this section. (4) The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section. In section 1 (2) (b) above “hearsay of whatever degree” means that even hearsay of hearsay or what is called “second hand hearsay” is now admissible: For instance, A told me that B told him that he killed C. Section 7 lays down that the Common Law hearsay rules relating to public documents, published works of a public nature and public records, and good and bad character, reputation or family tradition are preserved. One important factor of this reform of Common Law hearsay rules is that the Civil Evidence Act, 1995 shifts the focus from the admissibility of evidence to its reliability and, by so doing, gives greater flexibility to the parties and confers greater discretion on the Courts in admitting hearsay and the weight to be given to it. Consequently, five years later, in Masquerade Music Ltd v Springsteen, [2001] EWCA Civ 513, para 85 Lord Parker dealing with a case of proof of documents by secondary evidence, announced the demise of the Best Evidence rule in England, stated: In my judgment, the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired.

(B) Criminal Proceedings122 The Criminal Justice Act, 2003 adopts an approach different from the Civil Evidence Act, 1995. The latter Act states the general principle as “in civil proceedings evidence shall not be excluded on the ground that it is hearsay” and then proceeds to state the Common Law rules which are “preserved”. Section 118 of the Criminal Justice Act, 2003 of UK dealing with “Preservation of certain common law categories of admissibility” provides in clause (2) that “with the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished”. Section 114 of the Criminal Justice Act, 2003 contains an overriding provision and states: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any

Page 12 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE matter stated if, but only if: (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible.

It is interesting to note that under section 114 hearsay evidence can be admitted if “all parties to the proceedings agree” or “the court is satisfied that it is in the interests of justice”—in other words, party autonomy or Court’s discretion. Section 118 states in clause (1) that “the following rules of law are preserved” and mentions the following categories: 1. Public information etc 2. Reputation as to character123 3. Reputation or family tradition 4. Res gestae124 5. Confessions etc 6. Admissions by agents etc 7. Common enterprise125 8. Expert evidence Traditionally, the accused is granted various procedural safeguards in UK and, hence, while the Criminal Justice Act, 2003 bars all hearsay except in some cases, the Civil Evidence Act, 1995 permits all hearsay except the barring rules which are preserved. Appraisal The pronouncement that the Common Law rules of hearsay relating to oral evidence are dead and buried appears to be rather hasty. In the decision in R v Riat, [2012] EWCA Crim 1509, para 3 (2012) Lord Hughes made the legal position very clear: The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness’ interview, that person cannot be asked a single exploratory or challenging question about what is said. From the point of view of a defendant, the loss of the ability to confront one’s accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe.

In R v Ibrahim, [2012] EWCA Crim 837, Aikens LJ laid down four tests for admitting hearsay statements: (a) was there justification for admitting the untested hearsay (b) how important were the statements (c) how demonstrably reliable were they and (d) were the counterbalancing measures inherent in common law properly applied to ensure a fair trial.126

In the case of Regina v Shabir, [2012] EWCA Crim 25 64 the Court of Appeal (Crim), after referring to the above decisions, observed that under section 116 (2)(e) of CJA where the witness fails to give evidence because of fear, and hearsay evidence of his statement is sought to be adduced, “a causative link between the fear and the failure or refusal to give evidence must be proved” and “the more central the evidence that is sought to be admitted as

Page 13 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay”.127 The traditional rule excluding prior inconsistent out-of-Court statements for proving the truth of what they state was altered in Canada in R v B (KG), [1993] 1 SCR 740, to conform with the evolving “principled approach” to hearsay. On an exceptional basis, a prior inconsistent statement is admissible, not only for corroboration, but also for the truth of its contents, provided the threshold criteria of necessity and reliability are established.128 In R v Baldree, 2013 SCC 35, para 6, the Supreme Court of Canada said: “the indicia of necessity and reliability...might otherwise render it admissible”. Documentary Evidence---Common Law Rule (A) Civil Proceedings As in the case of oral evidence, the departure from the Common Law rule of Primary Evidence as to documentary evidence is more extensive in the case of civil proceedings. Section 8 of the UK Civil Evidence Act, 1995 provides: Proof of statements contained in documents. (1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved— (a) by the production of that document, or (b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve. (2) It is immaterial for this purpose how many removes there are between a copy and the original It is evident from the above provision that it radically alters the Best Evidence rule as applicable to documentary evidence and gives a go-by to the Primary Evidence rule. Under section 8: (a) it is not mandatory that the contents of the document should be proved by primary evidence; (b) even if the original is in existence, the document can be proved by its copy properly authenticated; and (c) the copy need not be copied from the original and it can be a copy of the copy of the copy and so on. Section 51 of the Australian Evidence Act, 2008 also has done away with the Common Law rule requiring the production of the original document. Section 51 of the Australian Evidence Act, 2008, states in its heading that “Original document rule abolished”, and expressly provides: The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.

In Hong Kong and Singapore also, where the Evidence Acts are substantially based on the Indian Evidence Act, the Courts appear to be moving towards steady erosion of the Best Evidence rule in its application to the documentary evidence. In Tang Yiu Hong Eric v HKSAR, [2006] HKCU 92 the Hong Kong Court of Final Appeal observed that “[f] ar from the best evidence rule being an established norm ... the very existence of that rule is much in doubt”. In Jet Holding Ltd v Cooper Cameron (Singapore) Pvt Ltd, [2006] 3 SLR 769,129 the Court of Appeal of Singapore has held that “whilst ... a party seeking to introduce documents into evidence ought to comply with the provisions in the Evidence Act, if these documents are in fact marked and admitted into evidence without that party in fact satisfying the requirements in the Evidence Act and where there has been no objection taken by the other party at that particular point in time, then that other party cannot object to the admission of the said documents later”. (A) Criminal Proceedings Section 133 of Criminal Justice Act, 2003, virtually reproduces section of Civil Evidence Act quoted above and provides: Proof of statements in documents

Page 14 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE Where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either— (a) the document, or (b) (whether or not the document exists) a copy of the document or of the material part of it, authenticated in whatever way the court may approve. In Masquerade Music Ltd v Springsteen, [2001] EWCA Civ 513, para 85 Lord Parker dealing with a case of proof of documents by secondary evidence, observed: ...there is in my judgment a parallel to be drawn between the gradual erosion and eventual abolition of the hearsay rule in civil proceedings and the decline of the best evidence rule. To my mind, the abolition of the hearsay rule in civil proceedings effected by the Civil Evidence Act 1995 is as clear a reflection as one could find of the modern tendency to admit all relevant evidence ... 130

Lord Parker’s parallel between the erosion of hearsay rule under the Civil Evidence Act and of the primary evidence rule as applied to documentary evidence implied that the Parliament and the Courts in England are inclined to abandon the Best Evidence rule in its application to criminal as well as civil proceedings, and to oral as well as documentary evidence. In Garton v Hunter, [1969] 1 All ER 451 : [1969] 2 QB 37, p 44, Lord Denning said: “That old rule has gone by the board long ago ... Nowadays we do not confine ourselves to the best evidence”. In Kajala v Noble, (1982) 75 Cr App Rep 149, p 152 Ackner LJ, observed: The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands, one must produce it; nowadays we do not confine ourselves to the best evidence. The goodness or badness of it goes only to weight, and not admissibility.131

It can be seen from the dicta of Lord Parker quoted above that the English approach to relevancy is in favour of “the modern tendency to admit all relevant evidence”.132 The difference between this view and the view adopted by Sir James Stephen in the Indian Evidence Act is that the Act treats all facts as irrelevant unless they are expressly permitted.133 In the light of the statutory changes and the Courts’ pronouncements, it is clear that the Parliament and Courts in England would prefer to leave the questions of weight and credibility of mode of proof of evidence adduced by one party in an adversarial proceeding to the objections to be raised by the other party, and if the other party accepts or does not object, it can be treated as acquiescence or waiver. This approach is evident from Singapore Court’s dictum quoted above. Thus, the paradigm shift occurred when, as applied to documentary evidence, the Courts shifted the conceptual emphasis of the best evidence rule from whether the secondary evidence is relevant and admissible to whether it is reliable. Again, as applied to oral evidence, the question is not any more whether hearsay is relevant but whether a particular piece of hearsay is reliable. In other words, if evidence is reliable, it ought to be relevant. This shift allocates to judicial discretion exercisable on a case-by-case basis of grafting exceptions to hearsay rule which are not predetermined by the legislature and which the parties would not know beforehand. (2) Direct and Circumstantial Evidence Suppose, A killed B by shooting him and the prosecution witnesses who are deposing about the murder are the following: a. C says he saw A killing B. b. D says he did not see A killing B but he saw both of them quarrel about money on the day before the murder and A threatened to kill B one day. c. E says that he saw A run away from B’s house with a gun in hand on the day of murder. d. F, the doctor says that he conducted an autopsy or postmortem on A’s body and he found that B died of gunshot wounds.

Page 15 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE e. G, the ballistics expert, says that he test-fired the gun used in the crime and the markings on the bullet were similar to the markings on the bullet recovered from A’s body. Hence, the same gun was used in the murder. f.

H, the fingerprints expert says that he compared the fingerprints of A with those recovered from the gun, and they are identical.

In the above case, C has seen the main event of A killing B and his evidence is called direct evidence. If the court considers the witness trustworthy, the Court can straight away arrive at the decision that A is guilty. None of the other witnesses have seen A killing B and, hence, they are not giving direct evidence. They are all speaking about the circumstances in which B was killed. D is talking about the quarrel between A and B which proves the motive for the offence. E’s evidence shows the suspicious conduct of A running away with a gun in hand. F, the doctor’s evidence establishes the cause of the death and G’s evidence seeks to prove that A’s gun was used in the murder. H, the fingerprints expert, has established that A was the man who used the gun against B. If the Court considers these witnesses as trustworthy, the Court can draw the necessary logical inference that A was guilty. Circumstantial evidence may take the form of oral or documentary evidence (including admissible hearsay) or real or material evidence.134 While direct evidence does not require any inference to be drawn, circumstantial evidence, on the other hand, needs interpretation and logical construction of events.135 In Shepherd v The Queen, (1990) 170 CLR 573 : 97 ALR 161 : 51 A Crim R 181 (per Dawson J), it was said that: Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.136

In the landmark judgment in R v Villaroman,137 the Supreme Court of Canada dealt with some pertinent issue relating to direct and circumstantial evidence, reasonable doubt and burden of proof. The Court referred to the examples given in Model Jury Instructions prepared by the National Committee on Jury Instructions of the Canadian Judicial Council. Instructions (2) and (3) are as follows: •

Usually, witnesses tell us what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence.

•

Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.138

Then, the Court pointed out: An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence.... the risk that the jury will “fill in the blanks” or “jump to conclusions”.139

The Court proceeded to state: It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.140 However, when assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt .... “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation .... Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting

Page 16 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE an inference other than that the accused is guilty.141

Which is Preferable? It was mentioned above that between direct and hearsay evidence, the law prefers direct evidence as it is firsthand and intrinsically more reliable. Then, between direct and circumstantial evidence, what should be preferred? Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum.142 Jeremy Bentham observed: “Abstractly considered, it cannot be denied that circumstantial is inferior to direct evidence. Direct evidence requires no inference; circumstantial evidence can exist only by inferences, and there is scarcely one which is not erroneous”.143 As Phipson aptly points out, “the superiority of the former is that it contains at most one source of error, fallibility of assertion, while the latter has in addition, fallibility of inference”.144 In other words, direct evidence may be unreliable for two reasons: (a) the witness may be mistaken in his perceptions and (b) the witness may be untruthful. The circumstantial evidence suffers from not only those two deficiencies on the part of the witness but also from the additional defect of faulty inferences on the part of the Court.145 As William Willis observed, “there is no apparent necessary connection between the facts and the inference; the facts may be true and the inference erroneous”.146 Whatever may be the relative intrinsic merits, it is obvious that both direct and circumstantial evidence are to be looked into and there is no automatic preference for one as against the other. In the above example of A shooting and killing B, C’s evidence, even if truthful, that he saw A killing B only proves the event of A shooting and killing B but not the nature of the offence. There are any number of possibilities regarding the nature of the offence depending on the actual circumstances. •

Was A an infant below the age of 7 years? (No offence--Excuse)

•

Was A acting in self-defense? (No offence--justification)

•

Was A insane? (No offence--excuse)

•

Was A acting under grave and sudden provocation from B? (Excuse—“Diminished Responsibility” for Culpable Homicide not amounting to murder)

•

Did A kill B with latter’s consent? (Excuse--Culpable Homicide not amounting to murder)

•

And so on.

So, the direct evidence of C that he saw A killing B does not lead ipso facto to any definite and final conclusion regarding the actual offence committed. It is the circumstantial evidence which throws light on the offence committed. Without the relevant circumstantial evidence it is often impossible to state what offence has been committed merely through direct evidence. Thus, as has been aptly stated, “Circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused”.147 The Supreme Court has held that circumstantial evidence, if cogent and consistent, can form the sole basis for conviction.148 Result Crimes and Conduct Crimes—Relevance of Circumstantial Evidence In modern criminal law, a distinction is made between “result crimes” and “conduct crimes”. A result offense is an offense of which a result is an element of the offense: throwing a stone is not an offence but hitting somebody with it is an offence. A conduct offense occurs where the conduct at issue is per se an offense and its consequence is not a necessary component. Perjury is an example of conduct offence i.e., lying under an oath is an offence irrespective of whether it is believed or whether it has caused any loss to another person. Australian Criminal Code, Schedule, section 4 (1) states: (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. Section 4 (2) of the Code defines “conduct” as meaning “an act, an omission to perform an act or a state of affairs”. An example of “state of affairs” is that drinking is not an offence and driving is not an offence but drunken driving is an offence irrespective of whether injury is caused to anybody.149 Here the offence consists not of “doing” but of “being”.150 Hence, the circumstances in which the act is committed constitute an important component of the offence. “Witnesses may lie but circumstances do not”? However, it is sometimes said that circumstantial evidence is preferable to direct evidence as “witnesses may lie but circumstances do not”. Baron Parke observed: “Circumstantial evidence, if cogent and properly let in is of better

Page 17 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE probative value than direct evidence, for any scheming witnesses might concoct a well-knit story”.151 Salmond says: “it is usually more difficult to fabricate a convincing chain of circumstance than to utter a direct lie”.152 The argument here is that when C says in our illustration above that he saw A killing B, he might be lying. But, the circumstances of B dying of gunshot wounds, that it was A’s gun that was used in killing B, that it was A who used the gun, cannot lie as they are all “hard” facts of bullet, gun, fingerprints. While it appears to be so superficially, actually the socalled hard facts also reach the Court room through witnesses like D,E,F,G and H, and if A, the direct witness can lie, so also the witnesses who are deposing as to the circumstances. As Sir James Fitzjames Stephen observed: “It may be said that in strictness all evidence is oral, as documents or other material things must be identified by oral evidence before the court can take notice of them”.153 In Sarbir Singh v Punjab, 1993 Supp (3) SCC 41, the Supreme Court observed: It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances.

Sometimes the circumstantial evidence can lead to very misleading and disastrous conclusions. In an oft-quoted case,154 T, a housemaid was working with a family, and on a Sunday morning the whole family except T went to the church. The butcher who was regularly supplying meat to the family sent his assistant to deliver some veal at their home. The butcher, after delivering the meat, did not go away and instead he stole a cabinet consisting of jewelry and expensive gold coins and hid himself in the garret (attic) when T was upstairs. Unawares that the butcher was present in the room, T undressed herself and said to herself looking at the mirror; “Ah, what a creature is a naked woman!” The butcher heard that comment and quietly slipped away from the house with the stolen goods. The robbery was reported to the police and T told them that nobody had entered or gone out of the house during the absence of the family at the church. As in any criminal case the key elements are motive and exclusive opportunity, the police arrested T and she was finally found guilty and served out her sentence of imprisonment. Later, when she was going through the market, the butcher tapped on her shoulder and said “Ah, what a creature is a naked woman!” T was taken aback and suddenly remembered that she made that comment to herself on the day of robbery, and then reported the matter to the police. The butcher was arrested and confessed to his guilt. Thus, the true culprit was finally found but only after the maidservant served the sentence for an offence which she never committed. Consequently, the witnesses who depose about the circumstances may be mistaken or lying, and, even if the witnesses are right and truthful, the Court that is interpreting the circumstances might draw wrong inferences from them. That was why Baron Alderson sounded a note of warning in Reg v Hodge, (1838) 2 Lewin 227 about the tricks that human mind can play in construing circumstances. He said: The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is waiting to take got granted, some facts consistent with its previous theories and necessarily to render them to complete.

Hence, there cannot be any a priori preference between direct and circumstantial evidence and as, Phipson says, “the two forms are equally admissible...both forms admit of every degree of cogency from the lowest to the highest”.155 Two Meanings of “Direct” The word “direct” occurs in both the classifications of (i) direct and hearsay and (ii) direct and circumstantial evidence. The word “direct” is used in the first sense in section 60, but the term “hearsay”156 in the first classification and the terms “direct” and “circumstantial” in the second classification do not occur anywhere in the Evidence Act. Sir James Fitzjames Stephen observes: But ‘circumstantial evidence’ usually means a fact, from which some other fact is inferred, whereas ‘direct evidence’ means testimony given by a man as to what he has himself perceived by his senses. It would be correct to say that circumstantial evidence must be proved by direct evidence--- a clumsy mode of expression, which is in itself a mark of confusion of thought.157

Page 18 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE It is respectfully submitted that the confusion arose out of the difference between the uses of the term “direct” in the two classifications. •

Ernest Cockle points out that “the distinction between “direct” and “circumstantial” refers to the facts offered in evidence; that between “direct” and “hearsay” refers to the mode of proving such facts”.158

•

Phipson159 points out that direct evidence seeks to prove the factum probandum or “facts in issue” whereas the circumstantial evidence goes to prove facta probantia or relevant facts.160

James Fitzjames Stephen observes: If the distinction is that direct evidence establishes a fact in issue, whereas circumstantial evidence establishes a collateral fact, evidence is classified, not with reference to its essential qualities, but with reference to the use to which it is put; as if paper were to be defined, not by reference to its component elements, but as being used for writing or printing....Evidence, therefore, should be defined, not with reference to the nature of the fact which it is to prove, but with reference to its own nature.161

The distinction can be looked at from a different perspective. •

In the first sense (Direct-Hearsay), the term “direct” answers the question: who saw? If the witness says “I saw”, it is direct and if he says “I did not see, but X told me”, it is hearsay. Here, the focus is on by what means or mode the fact in issue or relevant facts are sought to be proved.

•

In the second sense (Direct-Circumstantial), the term “direct” answers the question: what did you see? If the witness says “I saw A killing B”, it is direct, and if he says “I saw the circumstances in which B died”, it is circumstantial evidence. Thus, this distinction is based on what kind of facts are sought to be proved and this was what Cockle was referring to above. Thus, (a) whether it was A who killed B is the fact in issue and (b) what were the circumstances in which A killed B relates to the relevant facts. This was the aspect that Phipson also was emphasizing. Here, both (a) and (b) can be proved by direct or circumstantial evidence.

•

A witness can go to the second question only if he answers the first question by saying “I saw”. If he says he did not see, then he is giving hearsay and he will not be allowed, as a rule, to proceed further. If he says “I saw”, then, the next question is: what did you see? If he says “I saw A killing B”, he is giving “direct” evidence in the second sense, and if he says “I saw A and B quarrel with each other on the previous day”, he is giving circumstantial evidence.

•

The first classification is based on the question “who saw?” and the second classification is based on the question “what did you see?”

•

So, in the first sense, the evidence has got to be direct in every case but in the second sense, the evidence could be direct or circumstantial. In other words, only a witness who has himself seen, heard or perceived by his senses (direct evidence, in the first sense) can give direct or circumstantial evidence in the second sense. Whether it is direct or circumstantial evidence, the witness who is deposing has got to give direct evidence in the first sense i.e., he himself must have seen the main event or the circumstances surrounding it.

Proof of Corpus Delicti The words corpus delicti mean “body of crime” or the dead body. Sir Mathew Hale, the renowned Lord Chief Justice, stated the older rule: “I would never convict a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead”.162 However, as pointed out in Lakshmi v State of UP, (2002) 7 SCC 198, “Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under section 302 IPC, 1860. This, however, is not an inflexible rule”. In Rama Nand v State of HP, AIR 1981 SC 738 the Supreme Court observed: This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead-body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead-body is impossible. A blind adherence to this old “body”

Page 19 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim.

In Mani Kumar Thapa v Sikkim, AIR 2002 SC 2920, the Court held that “in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti”. In Prithipal Singh v Punjab, (2012) 1 SCC 10, the Apex Court said: “The corpus delicti in a murder case has two components - death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence”.163 In Ramjee Rai v Bihar, 2006 (8) Scale 440 the Court observed: “It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body”.164 It was held that in the event of murder of an abducted person, it would not be necessary to prove the corpus delicti, and an inference of murder can safely be drawn by direct or presumptive evidence.165 Circumstantial Evidence—Tests for Reliability As mentioned above, circumstantial evidence is as important as the direct evidence and there is no preference inter se, but, unlike direct evidence, circumstantial evidence requires logical, cogent and sequential arrangement of facts and their proper interpretation. In most cases, either the direct evidence is not available at all or is insufficient to found a conviction on. The circumstantial evidence sometimes plays a secondary and auxiliary role of proper corroboration of direct evidence as in the case of forensic evidence substantiating the ocular evidence. But, often, circumstantial evidence plays the primary role where the direct evidence is absent or too meager. The Courts have repeatedly held that circumstantial evidence can be the sole basis for a verdict if the evidence is reliable. Then, what are the tests that the courts have laid down to determine the reliability of such evidence? In Hanumant Govind Nargundkar v State of MP, 1952 SCR 1091,166 Mahajan, J, speaking for the Court observed: It is well to remember that in cases where the 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, 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 above decision was characterized by the Apex Court in Sharad Birdhi Chand Sarda v Maharashtra, 1984 (4) SCC 116, as “the locus classicus” and “the most fundamental and basic decision of this Court” on the subject. The Court held in Sharad that “five golden principles... constitute the panchsheel of the proof of a case based on circumstantial evidence” and they were: (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 hypothesis 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.167 In KV Chacko v Kerala, 2001 (9) SCC 277, para 5, the Court held: The law regarding basing a conviction by the courts on circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three 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 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

Page 20 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE accused and none else.168

Lord Simon said in DPP v Kilbourne, (1973) AC 729, p 758 (HL), that circumstantial evidence “works by cumulatively, in geometrical progression, eliminating other possibilities”. In the case of Palanisamy v TN, (2008) 3 SCC 100, the Supreme Court, relying on a catena of its own earlier decisions, held that a conviction can safely be based on circumstantial evidence provided it satisfies the following tests: (1) All the circumstances forming a chain of events must be fully established and no link in the chain should be found missing. It should be like a jigsaw puzzle whose pieces are correctly put in place.. (2) The circumstantial evidence must be consistent with the hypothesis of the guilt only of the accused and of none others. (3) It must be of conclusive nature. (4) It should be inconsistent with the innocence of the accused. (5) It should exclude every other hypothesis except the guilt of the accused. (6) The corpus delicti (dead body of the victim) need not be proved but the fact of death must be proved in a murder case.169 The Supreme Court observed: The Courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof ... there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions.170

The Supreme Court has held that: It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved.171

1.6.4.2 Documentary Evidence: As seen above, section 3 defines documentary evidence as “All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence”. “Document” Section 3 defines document as: 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.172 Illustrations: A writing173 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. Thus, the definition includes recording of “any matter” upon “any substance” and, thus, covers not only the paper-

Page 21 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE based documents but also lithographs, stone inscriptions and photographs as stated in the illustrations to the section. Currency notes174 and even tattooed skin has been held to fall within the definition of document. As the Court said in R v Daye, [1908] 2 KB 333, p 340, “there is a document whenever there is writing or printing capable of being read, no matter what the material may be upon which it is impressed or inscribed”. Definition of “evidence” in section 3, referred to above, states that documentary evidence includes “electronic records”175 and this was added to the Indian Evidence Act, 1872 by way of amendment by the Information Technology Act, 2000 (IT Act, 2000).176 Hence, floppies, CDs, DVDs, hard-discs and satellite images can be treated as documents.177 Primary and Secondary Evidence Documentary Evidence is classified into primary and secondary evidence. Section 62 of the Indian Evidence Act, 1872 says that primary evidence means the “document itself” or what is called the “original” document. Section 63 defines “Secondary Evidence” and includes in its scope, inter alia, typed copies, Xerox copies of the original document. Though section 61 says that “the contents of documents may be proved either by primary or secondary evidence”, section 64 lays down the mandatory rule that “documents must be proved by primary evidence except in the cases hereinafter mentioned”.178 Thus, between primary and secondary evidence, the Evidence Act prefers the original document, as any subsequent duplication of the original through human intervention is liable to errors or tampering. 1.6.4.3 Material Evidence After Oral and Documentary evidence, the third classification is that of material evidence. Material evidence is also sometime referred to as Objects or Real Evidence and means material objects like knives, guns, bullets adduced as evidence. Section 60 of the Indian Evidence Act, 1872 states: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

When the material objects (MO) are produced in the Court, they are marked as MO 1, MO 2 and so on.179

52 Taylor says that proof refers to the “effect” of evidence than evidence itself. See, Pitt Taylor, A Treatise on the Law of Evidence, 11th Edn, Joseph Bridges Mathews and George Frederick Spear, eds, vol 1 (London, 1920), p 1. 53 See for a detailed discussion of the term “evidence”, Hardeep Singh v State of Punjab, (2014) 2 SCC (Cri) 86, paras 55–60. 54 See, for instance, William A Rutter, Evidence, Gilbert Law Series, 10th Edn (Gardena, California, 1977), p 1. 55 Taylor, n 45 above. 56 R v Speed, [2013] EWCA Crim 1650, para 11. 57 This, of course, does not mean that legally the doubts regarding the guilt should persist and the accused should be denied the legal benefits of his acquittal. In Sekanina v Austria, (1993) 17 EHRR 221, 235, para 30, where the Regional Court refused the Applicant’s plea for compensation for unlawful detention after his acquittal by itself, the European Court of Human Rights observed: “the voicing of suspicions regarding an accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final.” 58 Union Territory Chandigarh v Pradeep Kumar, SLPC No. 23855/2016, decided on 15 November 2016 (SC). 59 Ho Hock Lai, A Philosophy of Evidence Law: Justice in Search for Truth, (Oxford University Press, 2008, p 5. 60 In Latin “forum” means Court and “forensic” means relating to Court. 61 K Venkateshwarlu v AP, AIR 2012 SC 2955 : 2012 Cr LJ 4388 : 2012 (7) Scale 397. 62 Henry Campbell Black, Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 4th Edn, (St Paul, Minn, 1968), p 656. Also, State through Superintendent of Police, CBI/SIT v Nalini, (1999) 5 SCC 253.

Page 22 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE 63 Ho Hock Lai says: “if by ‘proof’ we mean the proof of facts; it was, rather, the adjudication outcome”. Ho Hock Lai, A Philosophy of Evidence Law: Justice in Search for Truth, (Oxford University Press, 2008), p 5. (Emphasis in the original). 64 Jeremy Bentham, A Treatise on Judicial Evidence, Extracted from the Manuscripts of Jeremy Bentham, Esq. by M. Dupont (London, 1825), p 8. (Emphasis added.) 65 Scottish Law Commission, Evidence Report on Corroboration, Hearsay, and Related Matters in Civil Procedure (Report No 100, 1986), p 7, para 2, 1–15. 66 Quoted in “Accuser or Inquisitor---In Search of Truth”, 4E8D9938-2790-4A59-B148-843C41FEF3B2_ ACCUSERORINQUISITOR-final (Last accessed in April 2019). Peter Murphy’s Practical Guide to Evidence was later published as Evidence referred to in Pitt Taylor, A Treatise on the Law of Evidence, 11th Edn, Joseph Bridges Mathews and George Frederick Spear, eds, vol 1 (London, 1920), p 1. 67 Peter Murphy, Murphy on Evidence (Oxford, 2008), p 3. 68 Adrian Keane and Paul McKeown, The Modern Law of Evidence, 9th Edn, (Oxford, 2012), Introduction, p 1ff. 69 John v Rees, [1970] ChD 345, at p 402. 70 Salmond, a former judge of the Supreme Court of New Zealand, says law of evidence is “one of the last refuges of legal formalism”. John W Salmond, Jurisprudence or the Theory of the Law (London: Stevens & Haynes, (1902)), p 597. 71 In September 1972, during a heated debate on reform of criminal evidence, Rupert Cross reportedly said: “I am working for the day that my subject is abolished’. William Twining, “Address to Evidencers”, Secton Hall Law Review, (2008), 38, 879–883, p 881. Charles Dickens famously said: “‘The law’, they agree, ‘is an ass’”. Oliver Twist, (2000), Ware, Wordsworth Editions, p 217. 72 But as Twining aptly says: “The equation of the subject with the rules of evidence was just the kind of rule-centered, doctrinal approach to law ... So the starting-point for inquiry was: what would one study about evidence in law if there were no rules?”. 73 Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 2. 74 Best also defines evidence as: “The Evidence received by Courts of Justice in proof or disproof of facts the existence of which comes in question before them”. William Mawdesley Best, Law of Evidence, 12th Edn (London, 1922), section 33. 75 Salmond on Jurisprudence, 12th Edn, ed PJ Fitzerald, (London, 1966), p 464. 76 Devendra Bhai Shankar Mehta v Rameshchandra Vithaldas Sheth, AIR 1992 SC 1398. 77 Friedrich Nietzsche, Notebooks, (Summer 1886 – Fall 1887), quoted in Walter Kaufmann, The Portable Nietzsche, (1954), p 458. 78 Sir James Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 28. 79 The Law Commission of India, in its 185th Report on Law of Evidence stated at p 25: “There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must rest on robust commonsense and ultimately on the trained intuition of the Judge”. 80 Taylor, A Treatise on the Law of Evidence, 11th Edn, Joseph Bridges Mathews and George Frederick Spear, eds, vol 1 (London, 1920), p 1; Glanville Williams says “the simple multiplication rule does not apply ...” Glanville Williams, “The Mathematics of proof –II”, Criminal Law review, 1979, p 342. 81 Inder Singh v State (Delhi Administration), AIR 1978 SC 1091. Also per Fletcher Moulton, LJ in Hawkins v Powells Tillery Steel Coal Co Ltd, 1911 (1) KB 988. 82 Per Dr Arjit Pasayat, J, in Chhotanney v Orissa, AIR 2009 SC 2013, at p 2015, para 10. 83 Thomas Spencer Baynes’ article on “Probability and Statistics” in The Encyclopaedia Britannica: a dictionary of arts, sciences, vol 19, 9th Edn, (New York, 1888). Interestingly, it is said: “Probability has its origin in the study of gambling and insurance in the 17th century, and it is now an indispensable tool of both social and natural sciences”. Theodore M Porter, “Probability and Statistics” in http://www.britannica.com/EBchecked/topic/477493/probability-and-statistics (Last accessed in April 2019). Attempts have been made to model the legal notion of proof and reasoning with statistical tools. For instance, Thomas Bayes’ famous “theorem” as a solution to a problem of “inverse probability” was presented in An Essay towards solving a Problem in the Doctrine of Chances which was read to the Royal Society in 1763 and after Bayes’s death, Richard Price reorganized the work through his presentation and its publication in the Philosophical Transactions of the Royal Society of London the following year. An example of its application is: “Suppose someone told you he had a nice conversation with someone on the train. Not knowing anything else about this conversation, the probability that he was speaking to a woman is 50%. Now suppose he also told you that that person had long hair. It is now more likely he was speaking to a woman, since women are more likely to have long hair than men. Bayes’ theorem can be used to calculate the probability that the person is a woman”. The statistical

Page 23 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE approach has been opposed as unreliable for not being case-specific. Thus, in the above example, the other person could in fact be a man and not a woman. Richard Lempert, “The New Evidence Scholarship: Analyzing the Process of Proof”, Boston University Law Review (1986), vol 66, 439; Adrian AS Zuckerman, “Law, Fact or Justice?” Boston University of Law Review (1986), vol 66, p 487ff; Marcello Di Bello, “Statistical Evidence in Criminal Trials: What is Wrong with it?” (Last update: 30 October 2012). 84 Emphasis added. 85 See the discussion under section 118 for the detailed explanation of some of these terms. 86 Hardeep Singh v State of Punjab, 2014 Cr LJ 2751. 87 Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence, (London, 1872), Macmillan Co, p 11. 88 Brown v Foster, 113 Mass 136 (1873). 89 Emphasis in the original. 90 Paul Leland Kirk, Crime Investigation: Physical Evidence and the Police Laboratory, 2nd Edn, (New York, 1974), p 2. Quoted with approval in Wallace v Queen, [2010] NZCA 46, para 49. 91 Hari Charan Kurmi and Jogia Hajam v Bihar, with reference to accomplice’s evidence (section 133) and the confession of a co-accused (section 30) Ganjendragadkar, CJ, speaking for a Constitution Bench said that the confession of the co-accused was evidence in a “generic” but not in “technical” sense. 92 This is based on the classification made by James Fitzjames Stephen himself. See, Select Committee First Report, quoted in Chitaley and S Appu Rao, The Indian Evidence Act, Corpus Juris of India, vol 1 (Nagpur, 1956), p Unnumbered (After Contents). 93 Bhogilal Chunilal Pandya v Bombay, AIR 1959 SC 356 : (1959) SCJ 240 : (1959) Cr LJ 389. Also, Sahoo v State of UP, AIR 1966 SC 40. 94 See chapter VII. 95 See chapter XXI. 96 See chapter V, discussion of “Statements and Conduct” under section 17 (Admissions). 97 See also the discussion under section 60, infra. 98 It is said that “The term ‘hearsay’ is misleading since the rule applies not only to statements made orally but also to statements made in documents and to statements made by means of conduct such as signs or gestures”. Scottish Law Commission, Evidence Report on Corroboration, Hearsay, and Related Matters in Civil Procedure (Report No 100, 1986), p 14, para 3. 2. 99 For a study of the history of development and rationale of the Hearsay rule, see The Law Commission of England and Wales, Consultation Paper on Evidence in Criminal Proceedings: The Hearsay Rule and Related Topics, No 138 (1995), and Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997, http://lawcommission.justice.govuk/docs/lc245Legislating_the_Criminal_Code_Evidence_ in_Criminal_Proceedings.pdf (last accessed in April 2019); Law Reform Commission [Ireland], Consultation Paper on Hearsay in Civil and Criminal Cases, March 2010 (LRC CP 60-2010), Chapter I; and Hong Kong Law Reforms Commission Consultation Paper on Hearsay in Criminal Proceedings, 2005, and Report on Hearsay in Criminal Proceedings, 2009, http://www.hkreform.govhk (Last accessed in April 2019). 100 Sir James Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 5. 101 Awadh Bihari v State of MP, AIR 1958 SC 738. In this sense, an electronic document would involve what is stored in digital form in a computer or its printout. A printout of what is recorded originally in a computer in digital form is either hearsay or secondary evidence. 102 R v Baldree, 2013 SCC 35. 103 This distinction is by no means a recent development as is evident from Wright v Tatham, (112 Eng Rep 488 Exch Ch1837) referred to below at fn 151. 104 PM Bakshi, ed, Basu’s Law of Evidence, 6th Edn, (New Delhi, 1998), vol 2, p 1109. 105 Sir James Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 39. 106 In R v Baldree, 2013 SCC 35, para 32, referred to above in the text, the Supreme Court of Canada pointing out the drawbacks of hearsay, observed: First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have

Page 24 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. (Emphasis in the original). In Teper v R, [1952] 2 All ER 447, p 449, Lord Normand said: It [the hearsay evidence] is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination, and the light which his demeanour would throw on his testimony is lost. See also Kalyan Kumar Gogoi v Ashutosh Agnihotri, [2011] 1 SCR 797, p 822, paras 21 and 22. 107 R v Khelawon, 2006 SCC 57 : [2006] 2 SCR 787, paras 2–3, and 35. See R v Bradshaw, 2017 SCC 35 for an enlightening discussion on case law and jurisprudence on hearsay evidence. 108 In Stoutt v The Queen, (appeal from Court of Appeal of Virgin Islands), [2014] UKPC 14, paras 17 and 29, the Privy Council held: Whilst hearsay evidence potentially suffers from the twin weaknesses that (i) what the witness says may be misreported and (ii) what he says may be in error (deliberately or otherwise), it may nevertheless sometimes be strong evidence But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. 109 In Stoutt v The Queen, (appeal from Court of Appeal of Virgin Islands), [2014] UKPC 14, paras 20–21.The Court also observed: More significant changes were made to the hearsay rule in criminal proceedings by the Criminal Justice Act [CJA] 1988, but these have been replaced by provisions of the CJA 2003. These provisions, particularly Chapter 2 of Part 11 of the CJA 2003, largely implemented the recommendations of the Report of the Law Commission dated 4 April 1997 (Law Com No 245) on “Evidence in Criminal Proceedings: Hearsay and Related Topics”. In 1995, the Law Commission had published a Consultation Paper on these topics, in response to a recommendation as to the need for reform made by a Royal Commission on Criminal Justice in 1993. 110 Sir James Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 5 (Emphasis added). 111 Kalyan Kumar Gogoi v Ashutosh Agnihotri, [2011] 1 SCR 797, p 821, para 18. 112 R v Horncastle (Appellants) (on appeal from the Court of Appeal Criminal Division) (2009), [2009] UKSC 14. 113 Phipson, n 58 above, p 134. 114 See The Law Reform Commission of Hong Kong, Hearsay in Criminal Proceedings, Sub-Committee Consultation Paper on Hearsay in Criminal Proceedings, November 2005, http://www.hkreform.gov hk, para 10ff (Last accessed in April 2019). 115 JHA Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th Edn (Edinburgh, 1948), p 317. 116 Per Lord Parker in Masquerade Music Ltd v Springsteen, [2001] EWCA Civ 513, paras 65 and 77. 117 R v Bradshaw, 2017 SCC 35, para 39. 118 R v Bradshaw, 2017 SCC 35, para 28. Case references omitted. 119 Consultation Paper (The Hearsay Rule in Civil Proceedings (1991), Consultation Paper No 117). Earlier similar recommendation was made by Scottish Law Commission, Evidence Report on Corroboration, Hearsay, and Related Matters in Civil Procedure (Report No 100, 1986). 120 The Law Commission, The Hearsay Rule in Civil Proceedings, September 1993 (C 2321), London, p 24, para 4.5. 121 The Law Commission, The Hearsay Rule in Civil Proceedings, September 1993 (C 2321), London, p 2, para 1.8. 122 JR Spencer, Hearsay Evidence in Criminal Proceedings (Oxford, 2008). 123 See the discussion under section 54 on UK practice. 124 See the discussion under section 6 on UK practice. 125 See the discussion under section 10 on UK practice. 126 See also, Report of Court of Appeal Criminal Division, “Hearsay Evidence”, December 2012, p 15. Available at: http://www.judiciary.govuk/publications-and-reports/reports/crime/court-appeal-criminal-division/appeal-court-criminaldivision-annualrpt-11-12 (last accessed in April 2019). Paciocco and Stuesser observe: In considering “reliability”, a distinction is made between “threshold” and “ultimate” reliability. This distinction reflects the important difference between admission and reliance. Threshold reliability is for the trial judge and concerns the admissibility of the statement. The trial judge acts as a gatekeeper .... Once admitted, the jury remains the ultimate arbiter of what to do with the evidence and deciding whether or not the statement is true. David M Paciocco and Lee Stuesser, The Law of Evidence, 6th Edn (Toronto, 2011), pp 122–23. Under the Indian Evidence Act, 1872, exceptions have been made to the hearsay rule as in the case of dying declaration but safeguards as to reliability have been built into the exceptions, and the Court will have to admit even such hearsay evidence if it satisfies the double-test of legal relevancy and reliability.

Page 25 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE 127 Riat, Regina v Shabir, [2012] EWCA Crim 25 64, Hughes LJ said: “the critical thing is that every effort has to be made to get the witness to court”. See also, R v Fagan & Fergus, [2012] EWCA Crim 2248 and R v Claridge, [2013] EWCA Crim 203. 128 R v Youvarajah, 2013 SCC 41. 129 See, Alvin Chen, “The End of the Best Evidence Rule in Singapore?” www.lawgazette.com.sg/2007-1/feature3.htm (Last accessed in April 2019). 130 Masquerade Music Ltd v Springsteen, [2001] EWCA Civ 513, para 84. 131 This statement has been quoted with approval by the Supreme Court in Hussey v Twomey, [2009] IESC 1 : [2009] 1 ILRM 321. 132 R v Bradshaw, 2017 SCC 35, para 23. 133 See chapter III on Relevancy. 134 Adrian Keane and Paul McKeown, The Modern Law of Evidence, 9th Edn, (Oxford, 2012), p 12. 135 In Sadhu Saran Singh v State of UP, [2016], SC, para 21, AIR 2016 SC 1160 : 2016 (2) SCJ 687, the Court observed: “Reason is the heartbeat of every conclusion, without proper reason the conclusion becomes lifeless”. 136 In Doney v The Queen, (1990) 171 CLR 207 : 96 ALR 539 : 50 A Crim R 157, it was observed: Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded. 137 2016 SCC 33. See also the discussion in chapter 18 under the heading “Reasonable Doubt and Circumstantial Evidence--- R v Villaroman, 2016 (Canada)”. 138 R v Villaroman, 2016 SCC 33, para 30. 139 R v Villaroman, 2016 SCC 33, para 29. 140 R v Villaroman, 2016 SCC 33, para 30. 141 R v Villaroman, 2016 SCC 33, para 37. See also the discussion of the case in chapter 18, under the heading “Doubt and Circumstantial Evidence--- R v Villaroman, 2016 (Canada)”. In The Queen v Baden-Clay, [2016] HCA 35, para 66, the High Court of Australia emphasized that the Court should not look at circumstantial evidence piecemeal but “upon the whole of evidence” it should be satisfied beyond reasonable doubt that the accused was guilty. 142 Dharam Deo Yadav v State of UP, 2014 Cr LJ 2371 (SC). 143 Jeremy Bentham, A Treatise on Judicial Evidence, Extracted from the Manuscripts of Jeremy Bentham, Esq by M Dupont (London, 1825), p 184. 144 Phipson, Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 5. Wills says: Where the evidence is direct, and the testimony credible, belief is the immediate and necessary result; whereas, in cases of circumstantial evidence, process of inference and deduction are necessarily involved—frequently of a delicate and perplexing character---liable to numerous causes of fallacy. CE Wills, Circumstantial Evidence, 7th Edn, 1937, p 45. Salmond also is of the same opinion regarding fallibility of inference in the case of circumstantial evidence. Salmond on Jurisprudence, 12th Edn, ed PJ Fitzerald, (London, 1966), p 466–467. 145 See Ernest Cockle, Leading Cases on the Law of Evidence, (1907), p 63. 146 William Wills, Essay on the Principles of Circumstantial Evidence, (Philadelphia, 1857), p 32. 147 Munish Mubarak v Haryana, (2012) 10 SCC 464 : (2013) 1 SCC (Cri) 52 : SCC p 473, para 20. 148 Mula Devi v State of UP, AIR 2009 SC 655. 149 Duck v Peacock, [1949] 1 All ER 318. In this case, a man who was under the influence of drink and was at the steering stopped the car on the street when he felt dizzy and fell asleep till he was woken up by the police at midnight. Goddard CJ, held that he would not “countenance” that “a man who had too much to drink so that he was unfit to manage the car or be in charge of it could escape the penalty of disqualification merely by stopping and sleeping in the car”. 150 In R v Larsonneur, (1933) 24 Cr App R 74, a French woman was deported against her will from Ireland to England by the Irish authorities. Upon her arrival she was immediately charged with the offence of “being” an illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to England. 151 Wright v Tatham, 112 EngRep 488 1837). In this oft-quoted case, a will was sought to be set aside on the ground of incompetency of the testator. The proponents of the will sought to adduce evidence that certain individuals wrote letters to the testator in which they expressed their belief that the testator was able to make intelligent decisions. Baron Parke rejected the evidence as implied hearsay and gave his famous telling illustration of the captain of a ship. The Baron asked: “Is it hearsay to offer proof of the seaworthiness of a vessel that its captain, after thoroughly inspecting it, embarked on an ocean voyage upon it with his family?”

Page 26 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE 152 Salmond on Jurisprudence, 12th Edn, ed PJ Fitzerald, (London, 1966), p 467. 153 Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence, (London, 1872), Macmillan Co, p 12. 154 Referred to in John Davison Lawson, Law of Presumptive Evidence, (First published in 1899), Paperback Indian Edn, (2008), p 588. 155 Phipson, Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 5. Hence, “Both direct evidence and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other”. California Jury Instructions Criminal No 2.00, (5th Edn 1988), pp 21–22. 156 James Fitzjames Stephen said that the phrase “hearsay evidence” “which ... is used by the English writers in so vague and unsatisfactory a manner finds no place in our draft”. Select Committee First Report, quoted in Chitaley and S Appu Rao, The Indian Evidence Act, Corpus Juris of India, vol 1 (Nagpur, 1956), p Unnumbered (after Contents). 157 Sir James Fitzjames Stephen, An Introduction to the Indian Evidence Act: The Principles ofjudicial Evidence, Second Impression, (Calcutta, 1904), pp 6–7. 158 Cockle, Leading Cases on the Law of Evidence (1907), p 62. 159 Phipson, Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 5. 160 See infra for a discussion on facts in issue and relevant facts. 161 Hence, Stephen says that he defined the term “evidence” in the first of these senses only i.e., direct and hearsay and not in the other sense of direct and circumstantial evidence. See the Select Committee First Report, Select Committee First Report, quoted in Chitaley and S Appu Rao, The Indian Evidence Act, Corpus Juris of India, vol 1 (Nagpur, 1956), p Unnumbered (after Contents). 162 Sir Mathew Hale, History of the Pleas of the Crown, History of the Pleas of the Crown, 1st American Edn, (Philadelphia, 1847), (England Edn in 1678), vol 2, Chapter XXXIX, p 289. One of the reasons for Sir Hale’s view was that, in some of the cases that he referred to, the so-called “victims” of murder turned up after the convict has been properly hanged and in one case to claim inheritance. The Indian Evidence Act, Corpus Juris of India, vol 1 (Nagpur, 1956), p Unnumbered (after Contents). Courts have often misread Sir Hale’s statement to stand for the proposition that he was against any murder conviction “in the absence of a corpse”. The stress in Sir Hale’s axiom is on the importance of the phrase, “unless the fact were proved to be done”. See for a scholarly article on corpus delicti, Francis Paul Greene, “I Ain’t Got No Body: The Moral Uncertainty of Bodiless Murder Jurisprudence in New York after People v Bierenbaum”, Fordham Law Review, vol 71, Issue 6 (2003), p 2863–2906. 163 In Jackson v State, 29 Tex App 458, 16 SW 247, the Texas Court of Appeals stated that “In murder the corpus delicti has two components: death as the result, and the criminal agency and identity of another as the means”. In Frazier v US, 1909 OK CR 101, Oklahoma Court of Criminal Appeals held: “It was the duty of the trial court to give a proper instruction [to the jury] on the corpus delicti, and also to give a proper instruction on the burden of proof” that it was for the prosecution to prove it beyond reasonable doubt. 164 In Rajasthan v Shobha Ram, 2013 (81) ACC 466 (SC), it was held: even though the dead-body of a person alleged to have been murdered was not discovered, conviction for murder under section 302, IPC, 1860, can still be recorded if there exists strong circumstantial evidence and if the accused is unable to offer any explanation regarding facts especially within his knowledge as provided under Section 106 of the Indian Evidence Act. However, there is no general principle laid down that non-explanation of injury on an accused person shall in all cases vitiate the prosecution case. It would depend on facts and circumstances of each case. Hari v Maharashtra, (2009) 3 SCC (Cri) 1254 SC. Md Jamiluddin Nasir v State of WB, 2014 AIR SC 2587 and Ram Singh v Rajasthan, (2012) 12 SCC 339, paras 8, 10, the Court has held that the non-production of the weapon used in the attack is neither fatal to the prosecution case nor can any adverse inference be drawn on that score. Pawan Kumar, Monu Mittal v State of UP, AIR 2015 SC 56 2050: Non recovery of all the bullets fired is not a ground for inferring that the incident did not take place. Sanjeev Kumar Gupta v State of UP, (now Uttarakhand) 2015 (5) Supreme 369, when there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non-recovery of blood stained clothes or even the murder weapon does not affect the prosecution case. 165 Badshah v State of UP, para 19, 2016 (3) ACR 3541. 166 Sharad decision also was followed in later cases: Bhim Singh v Uttarakhand, (2015) 4 SCC 281; Govinda Reddy v Mysore, AIR 1960 SC 29. 167 Ibid. 168 Also, Praful Sudharkar Parab v Maharashtra, AIR 2016 SC 3107 : 2016 (6) SCJ 250. 169 Also, Hukam Singh v Rajasthan, AIR 1977 SC 1063; Eradu v Hyderabad, AIR 1956 SC 316; Earabhadrappa v Karnataka, AIR 1983 SC 446; State of UP v Sukhabasi, AIR 1985 SC 1224; Balwinder Singh v Punjab, AIR 1987 SC 350; Ashok Kumar Chatterji v State of MP, AIR 1989 SC 1890; Manjunath v Karnataka, AIR 2007 SC 2080; Liyakat v Uttaranchal, AIR 2008 SC 1537; Goa v Pandurang Mohite, AIR 2009 SC 1066; Samadhan Dhudaka Koli v Maharashtra, AIR 2009 SC 1059; Bhagat Ram v Punjab, AIR 1954 SC 621; Chenga Reddy v State of AP (1996) 10

Page 27 of 27 1.6 DEFINITION AND CLASSIFICATION OF EVIDENCE SCC 193; Padala Veera Reddy v AP, AIR 1990 SC 79; State of UP v Ashok Kumar Srivastava, 1992 Cr LJ 1104; Rajasthan v Rajaram, 2003 (8) SCC 180; Haryana v Jagbir Singh, 2003 (11) SCC 261 Rama Nand v HP, [1981] 1 SCC 511; Gambir v Maharashtra, [1982] 2 SCC 351; Earabhadrappa v Karnataka, [1983] 2 SCC 330; State of UP v Dr Ravindra Prakash Mittal, 1992 AIR 2045 : 1992 SCR (2) 815 : 1992 SCC (3) 300 : JT 1992 (3) 114 : 1992 Scale (1) 937; Ram Avtar v Delhi Administration, [1985] (Supp) SCC; Vadlakonda Lenin v State of AP (Sup Ct), 2012; Dhan Raj Alias Dhand v Haryana, 2014 (6 ) Scale 620 : (2014 ) 6 SCC 745. Badal v Haryana, (2014) 3 SCC (Cri) 126; Satnam Singh v State of UP, 2014 (86) ACC 134; State v (1) Neelam W/O Rishi Pal, 2014, Delhi, para 50, SC No.79/2005, decided on 16 October 2014 (Delhi District Court). 170 Wakkar v State of UP, (2011) 3 SCC 306 : 2011 (2) Scale 198. 171 Dasbratb, Jolo v Chhattisgarb, Criminal Appeal Nos. 197–198 of 2018, 23 January 2018 (Supreme Court of India, Criminal Appellate Jurisdiction). 172 Similar definitions are contained in section 29 of the IPC, 1860 and section 3 (18) of the General Clauses Act, 1897. Sir Stephen has stated that the definition was taken from the definition of the term in IPC, 1860. See, Sir James Fitzjames Stephen, A Digest of Law of Evidence (London, 1876), note I, p 131. While section 29 of the IPC, 1860 states that the recording is to be done “as evidence of that matter”, Explanation 1 says that “it is immaterial ... whether the evidence is intended for, or may be used in, a Court of Justice, or not”. Section 3 of Indian Evidence Act, 1872 merely says that it is “intended to be used, or which may be used, for the purpose of recording that matter”. The definition in the General Clauses Act, 1897 is substantially similar to that in IE Act, 2000. 173 Section 3 (65) of the General Clauses Act, 1897 defines the word “Writing” as: “expressions referring to ‘writing’ shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form”. 174 Charan Saba v DM of Belonia, AIR 1962 Tripura 50. 175 The term “electronic record” is defined by the Information Technology Act 2000 as meaning “data, record or data generated, image or sound stored, received or sent in any electronic form or micro film or computer generated micro fische”. The expressions used in the Evidence Act after the 2000 amendment like “Certifying Authority”, “Digital Signature”, “Digital Signature”, “Electronic Form”, “Electronic Records”, “Information”, “Secure Electronic Record”, “Secure Digital Signature” and “Subscriber” shall have the meanings assigned to them by the Information Technology Act 2000. 176 Even earlier to the IT Act, 2000, in RM Malkani v Maharashtra, AIR 1973 SC 157, the Apex Court made it clear that electronically recorded conversation like tape-record is admissible in evidence. Also, KK Velusamy v Palaanisamy, [2011] 4 SCR 31. In Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra, AIR 1975 SC 1788, a Bench of three Judges of the Court held that the tape records of speeches were admissible in evidence on satisfying the following conditions: “(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) the subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act”. Followed R v Maqsud Ali, [1966] 1 QB 688 : [1965] 2 All ER 464. Reiterated in Ram Singh v Col Ram Singh; AIR 1986 SC 3, and RK Anand v Registrar, Delhi High Court; (2009) 8 SCC 106. 177 See for a detailed discussion on “Electronic Records as Evidence” under section 65B infra. 178 The exceptions are mentioned in section 65 and a detailed discussion of these provisions will be found infra under those sections. 179 Rule 58 of Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990, provides: 58 Marking of exhibits: (1) Exhibits admitted in evidence shall be marked as follows: — (i)

if filed by the prosecution with the capital letter ‘P’ followed by a numeral, P1, P2, P3 and the like;

(ii)

if filed by defence with the capital letter ‘D’ followed by a numeral, D1, D2, D3 and the like;

(iii) in case of Court exhibits with the capital letter ‘D’ followed by a numeral C1, C2, C3 and the like; (2) All the exhibits filed by the several accused shall be marked consecutively. All material objects shall be marked in Arabic numbers in continuous series as MO 1, MO 2 and MO 3 and the like, whether exhibited by the prosecution or the defence or the Court.

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Section 4 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

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2.1 DEFINITION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.1 DEFINITION The judges and authors have defined “presumption” in various ways but there does not seem to be an acceptable definition that would cover different situations.1 Often, presumption is defined as an inference drawn by the Court, on the basis of reasoning, from one fact or set of facts as to the truth or falsehood of another fact.2 •

Sir James Fitzjames Stephen: “A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence unless and until the truth of such inference is disproved”.3

•

Abbot CJ: “A presumption of any fact is, properly an inferring of that fact from other facts that are known; it is an act of reasoning...”4

•

Best: “An inference, affirmative or disaffirmative, of some fact drawn by a judicial tribunal, by a process of probable reasoning, from some matter of fact...” 5

•

Sarkar: “Shortly speaking, a presumption is an inference of fact drawn from other known or proved facts”.6 Thus, if a man is found in possession of goods soon after the theft, he may be presumed to be the thief.7

The definition of presumption by Stephen as involving an “inference” is criticized by Ernest Cockle on the ground that “presumptions need not necessarily relate to inferential facts but may (as most of them actually do) relate to direct or primary facts. For example, the presumption of innocence relates to a primary fact but the presumption of continuance of life involves an inferential fact”.8 But, as Ryan9 points out, Stephen did not include all kinds of presumptions under the Evidence Act, 1872, and he thought that some of the presumptions belong more to the substantive criminal law than the law of evidence. In fact, Sir Stephen thought that the presumption of innocence “principally belongs to criminal law....though it has a bearing on proof of ordinary facts”10 and that “the only presumptions which, in my opinion, ought to find a place in the Law of Evidence, are those which relate to facts merely as facts, and apart from the particular rights they constitute”.11 For instance, presumption of innocence is totally unrelated to facts and is entirely based on the public policy that confers a right on the accused to be presumed to be innocent until his guilt is proved beyond all reasonable doubt. As Ruma Pal J, of the Supreme Court observed: “Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt”.12 Hence, for Sir Stephen, presumption of innocence ought to be part of substantive criminal law and not of law of evidence.13 Sir Stephen himself stated: All notice of certain general legal principles which are, sometimes called presumptions but which in reality belong rather to the substantive law than to the law of evidence, was designedly omitted, not because the truth of those principles was denied, but because it was not considered that the Evidence Act was the proper place for them. The most important of these is the presumption, as it is sometimes called, that everyone knows the law. The principle is far more correctly stated in the maxim, that ignorance of the law does not excuse a breach of it, which is one of the fundamental principles of criminal law.14

Page 2 of 3 2.1 DEFINITION Thus, the presumption of innocence of the accused (rebuttable)15, that ignorance of law is no excuse (irrebuttable)16 and that a child below the age of seven years is incapable of committing a crime (irrebuttable)17 do not find a place in the Evidence Act, 1872.

1

In Izhar Ahmad khan v UOI, [1962] Suppl 3 SCR 235, Gajendragadkar J, after a detailed discussion of eminent juristic opinions, observed: “the views expressed by jurists on this topic do not disclose an identity of approach and their conclusions show different shades of opinion.”

2

WS Holdsworth, A History of English Law, vol IX, (1926), p 140: Just as in the case of judicial notice, the courts, as a matter of common sense, assume the existence of matters of common knowledge without further proof; so they easily drew an obvious inference from facts proved or admitted, and thus created a presumption, as common sense dictated.

3

Sir James Stephen, Digest of Law of Evidence (London, 1876), Macmillan and Co, Part 1, p 4. Ernest Cockle says that “this use of the term is undoubtedly the most proper.” Leading Cases on the Law of Evidence, (1903), p 14.

4

R v Burdett,(1820) 106 E.R. 873.

5

Best, Law of Evidence, 12th Edn (London, 1922), p 313.

6

Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al., eds. vol1 (New Delhi, 1993), p 66.

7

See, for instance, section 114, illustration (a) of Evidence Act, 1872.

8

Ernest Cockle, n. 1 above, p 14.

9

JV Ryan, The Law of Criminal Evidence in British India and Its Application, (Calcutta, 1912), p 197.

10 Sir James Stephen,Digest of Law of Evidence (London, 1876), Macmillan and Co, p 188, Note XXXVI, Article 94. Cockle appears to agree with this proposition. See the text below corresponding to footnote 14. 11 Sir James Fitzjames Stephen, A Digest of Law of Evidence, (1876, London), Introduction, p xiii. 12 Hiten P Dalai v Bratindranath Banerjee, AIR 2001 SC 3897. 13 However, in D Heiner v John H Donnan, (1932) 76 aw. Ed 772, 780.B., Sutherland J, expressed the opinion that all presumptions are rules of evidence and not of substantive law, and observed: It is hard to see how a statutory rebuttable presumption is turned from a rule of evidence into a rule of substantive law as the result of a later statute making it conclusive. 260In both cases it is a substitute for proof, in the one open to challenge and disproof and in the other conclusive. In Izhar Ahmad khan v UOI, [1962] Suppl 3 SCR 235, Gajendragadkar J stated: Irrebuttability of conclusive presumption “however, does not affect the character of the rule as failing within the domain of the law of evidence” 14 Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 133. As stated by Sir Stephen, the legal position is: there is no presumption that everyone knows the law but ignorance of law is no excuse for committing breach of law.James Thayer said: Many of these maxims and ground principles get perversely and inaccurately expressed in this form of presumption, as when the rule that ignorance of the law excuses no one, is put in the form that everyone is presumed to know the law; and when the doctrine that everyone is chargeable with the natural consequences of his conduct, is expressed in the form that everyone is presumed to intend those consequences. James B Thayer, “Presumptions and the Law of Evidence”, Harvard Law Review, 1889, vol III, No 4, p 165; In Motilal Padampat Mills Ltd v UP, (1979) 118 ITR 326 (SC), the Supreme Court observed: “It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law.” In an oft-quoted statement Scrutton LJ, said: “it is impossible to know all the statutory law and not very possible to know all the common law.” See TE Scrutton, “The Work of the Commercial Courts”, (1921 (1) Cambridge Law Journal 6, at p 19. Abbott, CJ, observed in Montriou v Jafferys, (1825) 2 Car & P 113 at p 116: “God forbid that it should be imagined that an attorney or counsel or even a Judge is bound to know all the law”. William Henry Maule J, pointed out in Martindale v Falkner, (1846) 2 CB 706: “There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so...” Blackburn J, stated in The Queen v Mayor of Tewkesbury, (1868) L. R. 3 Q. B. 629, that “Maule, correctly explains the rule of law”.Lord Atkin observed in Evans v Bartlam, (1937) AC 473 (HL): “The fact is that there is no and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application”. It appears that the Courts in England, USA and India have been circumspect in applying even the rule that “ignorance of law is no excuse” as rigorously to tax statutes as they would apply to criminal statutes. In CIT v PSS Investments Pvt Ltd, [1977] 107 ITR 0001, the Court held: The intelligence of even those with legal background gets staggered in this continuous process of carving exceptions to exceptions. It seems more like a conundrum, baffling the mind and requiring special acumen to unravel its mystique. One can only wonder as to how the ordinary tax-payers,

Page 3 of 3 2.1 DEFINITION most of whom are laymen, can keep abreast of such laws. Yet the maxim is that everyone is presumed to know the law. See also, Spread v Morgan, 11 HL 588, at p 602; and United States v Murdock, 290 US 389 (1933). 15 This presumption which is a fundamental principle of criminal jurisprudence does not find a place in IPC or Cr PC or in any other Indian enactments. 16 Ignorantia juris non excus at or Ignorantia legis neminem excusat (Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one”). This is implied in section 76 of IPC. 17 See section 82 of IPC.

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2.2 CLASSIFICATION OF PRESUMPTIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.2 CLASSIFICATION OF PRESUMPTIONS Presumptions are classified into: 1. (a) Presumptions of Fact; and (b) Presumptions of Law18 A presumption of fact is a presumption that is drawn by a Court “which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”. (Section 114 of Evidence Act, 1872). In Chaman v Uttarakhand, AIR 2016 SC 1912, para 2719(2016), the Supreme Court observed: Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.

Section 114 gives an illustrative list of nine presumptions which are called “maxims” by the section itself. The best example of this kind of presumption is illustration (a) to section 114 which says: “The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”. This presumption is based upon commonsense and the section permits the man against whom the presumption is drawn “to account for his possession”. If he gives a satisfactory explanation regarding how he got the possession of the stolen goods, he is said to have rebutted or disproved it. However, presumption can be based on facts already proven and a presumption cannot be based on another presumption.20 Presumptions of law21 have been defined as “arbitrary inferences which the Law directs the Court to draw from particular facts without regard to the logical inclination of the mind as influenced by the facts.”22 Under section 82 of IPC, the law directs the Court to presume that “nothing is an offence which is done by a child below the age of seven years”. Here, it is irrelevant whether in fact the child is mentally mature enough to understand the nature of its act and its consequences; the Court must follow the law’s direction irrespective of the Court’s own assessment of the child’s maturity. Distinction Phipson distinguishes between the two presumptions as follows: a. “presumptions of law derive their force from law; while presumptions of fact derive their force from logic”; b. a presumption of law applies to a class, the conditions of which are fixed and uniform; a presumption of fact applies individual cases, the conditions of which are inconstant and fluctuating”; and c. in England where the jury system prevails, “presumptions of law are drawn by the court...and presumptions of fact are drawn by the jury”.23

Page 2 of 3 2.2 CLASSIFICATION OF PRESUMPTIONS To the above distinctions made by Phipson, one more may be added i.e., a presumption of fact is discretionary in the sense that the Court is given the option either to draw or not to draw the presumption depending on the circumstances, whereas presumptions of law are mandatory and the Court has no option but to draw the presumption as directed by law. 2. (a) Rebuttable (Presumption es Juris) and Irrebuttable Presumptions (Presumption es juris et de Juri) A presumption is rebuttable if the law permits the party against whom the presumption is drawn to disprove it; and it is irrebuttable if the law does not permit the party to disprove it.24 All presumptions of fact are rebuttable whereas presumptions of law are rebuttable in some cases and irrebuttable in other cases. As mentioned above, under section 114, illustration (b), if a person is found in possession of stolen goods soon after the theft, the Court may draw the presumption that he is the thief (presumption of fact) but it must permit the person to explain how he got into possession of the goods and that he is not a thief. Under section 82 of IPC the presumption regarding innocence of a child below the age of seven years is a presumption of law and irrebuttable and, hence, the prosecution will not be allowed to prove that the child must be held guilty because it is mature enough to know what it is doing. However, under section 83 of IPC, nothing is an offence if it is done by a child above seven years and below 12 years of age if it has not attained sufficient maturity of understanding. This is a presumption of law and, hence mandatory, but the prosecution can rebut the presumption by showing that the child has sufficient maturity. Sir James Stephen observed: I use the word ‘presumption’ in the sense of presumption of law capable of being rebutted. A presumption of fact is simply an argument. A conclusive presumption I describe as conclusive proof.25

Section 82 of Cr PC deals with “Proclamation of person absconding” and states in clause (3) that a statement in writing by the Court that the proclamation has been published shall be “conclusive evidence” that the requirements of that section have been complied with. In the light of the above quoted observation of Sir Stephen, if certain evidence is deemed to be “conclusive” it would be better to call it as conclusive “proof” than conclusive “evidence”. Ernest Cockle says that presumptions of fact (May Presume) and conclusive presumptions “may, with advantage be disregarded” and “a practical lawyer, when he speaks of presumption, always means a rebuttable presumption”. He further points out: the presumptions of fact are nothing but the conclusions which the court draws from any individual combination of facts in evidence before it...and they may be considered as outside the law of evidence altogether. Conclusive presumptions of law may be, with advantage, considered as mere rules of substantive law, and not presumptions at all. For instance, it is said to be a conclusive presumption that a child under seven cannot commit a crime. Is it not more proper to put it, as a rule of substantive law, that a person of such age is incapable of crime?26

As Wigmore observed: ...conclusive presumptions or irrebuttable presumptions are usually fictions, to disguise a rule of substantive law27 and when they are not fictions they are usually repudiated in modern courts.28

An example of a rule of substantive law “disguised” as a presumption is section 113 of the Evidence Act, 1950 of Malaysia which provides: “Presumption that boy under thirteen cannot commit rape—113. It shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape”.29 Till it was abolished by the Sexual Offences Act of1993,30 there was the common law presumption in England that a boy below the age of 14 was incapable of committing sexual intercourse.31 In fact there have been cases where juveniles of 13 years of age are charged and convicted of sexual offences in other jurisdictions.32 Hence, it is even said that “‘conclusive presumption’ is a contradiction in terms” or an oxymoron, in the sense that if it is a presumption it cannot be conclusive.33 In effect, as Sir John Salmond says, “by a conclusive presumption is meant the acceptance or recognition of a fact by the law as conclusive proof”.34

Page 3 of 3 2.2 CLASSIFICATION OF PRESUMPTIONS

18 See Izhar Ahmad Khan v UOI, [1962] Suppl 3 SCR 235, at p 257 (per Gajnendragadkar, J): the rule takes away judicial discretion either to attach the due probative value to fact A or not and requires prima facie the due probative value to be attached in the matter of the inference as to the existence of fact B, subject of course, to the said presumption being rebutted by proof to the contrary...; Sodhi Transport Co v Uttar Pradesh, AIR 1986 SC 1099 : (1986) 2 SCC 486 : [1986] 1 SCR 939: “The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances”. 19 Also, WB v Mir Mohammad Omar, (2000) 8 SCC 382. 20 Suresh Budharmal Kalani v Maharashtra, 1998 Cr LJ 4592 (SC); Dueful Laboratory v Rajasthan, 1998 Cr LJ 4534 (Rajasthan). 21 WM Best, A Treatise on Presumptions of Law and Fact: With the Theory and Rules of Presumptive Or Circumstantial Proof in Criminal Cases, (London, 1844). 22 JV Ryan, The Law of Criminal Evidence in British India and Its Application, (Calcutta, 1912), p 197. 23 Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed., (London, 1963), p 2016. 24 William Best says: “...they are inferences which the law makes so peremptorily, that it will not allow them to be overturned by any contrary proof, however strong”. The example he gives is the presumption that an infant below seven years of age is incapable of committing a crime. WM Best, A Treatise on Presumptions of Law and Fact: With the Theory and Rules of Presumptive Or Circumstantial Proof in Criminal Cases, (London, 1844), p 20. 25 James Fitzjames Stephen, A Digest of Law of Evidence, (1876, London), Note I, Article 1, p 131. Sir Stephen further stated that the presumptions of fact are “bare presumptions of fact, --which are nothing but arguments to which the Court attaches whatever value it pleases”.Sir James Fitzjames Stephen, The Indian Evidence Act: with an Introduction of the Principles ofjudicial Evidence (London, 1872), Macmillan Co, p 132. 26 Ernest Cockle, Leading Cases on the Law of Evidence, (1903), p14. 27 Other authors also share the opinion that a conclusive presumption is not a presumption at all, but a rule of substantive law. C McCormick, Evidence, 2nd Edn, (1972), p 804; Brosman, “The Statutory Presumptions”, 5 Tul. L.Rev. (1930), p 24; Luther Hugh Soules, “Presumptions in Criminal Cases”, 20 Baylor L. Rev. (1968), pp 278–79; Edmund M. Morgan, “How to Approach Burden of Proof and Presumptions”, 25 Rocky Mt. L. Rev. (1952), p 34. 28 John H Wigmore, A Students Textbook of the Law of Evidence (Brooklyn, The Foundation Press, 1935), p 454. Salmond also says that conclusive presumptions are in deed, almost necessarily more or less false, for it is seldom possible in the subject matter of judicial procedure to lay down with truth a general principle that any one thing is conclusive proof of the existence of any other. Salmond on Jurisprudence, 12th Edn, ed. PJ Fitzerald, (London, 1966), p469. 29 Though the 1950 Malaysian Evidence Act is substantially based on the Indian Evidence Act, 1872, section 113 of the 1950 Act is an innovation. 30 The 1993 Act was passed exclusively for the abolition of the common law rule and provided in section 1: The presumption of criminal law that a boy under the age of fourteen is incapable of sexual intercourse (whether natural or unnatural) is hereby abolished. 31 The presumption was applied in many cases, for instance: R v Brimilow, (1840) 9 C & P 366; R v Waite, (1892) 2 QB 600; R v Fethney, [2010] EWCA Crim. 3096 and R v Bevan, [2011] EWCA Crim. 654.In R v Waite, (1892) 2 QB 600, Lord Coleridge observed: This is a presumption juris et de jure, and judges have time after time refused to receive evidence to show that a particular prisoner was in fact capable of committing the offence. See the case of Regina v JOC, [2012] All ER (D) 39: [2012] EWCA Crim 2458, where the trial Court mistakenly failed to apply the presumption and the mistake was detected by chance and corrected during appeal. 32 The latest being that of United States v Juvenile Male, 564 US (2011), where a 13-year old boy was convicted of sexually abusing a 10-year-old boy for two years. 33 Nischolas Rescher, “Presumption and the Practices of Tentative Cognition”, (June 2006) Cambridge University Press, available at http://www.cambridge.org/us/catalogue/catalogue. asp?isbn=9780521864749 (Last accessed in April 2019). 34 Salmond on Jurisprudence, 12th Edn, ed. PJ Fitzerald, (London, 1966), p 468.

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2.3 PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT, 1872 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.3 PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT, 1872 Section 4 of the Evidence Act, 1872, defines three kinds of presumptions and provides: “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: “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: “Conclusive 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.

In the case of “May Presume”, the Court has three options: 1. The Court may regard the fact as proved and, in case it does, 2. the Court shall permit the party against whom the presumption is drawn to disprove or rebut it; or 3. The Court may not presume the fact as proved and ask the party concerned to prove it. 2.3.1 Distinction between Presumptions In the light of the foregoing discussion on presumptions, the distinction between the three presumptions under section 4 can be shown as follows: May Presume

Shall Presume

Conclusive Proof

1. Presumption of fact

Presumption of law

Presumption of law

2. Discretionary

Mandatory

3. Rebubuttable

Rebuttable

Irrebuttable

•

What is in common between “Shall Presume” and “Conclusive Proof” is that both are presumptions of law and, hence, are mandatory and both the definitions say that the Court “shall” draw the presumption as directed by law.

•

What distinguishes the two is that the former is rebuttable because “Shall Presume” states that the presumption stays “unless and until it is disproved”, but “Conclusive Proof” is irrebuttable as the provision says that the Court “shall not allow evidence to be given for the purpose of disproving it”.

Page 2 of 2 2.3 PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT, 1872 •

In the case of “May Presume” and “Shall Presume”, the Court shall permit disproof of the presumed fact and in the case of “Conclusive proof”, the Court shall not permit disproof of the presumed fact.

•

What is in common between “May Presume” and “Shall Presume” is that both are rebuttable and what distinguishes the two is that the former is discretionary and the latter mandatory.

•

As observed by Gajendragadkar J, the mandatory presumption (“shall presume”)”takes away judicial discretion either to attach the due probative value to fact A or not and requires prima facie the due probative value to be attached in the matter of the inference as to the existence of fact B, subject, of course to the said presumption being rebutted by proof to the contrary”35.

As stated above, section 114 is an example of presumption of fact or “May Presume”. Section 79 which provides that the certified copies given by Central or State Government officers “Shall” be presumed to be genuine is an example of “Shall Presume”. The standard example of “Conclusive Proof” is the presumption of legitimacy under section 112 by which a child born during the subsistence of a valid marriage between its mother and a man shall be conclusively presumed to be legitimate. In the case of section 112, it is possible for the Court to draw all the three kinds of presumptions in a given case: 1. The court “may presume” on the basis of long cohabitation between a man and a woman that they are married36; 2. The Court “shall presume” access or opportunity to have sexual intercourse between them; and if this presumption is not rebutted by the other party 3. The Court shall treat as “conclusive proof” that the child born to them is a legitimate child.

35 Izhar Ahmad khan v UOI, [1962] Suppl 3 SCR 235 at p 257. 36 Ajarma Bibi v Khurshid Begum, AIR 1998 SC 1663; SPS Balasubramanyam v Suruttayan, AIR 1992 SC 756.

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2.4 “SHALL PRESUME, UNLESS THE CONTRARY IS PROVED”— PRESUMPTIONS UNDER OTHER ENACTMENTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.4 “SHALL PRESUME, UNLESS THE CONTRARY IS PROVED”— PRESUMPTIONS UNDER OTHER ENACTMENTS Presumptions are provided for not only in the Evidence Act, 1872, but also in other enactments like the Negotiable Instruments Act 1881 which by section 118 provides, inter alia, that: “Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration”. Thus, for example, if a promissory note is signed by a person, the “shall” presumption is that he has received the money as consideration under the note. Section 4, Prevention of Corruption Act 1947 and section 139, Customs Act 1962 are some of the other provisions where a similar formulation of “shall presume, unless the contrary is proved” is employed. This formulation is also found in some foreign enactments.37 The formulation of “shall presume, unless the contrary is proved” was nowhere used by Sir James Fitzjames Stephen in the original Evidence Act, 1872, for the simple reason that the rebuttability of “Shall Presume” has been built into the very definition of the term in section 4 of the Act. Some new provisions have been added to the Evidence Act, 1872, by way of amendment by the Information Technology Act 2000 and other Amendment Acts but the Parliament has not been consistent in the use of terminology. While section 85A employs “shall presume” simpliciter, sections 85B and 85C employ “shall presume, unless the contrary is proved” for no apparent reason, though all the three sections have been added by the same IT Act, 2000. Similarly, while section 113B (Dowry Death) added by the 1986 Amendment Act uses “shall presume”, section 111A (certain special offences) added by the Amendment Act of 1984 employs “shall be presumed, unless the contrary is shown”. It is submitted that while the formulation of “shall presume, unless the contrary is proved (or “shown”)” is necessary in other enactments, such a formulation is redundant in the Evidence Act, 1872, because of the very definition of “Shall Presume” in section 4 as a rebuttable presumption.38

37 See, for instance, section 10 of Law of Marriage Act 1971 of Tanzania and sections 19, 20 and 21, Misuse of Drugs Act 1971 of Singapore. 38 Apart from the instances pointed out above within the Evidence Act, 1872, section 118 of NI Act, 1881 uses “until” the contrary is proved and the very next section 119 employs “unless and until” the contrary is proved. Again, while section 118 of NI Act, 1881 uses “until the contrary is proved”, some of the newly added sections of Evidence Act, 1872, use “unless the contrary is proved”. These two formulations may not have the same meaning. Section 4 of the Evidence Act, 1872, which defines presumptions employs “unless and until the contrary is proved”. Section 111A of Evidence Act uses “shown” in the place of “proved”.

Page 2 of 2 2.4 “SHALL PRESUME, UNLESS THE CONTRARY IS PROVED”—PRESUMPTIONS UNDER OTHER ENACTMENTS

End of Document

2.5 “SHALL PRESUME” AND “MAY PRESUME”—QUANTUM OF PROOF IN REBUTTAL Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.5 “SHALL PRESUME” AND “MAY PRESUME”—QUANTUM OF PROOF IN REBUTTAL As seen above, “May Presume” is a discretionary presumption and “Shall Presume” is a mandatory presumption but once the presumption is drawn in the case of “May Presume” the basic distinction between the two presumptions disappears and both become rebuttable presumptions. Thus, in Kumar Exports v Sharma Carpets, (2009) 2 SCC 513 the Supreme Court observed: If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.

It must, however, be stated that presumptions of any kind, of law or of facts, must themselves be based on facts which are already proved. As pointed out by the Supreme Court in Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik,(2014) 2 SCC 576. we must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

In Suresh Budharmal Kalani v Maharashtra,1998 (7) SCC 33739 it was held that “a presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning”. In an American case Fort Worth Belt Ry v Jones, 106 Tex. 345, 166 S.W. 1130 (1914), the Supreme Court of Texas observed: A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved....One presumption cannot be based upon another presumption.40

Thus, for instance, the presumption that a child below the age of seven years is doli incapax or incapable of committing a crime cannot be based on another presumption that the child is below the age of seven years. That the child is below the age of seven years must be proved by independent evidence. But, then, the question is: Even if a presumption cannot be based on another presumption, can a presumption be rebutted by another presumption? There seems to have been a difference of judicial opinion on this issue.41 In Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, the Supreme Court held that “presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact”42 and the presumption of fact under section 114 “if raised by a court, can under

Page 2 of 3 2.5 “SHALL PRESUME” AND “MAY PRESUME”—QUANTUM OF PROOF IN REBUTTAL certain circumstances rebut the presumption of law raised under section 118 of the Negotiable Instruments Act”.43 In effect, it would mean that the mandatory presumption under section 118 of the NI Act, 1881, could be rebutted by another discretionary presumption drawn under section 114 of the Evidence Act, 1872.44 However, the “more authoritative view”45 has been laid down in the subsequent decision of a larger Bench of the Supreme Court in Dhanvantrai Balwantrai Desai v Maharashtra, AIR 1964 SC 575 : 1963 SCR Suppl (1) 48546 where the Court reiterated the principles enunciated in Madras v Vaidyanatha Iyer, AIR 1958 SC 6147 and clarified that the distinction between the two kinds of presumption lay not only in the kind of the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of “May Presume”, if the presumption is drawn, it may be rebutted by an explanation which “might reasonably be true and which is consistent with the innocence” of the accused. On the other hand in the case of a mandatory presumption under the now repealed sections 161 or 165 of IPC48 under which it shall be presumed that a public servant accepted any gratification as a bribe only “unless the contrary is proved”, the Court pointed out that: the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words ‘unless the contrary is proved’ which occur in this provision make it clear that the presumption has to be rebutted by ‘proof’ and not by a bare explanation which is merely plausible...49.

It is clear from the above pronouncement: (1) that in the case of both “may presume” as well as “shall presume”, the presumption can be rebutted by contrary “proof” and not by a mere presumption; and (2) that the “proof” that is required in rebuttal of the mandatory “shall presume” should be qualitatively stronger than the proof in rebuttal of the discretionary “May Presume”.50 In this context, it is interesting to note the provisions of section 10-C of the Essential Commodities Act, 1955. Section 10-C says: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation: In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. (2) For the purposes of this section; fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

While clause (1) of the above provision requires that the Court “shall presume” the existence of the required “culpable mental state” on the part of the accused, it provides that it is open to the accused to plead as “defence” the “fact” of absence of the guilty mind, and clause (2) in effect requires that the accused should prove that fact “to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”. When the accused pleads absence of guilty mind as a “defence” he is in fact rebutting the “shall presumption” drawn against him of the presence of mens rea but the bar of standard of proof in rebuttal is raised very high and it shall be proof beyond all reasonable doubt and not mere preponderance of probability. Thus, the presumption of innocence is replaced by presumption of guilt of the accused, and the standard of proof beyond all reasonable doubt normally applied to the prosecution is shifted and laid on the accused.51 It is submitted that section 10-C is not happily worded as the section confuses the right of rebuttal of a rebuttable mandatory presumption of law with a defence against a charge. Section 133, (3) of Nigerian Evidence Act, 2011, says: “Where there are conflicting presumptions, the case is the same as if there were conflicting evidence”.52

Page 3 of 3 2.5 “SHALL PRESUME” AND “MAY PRESUME”—QUANTUM OF PROOF IN REBUTTAL

39 Also Satvir Singh v Delhi Through CBI, 2014 STPL (Web) 549 SC 1. 40 See also East Tex. Theatres, Inc v Rutledge, 453 S.W.2d 466, 469 (TeL 1970). 41 KR Subramanian v Arumuganathan, (2003), Mad HCR. Crl. A. Nos. 906 to 908 of 1996, decided on 17 July 2003 (Madras High Court). 42 Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, p 1319, para 5. William Best also said: “rebuttable presumptions of any kind may be encountered by presumptive as well as by direct evidence”. WM Best, A Treatise on Presumptions of Law and Fact: With the Theory and Rules of Presumptive Or Circumstantial Proof in Criminal Cases, (London, 1844), Chapter IV: Of Conflicting Presumptions, p 52, para 43. 43 Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316 (per K Subbarao J); Also, Kumar Exports v Sharma Carpets, AIR 2009 SC 1518, para 11 (per JM Panchal J): The accused may also rely upon presumptions of fact, for instance, those mentioned in section 114 of the Evidence Act to rebut the presumptions arising under sections 118 and 139 of the Act. 44 The Court (per Justice K Subba Rao) said that if a party claims to possess documentary proof of a promissory note transaction and “if such a relevant evidence is withheld by the plaintiff, section 114, [Illustration g] Evidence Act, 1872, enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff” and treat the presumption under section 118 of NI Act as rebutted. Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316. 45 Hiten P Dalai v Bratindranath Banerjee, AIR 2001 SC 3897, para 23. 46 Dhanvantrai was a decision of a four-judge Bench whereas the decision in Kundanlal was that of a three-judge Bench. JR Mudholkar and K Subba Rao JJ, were not only parties to both the judgments but also wrote the judgments respectively. 47 In this case, the Supreme Court made the significant observation that “unlike the case of presumptions of fact, presumptions of law constitute a branch of jurisprudence”. 48 The sections were repealed by the Prevention of Corruption Act, 1988 (49 or 1988). Section 4 of the Prevention of Corruption Act of 1947 which was discussed in the decision, and section 20 of the 1988 Act provided for similar “shall be presumed...unless the contrary is proved”. 49 Dhanvantari v Maharashtra, AIR 1964 SC 575. 50 See also, Y Sreelatha v Mukanchand Botra, 2002 (1) LW (Crl.) 271 and KR Subramanian VA Arumuganathan, (2003), Mad HCR. 51 In Mariya Anton Vijay v The State, represented by The Inspector of Police, Q Branch C.I.D., Thoothukudi. Crl.R.C. (MD) No204 of 2014, the Madras High Court (Madurai Bench), held that This presumption can be dislodged only during the course of trial by proving beyond reasonable doubt that he did not have the guilty mind. 52 This is a verbatim reproduction of Article 95: “Where there are conflicting presumptions, the case is the same as if there were conflicting evidence”. Sir James Fitzjames Stephen, A Digest of Law of Evidence, (Hartford, Conn.,1904), American Edn by George E Beers, p 473.

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2.6 FUNCTION OF PRESUMPTIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > II PRESUMPTIONS > Section 4

II PRESUMPTIONS Section 4

2.6 FUNCTION OF PRESUMPTIONS In its 91st Report the Law Commission of India observed: Speaking of the law of evidence, it may be mentioned that one of the devices by which the law usually tries to bridge the gulf between one fact and another, where the gulf is so wide that it cannot be crossed with the help of the normal rules of evidence, is the device of inserting presumptions. In this sense, it is possible to consider the question whether, on the topic under discussion, any presumption rendering the proof of facts in issue less difficult, ought to be inserted into the law.53

A presumption is not in itself evidence but only makes a prima facie case for the party in whose favour it exists.54 Presumptions might operate as substitutes for evidence. Presumptions are inferences drawn by the Court whereas evidence consists of relevant facts adduced by the parties. In Narayan Govind Gavatev Maharashtra, (1977) 1 SCC 133, para 21,55 the Supreme Court held that section 114 of IE Act, 1872: covers a wide range of presumptions of fact which can be used by Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. It is, therefore, said that the function of a presumption often is to ‘fill a gap’ in evidence.

Just as facts adduced by a party can be rebutted by the other party, presumptions drawn by the Court can also be rebutted unless they are conclusive presumptions. Conclusive presumptions are insulated against rebuttal and hence rightly characterized as conclusive proof. Thus, “Conclusive Proof” takes away, on one hand, the discretion of the Court not to draw the presumption, and, on the other, takes away the right of the party to rebut the presumption. Phipson observes that: the chief function of a rebuttable presumption is to determine upon whom the burden of proof rests using that term in the sense of adducing evidence.56

It means that, in terms of the Evidence Act, 1872, the effect of “May Presume” or “Shall Presume”, both being rebuttable presumptions, is to place the burden of proof on a party on whom the burden would not lie under the normal rules of burden of proof. Thus, if a person is charged with theft of goods, the burden of proof would normally lie on the prosecution to prove his guilt. But section 114, illustration (a), says that if the accused is found in possession of stolen goods soon after the theft, he may be presumed to be the thief. Thus, the presumption under the illustration shifts the burden from the prosecution to the accused and requires him to give an explanation for his possession to rebut the presumption so that the burden will revert to the prosecution again. Thus, the effect of a

Page 2 of 2 2.6 FUNCTION OF PRESUMPTIONS presumption could be either to place the burden of proof initially on a party (“reverse burden”57) or to shift the burden on to another party. The rebuttable presumption of innocence of the accused places the burden on the prosecution but the presumption under section 114, illustration (a) shifts it to the accused. Hence, some authors discuss presumptions in the context of rules relating to burden of proof.

53 91st Report on Dowry Deaths and Law Reform, 1983, para 1.4. 54 Sodhi Transport Co v UP, AIR 1986 SC 1099 : (1986) 2 SCC 486 : [1986] 1 SCR 939 (per E Venkataramiah J). 55 See also, Sky Land International Pvt Ltd v Kavita P Lalwani, 2012, 191 (2012) DLT 594, para 15.4ff. 56 Sydney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 2016. 57 See the discussion in the Chapter on Burden of Proof, infra.

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Section 5 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > III THEORY OF RELEVANCY > Section 5

III THEORY OF RELEVANCY Section 5

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3.1 INTRODUCTION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > III THEORY OF RELEVANCY > Section 5

III THEORY OF RELEVANCY Section 5

3.1 INTRODUCTION Chapter II of the Evidence Act, 1872 deals with “Of the Relevancy of Facts” and it is the hub and fulcrum around which the entire scheme of the Act revolves. This chapter determines the rules on the basis of which the Court considers certain facts as relevant for the trial of a civil or criminal proceeding. The purpose of these rules is to ensure that •

the time and effort of the Court are not wasted on matters which are not material to the enquiry;

•

the attention of the Court and the parties should be focused on material facts which have relatively a high probative value; and

•

the parties are put on prior notice regarding what they should adduce as evidence in the Court of law.

The Evidence Act deals with issues relating to relevancy by focusing attention on “facts in issue” and “relevant facts”.

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3.2 FACT, FACT IN ISSUE AND RELEVANT FACT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > III THEORY OF RELEVANCY > Section 5

III THEORY OF RELEVANCY Section 5

3.2 FACT, FACT IN ISSUE AND RELEVANT FACT 3.2.1 “Fact” As pointed out already, evidence consists of facts and these facts might relate to either facts in issue or relevant facts. Then, what are facts?1 Section 3 defines “Fact” as follows: “Fact” means and includes-— (1) anything, 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 order in a certain place, is a fact. (b) That a man heard or saw something is a fact. (c) That a man said certain words is a fact. (d) That a man holds a certain opinion, has a certain 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. Clause (1) of the above definition refers to “things” which are capable of being perceived by human senses like sound, touch, vision, taste and smell. It refers also to “state” of things and “relation” of things.2 From Illustration (a) it is clear that certain objects are in a certain place relates to the “state” of things and that they are “arranged” in a certain “order” refers to the “relation” of things. The “thing” refers not only to “objects” mentioned in Illustration (a) but also that a man “heard” or “saw” “something” (Illustration (b)) which includes the sound that was heard and the thing that was seen.3 Under Illustration (c) that a man said certain words is a fact and here the reference is to the man and his spoken words which are the things that are capable of being perceived by the sense of seeing him and hearing his words. Here, speech is only a thing—a human faculty and not a sense.4 It is submitted that the word thing or state of things in section 3 should not be taken as synonymous to res (thing) in Latin and as referring only to inanimate objects. Firstly, both animate and inanimate objects have one characteristic in common, i.e., corpus or physical body. In that sense both are physical facts and equally share the attributes of that5 a human body, dead or alive, is a physical fact. The fact that a man is in a drunken condition is a physical fact. Secondly, “any mental condition of which any person is conscious” in clause (2) of the definition cannot be totally divorced from the fact that the mental condition is an attribute of human body. Thirdly, the “state of things” can also be a combination of physical and mental facts. If a man is charged with the offence of “drunken driving”, the man, the drunkenness and the car are all part of the “state of things” which constitutes the offence. Just as insanity is a fact of mental condition, insane person is also a “fact” as a “thing”. Hence, these two categories cannot be looked at

Page 2 of 5 3.2 FACT, FACT IN ISSUE AND RELEVANT FACT as exclusive, water-tight compartments. 3.2.1.1 Classification of Facts Physical and Psychological—External and Internal While clause (1) of section 3 refers to “things” that can be “perceived by senses”, clause (2) refers to “mental condition” of which any person is “conscious”. Illustrations (d) and (e) give examples of opinion, intention, good faith, meaning of words, opinion etc as mental conditions of which a person is “conscious.” This could include other conditions like fear, anger, hatred, ill-will, knowledge etc some of which are mentioned in sections 14 and 15 of the Evidence Act, 1872. Thus, clause (1) is said to refer to physical facts whereas clause (2) refers to psychological facts.6 Physical facts are sometimes called as external facts and psychological facts are called as internal facts. While material objects, sounds, smells etc can be felt by others, psychological facts like intention, ill will, hatred etc can only be felt by the person who is entertaining those feelings and not by others unless those internal feelings are manifested through expressions or actions by that person. If A has ill-will towards B, others have no way of knowing about it unless A speaks about it or takes a gun and shoots B.7 Positive and Negative Facts are also classified as positive and negative facts. Presence or existence of a fact is a positive fact and its absence or non-existence is a negative fact. It is easier to prove the existence of a fact than its non-existence. For instance, for proving that a person “A” exists, he has to be produced in a Court of law but to prove that he does not exist, one has to survey the entire population. As under section 106, it is easier to prove that A has purchased a train ticket than that he has not. Primary and Secondary Facts are also classified as (a) primary and (b) secondary facts. Ho Hock Lai says: More generally, propositions of fact come at different levels of formulation or abstraction and the differentiation is more finegrained than is suggested by the simple two-fold classification. The proposition that the husband put arsenic in his wife’s coffee is basic relative to the proposition that the husband caused the wife’s death, which in turn is more basic than the proposition that the husband murdered his wife.8

As can be seen from the above statement, the second, third, of “levels” of “facts” could actually be inferences drawn from the immediately preceding “primary” fact.9 Cogent and consistent chain of sequential inferences of secondary facts from primary facts can make up credible circumstantial evidence. Thus, “Facts” can be classified as:

Future “Facts”? Facts which are merely likely to occur and have not already occurred are not “facts” within the meaning of section 3.10 A question has arisen whether sexual intercourse would amount to rape if the woman’s consent was given because of the promise to marry by the man and whether it would amount to “misconception of fact” within the meaning of section 90 of the Indian Penal Code, 1860 (IPC).11 In Uday v Karnataka, 2003 (4) SCC 46, the Supreme Court observed: ... consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code.12

3.2.2 “Facts in Issue” The terms “facts in issue” are defined in section 3 as follows:

Page 3 of 5 3.2 FACT, FACT IN ISSUE AND RELEVANT FACT

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. Illustrations A 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.

Phipson says: “A fact in issue is one which is directly in contention between the parties, i.e., one which the plaintiff (or prosecutor) must establish to win his case, or which the defendant must establish to succeed in some defence which is open to him.”13 As the Supreme Court pointed out, “the core of a criminal case is its facts and, the facts differ from case to case.”14 In every legal proceeding, whether civil or criminal, there will be two contesting parties— plaintiff and defendant in civil cases and prosecution and the accused in criminal cases. That is why the English called it as an adversarial system and Indian legal system is based on the English system. In a suit or proceeding, the plaintiff or the prosecution alleges certain facts as against the defendant or the accused, as the case may be, who denies them. If A files a suit against B on a promissory note for Rs 1 lakh, the following principal issues or questions arise: •

Did B execute the note?

•

Did A pay money to B as a loan?

•

Did B pay the money back?

•

If B did not pay the money due, what is the sum due from him?

Whether B is “liable” to pay or not, in other words the existence of his liability depends on answers to the first two questions. If answer is “yes”, it proves the existence of B’s liability. If the answer is “no”, the non-existence of his liability is established. If B proves that he has already paid back Rs 50,000 to A, the “extent” of his liability is reduced. Similarly, the questions like whether A is a minor so that he suffers from the “disability” to enter into a contract, require to be answered in a legal proceeding. In the illustration to the above definition, the facts that A caused B’s death and that he intended to cause B’s death establish his “liability” for the crime committed. The fact that A caused B’s death because of the grave and sudden provocation that A received from B, determines the “extent” of A’s liability in the sense that A is not liable for murder but only for culpable homicide not amounting to murder. The fact that A was of unsound mind when he caused B’s death, proves the “non-existence” of A’s criminal liability. All these facts which prove or disprove the allegations made by the parties against each other are facts in issue or facts in question. 3.2.2.1 Issues of Fact For civil cases, sub-rule (4) of rule (1), O XIV of the Code of Civil Procedure, 1908 (CPC) says: “Issues are of two kinds: (a) issues of fact and (b) issues of law”, and sub-rule (1) of rule (1) says: “Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.” Sub-rule (2) says: “Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defense.” Under sub-rule (5) of Rule (1), the Court is required to “frame” the issues or questions on the basis of the averments that the parties make in their pleadings which require to be answered during the trial. In Bachhaj Nahar v Nilima Mandal, AIR 2009 SC 1103, the Supreme Court held that “the object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon.”15 As aptly pointed out in Golla Jayamma v Dt Collector Mehboobnagar, 2009 (2) All LT 344, the questions of burden of proof can be clarified and identified at the stage of framing of the issues in a civil case. In criminal cases, under the Code of Criminal Procedure, 1973 (Cr PC), charge-sheet is filed by the police under

Page 4 of 5 3.2 FACT, FACT IN ISSUE AND RELEVANT FACT section 173 but the charges are framed by the Court under sections 228, 240 and 246.16 Section 211, which deals with “charge”, says in clause (1) that “Every charge under this Code shall constitute the offence with which the accused is charged” and clause (4) requires that “the law and the section of the law against which the offence is said to have been committed shall be mentioned in the charge.” Thus, if the offence committed is murder, the charge shall state section 302 of IPC. Every charge constitutes a fact in issue. 3.2.3 “Relevant Fact” According to the Explanation to the definition of Fact in Issue, where the Court frames the issues of fact, “the fact to be asserted or denied in the answer to such issue is a fact in issue”. The facts which go to prove or disprove the facts in issue and which are covered by the Chapter II of the Evidence Act, 1872 are relevant facts. The concept of relevancy is discussed below. 3.2.3.1 Factum Probandum and Factum Probans Factum probandum (plural: facta probanda) is the ultimate fact or the fact sought to be established. In other words it is the fact in issue. A factum probans (plural: facta probantia) is a fact offered in evidence as proof of another fact, i.e., a relevant fact. In a criminal case the ultimate proposition to be proved, the factum probandum, is the guilt of the accused. Where the case is one depending upon circumstantial evidence, the factum probandum is established as a matter of inference from the proved facts, the facta probantia. But a factum probans may itself be a proposition to be proved by way of inference from other facts, i.e., a fact which is relevant may itself have to prove with the help of another relevant fact.

1

Phipson says: “No satisfactory definition of the term ‘fact’ has been or perhaps can be given. Broadly it applies to whatever is the subject of perception or consciousness.” Phipson, On Evidence, 10th Edn, Michael V Argyle ed, London, 1063, p 2.

2

Jeremy Bentham said: “The fall of a tree is an event; the existence of a tree is a state of things: both are alike facts.” Jeremy Bentham, The Works of Jeremy Bentham, vol 6, Chapter 3, An Introductory View of The Rationale of Evidence, p 217.

3

In Samskrit, the perceptions are classified into five “indriyas” viz., shabda, sparsha, roopa, rasa and gamdha--- sound or hearing, touch, vision, taste and smell, respectively. Sir John Woodroffe, an authority on Indian Evidence Act, 1872 was also an authority on the Hindu Sacred Texts on esoteric Tantra and Mantra and published them under the pseudonym Arthur Avalon. His “The Tantric Texts Series” were published in 1935 by Agamaanusnadhan Samiti, Calcutta. He mentions the above five “Jnanendriyas” (sensory organs) – “eye, ear, nose, tongue and skin”—and also “manas” or mind—similar to “consciousness” under section 3. Prapanchasara Tantra, Chapter I, Introduction, p 8.

4

There is the long-standing metaphysical controversy as to whether the matter is real, or the mind that perceives the matter is real. John Locke thought that a “thing” is merely a bundle of perceptions — i. e., classified and interpreted sensations. He says that “mind” starts as a tabula rasa—blank slate and goes on accumulating perceptions. Bishop George Berkley believed that familiar objects like tables and chairs are only ideas in the minds of perceivers, and, as a result, they cannot exist without being perceived. Thus, as Berkeley put it, for physical objects esse est percip (to be is to be perceived). Will Durant says: “No wonder that a wit advised the abandonment of the controversy, saying: ‘No matter, never mind’.” Will Durant, The Story of Philosophy, New Revised Edn, New York, Online Edn, p 281.

5

See Bentham’s interesting classification mentioned in footnote 6 below.

6

It is pointed out by Sarkar that Bentham classified facts into “physical” and “psychological”. Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al., eds, vol 1, New Delhi, 1993, p 33. But, Bentham’s classification appears to be somewhat different from what it is taken to mean now. Bentham said that physical fact is a fact considered to “have its seat in some inanimate being” or even of an animate being by virtue of what “it has in common with ... inanimate beings.” He says “motion” as a physical fact is an attribute of animate being as well as of inanimate beings, because animate beings have the physical body in common with inanimate beings. He further says that if the word “voluntary” is added to “motion” it becomes entirely psychological fact because the additional fact of exertion of will is being added to the physical fact of motion and makes it an attribute of animate being. He says that classification of physical facts must be left to “natural” philosophers and psychological facts must be left to metaphysicians. Bentham also classified facts into 1. Positive and negative facts, and 2. External and internal facts. Jeremy Bentham, The Works of Jeremy Bentham, vol 6, An Introductory View of The Rationale of Evidence, Chapter 3, p 216–221.

7

In fact, Friedrich Nietzsche, the German philosopher, famously said: “There are no facts, only interpretations.” Walter Kaufmann, The Portable Nietzsche, 1954, p 458. It may be pointed out that both perception of physical objects and consciousness of mental condition (sections 3 (1) and (2) of “Fact” definition) may be based on logic and reasoning. Sir James Stephen made an interesting analysis of the two concepts and observed: “Indeed, consciousness and

Page 5 of 5 3.2 FACT, FACT IN ISSUE AND RELEVANT FACT perception are two names for one thing, according as we regard it from the passive or active point of view.” Sir James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co, p 14. Under section 3, Illustration (a), the fact that “certain objects are arranged in a certain order” is a matter of not only physical perception but also mental inference as to the “order”. A person’s “consciousness” that another man appears to be “loving” or “angry” is again a matter of inference drawn by him—an inference that another man similarly situated may not draw. If there is a chair in a room, a blind man entering the room will not “know” that there is a chair through vision unless he stumbles on it by touch. Same is true of a melody for a deaf man. One may say that both these men were “handicapped” and not “normal”, and, hence, their perception was faulty. But when it comes to drawing of “inferences” on the basis of “perceptions” or “consciousness” and with the aid of logic and reasoning, the process can be highly subjective and may appear to be “faulty” for others even in the case of “normal” person. A man looking at a “thing” from a distance in a moonlit night might “perceive” it as a ghost with the attendant reactions of sweating and shivering out of fear. When he moves closer, he might perceive the thing as a tree, and still closer he will “realize” that it is a banyan tree. For the perceiver, the ghost, tree and banyan tree are all “real” at that distance and point of time. Thus, perception of a thing might depend on distance and time. Sir James Stephen observed: “Moreover, our perceptions are distinct from each other, some both in space and time, as is the case with all our perceptions of the external world; others, in time only, as is the case with our perceptions of the thoughts and feelings of our own minds.” Sir James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, Macmillan Co, London, 1872, p 14. Obviously, the existence of a fact, per se, may not be relative but its perception by human mind is, in the nature of the things, subjective. This might be particularly true of even truthful witnesses’ perception of circumstantial evidence. 8

Ho Hock Lai, A Philosophy of Evidence Law: Justice in Search for Truth, Oxford University Press, 2008, p 8.

9

In Benmax v Austin Motor Co Ltd, [1955] AC 370, p 373, Viscount Simonds said that a finding of secondary fact is “an inference from facts specifically found”. The inference might involve and be based on value judgement as in the case of the question whether artificial insemination by a donor who is not the husband of the woman amounts to adultery. Neil MacCormick, Legal Reasoning and Legal Theory, Oxford, 1978, pp 93–97. See also Ho Hock Loi, A Philosophy of Evidence Law: Justice in Search for Truth, Oxford University Press, 2008, p 8. Another dimension to McCormick’s example would be whether under section 112 of the Evidence Act, 1872 the child would be legitimate even though there was no “access” between the mother and the donor. Such inferences would involve serious questions of interpretation of applicable law, social morality and so on.

10 Dueful Laboratory v Rajasthan, 1998 Cr LJ 4534 (Rajasthan). 11 Section 90. Consent known to be given under fear or misconception—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person:- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child:- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. 12 In Emperor v Soma, 36 IC 850 : 18 Cr LJ 18 (Lah), it was held: “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married.” In Edgington v Fitzmaurice, (1885) 29 ChD 459, the Court said: “There must be a misstatement of ‘an existing fact’.” Also, Jayanti Rani Panda v State of WB, 1984 Cr LJ 1535: “In order to come within the meaning of misconception of fact, the fact must have an immediate relevance.” See also Pradeep Kumar v Bihar, 2007 (4) Ker LT 41 (SC); Jayanti Rani Panda v State of WB, 1984 Cr LJ 1535 (Div Bench of Calcutta High Court); Edgington v Fitzmaurice, (1885 (29) ChD 459; Deepak Gulati v Haryana, 2013, AIR 2013 SC 2071 : 2013 (7) Scale 383 and Prashant Bharti v NCT of Delhi, AIR 2013 SC 2753 : (2013) 9 SCC 293. 13 Manual of the Law of Evidence, ed TS Elliott, 12th Edn, 1987, p 10. 14 Sushil Sharma v The State of NCT of Delhi, 2014 (1 ) SCJ 575 : 2013 (12 ) Scale 622. 15 In Ram Sarup Gupta (dead) by LRs v Bishun Narain Inter College, AIR 1987 SC 1242, the Apex Court held: “It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered.” In Aalyan Singh Chouhan v CP Joshi, (2011) 11 SCC 786, it was held: “a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.” 16 Thus, filing a charge-sheet is a police function and framing the charges is a judicial function.

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3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > III THEORY OF RELEVANCY > Section 5

III THEORY OF RELEVANCY Section 5

3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT Thayer Doctrine There could be two ways of approaching the theory of relevancy and these are extremely important for determining and explaining the juridical basis of relevancy.17 First, one could say that the Court should treat all logically connected facts which have a high probative value as legally relevant unless there are other rules which bar their admission on policy grounds or other reasons. For instance the facts that are excluded from proof could be official secrets or communications between a lawyer and client. This “free proof” approach was first championed by Jeremy Bentham,18 and has come to be regarded as the English and US approach to the theory of relevancy, i.e., all facts with high probative value are relevant unless they are barred by exclusionary rules.19 For instance, the US Federal Rules of Evidence, “restyled” by the US Supreme Court with effect from 1 December 2011,20 provide in Rule 401: Rule 401. Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.21 The “fact is of consequence in determining the action” means that the facts adduced as evidence must be material to the fact in issue and as the Law Reform Commission of Ireland stated, “the requirement that the probative value of the evidence must relate to an issue before the court is sometimes referred to as the requirement of ‘materiality’.”22 Rule 402 of the above Federal Rules provides: General Admissibility of Relevant Evidence.—Relevant evidence is admissible unless any of the following provides otherwise.23

The above provisions incorporate the requirement that evidence be both material (“of consequence to the determination of the action”) and have probative value (“having any tendency to make the existence of any [material] fact ... more probable or less probable than it would be without the evidence”). In effect the Rules provide: (1) All facts are relevant if they possess the tendency to make a material fact probable,24 and (2) all relevant facts are admissible unless they are expressly excluded. This has come to be known in USA and elsewhere as the “modern view”25 or the Thayer Doctrine taking its name after James Bradley Thayer, an expert on law of evidence and on constitutional law.26 According to Thayer the general rule is the total freedom of proof and the rules of evidence consist of a mixed group of exceptions to that rule. Thayer stated: “The law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience ...”27 “Admissibility is determined, first, by relevancy, -- an

Page 2 of 6 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT affair of logic and experience and not at all of law; second, but only indirectly by the law of evidence, which declares whether any given matter which is logically probative is excluded.”28 He further explained: the “main errand of the law of evidence is to determine not so much what is admissible in proof, as what is inadmissible.”29 The “two axioms” propounded by Thayer and adopted by his student and the eminent American jurist John Henry Wigmore30 are stated to be: “None but facts having rational probative value are admissible”, and “All facts having rational probative value are admissible, unless some specific rule forbids.”31 In this view, law of evidence is merely a collection of exclusionary rules. Thayer opined that relevancy was a matter of logic and not of law and “the law has no mandamus on logical faculty.”32 As the Scottish Law Commission said, “Here, ‘all evidence’ must mean ‘all relevant evidence’.”33 In this context the Law Reform Commission of Ireland points out that: despite Thayer’s apparent assertion that the test for relevance can be based on ordinary everyday processes of inquiry, inference and fact-finding, most writers agree that the issue of relevance as it pertains to the question of admissibility is more complex than determining whether a particular piece of evidence should be admitted into the trial provided it is ‘relevant’ in a general sense.34

The proposition that all “logically” relevant facts with “high probative value” must be treated as relevant suffers from the defect of being a petitio principii or begging the question. The question still is: what facts are to be considered as logically relevant and, further, which among them are to be considered as having high probative value? Should the entire theory of relevancy of facts and their “proof” be left to the unguided discretion of a judge? Will it not defeat the very purpose of the Evidence Act, 1872?35 James Stephen’s Concept It is submitted that the approach adopted by James Fitzjames Stephen in the Evidence Act, 1872 is different and exactly opposite to that of Thayer’s approach.36 Under the Evidence Act, the rule is that no facts are relevant unless they are expressly declared to be relevant under one or the other provisions of the Chapter on relevancy.37 As Justice Mahmood pointed out in Queen v Abdullah, (1885) ILR 7 All 385,38 the Evidence Act “in effect prohibits the employment of any kind of evidence not specifically authorized by the Act itself.”39 The very definition of the term “relevant” in section 3 and the provisions of sections 5 and 165 give a clear and conclusive indication of what is relevant under the Evidence Act. Section 3 defines “relevant” as follows: 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.

Section 5, which is the first section in the Chapter on relevancy, provides: Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. 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. Illustrations (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.

Section 165, which confers on the judge enormous power to elicit the truth by putting any question, relevant or irrelevant, at any time, of any witness, in any form, or order production of any document40, still mandates that “the judgment must be based upon facts declared by this Act to be relevant, and duly proved.”

Page 3 of 6 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT Section 3 does not really define what is relevant but only says that facts declared to be relevant under sections 6 to 55 are relevant. Section 5, which like a way-mark or sign-post directs ‘go this way’, provides that evidence may be given of “every fact in issue and of such other facts as are hereinafter declared to be relevant” i.e., by sections 6 to 55. For good measure, the section gives a parting warning to say “and of no others” and these four words are a very eloquent testimony to the legislative intent that the questions of relevancy are to be determined by reference only to the provisions of Chapter II and no extraneous considerations of “logical” relevancy or of “probative value” can be brought into play by the Court.41 3.3.1 Probative Value It was already seen that under section 3 of the Evidence Act, 1872 proof depends upon the ability of relevant facts to persuade the Court to believe in the existence of a fact or to consider its existence probable. Proof depends on the relevancy of a fact to a fact in issue, and relevancy depends on the inherent probative value of a fact to prove or disprove something.42 The “Dictionary” appended to the Australian Evidence Act, 1995, defines “Probative Value” as to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”43 The rationality of the Court’s assessment of the probability even under section 3 of the Evidence Act depends on the objective and not subjective criteria. Probative value depends on the relatively high degree of rational nexus of a fact adduced in relation to the fact to be proved. As Sabyasachi Mukharji J, observed in Prakash Chandra Mehta v Commissioner and Secretary, AIR 1986 SC 687 : 1985 SCR (3) 697 in a different context: “There is no rule of law that common sense should be put in cold storage.” In R v Bradshaw, 2017 SCC 35, the Supreme Court of Canada after a detailed analysis adopted a rather “restrictive” hearsay test and observed: By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process. In criminal proceedings, the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial. Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value. The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).44

The High Court of Australia45 observed in a decision: The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly “substantial”. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial ...

In many of the Common Law jurisdictions exceptions have been grafted on some of the important rules of exclusion like the Hearsay Rule to such an extent that it is even said that it has led to the “demise” of the rule by judicial characterisation that the rule is “absurdly technical” and ultimately the rule has been abolished statutorily.46 Jurisdictions, where earlier the evidence of bad character of the accused and “propensity” evidence were anathema, have made crucial exceptions to the rules. The exceptions were grafted in cases where particular evidence was found to be of high probative value. Where the defense counsel has raised objections to the reception of such evidence on the ground that the evidence seriously prejudices the rights of the accused and interests of fair trial, the Courts and the statutes have recognised the need for “balancing” the probative value of such evidence as against its potential prejudice it might cause to fairness of trial. In Old Chief v US, 519 US 172 (1997), p 183, Souter J of Supreme Court held: On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and

Page 4 of 6 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.

Thus, the Courts in Common Law jurisdictions like UK,47 USA,48 Canada,49 Australia50 and New Zealand51 have been admitting evidence with high probative value even if they constitute exceptions to the traditional rules of exclusion. But they are required to exercise caution by judicial precedent or by statute and exclude such evidence where the evidence is objected to on the ground of its disproportionate prejudicial effect either on the judge or the jury. 3.3.2 Motion in limine In Latin “in limine” means “at the threshold” or at the start, and in the context of a Court trial a motion in limine means the motion moved by a party at the pre-trial stage to get inadmissible evidence from the consideration by the judge. Black defines the motion as “a pretrial request that certain inadmissible evidence not be referred to or offered at trial.” A motion in limine can be used to get a ruling to allow for the inclusion of evidence, not only to get a ruling as to whether or not evidence will be precluded from trial. The motion is made “preliminary”, and it is presented for consideration of the judge (or arbitrator or hearing officer) to be decided without the merits being reached first. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. If, after the motion is granted, the opposing party mentions or attempts to offer the evidence in the jury’s presence, a mistrial may be ordered.52 Examples of motions in limine would be that the attorney for the defendant may ask the judge to refuse to admit into evidence any personal information, or medical, criminal or financial records, using the legal grounds that these records are irrelevant, immaterial, unreliable, or unduly prejudicial, and/or that their probative value is outweighed by the prejudicial result to the defendant.

17 Sir Richard Eggleston wrote that the relationship between relevance and admissibility in the law of evidence is a subject which “abounds in ambiguities.” Eggleston, “The Relationship between Relevance and Admissibility in the Law of Evidence”, in Glass (ed), Seminars on Evidence, (1970) 53, at p 54. 18 Jeremy Bentham, Rationale of Judicial Evidence, Fred B Rothman & Co 1995, 1827, p 743. Bentham himself did not call it as Free Proof approach but it has come to be known as such. William Twining, Rethinking Evidence, 2nd Edn, Cambridge University Press, p 71. 19 See the very interesting articles by Herman L Trautman, “Logical or Legal Relevancy–A Conflict in Theory”, 5 Vanderbilt Law Review (1951–1952), p 385ff; William Twining, “Freedom of Proof and the Reform of Criminal Evidence”; Israel Law Review, vol 31, 1997, p 439; and Charles L Barzun, “Rules of Weight”, 1958 Notre Dame Law Review, vol 83:5, p 1957ff. 20 The Rules Enabling Act of 1934 gave the judicial branch the power to promulgate the Federal Rules of Civil and Criminal Procedure. The creation and revision of rules pursuant to the Act are usually carried out by the Judicial Conference of the US, the policymaking body of the US federal courts. Once the Rules are approved by the Supreme Court they are given effect to by the US Congress, the only exception being that in 1973 Congressional approval was delayed allegedly because of Watergate scandal, till their eventual adoption after changes by the Congress and assent by President Gerald Ford. 21 William Twining says that Thayer’s approach “has more or less explicitly provided the basis for most subsequent attempts to codify this branch of the law, including the Federal Rules of Evidence.” William Twining, Rethinking Evidence: Exploratory Essays, 2nd Edn, Cambridge, 2006, p 203. 22 Consultation Paper on Hearsay in Civil and Criminal Cases, March 2010, (LRC CP 60 - 2010), para 2. 61. 23 Section 7 of the New Zealand Evidence Act of 2006 adopts the same principle and provides: Fundamental principle that relevant evidence admissible—(1) All relevant evidence is admissible in a proceeding except evidence that is—(a) inadmissible under this Act or any other Act or (b) excluded under this Act or any other Act. (2) Evidence that is not relevant is not admissible in a proceeding. (3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. 24 New Zealand Evidence Act, 2006, provides in section 7 (3): “Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.” 25 William A Butler, Evidence, 10th Edn (California, 1977), p 10.

Page 5 of 6 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT The Canadian Supreme Court referred to “the modern general rule that all relevant evidence is admissible”. White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, para 14. 26 Thayer’s books include Cases on Evidence (1892); The Development of Trial by Jury (1896); A Preliminary Treatise on Evidence at the Common Law (1898). 27 James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law, Boston, 1898, p 265. 28 James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law, Boston, 1898, p 269. 29 James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law, Boston, 1898, p 268. 30 Smith v The Queen, 2001 HCA 50. 31 JB Thayer, “Presumptions and the Law of Evidence”, (1889) 3 Harvard Law Review 141, at p 144; Thayer, “The Present and Future of The Law of Evidence”, (1898–99) 12 Harvard Law Review 71, p 89. John Henry Wigmore, Evidence, 3rd Edn, 1940, vol 1, Chapter II, pp 289–293. In R v Apicella, (1986) 82 Cr App R 295 : [1986] Cr LR 238, p 299, Lawton LJ, delivering the judgement of the Court stated: “A basic principle of the law of evidence is that evidence which is relevant should be admitted, unless there is a rule of law which says that it should not be.” 32 JB Thayer, A Preliminary Treatise on Evidence at the Common Law, Boston, 1898, p 314; see for an analysis of Thayer’s views, William L Twining, Rethinking Evidence: Exploratory Essays, Cambridge University Press, Paperback Indian Edition, 2006, p 203. 33 Scottish Law Commission, Evidence Report on Corroboration, Hearsay, and Related Matters in Civil Procedure (Report No. 100, 1986), p 12, para 2.30. 34 Law Reform Commission of Ireland, Consultation Paper on Hearsay in Civil and Criminal Cases, Last 2010, (LRC CP 60 - 2010), para 2.60. http://www.lawreform.ie/_fileupload/Hearsayfull.pdf. (Last accessed in April 2019). Philip McNamara says: “If the common law rules of evidence are dominated by a single principle or set of principles, they are dominated not by canons of exclusion but by the inclusionary principle that all information sufficiently relevant to the facts in issue at a trial is not only admissible but positively required to be admitted if elicited in proper form from a competent witness and for a proper purpose. All other rules of evidence are both conceptually subordinate to and in practical terms dwarfed by this single principle.” Philip McNamara, “The canons of evidence - Rules of exclusion or rules of use?” Adelaide Law Review, 1986; 10 (3), p 341. 35 See the discussion under section 11 on “Is section 11 a Catch-all Dragnet? Different Views”. 36 Interestingly, Sir Stephen provided for both the approaches in Article 2 of his Digest which states: “Evidence may be given in any proceeding of any fact in issue or any fact relevant to any fact in issue unless it is hereinafter declared to be deemed to be irrelevant, and any fact hereinafter declared to be deemed to be relevant to the issue whether it is or it is not relevant thereto.” Digest of Law of Evidence, Macmillan and Co, London, 1876, Introduction, Chapter II, p 3. 37 Even Thayer, who advocated a different approach, “admired Fitzjames Stephen for his brave attempt to cut through the jungle of detail and confusion to establish a systematic foundation for the subject on the basis of principle” and he told his pupils that “‘a more excellent way’ was still needed”. See Peter Murphy ed, Evidence, Proof and Facts—A Book of Resources, California, 2003, p 50. It is also said that “Stephen boldly tried to restore order to the study of evidence, substituting a new unifying principle.” William L Twining, Rethinking Evidence: Exploratory Essays, Cambridge University Press, Paperback Indian Edition, 2006, p 59. 38 Mehmood J, also said: “the principle of exclusion adopted by the Evidence Act,--i.e., the principle that all evidence should be excluded which the Act does not expressly authorise, is the safest guide in regard to the admissibility of evidence.” Queen-Empress v Abdullah, (1885) ILR 7 All 385, para 16. 39 Queen-Empress v Abdullah, (1885) ILR 7 All 385, para 7. 40 Section 311 of Cr PC also confers similar power on the Court if the witness’s “evidence appears to be essential for the just decision of the case.” 41 The striking difference between the approaches to questions of relevancy and admissibility under the Evidence Act, 1872 and under English law is evident from the following statement in R v D, [2011] 4 All ER 568, where the Court of Appeals referred to clauses (a) to (g) of section 101 of the Criminal Justice Act of 2003 under which the bad character of the accused is admissible under certain conditions, and observed: “It is of course true that if evidence is admissible through any gateway [Clauses (a) to (g)], it may then be considered by the jury in any way to which it is legitimately relevant, whether it has primarily been admitted on that basis or not.” The statement implies that as all logically relevant evidence is legally relevant under US law; once the bar of inadmissibility of bad character evidence is lifted it can be used in any manner the jury wants. 42 Adrian Keane, The Modern Law of Evidence, 6th Edn, Oxford, 2006, p 31. 43 Hughes v The Queen, [2017] HCA 20; Also Johnson v The Queen, [2018] HCA 48. 44 R v Bradshaw, 2017 SCC 35, paras 24 and 27. 45 Van Beelen v The Queen, [2017] HCA 48.

Page 6 of 6 3.3 THEORY OF RELEVANCY—TWO APPROACHES: THAYER DOCTRINE AND STEPHEN’S CONCEPT 46 See the discussion in Chapter I under the heading “Demise of the Best Evidence Rule in England?” 47 In the oft quoted dictum in the casus célèbre, Makin v Attorney General for New South Wales, [1894] AC 57, para 65, Lord Herschell LC, stated the exception that the similar fact evidence “may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” Section 101 of The Criminal Justice Act, 2003 deals with relevance of evidence of bad character of the defendant and permits such evidence in exceptional cases but provides in clause (3): “The court must not admit evidence under subsection (1) (d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” In this context, in O’Brien v Chief Constable of South Wales Police, [2005] UKHL 26, para 11, Lord Phillips pointed out: “evidence should not be admitted if it is likely to give rise to irrational prejudice which outweighs the probative effect that the evidence has in logic.” In DPP v P, [1991] 2 AC 447, Lord MacKay of Clashfern, LC, laid down the “probative force test” and held that such evidence may be admitted if “its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.” 48 Makin v Attorney General for New South Wales, [1894] AC 57, para 65. 49 R v Mohan, [1994] 2 SCR 9: “Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.” Also R v Corbett, 1988] 1 SCR 670; and R v Shearing, [2002] 3 SCR 33 (Evidence of prior convictions and similar fact evidence). 50 Section 135 (General Discretion to Exclude Evidence) of the Australian Evidence Act, 1995 states: “in civil and criminal proceedings: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a) be unfairly prejudicial to a party ...” Section 137 provides that, “in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.” See Papakosmas v The Queen, (1999) 196 CLR 297. 51 New Zealand Evidence Act, 2006 provides in Section 8 (1): “In any proceeding, the Judge must exclude the evidence if its probative value is outweighed by the risk that the evidence will—(a) have an unfairly prejudicial effect on the proceeding.” See Hudson v R, [2010] NZCA 417, at p 43. 52 Black’s Law Dictionary, 8th Edn (2004), pp 2305, 3216.

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3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > III THEORY OF RELEVANCY > Section 5

III THEORY OF RELEVANCY Section 5

3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY53 3.4.1 Logical Relevancy The dictionary meaning of the term “relevancy” is given as “the relation of something to the matter at hand”, “pertinence”, “connection”, “materiality”. If one fact is connected to the other logically, it is called logical relevancy and it may be based on the following factors, among others:54 (a) Cause and Effect;55 (b) Occurrence at the same time (unity of time); (c) Occurrence at the same place (unity of place);56 (d) Common purpose and design.57 For instance, if a severed dead body is found on a railway track, it can be inferred that the death occurred because of the train running over the person. On closer observation, if it is found that there is no haemorrhage near the body, the first inference may be replaced by another inference that the person was killed elsewhere and the dead body was thrown on the railway track to create the misleading impression that he was run over by the train. Here the inferences are drawn on the basis of logic based on cause and effect. If two or more persons have committed an offence together at the same time and place, it can be inferred that they were acting with common intention. 3.4.2 Legal Relevancy While logical relevancy is certainly a very important factor in determining the probative value of facts, it so happens that the facts may be connected to each other by varying degrees of logical proximity. Thus, for instance, there can be direct, proximate and immediate causes and effects, and remote, indirect and even conjectural causes and effects. Hence, the Courts should let in only those facts which have a high degree of probative value that would help the Courts to decide one way or the other with relatively greater certainty. Then, the vexed question that arises is: how far is too far and how close is close enough? Consequently, the Evidence Act, 1872 adopted the device of declaring as relevant in sections 6 to 55 only those logically connected facts which are considered to have a high probative value. Thus, facts which may be connected to each other so remotely that they cannot be considered to have high probative value are kept outside the purview of the provisions of sections 6 to 55. Facts legally relevant under the Evidence Act means, simply, facts declared to be relevant under sections 6 to 5558 and this is a part of the legislative and not judicial determination.59 Hence, all logically relevant facts are not legally relevant and all legally relevant facts may not be logically relevant. For instance, the Evidence Act, 1872 permits impeaching the credit of a witness by injuring his character, even though his character is not logically relevant to the fact in issue.60

Page 2 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY 3.4.3 Admissibility Admissibility means that the facts which are relevant are eligible for consideration by the Court.61 Generally, while the rules relating to relevancy lay down what is included, rules relating to admissibility lay down what is excluded. Ho Hock Lai points out that the rules of exclusion are of two types: (1) Exclusion from deliberation by Court, and (2) Exclusion from proof.62 As applied to Indian situation, it would mean, for instance, that the Court has to decide whether a piece of evidence is admissible or not. The Court will look into the evidence and then decide upon admissibility. There, the Court has knowledge about the content of that evidence as in the case of, for instance, hearsay, but it will not take it into its deliberation in adjudication. Exclusion from deliberation would also in effect mean exclusion from proof as far as the party is concerned. On the other hand, exclusion from proof would mean, for instance, that a party cannot call a spouse to disclose the contents of communication by the other spouse, or the prosecution cannot prove a confession made to a police officer or a statement made by anybody to the police during investigation. The rules that bar proof might also keep the facts out of the cognisance of the Court also. Generally, rules relating to exclusion of deliberation are directives to the Court and those relating to proof are directives primarily to parties. The ultimate responsibility is, of course, that of the Court to ensure that these rules are observed. As observed by Ho Hock Lai: there is both freedom and constraints in trial deliberation. The freedom consists of the considerable discretion that is given to the fact-finder ... Apart from the general demand of rationality that limits the scope for discretion in fact-finding, the law imposes other types and degrees of constraints. Many evidential rules aim to guide or regulate deliberation.63

In R v DAI (2012), 2012 SCC 5, para 17, the Supreme Court of Canada observed: “Among the purposes of the rules of admissibility are improving the accuracy of fact finding, respecting policy considerations, and ensuring the fairness of the trial.” Section 136 of the Evidence Act, 1872 lays down the basic guiding principle in this regard and provides: Judge to decide as to admissibility of evidence.-When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

The essential ingredients of the above section are: (1) It is the judge who decides the questions of relevancy and admissibility. (2) When a party proposes to adduce evidence of any fact, the judge may ask the party to clarify “in what manner” the fact would be relevant. (3) The judge would “admit” the particular adduced fact only if he is satisfied with the answer of the party that it is, indeed, relevant under one or the other provisions of sections 6 to 55. Thus, the consideration of relevancy comes first and of admissibility comes later and the judge will “admit” the fact only if it is “relevant”.64 Sarkar aptly observes: “Relevancy (determined by the rules in the Act) is the test of admissibility ... Admissibility is founded on law and not on logic. Admissibility presupposes relevancy.”65 The important point to be noted here is that the phrase “in what manner” in section 136 means under what section of the chapter on relevancy the fact is said to be relevant. Thus, the responsibility is placed on the judge to ensure that the provisions of the Act regarding relevancy are fully complied with but the burden is placed on the party seeking to adduce evidence to convince the judge that the fact is relevant under any of sections 6 to 55. It is enough if a fact is shown to be relevant under one of the sections on relevancy in the Evidence Act, 1872 and the same fact may or may not be relevant under the other sections. As Desai J, observed: ... there is no justification for saying that one section is dependent on the other. As a matter of fact, each section creates new relevant facts; if a fact is relevant under sec. 11, evidence about it can be given as permitted by sec. 5 even though it may not be relevant under sec. 32. If there is one provision under which a fact becomes a relevant fact, it can be proved regardless of whether it is made relevant under some other provision or not66.

As a rule, all legally relevant facts are legally admissible unless they are barred by one or the other section of the Evidence Act, 1872. It was already mentioned that there are certain exclusionary rules in the Evidence Act which

Page 3 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY bar the admission of facts on policy grounds like official secrets and communication between advocate and client. It should be noted that while rules regarding relevancy are all contained in Chapter II of Part I of the Evidence Act, the exclusionary rules are found in the same Chapter as well as in other chapters of the Act. Thus, sections 24, 25 and 26 which are placed in the Chapter II “On Relevancy” in fact provide for ‘irrelevancy’ and bar the admission of certain confessions made under inducement, threat or promise, or made to police officers or made in police custody. Sections 122 to 131 which occur in Chapter IX “On Witnesses” also bar admission of facts which are covered by those sections like communications between husband and wife, between advocate and client, official secrets. There are some exclusionary provisions in Cr PC like section 162 which bar statements made to the police during investigation from being used in any trial. All these barring provisions affect the admissibility of the facts covered by them. Those facts may be otherwise relevant under sections 6 to 55 of the Evidence Act but they are rendered inadmissible by the barring provisions that may be found within the chapter on Relevancy (sections 24, 25 and 26) or other provisions of the Evidence Act (sections 121 to 126), or even the provisions of other statutes like sections 162 of Cr PC. In other words, the facts may be relevant but inadmissible. Thus, all relevant facts are not necessarily admissible. However, almost all the barring provisions have their own exceptions and if a fact comes under the exception the bar will be lifted and the fact will be admitted. This requires further explanation. “Court with Fifty Doors” A picturesque view of the application of section 136 would be to imagine a Court room with fifty doors each representing sections 6 to 55. The facts to be admitted by the Court are all outside the Court and the party (prosecution, for instance) wants to bring them in as relevant and admissible by the Court. First, the judge asks the prosecution “in what manner” that fact is relevant. Suppose, the prosecution tells the judge that the fact is the confession made by the accused and is relevant under section 18 of the Act. The judge orders the door to be opened as the fact is relevant as stated. The defense objects to the admission of the confession on the ground that it was made by the accused to the police officer and, hence barred by section 25. So, the door is open but there is a bar across the door. Then, the prosecution tells the judge that the bar has to be lifted as the confession has led to the discovery of a knife and it comes under an exception contained in section 27 to the barring provision of section 25. Then the bar will be lifted and the confession admitted. An important aspect of the distinction between relevancy and admissibility is that even if a party does not object to the admission of irrelevant evidence at the first instance, he can raise the objection at any subsequent stage of the proceeding even at the appellate stage.67 But if he fails to object to the admissibility of certain evidence at the first instance when it was sought to be admitted, he cannot raise the objection at any later stage. 3.4.3.1 Admissibility of Evidence and Admissibility of Mode of Proof—a Vital Distinction The Best Evidence Rule can be taken to mean that (1) facts with highest probative value only must be admitted and (2) those facts with highest probative value must be proved by the best method i.e., oral evidence should be direct and documentary evidence must be proved by primary evidence i.e., document itself. But, the former relates to the theory of relevancy and the latter to the Best Evidence Rule proper. Here, it is very important to note that admissibility of evidence is different from admissibility of the mode of its proof. As pointed out in Chapter I, the two notions should not be conflated. In fact, Sir James Stephen stated that “the distinction between the relevancy of facts and the mode of proving relevant facts ... ought to form the principle on which the whole law should be classified.”68 Section 165 states that “the judgment must be based upon facts declared by this Act to be relevant, and duly proved.” There are two stages: (1) At the threshold stage the question is whether the fact is relevant and admissible under the Evidence Act, 1872? and (2) if the fact is relevant and admissible, then the question is: Is the fact required to be proved under the Act only by a particular mode? The Evidence Act regulates the questions of relevancy and admissibility and the Act may leave the mode of proof to the discretion of the party or as, in certain cases, also regulate the mode of proof of those facts by prescribing particular mode or modes. For instance section 59 says that “all facts, except the contents of documents or electronic records, may be proved by oral evidence” and then proceeds in section 60 to prescribe a particular mode of proof, i.e., by direct evidence only. Suppose, a party seeks to prove a promissory note in a suit for recovery of money due and, instead of producing the original he produces a copy of the note. Of course, the note is relevant and is admissible under the Act, but section 64 of the Act requires that it should be proved by primary evidence, i.e., the original document itself. Thus, the fact that A lent money to B may be proved at the discretion of A by oral evidence of witnesses present at the time or by the written receipt given by B. If A wants to prove the debt by oral evidence, the evidence has got to be direct evidence; and if he wants to prove it by the written receipt, he has to produce the document itself. Similarly, a confession made to a police officer may be relevant but is inadmissible under section 25 and the confession becomes admissible under section 27 if it leads to the discovery of a fact. Thus, the confession passes the first test mentioned above of relevancy and admissibility. Then the question is: what is the prescribed mode of proof of the written confession in

Page 4 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY the Court? The document containing confession can be proved under section 64 by the document itself unless it can be proved by secondary evidence under section 65. But the mode of the proof of the debt or confession by a copy of the receipt or of the confession, respectively, could have been objected to by the other party, but if the other party does not raise the objection at the time it was sought to be proved by a copy, he is deemed to have waived the objection and he cannot raise the objection at any subsequent stage.69 While what is not relevant under the Evidence Act cannot be made relevant by consent of parties, relevant evidence can be brought on the record for consideration of Court or the Tribunal without following the regular mode, if parties agree.70 If the other party does not raise the objection at the time it was sought to be proved by a copy of the original, he is deemed to have waived the objection and he cannot raise the objection at any subsequent stage.71 •

Both the parties might agree on a particular mode of proof or, for instance, dispense with proof by admission of the contents of the document and the Court might accept that fact admitted as proved.72

•

The Court has to ensure that the dispensing with proof by agreement of the parties is not collusive.

•

The parties who have chosen to reduce the terms of their agreement to writing out of abundant caution may choose to dispense with its proof by the document itself and opt for oral admission of its contents.

•

Where it is required by law that a transaction should be reduced to writing and that it is to be compulsorily registered, it will not be open to the parties to prove the transaction by oral or even by written admission.

Objection as to Admissibility and as to Mode of proof The law of evidence is designed to ensure that the Court considers only that evidence which will enable it to reach a reliable conclusion.73 In RVE Venkatachala Gounder v Arulmigu Visweswaraswami, (2003) 8 SCC 752, the Supreme Court observed: The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play.

The rationale of the above proposition was stated by the Court: The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof.74 On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.75

In Gopal Das v Sri Thakurji, AIR 1943 PC 83, the Privy Council held: Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.

Page 5 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY While the above cases dealt with civil matters, in PC Purshothama Reddiar v S Perumal, (1972) 1 SCC 9, dealing with a criminal matter also the Supreme Court held that at the trial stage the police reports “were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.” The above issues were considered in depth by the Apex Court in Sonu @ Amar v Haryana,76 in the context of admissibility of electronic CDs without the certificate under section 65B and the absence of objection from the opposite party. Pointing out that “that an electronic record is not admissible unless it is accompanied by a certificate as contemplated under section 65B (4) of the Evidence Act, 1872 is no more res integra”,77the Court referred to the earlier judgements and observed: The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.78

Absence of Objection—Waiver In RVE Venkatachala Gounder v Arulmigu Visweswaraswami, (2003) 8 SCC 752, after referring to objection as to admissibility of a document and as to the mode of proof, the Supreme Court observed: Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.

In Sonu @ Amar v Haryana,79 the Court stated that the cases referred to above related to civil matters and the question still is whether the waiver can be applied as against an accused in a criminal case. The Apex Court referred to the Full Bench decision of the Bombay High Court in Shaikh Farid v Maharashtra, 1983 Cr LJ 487 : (1981) 83 Bom LR 278, wherein the High Court referred to the amended section 294 of Cr PC, clause (3) of which provides: Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved. The Full Bench of the High Court held: Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the document sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality.80

After referring to the above, the Apex Court held that the judgment in Shaikh Farid is not “relevant” to Sonu as under section 294 “in case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act.”81 In other words, where the “genuineness” of the document is admitted by both the parties, proof of “signature” is dispensed with, and there is no need for objection because there is no “dispute” and, hence, there is no question, as the Full Bench mistakenly assumed, of any “right to object” or any “waiver” at all. In Sonu the appellant relied on a judgment of the Privy Council in Chainchal Singh v King Emperor, AIR 1946 PC 1 : (1946) 48 Bom LR 284, in which it was held: “In a civil case, a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence”. Chainchal Singh dealt with a case where the issue was whether the testimony given by a witness in an earlier judicial proceeding could be

Page 6 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY read into a subsequent proceeding under section 33 of the Evidence Act, 1872 if the accused had no objection. The Privy Council held that the Court must be careful to see that the conditions on which the statute permits previous evidence given by the witness who is “incapable of giving evidence” are strictly proved.82 Two Critical Issues It is submitted that two different critical issues are involved here. 1. Firstly, as in the case of proof of a document, section 64 requires that it must be proved by primary evidence except in the cases mentioned in section 65. In such a case a party may choose not to object to the proof of a document by the opposite party and may allow the document to be proved by secondary evidence. Section 64 is intended to safeguard a party from proof of documents by secondary evidence which includes under section 63 (5) even oral accounts of the contents. However, he may choose to forego the right to object and waive it in a given case if he thinks that his interests will not be prejudiced thereby. 2. Secondly, the more intricate question may be that of compliance with the express provisions of the Evidence Act, 1872 before the evidence can be let in with the consent of the affected party. Here again, the nature of the compliance with provisions of the Act may be of two kinds: (A) Procedural Provisions: The provisions of the Evidence Act, 1872 requiring compliance may have been intended to ensure procedural guarantee of authenticity but not of veracity. One example is compliance of the electronic records with the requirement of a certificate under section 65B of Evidence Act which has been held by the Supreme Court to be mandatory.83 It is obvious that section 65B is intended to safeguard the interests of the parties and if both the parties consent the document may be admitted in evidence without the certificate and section 294 (3), Cr PC, referred to above, will apply. Hence, in Sonu @ Amar v Haryana84 it was held: Chainchal Singh’s case85 therefore, does not lay down a general proposition that an accused cannot waive an objection of mode of proof in a criminal case [i.e. section 33]. In the present case, there is a clear failure to object to the mode of proof of the CDRs [i.e. section 65B] and the case is therefore covered by the test in R.V.E. Venkatachala Gounder [i.e., waiver].86 (B) Substantive Provisions: As seen above, under section 33 of the Evidence Act, 1872 the testimony given in an earlier proceeding can be brought on record in a subsequent judicial proceeding if the substantive conditions of the section are strictly complied with and it is proved that the witness is dead, not found, incapable of giving evidence. A similar provision is section 299 of Cr PC, which provides that the testimony of witnesses recorded when the accused was absconding can be taken on record in his trial after his arrest. In this regard it is necessary to discuss decisions which throw light on different aspects of the matter of compliance with substantive provisions. While one strand of decisions relates to section 33 of Evidence Act, 1872 the other strand relates to section 299 of Cr PC. While issues relating to secondary evidence and sections 63 and 65 may not per se prejudice the rights of the accused, section 33 of the Evidence Act and section 299 of Cr PC relate to the presentation of the testimony of witnesses before the Court trying the case of the accused and recording of evidence of the witnesses in the presence of the accused, respectively and, hence, directly impact the extremely important right of the accused to observe the demeanour of the witness during examinations, cross-examine the witness, challenge his veracity and so on. Importantly, both section 33, Evidence Act, and section 299, Cr PC, are by way of an exception to the cardinal right of the accused to cross-examine a witness in the presence of the later trial Court. (a) Section 299, Cr PC Decisions: In Nirmal Singh v Haryana, (2000) 4 SCC 41, the Supreme Court said that section 299 being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded and that there is no immediate prospect of arresting him.

Page 7 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY As pertinently pointed out by Justice S B Sinha in Jayendra Vishnu Thakur v Maharashtra, 2009 (7) SCC 104 (1), paras 13–14: The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right ... The Sixth amendment of the United States Constitution explicitly provides therefor87 ... We may, however, notice that such a right has not yet been accepted as a fundamental right within the meaning of Article 21 of the Constitution of India by the Indian courts. In absence of such an express provision in our constitution, we have to proceed on a premise that such a right is only a statutory one. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character.

Sinha J, emphasised that “existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character.”88The learned justice pointed out that “the term ‘proved’ having been used in the section [section 512 of old CrPC and present S. 299], providing for an exception to the general rule, was required to be strictly construed.”89 Moreover, while sections 33 and 299 are both an exception to the basic right of the accused to have the prosecution evidence presented in his presence in the trial Court, section 299 constitutes a further erosion of that right by laying down an exception even to section 33 by denying him the right of crossexamination also. In State v Punnu, 2012, Delhi HC, 2012 (195) DLT 496, para 13, the Delhi High Court held: Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299 (1) of the Code of Criminal Procedure.

(b) Sections 33 and 165, Evidence Act, 1872 Decisions Under section 165 the judgment of the Court must be based on facts which are “declared by this Act to be relevant and duly proved”. So, if the testimony of a witness recorded in an earlier proceeding is to be read into a subsequent case, the conditions of section 33 are to be complied with. The question in some cases was whether a party can waive his objections and allow the testimony to be admitted even if the conditions of section 33 are not “duly proved” as required under section 165. In Ponnusami Pillai v Singaram Pillai, (1918) ILR 41 Mad 781, the Madras High Court referred to the decision in Sri Rajah Prakakasarmyanim Varu v V Venkata Row, (1912) ILR 38 Mad 160, “in which it might appear that the consent of parties was held to be sufficient” to admit the earlier testimony,90 and said that “but the attention of the learned Judges does not seem to have been drawn to the stringent provisions of section 165” and “we are justified in declining to follow their decision.”91 In Jainab Bibi Saheb v Hyderally Saheba, (1920) 38 Mad LJ 532,92 described as “the leading authority”,93 it was held by the Privy Council that the deposition of a witness in an earlier proceeding would be admissible in a later proceeding between the same parties and on the same issues under sections 33 and 165 of the Evidence Act, 1872 if the parties agree even if the conditions of section 33 are not complied with. Affirming Sri Rajah and over-ruling Ponnusami Pillai, Coutts Trotter J, held: It is clear that in this country neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion will validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. A wholly different question arises, where objection is not as to the nature and quality of the evidence in itself but merely as to the mode of proof put forward. I agree that consent can cure what would otherwise be a defective method of letting in evidence in its substance and context relevant and germane to the issues.94

In the same case Wallis J, also held that section 33 makes the prior testimony admissible “in the circumstances set out in the rest of the section” and that “the effect of the section is to make the evidence admissible in the circumstances specified independently of the consent of the parties.” He further held that “if the Court could make such depositions admissible even without the consent of parties, the case for admitting them by consent is even stronger ... it is not only not opposed to public policy but entirely in accordance with it”.95 But, it is submitted, with respect, that under section 33 even the Court can admit prior testimony only if the requisite conditions are strictly complied with, but if the testimony is to be admitted on the basis of the consent of the party, all the safeguards under that section are given a go by.

Page 8 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY Appraisal It is evident from the above discussion that the legal position of section 299, Cr PC is governed by the judgement of the Supreme Court in Jayendra Vishnu Thakur vMaharashtra, 2009 (7) SCC 104 (1), whereas of section 33 is governed by the Privy Council decision in Jainab Bibi Saheb v Hyderally Saheba, (1920) 38 Mad LJ 532, both the authorities laying down diametrically opposite principles. As is evident from the judgement of Justice Sinha in Jayendra this judicial antinomy might have arisen because section 299 results in a more serious compromise of the traditional rights of the accused which are considered sacrosanct in criminal jurisprudence. As was held in Kartar Singh v Punjab, (1994) 3 SCC 569, para 278, “It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief ...” Though it is true that it can be said that it was the accused who put himself in that plight by absconding, the fact remains that (1) absconding is not always “flight from justice”96, (2) though the “right to confront a witness” is cot a Constitutional right but only a statutory right in India, its denial to the accused will seriously prejudice his Fundamental Right to fair trial under Articles 14 and 21 of the Constitution, and (3) ultimately, it is the interests of criminal justice that will suffer. It is true that an appellate Court decides the fate of the accused convicted by the trial Court on the basis of evidence that was not presented before it but before the trial Court, and there are instances where the Courts have held the earlier testimonies admissible on the basis of consent of the accused even when the provisions of section 299 were not complied with.97More importantly, it is true that under section 138 cross-examination needs to be conducted “only if the adverse party so desires” and the accused can, for his own reasons, waive his right to cross-examine a witness. It is noteworthy that, unlike in the UK, India has a written Constitution and most of the rights of the accused are either expressly conferred as Fundamental Rights or necessarily derived from those rights by the judiciary.98 It will not be desirable in the best interests of justice to allow exceptions to be grafted to sections 33 and 299 which are themselves exceptions to the basic rights of the accused, and their pre-requisite conditions must be considered as nonderogable and, as Justice Sinha held, “must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character.” Just as those pre-conditions are beyond the pale of judicial intervention and exemption, they must also be considered as not subject to waiver by the accused. 3.4.3.2 Relevancy and Admissibility—Lack of Clarity In the light of the above discussion, it is respectfully submitted that there is some lack of clarity in the use of the term “relevant” in the Evidence Act, 1872. GC Whitworth in his famous and well-received critique of Stephen’s concept of relevancy pointed out that the meaning of “relevant” differed as between the “circumstantial evidence” sections and the “hearsay exceptions” sections. In the circumstantial evidence sections it referred to the natural probative tendency of the evidence. In the hearsay exceptions sections it referred to the question of whether inherently probative evidence should or should not be excluded for prudential reasons–reasons other than its lack of probative tendency.99 In fact, Stephen himself accepted the validity of Whitworth’s criticism and said: My theory was expressed too widely in certain parts, and not widely enough in others; and Mr. Whitworth’s pamphlet appears to me to have corrected and completed it in a judicious manner. I have accordingly embodied his definition of relevancy, with some variations and additions, in the text. The necessity of limiting in some such way the terms of the 11nth section of the Indian Evidence Act may be inferred from a judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parbhudas and others ...100

Some conceptual confusion has arisen because of clubbing together of the sections dealing with relevancy (like sections 6, 7, 8, 9) and “irrelevancy” (like sections 24, 25, 26) under the same chapter on relevancy. There is, of course, no doubt that Sir James Stephen was fully aware of the clear distinction between “relevancy” and “admissibility” as is evident from section 136. But the use of the terms “relevant” and “irrelevant” in sections 24, 28 and 29 has led to some lack of clarity.101 Section 24 says that a confession made by an accused person is “irrelevant” in a criminal proceeding if it was made to a person in authority under inducement, threat or promise. In stead of the term “irrelevant”, “inadmissible” would have been more appropriate because a confession made by the accused himself is unquestionably relevant as it is a best piece of evidence.102 Though it is relevant, it becomes inadmissible if it was made under circumstances mentioned in section 24 that throw doubts regarding the voluntary nature of the confession. While section 24 says that the confession covered by the section is “irrelevant in a criminal proceeding”, sections 25 and 26 adopt a different terminological formulation and provide that confessions made to police officers and made in police custody “shall not be proved” against a person accused of an offence. Similarly, section 28 provides that a confession hit by section 24 is “relevant” if the impression caused by the inducement, threat or promise is removed. Here again, the more appropriate term is “admissible” and not “relevant”.

Page 9 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY Section 29 uses both the terms “relevant” and “irrelevant” and says “if such a confession is otherwise relevant, it does not become irrelevant” merely because it was made under deception or false promise of secrecy. It is submitted that better formulation would be “if such a confession is otherwise relevant, it does not become inadmissible” merely because it was made under deception or false promise of secrecy. Likewise, section 54 provides that “in criminal proceedings, the fact that the accused person has bad character is irrelevant.” It is difficult to see how the bad character of the accused could be “irrelevant” in a criminal proceeding though the law might, on policy grounds, treat that as inadmissible. If once a piece of evidence is shown to be relevant under one section or the other of sections 6 to 55, it cannot become irrelevant for any reason but can only become inadmissible because of certain circumstances or reasons.103 3.4.4 Reliability Just because certain facts are found to be relevant and admissible, it does not necessarily mean that the Court is going to rely on them. The facts adduced as evidence must be material to the fact in issue and as the Law Reform Commission of Ireland stated, “the requirement that the probative value of the evidence must relate to an issue before the court is sometimes referred to as the requirement of ‘materiality’.”104 As the Supreme Court stated in Anvar PV v PK Basheer, 2014 (10) SCC 437, para 1., “Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.” In Samuel Dalu v R, Unreported,105 Palmer J, observed: It is trite law that matters on weight of evidence are matters for the Magistrate (as judge of both law and fact) to decide upon. Questions on the weight of evidence are not determined by arbitrary rules, but by common sense, logic and experience.

In R v Madhub Chunder, (1874) 21 WR (CR) 13, at p 19. Birch J, said: For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited.

In a landmark decision on issues relating to relevancy, the Supreme Court of Canada (per McLachlin CJ) observed in R v DAI, 2012 SCC 5 : [2012] 1 SCR 149: it is important to distinguish between three different concepts that are sometimes confused: (1) the witness’s competence to testify106; (2) the admissibility of his or her evidence107; and (3) the weight108 of the witness’s testimony.109

Her Ladyship stated further: It is the task of the judge or jury to weigh the probative value of each witness’s evidence on the basis of factors such as demeanour, internal consistency, and consistency with other evidence, and to thus determine whether the witness’s evidence should be accepted in whole, in part, or not at all.110

In India, where the jury system has been abolished111 it is the Court which decides all the three issues of relevancy, admissibility and reliability. The test of reliability is the threshold for proof and applies to all and any of kinds of evidence, and it should be determined objectively on the basis of legally admissible facts.112 Reliability depends on the Court’s own assessment and evaluation of the entire evidence adduced by both the parties to a suit or proceeding, and the Evidence Act, 1872 leaves this mental process of evaluation of witnesses and evidence entirely to the judicial expertise and wisdom.113 In Crawford v Washington, 541 US 36 - Supreme Court 2004, Justice Scalia of US Supreme Court observed: “Reliability is an amorphous, if not entirely subjective, concept.” The Evidence Act does not lay down any guidelines in this regard except for a rare reminder like the one in section 114, Illustration (b) that “an accomplice is unworthy of credit unless he is corroborated in material particulars” and section 34 where it is stated that entries in the books of account “shall not alone be sufficient evidence to charge any person with liability” and this is further clarified by stating in the illustration “without other evidence.” Phipson emphasises that: evidence is anything which tends to persuade an inquirer of the existence or non-existence of some fact or situation which

Page 10 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY he is enquiring about. It need not in fact persuade the inquirer; it is enough that it tends to persuade him. The enquirer may disbelieve it or prefer contrary evidence which he finds more persuasive.114

Thus, the core of the concept of “evidence” is relevancy and not its actual reliability or virtual proof. Relevancy is generic and relates to classes or categories of facts determined by law, but reliability and proof are case-specific. Relevancy is within the domain of legislative function whereas reliability and proof are within the domain of judicial function. The following conclusions may be drawn from the above discussion: 1. Under English law, all logically relevant facts are admissible unless they are barred by any legal provisions. 2. Under the Evidence Act, 1872 no logically relevant facts are admissible unless they are legally relevant. 3. Under the Evidence Act, for legal relevancy the only test is whether the facts are declared to be relevant under any of the sections 6 to 55. 4. Hence, all logically relevant facts are not legally relevant. 5. All legally relevant facts are also admissible unless they are barred by any of the exclusionary provisions contained in (a) Chapter on relevancy, or (b) other provisions of Evidence Act or (c) of Cr PC or other statutes. 6. In short, a) No logically relevant facts are legally relevant unless they are declared to be relevant under sections 6–55 of the Evidence Act. b)

Conversely, all legally relevant facts are legally admissible unless they are barred by one or the other sections of the Evidence Act or some other law like Cr PC.115

7. Hence, under the Evidence Act, questions of relevancy and admissibility are to be answered by reference to law only.

53 Sir Richard Eggleston wrote that the relationship between relevance and admissibility in the law of evidence is a subject which “abounds in ambiguities.” Eggleston, “The Relationship between Relevance and Admissibility in the Law of Evidence”, in Glass (ed), Seminars on Evidence, (1970) 53, at p 54. 54 Hadu v State, AIR 1951 Ori. 53. 55 In fact, Stephen first defined relevancy as ‘the connection of events as cause and effect”. A Digest of Evidence, 12th Edn, 1931, Note vi. But in the later editions of his Digest, Stephen appears to have preferred the test of probative value, i.e., whether a fact “proves or renders probable” another fact to which it is legitimately relevant. See also A Digest of Evidence, 12th Edn, 1931, Note vi, Appendix on “Relevance”, pp 231–240. Section 7 of the Evidence Act deals with relevancy of cause and effect. 56 However, Section 6 of the Evidence Act states that facts may be relevant as forming part of the same transaction “whether they occurred at the same time and place or at different times and places”. 57 Section 10 of the Act deals with the relevancy of common intention. 58 The Law Commission of India observed: “In other words, one fact is relevant to another fact, if it is connected in any way as described in sections 6 to 55.” See 185th Report of the Commission, p 12. http://lawcommissionofindia.nic.in/reports.htm (Last accessed in April 2019). 59 New Zealand Evidence Act, 2006, contains an interesting provision by which the parties are given certain autonomy in deciding on questions not only as to admission of legally inadmissible evidence but also the mode of proof of the evidence. Section 9 of the Act provides, inter alia: “Admission by agreement— (1) In any proceeding, the Judge may,— (a)

with the written or oral agreement of all parties, admit evidence that is not otherwise admissible; and

(b)

admit evidence offered in any form or way agreed by all parties.” Section 101 of the UK Criminal Justice Act, 2003 provides, inter alia: Defendant’s bad character—

(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— (a)

all parties to the proceedings agree to the evidence being admissible.

Page 11 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY These provisions approximate adjudication to arbitration in granting autonomy to the parties in the matter admissibility of evidence. For instance, under section 19 of the Indian Arbitration and Conciliation Act, 1996, “the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.” 60 In the case of Ram Bihari Yadav v Bihar, 1998 AIR 1850 SC, the Supreme Court observed: “More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.” 61 In State of UP v Raj Narain, 1975 AIR 865 : 1975 SCR (3) 333, the Court said: “Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.” Black’s Law Dictionary says that “As applied to evidence, the term means that it is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced.” Henry Campbell Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 4th Edn, (St. Paul, Minn., 1968), p 68. 62 Ho Hock Lai, A Philosophy of Evidence Law: Justice in Search for Truth, Oxford University Press, 2008, p 43. 63 Ho Hock Lai, A Philosophy of Evidence Law: Justice in Search for Truth, Oxford University Press, 2008, pp 36–38. 64 In Smith v The Queen, 2001 HCA 50, the High Court of Australia observed: “... although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received.” Emphasis in the original. 65 M C Sarkar et al., Sarkar’s Law of Evidence, vol 2, New Delhi, 2003, pp 73–74. 66 State v Jagdeo, 1955 All LJ 380. 67 Sumitra v Ramkumar, AIR 1946 Bom 193; Miller v Madhava, 19 All. 76. 68 Sir James Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, Macmillan Co, London, 1872, p 6; and Sir James Stephen, Digest of Law of Evidence, Macmillan and Co, London, 1876, Introduction, p viii. 69 See the discussion infra after section 66. 70 Kalyan People’s Co-op Bank Ltd v Dulhanbibi Aqual Aminsaheb Patil, AIR 1966 SC 1072 : [1963] 2 SCR 348. 71 In Inugunti Prakasa Rajaningaru v Yeranki Venkata Rao, 21 IC 319 : 38 Mad 160 : 25 Mad LJ 360 : (1913) Mad WN 800, Odgers J, said: “The facts admitted in evidence being themselves relevant, the provisions of law intended to test the credibility of witnesses, or to enable the Trying Judge to make the test himself are not of such an important character that parties cannot waive the benefit of those provisions.” Odgers J, reiterated his opinion in Gonnabathula Thammayya v Gonnabathula Chinnayya, (1925) 92 IC 594, “in the present case, ... there has been consent or waiver of objection to the mode in which these statements: which are admittedly relevant under the Evidence Act should be admitted to the-record.” 72 In Kalyan People’s Co-operative Bank Ltd v Dulhanbibi Aqual Aminsaheb Patil, AIR 1966 SC 1072 : [1963] 2 SCR 348 : 65 Bom LR 326, it was held: “While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of Court or the Tribunal without following the regular mode, if parties agree.” 73 Ramesh Chandra Agrawal v Regency Hospital Ltd, AIR 2010 SC 806. 74 This is an estoppel like situation. 75 In Padman v Hanwanta, AIR 1915 PC 1, para 11, the Privy Council held: “It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar’s office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied.” 76 http://supremecourt.gov.in/supremecourt/2013/2036/2036_2013_Judgement_18-Jul-2017.pdf (2017) (last accessed in April 2019). 77 That is so in the light of the Supreme Court decision in Anvar PV v PK Basheer, 2014 (10) SCC 437. See infra for detailed discussion of this and other cases, Chapter 14, under section 65B. 78 Sonu @ Amar v Haryana, Criminal Appeal No. 1418 of 2013, 18 July 2017 (Supreme Court of India Criminal Appellate Jurisdiction).

Page 12 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY 79 http://supremecourt.gov.in/supremecourt/2013/2036/2036_2013_Judgement_18-Jul-2017.pdf (last accessed in April 2019). 80 Shaikh Farid v Maharashtra, 1983 Cr LJ 487 : (1981) 83 Bom LR 278, para 7. Emphasis added. 81 Sonu @ Amar v Haryana, http://supremecourt.gov.in/supremecourt/2013/2036/2036_2013_Judgement_ 18-Jul2017.pdf, para 30 (last accessed in April 2019). 82 Chainchal Singh v King Emperor, AIR 1946 PC 1 : (1946) 48 Bom LR 284, para 4. 83 See the discussion under sections 65A and 65B in Chapter 14 infra. 84 Para 28, Criminal Appeal No. 1418 of 2013, 18 July 2017 (Supreme Court of India Criminal Appellate Jurisdiction). 85 Chainchal Singh v King Emperor, AIR 1946 PC 1 : (1946) 48 Bom LR 284. See discussion above pertaining to RVE Venkatachala Gounder v Arulmigu Visweswaraswami, (2003) 8 SCC 752. In Chainchal the Court held that the provisions of section 33 must be strictly complied with and they cannot be waived. 86 See the discussion above pertaining to Gopal Das v Sri Thakurji, AIR 1943 PC 83. 87 The 6th Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...” 88 The 6th Amendment, para 14. 89 The 6th Amendment, para 16. 90 It must be pointed out that Sri Rajah case was concerned with validity of taking on record by a Subordinate Judge of the testimony recorded earlier by the District Munsif who was held to have lacked pecuniary jurisdiction in the case. Madras High Court held that there was nothing wrong in accepting the evidence with the consent of the parties even if Munsif’s Court was coram non judice. In fact the Court declined to express any opinion as to application of this principle to section 33. Sri Rajah Prakakasarmyanim Varu v V Venkata Row, (1912) ILR 38 Mad 160, para 1. Sundara Iyer J, mentioned in earlier case-law where the Courts have admitted testimony of witnesses in breach of section 33 and held that they “are not of such an important character that parties cannot waive the benefit of those provisions.” 91 Ponnusami Pillai v Singaram Pillai, (1918) ILR 41 Mad 781, para 4. Re Paravada China Venku Naidu v Unknown, 1922, 72 IC 525, para 2, it was held that “Now, it may be taken as a general principle of the Code of Criminal Procedure that evidence taken by one Magistrate is not evidence in a trial before another Magistrate unless some provision of law expressly makes it so. Mere consent of parties will not do.” 92 This case was reference as to the correctness of the ruling in Ponnuswami Pillay v Singaram Pillay, (1918) ILR 41 Mad. 731. 93 By Justice Butler in A Ramaswami Naidu v Meera Muhaideen Rowther, 1934, Madras High Court, 151 IC 621, para 3. 94 By Justice Butler in A Ramaswami Naidu v Meera Muhaideen Rowther, 1934, Madras High Court, 151 IC 621, para 4. In the same case, Krishnan J, said: “I can see no difficulty in holding that a party may waive the benefit of those provisions which are intended for his benefit at any rate in a civil suit where no question of public policy is involved whatever the position may be in a criminal trial. A civil suit is a proceeding inter parties and as parties can by consent settle its final result by having a consent decree passed, there is no reason why they should not be permitted to consent to treat something as evidence of a relevant fact which it may not otherwise be ...” 95 Wallis J, observed: “Though differently worded this section has really much the same effect as Order 37, Rule 3 of the Rules of the Supreme Court which enables the Court to order evidence taken in another case to be read. This is in accordance with the old Chancery practice which is stated as follows in Daniel’s Chancery Practice Chapter XII section 2 (1) p 515: ‘Evidence taken in another Court may be read in a cause on production of a copy of the pleadings if the two suits are between the same parties or their privies, and the issue is the same; and such depositions are admissible in’ evidence in the former cause”. Jainab Bibi Saheb v Hyderally Saheba, (1920) 38 Mad LJ 532, paras 1 and 4. 96 The accused might have fled out of fear. See the discussion under the heading “Subsequent Conduct” under section 8 infra. 97 In Maharajah Jagutendur Banwaree v Din Dyal Chatterjee, (1884) 1 WR (CR) 309, at p 310, and Lakshman v Amrit, (1900) ILR 24 Bom 591, statements made by witnesses in a former suit were held to be admissible with the consent of parties. In Syed Mahomed v Romdah Khanum, (1870) 13 WR 184, deposition not taken before the Judge who completed the trial were admitted though there was then no legislative provision allowing this to be done. Also, Naranbhai Vrijbhukandas v Naroshankar Chandroshankar, (1867) 4 BHCR 98, and Jadu Rai v Kanizak Husain, (1886) ILR 8 All 576 (FB). In Sreenath Roy v Goluck Chander Sein, (1871) 15 WR 348, evidence given in a suit to which the person consenting was not a party and had then no opportunity to test by cross-examination, was held to be rightly admitted. In Ramaya v Davappa, (1906) ILR 30 Bom 109, it was held that consent made evidence, which might be recorded illegally or without jurisdiction by the trying Judge at the disputed locality, admissible. 98 In Jainab Bibi Saheb v Hyderally Saheba, (1920) 38 Mad LJ 532, para 4, Willis J, said: “The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England, and must now be taken to be the settled practice which is the law of the Court. There is in my opinion no sufficient reason for holding that a different

Page 13 of 13 3.4 LOGICAL RELEVANCY, LEGAL RELEVANCY, ADMISSIBILITY AND RELIABILITY rule is applicable in India where the practice in cases such as the present is scarcely less well established than in England.” The justification for a different rule in India is that, as Sinha J, said in Jayendra, many of the rights of the accused are either guaranteed expressly by the written Constitution as in USA, or are necessarily derived from it as statutory rights. In Sri Rajah the Madras High Court opined that “they are not rules of public policy which the parties cannot waive.” Sri Rajah Prakakasarmyanim Varu v V Venkata Row, (1912) ILR 38 Mad 160. It is noteworthy that Sir James Stephen, who was aware of the English law on the subject, thought it necessary to entrench section 33 within crucial prerequisite conditions and did not leave the power either to the Court or to the waiver of the parties and it shows that in India the issues were considered as concerns of public policy. That is more so after the advent of the Constitution. 99 GC Whitworth, The Theory of Relevancy for the Purpose of Judicial Evidence, 1875. 100 Sir James Stephen, Digest of Law of Evidence, Macmillan and Co, London, 1876, p 136, Note 6 to Article 9. See also KJM Smith, James Fitzjames Stephen–Portrait of a Victorian Rationalist, Cambridge, 1988, p 86ff; John D Heydon, “Reflections on James Fitzjames Stephen”, Queensland Law Journal, July 2010, p10. 101 R Cross, Evidence, 4th Edn, London, 1974, p 25. 102 See Law Commission of India, 69th Report on the Law of Evidence, p 70, para 6.98. 103 Pollock called Stephen’s notions of relevancy and admissibility as “a splendid mistake”. Frederick Pollock, “Review of Thayer’s Preliminary Treatise”, 15 Law Quarterly Review 1899, p 86. Pollock and Thayer “criticized Stephen for lacking a clear conception of admissibility, distinct from relevance on one hand and materiality on the other.” See Peter Murphy, ed, Evidence, Proof and Facts—A Book of Resources, California, 2003, p 55. 104 Consultation Paper on Hearsay in Civil and Criminal Cases, March 2010, (LRC CP 60 - 2010), para 2. 61. 105 Criminal Case No. 43 of 1992, p 1, quoted in Phipson, on Evidence, 10th Edn, para 2011. See also Criminal Law in Solomon Islands, Royal Solomon Islands Police, Chapter 8: Admissibility of Evidence, http://www.paclii.org/sb/criminallaw/ch8-admissability-of-evidence.htm. (last accessed in April 2019). 106 “Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” to testify.” R v DAI, 2012 SCC 5 : [2012] 1 SCR 149, para 16. 107 “Evidence may also be inadmissible if it falls under an exclusionary rule, for example the confessions rule or the rule against hearsay evidence.” R v DAI, 2012 SCC 5 : [2012] 1 SCR 149, para 17. 108 “The third concept — the responsibility of the trier of fact [i.e., the Court or the jury] to decide what evidence, if any, to accept”. R v DAI, 2012 SCC 5 : [2012] 1 SCR 149, para 18. 109 R v DAI, 2012 SCC 5 : [2012] 1 SCR 149, para 13. 110 R v DAI, 2012 SCC 5: [2012] 1 SCR 149, para 18. 111 See the discussion under section 166. 112 Section 167 says that “the judgment must be based upon facts declared by this Act to be relevant, and duly proved.” 113 Sir Stephen observed: “The rules of evidence may provide tests, the value of which has been proved by long experience, by which judges may be satisfied that the quality of the materials upon which their judgments are to proceed is not open to certain obvious objections; but they do not profess to enable the judges to know whether or not a particular witness tells the truth or what inference is to be drawn from a particular fact. The correctness with which this is done must depend upon the natural sagacity, the logical power, and the practical experience of the judge, not upon his acquaintance with the law of evidence.” Sir James Fitzjames Stephen, The Indian Evidence Act (I. of 1872): With an Introduction of the Principles of Judicial Evidence, Macmillan Co, London, 1872, p 42. 114 Derek William Elliott, Sidney Lovell Phipson, Manual of the Law of Evidence,12th Edn, London, 1987, p 3. 115 The position is same in USA also. The US Federal Rules of Evidence provide in Rule 402: “Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”

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Sections 6-16 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

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4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) S. 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 form 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 goods 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 intermediate persons successively. Each delivery is a relevant fact. 4.1.1 Res Gestae–”Facts Forming Part of Transaction” Section 6 deals with relevancy of “facts forming part of the same transaction”1 and the principle behind the section is that when a Court is dealing with a transaction, naturally all the facts that constitute that transaction may have to be gone into. This principle is based on the English doctrine of res gestae and the Latin phrase means “things done”. The use of the words res gestae has been avoided in section 6 because of lack of specificity of the concept in English law.2 The concept of Res Gestae has come to be used as meaning hearsay, circumstantial evidence and so on.3 In Ratten v R, [1971] 3 All ER 801, at p 806, the Privy Council said that it is an “opaque or at least imprecise Latin phrase” which “like many.... is often used to cover situations insufficiently analysed in clear English terms”. Wigmore opined that it ought to be: wholly repudiated, as a vicious element in our legal phraseology...an empty phrase... encouraging to looseness of thinking and uncertainty of decision.4

Julius Stone thought that it was “the lurking place of a motley crowd of conceptions in mutual conflict and reciprocating chaos.”5 It is said that when a lawyer finds no way of getting a fact admitted in a Court of law, he can always plead that it is relevant as res gestae.6 It must, however, be pointed out that though the Evidence Act, 1872 does not employ the phrase res gestae anywhere, the spirit behind the doctrine of enlarging the focus of spotlight of relevancy to cover certain surrounding

Page 2 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) facts has been incorporated not only in section 6 but also in sections 7 to 10. 4.1.2 Res Gestae—Exception to Hearsay The doctrine of res gestae is considered to be an exception to the hearsay rule. Hearsay7 is sometimes classified into two kinds, viz, (a) Individual Hearsay and (b) Composite Hearsay.8 Illustration (a) to section 6 says: 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.

Thus, “despite the frequent references in cases on res gestae to the evidence of the victim, it seems to be clear that any person’s evidence may be res gestae, including any witness and the accused.”9 A might say something in his anger and B might say something in agony or raise a hue and cry. Persons who gathered there might also vent their feelings of outrage at the murder taking place right in front of them. If a witness deposes in the Court as to what was said by A or B, it is individual hearsay and where he testifies about what a group of by-standers have said, it is composite hearsay. If A or B deposes as to what he said at the occurrence, that would be direct evidence, but the deposition of the witness as to what A or B said is hearsay. Again, it may not be possible to identify the bystanders or call all of them as witnesses; consequently, witnesses may be called to testify as to what the bystanders have said.10 Here, “the word ‘bystanders’ means the persons who are present at the time of incident and not the persons who gather on the spot after it.”11 4.1.3 Transaction The oft-quoted definition of the term “transaction” is that of James Stephen who said that it is: A group of facts so connected together as to be referred to by a single legal name, as a crime, a wrong or any other subject of enquiry which may be in issue.12

A transaction may be looked at from different angles: 1. A transaction may consist of not one fact but a set of facts which are connected to each other and constitute a whole. Stephen’s definition highlights this aspect. 2. Sarkar says: “A transaction may constitute a single incident occupying a few moments or it may be spread over a variety of acts, declarations etc, occupying much longer time13 and occurring on different occasions.”14 Sarkar is emphasizing that a transaction might be comprised of plurality of (a) durations, (b) acts, and (c) occasions. 3. But here, a distinction must be made: (i) the existence of a tree is a state of things, (ii) falling of a tree is an event15 and (iii) felling of a tree is an act.16 All the three are facts. A “state of things” need not consist of inanimate objects only. For, instance, “drunken driving” as a “transaction” is a state of things and the law can make it, per se, punishable irrespective of whether it causes injury to somebody, and if it causes injury the law can make that “act” also punishable. However, a “transaction” does not consist of all kinds facts, events or occurrences but only those which are the outcomes of exertion of human will whether they fall under “state of things” or “acts” to which the law attaches a label as, for instance, a “contract”, “tort” or an “offence”. Within the meaning of section 6 that a man “fell” from the top of a tower is an event and not a transaction but that he “jumped” or was “pushed” from it and died is a transaction.17 Again, a “transaction” like “murder” may consist of “physical fact” of killing and also the “psychological fact” of mens rea within the meaning of the definition of “fact” in section 3. 4. A transaction can be a one-off event like a gun-shot or it can be a continuing offence18 or tort like trespass19, terminable at the will of the doer or by the intervention of law. “Continuing offence” as a transaction can be looked at from three angles: continuity from the point of commission (a) over a period of time (b) of different acts, and (c) at different places. If the offence is a continuing one and is committed in more than one place, the Courts in those areas can exercise concurrent jurisdiction.20 Unless the Court looks at the entirety of those facts, it will not be able to come to a conclusion as to the nature of the transaction.

Page 3 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) The facts given in illustration (a) show that the event of A murdering B by beating him consists of not only the act of beating but also certain surrounding facts like the utterances of A, the cries of B in agony, and the spontaneous outpourings of the bystanders. But they have all occurred at the time of beating or “shortly before or after” it, as the illustration says. The acts and utterances have all occurred at about the same time and place. The utterances are spontaneous and contemporaneous. On the other hand, illustration (b) deals with the offence of “waging a war against the Government of India” committed by A, as part of which property is destroyed, troops are attacked and jails are broken open, obviously in concert with different persons and at different times.21 While in the “transaction” of murder in illustration (a), the facts are “connected” to each other by unity of time and place, in the “transaction” of waging the war in illustration (b), the factor that connected together the persons, their acts and events was not the coincidence of time and place but the common intention and design that ran through like a thread. In fact, “waging the war against Government of India” is a “continuing offence” in the sense mentioned above. In fact, illustration (b) speaks of occurrence of various facts forming part of “general transaction”. The Courts appear to have applied different tests for bringing facts within the ring-fence of res gestae depending on whether the facts are physical facts or psychological facts. 4.1.3.1 Physical Facts From the illustrations to section 6, the judicial decisions and the opinions of authors, it can be gathered that the following tests have been applied to identify the nexus between “facts forming part of the same transaction”: (a) The cause and effect; (b) Occurrence at the same time; (c) Occurrence at the same place; and (d) Common purpose and design.22 In State of Andhra Pradesh v Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 : (1964) 3 SCR 297 : (1963) 2 Cr LJ 671, the Supreme Court said: it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.

As mentioned earlier, illustration (b) to section 6 and the illustration to section 10 clearly demonstrate that, in the case of waging the war against the Government of India, destruction of property, assault on troops, breaking open of the jails, publication of material advocating the aims and objects of the operation are all part and parcel of the same transaction called “waging the war against Government of India”, though these acts have been done by different persons, at different places and different times. In fact, section 6 itself says that facts may form part of the same transaction “whether they occurred at the same time and place or at different times and places.” Community of purpose and design is the cementing factor that put all those acts and facts in the basket of res gestae. 4.1.3.2 Psychological facts It may be pointed out that though speaking (exertion of vocal cords) is as much a physical act as lifting one’s hand, the Courts treated statements as part of psychological acts for the purpose of determining whether they are part of the same transaction under section 6. The rationale of this approach is that statements could be either of a person who is involved in the transaction itself or of a person who is merely reporting what has happened in the transaction. The person reporting may or may not be the person who participated in the transaction and as Jeffrey Fisher points out: a statement...saying, ‘Prince Jones, don’t shoot me!’ may have been admissible, but telling a third party that ‘Prince Jones just shot me’ was not.23

“Hue and Cry” Doctrine

Page 4 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) This is sometimes referred to as “Hue and Cry Doctrine”24 or “Excited Utterances Doctrine”. Rule 830 (2) of the US Federal Rules of Evidence, 1975 treats “Excited utterance” as an exception to hearsay rule and defines it as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Emergency calls to the police phone number 100 in India or 911 in USA by the victims or by-standers come under this category of hue and cry and may be relevant under section 6. The statements to be relevant under section 6 must have been contemporaneous to the event and spontaneous. Under section 6, illustration (a), statements are relevant if they are made “so shortly before or after” the event “as to form part of the transaction”. In a leading English case, R v Bedingfield, [1879] 14 Cox CC 341, Henry Bedingfield slashed the throat of Eliza Rudd, a widow and a laundry owner, inside a room and then slashed his own throat. Eliza rushed out and told a lady standing there: “See, auntie, what Harry has done to me”. She died but Bedingfield survived and faced the charge of murder. Eliza’s statement was sought to be adduced in evidence by the prosecution on two counts: as res gestae and as a dying declaration. As to res gestae, Lord Cockburn noted that the statement was res inter alios acta as it was made behind the back of the accused, and held: Anything uttered by the deceased at the time the act was being done would be admissible, as, for instance, if she had been heard to say something, as ‘Don’t, Harry!’ But here it was something stated by her after it was all over, whatever it was, and after the act was completed.

His Lordship also declined to treat the statement as a dying declaration as she was not under the expectation of death at the time she made the statement. This decision was widely criticized25 and was ultimately over-ruled in R v Andrews, [1987] 2 WLR 413, where the statement of the victim of robbery and stabbing as to the identity of his two assailants soon after the event was deemed admissible as it was spontaneous.26 An English case that makes an interesting contrast with Bedingfield is the Privy Council decision in Ratten v R, [1971] 3 All ER 801 : (1972) AC 378 : (1971) 3 WLR 930, a case that went in appeal from the High Court of Australia27 to the Privy Council. In Ratten, Leith Ratten was charged with the murder of his wife Beverley by shooting her in the kitchen. Leith was alleged to be having adulterous relationship with a family friend’s wife. At the trial, he took the plea that the gun went off accidentally while he was cleaning it but could not explain why it was loaded at that time. Evidence was led that moments before the shooting, a sobbing woman from Ratten’s house made a desperate call to the telephone operator, told her “get me the police, please”, and gave her the address. The call was suddenly terminated. The question was whether the telephone call and what she told the operator could be treated as part of res gestae. While in Bedingfield the woman made the statement to her aunt moments after her throat was slit, in Ratten, the wife made the critical call moments before she was shot at by Ratten. The Privy Council held that her telephonic call was part of res gestae. Lord Wilberforce observed: Hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or disadvantage of the accused.

His Lordship opined that the evidence of the call of the agitated woman could also be admitted as original evidence of the state of her mind.28 In 2016, in Subrati v State of UP, Allahabad,29 it was held that: the conduct of the mother of the victim [of rape] to go to search for her daughter when her daughter did not return home is very natural.... The statement of the mother of the victim immediately after the incident would be relevant under Section 6 of the Evidence Act.

Earlier in Rameshwar, Son of Kalyan Singh v State of Rajasthan, AIR 1952 SC 54 : 1952 SCR 377 : 1952 Mad WN 150 : 53 Cr LJ 547, ...it was held that the conduct of an eight-year old rape victim, where after gaining consciousness, she immediately told her mother about the act of rape, was very natural and was part of res gestae. The test of “naturalness” is a component of spontaneity. Here there are two different issues to be noted in Ratten’s case: (1) Did she make that call? and (2) Was what was stated by the woman in that call, true?30 As the Privy Council observed in Subramaniam v The Public Prosecutor, (1956) 1 WLR 965, a case that went in appeal from the Supreme Court of Malaya:

Page 5 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE)

It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but that it was made. The fact that it was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.31

It must, however, be pointed out that, for obvious reasons, the chances of statements being fabricated are higher in the case of statements made after the event than before the event. 4.1.4 U.K.—Common Law Rules of Hearsay Abolished Except Res Gestae etc As pointed out above, the Common Law doctrine of res gestae has been criticized by judicial and juristic opinion,32 and, consequently, section 118 of the Criminal Justice Act of 2003 of UK dealing with “Preservation of certain common law categories of admissibility” provides in Clause (2) that: With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished.

Section 118 which states in Clause (1) that “the following rules of law are preserved” refers in Clause (4) expressly to “res gestae” but confines the doctrine, inter alia, to: any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if (a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.33

Section 114 of the Act contains an overriding provision and states: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if: (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible.

Thus, under section 114 of the Criminal Justice Act, 2003, statements not made in oral testimony by a witness are admissible as res gestae if (a) they consist of excited statements, (b) all parties agree that they are admissible and (c) even if all the parties do not so agree, the Court considers them to be admissible in the interests of justice. Section 114, Clause (2) lays down the conditions according to which the Court must determine their admissibility. These conditions include probative value of the statements, reliability of the maker and the reasons for not calling him as witness. 4.1.5 Indian Position In Kameshwar Prasad v R, 1951 All LJ 149, it was observed: The res gestae may be defined as those circumstances which are the automatic and undersigned incidents of a particular litigated fact and which are admissible when illustrative of such facts...They are facts talking for themselves and not what people say when talking about the facts.

In the case of Krishan Kumar Malik v State of Haryana, AIR 2011 SC 2877 : 2011 Cr LJ 4275 : (2011) 7 SCC 130, the Supreme Court acquitted the accused of the charges of abduction and rape of the prosecutrix on the ground, inter alia, that: admittedly, she had travelled certain distance in the Maruti Van after her alleged abduction but she did not raise any alarm for help. This shows her conduct and behaviour during the whole process and render her evidence shaky and trustworthy.34

Page 6 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) In Hadu v State, AIR 1951 Ori. 53, one Hadu Samantha claimed to possess magical powers and the evidence on the side of the prosecution shows that the appellant and the deceased were on friendly terms and that the deceased was placing implicit confidence in the appellant. The appellant had taken a lob of gold and money from the deceased under the inducement that he would teach him some vidya whereby he could get gold and that he would perform a homa which would bring out to him golden pots from the earth.35 Bhima Panda fell prey to Hadu’s claims to divine powers and sold his property and handed over money to Hadu. When Panda became suspicious and asked for the return of money, Hadu is alleged to have murdered Panda by causing injuries with lethal weapons. Panda’s body was disposed of by carrying it in a cart and by dumping it in a water tank. The prosecution case depended on circumstantial evidence only which included the fact that (1) Bhima Panda was seen in the evening of the fateful day in the house of Hadu; (2) he stayed there during the night; and (3) on the next day Bhima’s body was found floating in the tank with serious injuries. One of the other facts adduced by the prosecution was the statement by the cart driver to another person passing by that there was a dead body on the cart. The question was whether that statement could be treated as a fact forming part of the transaction of the murder of Panda by Hadu. The Court discussed various tests for determining when physical facts and statements could be treated as a part of the transaction36 and held that the statements should be treated as psychological facts and they will be relevant under section 6 only if they are spontaneous and contemporaneous to the transaction. In the present case, there was nothing to show that the cart driver knew about the murder, nor was the statement made by him in the presence of and to the hearing of the accused. The statement was not part of the transaction as it was neither made contemporaneously with nor spontaneously to the murder. The Court said: Hearsay statements to be admissible as substantive evidence of the truth of the facts stated therein must themselves be ‘part of the transaction’ and not merely uttered in the course of the transaction.37

The Court allowed the appeal and acquitted the accused on the ground that the circumstantial evidence against the accused was not convincing and held: “however grave may be the suspicion against the accused, the guilt cannot be said to have been brought home to him.”38 In Gentela Vijayavardhan Rao v State of Andhra Pradesh, AIR 1996 SC 2791 : (1996) 6 SCC 241 : 1996 (6) Scale 231, the appellants were tried for setting a bus on fire in which 23 were killed and many others were injured. The statements of the victims were recorded by a judicial Magistrate and they were sought to be proved as part of res gestae under section 6. As there was a time-gap between the incident and the statements, the Supreme Court held that they were not admissible under section 6 and observed: The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognized in English law. The essence of the doctrine 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. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.

In Chhotka v State of WB, AIR 1958 Cal 482 : (1959) ILR 2 Cal 174 : 1958 Cr LJ 1170, the Calcutta High Court has held that, where the prosecution witness reached the scene of murder subsequent to the incident and was told about it by a by-stander, the evidence of the witness was inadmissible as the witness has not herself seen the incident. However, in Mukhtiar Singh v State of Punjab, AIR 2009 SC 1854 : (2009) 11 SCC 257 : (2009) 1 SCR 361,it was held by the Supreme Court that the statement of a witness who came to the scene of the occurrence after it was over and did not see the accused attack the deceased but learnt about it from the eye-witnesses, could be used for the purpose of corroboration under section 157 of the Evidence Act, 1872.39 Thus, as the statement was not held to be relevant under section 6, it is not substantive evidence, but has only corroborative value. 4.1.6 Res Gestae and Civil and Criminal Proceedings Section 6 applies to civil as well as criminal proceedings as is evident from the illustrations to the section. While the first two illustrations deal with criminal cases, the other two deal with civil cases. Illustration (c) says:

Page 7 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE)

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.

Defamation can be libel (written) or slander (oral) and in India it is both a crime (sections 499–500, IPC, 1860) and a tort. As the illustration uses the term “sued”, it is an example of a civil proceeding. The illustration says that the letters may not by themselves contain the libel; they may together provide the cause of action for the defamation. Sarathi gives an interesting example of such a situation: C wrote to B that he suspected him of making love to A, C’s wife and that he wanted to discuss the matter with him to avoid public scandal. B writes in reply ‘Received your circular and I shall attend the shareholders’ meeting’. In a suit by A, the wife, against B for defamation, the libel consists of the two letters being read together.40

4.1.7 Section 6 and section 32 Statements—A Contrast In the case of Sanders v State, 77 So 3d 497 (Miss Ct App 2011), during a domestic fight the wife Edna poured hot cooking oil on her husband Sherman causing severe burns and his eventual death and the husband made statements in response to questions from the emergency personnel about the event. The Michigan Court of Appeals held that the answer to the simple question “what happened” could amount to excited utterance and that: it is reasonable to conclude that Sherman was in such a state of shock when speaking to responders that his statements were more likely the product of him reflecting on the circumstances than answering specific questions.41

Thus, the fact that the statement was made by the victim not on his own but in response to a simple question was held not to detract from its spontaneity.42 It may be pointed out that the statement could have been treated as a dying declaration also. In the above context, the relevancy of statements under section 6 should be compared with the position regarding admissibility of a statement amounting to a dying declaration under section 32 (1). Firstly, as is the case in Sanders, it is possible that the dying declaration might have been made as an “excited statement” by the declarant contemporaneous with and spontaneous to the occurrence, in which case the declaration will be relevant both under section 6 and section 32 (1) in India. Secondly, the statements to be relevant under section 6 must be contemporaneous to the event and, hence, spontaneous but neither of the conditions is mandatory in the case of a dying declaration. There can be a time gap between the event and the dying declaration. The fact that the dying declaration is not contemporaneous and spontaneous might affect its reliability but not admissibility. Thirdly, the requirement of spontaneity is considerably higher under section 6 than under section 32 (1). A dying declaration recorded in a question-answer form-- even if the question is a leading question--has been held to be admissible under section 32 provided there is no prompting.43 Fourthly, in the case of dying declaration, the declarant’s death is a precondition for its admissibility.44 If the declarant dies, his statement will be substantive evidence under section 32 (1) as a dying declaration but if he survives, his statement can be used, not as substantive evidence, but only for the purposes of corroboration and contradiction if he is called as a witness. On the other hand, it is possible that the person who made the statement coming under section 6 is able and available as a witness but, for one reason or the other, he may not be called as a witness at the trial. Like the dying declaration under section 32 (1), the statement under section 6 is also substantive evidence and, then, the question is whether the statement can be proved under section 6 aliunde through other witnesses without calling the person as a witness. In R v W, [2003] EWCA Crim 1286, W was charged with grave assault on his aged mother and his mother made a statement to two witnesses saying: He’s gone bonkers. He threw me down the stairs and set me on fire. Phone the police and the ambulance.

The mother survived but she resiled from her earlier statements and said that “she had injured both her legs by slipping on the stairs” and was not willing to appear at the trial as a witness against her own son so as to save him. Consequently, the prosecution wanted to prove the mother’s statement through the witnesses present at that time.

Page 8 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) The question before the trial judge was whether admission of her statement without calling her as a witness and subjecting her to cross-examination would prejudice the fairness of the trial under section 78 of the UK Police and Criminal Evidence Act of 1984.45 The judge held the statement to be inadmissible and acquitted the accused. The Court of Appeal held: (1) Once evidence is within the res gestae exception to the hearsay rule, it is admissible. There is no rider that, as a matter of law, it is not to be admitted merely because the maker of the statement is available and can give evidence.46

In other words, there is no positive rule of law requiring the person to be called as a witness and the hearsay can be admitted as substantive evidence even if the person is not called as a witness to testify to those facts; (2) but: if the purpose of the Crown was that the res gestae evidence should be given without any opportunity being given to the defence to cross-examine the maker of the statement, the court might well conclude that the admission of the evidence would indeed have an adverse effect on the fairness of the proceedings and refuse to allow it to be given.

The Court said: the correct procedure was for the judge to have accepted that the evidence was admissible, as it plainly was, but that he should have been prepared to entertain an application by the defence under section 78 of the Police and Criminal Evidence Act 1984 which empowers the court to refuse to allow evidence to be given

if he deems that the admission of the statement will prejudice the fairness of trial47; and (3) The Court repelled the contention of the prosecution that, after all, the person can be called as a defence witness, by pointing out that: if the defence calls a witness, they cannot ask her leading questions or cross-examine her while the Crown can do so. That gives the Crown an advantage which might well, of itself, adversely affect the fairness of the proceedings.48

Interestingly, the Court of Appeal also confirmed acquittal as it agreed with the trial judge that the admission of the statement would prejudice the fairness of trial but the difference in approach between the trial judge and the Court of Appeal is that the trial judge treated the fairness rule as a part of the res gestae doctrine and would hold the statements inadmissible in all cases where the person making the statement did not appear as a witness subject to cross-examination, whereas the Court of Appeal would hold the statements admissible in all cases unless the judge determines under section 78, PACE Act, 1984 that it would be unfair to do so.49 Like in Sanders case referred to above, in this case also the excited utterance could have amounted to a dying declaration if the mother did not survive the assault. 4.1.8 Appraisal It is submitted, in this context, that a distinction may have to be made between (1) relevancy of statements made at the time of occurrence and (2) admissibility of those statements. Section 6 permits hearsay evidence of the statements, and witnesses can be called to depose as to what was said by the persons directly involved or by the by-standers as a part of the same transaction. Suppose B, the victim of an assault, shouts at the scene of occurrence “Oh, A has stabbed me”, B’s cries can be proved through the witnesses who were present there without calling B as a witness and that is what section 6 expressly permits. But, if A’s defence is that he was nowhere near the occurrence and that B was involving him mistakenly or maliciously50, then B may have to be called as a witness to test his veracity. If the prosecution chooses not to call B as its witness, as the Court of Appeal has pointed out in R v W, [2003] EWCA Crim 1286, there is no point in calling B as a defence witness as he cannot be crossexamined nor can leading questions be put to him. Hence, it is submitted, with respect, that the approach of the trial judge in R v W, [2003] EWCA Crim 1286, appears to be more reasonable even in the context of legal position in India where there is no express provision for “fairness of trial” rule either in the Constitution or elsewhere but “these crucial aspects relating to due process in criminal procedure have been derived by our Courts by way of interpretation of Article 21 of the Constitution.”51 A critical component of the “fair trial” rule is the right of the accused to confront the prosecution witnesses52, particularly when the evidence is hearsay53. If a statement against the accused can be proved aliunde and the maker of the statement need not even be called as a witness by the prosecution, the right of the accused to confront a witness becomes empty and meaningless, and that per se makes

Page 9 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) the trial unfair.54 It must be borne in mind that res gestae is an exception to the hearsay rule and, as such, the “fairness of trial” rule must be given an interpretation that is favourable to the accused. In R v Andrews, [1987] 1 AC 281 , at 302 D–F : (1987) 84 Cr App R 382 : [1987] 1 All ER 513, Lord Ackner observed: I would, however, strongly deprecate any attempt in criminal prosecutions to use the doctrine [res gestae] as a device to avoid calling, when he is available, the maker of the statement. Thus to deprive the defence of the opportunity to crossexamine him, would not be consistent with the fundamental duty of the prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.

As already stated above, the “excited statement” may also amount to a dying declaration under Indian law and it may be relevant as substantive evidence both under section 6 and section 32 (1). But if the person making the dying declaration survives, it can be used not as substantive evidence but only as corroborative evidence. In such a case, can the prosecution contend that it has the right to adduce the same declaration as “excited utterance” under section 6 and prove it aliunde and treat it as substantive evidence even if the surviving declarant is not called as a witness? Hence, it is desirable that the right of the accused to cross-examine the prosecution witnesses as the cardinal principle of “fairness of trial” is read into the res gestae doctrine and not left to the discretion of the Court. If the person making the statement is able but unwilling to appear as a witness as in R v W, [2003] EWCA Crim 1286, or is kept away by the prosecution for its own reasons, the judge should refuse to admit it though his statement may be relevant under section 6 as res gestae.

1

Section 220 of Cr PC, 1973 dealing with “Trial for more than one offence” also employs a similar terminology and provides, inter alia: “(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.” Section 223 of Cr PC, 1973 also employs the terms “different offences committed in the course of the same transaction.” Thus, the term “transaction” is used in Cr PC, 1973 in a different sense so as to include under section 220 “offences” committed in a “series of acts” forming part of a transaction. Under section 6 of Evidence Act, 1872, each of the offences so committed will be a transaction by itself. The term “transaction” occurs also in section 13 (a) of Evidence Act, 1872 but its meaning there is wider than under section 6. For instance, a judgment is held to be a transaction under section 13 (a) but it is not a transaction within the meaning of section 6. Section 32 (1) also speaks of “circumstances of the transaction that resulted in death.” See, for a discussion on the meaning of the term “transaction” in Cr PC, 1973, State of Andhra Pradesh v Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 : (1964) 3 SCR 297 : (1963) 2 Cr LJ 671.

2

Stephen himself said that the phrase res gestae “seems to have come into use on account of its convenient obscurity.” James Fitzjames Stephen, A Digest of the Law of Evidence, Macmillan and Co, London, 1876, Note V, Article 7, p 134. While Pitt Taylor argued that phrases like res gestae “must be left unfettered by useless definition, and be determined in each case, either by the judge or the jury, in the exercise of a sound discretion”, Thayer countered by saying: “A term that cannot be defined should be dropped.” See, J M Thayer, “Bedingfield’s Case — Declarations as a Part of the res gesta” in Legal Essays, The Boston Book Company, 1908, p 220. Stephen Odgers says that “the fog of res gestae” was such that “the doctrine has been applied in a number of different contexts with no clear principle connecting them.” Stephen J Odgers, “Res Gestae Regurgitated”, in University of New South Wales Law Journal, vol 12, 1989, p 262. Also, James Donald Moorehead, “Compromising the Hearsay Rule: The Fallacy of Res Gestae Reliability”, in Loyola of Los Angeles Law Review, vol 29, 1995, p 203, available at: http://digitalcommons.lmu.edu/llr/vol29/iss1/8 (last accessed in April 2019); and Edmund M Morgan, “A Suggested Classification of Utterances Admissible as Res Gestae”, in The Yale Law Journal, vol 31, 1922, p 229; Fraser Davidson, “Res Gestae in the Law of Evidence”, in Edinburgh Law Review, vol 11, 2007, p 379.

3

In Homes v Newman, [1931] 2 Ch 112, it was said: “I suspect it of being a phrase adopted to provide a respectable cloak for a variety of cases to which no formula of precision can be applied.”

4

John Henry Wigmore, A Treatise on the Anglo-American System of Evidence, 3rd Edn, Boston, 1940, para 1767.

5

Julius Stone, “Res Gestae Reagitata”, in Law Quarterly Review, vol 55, 1939, pp 66–67.

6

Gooderson says: “Lord Blackburn, a Victorian common lawyer, and Harman J., a modern Chancery judge, both particularly advise any counsel seeking to obtain admission of a doubtful piece of evidence to pin his faith in res gesta.” R N Gooderson, “Res Gesta in Criminal Cases”, in The Cambridge Law Journal, vol 14, 1956, pp 199–215.

7

The UK Civil Evidence Act, 1995, defines the term “hearsay” in section 1 (a) as: “a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.” Section 114 (1) of the UK Criminal Justice Act, 2003, refers to “hearsay” as: “in criminal proceedings a statement not made in oral evidence in the proceeding”.

Page 10 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) 8

P M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 2, New Delhi, 1998, p 1109.

9

The Law Commission of England and Wales, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997, p 123, para 8.115, http://www.lawcom.gov.uk/app/uploads/2016/08/No.138- Criminal-Law-Evidence-inCriminal-Proceedings-Hearsay-and-Related-Topics-A-Consultation-Paper. pdf.(Last accessed in April 2019).

10 See also the discussion on section 32, illustration (n). 11 Mahadeo v State of MP, 1957 Cr LJ 110. 12 James Fitzjames Stephen, A Digest of the Law of Evidence, Macmillan and Co, London, 1876, Article 3. 13 In Protima Dutta v State, 1977 (81) Cal WN 713 : 1977 Cr LJ (NOC) 96, the Calcutta High Court held that in cases concerning sustained cruelty by husband towards his wife that leads to her suicide, the “transaction” of systematic illtreatment for years after the marriage might extend even to a period of three years. 14 M C Sarkar, et al, eds, Sarkar’s Law of Evidence, vol 1, New Delhi, 2003, p 121. An “Act” is defined by section 3 of the General Clauses Act, 1897, as: “‘Act’, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions.” 15 Jeremy Bentham said: “The fall of a tree is an event; the existence of a tree is a state of things: both are alike facts.” Jeremy Bentham, “An Introductory View of The Rationale of Evidence”, in The Works of Jeremy Bentham, vol 6, chapter 3, p 217. 16 Jeremy Bentham said: “An act or action, is...an event in so far as it comes to be considered as having had the human will as the immediate cause of it.” Jeremy Bentham, “An Introductory View of The Rationale of Evidence”, in The Works of Jeremy Bentham, vol 6, chapter 3, p 217. 17 The word transaction is derived from the Latin word trãnsãctus (past participle of trãnsigere): to carry out, accomplish. Though the dictionary meaning of the term is generally related to a business “deal”, under section 6 it has a wider legal connotation. 18 In State of Bihar v Deokaran Nenshi, AIR 1973 SC 908 : 1973 SCR (3) 1004 : 1973 Cr LJ 347, the Supreme Court observed: “A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with.” An example is the offence of non-payment of employer’s contribution under the Employees’ Provident Fund and Family Penwsion Fund Act, 1952: Bhagirath Kanoria v State of MP, AIR 1984 SC 1688 : 1985 (1) SCR 626. In Ajay Agarwal v UOI, AIR 1993 SC 1637 : 1993 (3) SCC 609 : (1993) 3 SCR 543 : 1993 Cr LJ 2516, it was held that criminal conspiracy is a continuing offence: “the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive.” Also in State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 25 : 1999 (3) Scale 241; United States v Kissel, (1910) 218 US 601; Ford v United States, (1927) 273 US 593, 620–622; Halsbury’s Law of England, 3rd Edn, Butterworths, London, 1953, vol 10, p 327, para 602. In Fagan v Metropolitan Police Commissioner, (1969) 1 QB 439 : (1968) 3 All ER 442 : (1968) 3 WritLR 1120, where the appellant drove the car on to the foot of a person, rested the car wheel on his foot and switched off the ignition, the Court held that this was a case of continuing battery. In R v Vu, 2012 SCC 40 : (2012) 2 SCR 411, the Supreme Court of Canada held: “kidnapping is a continuing offence” and “while the crime of kidnapping may be complete in law when the victim is initially apprehended and moved, the crime will not be complete in fact until the victim is freed.” In Kaitamaki v R, (1985) AC 147 : (1984) 3 WritLR 137 : (1984) 2 All ER 435, the Privy Council held that the man continuing penetration even after realizing that the woman was not consenting to sex was a continuing offence. In Thabo Meli v R, (1954) 1 WritLR 228, where the defendants knocked the deceased down with a hit to the head and, thinking that he was dead, they threw his body over a cliff and he died, the Privy Council held that the actus reus of causing death started with the victim being struck on the head and continued until he died of an exposure after his fall from the cliff. For similar decisions, R v Church, (1966) 1 QB 59 : (1965) 2 WritLR 1220 : (1965) 2 All ER 72, and R v Le Brun, (1991) 4 All ER 673 : (1992) QB 61 : (1991) 3 WritLR 653. 19 Gokak Patel Volkart Ltd v Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCR (1) 396 : (1991) 1 Mad LJ 420: For computing limitation period, where employees did not vacate the Company’s quarters even after retirement, it was held: “Wrongful withholding, or wrongfully obtaining possession... of the company’s property..., cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender’s possession is delivered up...” 20 Thus, section 178, Cr PC, 1973, provides: “Place of inquiry or trial.- (a)...(b)... (c) where an offence is a continuing one, and continues to be committed in more local areas than one,... it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”

Page 11 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) Section 472 of Cr PC, 1973, deals with limitation for “Continuing Offence” and states: “In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.” Where dowry harassment took place within more than one jurisdiction, it was held that it was a continuing offence and the Courts in any of those areas could entertain the case. Smt Sujata Mukherjee v Prashant Kumar Mukherjee, AIR 1997 SC 2465 : (1997) 5 SCC 30. In Jafar Abbas Rasoolmohammad Merchant v State of Gujarat, LNIND 2015 Guj 4492, the offence under section 498A, IPC, was held to be a continuing offence. 21 See the illustration to section 10 which also mentions similar facts. 22 In Hadu v State, AIR 1951 Ori. 53, the Orissa High Court (per B Jagannadha Das, J) said: “Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of action and community of purpose or design.” Hadu v State, AIR 1951 Ori. 53, para 9. In State of Andhra Pradesh v Cheemalapati Ganeswara Rao, 1963 AIR SC 1850 : (1964) 3 SCR 297 : (1963) 2 Cr LJ 671, in the context of the use of “same transaction” in sections 220 and 223 of Cr PC, 1973, for the purposes of “joint trial”, the Court said: “where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.” For a discussion on offences “committed in the course of the same transaction” for joint trial, see R Dineshkumar @ Deena v State, AIR 2015 SC 1816 : (2015) 7 SCC 497 : 2015 (3) Scale 598. 23 Jeffrey L Fisher, “What Happened—and what is Happening—to the Confrontation Clause”, in Journal of Law & Policy, vol 15, 2007, p 598. 24 De Bracton explains the application of this “antiquated” doctrine in a rape case in the 13th century as requiring the woman to “go at once and while the deed is newly done, with hue and cry, to the neighbouring townships and there show the injury done her to men of good repute, the blood and clothing stained with blood, and her torn garments.” Quoted in Pamela J Schwikkard, “The Evidence of Sexual Complainants and the Demise of the 2004 Criminal Procedure Act”, in Namibia Law Journal, vol 1, January 2009, p 7. 25 JM Thayer, “Bedingfield’s Case — Declarations as a Part of the res gesta”, in Legal Essays, London, 1908, p 206; Aviva Orenstein, “Sex, Threats and Absent Victims: The Lessons of Regina v Bedingfield for Modern Confrontation and Domestic Violence Cases”, Fordham Law Review, vol 79, 2011, pp 116-163. 26 Lord Ackner said: “The real reason for limiting the exception is not because of the danger of the statement being concocted but because there is no opportunity to cross-examine on it...For many years the law as hitherto understood has been that any act or statement to be admitted as part of the res gestae, it must be shown to be inextricably and contemporaneously connected with the transaction being enquired into.” In Mills and others v R, (1995) 3 All ER 865, at p 876, the Privy Council held, per Lord Steyn: “The dramatic occurrence, and the victim’s grave wounds, would have dominated his thoughts. The inference was irresistible that the possibility of concoction or distortion could be disregarded.” The limits of the term “contemporaneous” were illustrated in the case of Tobi v Nicholas, (1987) 86 Cr App R 323, where a driver, about 20 minutes after an accident made a statement about the accident. It was held to be too long after the event to be contemporaneous. In the Irish case of The People (Attorney General) v Crosbie and Meehan, (1966) IR 490, at p 496, the victim, who had been stabbed, stated within a minute of being stabbed—and when the first defendant was standing near him: “he has a knife, he stabbed me”. The Court held: “it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.” 27 The jury convicted him for murder and sentenced him to death, but it was later computed to 25 years’ imprisonment. His conviction was upheld by the Supreme Court of Victoria (R v Ratten, [1971] VR 87) and by the High Court of Australia (Ratten v R, [1974] HCA 35 : (1974) 131 CLR 510 : 4 ALR 93 : 48 ALJR 380). His petition for leave to appeal to Privy Council (R v Ratten, [1971] VR 87) and his mercy reference (Re Ratten, [1974] VR 201) was rejected by the Full Court of Supreme Court of Victoria. The Privy Council granted his petition for special leave to appeal and dismissed the appeal. All these decisions provide interesting insights into the doctrine of res gestae. 28 Ratten v R, [1971] 3 All ER 801: (1972) AC 378 : (1971) 3 WritLR 930. 29 Subrati v State of UP, Allahabad (2016). 30 In Ratten, the Privy Council said: “If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, i.e., as establishing some fact narrated by the words.” Ratten v R, [1971] 3 All ER 801: (1972) AC 378 : (1971) 3 WritLR 930. 31 This was quoted with approval by the Privy Council in Ratten. In R v Howse, [2003] 3 NZLR 767, Supreme Court of New Zealand held that where one of the two step daughters of the accused made an oral statement alleging sexual abuse by him, evidence was always admissible to prove the fact that words were spoken if that fact is relevant. Whether the evidence may also be used as proof of the truth, of the words spoken, attracts the hearsay rule and cannot be admitted unless it comes under an exception to the rule.

Page 12 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) 32 In Myers v Director of Public Prosecutions, (1965) AC 1001 : [1964] 2 All ER 881 : [1964] 3 WritLR 145, the House of Lords “recognized the ramshackle nature of the law of hearsay” (R v Andrews, [1987] 2 WLR 413 : [1987] 1 AC 281 : [1987] 1 All ER 513) and suggested Parliament’s intervention after a thorough survey. 33 Clause (4) also mentions two other instances of res gestae: “(b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or (c) the statement relates to a physical sensation or a mental state (such as intention or emotion).” 34 Following this case, it was held in Dhal Singh Dewangan v State of Chhattisgarh, 2016 SCC OnLine SC 983, para 22, that “the spontaneity and continuity was lost and the statements cannot be said to have been made so shortly after the incident as to form part of the transaction” as the incident and the witnesses were separated by 100 yards. 35 Hadu v State, AIR 1951 Ori. 53, para 2. 36 See the text relating to footnote 20 above. 37 Hadu v State, AIR 1951 Ori. 53, para 9. 38 Ibid, para 11. 39 See also, Vijay Singh v State of UP, 2003 Cr LJ 137 B (All) NOC. 40 Vepa p Sarathi, Law of Evidence, 6th Edn, Lucknow, 2010, p 47. 41 Sanders v State, 77 So 3d 497 (Miss Ct App 2011). See also, Celeste E. Byrom, “The Use of the Excited Utterance Hearsay Exception in the Prosecution of Domestic Violence Cases After Crawford vWashington”, in The Review of Litigation, vol 24, Spring, 2005, p 409. The statement of the victim in Sanders case can be treated as a dying declaration under US Federal Rules of Evidence only if it satisfied the test of “Statement under belief of impending death” under section 804 (2) which provides: “In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” Such a requirement is not there under Indian law. Whether the victim was, while making the statement, under “belief of impending death” has always been a problematic question in English and US laws as will be shown in the discussion under section 32. 42 In Pratap Singh v State, 1971 Cr LJ 172, it was held that if the statement was made in answer to a question after lapse of time, it cannot be treated as res gestae. 43 See the discussion infra under the head “Statements, written or verbal” under section 32. Spontaneity under section 6 would mean “unpremeditated outburst of emotions” but under section 32 (1) it might mean “without prompting”. 44 Illustration (a) to section 136 says: “It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Section 32. The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.” Section 104 which deals with burden of proof provides in Illustration (a): “A wishes to prove a dying declaration by B, A must prove B’s death.” 45 Section 78 of the UK Police and Criminal Evidence (PACE) Act, 1984 provides: “Exclusion of unfair evidence— (1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. (3) This section shall not apply in the case of proceedings before a magistrates’ court inquiring into an offence as examining justices. 46 R v W, [2003] EWCA Crim 1286, para 18. 47 Ibid, para 21. 48 R v W, [2003] EWCA Crim 1286, para 22. 49 See also, The Law Reform Commission of Hong Kong, Hearsay in Criminal Proceedings, Sub-committee Consultation Paper, November 2005, p 19, para 3.35, available at: https://www.hkreform.gov.hk/en/publications/crimhearsay.htm (last accessed in April 2019); and Adrian Keane, The Modern Law of Evidence, 7th Edn, Oxford, 2008, p 357. 50 However, referring to the mistakes of the witnesses deposing about res gestae statements, the UK Law Commission in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 19 June 1997, said: “a response to an exciting event may be misleading, not because of concoction or distortion, but because the witness had only partial knowledge. We recognise that this may occur, but still take the view that statements made in the heat of the moment should be admissible....To return to the example of the bystander who thinks that the defendant has a gun: the bystander could well be mistaken, but the statement is clearly relevant.... If there is no possibility of concoction or distortion but only of mistake, the lack of any opportunity to discredit the declarant personally is of comparatively little consequence.” Paras 8.20 and 119. Obviously, the Commission opines that the decision that “there is no possibility of

Page 13 of 13 4.1 FACTS FORMING PART OF SAME TRANSACTION (RES GESTAE) concoction or distortion but only of mistake” will have to be taken by the Court even without giving an opportunity to the accused to challenge the maker of the statement. The UK Criminal Justice Act, 2003, was based on the Law Commission’s recommendations. 51 Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programmes, August 2006, p 25. 52 The Sixth amendment to the US Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor...” Article 6 (3)(d) of the European Convention on Human Rights guarantees the defendant the “minimum” right “to examine or have examined witnesses against him.” 53 Roderick Munday, Evidence, Chapter on “The Rule against Hearsay—I Hearsay in Criminal Cases”, (Oxford, 2007), p 439, para 9.93. 54 Under section 114, a negative inference may be drawn by the Court that the person has not been called as a witness by a party because, if called, his testimony will be unfavourable to the party. But, in the case discussed above, the “excited utterance” will go on record by proof aliunde without calling the person as a witness.

End of Document

4.2 SECTION 7: CAUSE AND EFFECT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.2 SECTION 7: CAUSE AND EFFECT It has been pointed out at the outset that the phrase res gestae was not employed in the Evidence Act, 1872 because of the conceptual confusion surrounding it. However, the juridical concepts that formed the basis of the doctrine of res gestae which were found useful and necessary have been incorporated in the Act and one application of it was “things forming part of the same transaction” under section 6. Sections 7 to 10 also provide for the other facets of the doctrine by enlarging the focus of spotlight of relevancy. Section 7 provides: Facts which are the occasion, cause or effect of facts in 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, 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.

What are made relevant under section 7 are the facts that: 1. are the occasion, 2. cause or effect, immediate or otherwise, of facts in issue or relevant facts; or 3. which constitute the state of things under which they happened; or 4. which provided an opportunity for their occurrence or transaction. In this context “occasion” means to cause or provide the circumstances for the occurrence. The concept of “cause and effect” will bring within the reach of this section a lot of facts that are relatable to each other on the basis of logic and induction. If a human body is found on a railway track cut into two pieces, logic would suggest the inference that the person died because he was run over by a train. That is, the death is “caused” by the train running over. If on closer scrutiny it is found that there is no hemorrhage there, it can be inferred that the person was killed elsewhere and the dead body was thrown on the track to mislead the police. Otherwise, if the person was run over by the train, there would have been the “effect” of the blood oozing out there. Thus, the section covers many facts that relate to forensic medicine and forensic science. Facts unearthed by investigation into various

Page 2 of 7 4.2 SECTION 7: CAUSE AND EFFECT causes of death (homicidal or suicidal) and effects of poisons on human body and so on can be brought under this section. In Spencer Cowper’s Trial55, Cowper, a young and promising lawyer of 30 years of age, knew Sarah Stout, a young and wealthy spinster, who belonged to the religious denomination of Quakers. Sarah fell in love with Cowper but for her to marry outside her faith would have led to her being expelled from the community of Quakers. Moreover, Cowper was already married. On 13 March 1699, Sarah’s body was found floating on the river Priory and Spencer Cowper, along with three others, was tried for the murder of Sarah who was allegedly killed by Cowper and his accomplices by strangling her with a rope. The dead body was allegedly thrown in the river to conceal the murder. The question before the Court was whether she committed suicide by jumping into the river because she was said to be “melancholy” or whether she was murdered as alleged by the prosecution. An examination of her body revealed that there was no water in her lungs or stomach. While the defense argued that Sarah Stout committed suicide and that in the case of suicide water might not be found in lungs and stomach, the prosecution contended that no water was found in the lungs as she was murdered by strangulation and her dead body was thrown in the river. This late 17th century case reveals the rather elementary state of forensic medicine at that time and much discussion has been made on issues like whether water will be found in lungs only in the case of homicidal drowning and not in the case of suicide and whether body floats only in the case of homicide and not in the case of suicide. The jury finally found Cowper and other accused not guilty as the jury believed that Sarah committed suicide because of frustrated love.56 4.2.1 “But For” Doctrine—Causation In the law of torts, questions have arisen whether the plaintiff would have suffered injury “but for” the act of the defendant or whether somebody else also has intervened between the act of the defendant and the injury suffered by the plaintiff (novus actus interveniens—new act intervening). In Scott v Shepherd, (KB 1773) 96 Eng Rep 525 (well known as the Squib case), Shepherd tossed a lighted squib into a crowded market, where it landed on the table of a gingerbread merchant named Yates. Willis, a bystander, grabbed the squib and to protect himself and Yates threw the squib again into the market place where it landed next to Ryal. Ryal immediately picked up the squib and tossed it away, accidentally hitting Scott in the face just as the squib exploded. The explosion put out one of Scott’s eyes. The Court held that Shepherd was liable in tort as, though the act of throwing up a lighted squib in a crowded market place was itself an unlawful act: the true question is whether the injury is the direct and immediate act of the defendant; and I am of opinion that in this case it is.

De Gray, CJ, said: I do not consider [the intermediaries] as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preservation.57

The above torts case in which the plurality of actors responded involuntarily to a situation thrust upon them, may be distinguished from the landmark decision of the United States Supreme Court in Paroline Doyle v United States, (2014), 572 US : 134 S. Ct. 1710, where the respondent victim was sexually abused by Paroline as a young girl in order to produce child pornography which was criminally used by other offenders over a period of time, each acting independently of others. When she was 17, she learned that images of her abuse were being trafficked over the internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes. Paroline, the petitioner, pleaded guilty in the federal court. The victim then sought criminal restitution under 18 USC § 2259 requesting nearly $3 million in lost income and about $500,000 in future treatment and counselling costs. The District Court declined to award restitution on the ground that the Government had not discharged its burden of proving what losses, if any, were proximately caused by Paroline’s offense. On appeal, the Circuit Court held, inter alia, that § 2259 did not limit restitution only to losses proximately caused by the defendant, and that each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images. Faced with a situation where the District Court gave nothing, and the Circuit Court granted everything to the victim, on further appeal, the US Supreme Court observed: the question is what causal relationship must be established between the defendant’s conduct and a victim’s losses for

Page 3 of 7 4.2 SECTION 7: CAUSE AND EFFECT purposes of determining the right to, and the amount of, restitution.

The “costs incurred” in criminal restitution refer only to those caused by the offence for which the accused was convicted58 and the further question is whether the restitution “is limited to losses proximately caused by the offence”. The Court said: The traditional way to prove that one event was a factual cause of another is to show that the latter would not have occurred “but for” the former... Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct....The requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.

Stating that “restitution is therefore proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses”, and that “the ultimate question is how much of these losses were the ‘proximate result’” of the offences committed by Paroline, the Supreme Court said: ... courts have departed from the but-for standard where circumstances warrant, especially where the combined conduct of multiple wrongdoers produces a bad outcome.... It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy.

On the other hand: in a sense, every viewing of child pornography is a repetition of the victim’s abuse. The victim also argues that this approach would consign her to ‘piecemeal’ restitution and leave her to face ‘decades of litigation’ that might never lead to full recovery.

But, the Supreme Court hastened to add that: The striking outcome of this reasoning—that each possessor of the victim’s images would bear the consequences of the acts of the many thousands who possessed those images—illustrates why the Court has been reluctant to adopt aggregate causation logic in an incautious manner.

The Court held that “Paroline was just one of thousands of anonymous possessors” and “Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both com pared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders”. Stating that “restitution orders should represent ‘an application of law’, not ‘a decision maker’s caprice’”, the Supreme Court remanded the case for further proceedings consistent with its opinion: in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others.

As is evident from the above, the “but for” doctrine is applied in criminal law also.59 In Prithipal Singh v State of Punjab, 2012 AIR SCW 594 : 2012 (1) SCC 10, para 29 : 2011 (12) Scale 411a, it was stated: The corpus delicti in a murder case has two components - death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence.

Page 4 of 7 4.2 SECTION 7: CAUSE AND EFFECT The link or nexus between the cause and the result is not always easy to establish. In R v White, [1910] 2 KB 124 : (1910) 4 Cr App R 257, the defendant placed two grams of potassium cyanide poison in a glass containing his mother’s drink. She drank the contents of the glass, but died of heart failure. With regard to “causation in fact”, the defendant’s act of putting poison in his mother’s drink did not in any way cause her death.60 If one were to ask, “but for the defendant’s act would his mother have died?”, the answer would obviously have to be that she would have died anyway. The defendant was charged with murder, but, was convicted of attempted murder by the Court because he had the intent to kill. Where in a criminal case the victim has been attacked by more than one assailant, the question arises, whether, (a) they acted independently of each other, or (b) there was any collaboration between them. If it is the latter, each one of the conspirators will be liable for their actions under section 10 of the Evidence Act, 1872 irrespective of the degree of their participation and, as a rule, the ‘but-for’ doctrine will not apply. Prof Keeton observes: [w] hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a butfor cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event.61

In the former case, viz, where the accused acted independently of each other, the question that arises is: which of them caused the fatal injury? In this context, the Courts have applied the doctrine of “But For” by which the Courts will determine whether the victim’s death would not have ensued “but for” the injury caused by a particular assailant. In the Canadian case of R v Maybin, 2012 SCC 24 : [2012] 2 SCR 30, late at night, in a busy bar, the accused brothers T and M repeatedly punched the victim in the face and head. T eventually struck a blow that rendered the victim unconscious. Arriving on the scene, within seconds, a bar bouncer62 then struck the victim in the head. The medical evidence was inconclusive about which of the blows caused the victim’s death. As a result, the trial judge acquitted the accused brothers and the bouncer. The Court of Appeal set aside the acquittal and held unanimously that the accused’s assaults were factually a contributing cause of death—“but for” their actions, the victim would not have died. Affirming the conviction, the Supreme Court of Canada held “the appellants’ actions remained a significant contributing cause of the death”, but for which, the death of the victim would not have occurred.63 In its landmark decision in Burrage v United States, (2014) 571 US : 134 S Ct 881 : 187 L Ed 2d 715, the United States Supreme Court sought to clarify issues relating to “but-for” causation. Burrage was charged with the offence of unlawful supply of heroin to Joshua Banka and that “death...result ed from the use of that substance” under the provision of the Controlled Substances Act, 1970.64 Banka indulged throughout the day in a binge of other narcotic substances also. The two forensic science experts expressed the opinion that heroin consumption was a “contributing” factor. One expert testified that Banka’s death would have been “very less likely” had Banka not used the heroin that Burrage provided. No expert was prepared to say that Banka would have died from the heroin use alone. The Court (per Scalia, J) was not persuaded by the probability of the cause approach and said: Is it sufficient that use of a drug made the victim’s death 50 percent more likely? Fifteen percent? Five? Who knows. Uncertainty of that kind cannot be squared with the beyond-a-reasonable doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend.

Justice Scalia drew interesting analogies and said: Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.”...The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.... The most common (though still rare) instance of this occurs when multiple sufficient causes independently, but concurrently, produce a result.,,, To illustrate, if “A stabs B, inflicting a fatal wound; while at the same moment X, acting independently, shoots B in the head . . . also inflicting [a fatal] wound; and B dies from the combined effects of the two wounds,” A will generally be liable for homicide even though his conduct was not a but-for cause of B’s death (since B would have died from X’s actions in any event).

Page 5 of 7 4.2 SECTION 7: CAUSE AND EFFECT Justice Scalia held that “the language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed” and reversed the appellant’s conviction and remanded the case for further proceedings in the light of the Court’s opinion. The doctrines of causation and “but for” came under close scrutiny in the English case of R v Hughes, [2013] UKSC 56 : 2 AC 259 : 2 WLR 1058, which is a classic example that show-cases the dilemma of the UK Supreme Court confronted with a definition of an offence that flies in the face of the commonsense view of the factual matrix. Section 3ZB of the Road Traffic Act of 1988, which was added in 2006 created the “Offence of Causing Death by Driving” under which “a person is guilty of an offence...if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving” he is “unlicensed, disqualified or uninsured.” On conviction on indictment, this offence carried imprisonment for up to two years. Hughes, the appellant, was driving his van with his family on a trunk road and the speed limit was the national limit of 60 mph. His driving was faultless, and his speed a steady 45–55 mph. As he rounded a right-hand bend on his correct side of the road, he was confronted by a motor car driven by one Dickinson in the opposite direction. Dickinson’s car was veering all over the road; it twice crossed to its wrong side and it smashed into Hughes’s van, tipping it over and trapping some of the occupants inside. Dickinson suffered injuries in the impact which proved fatal. Hughes was indicted of the offence under section 3ZB of the Road Traffic Act, 1988, as his car was uninsured at that time. When the accident took place, Dickinson was overtired as he did a series of 12-hour night shifts and he was also under the influence of drugs and he narrowly missed another accident before he hit Hughes’ car. It was common ground that Hughes could not have done anything on his part to avoid the collision. The Crown’s view was that: the mere fact of taking a vehicle on the road when disqualified is, in the Government’s view, as negligent of the safety of others as is any example of driving below the standard of a competent driver, even if the disqualified driver at a particular time is driving at an acceptable standard.

In other words, a person is deemed to be legally “negligent” even though he was not negligent actually and factually. The Supreme Court making a subtle distinction between “but for” cause and legal cause, said: The law has frequently to confront the distinction between “cause” in the sense of a sine qua non without which the consequence would not have occurred, and “cause” in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a “but for” event, is not necessarily enough to be a legally effective cause. If it were, the woman who asked her neighbour to go to the station in his car to collect her husband would be held to have caused her husband’s death if he perished in a fatal road accident on the way home. In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence.65

The Court proceeded to observe: By the test of common sense, whilst the driving by Mr Hughes created the opportunity for his car to be run into by Mr Dickinson, what brought about the latter’s death was his own dangerous driving under the influence of drugs. It was a matter of the merest chance that what he hit when he veered onto the wrong side of the road for the last of several times was the oncoming vehicle which Mr Hughes was driving. He might just as easily have gone off the road and hit a tree, in which case nobody would suggest that his death was caused by the planting of the tree, although that too would have been a sine qua non.66

In fact, the sheer untenability of section 3ZB was characterized as “a colourable attempt to pass off strict liability as something else.”67 Hence, the Court held: ...enquiry into apportionment of liability in civil terms is not appropriate to a criminal trial. But it must follow from the use of the expression “causes...death...by driving” that section 3ZB requires at least some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death.68

Page 6 of 7 4.2 SECTION 7: CAUSE AND EFFECT Thus, the Court allowed the appeal by Hughes and virtually “read down” section 3ZB by holding that a person could not be held criminally liable under the section without “some act or omission... which contributes in some more than minimal way to the death.” 4.2.2 ‘Causing’ and ‘Inflicting’ Section 319, IPC, 1860, defines “Hurt” as: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” Thus, if a man has sexual intercourse with a woman with the knowledge that he would communicate a disease like HIV or any other sexually transmitted disease (STD) that he knows that he is suffering from, can be said to have “caused” the hurt. In the Australian case of Aubrey v R, [2017] HCA 18, Aubrey was charged under section 36 of the Crimes Act, 1900 (NSW) with “maliciously inflicting” grievous bodily harm of the disease of HIV upon the complainant. The defendant relied on the earlier Queen’s Bench decision in R v Clarence, (1888) 22 QB 23 , paras 36–37, where it was held that a man who knew that he had gonorrhoea and foresaw that he could possibly transmit the disease to his wife by having sexual intercourse with her, and yet proceeded to do so without informing her of his condition, could not be convicted of maliciously inflicting grievous bodily harm because “inflicting”, in contrast to “causing”, involved some form of physical violence. In Aubrey, the High Court declined to follow Clarence and approved the Crown’s contention that: the word ‘inflicts’ should not be given a limited and technical meaning which requires that the harm result from a violent act which creates an immediate result. That being so, the transmission of a disease which manifests itself after a period of time can amount to the infliction of grievous bodily harm.

Hence, the Court held that there was no distinction between “inflicting” and “causing”.69 The Court also pointed out that reliance in Clarence by some judges in the majority on the presumed consent of a married woman to sexual intercourse with her husband failed to distinguish between “consent to intercourse and consent to risk of infection.”70 4.2.3 Opportunity In criminal cases, there are two elements which are very crucial, viz, motive and opportunity for the commission of the crime. While section 8 makes “motive” relevant, section 7 deals with “opportunity”. Proof of alibi is an example of negation of opportunity.71 In criminal cases, where the prosecution case depends either partly or wholly on circumstantial evidence, courts insist on proof of the fact that the accused had not only opportunity but had exclusive opportunity to commit the crime. In the case of Shanmughan v State of Kerala, AIR 2012 SC 1142 : 2 SCC 788 : 2012 (1) Scale 636, the husband was charged with the murder of his wife during night in the bed room by inflicting injuries and forcibly administering cyanide poison. Holding that the prosecution has properly discharged its burden of proof based entirely on circumstantial evidence, the Court based its conclusion on opportunity to commit the crime and observed: In this case, the appellant and the deceased were admittedly sleeping together at the night of occurrence inside a bed room and no third person was there and administration of poison took place inside the bed room. In the instant case, there was no third person in the bed room and there are clear injuries on the deceased, which cannot be self-inflicted. Therefore, poison could only be administered by the accused-appellant.72

In Donthula Ravindranath @ Ravinder Rao v State of Andhra Pradesh (2014), AIR 2014 SC 1060 : 2014 AIR SCW 745 : 2014 (3) SCC 196, where the Sessions Court and the High Court concurrently held the appellant guilty under section 302 read with section 498A for dowry demand and strangulating his wife, the Supreme Court was of the opinion that, even if the cause of the death was due to strangulation, it could not be concluded that “it is only the accused who must be held responsible for such strangulation” as “the building in which the accused and the deceased were living consists of four portions where others were also living” and others also could have committed the offence. This is sometimes referred to as “the other offender theory”.73 As circumstantial evidence relating to opportunity depends to a large extent on interpretation of facts, it can lead to very misleading inferences and conclusions and it is not safe to convict a person solely on that count. Thus, in an aft quoted case, a female servant was charged with the murder of her mistress. There was no one else in the house except the maid and the mistress and all the doors and windows, except a top window, were closed and bolted. The servant was found guilty and sentenced to death solely on the ground that except her nobody else had an opportunity to commit the crime and she was hanged. It was later found from the confessions of the real murderers that they had entered the house

Page 7 of 7 4.2 SECTION 7: CAUSE AND EFFECT situated in a narrow street by placing a wooden board across the street from the window of the opposite house and after committing the murder, they escaped by the same route without leaving any traces.74

55 See, T B Hovel, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors, Folio Edn, vol III, London, 1816, p 403; The Cowper Trial created a sensation at that time and the story was telecast in “On Trial” Series programme in the year 1960 in England. 56 See, T B Hovel, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors, Folio Edn, vol III, London, 1816, p 1189. 57 Blackstone, J, dissented saying that the chain of causation by independent actors should make each of them individually liable to the next man: Sheppard to Willis, Willis to Ryal, and Ryal to Scott. Scott v Shepherd, (KB 1773) 96 Eng Rep 525. But here except Scott, the final destination of the squib, the other actors suffered only technical “injury”. Willis and Ryal acted by way of involuntary reaction to a compelling necessity. They were merely fortuitous links in the chain and it cannot be said that they were “independent actors” exerting their wills to produce a desired outcome. While even Sheppard did not desire the ultimate result, he ought to have foreseen the chain of events and its outcome. 58 Particularly so because different persons, not all of whom were arraigned before the Court, were acting not in concert or conspiracy but independently of each other. 59 In England, there was in Common Law the archaic “year and a day rule”, under which a person’s act is conclusively presumed not to have caused another person’s death if more than a year and a day has elapsed between the act and the death. This rule has been abolished by section 1 of Law Reform (Year and a Day Rule) Act, 1996 which provides: “The rule known as the ‘year and a day rule’ (that is, the rule that, for the purposes of offences involving death and of suicide, an act or omission is conclusively presumed not to have caused a person’s death if more than a year and a day elapsed before he died) is abolished for all purposes.” Thus, after the abolition of the rule, if a specific act can be proved to be the cause of a person’s death, irrespective of the length of time intervening between the act and the death, it can potentially constitute murder. 60 It was shown that five grams of cyanide would be necessary to cause the death of an adult. 61 William Keeton, D Dobbs, R Keeton, & D Owen, Prosser and Keeton On the Law of Torts, 5th Edn, West Pub Co, St Paul, Minnesota, 1984, § 41, p 267. 62 Bar bouncer is a person employed to expel disorderly persons from a public place, especially a bar. 63 See, Glanville Williams, “Finis for Novus Actus?”, in Cambridge Law Journal, vol 48, 1989, p 391; Eric Colvin, “Causation in Criminal Law”, in Bond Law Review, vol 1, 1989 pp 253–271. available at: http://epublications.bond.edu.au/blr/vol1/iss2/7 (last accessed in April 2019); and Stanley Yeo, “Blamable Causation”, in Criminal Law Journal, vol 24, 2000, p 144. 64 21 USC § 841 (b)(1)(C). 65 R v Hughes, [2013] UKSC 56, para 23 : 2 AC 259 : 2 WritLR 1058. 66 R v Hughes, [2013] UKSC 56, para 25 : 2 AC 259 : 2 WritLR 1058. 67 This was the view of Professors Simester and Sullivan, Criminal Law: Theory and Doctrine, 5th Edn, Hart Publishing, 2012) to which the Court referred and said it was “correct in substance.” R v Hughes, [2013] UKSC 56, para 18 : 2 AC 259 : 2 WritLR 1058. 68 R v Hughes, [2013] UKSC 56, para 36 : 2 AC 259 : 2 WritLR 1058. 69 Aubrey v R, [2017] HCA 18, para 32. 70 Aubrey v R, [2017] HCA 18, para 25. 71 Arthur Best, ed, Iigmore On Evidence, 4th Edn, Aspen Publishers, 2019, p 156. 72 Shanmughan v State of Kerala (2012) AIR 2012 SC 1142 : 2 SCC 788, para 11 : 2012 (1) Scale 636. In the sensational case of the murder of a young girl Arushi by her parents in their home, the CBI Court held that the accused was guilty mainly on the ground of exclusive opportunity. State of UP v Rajesh Talwar, Criminal Appeal No. - 293 of 2014, 12 October 2017 (High Court of Judicature). 73 Toese Tu’uaga v R, [2014] NZSC 164, para 6. 74 Thomas Starkie, A Practical Treatise on the Law of Evidence: Digest of Proofs, in Civil and Criminal Proceedings, Wells and Lily, Boston, 1826,, p 865.

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4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT Section 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. 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. (c) 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 of other wills to be prepared of which he did not approve, are relevant. (e) A is accused 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. (f) The question is, whether A robbed B. 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.

Page 2 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT

(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. (i) A is accused of 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 relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, 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.

Section 8 makes the following relevant: 1. Motive 2. Preparation and 3. Previous or Subsequent Conduct 4.3.1 Motive Section 8 further widens the ambit of relevancy by including motive, preparation and conduct within its reach. “Acts” are classified into (1) internal and (2) external acts. What passes in the mind of a man cannot be known unless it manifests itself as a perceivable act in the external world. It was already seen that section 3 classifies “facts” into physical and psychological facts. Though often the term “act” is used in the physical sense only75, jurisprudentially, acts are classified into (1) physical or external acts and (2) psychological or internal acts. In this context, “act” can be defined as (1) an exertion of human will (2) that might result in the exertion of muscles or what John Austin called “bodily movements” or “muscular contraction”.76 Motive is an exertion of human will and, hence, an “internal act”. “Motive”, by definition, “is the moving power which impels action for a definite result, or to put it differently, ‘motive’ is that which incites or stimulates a person to do an act.”77 Motive, howsoever despicable it might be, is not per se punishable in law unless it is translated into an external act. Conversely, a motive, however laudable it might be, cannot be taken as a justification for the commission of the crime78 or even as a mitigating factor79 unless law itself recognizes it as such.80 Thus, in criminal law, the maxim is actus non facit reum nisi mens sit rea81—no act (actus reus: Objective element) is an offence without guilty mind (mens rea: Subjective element).82 In fact, the Courts have held that guilty mind is a crucial factor in determining the guilt and also that “the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”83 As attempt per se is also an offence like the completed crime, it has been held that actus reus and mens rea are the necessary elements of attempt also.84 However, in a famous critique of the doctrine of mens rea in R v Tolson, 23 QB 168, pp 185, 187,85 Stephen, J, said: ... I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds. It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a ‘mens rea,’ or ‘guilty mind,’ which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name.... The principle involved appears to me, when fully considered, ta amount to no more than this. The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.

Page 3 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 4.3.1.1 Intoxication and Criminal Intent In criminal cases where the accused has committed the offence under self-induced intoxication, the issues have been raised as to whether the state of intoxication could be pleaded as a defence, and judicial opinion has swung in different directions.86 Sections 85 and 86 of IPC, 1860 deal with two issues and provide: 85. Act of a person incapable of judgment by reason of intoxication caused against his will.—Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or a against his will. 86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

Both the above sections deal with cases of a person who committed the offence when “the thing which intoxicated him was administered to him without his knowledge or against his will”, that is the intoxication was not self-induced and the cause of intoxication could be liquor or drugs. Section 85 deals with the basic, generic notion of a person becoming “incapable of judgment” which results in his becoming “incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law”. Section 84 which deals with the defence of insanity provides: 84. Act of a person of-unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of, unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

It is significant that section 85 treats the situation of the accused of intoxication identically with that of insanity under section 84 as both are said to become “incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”87 In R v Meakin, [1836] 173 ER 131 : 7 C & P 297, Alderson, Baron, held: the prisoner’s being intoxicated does not alter the nature of the offence. If a man chooses to get drunk, it is his own voluntary act; it is very different from a madness which is not caused by any act of the person. That voluntary species of madness which it is in a party’s power to abstain from, he must answer for. However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used.

However, after reviewing the authorities, Russell observes: There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man’s mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act.88

Section 86 deals with the more specific situation “where an act done is not an offence unless done with a particular knowledge or intent”. As pointed out by N Chandrasekhara Iyer, J, in Basdev v The State of Pepsu, AIR 1956 SC 488 : (1956) 1 SCR 363: It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary

Page 4 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. Are we at liberty to place intent on the same footing, and if so, why has the section omitted intent in its latter part?

Iyer, J, in the light of earlier decisions, observed: Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.

Speaking of “knowledge” and “intent” under section 86, Iyer, J, stated: So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts.

Section 86 speaks of presumption of knowledge only and is silent about presumption of intention which means that there is no presumption with regard to the intention of the accused. Therefore, in such cases the particular intention of the accused must be proved by the prosecution in the same manner as is done in the case of normal, sober persons.89 Suppose A is charged with the offence of committing the murder of B, and A pleads the defence of intoxication under section 85 of IPC, 1860. If the prosecution wants to get A convicted of the murder on the basis of knowledge as mentioned under clauses 2 and 4 of section 300, IPC, 1860,90 the Court will presume under section 86 as if A had the same knowledge as he would have had if he had not been intoxicated, unless A proves that the thing which intoxicated him was administered to him without his knowledge or against his will. The issues arising out of intoxication have come under close scrutiny in a number of leading English decisions. Some decisions have held that the jury must be advised to ignore the plea of self-inflicted intoxication as a defence and the accused must be treated as if he committed the offence with full control of his mental and physical faculties. As Lord Elwyn-Jones, LC stated in the landmark case of Director of Public Prosecutions v Majewski, (1976) 2 All ER 142 : [1976] 2 WLR 623 : (1976) 62 Cr App R 262, the accused “cannot then turn round and say: ‘I am not responsible for what I did’ because he put himself into that position in the first place.” As Lord Birkenhead, LC, pointed out in Director of Public Prosecutions v Beard, [1920] AC 479, at p 494, self-intoxication was at one time considered to be an aggravating rather than a mitigating factor: Under the law of England as it prevailed until early in the 19th century voluntary drunkenness was never an excuse for criminal misconduct; and indeed the classic authorities broadly assert that voluntary drunkenness must be considered rather an aggravation than a defence. This view was in terms based upon the principle that a man who by his own voluntary act debauches and destroys his will power shall be no better situated in regard to criminal acts than a sober man.

However, the Lord Chancellor proceeded to state: ...from 1819 onwards the common law judges began to mitigate the severity of the common law, which would not accept self-induced drunkenness as any excuse for criminal conduct.... the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter.91

Page 5 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT Thus, self-intoxication could be treated as a mitigating factor if the accused has an impaired judgment, consequently, in committing murder. But, if the accused resorted to intoxication only to gather what is popularly called “Dutch courage” to commit an offence, such intoxication can only be treated as an aggravating factor. In the case of A-G for Northern Ireland v Gallagher, [1961] 3 All ER 299 : [1963] AC 349 : [1961] UKHL 2, the accused intending to kill his wife bought a knife and a bottle of whisky and got drunk on the whisky and killed his wife. Upholding his conviction for murder, Lord Denning said: ... this case differs from all others in the books in that the accused man, whilst sane and sober, before he took to the drink, had already made up his mind to kill his wife. This seems to me to be far worse— and far more deserving of condemnation—than the case of a man who before getting drunk, has no intention to kill, but afterwards in his cups, whilst drunk, kills another by an act which he would not dream of doing when sober. Yet by the law of England in this latter case his drunkenness is no defence even though it has distorted his reason and his will-power. So why should it be a defence in the present case?

4.3.1.2 Intoxication and “Basic” Intent and “Specific” Intent In an American decision Jones v State, (1860) 29 Ga 594,92 the Court said: One side in the argument affirms as a great principle, that no man, drunk or sober, should be punished for he did not have sufficient mind to perpetrate; and the other replies, with an equally important principle, that drunkenness is no excuse for crime. The two sides each relying upon its chosen principle, have arrived at singularly conflicting conclusions. The truth is, that both these principles are correct and constitute, with the just deductions from them, but parts of an harmonious whole, sustained by law and sanction.

The Courts appear to have found a way out by making a distinction between “basic” intent and “special” intent as pointed out by Birkenhead, LC, in Director of Public Prosecutions v Beard, [1920] AC 479, at p 494: where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved.... In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm... he cannot be convicted of murder.

In Director of Public Prosecutions v Morgan, (1975) 2 All ER 347 : 61 Cr App R 136 : [1975] 2 WLR 913, p 939, Lord Simon of Glaisdale pointing out the distinction between “basic” and “specific” intent observed: By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or, more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence how- ever remote as defined in the actus reus.

Lord Simon further clarified: I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly.93

Most crimes require basic intent, which requires the prosecution to prove only that the accused meant to do an act prohibited by law. The mens rea for general intent, crimes are only a conscious commission of the prohibited act or the basic intent to perform it. Whether the defendant intended the act’s result, is irrelevant. But specific intent crimes, by contrast, require a further or ulterior purpose beyond the mere intention to commit the prohibited act, or have specified mens rea conditions beyond recklessness. Where the offence requires the proof of specific intent,

Page 6 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT the accused can resort to the plea of involuntary drunkenness as a defence. In R v Kingston, [1994] 3 WLR 519 : [1994] 3 All ER 353 : [1994] QB 81, Kingston was involuntarily drugged by a friend. While Kingston was intoxicated, his friend encouraged him to perform sexual acts on a 15-year-old boy. The incident had been a set up by his friend. Kingston was convicted of indecent assault. Kingston’s defence was that if he had not been drugged, he would not have acted the way he did. The main issue was whether the necessary intent was present when the act was committed by Kingston, even when the defence of involuntary intoxication is available. Following the decision in Director of Public Prosecutions v Majewski, (1976) 2 All ER 142 : [1976] 2 WLR 623 : (1976) 62 Cr App R 262, referred to above, the Court held that Kingston was found even in intoxicated condition to be aware that his conduct was wrong just as he would not have done it if he was not intoxicated. Involuntary intoxication in circumstances where Kingston was found to have possessed the required intent to commit the crime, was not enough to negative the mens rea element. For instance, to constitute the offence of robbery under section 390, IPC, 1860, injury must have been caused with the specific intent, of committing theft. While self-intoxication may not absolve the accused of the basic intent of causing injury, it might provide him the defence in the charge of robbery. If A stabs and kills B, under grave and sudden provocation, A will be liable for culpable homicide for the basic intent evident from the act of killing, though he may not liable for murder under section 300 as he acted under provocation by which he lost “self control”.94 4.3.1.3 Appraisal From the above discussion, it is evident that section 85 treats involuntary intoxication as a complete defence to a criminal charge if “a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law.” Sections 84 to 86, inter alia, come under Chapter IV of IPC, 1860 dealing with General Exceptions. But, section 85 does not automatically absolve an accused person of a criminal charge by mere proof of involuntary intoxication. The burden of proof is on the accused person under section 105, Evidence Act, 1872, to establish that the level of intoxication was such that he suffered the deprivation of mental capacity of discrimination as mentioned in section 85. As Lord Coleridge observed: Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it.95

Involuntary intoxication would not be a defence if the accused already had the wens rea to commit the crime as criminal intent would not cease to be so, just because he was drunk.96 Again, involuntary intoxication would not be an excuse under section 85, if the intoxication was not intense enough to render a person “who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law.” In that perspective, it is submitted that whether involuntary drunkenness should be treated as a total excuse for committing the crime or as merely a mitigating factor is a matter that should be scrutinized closely with a case-specific approach by the Court taking the entire evidence into consideration.97 As section 86 applies the presumption to knowledge, but does not extend to the specific intention which may be the component element of the crime, the Court will have to scrutinize the entire evidence to arrive at a conclusion. As the renowned authority on Criminal Law, Stephen, J, stated in R v Doherty, (1887) 16 Cox CC 306: ... although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime.

In R v Meakin, [1836] 173 ER 131 : 7 C & P 297, Baron Anderson referred to the weapon or instrument used by the accused as indicative of his specific intent and said: However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if be bad used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party.

Page 7 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT “Act”, “Event”, “Intention”, “Consequences”, “Crime” and “Offence” From the point of criminal jurisprudence, an “act” is defined as a physical act of a person and it does not per se include the “consequences” of that act.98 Thus, firing of a gun is an act and it may or may not produce any consequences except the release of a bullet if it is loaded. If the gun is fired to kill a tiger but a person is injured or killed “accidentally”, such a consequence cannot be considered as intended. If the gun is “aimed” at some other person and fired, it may produce certain consequences like injuring or killing and, such a conduct consisting of the act and intended consequence of injury or death may be prohibited by law and be declared as a “crime”. If the gunman could or should have “foreseen” the consequences but did not because of his “carelessness”, the law treats his conduct as “negligent” and not free from “fault”. If the law also prescribes certain punishment to the person who committed the crime either intentionally or negligently, then it may be called as an “offence”.99 Invariably, the law declares (1) a certain conduct (ie, act plus consequence) as a “crime” and (2) prescribes certain punishment for the “offence” of committing that crime. In that sense, crime and punishment are two sides of the same coin of “offence”.100 It is the intention or volition that makes an event an act,101and it is the intention to produce the desired consequences that makes the act a crime or an innocent act. In the ultimate analysis, it depends entirely on the manner in which a statute defines a crime and its components. A man is said to have done something when he not only intended to do the act but also intended to produce its consequences. Interestingly, section 23 (1) of Criminal Code (Q), 1899 of Australia provides: A person is not criminally responsible for an event that: (1) the person does not intend or foresee as a possible consequence; and (2) an ordinary person would not reasonably foresee as a possible consequence.

In Irwin v R, (2018) HCA 8, para 44, the High Court of Australia, interpreting Clause (2) of the above provision, held: ...it does not follow that there is logically no difference between what an ordinary person would reasonably foresee and what an ordinary person could reasonably foresee. The former involves a degree of probability, albeit that it need not be more likely than not, whereas the latter is a matter more akin to mere possibility.

A man may intend to do the act but may not intend to produce its consequences,102 or may even intend to avoid those consequences.103 Where a statute makes “the infliction of grievous bodily harm” an offence, the “infliction” need not involve any use of physical force and may mean nothing more than “causing” as in the case where a man communicates sexually transmitted disease to a woman without informing her that he was suffering from it.104 Where the Canadian statute made it an offence to have sexual relation with an adolescent below the age of 16 years, but did not recognize the defence that the accused believed that the complainant was 16 years of age or more at the time the offence has been committed, unless the accused took all “reasonable steps” to ascertain the age of the complainant, the Court has held that the subjective element of reasonable belief itself had the objective component superimposed on it by requiring the taking of “reasonable steps” for verification of age to “enhance protections for youth”. That is, the reasonable belief as to age has to be founded on the actual reasonable “steps” taken by the accused. This objective component “imported” into the subjective element of “fault analysis” is in addition to the objective element of actus reus of actual sexual activity.105 It is, as a rule, for the prosecution to prove both the actus reus and mens rea. Though guilty mind is something within the exclusive knowledge of the accused,106 the law requires the prosecution to prove it.107 Often the intent is inferred than “proved” from the very conduct of the accused or as the illustration (a) to section 106 says from “which the character and circumstances of the act suggest. “108 The guilty mind may have to be inferred from the very nature of the act—res ipsa loquitur—‘the thing speaks for itself’. In R v Monkhouse, (1849) 4 Cox CC 55 Coleridge, J, observed: The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man’s mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another’s head, and fire it off, without intending to kill him; but even there the state of mind of the party is most

Page 8 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT material to be considered....

If a man imitates the signature of another person for fun, it does not amount to forgery as the offence of “forgery” under section 463 of IPC, 1860 requires proof of mens rea or guilty mind of committing fraud or causing damage, injury or loss to another person. Consequently, motive is a necessary component of most of the crimes under IPC and other criminal statutes, but it is relevant only in very limited cases of civil wrongs or torts109. Section 14 of the Evidence Act, 1872 declares as relevant “facts showing the existence of any state of mind, such as intention knowledge, good faith, negligence, rashness, ill-will or good will.” Again, section 15 provides that “facts bearing on question whether act was accidental or intentional” are relevant.110 Lord Reid observed in Sweet v Parsley,111 whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament,112 we must read in words appropriate to require mens rea . . . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.113

Lord Reid proceeded to state what has been acclaimed as “conventionally authoritative statement of the presumption”114 and as “magisterial”115 as follows: ...our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea....it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’ is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.116

In Nathulal v State of MP, AIR 1966 SC 43 : 1966 Cr LJ 71, para 6, Subba Rao, J, as His Lordship then stated that “mens rea is an essential ingredient of a criminal offence” and though “doubtless a statute may exclude the element of mens rea” it is a sound Common Law rule of construction to presume that it is not excluded unless the legislative intent to exclude is manifest. Sometimes, a distinction is made between “ulterior intention” and “immediate intention” and the term motive is applied only to ulterior intention and “immediate intention” is characterized as “intention” proper. Glanville Williams says: “Intention, when distinguished from motive, relates to the means, motive to the end”.117 Phipson says, “intention is an act of the will directing an act or deliberate omission. Motive is the reason which prompts the intention.”118 If a person commits the theft of a loaf of bread from a bakery to feed his starving children, his “immediate intention” or intention proper is to commit theft but his motive or ulterior intention is to feed his children.119 In this example, the ulterior intention (feeding the kids) is innocent but the immediate intention (stealing) is criminal. But in section 8, the word “motive” is used in a generic sense and includes ulterior intention as well as immediate intention. In Natha Singh v Emperor, AIR 1946 PC 187 : (1947) 49 Bom LR 225, the motive for the commission of murder of one Kamail Singh by the accused Natha Singh was that the deceased knew that Natha Singh had earlier committed the murder of Bhan Singh and that the deceased was extorting money from Natha Singh by threatening to disclose that fact to the police.120 Holding that the previous murder by Natha Singh and the attempts at blackmail by Kamail Singh proved the motive for the offence, the Supreme Court observed: Proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a

Page 9 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT person has committed an offence. When evidence connecting the accused with the commission of the crime is weak, motive can hardly make for the weakness of the prosecution case. If prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive or that motive was adequate.121

In this context it may be noted: •

It has been held that where credible evidence exists on record to establish guilt of the accused, it is not necessary to find out the motive of the crime.122

•

Absence of motive would not in any manner destabilize the prosecution case.123

•

It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due.124

•

Motive if proved makes the case stronger but its absence does not render evidence unworthy of acceptance.125

•

In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Proof of motive only adds to the weight and value of evidence adduced by the prosecution.126

•

“Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved.”127

•

“However, 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’.128

The above statement of the Supreme Court suggests that where there is clear proof of guilty act, proof of motive is superfluous, and where there is no proof of guilt, proof of motive is useless.129 Thus, motive, however strong it might be, cannot take the place of proof.130 4.3.1.4 Adequacy of Motive In R v Palmer, (1865) Wills 933, Lord Campbell, CJ, in his appraisal to the jury said that “the adequacy of that motive is of little importance” as “we know from the experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives”. Often, heinous offences are committed from very slight motives131 and momentary fury or passion. 4.3.2 Preparation There are four stages in the commission of a crime and they are: (1) Intention (or motive); (2) Preparation; (3) Attempt;132 and (4) Completion or commission.133 According to Sir Henry Maine, “preparation consists in devising or arranging the means or measures necessary for the commission of the offence.”134 Preparation consists of a design or plan or blueprint for doing an act. Thus, a person who intends to kill another might procure a poison and study the food habits of the intended victim for the administration of the poison. But preparation can be something more than that and the accused might also plan to prevent the discovery of the crime or to aid his escape or to divert suspicion from himself and so on.135 Buying poison might have two scenarios: (1) The man who purchased the poison might have done it to kill pests or vermin136 and (2) even if he bought the poison for killing another person, he might abort the whole plan because he developed cold feet at the last moment or repented for his evil designs and decided to drop them, or his plans might have gone awry because the intended victim has gone somewhere else. Morally and legally, the first scenario is innocent137 but the second scenario is wrong morally but not legally. Preparation per se is not punishable under the IPC, 1860 except in cases of preparing to wage war against the Government of India under section 122 or to commit dacoity under section 399 of IPC, 1860.138 Thus, as a rule, preparation by itself is not punishable unless the

Page 10 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT doer reaches the third stage, that is, the attempt. Under IPC, 1860, all attempts of offences139 are punishable. 4.3.2.1 Preparation as Proof of Motive It is submitted that in cases where the offence is attempted or actually committed, evidence of preparation on the part of the accused clearly establishes the requisite guilty mind or mens rea. Though preparation by itself is not punishable140 and is irrelevant if the offence is not committed or is not even attempted, preparation is proof of premeditation141 where the offence or its attempt is committed. Thus, preparation is proof of motive, and preparation and earlier attempts provide crucial circumstantial evidence of the commission of the offence142 and also help repel the contention that the act was “accidental” and not “intentional” within the meaning of section 15. Sometimes, the preparatory act might itself amount to a crime as in the case of stealing a gun to commit murder. Here, the theft of gun is per se an offence and is punishable irrespective of whether the intended murder is committed, and even if the murder is committed, the theft of the gun will stand alone and will not merge with murder and it is possible that the accused is acquitted of murder but convicted of theft. But his acquittal for theft will seriously jeopardize the case against him for murder. 4.3.3 Conduct Australian Criminal Code, 1995, Schedule, section 4 (2) defines “conduct” as meaning “an act, an omission to perform an act or a state of affairs”143 and “engage in conduct” as meaning: “(a) do an act; or (b) omit to perform an act.” So, conduct includes acts as well as omissions. Conduct would include not only a single act or omission but also a set of acts and omissions,144 and can generally be taken to mean “behavior”. Though in common parlance, conduct or behavior would include the statements and utterances of a person, the two Explanations to section 8 expressly exclude mere statements and the scope of the Explanations is discussed below under the heading “R v Abdullah”. Section 8 also makes “conduct”145 relevant. This provision may be dealt with under three heads, viz, 1. Whose conduct? 2. What conduct? 3. At what time? 4.3.3.1 Whose Conduct? The section makes the conduct of the following persons relevant: 1. Any party to any civil suit 2. Any agent of such party 3. The State as the prosecutor in a criminal proceeding 4. The accused in a criminal proceeding 5. Any person an offence against whom is the subject of any proceeding, namely, the victim of a crime. As pointed out already, a civil suit is fought between the plaintiff and the defendant. Barring the cases where the State or the Government is suing or is being sued, in most cases it is the private persons who are parties in a civil proceeding. In a criminal proceeding, it is the State which conducts the prosecution of the accused and that is so even in cases of the so-called private prosecutions like rape, bigamy and defamation. So, technically, the victim of the crime is not a “party” to the criminal proceeding. Hence, the section expressly treats the victim of the crime as a party for the purposes of section 8 to make his conduct also relevant. Conduct of Accused In a criminal prosecution, it is the conduct of the accused which is crucial. Why and how he committed the offence, and what he did before the commission for preparation, the mode of the execution of the offence, and what he did to abscond or to evade arrest after the commission of the offence are of prime importance for the conduct of the trial and its outcome. His conduct is crucial at two stages of the trial, viz, for the determination firstly, of his guilt and, secondly, of the punishment. The accused has a right to be heard at both the stages of trial which are governed by

Page 11 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT well-established legal and constitutional principles. For instance, no conduct (ie, act or omission and its consequences) of a person can be characterized as a crime without the sanction of law and no such conduct can be attended with punishment without the sanction of law. The above principles along with principles of presumption of innocence of the accused and the requirement of proof by prosecution beyond all reasonable doubt form the bedrock of criminal jurisprudence. Courts in common law jurisdictions have evolved over a period of time many other principles to ensure fairness of criminal justice which might have wider relevance. These principles are discussed in detail in chapter XVIII on “Burden of Proof”. “Rarest of Rare Case”, “Worst Case” and “Totality Principle” Awarding the appropriate punishment is not like picking it from the legal pigeon-hole. The conduct of the accused and its characteristics and the mens rea are determinant not only in framing the charges and finding the guilt but also in fixing the quantum of punishment. The modus operandi of a crime, the brutality and depravity exhibited by the criminal in the execution of the offence are often crucial in determining the punishment, the assessment of aggravating/mitigating factors, and deciding whether the punishments should run concurrently or consecutively. The doctrine of “rarest of the rare” propounded by the Indian Supreme Court in Bachan Singh v State of Punjab, AIR 1980 SC 898 : (1980) 2 SCC 684 : 1983 1 SCR 145 : 1980 Cr LJ 636 : (1980) 1 Mad LJ (Cr) 827,146 for awarding death sentence instead of life imprisonment, and the De Simoni Principle adumbrated by the Australian High Court lay down guidelines for fixing the limits of relevance of conduct of the accused in determining the punishment. Where multiple sentences have been awarded by the trial Court, the “Totality Principle”147 would require that the Court should take into account the different kinds of conduct and states of mind of the same accused in committing the offences, the nature of the offences and their punishments and whether the offences could be merged as being the components of same conduct and whether there could be “accumulation” of offences to make the punishments run concurrently. The De Simoni principle In R v De Simoni, (1981) 147 CLR 383, at 389 : [1981] HCA 31 : 147 CLR 383 : 35 ALR 265 : 5 A Crim R 329, the accused was charged with robbery of 180 dollars from a lady with “actual violence” under section 391 of the Criminal Code of Western Australia. After he was convicted, Crown’s counsel informed the Court that the victim of the robbery was a lady aged 78 and that at the time of the robbery, the respondent struck her a heavy blow on the back of the head inflicting a wound to the scalp at the rear of the skull. The trial judge, while sentencing, referred to the blow he had given to the old lady’s head from behind and the fact that “the Crown has seen fit not to add the aggravating feature” and said: “In my view this crime deserves punishment and substantial punishment.” On appeal to High Court, Gibbs, CJ, held: A judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

In other words, the accused cannot be convicted for a conduct with which he is not charged, and he cannot be punished for a conduct for which he was not convicted. Hypothetical scenarios cannot be factored in aggravation or mitigation.148 Gibbs, CJ, further observed: At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century... However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

In New Zealand also, if it is desired to render an accused liable to the more severe penalty provided for the offence where there exist circumstances of aggravation, those circumstances must be charged in the indictment.149

Page 12 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT In Nguyen v R, [2016] HCA 17 : 256 CLR 656 : 90 ALJR 595 : 331 ALR 30 : 255 A Crim R 436, a drug peddler shot a police officer with an unlicensed pistol, who came to his garage with a search warrant, thinking that the officer was a robber and not knowing that he was an officer. He was charged with manslaughter and related factors like using a firearm in public place. The trial judge took into account the mitigating fact that the accused shot at the deceased without the knowledge that he was an officer, “which, had it been present, would have rendered the offender liable for a more serious offence”, ie, a murder.150 The High Court held: The appellant is correct in submitting that the De Simoni principle operates for the benefit of the offender and does not apply to preclude a sentencing court from taking into account the absence of a factor which, if present, may have rendered the offender guilty of a more serious offence. This is because the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted.

It was held by the High Court that had the accused known the identity of the deceased, the case would have been what is called in Australian criminal law terms as “worst case” which would have called for maximum punishment. Conduct of Woman in Rape Cases India In India, brutal rape and murder cases that occurred in New Delhi and elsewhere have given rise to considerable outrage and public debate as to various issues relating to rape law and the need to strengthen it. This led to the passing of the Criminal Law Amendment Act of 2013 which amended the relevant provisions of IPC, 1860, Cr PC, 1973 and Evidence Act, 1872. In the light of this, it would be fruitful to make a study of the developments in India and also in other countries in this critical area of societal concern. In a rape case, the important question is whether the woman consented to the intercourse and, in this context, her conduct is crucial for deciding the case one way or the other.151 The conduct of the woman may be relevant (a) under section 6 as forming part of the transaction (“hue and cry” doctrine), (b) under sections 8 and 9 as conduct influencing or influenced by fact in issue or relevant fact, (c) under section 11 rendering the charge “probable or improbable”, (d) under section 14 as showing her state of mind, and (e) under sections 157 and 145 for corroborating or contradicting her as a witness152. In Tukaram v State of Maharashtra, AIR 1979 SC 185 : (1979) 2 SCC 143 : (1979) 1 SCR 810, the Supreme Court, dealing with a case of custodial rape, reversed conviction by the High Court and restored acquittal by the Sessions judge, and held that absence of hue and cry and resistance on the part of the woman and of any injury to her private parts implied that there was consent on her part. In fact, the defence contended that it was a “peaceful affair”. This was a case where an innocent girl was raped by two police officers inside the police station. In fact, in Tukaram, the Supreme Court’s interpretation of the helpless submission by the rape victim as consent153 attracted severe criticism from eminent academicians.154 This ultimately led to amendment of IPC, 1860 and Evidence Act, 1872.155 It may be noted that Stroud’s Judicial Dictionary explains the expression “consent”, inter alia, as follows: “Every ‘consent’ to an act, involves a submission; but it by no means follows that a mere submission involves consent.”156 In State of HP v Mango Ram, AIR 2000 SC 2798 : 2000 (7) SCC 224 : 2000 Cr LJ 4027, the Supreme Court observed: Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.

In the case of KP Thimmappa Gowda v State of Karnataka, (2011) AIR 2011 SC 2564 : (2011) 14 SCC 475 : 2011 (4) Scale 224, the Supreme Court set aside the conviction of the appellant by the High Court for rape on the ground that the prosecutrix herself stated in her evidence that she had sex with the appellant on several occasions, and there was a delay of over eight months in lodging the FIR against the appellant; and that sex with a woman above 16 years of age with her consent is not rape under section 376, IPC, 1860.157 In Alamelu v State Represented by Inspector of Police, AIR 2011 SC 715 : [2011] 2 SCR 147 : 2011 (1) Scale 575, the Supreme Court observed: The High Court erroneously concluded that the girl had not willingly gone with Sekar. The conclusion could only be recorded by ignoring the entire evidence with regard to the conduct of the girl from the time of the alleged abduction till the time of the alleged recovery. We have noticed earlier that she did not make any complaint on so many occasions when she

Page 13 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT had the opportunity to do so.

A brief review of a few extraordinary rape cases would give an insight into the complexities of assessing consent from the conduct of the prosecutrix. Canada In the Canadian case of R v JA, (2011) SCC 28 : (2011) 2 SCR 440, the man and the woman in Common Law relationship engaged in consensual erotic activity during which the woman consented to “erotic asphyxiation” by strangulation during which she became unconscious for about three minutes. When she regained consciousness, she found herself being subjected to anal penetration of a dildo by the man. The dildo was immediately withdrawn, and they had consensual vaginal intercourse. Two months later, when he asked for the custody of their two-year old child, she filed a criminal complaint for sexual assault by the man. The trial court convicted him and sentenced him for imprisonment of 18 months.158 The Court of Appeal acquitted him, and the Crown went in appeal to the Supreme Court of Canada. The Apex Court restored the conviction by the trial judge and, after referring to relevant provisions of the Canadian Criminal Code, Beverley McLachlin, CJ, speaking for the majority, held: It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact....These provisions indicate that Parliament viewed consent as requiring a ‘capable’ or operating mind, able to evaluate each and every sexual act committed. To hold otherwise runs counter to Parliament’s clear intent that a person has the right to consent to particular acts and to revoke her consent at any time....I cannot accept the respondent’s contention that an individual may consent in advance to sexual activity taking place while she is unconscious.159

Morris Fish, J, writing the dissenting opinion for himself and two other judges observed: It is a fundamental principle of the law governing sexual assault in Canada that no means “no” and only yes means “yes”. K.D.[real name hidden], the complainant in this case said yes, not no. She consented to her erotic asphyxiation by the respondent, J.A., her partner at the time. Their shared purpose was to render K.D. unconscious and to engage in sexual conduct while she remained in that state. It is undisputed that K.D.’s consent was freely and voluntarily given—in advance and while the conduct was still in progress. Immediately afterward, K.D. had intercourse with J.A., again consensually.... We are nonetheless urged by the Crown to find that the complainant’s yes in fact means no in law.160... Their mission [of provisions of Criminal Code] is not to “protect” women against themselves by limiting their freedom to determine autonomously when and with whom they will engage in the sexual relations of their choice...161

United Kingdom In UK, the Sexual Offences Act of 2003 has brought about some important changes in the pre-existing law on the offence of rape.162 Apart from widening the definition of rape so as to include non-penile and non-vaginal penetrations163, section 1 (1)(a) of the Act provides that “A” commits rape on “B” if: “B does not consent to the penetration”, and (1) (b) “A does not reasonably believe that B consents”; and Clause (2) states: “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” Section 74 defines “consent” and states: “For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”164 As the “Crown Policy Service (CPS) Policy for Prosecuting Cases of Rape” states: “The essence of this definition is the agreement by choice. The law does not require the victim to have resisted physically in order to prove a lack of consent.” CPS further states: Proving the absence of consent is usually the most difficult part of a rape prosecution, and is the most common reason for a rape case to fail. Prosecutors will look for evidence such as injury, struggle, or immediate distress to help them prove that the victim did not consent, but frequently there may be no such corroborating evidence.165

Section 375, IPC, 1860, as amended in 2013, provides: Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Provided that a

Page 14 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. New Zealand Crimes Act, 1960 provides in section 128A: Allowing sexual activity does not amount to consent in some circumstances. (1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

While it may be true that evidence of resistance by the woman is not a necessary precondition for proof of rape and, conversely, it may also be true that absence of resistance may not be in all the cases proof of her consent, it cannot be denied that absence of resistance is a critical piece of highly relevant evidence if, in a given case, the woman had the freedom to make a choice.166 In the case of R v Bree, [2007] EWCA Crim 804 : [2007] 2 All ER 676, the accused Benjamin Bree went to visit his brother and went out with his brother’s friends including the complainant. The complainant, along with others, drank heavily and in an intoxicated condition she was taken to the room by Bree. The complainant said that she was lapsing between consciousness and unconsciousness and was aware that the accused was trying to penetrate and have sex but contended that in such a condition she lost the freedom of choice. The accused contended that though she was drunk, she was aware and she herself undressed and he reasonably assumed that she was consenting. The Court of Appeals overturning the conviction and allowing the appeal held: If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting... However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.167

The above case may be contrasted with the “notorious” case of R v Morgan, [1976] AC 182 : [1975] 2 All ER 347, wherein the House of Lords had to deal with a ticklish question of proof of mens rea. In that case, the question was whether the defendants could be convicted of rape, notwithstanding their honest mistake of fact as to consent of the woman. Morgan and three other men of the Royal Air Force were drinking most of the night and Morgan told his friends that he had no objection if they would go to his home and have sex with his wife. They said that she might struggle and resist but Morgan assured them that she would also enjoy it and her resistance would be a mere pretence as she was “kinky”. The three men, along with Morgan, went to Morgan’s house, woke up his wife and had sex forcibly. When the three men were charged with rape (and Morgan with abetment to rape), they contended that they had absolutely no intention of committing rape and they were on the reasonable ground to believe that the woman was consenting because of what Morgan told them. Under English law for a general intent crime, the evidence establishing the “mistake of fact” had to be both honest (subjective) and reasonable (objective). They claimed that even a grossly “unreasonable” mistake of fact should exculpate a rape defendant. The trial judge disagreed, and the jury convicted them. The House of Lords (per Lord Hailsham), however, agreed with the defendants on appeal, holding that a rape conviction could not stand where the defendants believed they had the woman’s consent, no matter how unreasonable that belief. Lord Hailsham propounded the rule that a defence of mistake must be honestly, rather than reasonably held. However, the Lords denied the defendants the benefit of the victory when they ruled that, notwithstanding the legal error at trial, no miscarriage of justice had occurred as recklessness as to whether the woman was actually consenting or not was mens rea for a conviction of rape.168 The ratio in Morgan that a rape conviction could not stand where the defendants believed that the woman was consenting, no matter how unreasonable that belief was in the light of the woman’s conduct of resistance169, was followed as a binding precedent in another “terrible” case that occurred a few days later, viz, R v Cogan and R v Leak, [1976] QB 217 : [1975] 2 All ER 1059 : [1975] 3 WLR 316. In Cogan, Leak, the drunken husband abetted his reluctant friend Cogan to rape Leak’s wife in spite of her resistance. Cogan was charged with rape and Leak with abetment to rape and both were convicted of those offences by the trial judge. Cogan, taking the cue from Morgan holding, contended that he thought she was consenting. The Court of Appeal said that “no one outside a court of law would say that she had not been” raped, but regarding the applicability of Morgan to Cogan, the Court reluctantly held: “It did. There is nothing more to be said. It was for this reason that we allowed the appeal and quashed his conviction.” Leak was, however, held guilty of abetment to rape and the Court of Appeal said: Here one fact is clear—the wife had been raped. Cogan had had sexual intercourse with her without her consent. The fact that Cogan was innocent of rape because he believed that she was consenting does not affect the position that she was

Page 15 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT raped.170

The House of Lords refused the petition of Leak for leave to appeal.171 In the disturbing case of C v R, [2012] EWCA Crim 2034 : [2012] MHLO 104, the complainant, the step-daughter of the appellant was 18 years younger than him and she was sexually abused by him for over a period of about 20 years, beginning when she was about five years old, and continuing until she was 25 years old. At the later stages, the relationship appeared to be consensual and as the Court of Appeal observed: the unusual feature of this case is that a substantial body of evidence was available... which showed apparent consent to sexual activity by the complainant after she was 16 years old, and further evidence which appeared to suggest that from time to time she initiated and welcomed sexual activity.172

When confronted by his wife, the appellant stated that he and his step-daughter were in love. The complainant was ostracized from the family and started living separately. But her mother and boyfriend urged her to report to the police which she did. [H] er evidence was that she felt trapped and afraid of the appellant even after she left home. Throughout her childhood and after she grew up, his attitude to her was domineering, aggressive and controlling.173

The Crown: contended that the complainant agreed to sexual activity because she had been groomed and corrupted by the appellant into what might be described as conditioned consent. Rather the evidence of prolonged grooming and potential corruption of the complainant when she was a child provided the context in which the evidence of her apparent consent after she had grown up should be examined and assessed.174

Accepting this “approach” and dismissing the appeal by the accused, the Court of Appeal held that: the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting.175

Appraisal As mentioned above, section 74 of the Sexual Offences Act of 2003 of UK defines “Consent” and says: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” Section 90 of IPC, 1860 defines consent negatively and states: A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

The term “agrees” in section 74 of the 2003 Act shows that it is a two-way affair. Section 375 of IPC, 1860, as amended in 2013, defines consent as: “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act” and section 90 also brings out the fact that consent is a bilateral affair—between the victim and “the person doing the Act who knows or reason to believe” that the consent was flawed. In Tekan Alias Tekram v State of MP (now Chhattisgarh), (2016) 1 Mad LJ (Cr) 763, the Supreme Court held the accused guilty of rape of a blind girl, with whom he had sex by promising to marry her, and consequently impregnating her. Here, the question would be not whether the girl consented to sex, but whether the basis of her consent was the promised marriage and the accused induced that belief. Section 26, IPC, 1860, says: “A person is said to have ‘reason to believe’ a thing, if he has sufficient cause to believe that thing but not otherwise.”176 But section 90 is confined to consent given under fear or misconception only, and the question of whether the accused “knows or has reason to believe”

Page 16 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT is related to that only. Hence, section 90 does not cover the whole gamut of non-consensual (or consensual) conduct of the woman under section 375 (rape), IPC, 1860, under which rape is committed “against her will” and “without her consent”. From the perspective of the definition of rape under section 375 of IPC, 1860, it is submitted that in a situation as that of Morgan’s case, the only question that ought to be considered is whether the woman was in fact consenting, no matter what the accused assumed from what Morgan told them.177 In that specific context, the conduct of the victim and the perception and assessment of that conduct by the accused may be relevant and the “reasonable belief” of the accused must relate to the woman’s conduct and not somebody else’s. Rape is one offence that cannot, in the nature of the things, be committed unintentionally. The woman’s conduct in the matter and, in particular, the fierce resistance she put up in Morgan’s case should have been the main determinant factors. In fact, as E Curley points out, judgment in Morgan created an uproar in the British and Australian presses and the ruling was criticized as a “rapists’ charter”.178 4.3.3.2 What Conduct? The conduct relevant under the section must be with reference to: 1. such civil suit or criminal proceeding, or 2. any fact in issue therein 3. or fact relevant thereto; and 4. such conduct influences or is influenced by any fact in issue or relevant fact. Thus, the conduct to be relevant must be referable to the fact in issue or relevant fact. In fact, preparation and previous attempts are themselves examples of conduct of the accused which give rise to a presumptive proof of his guilt.179 Thus, illustration (e) referred to above is an example of not only “preparation” but also of “previous conduct” of the accused both of which are relevant under section 8. Thus, if A is charged with the murder of B by shooting at him, and A pleads the defense that it was an accident, the fact that he attempted to shoot at B on an earlier occasion overthrows that defense. The fact that there was a violent fight between the accused and the deceased the day before the murder and that led the accused to kill the deceased is relevant as the conduct that influenced the fact in issue. The fact that the accused assumed a false name and absconded is also similarly relevant. Illustration (f) to section 8 is an example of the accused fleeing from justice. 4.3.3.3 At What Time? The conduct of the parties is relevant under section 8 “if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” Thus, section 8 covers: (a) the conduct relating to fact in issue or relevant fact of the parties to any (i)

suit or

(ii) proceeding, or of (iii) an accused person; (b) whether the conduct is (i)

contemporaneous to fact in issue or relevant fact

(ii) previous, or (iii) subsequent thereto. It goes without saying that the conduct of the parties contemporaneous to the event, is most relevant.180 Thus, in a bride burning case, where the mother-in-law and other close relatives chose to remain as mere spectators when the woman was being burnt, the Apex Court held: The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person. Though, the appellants were the closest relations of the deceased, they did not do

Page 17 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT anything of the kind.181

Though section 8 says that the conduct is relevant “whether it was previous or subsequent thereto”, it is obvious that the conduct to be relevant under section 8 must fall within a certain time-frame of proximity as the conduct must either influence or be influenced by any fact in issue or relevant fact.182 Hence, relevancy of conduct depends on its proximity to the fact in issue, and how close is “close enough” depends on whether the impact could be considered to have been caused by the physical or psychological link between the two. As discussed under section 6, in Subrati v State of UP, Allahabad,183 it was held that: the conduct of the mother of the victim [rape] to go to search for her daughter when her daughter did not return home is very natural.... The statement of the mother of the victim immediately after the incident would be relevant under Section 6 of the Evidence Act.

Similarly, in Rameshwar, son of Kalyan Singh v State of Rajasthan, AIR 1952 SC 54 : 1952 SCA 40 : 952 SCR 377, it was held that the conduct of an eight-year-old rape victim of telling her mother of the rape immediately after recovering her consciousness was very natural and was part of res gestae. These two cases indicate the overlapping areas of sections 6 and 8 where the conduct of the mother in the first case and of the victim in the second were held to be part of res gestae because (a) it was “natural”—part of human nature—for them to respond to the event the way they did so as to place the conduct within the ring-fence of res gestae and (b) the conduct was influenced by the fact in issue. Thus, the terms “previous or subsequent” are not open-ended. Illustration (i) to section 8 says: A is accused of 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. Here A’s absconding is proof of his attempt to flee from justice and his conduct is directly influenced by the fact in issue. Previous Conduct—“Last Seen Together” Doctrine Preparation for crime and previous threats and attempts to commit crime obviously come under the previous conduct of the accused.184 Where a person was charged with attempting to smuggle goods at the port of Karachi and it was shown that on an earlier occasion he tried to smuggle goods at another port called Okha and that he tried to come to an understanding with customs officials, there was held to be relevant as previous conduct.185 Previous expressions by the accused of ill will or hatred towards or an intention to kill the deceased are all relevant as conduct.186 The previous threats are pointers to motive and also amount to conduct.187 The presence of the accused at the place of the offence or his being seen last with the deceased are also relevant. This is sometimes referred to as the test of “last seen together” as a piece of circumstantial evidence. It was held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances, it is not possible to fasten the guilt on the accused on solitary circumstance of the two being seen together.188 In Nizam v State of Rajasthan, AIR 2015 SC 3430 : (2016 ) 1 SCC 550, the Supreme Court held: If a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by S. 106 of the Evidence Act.

In SK Yusuf v State of WB, AIR 2011 SC 2283 : (2011) 11 SCC 754 : (2011) 8 SCR 83, the Supreme Court said that the last seen theory comes into play where the time gap between the point of time when the accused and 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.189 It was held that where there is a long timegap between “last seen together” and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”.190 In State of Goa v Sanjay Thakran, 2007 AIR SCW 2226 : (2007) 3 SCC 755 : (2007) 3 SCR 507, it was held that: there can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period...

Page 18 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT In Sahadevan v State of TN, AIR 2012 SC 2435 : 2012 (6) SCC 403 : 2012 (5) Scale 415, it was held that the plea of “last seen together” must be viewed in the context of the entire prosecution case and the circumstances that precede and follow that point of time. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible.191 Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another.192 To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.193 If the husband and wife were together in the bedroom and the wife was found killed, he must offer an explanation as that is only within his knowledge within the meaning of section 106 also.194 However, in case of “last seen together”, the prosecution is exempted from proving the exact happenings of the incident as the accused himself would have special knowledge of the incident and thus, would bear the burden of proof as per section 106 of Indian Evidence Act, 1872. Therefore, last seen together itself is not a conclusive proof.195 Subsequent Conduct—“Absconding” by Accused The conduct of the parties subsequent to the occurrence is relevant if it is influenced by the fact in issue. The filing of an FIR by the accused to divert attention of the police from himself is relevant under section 8.196 Where the accused killed his wife and then lodged an FIR with the police stating that his wife committed suicide is relevant as the conduct of the accused trying to mislead the police by giving “the case an appearance favourable to himself.”197 The fact that the accused set up a false plea of alibi is relevant under section 8 as conduct to shield himself.198 The fact that the accused is trying to flee from justice or abscond is also relevant as an inculpatory fact199 but the fact that he was unaware of the charge against him at the time of disappearance might “explain away the guilt significance of the conduct.”200 As observed by Wigmore: Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt....It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.201

As the Supreme Court pointed out: to be an absconder in the eye of law, it is not necessary that a person should have run away from his home; it is sufficient if he hides himself to evade the process of law, even if the place of hiding be in his own home.202

However, the Courts have held that a person running away may not necessarily give rise to an inference of guilt as even an innocent man might run away because of fear203 or nervousness204, or out of sheer elemental instinct of self-preservation.205 The Supreme Court held that it is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence.206 It is quite possible that he, merely being suspected, may be running away out of fear of police arrest and harassment. Thus, mere absconding of the Appellant cannot be taken as a circumstance which would give rise to drawing an adverse inference against him.207 An adverse inference that he was absconding cannot be drawn merely from the fact that the accused surrendered after being absent for 1lh years, given the fact that admittedly there were no warrants of arrest against him.208 In Elavarasan v State, rep by Inspector of Police, AIR 2011 SC 2816 : (2011) 7 SCC 110 : 2011 AIR SCW 4431 : 2011 (7) Scale 33, the Supreme Court pointed out that in the “post event conduct” the accused might (a) run away from the scene or (b) go to the police station and report or confess and surrender or (c) remain at the scene of offence. Such conduct “may be relevant to determine the culpability of the offender in the light of other evidence on record” but the mere fact that he did not flee does not “in itself show that the person concerned was insane” as contended by the defence in this case. Illustration (c) to section 9 exemplifies this point and states: 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 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. A fleeing person is not necessarily a fugitive from justice.

Page 19 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT In the 2011 Canadian Supreme Court case of R v White, 2011 SCC 13 : (2011) 1 SCR 433, Dennis White was charged with shooting and killing a man after an altercation. White fled the scene immediately after the event. Upholding the conviction, the Court observed: It has long been accepted that actions taken by an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence of their culpability for that crime. Examples of such actions include flight, the destruction of evidence, or the fabrication of lies. However, in recent years the terminology used to refer to such evidence has undergone certain changes209....The term “consciousness of guilt” evidence was used to describe such conduct because it was used to support an inference that the person in question believed themselves to be guilty of the crime of which they were accused.210

However, the Supreme Court pointed out: this Court abandoned the label “consciousness of guilt” when describing evidence of after-the-fact conduct because such a label was thought to be unduly narrow and somewhat misleading. After-the-fact conduct may in fact be put to a wide variety of uses and its utility is not confined to supporting an inference that the accused had a “guilty mind”211....this general category of evidence should be referred to by a more neutral term, such as “post-offence conduct”212. This label would avoid the twin pitfalls of confining the relevance of such conduct to questions concerning the accused’s state of mind and of subverting the presumption of innocence...The category of “post-offence conduct” evidence is much broader as it refers to anything done by the accused after the commission of the offence.213

Accused’s Conduct under section 8 and Statement under section 162 of Cr PC Under section 162 of Cr PC, 1973, any statement made by any person to the police during the course of investigation cannot, as a rule, be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.214 The fact that the accused made such statement is a kind of conduct of the accused within the meaning of section 8. However, there is a clear distinction between the conduct of the accused under section 8 and the statement of the accused barred under section 162. What is excluded by section 162 of Cr PC, 1973 is the statement made to a police officer in the course of investigation, and not the evidence relating to the conduct of the accused, not amounting to a statement when questioned by the police during investigation. For example, the evidence that the accused led the police officer to the place where the stolen goods or weapons which had been used in the commission of the crime were hidden, would be admissible as conduct under section 8, irrespective of whether any statement made by the accused before, during or after such conduct was admissible under section 27 of the Evidence Act, 1872.215 Then, the crucial question is: Can statements barred by section 162 be admitted as accompanying and explaining acts other than statements under section 8, or as part of res gestae under section 6? In Maha Singh v State, AIR 1976 SC 449 : 1976 1 SCC 644 : 1976 SCR (3) 119 : 1976 Cr LJ 346, a trap was laid by the police to apprehend a police constable who was reported to have demanded a bribe for not challaning the complainant under the Bombay Police Act, 1951. One of the issues was whether the statement of the accused before the Inspector admitting to have received the bribe was admissible in evidence as it was made during investigation of the case within the meaning of section 162. The Supreme Court confirmed the conviction by both the trial judge and the High Court, and held: Therefore, any statement made by the accused in answer to questions put by the Inspector is inadmissible under section 162 Cr. P.C. and neither the prosecution nor the accused can take advantage of these answers. These are, therefore, excluded from consideration in this case by us. But all the same the conduct of the accused would be relevant under section 8 of the Evidence Act if his immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably established.

The last sentence of the above observation states that “the conduct of the accused would be relevant under section 8 of the Evidence Act” with regard to (1) “his immediate reactions to the illegal overture of the complainant ... revealed in the form of acts” and (2) “accompanied then and there or immediately thereafter by words or gestures reliably established.” The Court’s observation that the accompanying “words” are to be considered as relevant as

Page 20 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT part of conduct under section 8 and as not barred by section 162 should be taken to mean that what is admissible is the fact that he said and not what he said. The accompanying words may be relevant also under section 6 of the Evidence Act, 1872 as part of the “same transaction”, and if that is the ground on which the statements barred by section 162, Cr PC, 1973, can be admitted under sections 6 and 8, then, section 162 will become an empty shell. The above decision may be contrasted with Emperor v Nga Tha Din, AIR 1926 Rang 116 : 27 Cr LJ 881 (FB), where the Rangoon Court (FB) observed: The provisions of Section 162 as now amended absolutely bar the use of statements, both oral and written and make those statements inadmissible for any purpose under the Evidence Act in any enquiry or trial except for one purpose, and that is by the accused to contradict a prosecution witness in the manner provided by Section 145, Evidence Act.216

In the light of the above, it is submitted: (1) section 162 (1) bars the statements made by the accused to the police during investigation. The section bars only statements and not conduct. (2) section 162 excepts only section 32 (1) and section 27 from its operation and no other section. (3) Hence the statements barred by section 162 cannot be considered as relevant under section 6 as part of res gestae, or under section 8 IE Act as statements influencing or influenced by conduct. Otherwise, the very purpose of section 162 will be defeated. (4) What the accused DID--like taking the police to a certain place where he hid objects recovered under section 27, or that he pocketed the money and parchee as in Maha Singh case—can be proved under section 8 as conduct not covered by section 162, but what the accused said when he did those actions are barred by section 162, and cannot be proved at all though they may be relevant as res gestae under section 6 or under section 8 as statements accompanying the conduct. (5) The above approach is preferable for two reasons: (a) Cr PC, 1973 of 1989 is later to the Evidence Act of 1872 and should prevail over the Evidence Act, 1872 particularly because section 162 expressly excepts only sections 27 and 32 and limits the use of section 162 statements only for the purpose of contradiction under section 145 of the Evidence Act, 1872, and (b) where two interpretations are possible, the interpretation that favours the accused must only be preferred.217 “Complaint” and Statement of Victim Illustration (j) to section 8 states: 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 relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

The illustration makes a distinction between a “statement” and a “complaint” because the latter evidences conduct whereas the former does not.218 The essential difference seems to be that “statement” means a verbal communication made by a person whereas a “complaint”219 is statement made with a view to pour forth the grief and agony and to seek protection and redressal for oneself and punishment of the wrongdoer.220 It is pertinent to note that, in this context, as “complaint” has a technical meaning under Cr PC, 1973 as one formally made to a Magistrate, it should not be confused with a complaint made to a relative or friend. Again, “complaint” is different from FIR as the former is made to a Magistrate while the latter is filed by the victim or some other person with the police under section 154, Cr PC, 1973. In a trial for conspiracy to murder, a complaint by the deceased that he apprehended danger to his life is relevant under the explanations to section 8.221 From illustration (j) it is clear that a complaint made by a person is a piece of substantive evidence that is admissible under section 8 irrespective of whether the person is alive or dead.222 Often, the very fact that the victim did not lodge a complaint soon after the crime might itself be a crucial factor, and the utility and importance of the fact that he did lodge a complaint stands independently of using the complaint for the auxiliary purpose of corroboration of the victim when he appears as a witness in the trial.223 In R v Lillyman, [1896] 2 QB 167 : [1895-9] All ER Rep 586, the Court held:

Page 21 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT

An early complaint is admissible to prove that the complainant’s behaviour was consistent with her story and also to prove that she did not consent. The complaint does not prove the truth of her story.

This is so because of the maxim qui tacet, consentire videtur: silence indicates consent. Thus, the Law Commission of India observed that in the case of rape victim “the law considers complaint as a natural expression of the feelings of the victim, thereby lending credibility” and that delay in filing a complaint might create suspicion.224 However, this rule was described by Justice Oliver Wendell Holmes in a Massachusetts case Commonwealth v Clery, (1898) 172 Mass 175, as “a perverted survival of the ancient requirement that a woman should make hue and cry as a preliminary to an appeal of rape”.225 It was held that “it is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution” and that whether the delay is explained properly “has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances.”226 In Guddu Urf Raghvendra, Arjun Singh v State of UP, 2016 Cr LJ 1314, the Court observed that offences like rape have a great impact on the social status, prestige of the family of the victim, and the dignity, reputation and prestige of the victim is always at jeopardy in her known circle. After such incident, normally a mature decision is taken by the family members about lodging of the FIR. Sometimes, such an offence even goes unreported to the police. “On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.”227 If it is not a complaint but a mere statement, it could be relevant under section 32 (1) as a dying declaration,228 or under section 157 for corroboration. As held in Mukesh v Chhattisgarh, (2014), (2014 ) 10 SCC 327 : 2016 (2 ) SCJ 603, para 17, “the most important fact, that the prosecutrix had narrated the incident of rape immediately after its commission [to family members], gives us a strong reason to believe the version of the prosecution,” and it is part of circumstantial evidence. R v Abdullah The case of R v Abdullah, (1885) 7 All 385 : (1885) ILR 7 All 385,229 is a leading decision of the Allahabad High Court on the scope and application of section 8 and the two Explanations. In that case, Dulari, a prostitute, was murdered by Abdullah while she was asleep at her home by slitting her throat with a razor. The murder took place early in the morning and Dulari was able to see and identify the accused. She was later taken to a hospital where her mother, Kotwal, Deputy Magistrate and surgeon put questions to her about the identity of the assailant. She was fully conscious and was able to hear but was unable to speak because of the injury to the throat. The doctor also advised her against speaking. Then it was agreed that she would give her replies of “yes” and “no” by signs and gestures of her hand. When some names were mentioned of persons who could have been the culprits, she made a negative sign but when Abdullah’s name was mentioned she made an affirmative sign. She also indicated by similar gestures various other circumstances in which the incident took place. The Sessions Judge of Aligarh convicted Abdullah of murder and, on appeal, the case was referred to a Full Bench of five judges. In a split decision of 4-1,230 it was held by the majority that Dulari’s statement was not relevant as conduct under section 8 but was relevant as a dying declaration under section 32 as a statement relating to the cause and circumstances of her death. It was held that for conduct to be relevant under section 8, it must have been directly influenced by the fact in issue and not by the interposition of questions by others like in this case. Her signs have no meaning unless they are taken along with the questions. Questions by third persons are not relevant under section 8. This was indeed a catch 22 situation and the majority got over it by holding the statements relevant under section 32 (1) as dying declarations, being “verbal” statements of Dulari. Under section 119 of the Evidence Act, 1872, signs and gestures made by a dumb witness are deemed to be “oral evidence” and, though Dulari was not a witness as she was not testifying in a court of law, the analogy of section 119 would apply. Justice Mahmood, who dissented, came to the opposite conclusion on both counts of whether Dulari’s statements were relevant as conduct under section 8 or as dying declarations under section 32 (1). His Lordship disposed off the question of relevance under section 32 (1) by observing that Dulari’s signs could not be considered as “verbal” statements. Regarding the issue of relevance under section 8, Mahmood, J, opined that Dulari’s conduct was that of the “person an offence against whom is the subject of any proceeding” within the meaning of Explanation I of section 8. But the crux of the issue was whether her conduct was influenced by the fact in issue or relevant fact. On this issue, the majority held that her conduct was not directly influenced by the fact in issue but by the intervention of third parties’ questions to her. Justice Mahmood thought that “the present case is the same in principle as that given in the illustration” (f) to section 8 which says:

Page 22 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT

The question is whether A robbed B. 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.

Here A’s conduct of running away was influenced not directly by the fact in issue but by C’s statement that the police were looking for the culprit. Justice Mahmood thought that if the majority views that the conduct must have been “directly” influenced by the fact in issue was correct, the illustration must be held to be “at variance with the section which it was designed to explain”. Mahmood, J, thought that it was strange logic to treat Dulari’s conduct as irrelevant under section 8 (which treats conduct as relevant) and hold the conduct as relevant under section 32 (1) (which treats statements as relevant).231 It is submitted that there is a difference between illustration (f) to section 8 which deals with the conduct of the accused, and Abdullah case which deals with the conduct of the victim. In the illustration, the statements were made in A’s presence and hearing and, hence, they were not “made behind the back of the accused” or res inter alios acta. The responses made by Dulari were elicited by the questioners and, hence, they were not strictly “complaints”. They were not part of res gestae under section 6. It is difficult to say that those responses were “conduct” influenced by the fact in issue, directly or even indirectly. In other words, even if the signs and gestures were to be held as statements, they were statements influenced by the statements (questions) of those who queried her. Under section 8 “statements” per se are not conduct. Explanations to section 8 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.

Though in normal parlance, the conduct of a person would include statements made by him as both are voluntary acts of the same person, Explanation 1 excludes statements unless they “accompany and explain acts other than statements”. So, mere statements are not relevant. Often, conduct of a person and his statements may be so inextricably intertwined that one cannot be understood without reference to the other and as explained above, “complaint” comes under this category. Under Explanation 2, the statements and conduct that are relevant are not of the same person but the symbiosis between the two is required in two ways: (1) the statement must have been made to him or in his presence and hearing. In other words, they are not res inter alios acta; and (2) such a statement affects such conduct. It is submitted that, under Explanation 2, the statements “made to him” and “made in his presence and hearing” may be different as telephonic statements would come under the former and not under the latter. For instance, illustration (f) to section 8 says: The question is, whether A robbed B. 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. This illustrates the statement “made in his presence and hearing” but if the statement is made on telephone and A runs away it would come under the former but not the latter part of Explanation 2. Thus, under both the Explanations, the statements do not stand alone but they either accompany or influence the conduct and, hence, must be contemporaneous to conduct. Recording of Rape Victim’s Statement under section 164, Cr PC, 1973—Apex Court’s Guidelines (2014) In State of Karnataka by Nonavinakere Police v Shivanna @ Tarkari Shivanna, (2014),232 the Supreme Court of India laid down guidelines for recording of the statement of rape victim. The Court observed: although there are Fast Tract Courts for disposal of such cases, we do not yet have a fast track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC with the result that such heinous offences are repeated incessantly... recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial.233

Page 23 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT The Court issued the following “interim directions in the form of mandamus” to all the police stations in the entire country: (i)

Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate. (iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid. (iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.234 The Apex Court also directed that a copy of the report of medical examination of the rape victim conducted under section 164 as amended in 2005 should be immediately handed over to the Magistrate who records the statement of the victim under section 164, Cr PC, 1973. 4.3.3.4 Relevance of Statements and Complaints Mere statements as to offences may be admissible under: 1. section 6 as forming part of the transaction; 2. section 32 (1) if amount to dying declarations; 3. section 157 for corroboration if the maker appears as witness; 4. section 159 to refresh the memory if the maker appears as witness; and 5. section 145 for contradicting if the maker appears as witness; Provided these statements are not excluded by section 162 of Cr PC, 1973, or sections 25, 26 of Evidence Act, 1872. Statements as Complaints may be Relevant under: 1. section 6 as forming part of the transaction; 2. section 32 (1) if amount to dying declarations; 3. section 8 as conduct influenced by fact in issue; 4. section 9 as negativing consent where consent is material as in a rape case; 5. sections 145, 157 and 159 of Evidence Act, 1872 for contradiction, corroboration and refreshing the memory of witnesses.235

75 Sections 32 and 33 of IPC, 1860, for instance, use the terms act and omission in the physical sense only. A person can be held criminally liable for his acts of omission as well as commission. However, a person is liable for his omissions only if there is a present legal duty to do an act imposed on him by the law. Section 4.3 of the Criminal Code, 1995 (Schedule) of Australia provides: “An omission to perform an act can only be a physical element if: (a) the law creating the offence makes it so; or (b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.” Interpreting this provision, in the case of Director of Public Prosecutions (CTH) v Kelli Anne Keating, [2013] HCA 20, the High Court of Australia held: “the failure to do a thing is not an offence in the absence of a legal duty to do the thing” and the legal duty cannot be imposed

Page 24 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT retrospectively and “this idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability.” Section 36, IPC, 1860, says that where an offence can be committed by act or omission, it can also be committed partly by act and partly by omission and gives the following illustration: A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder. 76 John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law, London, 1885, p 421. 77 Chandra Prakash Shahi v State of UP, AIR 2000 SC 1706 : 2000 (5) SCC 152, para 29 : 2000 (4) Scale 209. Sanjeev v State of Haryana, AIR 2015 SC (Supp) 829 : (2015) 2 SCC (Cri) 630 : (2015) 4 SCC 387 : 2015 (2) SCJ 733, 2015 (2) Scale 591: Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of the crime. 78 Phipson says: “The presence of a good motive can never be an excuse for the exercise of the will to commit a criminal act.” Sidney Lovell Phipson, Law of Evidence, 10th Edn, Sweet & Maxwell, London, 1963, p 189, para 426. 79 In G Krishta Goud & J Bhoomaiah v State of Andhra Pradesh, (1975) Cr LJ 700 : (1976) 1 SCC 157 : (1976) 2 SCR 73, it was contended by the defence counsel that “a politically motivated offence” committed by Naxalites “stands on a separate footing from the common run of crimes”. The Supreme Court considered the question of whether the fact that the Naxalites committed merciless murders “driven by the humanist urge for catalysing social justice through terrorist technology” would justify the award of life imprisonment and not death sentence and held that death sentence was mandated by law and “in the cold stare of our criminal system, murder is murder”. Again in State of Andhra Pradesh v Intha Ramana Reddy, AIR 1977 SC 708 : (1977) 1 SCC 496 : 1976 (8) UJ 973 SC, the Andhra Pradesh High Court held that, in the case of murders by Naxals the accused acted out of “public motive” and that “people acting out of genuine and passionate motives according to their conscience, do not merit extreme punishment” and awarded life imprisonment. The Supreme Court held: “on the authority of Kishta Goud’s case that the only ground which the High Court considered sufficient to commute the sentence of death to imprisonment for life is not a valid ground in law” and remanded the case back to High Court. 80 A “good motive” may be considered by law itself as complete “justification” as in the case of right of private defence or as a mitigating factor as in the case of euthanasia in India (section 300, Exception 5, IPC, 1860). 81 This is a dictum of Sir Edmund Coke, Institutes of the Laws of England, 1797, vol 1, ch 1, p 10. 82 The Supreme Court of Canada observed: “Criminal offences generally consist of prohibited conduct (the actus reus) which is committed with a required element of fault (the mens rea).” R v ADH, 2013 SCC 28 : (2013) 2 SCR 269. The Law Commission of England and Wales observes: “Our analysis of the foundations of an insanity defence led us to conclude that it is essentially a denial of criminal responsibility due to a person’s lack of capacity...If the accused’s medical condition explains why he or she either did or did not have the relevant mens rea for the offence, then the defence should apply. Similarly, if his or her medical condition was such that he or she did not have the capacity to avoid performing the proscribed conduct, then it does not matter whether the offence required any particular mens rea or not.” Law Commission of England and Wales, Discussion Paper on “Criminal Liability: Insanity and Automatism”, 23 July 2013, p 34, para 2.18. Thus, the Law Commission was pointing out that in the case of defences also the absence of the Subjective and Objective elements will apply to rebut prosecution case, and absence of any one of the two elements is sufficient for rebuttal. As Howard points out, in case of insanity defence, “it is inaccurate and artificial to describe such an individual as lacking mens rea. An absence of responsibility ought to precede consideration of any of the elements of an offence.” Helen Howard “Reform of the Insanity Defence: Theoretical Issues”, in Journal of Criminal Law, vol 67 (1), 2003, p 51. In other words, if insanity is proved, it means ex hypothesi that the accused is incapable of the actus reus and mens rea. Dubber and Kelman say that, sometimes, even defenses against criminal liability also have both objective and subjective elements. To qualify for right of self-defense, for instance, one has to use force (physical) for the purpose (mental) of defending oneself. Marcus D Dubber and Mark G Kelman, American Criminal Law. Cases, Statutes, and Comments, ch 4, 2000, p 199, available at: http://www.dubberkelman.com/forms/chapter4.pdf (last accessed April 2019). In R v Oye, [2013] EWCA Crim 1725, para 38, Court of Appeal held: “The defence of self-defence at common law has, of course, two limbs. In summary, the first is whether the defendant genuinely believed that it was necessary to use force to defend himself. The second is whether the nature and degree of force used was reasonable in the circumstances....the first limb of the defence involves assessment of subjective considerations. ...The second limb, however, unquestionably incorporates (by its requirement of reasonableness) objective considerations.” In fact, it is the particular intention to defend oneself and not to retaliate which determines the proportionality of justifiable counter force that is used. 83 R v Lacasse, 2015 SCC 64 : (2015) 3 SCR 1089. See for an exhaustive discussion of the evolution of the mens rea doctrine through judicial and juristic opinion, United States of America v Maria Cordoba—Hincapie, 825 F. Supp. 485 (EDNY 1993). 84 In Johnstone v R, [2016] NZSC 83, it was held: “There are three elements to an attempt under section 72 [New Zealand Evidence Act]. First, there is the intention to commit an offence. Second, there is the act or acts committed for the purpose of committing the offence. Third, there is the question as to whether those acts amount to more than preparation. We see intent as relevant to all three.” 85 In the same case, Cave, J, called the doctrine as “the somewhat uncouth maxim ‘actus non facit reum, nisi mens sit rea’.” R v Tolson, 23 QB 168, pp 185 181.

Page 25 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 86 Glanville Williams, “Involuntary Intoxication”, in LQR, vol 105, 1989, p 387; Susan Dimock, “What are Intoxicated Offenders Responsible for? The ‘Intoxication Defense’ Re-examined”, in Criminal Law and Philosophy, 2011, https://pdfs.semanticscholar.org/fa73/c62c3d2e9881d49086abba7f701d5febd43b.pdf (last accessed in April 2019). 87 On the other hand, section 300 which defines murder treats “grave and sudden provocation” as depriving the accused “the power of self-control” and as a special exception to murder reducing the offence to culpable homicide. 88 JW Cecil Turner, ed, Russell On Crime, 10th Edn, London, 1950, p 63. 89 Coleridge, J, said in R v Monkhouse, ([1849] 4 Cox CC 55): “The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man’s mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision.” 90 Section 300 provides, inter alia: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 91 Director of Public Prosecutions v Beard, [1920] AC 479, at pp 494–499. 92 See for review of American cases, John D. Lawson, “Drunkenness as an Excuse for Crime”, in The American Law Register, 1852-1891, vol 32, New Series Vol 23, April, 1884, pp 217–239. Available at: http://www.jstor.org/stable/3304583 (last accessed in April 2019). 93 Director of Public Prosecutions v Morgan, (1975) 2 All ER 347 : 61 Cr App R 136 : [1975] 2 WLR 913, p 939. 94 Ratanlal and Dhirajlal, The Indian Penal Code, 13th Edn, Nagpur, 2004, p 124. 95 R v Monkhouse, (1849), 4 Cox CC 55. 96 R v Kingston, [1995] 2 AC 355 : [1994] 3 All ER 353 : [1994] 3 WLR 519. 97 R v Meade, (1909) 1 KB 895. 98 Referring to section 23 of the Australian Criminal Code, 1899, in Kaporonovski v R, (1973) 133 CLR 209, 231 : [1973] HCA 35 : 47 ALJR 472, Gibbs, J, said that “the ‘act’ to which the section referred was some physical action apart from its consequences”, and in an earlier case the judge gave as example the firing of the rifle, rather than the wounding. Vallance v R, (1961) 108 CLR 56: [1961] HCA 42 : 35 ALJR 182. In the case of Pickering v R, [2017] HCA 17, para 22, the Australian High Court held that the term “act” has “a settled meaning” and that “in the present case the ‘act’ in question, in both section 31 (1) and (2), is the physical act of the appellant stabbing the deceased. It does not include the physical harm the deceased suffered as a consequence”. 99 Section 2 of Australian Criminal Code, 1899, defines “offence” as “An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.” 100 Exceptionally, a criminal act may not be treated as punishable. A suicide is a frequently given example. Abetting suicide and attempting suicide are offences but committing suicide is not, as the person is dead and there is none to receive punishment. In some jurisdictions, attempt to commit suicide has been decriminalized (see for instance, section 1 of the Suicide Act, 1961 of UK “abrogates” the offence but section 2 retains the offence of abetment to suicide). Any offence by a child below seven years of age is not punishable as the child is considered as doli incapax or as incapable of requisite mental maturity to commit a crime. There are decided foreign cases where a person below 16 years (age of doli incapax) raped a girl and the girl delivered a baby by the time the trial was over but the boy was held not guilty. In India, the Supreme Court, overruling all the earlier decisions, has held in Joseph Shine v UOI, Supreme Court, 2018, AIR 2018 SC 4898 : 2018 (11) Scale 56 : (2019) 3 SCC 39 that: “56. As we have held that section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 Cr PC, 1973 which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path”. Earlier to this decision, a woman in criminal adultery case is not punishable as (a) offender or (b) conspirator or (c) abettor but the man who was an adulterer was punishable at the instance of the husband. A girl of say 14 years who abets a man to have sex with her is not guilty at all but the man is guilty of rape (section 375, IPC, 1860). 101 That A “fell” from a tower is an event but that he “jumped” from it is an act. William Henry Rattigan, The Science of Jurisprudence, Wildy, London, 1892, pp 34–35 quoting Rudolph von Ihering, John Austin and Sheldon Amos.

Page 26 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 102 Murder consists of, for instance, (1) intentionally shooting at a person (2) with an intention to cause his death. If the second element is not proved, it might amount to a lesser offence. Thus, in Govindaswamy v State of Kerala, 2016 SCC OnLine SC 939, para 17, where the accused caused injuries to the deceased victim to rape her and not to murder, the Supreme Court held that “rather, we are of the view that the acts of assault, etc. attributable to the accused would more appropriately attract the offence under Section 325 IPC” (Grievous Hurt) and “that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable there for.” 103 Section 92, IPC, 1860, deals with “Act done in good faith for benefit of a person without consent” and has this illustration: (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence. 104 In R v Clarence, (1888) 22 QB 23 , 9 out of 13 judges held that a man who knew that he had gonorrhoea and foresaw that it was possible he could transmit the disease to his wife by having sexual intercourse with her, and yet proceeded to do so without informing her of his condition, could not be convicted of maliciously inflicting grievous bodily harm upon her. But, in Aubrey v R, [2017] HCA 18, para 18, High Court of Australia held: “There are a number of reasons why Clarence should no longer be followed” because “the idea that the infliction of grievous bodily harm necessitated a battery productive of immediate physical injury” was unfounded. 105 Section 150 (1) of the Criminal Code of Canada, 1985. R v George, 2017 SCC 38 : [2017] 1 SCR 1021. See the detailed discussion of the case in chapter 22 under section 105, heading “Burden of Proof of Capacity to Consent in Sexual Assault Cases”. 106 As under section 106 of Evidence Act, 1872. 107 In an interesting observation, Justice Jack, in his concurring opinion, said in Sheldrake v Director of Public Prosecutions, [2003] EWHC 273 : [2004] QB 487, at para 152 : [2004] UKHL 43 : [2005] 1 AC 264, that “in the criminal law there are very many situations where the prosecution has to prove something which is not within its knowledge. Intent is a primary example. The prosecution commonly overcomes the difficulty by reliance on the circumstances to establish intent or whatever other matter it may be that is in issue.” 108 In R Shaji v State of Kerala, (2013) 14 SCC 266, para 19 : (2014) 4 SCC (Cri) 185, the Apex Court said: “Motive is primarily known to the accused himself and therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. In a case of circumstantial evidence, motive may be considered as a circumstance, which is a relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused.” In Ram Tahal v State of UP, AIR 1972 SC 254 : (1972) 1 SCC 136 : 1972 SCR (2) 423, and State of Rajasthan v Shobha Ram, 2013 (81) ACC 466 : (2013) 14 SCC 732 (SC), it was held that a state of mind of an accused can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. Ishad Ahamed @ Asalam v State, represented by Inspector of Police, Mathikri Police Station, Hosur, (2015) para 15: “when a person opens fire from a point blank range at another, it will be ludicrous for any prudent man to infer that the assailant had no intention of causing death.”(Last accessed in April 2019). Also, Camilo Vaz v Goa, (2000) 9 SCC 1. In R v Rodgerson, 2015 SCC 38 : (2015) 2 SCR 760, it was held that “the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill Ms. Young or cause her bodily harm which he knew was likely to cause death.” 109 As in the case of malicious prosecution. In Williamson v The Attorney General of Trinidad and Tobago (Trinidad and Tobago), [2014] UKPC 29, the Privy Council said: “...for malicious prosecution, it must be shown, among other things, that the prosecutor lacked reasonable and probable cause for the prosecution and that he was actuated by malice.” In Crawford Adjusters Ltd (Cayman) v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366, para 72, Privy Council said: “Proving malice is a ‘high hurdle’ for the claimant to pass”. 110 Paramsivam v State through Inspector of Police, 2014 (6) Supreme 586: In cases of circumstantial evidence, proof of motive is material consideration and a strong circumstance. Sakharam v State of MP, AIR 1992 SC 758, 759, para 10 : (1992) 2 SCC 153 : (1992) Cr LJ 861 : 1992 SCR (1) 638: “Absence of motive may not be relevant in a case where the evidence is overwhelming but it is a plus-point for the accused in a case where the evidence against him is only circumstantial.” In R v Neville, 2015 SCC 49 : [2015] 3 SCR 323, the Canadian Supreme Court ordered a new trial because the Judge did not clarify the doubt of the jury about the distinction between “to kill” and “to murder” and “the evidence is not so overwhelming as to permit us to conclude that the error would have had no effect on the verdicts” in the context of “the charges of murder and attempted murder”. 111 [1970] AC 132, 148–149 : [1969] UKHL 1 : [1969] 1 All ER 347 : (1969) 53 Cr App R 221 : [1969] 2 WLR 470. 112 What is the nature of mens rea that is required under a statute depends on the definition of the offence under the statute. In R v McRae, 2013 SCC 68 : [2013] 3 SCR 931, the Supreme Court of Canada held that where the statute required the accused to intend to convey death threats, it is irrelevant whether the threats were in fact conveyed, or whether they had the intended effect on the victim and whether the threat was made confidentially to “closed circle”. 113 One such exception is where the statute contains a strict liability-like provision. Thus, in R v Prince, (1875) LR 2 CCR 154, it was held that reasonable grounds for believing that the girl involved was over the age of consent did not constitute a defence under section 51 of the UK Offences against the Person Act, 1861. In 1885, the UK Parliament

Page 27 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT abolished that rule with regard to girls between the ages of 13 and 16 but for girls below 13 years, the Prince rule will apply and the accused’s reasonable belief as to age is irrelevant. Section 4 of the Criminal Law Amendment Acts (Northern Ireland) 1885-1923 raised the minimum age to 14. Thus, in R v Brown, [2013] UKSC 43 : [2013] QCA 337, where a boy of 17 was charged with having carnal knowledge with a girl of 13 years, the UK Supreme Court said: “If you have sexual intercourse with someone who is clearly a child or young person, you do so at your peril”, irrespective of his reasonable belief as to age of the girl. This principle will apply to cases of rape of girls below the age of consent of 18 years under section 375 (‘sixthly’) of IPC, 1860 as amended in 2013. In the Canadian case of R v George, 2017 SCC 38 : [2017] 1 SCR 1021, where section 150.1 (4) of the Criminal Code of Canada, required the accused in sexual offence against an adolescent to show that she has taken “reasonable steps” to ascertain the age so as to arrive at a belief that the complainant was above 14 years, the Supreme Court held that the Parliament “imported” the objective component of “taking reasonable steps” into the subjective “fault analysis”. It was held by Delhi High Court that “since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment.” Raju Kumar Verma @ Raju v State, 2016 (3) Crimes 455 (Del) : 2016 VIIAD (Delhi) 364. 114 R v Sally Lane and John Letts (AB and CD), (Appellants), [2018] UKSC 36, para 8. 115 B (A minor) v Director of Public Prosecutions, [2000] 2 AC 428, 460 : 1 All ER 833 (per Lord Nicholls). 116 Sweet v Parsley, [1970] AC 132, 148, 149 : [1969] 2 WLR 470 : 53 Cr App R 221 : [1969] 1 All ER 347. 117 Glanville Williams, Criminal Law. The General Part, 2nd Edn, Stevens & Sons, UK, 1961, p 48, fn 1. For John Austin, “intention” consists of “expecting a given consequence”. John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law, London, 1885, p 457. But Salmond says that intention “is the foreknowledge of the act, coupled with the desire of it.” For Salmond, intention is not mere “expectation”. A surgeon who performs a risky operation might expect his patient to die but does not desire or intend his death. An archer aiming at a distant target might expect to miss but intends to hit. John William Salmond, Jurisprudence, 4th Edn, London, 1913, Ch 18, pp 335–336. 118 Sidney Lovell Phipson, Law of Evidence, 10th Edn, Sweet & Maxwell, London, 1963, p 189, para 426. In De Gruchy v R, [2002] HCA 33 : (2002) 211 CLR 85, at 92 : 76 ALJR 1078 : 190 ALR 441, the High Court of Australia said: “Motive, if proven, is a matter from which a jury might properly infer intention”. 119 In Victor Hugo’s novel Les Miserables the character Jean Valjean commits the minor offence of stealing a loaf of bread for feeding his hungry family and gets branded as a thief for the rest of his life. See, Commissioner of Police v Sandeep Kumar, (2011) 4 SCC 644 at 645 to 647, para 9 to 11. 120 See Illustration (a) to section 8. 121 In the case of Darbara Singh v Punjab, (2012) 10 SCC 476, the Supreme Court said: “So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance.” In Sheo Shankar Singh v State of Jharkhand AIR 2011 SC 1403 : (2011) 3 SCC 654 : 2011 Cr LJ 2139, while dealing with the issue of motive, the Apex Court held: “Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence”. See also, Lokesh Shiv Kumar v State of Karnataka, AIR 2012 SC 956. 122 State of Karnataka v David Razario, AIR 2002 SC 3272 : (2002) 7 SCC 728; Khurshid Ahmed v State of Jammu and Kashmir, 2018, Supreme Court, AIR 2018 SC 2457 : 2018 (7) Scale 443”23... the direct oral evidence available on record coupled with the medical evidence, points at the guilt of the accused and not proving the motive for commission of the offence lost its significance in the facts of the case.” 123 State of MP v Digvijay Singh, AIR 1981 SC 1740 : (1979) 4 SCC 92; Vinod Kumar v State of MP, 2002 (44) ACC 994 (SC), Thamman Kumar v State of Union Territory of Chandigarh, AIR 2003 SC 3975 : (2003) 6 SCC 380 : (2003) 3 SCR 1190; State of HP v Jeet Singh, AIR 1999 SC 1293 : (1999) 4 SCC 370 : (1999) 1 SCR 1033; Suresh Chand Bahri v Bihar, AIR 1994 SC 2420 : 1994 AIR SCW 3420 : 1994 Cr LJ 3271. 124 Ujjagar Singh v State of Punjab, AIR 2008 SC (Supp) 190 : (2007) 13 SCC 90 : 2007 (14) Scale 428. 125 Mohmmad Adil v State of UP, 2009 Cr LJ (NOC) 424. 126 Vijay Shankar v State of Haryana, AIR 2015 SC 3686 : (2015) 12 SCC 644 : 2015 (8) Scale 517, para 11. 127 Somasundaram @ Somu v State Rep By Dy. Comm. of Police, Chennai, Criminal Appeal Nos. 403/2010, decided on 3 March 2016 (SC). 128 R Shaji v State of Kerala, (2013) 14 SCC 266, para 19 : (2014) 4 SCC (Cri) 185 129 In Mahesh Kumar v State, 2010 Cr LJ 85 (Del), the Court said “...absence of proof of motive became irrelevant where the strength of other circumstantial evidence is sufficient wherefrom a conclusion of guilt can be drawn.” 130 State of Punjab v Sucha Singh, AIR 2003 SC 1471 : 2003 (3) SCC 153 : 2003 Cr LJ 1210 : 2003 (2) Scale 30. 131 See State of Maharashtra v Dinkar Bandhu, AIR 1970 Bom 438 : (1969) 72 Bom LR 405 : 1970 Cr LJ 1622.

Page 28 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 132 “Attempt” and “abetment” (“incitement” under Common Law) of an offence and conspiracy are treated as “inchoate offences”, ie, incomplete crimes. See, Law Reform Commission (Ireland), Report on Inchoate Offences, November 2010, ISSN 1393-3132, available at: http://www.lawreform.ie/_fileupload/Reports/r99InchoateOffences.pdf. (last accessed in April 2019) Sir Stephen defined an attempt thus: “An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.” James Fitzjames Stephen, Digest of the Criminal Law (Crimes and Punishment), 5th Edn, Macmillan, London, 1894, Article 50. However, definition of “attempt” has not been found to be easy and some of the tests that are applied are: (a) Is it the last penultimate act before the commission of a crime? (b) Is there a chance for repentance or locus penitentiae so that the perpetrator can retrace his steps and desist from committing the offence? and (c) Is the act most proximate to the actual commission of crime? Explaining “attempt”, Sir John Salmond gives the illustration of a person who strikes a match standing by the side of a hay-stack. Did he strike the match to light his pipe or to set the haystack on fire? p J Fitzgerald, Salmond on Jurisprudence, 12th Edn, Sweet & Maxwell, London, 1966, p 377. Taking the cue from Salmond, various stages like (a) going towards the hay stack, (b) taking out the match stick near the hay stack, (c) striking the match stick and (d) moving the hand with the lighted match stick towards the hay stack can be tested to determine whether each act by itself amounts to attempt or only preparation. The Criminal Attempt Act of 1981 of UK provides by section 1: “(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.” This Act makes it an offence to attempt even an impossible crime like attempting to smuggle a substance thinking it to be a narcotic drug even though in fact it is not. R v Shivpuri, [1986] 2 WLR 988 : [1986] 2 All ER 334 : [1986] UKHL 2 : [1987] AC 1. For instances of attempts of impossible offences, see section 511, IPC, 1860 and its two illustrations. See R v Pace and Rogers, [2014] EWCA Crim 186 : [2014] WLR (D) 81 : [2014] 1 Cr App R 34, and Johnston v R, [2016] NZSC 83, for an incisive analysis of attempt as an offence. The Serious Crimes Act, 2007, of UK abolished the Common Law crime of “incitement” and introduced the new offence of “encouraging and assisting” a crime. Sections 44–49 deal with “inchoate offences”. See, R v S, [2012] 2 All ER CA 783. Section 11 (2) of the Australian Criminal Code Act of 1995 (as amended up to 2012) defines “Attempt” on the lines of the above English Act and provides: “For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.” For a detailed discussion on the distinction between preparation and attempt see Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698 : 1962 SCR (2) 241 : 1961 2 Cr LJ 822. See also, Law Commission of India, 42nd Report on Indian Penal Code, June 1971, p 131, para 5.41 for a scholarly discussion on “attempt”. 133 Ticklish issues have often arisen as to where the crime is deemed to have been committed from the point of jurisdiction of the Courts. Sir John Salmond mentioned origin, circumstances and consequences as the three stages of an act, and raised the question: “If a man standing on the English side of the Border fires at and kills a man on the Scottish side, has he committed murder in England or Scotland?” p J Fitzgerald, Salmond on Jurisprudence, 12th Edn, Sweet & Maxwell, London, 1966, pp 353, 358. The Subjective Theory of criminal liability would look to where the accused is situated as that is where the subjective or mental element or mens rea occurred and the accused acted in furtherance of it, ie, England. The Objective Theory focuses attention on where the offence is objectively completed, and consequences felt, ie, Scotland. Section 179 of Cr PC, 1973 covers both and provides that “the offence may be enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.” Thus, the act and its consequences may not occur at the same place. Arguably, under section 498A (b) of IPC, 1860, matrimonial cruelty may be directed mentally against the woman in USA and the consequence of parting with property or valuable security by her relative like father may occur in India. For the purpose of section 188, Cr PC, 1973, which deals with offences committed entirely outside India and requires Central Government permission for inquiry or trial in India (see, Thota Venkateswarlu v State of Andhra Pradesh Tr Princl Sec, (2011) 9 SCC 527 : 2011 CCR (3) 452), in the above example of cruelty under section 498A, the offence can be considered to have occurred in India as well as in USA and not entirely in USA. In such a case the sanction under S 188 is not necessary: Ajay Agarwal v UOI, AIR 1993 SC 1637 : 1993 (3) SCC 609 : 1993 SCR (3) 543. See also, Mubarak Ali Ahmed v State of Bombay, AIR 1957 SC 857 : 1958 SCR 328 : 1957 Cr LJ 1346 : 1958 Mad LJ (Cr) 42. It ultimately depends on how the offence is actually defined in a particular statute. Also, Dashrath Rupsingh Rathod v State of Maharashtra, (2014) AIR 2014 SC 3519 : 2014 3 SCC Cr 673 : 2014 (9) Scale 97. 134 Quoted with approval by the Supreme Court in Malkiat Singh v State of Punjab, AIR 1970 SC 713 : (1969) 1 SCC 157 : 1969 2 SCR 663. Also, Fagnu Bhoi v Orissa, 1992 Cr LJ 1808 (per Arjit Pasayat, J, as His Lordship then was). 135 See John Davison Lawson, Law of Presumptive Evidence, 2nd Edn, AL Bancroft & Co, San Francisco, 1899, p 590. 136 W M Best, The Principles of Law of Evidence, 12th Edn, Sweet & Maxwell, London, 1922, p 459. 137 Because this overthrows the inference of guilt. See W M Best, The Principles of Law of Evidence, 12th Edn, Sweet & Maxwell, London, 1922, p 459. 138 Section 125 of Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 makes a person punishable if he makes “preparation to do or omits to do anything which constitutes an offence punishable under this Act and from the circumstances of the case it may be reasonably inferred that he or she was determined to carry out his or her intention to commit the offence but had been prevented by circumstances independent of his or her will”. 139 IPC, 1860 deals with the offence of attempt in three different ways: (1) The main offence is dealt with in one section (section 302: murder) and attempt in separate section (section 307); (2) both the offence and its attempt are dealt with

Page 29 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT in the same section (section 121: Waging the war against Government of India); and (3) attempts of offences that are not separately provided for are covered by section 511. Under section 309 of IPC, 1869, though the commission of suicide is not an offence under IPC, 1860 because the person who did it is not available, the attempt to commit suicide is. 140 The exceptions are section 122, IPC, 1860, which makes punishable “Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India.” Section 126 makes a person punishable if he, inter alia, “makes preparation to commit depredation, on the territories of any Power in alliance or at peace with the Government of India.” See also, John S Strahorn, Jr, “Preparation for Crime as a Criminal Attempt”, in Washington and Lee Law Review, 1939, vol I, pp 1–30. 141 J V Ryan, The Law of Criminal Evidence in British India, Calcutta, 1912, p 15. 142 J V Ryan, The Law of Criminal Evidence in British India, Calcutta, 1912, p 15. 143 In this context, “state of affairs” means a species of conduct produced by voluntary acts---like “drunken driving”. See section 4.2 (5) of the Criminal Code Act, 1995 of Australia: “If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.” 144 Section 2, IPC, 1860 states: “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which, he shall be guilty within India.” Section 33, IPC, 1860, provides: “Act”, “Omission”—“The word ‘act’ denotes as well a series of acts as a single act: the word ‘omission denotes as well as series of omissions as a single omission.” The General Clauses Act, 1897, defines “act” so as to include “omisssion” and states in section 3 in (2): “‘act’, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions.” In Beeres v Crown Prosecution Service (West Midlands), [2014] EWHC 283 (Admin), the Court aptly pointed out: “The distinction between acts and omissions will in any event frequently be artificial. For example, an officer who inadequately advises a detainee of his or her rights may well be acting culpably because his actions (the commissions) simply did not go far enough (the omission).” Thus, an intentional incomplete act may also amount to omission. 145 Australian Criminal Code, Schedule, section 4 (2) defines “conduct” as meaning “an act, an omission to perform an act or a state of affairs.” 146 For a detailed discussion of the doctrine, case-law and sentencing policy, see the Apex Court decision in Mukesh v State for NCT of Delhi, AIR 2017 SC 2161: 2017 (5) Scale 506. 147 The Totality Principle is stated to have been propounded by David A Thomas, Principles of Sentencing, 2nd Edn, Ashgate Pub Co, 1979, pp 56–57. Quoted in Mill v R, (1988) 166 CLR 59, para 8 : [1988] HCA 70 : 83 ALR 1 : 36 A Crim R 468. 148 R v De Simoni, (1981) 147 CLR 383, at 389 : [1981] HCA 31 : 147 CLR 383 : 35 ALR 265 : 5 A Crim R 329. 149 R v Kirk, (1901) 20 NZLR 463, pp 472, 474 ; R v Martini, (1941) NZLR 361, pp 364–366. 150 Nguyen v R, [2016] HCA 17, para 1 : 256 CLR 656 : 90 ALJR 595 : 331 ALR 30 : 255 A Crim R 436. 151 It may be noted that legal concept of consent is a different factual notion of consent. Section 375 of IPC, 1860, as amended by the Criminal Law Amendment Act, 2013, provides: “Sixthly. --With or without her consent, when she is under eighteen years of age.” Thus, a woman under 18 years of age is deemed not to have consented even if she has, in fact, consented to or even invited sexual intercourse. The girl’s consent is no defense because the law considers her to be “too young to consent”. See for a discussion on these aspects, Peter Westen, “Some Common Confusions about Consent in Rape Cases”, in Ohio State Journal of Criminal Law, 2004, vol 2, pp 333, 336. 152 Law Commission of India, 84th Report on Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence, 1980, p 36, para 7.15. 153 In Rao Harnarain Singh Sheoji Singh v State, AIR 1958 P&H 123 : 1958 Cr LJ 563, Punjab High Court said: “there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.” Also, observation to the same effect of Coleridge, J, in R v Day, (1841) 173 ER 1026 : 9 C&P 722. 154 Baxi et al, “Open Letter to the Chief Justice of India”, (1979) 4 SCC (J) 17; and Upendra Baxi, “The ‘Ultimate Violation of Self’: Reflections on Judicial Discourse on Attempted Rape”, (1998) 6 SCC (J) 1. 155 See also, State of UP v Chhoteylal, (2011) 2 SCC 550. 156 John S James, Stroud’s Judicial Dictionary of Words and Phrases, 4th Edn, vol 1, Sweet & Maxwell, 1971, p 555. See also section 90 of IPC, 1860. 157 In Bhaiyamiyan @ Jardar Khan v State of MP, (2011) 6 SCC 394, the FIR was lodged after a delay of about 60 hours and the statement of the prosecutrix was found full of contradictions. The prosecutrix declined to be medically examined at Sironj, where the FIR was lodged, and insisted that she be examined at Vasoda which was 55 kms away. Further, as per the medical evidence, no injury was found on her person and as such there was no evidence to suggest that rape had been committed. Hence, the Apex Court acquitted the accused. In Kaini Rajan v State of Kerala, AIR

Page 30 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 2014 SC (Supp) 261 : (2013) 9 SCC 113 : 2013 (11) Scale 606, where the accused was alleged to have had sexual intercourse with a girl on promise to marry, the Supreme Court, acquitting the accused of rape charge, took into consideration the conduct of the woman and also the fact that the behaviour of the parents “also appears to be strange” in that instead of contacting the parents of the man, they straight away lodged a complaint. However, in Ashok Surajlal Ulke v State of Maharashtra, [2011] 2 SCR 246, at para 4 : 2011 Cr LJ 2330 : 2011 (3) KCCR SN 279 : 2011 (2) RCR (Cri) 63 : 2011 (2) Scale 616, it was stated: “... in a case of rape the fact that the FIR had been lodged after a little delay is of very little significance. There can be no doubt that an allegation of rape, and that too of a young child 15 years of age, is a matter of shame for the entire family and in many such cases the parents or even the prosecutrix are reluctant to go to the police to lodge a report.” See also the discussion under section 155 (4) infra. 158 The accused served out the sentence by the time the appeal was disposed of by the Supreme Court. 159 R v JA, (2011) SCC 28, para 43 : (2011) 2 SCR 440. 160 Emphasis in the original. 161 R v JA, (2011) SCC 28, paras 68–69, 71–72 : (2011) 2 SCR 440. At the trial, the woman testified on oath that she went with what all happened “in a spirit of experimentation.” 162 See Report of the Law Commission of the United Kingdom on “Consent in Sex Offences”, 27 July 2000. Available at http://lawcommission.justice.gov.uk/publications/798.htm (last accessed in April 2019). 163 See sections 1, 2, and 3 of the 2003 Act. The Act also provides for “Evidential Presumptions” (section 75) and “Conclusive Presumptions” (section 76) about consent. 164 The interplay of choice, freedom, consent and conduct of the woman has come into sharp focus in some interesting cases: In the case involving the wikileaks fame journalist Julian Assange (consent given by woman on the condition of use of condom), it was held that the choice is crucial to the issue of consent. Assange v Swedish Prosecution Authority, [2011] EWHC 2849. In the case of R (on the application of F) v Director of Public Prosecutions, [2013] EWHC 945 (Admin), it was held that the decision of the Prosecution not to prosecute the accused would be subjected to judicial review because in that case “the claimant consented on the clear understanding that the intervener [the accused] would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation. The intervener knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him... In law, this combination of circumstances falls within the statutory definition of rape....” She was held to have consented to penetration but not to ejaculation in vagina. In R v EB, [2006] EWCA Crim 2945, [2007] 1 WLR 1567, the Court held that failure to disclose that the accused was suffering from HIV+ did not amount to rape as “the act remains a consensual act” (R v EB, [2006] EWCA Crim 2945, para 17, [2007] 1 WLR 1567) but, in R v McNally, [2013] EWCA Crim 1051, para 24, it was observed that R v EB did not mean that the consent is not vitiated where “the complainant had been positively assured that the defendant was not HIV positive.” In R v McNally, the Court held that where the accused, a female, deceived another female that she was a male and had oral and dildo sex, the consent was vitiated by misrepresentation as to gender (R v McNally, [2013] EWCA Crim 1051, para 27). 165 See, “CPS Policy for Prosecuting Cases of Rape”, Updated September 2012, paras 4 and 8. Available at: https://www.cps.gov.uk/publication/cps-policy-prosecuting-cases-rape (last accessed in April 2019) http://www.cps.gov.uk/publications/prosecution/rape.html 166 It is said that resistance requirement was employed for two reasons: (1) “This requirement reflected the view that it was better for a woman to die than to be ‘dishonored’.” Joan McGregor, “Why When She Says No She Doesn’t Mean Maybe and Doesn’t Mean Yes: A Critical Reconstruction of Consent, Sex, and the Law”, in Legal Theory, vol 2, 1996, p 175, and (2) “Resistance requirements are based upon men’s fears that women will consent to sexual intercourse or, at least, appear to consent, and yet later maintain that they did not”. Peter K Westen, “Some Common Confusions about Consent in Rape Cases”, in Ohio State Journal of Criminal Law, 2004, vol 2, pp 333, 349. 167 See for an analysis of R v Bree and other cases, J R Spencer, “Three New Cases on Consent”, in The Cambridge Law Journal, vol 66, part 3, November 2007, pp 490–493. Section 74 of the UK Sexual Offences Act, 2003 defines “Consent” as follows: “For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” Situations where the complainant can be said to have lost that “freedom and capacity” are mentioned in section 75 (2) which, inter alia, provides: “(d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented; (f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.” See for a discussion of these provisions, R v Ciccarelli, [2011] EWCA Crim 2665 : (2012) 1 Cr App R 15. 168 The ruling in Morgan led to a considerable debate as to mens rea in rape cases. See Sanford H Kadish & Stephen J Schulhofer, Criminal Law and Its Processes: Cases and Materials, 6th Edn, Little, Brown & Co, 1995, pp 322–323. Gerald F Leonard, “Rape, Murder, and Formalism: What Happens When We Define Mistake of Law?”, The Boston University School of Law Working Paper Series Index: http://www.bu.edu/law/files/2015/07/Gerald-F.-Leonard.pdf (last accessed in April 2019). The UK Sexual Offences (Amendment) Act of 1976 was passed in the wake of Morgan’s case

Page 31 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT and section 1 (1)(b) provides that the accused shall be liable if “at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.” 169 The Supreme Court of Canada also came to the same conclusion in the case of R v Ewanchuk [1999] 1 SCR 330, and held: Mens rea is proved beyond doubt if it is shown that 1. the accused intended to touch the complainant [an offence under the Canadian Criminal Code] and he knew that 2. (a) she was not communicating consent or (b) was reckless or willfully blind to the absence of expression of consent. The Court accepted the availability of the defence of honest and mistaken belief in consent. Consent to be effective must be communicated. 170 Leak contended that he could not be convicted of abetment when the Court of Appeal acquitted Cogan of rape. 171 See also The Queen v Tomas Getachew, [2012] HCA 10, where the Court of Appeal of the Supreme Court of Victoria had allowed the accused’s appeal on the ground that the trial judge did not direct the jury to consider the possibility that the accused believed that the complainant was consenting to intercourse, in circumstances where the accused did not lead evidence or assert that he held such a belief. 172 C v R, [2012] EWCA Crim 2034, para 2 : [2012] MHLO 104. 173 C v R, [2012] EWCA Crim 2034, para 12 : [2012] MHLO 104. 174 C v R, [2012] EWCA Crim 2034, para 15 : [2012] MHLO 104. 175 C v R, [2012] EWCA Crim 2034, para 16 : [2012] MHLO 104. 176 Parash Jain v Uttar Pradesh, 2016 (34) LCD 424: “Reason to believe postulates an objective satisfaction after an application of mind to material and relevant circumstances. The expression ‘reason to believe’ when used in a statute is to be distinguished from an exercise of a purely subjective satisfaction.” 177 In fact, section 42 of the Youth Justice and Criminal Evidence Act of 1999 of UK provides: “(b) ‘issue of consent’ means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented).” 178 E M Curley, “Excusing Rape”, in Journal of Philosophy and Public Affairs, vol 5, 1976, p 325. However, the New Zealand Law Reforms Committee expressed the opinion that “We consider this criticism to be without substance” and “We take the view that the law as stated by the majority of their Lordships in Morgan is also the law in New Zealand.” In Australia provinces like South Australia, Tasmania and Victoria set up Commissions to assess post-Morgan legal positions and found that their law accorded with Morgan. E M Curley, “Excusing Rape”, in Journal of Philosophy and Public Affairs, vol 5, 1976, p 2. Special Report: Rape and Other Sexual Offences/Criminal Law and Penal Methods Reform Committee of South Australia,, March 1976; Law Reform Commission of Tasmania, Report and Recommendations for Reducing Harassment and Embarrassment of Complainants in Rape Cases, February 1976; and Law Reform Commission of Victoria, Rape Prosecutions (Court Procedures and Rules of Evidence) 1976. 179 J V Ryan, The Law of Criminal Evidence in British India, Calcutta, 1912, p 15. 180 In State of Rajasthan v Shobha Ram, AIR 2013 SC 1760 : (2013) 14 SCC 732, para 12 : (2013) 1 SCR 327, the Court said: “Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances.” Also, Rajkishore Purohit v State of MP, (2017) 4 Mad LJ (Cr) 45 . 181 In fact the mother-in-law prevented her husband from going to the rescue of the victim. Kundula Bala Subrahmanyam v State of Andhra Pradesh, 1993 AIR SCW 1321 : (1993) 2 SCC 684 : (1993) 2 SCR 666 : (1993) Cr LJ 1635 : (1993) 1 Mad LJ 605. 182 However, in a Virginia case of 2007, the defendant Tyrone Terry was convicted in a jury trial for raping a minor child. On appeal, he contended that the victim’s complaint of rape to her mother, made 10 months after the alleged rape, was not sufficiently recent and reliable to have been admissible into evidence. The Court of Appeals of Virginia rejected the contention and affirmed his conviction on the ground that the delay was explained by the fear of the child and other circumstances. Tyrone Terry v Commonwealth, 24 Va App 627, 484 SE2d 614, 615–616 (1997). In Rameshwar, son of Kalyan Singh v State of Rajasthan, AIR 1952 SC 54 : 1952 SCA 40 : 952 SCR 377, where an eight-year-old child was raped and she complained to her mother a few hours after she regained consciousness, the Court treated her compliant as admissible. 183 Subrati v State of UP, Allahabad (2016). 184 M C Sarkar et al, eds, Sarkar’s Law of Evidence, eds. vol 1, New Delhi, 2003, p 141. 185 Referred to in p M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 1, New Delhi, 1998, p 308. 186 State v Reed, 62 MC 130. 187 Worth v R Co, 51 Fed 173. 188 State of Goa v Sanjay Thakran, 2007 AIR SCW 2226 : (2007) 3 SCC 755 : (2007) 3 SCR 507.

Page 32 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 189 “Close proximity between the last seen evidence and death should be clearly established.” State of Karnataka v Chand Basha, (2016) 1 SCC (Cri) 368 : (2016) 1 SCC 501. See also State of UP v Satish, AIR 2005 SC 1000 : (2005) 3 SCC 114, para 22 : (2005) 2 SCR 1132 : JT 2005 (2) SC 153; Ramreddy Rajeshkhanna Reddy v State of Andhra Pradesh, AIR 2006 SC 1656 : (2006) 10 SCC 172 : JT 2006 (4) SC 16, para 29; Mahavir Singh v State of Haryana, 2014 (6) SCC 716 : 2015 (4) SCJ 161; Krishnan @ Ramasamy v State of TN, AIR 2014 SC 2548 : (2014) 12 SCC 279 : 2014 (8) Scale 135. 190 Bodh Raj @ Bodha v State of Jammu and Kashmir, AIR 2002 SC 3164 : 2002 AIR SCW 3655 : 2003 SCC (Cr) 201. Even if time gap is less and there is no possibility of others intervening, it is safer to look for corroboration: Ramreddy Rajeshkhanna Reddy v State of Andhra Pradesh, AIR 2006 SC 1656 : (2006) 10 SCC 172 : JT 2006 (4) SC 16, para 29, followed in Sirima Narasimha Rao v State of Andhra Pradesh, 2010 Cr LJ 769; in the absence of other links, it is not safe to convict solely on “last seen” theory: Jaswant Gir v State of Punjab, 2005 12 SCC438. Dharam Deo Yadav v State of UP, (2014) 5 SCC 509, 2014 (4) Scale 730): “a conviction cannot be recorded ...merely on the ground that the accused was last seen with the deceased.” State of Karnataka v Chand Basha, (2016) 1 SCC (Cri) 368 : (2016) 1 SCC 501; Jaswant Gir v State of Punjab (2005) 12 SCC 438; Last Seen Evidence v Unknown, 2013, Delhi District Court, Session Case No. 50/2011, decided on 20 July 2013. 191 Kishore Bhadke v State of Maharashtra, AIR 2017 SC 279 : 2017 (1) Bom CR 347 : 2017 (1) Scale 270. 192 Ganpat Singh v State of MP, para 10, Criminal Appeal No 630 of 2009, Sup Ct, 2017. 193 Rambraksh @ Jalim v State of Chhattisgarh, AIR 2016 SC 2381; Bodh Raj @ Bodha v State of Jammu and Kashmir, AIR 2002 SC 3164 : 2002 AIR SCW 3655 : 2003 SCC (Cr) 201. 194 Trimukh Maroti Kirkan v State of Maharashtra, 2006 AIR (SCW) 5300 : (2006) 10 SCC 681 : 2006 (10) Scale 190; Ganeshlal v State of Maharashtra, 1992 AIR SCW 1175 : (1992) 3 SCC 106 : (1992) 2 SCR 502, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under section 313, Cr PC, 1973. Where son and father were in the same room during night and father was found killed in the morning, the son has to render an explanation. Gajanan Dashrath Kharate v State of Maharashtra, AIR 2016 SC 1255 : (2016) 4 SCC 604 : 2016 (2) Scale 641 . 195 Ashok v State of Maharashtra, AIR 2015 SC (Supp) 709 : (2015) 2 SCC (Cr) 636 : (2015) 4 SCC 393 : 2015 (4) SCJ 393. 196 Aghnoo Nagesia v State of Bihar, AIR 1966 SC 119 : (1966) 1 SCR 134 : 1966 Cr LJ 100. 197 See illustration (e) to section 8. Purkha Ram v State, 1997 Cr LJ 566 (Rajasthan). 198 Ramesh Kumar v State, 2010 Cr LJ 85. 199 Krishna Ghosh v State of WB, AIR 2009 SC 2279, at p 2282, para 15 : (2009) 12 SCC 413 : (2009) 5 SCR 333. 200 Criminal Law in Solomon Islands, Royal Solomon Islands Police, Chapter 8: Admissibility of Evidence, http://www.paclii.org/sb/criminal-law/ch8-admissability-of-evidence.htm. (Last accessed in April 2019). 201 Wigmore on Evidence, 3rd Edn, 1940, vol 2, p 276. Quoted with approval in Marcoux v United States, 405 F2d 719, 721 (9th Cir 1968); and United States v Serio, 440 F2d 827 (6th Cir 1971). 202 Kartarey v State of UP, AIR 1976 SC 76 : (1976) 1 SCC 172 : 1976 Cr LJ 13. 203 In Sat Paul v Delhi Administration, AIR 1976 SC 303, the fact that the accused kept mum when his superior officer charged him of taking a bribe did not carry any probative value with the Supreme Court as he explained that he did not protest out of fear and any denial on his part might have made matters worse for getting a bail. 204 Matru @ Girish Chandra v State of UP, AIR 1971 SC 1050 : 1971 (2) SCC 75 : 1971 Cr LJ 913; Rahman v State of UP, AIR 1972 SC 110 : 1972 Cr LJ 23. 205 Panchu Panchanan Mohapatra v State of Orissa, 2003 (1) Crimes 252. In Kundula Bala Subrahmanyam v State of Andhra Pradesh, 1993 AIR SCW 1321 : (1993) 2 SCC 684 : (1993) 2 SCR 666 : (1993) Cr LJ 1635 : (1993) 1 Mad LJ 605, the Apex Court observed: “Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances..., the absconding of the appellants assumes importance and significance.” 206 Monir observes: “In certain cases, conduct, i.e., flight, silence, demeanour may amount to an admission. Strictly speaking conduct cannot be construed as an admission as it is neither oral nor documentary. (Section 17).” He further states: “A confession is a species of admission. It is defined in section 17 as an oral or documentary statement. Hence, it follows that mere conduct like absconding is not a confession. 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.” M Monir, A Textbook on the Law of Evidence, 8th Edn, New Delhi, 2010, pp 81 and 98. 207 SK Yusuf v State of WB, AIR 2011 SC 2283 : (2011) 11 SCC 754 : (2011) 8 SCR 83. 208 Nagaraj v State Rep. By Inspector of Police, Salem Town, Tamil Nadu, AIR 2015 SC (Supp) 912 : (2015) 4 SCC 739 : 2015 (5) SCJ 206.

Page 33 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 209 R v White, 2011 SCC 13, para 17 : (2011) 1 SCR 433. 210 R v White, 2011 SCC 13, para 18 : (2011) 1 SCR 433. 211 R v White, 2011 SCC 13, para 19 : (2011) 1 SCR 433. 212 In the earlier case of R v White, (1998) 2 SCR 72, where Richard White, the accused, fled after the murder, the Supreme Court (per Major, J) held: “to the extent a general description is necessary, the use of more neutral language such as ‘evidence of post-offence conduct’ or ‘evidence of after-the-fact conduct’ is preferable....Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand -- the act of flight, the false statement, as the case may be—and on the relevance of those items to the ultimate issue of guilt or innocence.” R v White, (1998) 2 SCR 72, para 20. In both the cases, one of the issues was the scope of the warning to the jury by the trial judge regarding the reliability of evidence of that conduct for arriving at the conclusion that the accused was guilty. 213 R v White, 2011 SCC 13, para 21 : (2011) 1 SCR 433. 214 In the case of Khatri v State of Bihar, AIR 1981 SC 1068 : (1981) 2 SCC 493 : (1981) 3 SCR 145, the Apex Court has held that “If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding, inquiry or trial in respect of an offence other than which was under investigation at the time when such statement was made, the bar of Section 162 will not be attracted.” In K M Nanavati v Staste of Maharashtra, AIR 1962 SC 605 1962 : (1962) 1 Cr LJ 521 : (1962) 2 SCJ 347 : (1962) 2 SCA 434, the Apex Court said: “Where investigation had in fact commenced, as in the instant case, s. 162 of the Code was immediately attracted.” 215 Prakash Chand v State (Delhi Administration), AIR 1979 SC 400 : (1979) 3 SCC 90 : (1979) 2 SCR 330; also Ravindran v State of Kerala, 1999 Cr LJ 2364 (Kerala). 216 Section 162 proviso excepts section 145 and Clasue (2) excepts sections 27 and 32 (1). In D V Narasimham v State of Andhra Pradesh, AIR 1969 AP 271, para10 : 1969 Cr LJ 1016 : 1969 (2) Andh WR 281, a Bench of the Andhra Pradesh High Court on a reference agreed with this observation and stated: “This is the view taken by almost all the High Courts and considering the language of the section, we do not think any other interpretation would have been possible.” 217 R v McIntosh, (1995) 1 SCR 686. 218 State v Hiraman Punja Vidhante, AIR 1965 Bom 154 : (1965) 67 Bom LR 16 : 1965 Cr LJ 349 : ILR 1965 Bom 237. 219 The term “complaint” is defined in section 2 (d) of Cr PC, 1973 as: “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report.” 220 Parvathi v Thirumalai, (1887) ILR 10 Mad 334. 221 Golak Behari v Emperor, AIR 1938 Cal 51 : 173 Ind Cas 65. 222 Golak Behari v Emperor, AIR 1938 Cal 51 : 173 Ind Cas 65; Emperor v Manchankhan, 34 Bom LR 1087. 223 Prakash Aanhayalal Aankaria v State of Maharashtra, 2015, Special Leave to Appeal Crl. Nos. 3333/2015, decided on 23 April 2015 (SC). State of HP v Shree Kant Shekari, AIR 2004 SC 4404 : (2004) 8 SCC 153 : 2004 (7) Scale 647: Delay in lodging FIR cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Harpal Singh v State of HP, AIR 1981 SC 361 : (1981) 1 SCC 560 : 1981 Cr LJ 1 : 1981 (13) UJ 63 (SC), and in Karnel Singh v State of MP, AIR 1995 SC 2472 : 1995 (5) SCC 518 : 1995 Cr LJ 4173: held that, merely because the complaint was lodged less than promptly does not raise inference that the complaint was false. Sri Narayan Saha v State of Tripura, AIR 2005 SC 1452 : (2004) 7 SCC 775 : 2004 (7) Scale 678, the Supreme Court held that, in rape cases, reluctance to go to police is because of society’s attitude towards such woman. It casts doubt and shame upon her, rather than comfort and sympathy. Therefore, the Supreme Court in that case held that, merely because complaint was lodged less than promptly, does not make complaint false. The point of delay raised, is a mixed question of fact and law, and therefore, during trial the prosecution would get opportunity to explain the delay. Cf Vepa Sarathi, Law of Evidence, 5th Edn, Eastern Book Company, Lucknow, 2002, p 60. However, it was held: “If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations.” Manoj Kumar Sharma v State of Chhattisgarh Criminal Appeal No. 775 of 2013, 23 August 2016 (Supreme Court of India); Jai Prakash Singh v State of Bihar, (2012) 4 SCC 379. 224 The 84th Report of the Law Commission of India on “Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence”, 1980, paras 7.73 and 7.75. 225 See the discussion on “‘Hue and Dry’ Doctrine” under section 6 above. 226 Kanhaiya Lal v State of Rajasthan, AIR 2013 SC 1940 : (2013) 5 SCC 655 : 2013 (6) Scale 242. 227 Ram Jag v State of UP, AIR 1974 SC 606 : (1974) 4 SCC 201 : (1974) 3 SCR 9 (per YV Chandrachud, J).

Page 34 of 34 4.3 SECTION 8: MOTIVE, PREPARATION AND CONDUCT 228 In George v State of Kerala, AIR 1998 SC 1376 : (1998) 4 SCC 605 : (1998) 2 SCR 303, it was held: “It is trite that an F.I.R. is not substantive evidence (unless of course it is admitted under Section 32 (1) of the Evidence Act) and can be used to corroborate or contradict the maker thereof.” So, FIR has only corroborative value. Sheikh Hasib @ Tabarak v State of Bihar, AIR 1972 SC 283 : (1972) 4 SCC 773 : 1972 Cr LJ 233; Ram Narain v State of Haryana, (1993) Cr LJ 1343 (P&H). 229 See the discussion on this case under section 32 also. 230 Chief Justice W C Petheram of Allahabad High Court delivered the judgment with whom Straight, Oldfield and Brodhurst, JJ, concurred. Mahmood, J, dissented. 231 In Emperor v Moti Ram, (1936) 38 Bom LR 818, Broomfield, J, expressed himself in favour of the opinion of Justice Mahmood and said: “It would seem that since 1885 [i.e., Abdullah] if not before it has been more or less settled law that dying declarations of this kind are admissible under section 32. Whether under section 32, or as I should myself rather prefer to hold under Section 8, I think there can be no doubt that the evidence is admissible.” 232 Special Leave to Appeal Crl. Nos. 5073/2011, date of order 27 October 2014 (SC). 233 State of Karnataka by Nonavinakere Police v Shivanna @ Tarkari Shivanna, (2014) Special Leave to Appeal Crl. Nos. 5073/2011, date of order 27 October 2014 (SC) paras 2 and 4 (per Gyan Sudha Misra, J). 234 State of Karnataka by Nonavinakere Police v Shivanna @ Tarkari Shivanna, (2014) Special Leave to Appeal Crl. Nos. 5073/2011, date of order 27 October 2014 (SC), para 9. 235 See Law Commission of India, 69th Report on Law of Evidence, p 97, para 7.

End of Document

4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Section 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 any thing 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 libelous 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. (f)

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.

The section makes the following facts relevant: The facts 1. which are necessary to explain or introduce a fact in issue or relevant fact; or 2. which support or rebut an inference suggested by a fact in issue or relevant fact; or 3. which

Page 2 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. (a) establish the identity of any thing or person whose identity is relevant, or (b) fix the time or place at which any fact in issue or relevant fact happened, or 4. which show the relation of parties by whom any such fact was transacted. 4.4.1 Introductory and Explanatory Facts Facts which show the names and identity of persons, their background and position in life and the circumstances in which transactions like a sale or will are gone through may be necessary to introduce and explain facts in issue for their proper understanding. Individuals, events or things cannot be suddenly introduced in a Court of law without providing the Court with the necessary backdrop and connection to the case on hand. Thus, explanation of words used in a special or technical sense in a document or discussion, evidence that would explain the innocent conduct of person that appears suspicious at first look, and so on are necessary for the proper appreciation of the case.236 Illustration (c) is a good example of the scope, purpose and limits of section 9. If A is accused of a crime and is said to have absconded from his house, the inference would be that he was guilty. But the fact that he had left his home because he had some sudden and urgent business explains his conduct by placing a different interpretation of his conduct. The details of his business are not relevant except to the limited extent that they explain that the business was urgent. Thus, if the accused has gone to attend on his mother who became suddenly seriously sick, the details of mother’s ill health are irrelevant except to the extent they show that it was sudden and urgent. Illustration (e) is an example of the relevance of a statement made behind the back of the accused and it says: 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. B’s statement to A’s wife—“A says you are to hide this”—was not made in the presence of the accused A and, hence, it was res inter alios acta and hearsay.237 But B’s statement is relevant under section 9 not so as to prove the guilt of A. A’s guilt has to be proved by independent testimony that establishes that A committed theft and B’s statement can be used only as explanatory and corroborative of that fact. 4.4.2 Facts which Support or Rebut an Inference The facts relevant under this category may be somewhat similar to those relevant under section 11 which makes facts “inconsistent” with any fact in issue or relevant fact or which make their existence or non-existence “highly probable or improbable”. In illustration (c) to section 9, referred to above, the fact that A had gone on an urgent business “rebuts” the inference of his guilt arising out of the assumption that he was absconding and is also “inconsistent” with his “absconding” and renders the inference of his guilt “highly improbable” within the meaning of section 11. Again, the illustration to section 11 refers to the plea of alibi that A who is alleged to have committed a crime in Calcutta was in fact present in Lahore. Alibi also “rebuts”, within the meaning of section 9, the inference of A’s guilt. Similarly, in cases involving proof of paternity, the fact that the man is impotent is “inconsistent” with his being the father and, hence, “rebuts” his paternity. 4.4.3 Facts which Establish the Identity of Person or Thing 4.4.3.1 Testimonial Identification and Circumstantial Identification Section 9 is an importantportal for letting in much ofevidence relating to police investigation and forensic medicine and forensic science.238 It is important to note that this section does not deal with testimonial evidence of identity but deals only with circumstantial evidence of identity.239 Suppose the question is whether A killed B by shooting at him. A witness who was present when A shot at B can testify to the fact that it was A who shot and killed B. This is testimonial identification through the direct evidence of an eye witness. If the accused is already known to the witness, it is called identification by recognition and in R v Turnbull, [1977] QB 224, p 228, the Court of Appeal of England observed that “recognition may be more reliable than identification of a stranger.”240 The identity of the killer can also be proved by comparing A’s finger impressions with those on the gun and show that they are same. The identity of the thing, ie, the gun can also be similarly proved by comparing the bullet recovered from the dead body with a bullet test fired from the gun. The identity of the owner of the gun can be proved by showing that the make and number of the gun are same as those on the gun license of A. This is called circumstantial identification. Similarly, the question may arise in a civil case where the identity of the person who signed or wrote a document has to be established. A witness can testify that he was present when the person signed or wrote it and that it was A. The identity of A could also be proved by the comparison of his proven signature or handwriting with that on the document and show that it is identical.

Page 3 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 4.4.3.2 Identification Methods Apart from the age-old method of identification by comparison of fingerprints, which continues to be the most reliable one with near certainty, various other methods have come to be used for different purposes. In Crippen’s case,241 the identity of the body of the deceased could be established with the help of a surgical scar on her abdomen. Scientific methods are being used to determine the age, gender height of the deceased even in cases where only mutilated pieces of the body are available. Blood tests and DNA finger printing have come to be used all over the world as means of identification and investigation. With the advent of extensive use of cell phones by criminals, voice identification has thrown up new challenges to crime investigation and the Courts are insisting on taking precautionary measures on par with Test Identification Parades to ensure that the identity of the accused is correctly established.242 Apart from Circumstantial Identification under section 9 through finger prints, blood tests, DNA profiling, identification of the accused through human agency of witnesses can take place in four different ways: (1) Pre-Trial:243 (a) If the accused is a stranger to the witnesses and the latter have seen him for the first time at the commission of the offence, the police may call them to identify the accused soon after the commission of the offence whilst the accused is in their custody. If the witnesses correctly identify the suspect as the person who committed the offence, their statements cannot be used by the police during trial as section 162 of Cr PC, 1973 bars the statements made by any person to the police during investigation.244 Thus, such identification can be used as an aid in investigation and for the limited purpose of confirmation of the suspicion of the police that the suspect is the culprit and that they can proceed with further investigation;245 and can also be used for contradiction of the witness under section 145 of the Evidence Act, 1872.246 (b) The above identification conducted by the police for the purpose of further investigation (but which is inadmissible as evidence) should not be confused with the Test Identification Parade conducted by the Magistrate which is relevant under section 9 which can be used in a criminal proceeding as evidence.247 Depending on the complexity of a case, it takes time for the police to complete the investigation, and the lapse of time between the commission of the crime and commencement of criminal proceedings could be such that the memory of the witnesses might fade away and they might not be in a position to positively identify the accused in the Court with certainty.248 (2) During Trial: Testimonial and “Dock” Identification (a) If the accused is known to the witnesses even before the commission of the offence, the identification by the witnesses in the Court of law is direct ocular evidence. As pointed out already, this is testimonial identification by recognition which is said to be reliable.249 (b) If the witness has seen the accused for the first time only at the time of the commission of the offence and the witness has not been asked, for some reason, to identify the accused either by the police whilst the accused is in their custody or at the Test Identification Parade under Para (1) above, the witness may look at the accused when he is in the “dock” in the Court and identify him from memory. (c) In Sidhartha Vashisht @ Manu Sharma v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 : 2010 (4) Scale 1, it was stated: 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 a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. (d) “It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence.”250 (e) “The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.”251 4.4.3.3 Test Identification Parades (TIP)

Page 4 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Test identification parades are conducted as a part of investigation to establish the identity of a person or even a thing.252 When a criminal case goes up for trial, the identification of the accused becomes an important issue.253 Suppose, A commits the murder of B and the incident is seen by witnesses, they can come to the Court and identify the accused. In case the witnesses are already well-acquainted with the accused, his identification poses no problems. Though the accused in a rape case was a stranger to the prosecutrix, identification by her would be reliable as the offence was committed “during broad day light” and, “by very nature of the offence, the close proximity with the offender would have certainly afforded sufficient time to imprint upon her mind the identity of the offender.”254 As was said by the Court in Malkhansingh v State of MP, AIR 2003 SC 2669 : (2003) 5 SCC 746, she also had a reason to remember the faces of the accused as they had committed a heinous offence and put her to shame.255 In Neil v Biggers, (1972) 409 US 188, at p 200 : 93 S Ct 375 : 34 L Ed 2d 401, the United States Supreme Court laid down that: the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time.

But identification by the witnesses will be problematic if the witnesses: •

were not personally acquainted with the accused before the murder and he is a total stranger to them; and

•

have seen the accused for the first time at the time of murder;

•

have seen the accused in dim light; or

•

have seen the accused for a fleeting moment only; or

•

have seen the accused from behind only and can identify him not by his face but only by his peculiar features like height, bald head, limp, long beard;

•

do not correctly recollect the identity of the accused as a long time has elapsed between the murder and the trial and the memory of the witnesses has faded.256

Hence, a Magistrate is requested to conduct the Identification Parade as soon after the commission of the crime as possible so as to enable the witnesses to identify the accused when their memory is still fresh. The report of the Magistrate is admissible in evidence under section 9 of the Evidence Act, 1872 and section 291A of Cr PC, 1973 and if the Court summons the Magistrate as a witness under section 291A (2), his deposition also will form part of the evidence. However, the witnesses, if alive and available at the time of trial, have to be summoned to appear and identify the accused again in the Court. If at the parade and in the Court the witnesses correctly identify the accused, the Report of the Magistrate can be used for corroboration under section 157 of the Evidence Act, 1872. But if there is a disparity, the report can be used for the contradiction of the witnesses under section 145 of Evidence Act, 1872. It may be noted that identification made at the parade conducted by the Magistrate can be used both for contradiction (section 145) and corroboration (section 145) of the witness. Identification made by the witness before the police under section 162 (1) Cr PC, 1973 “may be used by the accused... to contradict such witness in the manner provided by section 145 of the Indian Evidence Act.” If the police themselves choose to conduct an identification parade without a Magistrate, as pointed out above, that may be useful for them in further investigation257 but that suffers from two disadvantages: First, the police cannot use the identification as evidence because of section 162 of Cr PC, 1973,258 and second, at a later stage, they cannot even request the Magistrate to conduct a parade as the accused was already shown to the witnesses in the first parade. 4.4.3.4 Identification—Probative Value: Crucial Issues in Common Law Countries As Justice Mason said, “Identification is notoriously uncertain. It depends upon so many variables.”259 Courts in Common Law countries like UK, USA, Canada and Australia had to resolve critical issues relating to admissibility and reliability of the identification of the accused by witnesses either in the pre-trial identification parades or dock identification. (1) Pre-trial Identification Parades

Page 5 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. In the leading case of Alexander v R, [1981] HCA 17 : 145 CLR 395 : 34 ALR 289, the High Court of Australia said that: the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime.

But the dynamics of holding the identification parade have raised some serious questions as to admissibility and reliability of the parades. Lord Devlin’s Report on Evidence of Identification in Criminal Cases, London, 1976, made interesting and thorough study of the issues and possible solutions.260 While the Courts in India and elsewhere are agreed that the identification parade must be held as soon as possible after the occurrence so as to ensure that the memory of the witness is still fresh, particularly in the cases where the culprit is a stranger to the witness, this raises some critical issues which are closely related to reliability. Firstly, the question is at what time the parade should be held in the pre-trial stage.261 If this is done at a stage where the police have not yet zeroed in on a suspect, the parade or slide-show is said to be more reliable than a parade held after the police have picked up a suspect and have him in custody. The former parade or slide-show can only be of persons with related crime record or what is called “rogues’ gallery”.262 This is, indeed, a shot in the dark. This coveys, by necessary implication, to the judge and the jury that the person ultimately identified by the witness had a crime record263 and, hence, bad character which is, as a rule, inadmissible.264 On the other hand, if the witness is shown only one photograph, it is no identification at all. The identification by photographs cannot be a preliminary exercise for line-up parade because that will reduce the former to a dress-rehearsal and the latter to a farce.265 Secondly, an identification parade or slide-show held before the police have picked a suspect will have the disadvantage of the accused not being present at the parade to ensure fairness. Even if the same witness correctly identifies the accused in “dock” identification during the trial, the prosecution will have to face the criticism that the witness was already shown the photo. Lord Devlin stated in his Report: The object of the parade is to surround the accused with a number of people bearing a sufficient resemblance to him. At the time when the photographs are shown there is no definite suspect or accused and so it is impossible to collect photographs resembling him; indeed the object at this stage is not to collect resemblances but to collect possible suspects so as to see if one can be picked out. Then the photographic album does not afford the full inspection that is given on parade. Whatever regulations were made for its conduct, there being no suspect, neither he nor his solicitor can be there to see that they are observed. Finally, the production of the album would be bound to arouse the suspicions of the jury as to how it came into existence and about the sort of men who found their way into it.266

Thirdly, if an identification parade is held after the police have picked a suspect and the suspect’s photo is also a part of the slide-show, the police have to face the perennial charge that the witness was shown the photograph of their “wanted man” earlier to parade.267 It is said that in such a case, regular identification by line-up is safer than the slide-show.268 In the case of R v Holmes, [2014] EWCA Crim 420, the Court of Appeal said: The fact that one of the men selected was apparently bald does not of itself mean it was an unfair procedure. This is, at least in part, an impressionist and subjective exercise, but in our estimation the victim was asked to make a selection from a number of individuals who “as far as possible resemble [d] the suspect in age, general appearance and position in life” (see Code D, Annex A (a) 2 of the Police and Criminal Evidence Act 1984 Codes: “Video Identification”).

(2) Dock Identification Courts have repeatedly stressed on the “positive disadvantages” of dock identification without a prior pre-trial identification parade.269 The reasons for this opinion came into sharp focus in an appeal from Scotland in the leading case of Holland v Her Majesty’s Advocate (Devolution), [2005] UKPC D1, where the Petitioner’s challenge to the dock identification evidence was two-pronged. Firstly, such evidence was so unfair and unreliable that it was incompatible with a fair trial under Article 6 (1) of the European Convention; and secondly, the procedure of dock

Page 6 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. identification compelled the Petitioner to assist the Crown case against him by exhibiting himself, contrary to his Article 6 (1) Convention right against self-incrimination. The Privy Council felt that these were “sweeping submissions” which would render all dock identification “always unfair to the accused.”270 The Privy Council took up the second challenge first and referred to section 92 (1) of the Criminal Procedure (Scotland) Act, 1995, which provides that, in general, “no part of a trial shall take place without the presence of the accused”.271 It is clear that this contention is a double-edged weapon: If the accused is not present, it would violate the 1995 Act and, if he is present, dock identification of the accused by the witness will violate Article 6 (1) right against self-incrimination as he is made to sit in the dock conspicuously by the prosecution. The Privy Council (per Lord Rodger, J) pointed out: This requirement that the accused should usually be present throughout his trial is designed to promote his interests by ensuring that he can see and hear all the evidence against him and observe how the proceedings are conducted. It also gives him an opportunity to alert his solicitor or counsel to any matters that may be relevant to his defence. Section 92 (1) therefore confers an important right on the accused – one that is not so fully guaranteed by many other systems. Clearly, however, by abusing section 92 (1) and refusing to be present, the accused might prevent his trial from going ahead. So, where necessary, appropriate steps can be taken to ensure that he comes to court and remains in court during the trial. That does nothing to alter the fact that section 92 (1) is conceived in the interest of the accused.272

Regarding the first challenge that dock identification violates the requirement of fair trial, Lords Rodger pointed out: The accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory. When identification is attempted with the aid of photographs, there are introduced peculiar difficulties... [T] here is the ‘displacement’ effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory.

His Lordship further observed: the Advocate Depute [the prosecutor] did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused’s position in the dock positively increases the risk of a wrong identification. These criticisms are at their most compelling in a case like the present where a witness who has failed to pick out the accused at an identification parade is invited to try to identify him in court.273

The Privy Council pointed out that “except perhaps in an extreme case,274 there is no basis, either in domestic law or in the Convention, for regarding such evidence as inadmissible per se” and the above situation can be remedied (1) by the Court’s insistence on corroboration and (2) by the trial judge giving warnings to the jury about the heightened risks inherent in dock identification.275 In Turnbull v R, [1977] QB 224, at p 228, the Court of Appeal of England observed: whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.276

In Lawrence v R, [2014] UKPC 2, para 9 (in appeal from the Court of Appeal of Jamaica), the Privy Council (per Lord Hodge) observed: Where there has been no identification parade, dock identification is not in itself inadmissible evidence; there may be

Page 7 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. reasons why there was no identification parade, which the court can consider when deciding whether to admit the dock identification. But, if the evidence is admitted, the judge must warn the jury to approach such identification with great care.

In Dana Yadav @ Dahu v State of Bihar,277 AIR 2002 SC 3325 : (2002) 7 SCC 295, para 37 : 2002 (6) Scale 447, the Supreme Court held: (c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court. (e) ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

(3) “Directed Verdict”—“Withdrawing the Case from Jury” The Courts have held that where the identification evidence presented by the prosecution is flimsy, the Court may give what is called a “directed verdict” to the jury which, in effect, is a verdict of not guilty and “withdraw the case from the jury”. The principle was enunciated by Lord Widgery in R v Turnbull, [1976] 3 All ER 549: When in the judgment of the trial judge, the quality of the identify is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroborated in the sense lawyers use the word; but it need not be so if its effect is to make the jury sure that there is no mistaken identity.

In Mezzo v R, [1986] 1 SCR 802, the Supreme Court of Canada disagreed with the “directed verdict” by the trial judge and held that the facts that the complainant in a rape case (a) saw the accused who was a stranger to her (b) only for “a fleeting moment” and (c) in “poor lighting conditions” and that (d) “improper police procedures” were adopted for identification such as “rather than place the accused in an identification parade the police brought the complainant to view a number of prisoners as they were brought into court” and the accused was one among them were not so deficient as to justify withdrawal of the case from the jury and the jury system requires that trust should be reposed in it to decide upon whether conviction could be founded upon these facts. In Alexander v R, [1981] HCA 17 : 145 CLR 395, para 10 : 34 ALR 289, the High Court of Australia held: Where a witness who gives evidence in court identifying an accused swears that he identified the accused on an earlier occasion, the latter evidence is clearly admissible. It is relevant that the witness identified the accused on the earlier occasion, and, since identification is an act of the mind, the evidence of the witness as to his own state of mind on the earlier occasion is original evidence and not hearsay. Where the identifying witness himself gives evidence of his own earlier act of identification, evidence as to that act by another person who was present at the time is also admissible.

Thus, for instance, where A testifies that he correctly identified the accused in the parade and identifies the accused in dock identification, A’s evidence is original evidence. Further, B can testify in the Court that he was present when A correctly identified in the parade and his evidence is also admissible. 4.4.3.5 Procedure for Identification Parade—Police Manuals and High Courts’ Rules Conducting identification parade is in practice in all democratic countries.278 Since 1997, UK police use VIPER (Video Identification Parade Electronic Recording) instead of the old style line-up of suspects279 and the “line up” in the “parade” consists of only a “compilation of images” of the suspects.280 This “parade” is a part and parcel of the process of investigation by the police.281 In view of the provisions of section 162 of Cr PC, 1973, it is not the police but the magistrate who conducts the parade. In an identification parade, the suspect is made to stand in a line along with some other non-suspect persons with physical features like height, colour similar to those of the suspect and the witness is asked to identify the accused from amongst them. Till 2005, there was no specific provision in the Cr

Page 8 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. PC, 1973 or Evidence Act, 1872282 regarding the conduct of identification parade by the Magistrate at the request of the police or otherwise. Identification parades were, in fact, being conducted under the Police Manuals283 and the Rules of Practice and Procedure284 framed by the High Courts of the respective States.285 The Magistrate who does not have the jurisdiction over the case is asked to conduct the Identification Parade so as to obviate a situation where he will become a witness in his own Court. The Courts have held that TIPs conducted in violation of the High Courts’ Rules and Police Manuals are not admissible and “the provision has to be observed word by word”.286 Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 Rule 16 of the Criminal Rules of Practice and Circular Orders, 1990 issued by the High Court of Andhra Pradesh287 may be looked at as a sample of the procedure laid down for Identification Parades by different High Courts: 16. Identification Parades:— In conducting identification parades of suspects, the Magistrate shall observe the following Rules. (1) (a) Wherever possible privacy shall be secured for the parade away from Public View, and all unauthorized persons should be strictly excluded from the place; (b) If Jail Officials are present at Parade, they shall be kept in the view of the Magistrate all the time and they shall not be allowed access either to the witnesses who have to be summoned for identification or to the persons assembled at the parade. (2) (a) As far as possible, non suspects selected for the parades shall be of the same age, height, general appearance and position in life as that of the accused. Where a suspect wears any conspicuous garment, the Magistrate conducting the parade shall, if possible, either arrange for similar wear to others or induce the suspected person to remove such garment. (b) The accused shall be allowed to select his own position and should be expressly asked if he has any objection to the persons present with him or the arrangements made. It is desirable to change the order in which the suspects have been placed at the parade during the interval between the departure of one witness and the arrival of another. (3) (a) The witnesses who have been summoned for the parade shall be kept out of the view of the parade and shall be prevented from seeing the prisoner before he is paraded with others. (b) Before a witness is called upon to identify the suspect, he should be asked whether he admits prior acquaintance with any suspect whom he proposes to identify. He shall be also asked to state the marks of identification by which he can identify the suspects. (c) Each witness shall be fetched by separately. The witness shall be introduced one by one and on leaving shall not be allowed to communicate with witness still waiting see the persons paraded. (4)

Every circumstance connected with the identification including the act if any attributed to the person who is identified shall be carefully recorded by the officer conducting it, whether the accused or any other person is identified or not, particularly any objection by any suspect to any in the proceeding shall be recorded.

Andhra Pradesh Police Manual 2001 on TIP288 As pointed out above, TIPs were being conducted under the Police Manuals of different States. Chapter 26 of the Andhra Pradesh Police Manual of 2001 lays down in Rules 470 and 471 detailed guidelines regarding the conduct of TIP. 470. When a witness says that he can identify accused persons or others connected with the case under investigation, the investigating officer shall record the description of the accused persons in detail. In doing so the IO should specifically ascertain by carefully questioning about the details i.e. the colour of hair, physical features on the face, manner of wearing clothes, height, lean or stout, gait, language spoken, the manner of speaking the language, physical peculiarities noticed.

Page 9 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Computer facilities may be utilised wherever possible to draw the figures on the description given by the witness. Each witness should be examined separately about each suspect. This is a very important step and will prove extremely useful in tracing the offenders. All that each witness says should be recorded in detail and the picture drawn after description should be kept on record along with the statement recorded. 1. Care must be taken that the witness has neither the occasion to see the suspect in custody nor the opportunity to see the photographs or videographs of suspect in custody before identification. 2. Invariably identification parades of person should be conducted by a Judicial Magistrate. After making all arrangements for the parade, the police officers should completely withdraw themselves, leaving it to the Magistrate to conduct the actual identification proceedings. 3. The accused should be mingled with persons of similar description, status, build and age, in the proportion of a minimum of 1:5 and a maximum of 1:10. Persons already known to the identifying witnesses should not be selected to stand along with the suspects in the parade. They must be made to take their positions, along with the persons with whom they are mingled in a line. They should not be made to stand together. The Magistrate conducting the parade should satisfy himself that no police officer takes part in the actual identification proceedings, that witnesses are kept out of view from the premises where the parade is taking place and that it is not possible to communicate with them by signals or other communications. Witnesses should then be called in, one by one, and asked to go round the persons assembled for the parade and point out the accused, if any. If a witness identifies any of the accused, it should be verified whether his description tallies with that recorded already in the case diary, and proceedings regarding the identification should be drawn up and signed by the Magistrate. Statements made by the identifying witnesses to the Magistrates at the time of the identification should be recorded in the proceedings. Even if a witness makes a mistake, it should be recorded. In short, the proceedings must contain a complete record of all that takes place in the identification parade. After the identification by one witness is over, care should be taken to see that the witness does not mingle or communicate with the other witnesses for whom identification parade is yet to be conducted or other outside persons. The whole parade will then be reshuffled and the accused made to take different positions and the same procedure will be repeated for the other witnesses also. Any well-founded objection by any accused during the identification parade should be recorded. After the completion of the identification parade and the drawing up of the proceedings, a certificate in the following form must be appended and signed by the Magistrate conducting the parade: A. “I, the undersigned, took all necessary precautions, and am satisfied that no police officer was present at any time of the proceedings, when the parade was held”. B. “No opportunity was given to the witnesses to see or know about the proceedings of the parade”. 471. When the identification parade is to be held in a jail, the jailor on admission of the suspect should be informed of the intended identification. The jailor should prohibit any change in the appearance of the prisoner from that in which he was admitted to jail, e.g., beard not to be shaven or grown and the same clothes to be worn as at the time of the entry. The officer conducting the identification parade should keep a detailed record of the entire proceedings.

4.4.3.6 Identification Parades and Judicial Decisions The rationale, mode of conduct, admissibility and reliability of TIPs have been the subject of many landmark decisions of the Indian Higher Judiciary. In Ramanathan v State of TN, AIR 1978 SC 1201, at pp 1211–12, Justice Shinghal observed: Identification parades have been in common use for a very long time for the object of placing suspect in a line-up with other persons for identification. The purpose is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye witnesses of the incident, but they claim that although they did not know him earlier, they could recall his features in sufficient detail and would also be able to identify him if and when they happen to see him again. Such identification is in the interest of both the accused and the investigating agency. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit. The line-up of the accused in a test identification parade is therefore a workable way of testing the memory and veracity of the witnesses and has worked well in actual practice.

Page 10 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. The principles laid down by the Courts are summarized as follows: •

An identification parade is not mandatory nor can it be claimed by the suspect as a matter of right.289

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There is no invariable rule that two accused persons cannot be made part of the same TIP and joint TIP would in no manner affect the validity of the TIP.290

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“Identification parades are not primarily meant for the court. They are meant for investigation purposes.”291

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The purposes of TIP are: 1. to test the memory of the witnesses, 2. to test their veracity, 3. to enable prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime.292

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The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial.293

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Holding a TIP is not necessary where the witness already knew the accused.294

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The identification of the accused by the witness for the first time in the Court without being tested by a test identification parade soon after the crime is worthless.295 It is more so if there is long gap of 1 1/2 years.296

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Identification in test identification parade is not substantive evidence. Substantive evidence is only the identification before court. When the witness, who identified the accused in the test identification parade, is not examined before court, no purpose will be served by examining the Magistrate or somebody else to prove that there was identification.297

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Ordinarily, the witness who is supposed to have identified the accused must also appear as a witness and testify as to identification. If he does not appear as a witness and chooses to leave to the officer holding the parade to do so, the accused would be deprived of the opportunity to cross examine him and test his veracity.298

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Identification of the accused by a witness at TIP is not substantive evidence and it can be used only for the purpose of corroboration or contradiction of that witness when he appears as a witness in the same proceeding.299

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There is no time limit within which the TIP must be held. As the memory of the witnesses gets dimmer and dimmer with passage of time, TIP held at the earliest and without undue delay inspires more faith in the fairness of the parade.300

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“It is neither possible nor prudent to lay down any invariable rule as to the period within which a Test Identification Parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the Courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the Test Identification Parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed...”301

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Where in a murder case, the FIR was filed within an hour of the crime which took place in broad day light and the informer has given the names of the accused and other details, not holding a TIP did not vitiate the testimonial identification.302

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Where the accused refused to participate in TIP on the ground he was known to witnesses, he cannot subsequently contend that his identification by the witnesses in the Court was after a lapse of time and that he was entitled to benefit of doubt.303

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Where the conviction was based on the evidence of eye witnesses and was not based on TIP, the conviction cannot be set aside on the ground that TIP was not properly conducted.304

4.4.3.7 Can the Courts Order the Tests? It may be pointed out at the outset that the identification tests like DNA profiling can be resorted to in civil as well as criminal cases. As will be seen under section 112, the DNA tests may be required for the determination of paternity in civil cases. The need for ordering medical examination has arisen also in cases where the impotency of the husband or the insanity of the spouse has been alleged as a ground for divorce. It was stated by the Apex Court that “the identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it” either in Cr PC, 1973 or in the Evidence Act, 1872.305 In the absence of comprehensive legislation on these tests in India, the power of the Courts to order these tests were being traced to CPC, 1908 in civil cases and Cr PC, 1973 in

Page 11 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. criminal cases. Earlier, the Courts used to resort to their omnibus inherent power to do justice under section 151 of CPC, 1908306 and section 482 of Cr PC, 1973307 to order these tests. section 75 (e) of CPC, 1908 conferred on the Court the amorphous power to issue Commissions “to hold a scientific, technical, or expert investigation.” It is interesting to note that till 2005308 there was no provision in Cr PC, 1973, that empowered either the Courts or the police to order Identification Parades, blood tests, narco-analysis and other scientific tests.309 In Mahabir v State of Delhi, AIR 2008 SC 2343, at p 2346 : (2008) 16 SCC 481 : 2008 (6) Scale 52, Arjit Pasayat, J, observed: The identification proceedings are in the nature of tests, and, significantly, therefore, there is no provision for it in the Code [Cr.P.C.] and the Indian Evidence Act, 1872.... 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 confer a right upon the accused to claim, a test identification parade....Theses tests are essentially governed by S. 162 of the Code.310

These observations must be confined to the pre-2005 position as Cr PC, 1973 has been amended authorizing the conduct of TIPs. The amendments are discussed below. However, there have been cases where the police requested the trial Courts to permit them to conduct DNA tests and the Courts granted the permission under section 45 of the Evidence Act, 1872.311 It is important to note that section 45 is only a relevancy portal through which certain evidence already available can be let in by the Court, but the section is not a source of power either for the Courts or the police to order or request the tests. If these tests are covered by section 162 of Cr PC, 1973, it means that the statement made during these tests is barred from being used by the police “for any propose... at any enquiry or trial” unless the statement amounts to a dying declaration under section 32 (1) or leads to the discovery of a fact under section 27 of the Evidence Act, 1872.312 In a civil case dealing with paternity and legitimacy rendered prior to the 2005 amendments of Cr PC, 1973, Goutam Kundu v State of WB, AIR 1993 SC 2295 : 1993 SCC (3) 418 : 1993 Cr LJ 3233 : (1993) 3 SCR 917, the Supreme Court held that the Court cannot compel any one to give a sample of blood for analysis. In the postamendment decision of Kamti Devi v Poshi Ram, AIR 2001 SC 2226 : 2001 (5) SCC 311 : (2001) 3 SCR 729, the Supreme Court held that these modern tests were not even in contemplation in 1872 when the Evidence Act, 1872 was passed.313 In another post-amendment decision of Maya Ram v Kamla Devi, AIR 2008 HP 43 : I (2008) DMC 249, the High Court of Himachal Pradesh, following the above Supreme Court decision in Goutam Kundu, held that while the Court cannot force a party to undergo the DNA tests, the Court may draw an adverse inference if a party refuses to undergo the test. If the reason for the refusal by the defendant to undergo the test is the lack of power on the part of the Court to order the tests, then, it is difficult to see how such a negative inference can be drawn. On the other hand, if a person has the fundamental right to refuse a DNA test on the ground of violation of his right against self-incrimination under Article 20 (3) and the right to life and privacy under Article 21, it will be untenable for the Court to draw a negative inference from his refusal. It must, however, be mentioned that while tests like Test Identification Parades and taking finger and foot impressions do not involve physical force or duress, taking of blood and semen from a non-cooperating person do involve force and compulsion. If the person whose blood or DNA samples are required cooperates and voluntarily gives them, the results of those tests can be admitted by the Court under section 45 as “opinions of experts” or expert evidence. As pointed out above, section 45 is only the door or portal through which expert evidence can be let in but the section is not a source of power for the Court to order any tests including blood tests or DNA finger printing. Thus, prior to the amendment of Cr PC, 1973, in 2005, the Court lacked the power to order these tests either suo moto, or at the request of the parties but there are cases where the High Courts have ordered the conduct of the tests. As mentioned above, sections 53 and 53A of Cr PC, 1973 as amended in 2005 expressly confer the power on the police to order these tests where “there are reasonable grounds for believing that an examination of the person of an arrested person will afford evidence as to the commission of an offence... and to use such force as is reasonably necessary for that purpose.” 4.4.3.8 Identification Tests under Cr PC, 2005 Amendments 1. Test Identification Parades: Section 54A of Cr PC, which was added by way of amendment in 2005,314 conferred for the first time an express power on the Court to order TIP and provides:

Page 12 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC.

Identification of person arrested.—Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of an offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

It is clear from the above provision that: (a) it is the Court having jurisdiction in the case that orders the identification to take place; (b) it is done by the Court on the request of the officer in charge of the police station; (c) it is done if it is considered necessary for the investigation of the offence; and (d) the manner of identification is decided by the Court. While under section 54 of Cr PC, 1973 the accused is given the right to demand a medical examination of his own body to disprove his guilt, section 54A does not confer a similar right on the accused to ask for a TIP to prove that his identification was mistaken. 2. Medical Examination of the Arrested Person Section 53.—(1) of Cr PC, 1973, provides that where there are reasonable grounds for believing that an examination of the person of an arrested person will afford evidence as to the commission of an offence it shall be lawful for a medical practitioner, acting at the request of a police officer not below the rank of Sub-inspector, to make such an examination as is reasonably necessary to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

Explanation to section 53 states: ‘Examination’ shall include the examination of blood, blood stains, semen, swab in cases of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques, including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

The “Explanation” is capable of two interpretations: (a) Where blood or semen (as in the case of rape) is available on the clothing, they may be sent for medical examination for DNA testing. This is the most innocuous testing method that does not involve any use of compulsion on the accused. (b) However, the use of the words “to use such force as is reasonably necessary for that purpose” would clearly indicate that blood or semen can be taken from an unwilling accused by the use of requisite force. 3. Medical Examination of Accused in Rape Case: Section 53A (1) of Cr PC, 1973, gives identical power in the case of rape and requires the medical practitioner to prepare a report giving particulars, inter alia, “the description of material taken from the person of the accused for DNA profiling”. 4. Medical Examination of the Accused at his Request: Section 54 of Cr PC, 1973, provides that where a person arrested on a charge or otherwise, alleges, at the time when he is produced before a magistrate or at any time during his detention in custody, that an examination of his body will afford evidence which will disprove his guilt, the magistrate shall, if requested by the arrested person, direct the examination of his body by a medical practitioner (unless vexatious or to cause delay). 5. Report ofIdentification by Executive Magistrate as Evidence: Section 291A (1) of Cr PC, 1973, provides that the report of identification, signed by an Executive Magistrate, in respect of a person or property may be used as evidence in any inquiry, trial or proceeding under the Code, although such Magistrate is not called as witness.315 That simply means Cr PC, 1973, treats that it is “evidence”. If the person fails to identify the accused at the trial, it will in no way detract from TIP’s validity as evidence TIP can be used to contradict the witness by confronting him

Page 13 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. under section 145 and make it part of the record. It is for the trial Court to decide whether TIP held soon after the offence and duly recorded by the magistrate is to be relied upon or lack of identification in the Court. It depends on other evidence also. Courts have held that record by Magistrate has better value than record by police under section 162. 6. Identification of Prisoners Act of 1920: sections 5 and 6316 also empower a judge or a magistrate to direct a person to give his photograph or measurements. Historic Supreme Court Guidelines for Recording of Evidence The Supreme Court has sought to laydown path-breaking guidelines for all the Indian States and the topic has been discussed in Chapter 18 lnfra at pp 768 ff. 4.4.3.9 Voice Sampling The identification of the accused by voice has a long history. Foreshadowing the modern speech analysis, the Roman philosopher and lawyer Guintillian said: “The voice of the speaker is as easily distinguished by the ear as the face is by the eye.”317 Harry Hollien gives an interesting account of the development of Speaker Identification (SPID) from “earwitness identification” referred to by the Roman philosopher Heraclitus, through the identification of the murderer by his voice on telephone in Charles Lindberg baby’s kidnap and murder case,318 and to “voiceprints”319 developed during 1950-60 by Lawrence Kersta of Bell Telephones, USA.320 Voiceprint identification is defined as a combination of both aural (listening) and spectrographic (instrumental) comparison of one or more known voices with an unknown voice for the purpose of identification or elimination.321 Developed by Bell Laboratories in the late 1940s for military intelligence purposes, the modern-day forensic utilization of the technique did not start until the late 1960s following its adoption by the Michigan State Police. From 1967 until the 21st century, more than 5,000 law enforcement related voice identification cases have been processed by certified voiceprint examiners.322 There is no express provision either in Cr PC, 1973 or the Indian Evidence Act, 1872 or other statutes on the forensic use of voice samples. At the stage of investigation the accused cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade.323 In order to enable the exercise of power under section 73, the pendency of a proceeding before the court is the sine qua non.324 The Court may permit the taking of voice samples only for the purposes of identification. But these voice samples would not be admissible if they contain inculpatory statements because, in that eventuality, the accused would have been compelled to be a witness against himself. The Court would not interfere with the investigation or during the course of investigation and this field is exclusively reserved for the investigating agency.325 Since it is not also open to accused to dictate course of investigation, “there is no substance in submission that text which is to be read by appellants in course of drawing their voice samples should contain no part of inculpatory words which are a part of disputed recorded conversation. A commonality of words is necessary to facilitate a spectrographic examination.”326 In Ritesh Sinha v State of UP, AIR 2013 SC 1132 : (2003) 2 SCC 357 : 2013 Cr LJ 1301, two important “questions of law” were framed by the two-judge Bench of the Apex Court: (1) Does Article 20 (3) protect an accused from being compelled to give his voice sample during the course of investigation into an offence? and (2) whether “in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?” The Bench consisting of Aftab Alam, Ranjana Prakash Desai, JJ, were in broad agreement on the first question with the decision in Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263 : 2010 (4) Scale 690, that giving such samples is “non-testimonial” evidence and is not bared by Article 20 (3).327 On the second question, the two judges differed: Justice Desai held: “the Magistrate’s power to order the accused to give samples “can be traced to section 5 of the Identification of Prisoners Act, 1920, and section 53 of the Code. The Magistrate has an ancillary or implied power under section 53 of the Code to pass an order permitting taking of voice sample to aid investigation.” Her Ladyship opined that the power could not be traced to either section 73 of the Evidence Act, 1872, or section 311A of Cr PC, 1973, but voice samples would come within the “inclusive” definition of “Examination” in the Explanation to sections 53, 53A and 54, and within the meaning of “measurements” under section 5 of the Prisoners Act, 1900. But Justice Aftab Alam clearly disagreed and opined that “the Explanation in question deals with material and tangible things related to the human body and not to something disembodied as voice.” Justice Alam also disagreed that voice samples would come within the meaning of “measurement” under the Prisoners Act, 1900. In view of the disagreement between the two judges of the Bench, the matter has been referred to the Chief Justice for referring to a larger Bench of the Supreme Court. Later, in Leena Katiyar v State of UP, 2015 (89) ACC 556 : 2015 (4) ADJ 348 (HC), the same two issues came up

Page 14 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. before the High Court and on the first issue the Court followed Selvi and Ritesh that taking voice samples did not violate Article 20 (3), but on the second issue of whether the Court could order the taking of voice samples, Ramesh Sinha, J, of the High Court agreed with Ranjana Desai, J, of the Apex Court that the Magistrate could order voice samples but, unlike Desai, J, traced the power to section 165 of Evidence Act, 1872. Thus, in effect, Sinha, J, disagreed with both the justices of the Supreme Court. 4.4.3.10 Appraisal of DNA Testing for Identification As discussed under section 45 under expert evidence, DNA profiling is being extensively used by the police for investigation and relied upon by the Courts in criminal cases and paternity cases. On 21 May 2011, when Dominique Strauss-Kahn, the former Director of International Monetary Fund, was arrested in a New York hotel in USA for sexual assault on a chamber maid,328 the police stated on 23 May that they found the DNA of the accused on the maid’s clothes.329 In another case where a nurse working in a Mississauga (Toronto, Canada) pharmaceutical company was found murdered, the Ontario Provincial Police (OPP) could confidently taunt the accused by saying “we have your DNA and it is only a matter of time before we find out who you are.” With regard to the Civil Liberties Association objection that the tests would amount to an invasion of the right to privacy, the spokesperson for OPP stated that the need to solve that case trumps those concerns and that “each and every person who is approached has a moral obligation to participate.”330 In the 2003 case of the murder in Toronto of Holly Jones, a 10-year-old boy, though the accused refused to provide a sample of DNA, the police after a roundthe-clock surveillance found his DNA from the Cola can used and thrown by him331 and arrested him. Thus, DNA testing need not be invasive in any manner and there is no doubt that DNA testing is a very potent tool in the hands of the police in investigating and nabbing the culprits in a variety of cases, even though the police may not be able to use the evidence in a Court because of the bar of section 162 of Cr PC, 1973.332 4.4.3.11 Constitutionality of Identification Tests (1) Taking Handwriting, Finger Impressions under section 73 of the Evidence Act, 1872: Section 73 provides: In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions.

Section 73 of the Evidence Act, 1872, permits comparison of proven signature, handwriting or seal of a person with those on any document for the purpose of ascertaining whether they are his. Section 73 expressly authorizes the Court to: direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words figures alleged to have been written by such person.

Section 73 extends this power of the Court, “with any necessary modifications, to finger impressions.”333 It is clear that the section permits the Court to order taking of samples of words, figures or finger impressions for “enabling the Court to compare” for itself and this power cannot, obviously, be used by the Court to assist any party to a suit or proceeding. The Court cannot also order tests not mentioned in the section like blood tests or DNA finger printing even for its own comparison, much less for the use by prosecution or by a party to a suit. In State of Bombay v Kathi Kalu Oghad, (Attorney-General, Bhupendra Nath and Aswini Kumar Haldar), AIR 1961 SC 1808 : (1962) 3 SCR 10 : 64 Bom LR 240, the Supreme had to consider the question of whether obtaining the finger impressions from the accused violated his fundamental right against testimonial compulsion under Article 20 (3) of the Constitution. After reviewing the relevant earlier decisions of the Supreme Court334 and of the High Courts335, the Apex Court held, inter alia:

Page 15 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. •

‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

•

‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

•

Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification were not included in the expression to be a witness.

It is clear from the Kathi Kalu decision that: •

To be a witness means that some knowledge must be passed on to the Court by the witness by way of oral or written testimony;

•

By merely producing documents or giving finger or foot prints or giving samples of handwriting or signature, a witness will not be passing on any knowledge and hence that does not amount to “being a witness”.336

In the later case ofNandini Satpathi v PL Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 : (1978) 3 SCR 608, the Apex Court held contra to Kathi Kalu and said that “to be a witness” includes “any giving of evidence, any furnishing of information”. It is submitted that in Kathi Kalu the Supreme Court gave a very restricted meaning to the words “to be a witness” for the purpose of saving the legality of conducting the comparison of handwriting, foot and finger prints and saving the constitutionality of provisions like section 73 under which even the Court can direct the witness to give the samples of handwriting. The Court held that the term “testimony” comprehends only oral or written deposition. There are two crucial questions under Article 20 (3) and they are: (1) Is the person a witness and (2) Whether he is being compelled to be a witness “against himself”? In Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263 : 2010 (4) Scale 690, the Supreme Court answered the above questions as follows: Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20 (3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of Article 20 (3) is whether the materials are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20 (3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.

It is submitted that when a witness gives his fingerprints, he is a witness within the meaning of Article 20 (3) but those fingerprints are not evidence “against” him at that stage. It becomes evidence “against” the witness only when the fingerprints expert appears as a witness and deposes that the fingerprints found on the murder weapon, for instance, are those of the witness. It is the expert who establishes that the evidence is “against” the accused. Thus, even if it is held that the person is a witness when he gives the fingerprints, still that evidence does not fall foul of Article 20 (3) as the witness is not being compelled to be a witness “against himself”. Article 20 (3) bars use of the testimony of the accused as evidence against him in any form and for any purpose, as corroborative as well as substantive evidence. In the case of Uttar Pradesh v Sunil,337 (2017), the Court held that non-compliance of the direction of the Court to the accused to give fingerprints may lead to adverse inference, though the same cannot be entertained as the sole basis of conviction. In R v Apicella, (1986) 82 Cr App R 295 : [1986] Crim L R 238, p 299. Lawton, LJ, held: We know of no rule of law which says that evidence of anything taken from a suspect, be it a bodily fluid, a hair, or an article hidden in an orifice of the body, cannot be admitted unless the suspect consented to the taking.

Page 16 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. (2) Taking Blood, DNA Samples and Narco Tests under sections 53 and 53A of Cr PC, 1973: Selvi v State of Karnataka In the landmark judgment in Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263 : 2010 (4) Scale 690, the Supreme Court in a 250-page judgment considered the validity and the constitutionality of Polygraph, Narco Analysis and Brain-mapping techniques which the Court said “are essentially confirmatory in nature”338 and are used for “improving the investigation efforts in criminal cases”339 and focused its attention on the following “questions of law and ... the relevant sub-questions”340: I. Whether the involuntary administration of the impugned techniques violates the “right against self-incrimination” enumerated in Article 20 (3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? I-B. Whether the results derived from the impugned techniques amount to “testimonial compulsion” thereby attracting the bar of Article 20 (3)? II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on “personal liberty” as understood in the context of Article 21 of the Constitution?

After extensive reference to scientific evidence and data as to the viability and validity of the tests, the best practices in other democratic countries and various Indian and foreign judicial pronouncements, the Supreme Court came to the conclusion that: 1. In our considered opinion, the compulsory administration of the impugned techniques like narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test violates the ‘right against selfincrimination’.341 2. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. 3. This Court has recognised that the protective scope of Article 20 (3) extends to the investigative stage in criminal cases.342 4. If we were to permit 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 selfincrimination’ will be rendered meaningless. 5. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. 6. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorized as material evidence.343 7. Even after the amendment of Cr.P.C. in 2005 permitting use of necessary force for “the use of modern and scientific techniques including DNA profiling and such other Tests”, the impugned tests like narco analysis, polygraph test etc are not covered by that provision as the former tests relate to physical evidence and the latter to testimonial evidence. Thus, the Supreme Court held that: •

the protection of Art. 20 (3) is not confined to the trial or forensic stage but also extends to the investigative stage;

•

even if the compelled statement was not incriminatory at the investigatory stage, it could become such at the trial stage;

•

under S. 53 of Cr.P.C. reasonable force can be used for obtaining physical evidence through tests like DNA profiling but no force can be used for obtaining testimonial evidence through Narco Analysis, Polygraph and Brain-Mapping etc as the latter do not fall within the scope of “such other tests” under the Explanation of S. 53 of the amended Cr.P.C.

4.4.3.12 Position in the United Kingdom

Page 17 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. Under the Police and Criminal Evidence Act (PACE) of 1984 of the United Kingdom and Code C annexed to the Act, a distinction is made between “Intimate Samples” and “Non-Intimate Samples” that may be taken by the police for the purpose of identification. Under Rule 6.1 of Code C, “References to (a) an ‘intimate sample’ mean a dental impression or sample of blood, semen or any other tissue fluid, urine, or pubic hair, or a swab taken from any part of a person’s genitals or from a person’s body orifice other than the mouth; (b) a ‘non-intimate sample’ means: (i)

a sample of hair, other than pubic hair, which includes hair plucked with the root,

(ii) a sample taken from a nail or from under a nail; (iii) a swab taken from any part of a person’s body other than a part from which a swab taken would be an intimate sample; (iv) saliva; (v) a skin impression which means any record, other than a fingerprint, which is a record, in any form and produced by any method, of the skin pattern and other physical characteristics or features of the whole, or any part of, a person’s foot or of any other part of their body. An Intimate Sample can be taken of a person in police detention •

after authorisation from a police officer above the rank of Inspector and

•

with the written consent of the suspect;

•

the suspects must be warned that if they refuse without good cause to give consent, their refusal may harm their case if it comes to trial.344

Penile and Vaginal Swabs in Rape Cases Canada In R v Saeed, 2016 SCC 24 : [2016] 1 SCR 518, the issue was whether the taking of the swab of the penis of the accused in a rape case for collecting the DNA of the victim by the police without a warrant was a breach of the right to privacy of the accused. The Supreme Court of Canada held that: while a penile swab constitutes a significant intrusion on the privacy interests of the accused, the police may nonetheless take a swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested, and the swab is conducted in a reasonable manner.345

Giving the reasons for its decision, the Court observed: First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. The privacy interest accused persons have in their own samples and impressions stems, in part, from the fact that these samples and impressions are part of their bodies and can reveal personal information about them. The complainant’s DNA is not part of the accused’s body, and does not reveal anything about him.346 That said, I accept as a practical reality that swabs are likely to contain bodily substances of the accused from which his DNA could be obtained. But the fact that the evidence sought is the complainant’s DNA, and not information about the accused, changes the context.347 Second, a penile swab is in some ways less invasive than a two-hour long process for taking dental impressions and forcefully removing hair from an accused’s body.348 Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. The accused can also destroy this evidence, whether intentionally or accidentally.349

India In Raja Burman @ Rahu v State of MP, 2016 (3) RCR (Cri) 155 : 2017 (1) Cr CC 143, a minor girl allegedly in a relationship with the applicant on the false pretext of marriage is said to have become pregnant by the applicant on

Page 18 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. account of which, she committed suicide. In such other cases, the man was sought to be prosecuted for rape on the ground that the woman’s consent was obtained by fraud. In some cases where the woman has become pregnant because of rape, the paternity of the child or of the aborted foetus has become an issue. In this case, the Court observed that: it has been seen that in number of cases relating to rape, the most powerful investigative tool which is available to the police is the DNA test which is seldom being resorted to. The DNA report can either confirm or exclude the involvement of the accused.

Hence, the Court ordered: The police is directed that in every case under Section 376 of I.P.C.:— (a)

under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.

(b)

where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect. If the foetus is aborted, then the tissue sample of the foetus be tested along with the sample of the suspect to see if they match, and

(c)

in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.

Retention and Destruction of DNA samples after Use in UK The Protection of Freedoms Act of 2012 of United Kingdom provides for the destruction of records of material like DNA samples and fingerprints. Briefly stated: Part I of the Act deals with “Regulation of Biometric Data” and Chapter I deals with “Destruction, Retention and of Finger Prints and Use of Finger Prints”. Section 63D added to (Police and Criminal Evidence Act (PACE Act) of 1984 by the 2012 Act deals with the material of (1)(a) fingerprints (i) taken under the provisions of the Act and (ii) taken with the consent of a person; and (b) DNA profiles derived from samples taken as under (1)(a) and (b). Under section 63N where the material is taken with the consent of the person, it can be retained for as long as it is necessary for the purpose. Under section 63E, the material mentioned in section 63D can be retained till the investigation is over or till the proceedings commenced are over. Under section 63M where the section 63D material is necessary for purposes of national security, the material can be retained for as long as the national security determination made by the police officer is in effect. 4.4.3.13 Position in the USA In US v Scheffer, 523 US 303 (1998), the US Supreme Court left it to individual jurisdictions whether polygraph test could be used in criminal cases. The decision to conduct narco analysis is usually made by the Superintendent of Police or the Deputy Inspector-General handling a case.350 In the United States before permitting forensic evidence including tests like polygraph, the famous Daubert351 standard has to be applied according to which the “underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue.” 4.4.3.14 Appraisal of Selvi Case In Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263 : 2010 (4) Scale 690, the Supreme Court of India examined the constitutionality of tests like Narco Analysis, Polygraph and Brain-Mapping on the touch stones of: 1. Rule against Testimonial Compulsion under Article 20 (3) and 2. Right to Privacy and integrity of the body under Article 21. While applying the tests under Articles 20 (3) and 21, the Apex Court examined the impugned tests of Polygraph from the standpoint of:

Page 19 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. a) Viability and reliability of the tests and the experts; b)

Whether the statements of the suspects/accused amounted to “testimony” within the meaning of Article 20 (3); and

c)

Whether the tests could be conducted without the consent of the persons concerned.

At the threshold stage of (a) above, if the impugned tests are found to be unscientific and unreliable, they should be rejected outright and any further enquiry into the constitutionality of the tests will only be useful for finding additional reasons for their rejection. On the other hand, even if the tests are scientific and reliable, they are liable to be rejected if they are found to be unconstitutional. In deciding the next question (b) above of whether the statements of the suspects/accused amount to “testimony”, the Court first held that the ban of Article 20 (3) was not confined only to forensic stage of trial but would apply even to the antecedent stage of investigation by the police. Then, the Court went on to make a distinction between tendering “physical” evidence like fingerprints and handwriting352 and giving “testimonial” evidence like statements made during narcosis and polygraph and held only the latter to be hit by Article 20 (3) and not the former. The Court did not hold section 53 of the amended Cr PC, 1973, as unconstitutional even though it permits the use of “reasonably necessary” force for conducting “examination” for obtaining blood, semen. On question (c) above, the Court felt that the right to privacy and integrity of the body of the person under Article 21 would be applicable even in cases where the right against testimonial compulsion under Article 20 (3) might not be attracted and the use of coercive tests or methods would fall foul of that Article. It is noteworthy that the Supreme Court did not base its decision on any distinction between “invasive” and “noninvasive” tests as far as “testimonial” evidence is concerned and any such tests, invasive or non-invasive, have to be conducted only with the written consent of the suspect concerned. The Court did not also consider it relevant to refer to the distinction of “intimate” and “non-intimate” tests as under the PACE Act of the United Kingdom though that could have been pertinent in a discussion of the right to privacy under Article 21. In other words, in the Court’s opinion, “physical” evidence (ie, non-testimonial evidence) can be obtained through collection of blood and semen and tests like DNA under section 53 of Cr PC, 1973 even by use of force if it is reasonable, but “testimonial” evidence cannot be taken even through non-invasive tests like polygraph.

236 R v Bond, (1906) 2 KBD 389, at p 409. 237 It was for this reason that some judges have expressed the opinion that this was “a dangerous innovation” introduced in the Evidence Act, 1872. See M C Sarkar et al, eds, Sarkar’s Law of Evidence, vol 1, New Delhi, 2003, p 166. 238 Munshi Singh Gautam v. State of MP, (2005) 9 SCC 631, at p 643, para 17. 239 Sidney Lovell Phipson, Law of Evidence, 10th Edn, Sweet & Maxwell, London, 1963, p 189, para 381; and p M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 1, New Delhi, 1998, p 353. 240 However, the Privy Council said that the Court could, in its warnings to the jury, even include “a reminder that even recognition of an acquaintance can be mistaken”. Stoutt v R, (From Court of Appeal of Virgin Islands), [2014] UKPC 14, para 21. 241 Jonathan Goodman, ed, The Crippen File, London, 1985, Allison & Busby Ltd. 242 In the judgment, the Supreme Court acquitted the accused on the ground that no evidence of voice identification was adduced to connect the absconding accused with the mobile number allegedly used by him and no seizure of any mobile phone or even sim card was effected. Nilesh Dinkar Paradkar v State of Maharashtra, (2011) 4 SCC 143 : (2011) 3 SCR 792 : JT 2011 (3) SC 429. 243 In Marcoux v R, [1976] 1 SCR 763, the Supreme Court of Canada stated: “An important pre-trial step in many criminal prosecutions is the identification of the accused by the alleged victim. Apart from identification with the aid of a photograph or photographs, the identification procedure adopted by the police officers will normally be one of two types: (i) the show up—of a single suspect;(ii) the line-up-presentation of the suspect as part of a group.” 244 In USA, there is no bar against the admission of statements or confessions made to the police and the only question is whether such statements are tainted by improper methods used by the police. In the case of Perry v New Hampshire, 565 US 228 : 132 S Ct 716 : 181 L Ed 694 (2012), the Supreme Court held: “An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is ‘a very substantial likelihood of irreparable misidentification,’ Simmons v United States, 390 U. S. 377, 384 (1968), the judge must disallow presenta tion of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.”

Page 20 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 245 Matru @ Girish Chandra v State of UP, AIR 1971 SC 1050 : (1971) 2 SCC 75 : (1971) 3 SCR 914. 246 In Puthenthara Mohanan v State of Kerala, 1990 Cr LJ 1059, it was stated: “The objects and purposes of test identification parades are mainly two-fold. (i) For the investigating officer to satisfy himself that investigation against previously not known and unidentified persons is moving in the correct line and to assure him that the prosecution witnesses are honest; and (ii) To furnish material to corroborate the substantive evidence of identification before court and to act as an aid in the assessment of that evidence.” As was observed by Supreme Court in Matru @ Girish Chandra v State of UP, AIR 1971 SC 1050 : (1971) 2 SCC 75 : (1971) 3 SCR 914, 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. 247 In United States v Wade, (1967) 388 US 218 : 87 S Ct 1926; 18 L Ed 2d 1149, US Supreme Court held that identification parade did not violate the Fifth Amendment constitutional protection against self-incrimination. 248 Glanville Williams states that though “evidence of identity based on identification parades is preferable to mere confrontation before or at the trial”, it is in fact not as reliable as it may at first sight be taken to be. “[I] t contains numerous sources of error, some of them hidden, which may profoundly vitiate its seemingly conclusive result.” Glanville Williams and H A Hammelmann, “Identification Parades”, Part I, in Criminal Law Review, 1963, 479, at p 482. 249 R v Bree, [2007] EWCA Crim. 804: [2007] 2 All ER 676. 250 Rabindra Kumar Pal @ Dara Singh v Republic of India, AIR 2011 SC 1436 : (2011) 2 SCC 490 : (2011) 1 SCR 929. 251 Dana Yadav @ Dahu v State of Bihar, AIR 2002 SC 3325 : (2002) 7 SCC 295, para 38 : 2002 (6) Scale 447. The Court also stated: “ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence.” 252 In the Arushi murder case that attracted much public and media attention, the TIP of the golf clubs used by the father of the victim was conducted. 253 In Mahendra Urjeevan Luhar v State, (CDJ) 199 GHC 034 and in Devendra v JMFC Indore, 2002 (3) MPLJ 337, the Gujarat and Madhya Pradesh High Courts have observed that there is rampant impersonation of accused during trial and even after conviction. 254 Satwantin Bai v Sunil Kumar, AIR 2015 SC (Supp) 1134 : (2015) 3 SCC (Cr) 649 : (2015) 8 SCC 478, para 11 : 2015 (9) SCJ 149. 255 Satwantin Bai v Sunil Kumar, AIR 2015 SC (Supp) 1134 : (2015) 3 SCC (Cr) 649 : (2015) 8 SCC 478 : 2015 (9) SCJ 149. In Neil v Biggers, (1972) 409 US 188, at p 200 : 93 S Ct 375 : 34 L Ed 2d 401, the Court observed that the victim of rape “spent a considerable period of time with her assailant, up to half an hour” and “she was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” 256 Interesting issues involving the dynamics of TIPs were raised in the English case of R v Cole, [2013] EWCA Crim 1149. TIP was conducted with all the participants in sitting position. One of the issues was that the witness who identified the defendant at TIP wanted him to stand up to check his height, but her request was refused. Nevertheless, the identification was relied on as it was corroborated by other strong evidence. 257 The National Police Commission stated: “there are several occasions when an identification parade has to be held by a police officer himself in the course of investigation merely as a step in the process of investigation to know the identity of relevant persons and then proceed further to ascertain clues and connected facts concerning them.” The Fourth Report of the National Police Commission, 1977, “Identification Parade”, para 27.9. 258 In Ramkishan Mithanlal Sharma v State of Bombay, AIR 1955 SC 104 : 1955 SCR (1) 903 : 1955 Cr LJ 196 : (1955) 1 Mad LJ 66, the Supreme Court said that even “oral statements made by persons to police officers in the course of the investigation also came within the ban of section 162 and could not be used for any purpose save that specified in the proviso to section 162 (1).” 259 Alexander v R, [1981] HCA 17 : 145 CLR 395, para 17 : 34 ALR 289. 260 Lord Devlin, Report on Evidence of Identification in Criminal Cases, London, 1976, http://www.physics. smu.edu/pseudo/Eyewitness/DevlinReport.pdf (last accessed in April 2019). 261 See Justice Stephen’s observations in Alexander v R, [1981] HCA 17 : 145 CLR 395, para 8 : 34 ALR 289. 262 Alexander v R, [1981] HCA 17 : 145 CLR 395, para 2 : 34 ALR 289 (per Stephen, J). 263 In R v Wainwright (1925) 19 Cr App R 52, Lord Chief Justice Hewart said: “it is unheard of that police photographs, and the identification of a defendant by means of them, should be put forward by the prosecution as part of its evidence in chief.” It is said that the basis of this 1925 decision “was that the effect of informing the jury that the accused was identified by the use of the police photographs was to tell them that the accused had a criminal record. Consequently, the decision seems to proceed on the view that the prejudicial effect of the evidence is to outweigh its probative value.” Alexander v R, [1981] HCA 17 : 145 CLR 395, para 22 : 34 ALR 289. 264 R v Wainwright, (1925) 19 Cr App R 52.

Page 21 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 265 Indeed, where a suspect had been arrested, and it was intended to ask a witness to identify him at an identification parade, it would be unfair to show the witness, before the parade, a number of photographs including that of the suspect: R v Goss (1923) 17 Cr App R 196; R v Haslam (1925) 19 Cr App R 59; Lord Devlin, Report on Evidence of Identification in Criminal Cases, London, 1976, http://www.physics. smu.edu/pseudo/Eyewitness/DevlinReport.pdf, (last accessed in April 2019) para 5.19. 266 Lord Devlin, Report on Evidence of Identification in Criminal Cases, London, 1976, http://www.physics. smu.edu/pseudo/Eyewitness/DevlinReport.pdf, (last accessed in April 2019) para 5.21. 267 Alexander v R, [1981] HCA 17 : 145 CLR 395, para 25 : 34 ALR 289 (per Stephen, J) 268 Alexander v R, [1981] HCA 17 : 145 CLR 395, para 2 : 34 ALR 289 (per Gibbs, CJ). 269 In fact, in the Thomson Committee in 1975 recommended that “in any case in which a witness has viewed an identification parade and has failed to identify the accused, it shall not be competent for the Crown to ask that witness to identify the accused in court.” However, if the witness had identified correctly earlier at the parade, he could be asked that question in dock identification. The Second Report of the Thomson Committee, Criminal Procedure in Scotland Cmnd 6218, HMSO, Edinburgh, 1975, para 46.13. 270 Holland v Her Majesty’s Advocate (Devolution), [2005] UKPC D1, para 35. 271 A similar provision is contained in the Indian Cr PC, 1973, section 273 mandates: “Evidence to be taken in presence of accused.-Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” 272 Holland v Her Majesty’s Advocate (Devolution), [2005] UKPC D1, para 36. 273 Holland v Her Majesty’s Advocate (Devolution), [2005] UKPC D1, paras 47–48. 274 An example of such an extreme case is given by Lord Rodger in Holland v Her Majesty’s Advocate (Devolution) [2005] UKPC D1, para 37. He said: “It might well be very different if, when in the dock, the accused could be required to assist the prosecution witnesses by, say, standing up, or turning round, or showing part of his body.” 275 In an appeal from the Court of Appeal of Belize, in Pipersburgh v R (Belize), [2008] UKPC 11, the Privy Council held that “the witnesses observed the offenders in good conditions of lighting, distance and time, and where they claimed to be recognising people they had seen several times before, it is still necessary for the judge to give a detailed warning about the risk of error.” 276 Emphasis added. New Zealand and Australian Courts insist on warnings to the jury that identifications can go wrong. See R v Fox, [1953] NZLR 555 (CA). In that case, the Court followed the approach adopted by the High Court of Australia in Davies v R, [1937] HCA 27 : (1937) 57 CLR 170 at 181– 182 : (1937) ALR 321, and also referred to earlier New Zealand authorities like R v Jeffries [1949] NZLR 595 (CA) and R v Glass [1945] NZLR 496 (SC). See also Fukofuka v R, [2013] NZSC 77. 277 Majhar Nashir Shaikh v State of Maharashtra Criminal Appeal No. 393 of 2009, 6 May 2016 (Bombay High Court). 278 For instance, The Police and Criminal Evidence Act (PACE) of 1984 of the United Kingdom which lays down detailed guidelines for the conduct of the identification parade by the police. See in particular Code D Annexed to the Act which contains these guidelines. 279 The National VIPER Bureau is a service developed, owned and managed by West Yorkshire Police which is utilised by the UK police to produce video identification (ID) parades. The system has a number of features that increase the speed and reduce the cost of the identification process. The National VIPER Bureau produces approximately 50,000 video ID parades per year for this purpose. This method allows the witnesses to identify a suspect without the need to confront them face to face. The video ID parade is played from a DVD onto a television which can be located in a police station or even at their home on a laptop to promote witness care. For a contested use of the method, see RS v Director of Public Prosecutions, [2013] EWHC 322 (Admin). In a field study on VIPER, Amina Memon et al, point out that “evidence that is now starting to appear concerning this mode of identification elicitation indicates that the technique has certain benefits and few contra-indications concerning its utilization.” Amina Memon et al, “A field evaluation of the VIPER system: a new technique for eliciting eyewitness identification evidence”, in Psychology, Crime and Law, vol 17, 2011, 711–729; available at https://www.tandfonline. com/doi/abs/10.1080/10683160903524333 (last accessed in April 2019) 280 In R v Holmes, [2014] EWCA Crim 420, para 24, this was the method used. 281 Sheikh Hasib @ Tabarak v State of Bihar, AIR 1972 SC 283 : (1972) 4 SCC 773 : 1972 Cr LJ 233. 282 See Justice Arjit Pasayat’s observations in Md Kalam @ Abdul Kalam v State of Rajasthan, AIR 2008 SC 1813 : (2008) 11 SCC 352 : 2008 (4) Scale 521, JT 2008 (4) SC 344. Also, Musheer Khan @ Badshah Khan v State of MP, AIR 2010 SC 762, para29 : (2010) 2 SCC 748 : 2010 (1) Scale 676: The identification proceedings are in the nature of tests and there is no set procedure either in Cr PC, 1973 or in the Indian Evidence Act, 1872 for holding such tests.

Page 22 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 283 For instance, Chapter 26 of Andhra Pradesh Police Manual, 2001, deals with “Identification” and Rules 470 and 471 elaborately lay down the procedure for conducting the Identification Parade by the Magistrate. See for full text of the relevant parts of the Manual, Annex. 284 See, for instance, the Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990. 285 The National Police Commission stated: “There is at present no provision in the governing the conduct of identification parades in the course of investigation. Such parades are usually conducted before Magistrates in accordance with the criminal rules of practice in the State.” The Fourth Report of the National Police Commission, 1977, “Identification Parade”, para 27.9. http://police.puducherry.gov. in/Police%20Commission%20reports/4th%20Police%20Commission%20report.pdf (last accessed in April 2019). 286 State of Bihar v Surendra Manjhi and Saryug Manjhi, 2010 Cr LJ 292; Kedar Yadav v State of Bihar, 1990 (1) Pat LJR 370. 287 Published in Andhra Pradesh Gazette No 6 dated 7 March 1991 (Rules Suppt to Part II). http://police. puducherry.gov.in/Police%20Commission%20reports/4th%20Police%20Commission%20report.pdf (last accessed in April 2019). 288 Andhra Pradesh Police Manual, 2001, Part 1, vol 2, AP Police—Crime, Detection, Investigation & Prosecution, Chapter No 26: Identification, pp 479. 289 Prakash v State of Karnataka, 2014 Cr LJ 2503 (SC). 290 Sheikh Sintha Madhar @ Jaffer @ Sintha v State Rep. By Inspector of Police, AIR 2016 SC 1844. 291 State of Maharashtra v Suresh, (2000) 1 SCC 471 : 1999 (7) Scale 386 : JT 1999 (9) SC 513. 292 Shyamal Ghosh v State of WB, AIR 2012 SC 3539 : (2012) 7 SCC 646 : (2012) 7 SCC 646; Chandra Prakash v State of Rajasthan, AIR 2014 SC (Supp) 1 : (2014) 8 SCC 340 : 2014 (5) SCJ 1. 293 Prakash v State of Karnataka, 2014 Cr LJ 2503 (SC). Mulla v State of UP, AIR 2010 SC 942 : 2010 (3) SCC 508 : 2010 (2) Scale 179: The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused 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 the witnesses had seen in connection with the said occurrence. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. Ashok Debbarma @ Achak Debbarma v State of Tripura, AIR 2014 SC (Supp) 1434 : (2014) 4 SCC 747 : 2014 (85) ACC 277. The primary object of the Test Identification Parade is to enable the witnesses to identify the persons involved in the commission of offence (s) if the offenders are not already known to the witnesses. 294 State of UP v Sukhpal Singh, AIR 2009 SC 1729 : (2009) 4 SCC 385 : (2009) 3 SCR 24. 295 V C Shukla v State (Delhi Administration), AIR 1980 SC 1382, at 1396 : (1980) 2 SCC 665. 296 Raju alias Rajendra v State of Maharshtra, AIR 1998 SC 275 : (1998) 1 SCC 169 : (1998) 1 Mad LJ (Cr) 402; Kanan v State of Kerala, AIR 1979 SC 1127 : (1979) 3 SCC 319 : 1979 Cr LJ 919. Balbir v Vazir, 2014 Cr LJ 3697: When the incident does not seem to have lasted for a long time and the eye-witnesses were sitting outside the Satsang hall, it cannot be said that they had sufficient opportunity to see the faces of the accused who were on the run. In such a case, failure to hold identification parade is a serious drawback in the prosecution case. 297 Puthenthara Mohanan v State of Kerala, 1990 Cr LJ 1059. 298 Caetono Piedade Fernandes v Union Territory of Goa, Daman & Diu, AIR 1977 SC 135 : (1977) 1 SCC 707. 299 Malkhansingh v State of MP, AIR 2003 SC 2669 : (2003) 5 SCC 746; Mulla v State of UP, AIR 2010 SC 942 : 2010 (3) SCC 508 : 2010 (2) Scale 179; Matru @ Girish Chandra v. State of UP, AIR 1971 SC 1050 : 1971 (2) SCC 75 : 1971 Cr LJ 913; Santok Singh v Izhar Hussain, AIR 1973 SC 2190 : (1974) 1 SCR 78 : (1973) 20 SCC 406; Mahabir v State of Delhi, AIR 2008 SC 2343 : (2008) 16 SCC 481 : 2008 (6) Scale 5; Md Kalam @ Abdul Kalam v State of Rajasthan, AIR 2008 SC 1813 : (2008) 11 SCC 352 : 2008 (4) Scale 521, JT 2008 (4) SC 344. 300 Brij Mohan v State of Rajasthan, AIR 1994 SC 739 : (1994) 1 SCC 413 : 1994 Cr LJ 922 : 1993 (4) Scale 661. 301 Pramod Mandal v State of Bihar, 2004 (13) SCC 150 : 2004 (7) Scale 718 : JT 2004 (7) SC 583. 302 Asha @ Ashanand v State of Rajasthan, AIR 1977 SC 2828. 303 Sunil v State of Haryana, AIR 1994 SC 1536. 304 Mullagiri Vajram v State of Andhra Pradesh, AIR 1993 SC 1243. 305 Matru @ Girish Chandra v State of UP, AIR 1971 SC 1050 : 1971 (2) SCC 75 : 1971 Cr LJ 913; Amitsingh Bhikamsing Thakur v State of Maharashtra, AIR 2007 SC 676 : (2007) 2 SCC 310 : 2007 (1) Scale 62; Mulla v State of UP, AIR 2010 SC 942 : 2010 (3) SCC 508 : 2010 (2) Scale 179. 306 See for instance, Banarsi Dass v Teeku Datta (Mrs), 2005 (4) SCC 449.

Page 23 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 307 See for instance Lallu Lal Patel v Anarkali @ Tannu Bai Yadav, ILR [2011] MP1605. 308 It was through the amendment Act of 2005 that sections 53, 53A, 54 and 54A were added to Cr PC, 1973 enabling the forcible conduct of these tests. 309 See Justice Arjit Pasayat’s comments in Md Kalam @ Abdul Kalam v State of Rajasthan, AIR 2008 SC 1813 : (2008) 11 SCC 352 : 2008 (4) Scale 521, JT 2008 (4) SC 344. 310 Also, Md Kalam @ Abdul Kalam v State of Rajasthan, AIR 2008 SC 1813 : (2008) 11 SCC 352 : 2008 (4) Scale 521, JT 2008 (4) SC 344. 311 See for instance, Marada Venkatesawara Rao v Oleti Varalakshmi, AIR 2008 AP 195 : 2008 (3) AIR Jhar (NOC) 1037 : 2008 (2) Andh LT 348. 312 Section 162 (1) and (2) of Cr PC, 1973. 313 Banarasi Dass v Teeku Datta (Mrs), 2005 (4) SCC 449; Amarjit Kaur v Harbhajan Singh, 2003 (10) SCC 228 : 2003 (1) All WC 344 : JT 2002 (9) SC 440; Ajaya Kumar Naik v State of Orissa, 1995 Cr LJ 82 (para 6) : 1994 II OLR 70; Chilukuri Venkateswarlu v Chilukuri Venkatnarayan, AIR 1954 SC 176; Chandramathi v Pazhetti Balan, AIR 1982 Ker 68 : (1982) 1 DMC 256 : 1986 Ker LT 1068; Bhagwan Bakhsh Singh v Mahesh Bakhsh Singh, AIR 1935 PC 199 : (1936) 38 Bom LR 1; Tushar Roy v Sukla Roy, 1993 CrLJ 1659. 314 These sections have been inserted by the Criminal Procedure Amendment Act of 2005. 315 Prior to the amendment, the practice was that an identification memo was required to be proved in the Court by examination of the Magistrate, who conducted the proceedings. These facts are generally not disputed. In order to save time of the Court, section 291A has been inserted with a view to make memorandum of identification prepared by the Magistrates admissible in evidence without formal proof of facts stated therein. However, the section subjects the admissibility of the Magistrate’s report to sections 21, 32, 33, 155 or 157, as the case may be, of the Evidence Act, 1872, and also provides in clause (2) that the Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject matter of the report. 316 Section 5 empowers a Magistrate to order a person to be measured or photographed for the purpose of any investigation or proceeding under Cr PC, 1973, by a police officer: provided that no order shall be made except by a Magistrate of the 1st class, and unless the person has at some time been arrested in connection with such investigation or proceeding. Under section 6 (1), if any person resists or refuses to allow the taking of the same, it shall be lawful to use all means necessary to secure the taking thereof and under (2) such resistance or refusal shall be deemed to be an offence under section 186 of the IPC, 1860 (obstructing public servant in discharge of public functions). 317 Carmen Llamas and Dominic Watt, eds, Language and Identities, Introduction, Edinburgh, 2010, p 2. 318 New Jersey v Hauptmann, (E & A 1935) 115 NJL 412 : 18 A 809. This famous case related to the murder of the oneyear-old son of the famous aviator Charles A Lindbergh and the capture by voice identification on phone and trial of the kidnapper, Bruno Richard Hauptmann. 319 On voiceprints, see KC Suresh, Sound Spectrograph and Voice Prints—A New Paradigm in the Criminal Judicial Administration, available at: http://www.lawyersclubindia.com/articles/soundspectrograph-and-voice-prints-8211-a-newparadigm-in-thecriminal-judicial-administration-255.asp (last accessed in April 2019), pp 1–9; Pragnesh Parmar, Udhayabanu R, “Voice Fingerprinting: A Very Important Tool against Crime”, in Journal of Indian Academy of Forensic Medicine, Jan-March 2012, vol 34, pp 70–73; Harry Hollien, “An Approach to Speaker Identification”, in Journal of Forensic Sciences, vol 61, 2016, p 115. Frances McGehee, “The Reliability of the Identification of the Human Voice”, in The Journal of General Psychology, vol 17, 1937, pp 249–271. Kenneth A Deffenbacher, et al, “Relevance of Voice Identification Research to Criteria for Evaluating Reliability of an Identification”, in The Journal of Psychology, vol 123, 1989, pp 109–120. 320 Harry Hollien, “An Approach to Speaker Identification”, in Journal of Forensic Sciences, vol 61, 2016, p 18–24. 321 The sound spectrograph is an automatic sound wave analyzer, and is a basic research instrument used in many laboratories for research studies of sound, music and speech. The instrument produces a visual representation of a given set of sounds in the parameters of time, frequency and amplitude. The analog sound spectrograph samples energy levels in a small frequency range from a magnetic tape recording and marks those energy levels on electrically sensitive paper. This instrument then analyses the next small frequency range and samples and marks the energy levels at that point. This process is repeated until the entire desired frequency range is analysed for that portion of the recording. The finished product is called a spectrogram and is a graphic depiction of the patterns, in the form of bars or formants, of the acoustical events during the time frame is analyzed. KC Suresh, Sound Spectrograph and Voice Prints—A New Paradigm in the Criminal Judicial Administration, available at: http://www.lawyersclubindia.com/articles/soundspectrograph-and-voice-prints-8211-a-new-paradigm-in-thecriminaljudicial-administration-255. asp (last accessed in April 2019), pp 1–9. 322 Steve Cain et al, “Voiceprint Identification”, http://expertpages.com/news/voiceprint_identification.htm (last accessed in April 2019). The majority of the Courts in the United States has held that voiceprint evidence is admissible. See US v Smith, 869 F2d 348, 351 (7th Cir 1989); US v Williams, 583 F2d 1194 (2d Cir 1978). Though the Dt of Columbia Circuit has held that voice print evidence is inadmissible, see US v Addison, 498 F2d 741 (DC Cir 1974), the validity of that

Page 24 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. decision is doubtful in the light of the Supreme Court’s subsequent decision on the admissibility of scientific evidence in Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). While the earlier Frye v US, 293 F 1013 (DC Cir 1923), adopted the test of “general acceptance” of scientific evidence, Daubert applied the case-specific test of intrinsic reliability of the particular evidence adduced. For a discussion of Daubert test, see “Best Practices in other Jurisdictions” under section 46, Chapter X. 323 In Rakesh Bisht v CBI, (2007) ILR 1 Del 223 : (2007) 1 JCC 482, the Court observed that unlike the case of fingerprints “there is no specific provision under the Indian Evidence Act, 1872, 1872 to deal with the taking of voice samples” or authorizing the Court to direct taking of such samples. 324 Rakesh Bisht v CBI, (2007) ILR 1 Del 223, para 9 : (2007) 1 JCC 482. 325 The Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under section 173 (2) Cr PC, 1973. UOI v Prakash p Hinduja, AIR 2003 SC 2612 : 2003 AIR SCW 3258 : (2003) 6 SCC 195 : 2003 Cr LJ 3117. 326 Sudhir Chaudhary v State (NCT of Delhi), (2016) 8 SCC 307. 327 Giving of voice sample for the purpose of investigation cannot be included in the expression “to be a witness”. By giving a voice sample, the accused does not convey any information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. Samir Ahluwalia v State (2015), Delhi, para 16. Once the accused have given their consent for furnishing their voice samples, they cannot be allowed to shift their stand again and again. Neither the investigation can be endlessly left at the mercy of the accused nor can the accused be left to lead the investigation. Samir Ahluwalia v State (2015), Delhi, para 22. 328 https://www.nytimes.com/2011/05/15/nyregion/imf-head-is-arrested-and-accused-of-sexual-attack. html (Last accessed in April 2019). 329 nbc.com. 330 26 May 2011 reported in news paper Toronto Star, thestar.com. 331 26 May 2011 reported in news paper Toronto Star, thestar.com. Saliva and buccal swabs are a good source of DNA. 332 See the discussion on DNA profiling under section 45, “Fields of Expertise”. 333 This extension has been made by an amendment of 1899. It is noteworthy that the later scientific developments like DNA tests, which have a high degree of accuracy, have not been included. See, Kamti Devi v Poshi Ram, AIR 2001 SC 2226 : 2001 (5) SCC 311 : (2001) 3 SCR 729. 334 MP Sharma v Sathish Chandra, AIR 19554 SC 300 : (1954) SCR 1077. 335 Mohamed Dastagir v State of Madras, (JOI), AIR 1960 SC 756 : (1960) 3 SCR 116 : (1960) 61 Cr LJ 1159; State of Kerala v KK Sankaran Nair, AIR 1960 Ker. 392 : 1960 Cr LJ 1603; Sailendra Nath Sinha v The State, AIR 1955 Cal 247 : 1955 Cr LJ 790. 336 See also State Through SPE & CBI, AP v M Krishna Mohan, AIR 2008 SC 368 : (2007) 14 SCC 667. 337 Para 11, AIR 2017 SC 2150: 2017 (5) Scale 489. 338 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 280, para 8 : 2010 (4) Scale 690. 339 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 280, para 2 : 2010 (4) Scale 690. The Apex Court said that “this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual.” 340 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 282–283, para 11 : 2010 (4) Scale 690. 341 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 382, para 262 : 2010 (4) Scale 690. 342 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 382, para 262 : 2010 (4) Scale 690. 343 Selvi v State of Karnataka, AIR 2010 SC 1974 : 2010 (7) SCC 263, p 382, para 262 : 2010 (4) Scale 690. 344 Section 62 (1)(A) of PACE, 1984. 345 R v Saeed, 2016 SCC 24 : [2016] 1 SCR 518, para 6. 346 Ibid, para 45. 347 Ibid, para 48. 348 R v Saeed, 2016 SCC 24 : [2016] 1 SCR 518, para 49. It took just two minutes to take the penile swab in this case. R v Saeed, 2016 SCC 24 : [2016] 1 SCR 518, para 25. 349 R v Saeed, 2016 SCC 24 : [2016] 1 SCR 518, para 50.

Page 25 of 25 4.4 SECTION 9 : INTRODUCTORY, EXPLANATORY FACTS, IDENTIFICATION ETC. 350 See US v Solomon, 753 F2d 1522 (9th Cir. 1985) for a detailed discussion on permissibility of narco-analysis in criminal cases. 351 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). 352 In 1980, the Supreme Court held that search and seizure of even incriminating documents under section 93 (1) of Cr PC, 1973, did not amount to compelled testimony. VS Kuttan Pillai v Ramakrishnan, AIR 1980 SC 185 : (1980) 1 SCC 264 : (1980) 1 SCR 673.

End of Document

4.5 SECTION 10: PROOF OF CONSPIRACY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.5 SECTION 10: PROOF OF CONSPIRACY 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 be 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 conspiracy to wage war against the Government of India. 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.

Section 10 makes the following facts relevant in proof of conspiracy: (1) there is a reasonable ground to believe that (2) two or more persons have (3) conspired together to commit an offence or an actionable wrong (4) anything said, done or written by any one of such persons (5) in reference to their common intention, (6) after the time when such intention was first entertained by any one of them (7) is relevant: (a) as against each of the persons believed to be so conspiring, (b) for the purpose of proving the existence of the conspiracy and (c) for the purpose of showing that any such person was a party to it. 4.5.1 Rationale It should be borne in mind that both IPC, 1860, and Evidence Act, 1872, were enacted in the wake of the so-called Sepoy Mutiny of 1857353 and, consequently, the reach of section 10 of Evidence Act, 1872 and section 120A of IPC, 1860 was designed to be very wide.354

Page 2 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY In the Statement of Objects and Reasons of the amendment it was said: Experience has shown that dangerous conspiracies are entered into in India, which have for their object aims other than the commission of the offences specified in S.121-A of the I.P.C. and that the existing law is inadequate to deal with modern conditions. The present Bill is designed to assimilate the provisions of the Indian Penal Code to those of the English Law with the additional safeguard that, in the case of a conspiracy other than a conspiracy to commit an offence, some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes criminal conspiracy a substantive offence...

Normally, under criminal law, a person is liable for what he has said, done or written which amount to an offence but one person is not held liable for another person’s actions. The application of the doctrine of vicarious liability355 is very rare under criminal law.356 The Indian Evidence Act, 1872 makes two major exceptions to this general rule of criminal law and they are: (1) section 10 (Conspiracy), and (2) section 30 which permits proof of confession of an accused against other co-accused if its conditions are satisfied. The offence of conspiracy is based on the principles of Partnership and Agency357 and just as in a partnership every partner is a principal and agent vis-a-vis every other partner, in a criminal conspiracy, being a partnership in crime, every conspirator is in a similar situation as against other conspirators. Like partners, conspirators are jointly and severally liable for the actions of the other conspirators in the pursuit of the objectives of the conspiracy.358 Thus, “the acts done by any one in furtherance of their common purpose is considered to be the acts of all.”359 Agreement—the Basic Principle In Yash Pal Mittal v State of Punjab, AIR 1977 SC 2433 : (1977) 4 SCC 540 : (1978) 1 SCR 781, the Supreme Court observed: (a) agreement, concert or league is “the ingredient of the offence” (b) it is not necessary that all of the conspirators should know each other or every detail of conspiracy; and (c) there has to be unity of object and purpose but there may be plurality of means unknown to others.360 In Quinn v Leatham, (1901) AC 495 : [1901] UKHL 2, it was aptly pointed out 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 in intention only, it is not indictable.

Russell361 observes: The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.

Neither common intention nor common object nor common action is by itself sufficient to prove conspiracy, but it is intention, object and action flowing from prior agreement that is the essence of conspiracy. It is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.362 James Stephen observed that the “definition of common law conspiracy is so wide that ‘it is capable of almost indefinite extension.’”363 Thayer observes that the principle that holds one man criminally liable for the actions of another is not really a rule of evidence but a rule of substantive law.364 But, the dangerous potentialities of the principle have procedural aspects also as an accused in the conspiracy cannot cross-examine the other accused whose actions or statements are being used against the former.365 However, as has been held by the Supreme Court of New Zealand in John Douglas McKenzie v R, [2013] NZSC 109, para 15, “the inability to cross-examine will always be the case with co-conspirators’ statements and therefore this is not a basis for exclusion.” 4.5.1.1 Criticism of Rationale

Page 3 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY The rationale of section 10 of Evidence Act, 1872 and its counterpart of section 120A of IPC, 1860, have come in for criticism for their over-reach on the grounds that the sections: 1. Extend the civil law concept of vicarious liability to criminal law and make a person liable for what another man has done on the basis of mere agreement. 2. A tort which is not a crime when committed by one acting alone becomes a crime when committed by two under an agreement.366 3. A person can be guilty of Criminal Conspiracy to commit a crime by merely entering into an agreement even though he will not be guilty of even an attempt to commit the same crime if acting alone.367 4. This inchoate, incipient crime starts much earlier than attempt and even preparation as there is no requirement of proximity between common intention and commission of the crime.368 5. Agreements to commit even petty offences are also covered.369 6. In England it has been held that conspiracy to “corrupt public morals”370 also falls under this category and it may be further extended to include “a dubious area of non-criminality”.371 7. “A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused.... In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused.”372 4.5.2 What is Conspiracy? Conspiracy and Abetment Under section 10, conspiracy arises when two or more persons come together to commit an offence or actionable wrong. “Conspiring together” consists of sharing the common intention and “the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.”373 “Offence” in this section would include any offence under IPC, 1860 or any other criminal law of India.374 “Actionable wrong” means a tort. Hence, under section 10, conspiracy means an agreement to commit any offence or a tort.375 As mentioned in the discussion under section 8, conspiracy, attempt and abetment are treated as inchoate offences.376 In fact, it was observed that prior to the insertion of Chapter VA in IPC, 1860, conspiracy was a mere species of abetment.377 Section 107 of IPC, 1860 dealing with the offence of abetment provides: A person abets the doing of a thing, who— First.— Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to dis close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

Page 4 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Thus, the offence of abetment consists of the elements of (1) instigation; (2) engaging with one or more “other” persons in any conspiracy; (3) aiding; and (4) facilitating the commission of an act. Section 107 expressly mentions in the clause “secondly” that a person abets the doing of a thing if he “engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.”378 Hence, a person can commit abetment of a thing by conspiring with one or more persons for the doing of that thing by an overt act of commission or omission in (a) pursuance of that conspiracy and (b) in order to the doing of that thing. So, this clause deals with abetment of the commission of an offence by participation in a conspiracy. If A engages in a conspiracy with B and C to kill D, A is said to abet the murder if an overt act is done in pursuance thereof.379 Section 108, Explanation 4 says: The abetment of an offence being an offence, the abetment of such an abetment is also as offence. Illustration: A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.380

In the case of Somasundaram @ Somu v State Rep by Dy Comm of Police,381 2016, the two-judge Bench of the Supreme Court considered the question of whether the accused who was acquitted under section 120B, IPC, 1860, could still be convicted under section 109. section 109 provides: Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment.— Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

As has been mentioned above, under section 120B, if the conspiracy is to commit an offence and not an actionable wrong, no proof of some overt act besides the agreement is necessary. It is important to note that under section 107 quoted above: 1. If the abetment is done by instigation, under Clause “First” mere instigation is an offence under section 116 whether the act abetted is done or not;382 2. On the other hand, if abetment is done by conspiracy, under Clause “Secondly”, it becomes punishable only “if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing”. Thus, some overt act is necessary even if the abetted act is not completely done. 3. Consequently, under section 120A, the primary offence of Criminal Conspiracy is committed by mere agreement and without an overt act if the conspiracy is for the commission of an offence, but under section 107 “Secondly” the separate and independent offence of abetment by conspiracy is committed only if some overt is done in pursuance of that conspiracy to abet and not otherwise. In Somasundaram, referred to above, the two judges gave a split decision as to whether in that case prosecution succeeded in proving the charges under section 109 read with other sections like section 302, section 364 of IPC, 1860, but agreed that: (a) Sections 120B and 109 create two different substantive offences, and (b) Criminal conspiracy (section 120A) and Abetment by Conspiracy (section 107, “Secondly”) are two different offences and they cannot be conflated; and (c) For Criminal Conspiracy, to abet an offence under sections 120A and 120B, no overt act is necessary as the agreement is per se an offence, whereas for the independent offence of Abetment by Conspiracy under sections 107/109, overt act is necessary. Gopala Gouda, J, held:

Page 5 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY

Thus, for Section 109 of IPC, it is not enough to show a conspiracy. It has to be taken a step further. What needs to be proved is an act committed in furtherance of that conspiracy. Once the charge under Section 120B of IPC falls, in order to convict the accused appellants under Section 302 read with Section 109 IPC, or Section 365 read with Section 109 IPC, what was needed to be established was the happening of some overt act on the part of the accused appellants.383

Arun Mishra, J, held: The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated.384 It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (a) instigation, (b) conspiracy, or (c) with the aid constituting abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 is unnecessary and inappropriate.385

4.5.3 Section 10 Interface with IPC 1860—Conspiracy and Preparation and Attempt—Overt Act It is necessary for proper understanding of the scope of section 10 to have a look into the definition and the reach of the provisions of IPC, 1860, dealing with the offence of criminal conspiracy. As classically defined by Lord Denman in R v Jones, (1832) 4 B & Ad 345, at p 349 : 110 ER 485, “conspiracy” is “an agreement to do an unlawful act or a lawful act by unlawful means”.386 “Unlawful” here is not limited to the criminal and extends beyond to include all types of unlawfulness like tort. The Law Commission of India observed that “a conspiracy to commit or induce breach of contract is probably not indictable at the present day.”387 Lord Denman’s definition appears to have influenced the drafting of section 120A of IPC, 1860388 which defines a “Criminal Conspiracy” as follows: When two or more persons agree to do, or cause to be done— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. The word “illegal” occurring in clause 1 above is defined in section 43 of IPC, 1860, as meaning “every thing which is an offence or which is prohibited by law or which furnishes ground for civil action.” Though section 34, IPC, 1860, like section 10, Evidence Act, 1872, also deals with liability for committing “criminal acts” with common intention, it does not define a “criminal act.” In Barendra Kumar Ghosh v Emperor, (1925) ILR 52 Cal 197 : 52 Ind App 40, the Privy Council defined the expression “criminal act” thus: A criminal act means that united criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone, that is, in a criminal offence.389

It was held that “criminal act” in the case of conspiracy “is the result of the concerted action of the more than one person; if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself.”390 Section 40, IPC, 1860 defines “offence”391 and provides: “except in the chapters and sections mentioned in clauses 2 and 3 of this section, ‘offence’ denotes a thing made punishable by this Code”, that is, an offence under IPC, 1860. But Clause 2 of this section mentions, inter alia, Chapter VA (Criminal Conspiracy) of IPC, 1860, and extends the scope of the definition of offence so as to also cover offences under Special Law392 and Local Law.393 A thing “which is prohibited by law” would include offences under any other criminal statutes like Immoral Traffic Act, 1956, and Narcotic Drugs and Psychotropic Substances Act, 1985, which fall within the definition of Special Law under section 41. A thing “which furnishes ground for civil action” means a tort or civil wrong.394 While a tort committed by one person is not a crime but only a civil wrong, an agreement to commit the same tort by two or more persons would amount to a crime if an overt act is done.395 Thus, the scope of the definition of conspiracy is, in effect,

Page 6 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY identical both under section 10 of Evidence Act, 1872 and section 120A of IPC, 1860. However, it is important to note that under the proviso to section 120A of IPC, 1860, “no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”396 Thus, (a) while a mere agreement to commit an offence under (i) IPC or under any (ii) Special Law or (iii) Local Law is per se an independent offence under section 120A, (b) mere agreement to commit a tort is not an offence under section 120A unless an overt act is committed in pursuance of the agreement by any of the conspirators. The Doctrine of Merger397 will not apply for (a) above as the offence of conspiracy is not considered as a “lesser offence” and does not merge with the offence committed or attempted, and the conspirators will be liable for both the offence of criminal conspiracy and the offence committed or attempted in pursuance thereof.398 Doctrine of Merger is not applied to the offence of conspiracy in many jurisdictions. The principal reason is that though conspiracy is treated as a species of an inchoate offence on par with attempt in the sense that both are preparatory stages in the commission of the intended crime, conspiracy and attempt are different species and conspiracy is not the same thing as attempt. As was seen in the discussion under section 8 above, attempt is merely a stage in the commission of the transaction of a crime whereas conspiracy is a crime altogether different and distinct from the intended crime. Attempt per se is punishable only if the intended crime is not completed but merges with it if it is completed; whereas, conspiracy is per se punishable even if the intended crime is not even attempted, and much less completed.399 Hence, the punishment for attempt merges with the punishment for the completed crime, but punishment for conspiracy does not merge with punishment for commission of intended crime even when the crime is committed. The characteristic features of conspiracy vis-à-vis preparation and attempt are noteworthy. As pointed out in the discussion under section 8 above under the heading “Preparation as Proof of Motive”, conspiracy is in a real way a preparatory stage for the commission of the intended offence, “parasitic offence”. Typically, preparation is not per se punishable, but conspiracy even though a preparation for the intended offence is itself treated as an independent offence by law as there is a ganging up of two or more persons to commit an offence in concert. A preparation by a single person may not be punishable by itself, but it acquires sinister dimensions and becomes punishable when two or more persons gang up. Thus, conspiracy, as an inchoate offence, is akin to preparation than attempt as a stage in the commission of an offence. This situation may be compared and contrasted with a case where one person steals a revolver in preparation to kill another person and the theft of the gun by one person is itself a preparatory offence separate and distinct from the intended murder. Whereas conspiracy as a preparatory stage is punishable because two or more persons have agreed to execute the common intention, theft of gun by a single person is punishable because of the overt act of stealing with an intention to take the gun and with the motive of committing murder. As Brett, J, aptly observed in R v Aspinall, (1876) 2 QBD 48, at p 58: It is not necessary in order to complete the offence, that any one thing should be done beyond the agreement. The conspirators may repent and stop and may have no opportunity or may be prevented or may fail. Nevertheless, the crime is complete; it was completed when they agreed.

4.5.3.1 Conspirator and Accomplice—Distinction400 As mentioned above, conspiracy basically consists of two or more persons coming together to share a common intention to commit an offence. So, a conspirator is a partner in the commission of a crime. An accomplice, on the other hand, is a person who abets, aids and assists a principal in the commission of a crime before, during or after its commission.401 A study of comparison and contrast between the two is useful. •

The basis of liability for conspirator is sharing of common criminal intention. Accomplice is liable because of the assistance given to the principal and a prior agreement is not required.

•

Conspiracy is per se an offence, apart from the offence committed in furtherance thereof. Hence, a conspirator is liable for future offences commonly intended, and also even if the planned offences are not committed because conspiracy is different from offences intended or committed. An accomplice is liable for the offences actually committed or attempted.402

•

Conspirators are all equal partners and equally liable, irrespective of their presence and of the degree of participation. They share a relationship of partnership and agency, and each is a principal and an agent vis-à-vis the other. In Common Law, there can be principals and accomplices of the first degree and second degree depending on their presence. Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice’s presence makes him just as guilty as the person who does the deed itself.

Page 7 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY •

Conspirator and accomplice are equally liable for the offences committed by the other conspirator or principal, as the case may be. Conspirator is liable for the offences committed even if he has no prior knowledge if those offences come within the ambit of common intention. Accomplice is liable for the commission of offences which he knew would be usually committed.

4.5.3.2 “Conspiracy”—Transfer of Malice R v Gnango (UK) The vexing problems concerning the definition of conspiracy came into sharp focus in the House of Lords decision in R v Gnango, [2011] UKSC 59. On 2 October 2007, a 26-year-old woman, MP, was returning home through a car park. She was killed during an exchange of fire between two gunmen, BM and Gnango. MP was killed by a bullet from BM’s gun, but he was never apprehended. Gnango was charged and convicted of murder on the grounds of joint enterprise. The Court of Appeals classified Joint Enterprise (JE) into three categories: 1. D1 and D2 jointly commit robbery. 2. D2 aids and abets D1 to commit a single crime by providing, for instance, a gun to commit robbery. 3. D1 and D2 participate together in committing a single crime robbery and in the course of it D1 commits a second crime, for instance, murder which D2 has foreseen he might commit. In the trial Court, an attempt was made to argue that Gnango was liable under the first type as he and BM had been engaged in a joint enterprise to shoot each other and be shot at—a conspiracy of deadly duel. But in the Court of Appeal, this argument was not pursued on the ground that D2: was the intended victim of the other man. The appellant neither intended nor consented to bodily injury to himself at the hand of the other man nor could he truly be said to have been party to a joint enterprise to kill or cause harm to himself.

It is obvious that an agreement to have a duel is different from a suicide pact. Hence, the prosecution rested solely on the third type, ie, that BM and Gnango entered into a joint enterprise to commit the crime of exchanging fire in a public place (affray), with the foresight that murder might be committed when they shot at each other. Thus, if having a fight in a private place is not a joint enterprise, is having a fight in a public place causing an affray a joint enterprise? The trial judge in his directions to the jury indicated that there could be a joint enterprise to commit affray.403 However, the Court of Appeal found that it could not be argued that Gnango and BM had a common enterprise to commit an affray, as it could not be said that they shared a common purpose that each would use unlawful violence against each other. The court ruled that: the existence of a joint enterprise in committing crime A is ... essential to liability. That joint enterprise can either rest on an agreement or common purpose to commit crime A or simple aiding and abetting crime A.

The Court considered that: simple participation in the affray with foresight [that a third person might get hurt], but without a joint enterprise to commit the affray was insufficient to sustain the conviction.

The Court, therefore, allowed Gnango’s appeal, and quashed his conviction for the murder of MP. “Victim Principle” On appeal, the House of Lords by a majority (5-1) “resurrected” the prosecution’s abandoned trial Court argument that there was a JE between BM and Gnango to have a shoot out, and that Gnango was liable for the murder of MP on transfer of malice. Lord Phillips, who wrote the judgment, thought that the prosecution did not pursue that “direct route” because prosecution thought that the so-called “victim principle” would come in its way. This principle is traced to the decision in R v Tyrell, [1894] 1 QB 710, where the question was whether a girl who was of the age

Page 8 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY between 13 and 16 and lacked the age of consent could be held liable for abetting a man to have unlawful sexual intercourse with her under the Criminal Law Amendment Act, 1885. In Tyrell, it was held that she could not be held guilty as she was the victim of the offence and she came under the category of “Protection of Women and Girls” of that Act.404 Lord Phillips said that in Gnango, the victim was not Gnango but PM, a third party405 and, hence, the victim principle would not have applied to save Gnango.406 In the ultimate analysis, Lord Phillips held: 1. “A guilty verdict in this case involves a combination of common law principles in relation to aiding and abetting and the common law doctrine of transferred malice.”407 This was justifiable on considerations of (a) “what the public would be likely to consider the requirements of justice”,408 and (b) as Lord Mustill held,409 the doctrine of transfer of malice “is useful enough to yield rough justice, in particular cases, and it can sensibly be retained notwithstanding its lack of any sound intellectual basis.” 2. BM and G had a JE in which Gnango had aided and abetted BM in his own attempted murder by agreeing to the shoot-out and to engage in unlawful violence designed to cause death410 or serious injury, where death resulted. “The two gunmen should each be liable for MP’s murder”411 and “whether the respondent is correctly described as a principal or an accessory is irrelevant to his guilt.”412 3. “It was a matter of fortuity which of the two fired what proved to be the fatal shot. In other circumstances it might have been impossible to deduce which of the two had done so” and “the respondent and [BM] had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander.”413 On the basis of transfer of malice, Gnano would be liable for the murder of PM. State of Rajasthan v Ram Kailash @ Ram Vilas, AIR 2016 SC 634 : 2016 (1) Scale 604 In the above case, one RC and MR, the pillion rider, were going on a motor bike and they were followed by another motor bike driven by ML with RK as the pillion rider and by another motor bike with GR and DR. MR shouted that someone from the bike behind fired upon him. It was the accused RK who fired from his pistol. MR died of the gunshot injuries six days later. The accused/respondent was charge-sheeted under sections 302, 120B, IPC, 1860 and under Arms Act, 1878, and the accused GR was booked under sections 302/34 and 120B, IPC, 1860. Another accused DR was also charged under the same sections. Both RC in his deposition and the deceased MR in his dying declaration identified RK as the person who fired upon MR. Pursuant to the discovery statement under section 27, Evidence Act, 1827, of the accused/respondent, the pistol and cartridges were recovered from the nearby forest. The trial Court convicted the accused under section 302 and awarded life imprisonment, fine under IPC, 1860, and Arms Act, 1878. On appeal, the High Court held that “the offender was not knowing that as to whom he is causing harm out of the two on the motorcycle” and as there was only single gunshot and as the accused lacked the requisite intention, the conviction was converted into one under section 304, Part II, IPC, 1860. On State appeal to the Supreme Court, the Court held that: the reason given by the High Court that, the respondent did not know as to whom he was causing harm out of the two on the motorcycle and it was only one gunshot injury which resulted in death is not tenable in law.

The Apex Court further held that: The High Court has failed to take into consideration the doctrine of transfer of malice as provided in Section 301 of the Court.

Further: it cannot be believed that respondent-accused did not know about the likelihood of causing death, though, he may not know as to whom he is causing bodily harm, but his act in totality and in the light of evidences on record clearly prove the ingredients of Section 300, IPC.

Consequently, the Supreme Court set aside the judgment of the High court and restored the conviction and sentence passed by the Trial Court under Section 302, IPC, 1860, read with other sections of the Arms Act, 1878.

Page 9 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY It is not clear from the case report whom the accused wanted to shoot out of the two that were going on the bike in front. The accused could not have shot the driver as he must have been covered by the pillion rider when they were shot at from behind. The High Court held that “the offender was not knowing that as to whom he is causing harm out of the two on the motorcycle”. If the accused was not aiming at a particular person, and he just shot at the two riders going in front, his intention could have been to kill either of the two as he fired only one shot. In that scenario, as the accused fired the shot at and succeeded in killing the pillion rider, the accused would be liable for the murder of the pillion rider and attempt to murder the rider. On the other hand, if there was evidence to show that the accused wanted to kill the rider and instead killed the pillion rider unintentionally, the doctrine of transfer of malice would have been applicable and he would have been liable for culpable homicide under section 301, IPC, 1860. As the other two accused were acquitted, the charge of criminal conspiracy failed. In Shankarlal Kachrabhai v State of Gujarat, AIR 1965 SC 1260 : (1965) 1 SCR 287, K Subba Rao, J, said: Some illustrations will clarify the point. Four persons intend to kill A, who is expected to be found in a house. All of them participate in different ways. One of them attempts to enter the house, but is stopped by the sentry and he shoots the sentry. Though the common intention was to kill A, the shooting of the sentry is in furtherance of the said common intention. So sec. 34 applies. Take another illustration. If one of the said accused enters the room where the intended victim usually sleeps, but somebody other than the intended victim is sleeping in the room, and on a mistaken impression he shoots him. The shooting of the wrong man is in furtherance of the common intention and so sec. 34 applies. Take, a third variation of the illustration. The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim, on a mistaken impression, shoots the twin brother. The shooting of the twin brother is also in furtherance of the common intention. Here also sec. 34 applies. If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim. When the accused were shooting at Rama believing him to be Madha they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha.414

Appraisal of Gnango The majority judgment in Gnango has come in for criticism on the ground that the Court seemed to be more concerned about the policy of putting down mob violence415 as is evident from its references to public perceptions of justice and the need to offer “rough justice.”416 Keeping the rationale of Gnango aside, what is the take away for Indian students of these issues from the point of legal liability and burden of proof? •

It is untenable to say that two persons who are involved in a fight with guns or knives, each being aware that he is risking death by such actions, have “conspired together” to kill each other. Each wants to kill the other but each wants to save himself from the other. Intention to kill is reciprocal but not a shared one. A fortuitous duel cannot be a conspiracy.

•

A suicide pact is different from a fight, and intention to die is common and shared by all the parties to the suicide pact. Hence, there can be a criminal conspiracy to commit suicide.

•

If in a duel between A and B, A kills B, A will be guilty of culpable homicide not amounting to murder. Exception (5) to section 300 says: “Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” •

•

•

If somebody intervenes and stops a gun fight (not a duel), both A and B can be charged with attempt to murder each other.

If in a suicide pact between A and B, A survives and B dies, A will be guilty of •

Criminal conspiracy to commit suicide;

•

Abetment of B to commit suicide;

•

Attempt to commit suicide.

If the gun shot fired by A at B misses and hits C and kills him, A will be liable under section 301417 by transfer of malice for the offence of “culpable homicide”. Section 301 does not specify whether it is mere culpable homicide or murder and states that it will be “of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” Thus, if A and B were involved in a JE of a duel, B would be liable for culpable homicide not amounting to murder

Page 10 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY under section 300, Ex. 5, but if it was just a shoot out and not a duel, B would be guilty of murder under the initial part of section 300.418 •

If in a suicide pact between A and B, both eat a halva mixed with poison, and when they were lying unconscious, their kids go there and eat the sweet and die and A and B survive, •

A and B will be jointly liable for Conspiracy to commit suicide;

•

A and B will be liable for the attempt to commit suicide;

•

A and B will be liable for the culpable homicide of their kids.

4.5.3.3 Conspiracy and Offence Intended—Distinct Offences A person may become a party only to the offence of conspiracy and not to the offence committed in furtherance of that agreement. Conversely, a person who participates in the joint commission of the offence pursuant to the agreement may be deemed to have become party to that agreement by such participation as agreement can be implied from conduct419 and can arise at the time of such participation itself, even by mere presence.420 Over-ruling the decision of the Madras High Court,421 the Supreme Court held in State of Andhra Pradesh v Kandinalla Subbaiah, AIR 1961 SC 1241 : (1962) 1 SCR 194 : (1961) 2 Mad LJ 198: We are unable to accept this view. Conspiracy to commit an offence is itself an offence and a person can be separately charged with, respect to such a conspiracy. There is no analogy between s. 120B and s. 109 I.P.C. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment. The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear.422

It has been pointed out by the Apex Court:423 It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary, namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made.

If A and B (1) enter into conspiracy (2) to abet C (3) to commit the murder of D and (4) C consequently commits the murder of D,424 what are the consequences? 1. A and B are liable for Criminal Conspiracy under section 120B and no overt act is necessary as the conspiracy to commit an offence and not a mere tort is an offence per se. 2. A and B are liable for the offences of (a) Criminal Conspiracy under section 120B; (b) (i)

abetment of C under sections 107 and 109. A and B will be liable for abetment of C for the overt act of instigation even if C has not committed the murder of D.

(ii) If C has committed the murder of D as instigated, A, B and C will be liable for murder also under section 302. 3. C liable is for murder of D 4. A and B are liable as abettors for the murder of D by C as if they themselves committed the murder and are liable for the same punishment. Thus, in Somasundaram @ Somu v State Rep by Dy Comm of Police, 2016,425 Gopala Gouda, J, observed: Thus, for Section 109 of IPC, it is not enough to show a conspiracy. It has to be taken a step further. What needs to be proved is an act committed in furtherance of that conspiracy. Once the charge under Section 120B of IPC falls, in order to

Page 11 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY convict the accused appellants under Section 302 read with Section 109 IPC, or Section 365 read with Section 109 IPC, what was needed to be established was the happening of some overt act on the part of the accused appellants.

In the Australian case of Huynh v R, [2013] HCA 6, the High Court pointed out that “liability for conspiracy” should not be “conflated” with “with liability for the offence that is the subject of the conspiracy”426 and observed: Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. .... The work done by the doctrine is in making other parties liable for those acts. .... Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.427

The High Court proceeded to hold that “a person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement.”428 In Robert Agius v R, [2013] HCA 27, the High Court held that a conspirator who was charged with conspiracy under the later repealed Crimes Act of 1915 and held guilty, could also be held guilty under the repealing statute of Criminal Code of 1995, section 135 (4), if “Agius’ continued participation in the agreement was capable of constituting the offence” under the new Code though there is no fresh agreement entered into after the coming to force of the Code. It was also held that that would not amount to giving retrospective effect to the Code. This is so because the two distinct and separate offences of (1) criminal conspiracy (agreement) and of (2) its execution initiated under the legal regime of 1915 Act can telescope into the new legal regime of the 1995 Code by the offence of its continued execution. In the case of R v JF, 2013 SCC 12 : [2013] 1 SCR 565, the Supreme Court of Canada, resolving the earlier conflict of Provincial decisions,429 held in a landmark judgment that an accused can be held to be a party only to the agreement between conspirators to commit an offence without his being held, without further proof, to be party to the offence committed in furtherance thereof. The Court raised the interesting question: Should party liability be restricted to those who aid or abet the agreement that forms the basis of the conspiracy, or does party liability extend as well to those who aid or abet the furthering of the unlawful object of the conspiracy?430

The Court observed: Like all conspiracies, conspiracy to commit murder is a form of inchoate liability. The crime is complete when two or more persons agree to kill a third party. No one need be killed; nor is it necessary that any steps be taken to bring about the murder.431... as a matter of law, a person can be found liable as a party to the offence of conspiracy. Once that is accepted, I see no reason in principle or policy why the limited form of party liability ...should not be criminalized....432 agreement is a central element to the offence of conspiracy. Conversely, an act done in furtherance of the unlawful object is not an element of the offence of conspiracy. Although such acts can serve as circumstantial evidence to support the existence of a conspiracy, they are not themselves a component of the actus reus of conspiracy. Indeed, a conspiracy can be established in the absence of any overt acts done in furtherance of its unlawful object. In other words, “[t] he crime of conspiracy is complete once the agreement is reached”433

Referring to proof of conspiracy, the Court pointed out: Conspiracies are often proved by way of circumstantial evidence. Direct evidence of an agreement tends to be a rarity. However, it is commonplace that membership in a conspiracy may be inferred from evidence of conduct that assists the unlawful object...434 Party liability should be restricted to conduct that aids or abets the formation of the agreement that comprises the essence of the crime of conspiracy. In all other cases, a conviction for conspiracy will not lie absent proof of membership in the conspiracy.435

A Critical Question

Page 12 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY As referred to above, the Australian High Court has held in the case of Huynh v R, [2013] HCA 6, that “liability for conspiracy” should not be “conflated” “with liability for the offence that is the subject of the conspiracy”.436 K Ramaswamy, J, speaking for the Bench in Ajay Agarwal v UOI, AIR 1993 SC 1637 : 1993 (3) SCC 609 : (1993) 3 SCR 543, said: Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.

Then, the question is: What are the limits of liability of a member of the offence of conspiracy for each and every offence committed by the other members in furtherance of the common intention of the conspiracy, irrespective of extent of participation by that member? If he is not so liable, what are the implications of “joint and several liability” under section 34 of IPC, 1860 and section 10 of the Evidence Act, 1872? Section 34 says: “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” As pointed out by Koka Subba Rao, J,437 “the expression ‘in furtherance of the common intention of all’ was not in the original section, but was inserted in the section by section 1 of Act XXVII of 1870.” In other words, under section 34 what is done collectively by the criminals is attributed to each of them individually. Section 149, IPC, 1860, appears to provide for the converse attribution when it states: Every member of unlawful assembly guilty of offence committed in prosecution of common object---If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Then the question is whether under section 10 also what is done individually by the conspirators in furtherance of common intention is attributable to others also collectively and individually. In State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 564 : (2005) 11 SCC 600 : (2005) Cr LJ 3950, P Venkatarama Reddi, J, observed: We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefore are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.

In other words, what Venkatarama Reddi, J, is saying is that the principle of agency applies to the source offence of conspiracy but does not extend to the consequential offences, vis-a-vis non-participant conspirators. For instance, if A and B enter into a criminal conspiracy to rape a woman and B rapes her and A (a) may not be present at all or (b) may only be passively present at the scene of the crime. In case A is absent at the time of rape, he cannot be held guilty of the offence of rape but will be guilty of the offence of conspiracy to commit rape. But even if A was present at the time of rape, can it be said, as Reddi, J, implies, that, as section 375 of IPC, 1860, requires that certain acts are to be done by A for him to be held guilty of rape, A cannot be held guilty of the rape committed by B? Prima facie, this sounds eminently reasonable. Hand, J, in United States v Falcone, 109 F2d 579 (2d Cir 1940), emphasized that: this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.

Page 13 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY But, the Courts have held that mere presence of a conspirator at the scene of the crime amounts to participation.438 The last part of the lone illustration to section 10 states that “A” is liable “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.” It means that the illustration is extending the principle of agency which is the basis of section 10 to all the offences that the conspirators might commit in furtherance of common intention. Otherwise the very purpose of section 10 will be defeated and there will be no difference between offences committed in furtherance of prior agreement and offences committed without such agreement. In State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 518 : 1999 (3) Scale 241, Wadhwa J, said: One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.

Wadhwa, J, proceeded to state: When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them.439

It is true that section 10 itself does not state that every conspirator is so “deemed”440 as Wadhwa, J, said, but the illustration necessarily implies that. Section 34, IPC, 1860, a definitional/explanatory provision, makes it abundantly clear and states: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.441

Under section 111, IPC, 1860: When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Proviso--Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.

Thus, section 111 extends abettor’s liability even if “a different act is done” provided two tests are satisfied: (1) the act was “a probable consequence of the abetment” and (2) the act “was committed under the influence” of instigation or conspiracy.442 In the example of rape mentioned above, if A and B enter into a criminal conspiracy to rape a woman and B rapes her and A is only present at the scene of the crime, the rape committed by B was not even “a different act” but the same act contemplated by the conspirators. Appraisal The legal position emerging out of the interface between section 10 of the Evidence Act, 1872 and sections 120A and B and 34 of IPC, 1860, is that section 10 imputes or ascribes a level of constructive liability based on the principles of partnership and agency that deems a conspirator liable for (1) the offence of Conspiracy by mere partaking in the common intention with other conspirators (section 120A), and (2) for any offence intended by doing some overt act in the execution of the common intention. Section 10 comes into operation for the purpose of making relevant “anything said, done or written” by the conspirators “after the time when such intention was first entertained by any one of them”. In that sense, section 10 is concerned essentially (a) not with proof of primary offence of Criminal Conspiracy but (b) with proof of the commission of the resultant offence or tort in furtherance of common intention. For triggering the rule of evidence in section 10, mere “reasonable round to believe” is sufficient, though proof beyond reasonable doubt will be necessary for proving an offence through the facts made relevant by section 10. Under section 120A, IPC, 1860, the agreement between conspirators is perse an overt act to constitute the offence of Criminal Conspiracy to commit a crime and nothing more is needed unless the agreement is to

Page 14 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY commit a tort. Thus, while section 10 deals with proof of second stage of resultant offence or tort, section 120A deals with the first stage of Criminal Conspiracy. What is important is that liability for the primary offence of Criminal Conspiracy cannot be “conflated” with liability for the resultant offence unless the conspirator who has participated in the antecedent agreement has also participated, by at least his presence, in the commission of the resultant offence. In the absence of even that minimal participation, a conspirator may be liable only for the primary offence of conspiracy to commit an offence and not for the resultant offence committed by other conspirators who were parties to the agreement. Conversely, mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of section 34, unless community of design is first proved against him.443 In case common intention and prior agreement are proved, mere presence of a conspirator at the time of commission of the intended offence may suffice to infer participation but the mere fact that he was seen without taking any part in the crime without proof of common intention will not be a ground for foisting liability under section 10.444 In Sanjay v State of UP, AIR 2016 SC 282, para 15 : (2016) 3 SCC 62 : 2016 (1) Scale 137, where A1 fired at deceased at his head, and A2 fired on another and injured her neck, stomach and leg, it was contended that A2 could not be held guilty of the murder committed by A1. The Court held that the contention had no force “as the conduct of the accused and the manner in which the crime has been committed is sufficient to attract section 34 IPC as both the accused acted in furtherance of common intention.” As was held in Virendra Singh v State of MP, (2010) 8 SCC 407 : (2010) 9 SCR 772 : JT 2010 (8) SC 319, “unless common intention and participation are both present, this section cannot apply.” It should be borne in mind that sections 34 and 120A, IPC, 1860, and section 10, Evidence Act, 1872, are equally applicable to all kinds of offences, whether homicidal or involving physical violence or white-collar or any other,445 and physical presence of the accused at the scene of the offence may not be necessary to prove his participation. In Jaikrishnadas Manohardas Desai v State of Bombay, AIR 1960 SC 889 : (1961) 1 SCJ 42 : (1960) 3 SCR 319,446 the Directors of a company who were entrusted with certain goods belonging to the Government, failed to account for these goods, and were convicted under section 409 read with section 34, IPC, 1860, by the Sessions Court and the conviction was upheld by the high Court. On appeal to Supreme Court, JC Shah, J, pointed out: ...presence of the offender sought to be rendered liable under s. 34 is not, on the words of the statute, one of the conditions of its applicability... But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places.

Hence, it was held that though the prosecution was unable to prove exactly where the accused were during the long period during which the goods could have been misappropriated, the conviction was not illegal merely on that account. 4.5.4 UK Abolishes Common Law Offence of Conspiracy It may be noted that in England the Criminal Law Act of 1977 “generally abolished”447 the Common Law relating to “misdemeanour”448 of conspiracy.449 Section 5 (1) states “the offence of conspiracy at common law is hereby abolished” subject to certain exceptions like a new statutory offence of conspiracy, which “redefined”450 conspiracy in terms of an agreement to commit any offence (section 1 (1)) and conspiracy to defraud (section 5 (2)).451 Section 5 (3)(a) preserves the offence of conspiracy at common law of entering into an agreement to engage in conduct which— (a) tends to corrupt public morals or outrages public decency; but (b) would not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement. Section 118 of the Criminal Justice Act of 2003 of UK dealing with “Preservation of certain common law categories of admissibility” provides in Clause (2) that “With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished.” Among the rules of law which are preserved by section 118 (7) is “Common Enterprise” which states: “Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.” The terms “common enterprise” obviously includes criminal conspiracy and joint trial of offenders452 but the admissibility of hearsay is limited only to “a statement made by a party to a common enterprise against another party to the enterprise as evidence of any matter stated.”

Page 15 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Accessory Liability—Landmark Decisions of UK and Australia (2016) R v Jogee, [2016] UKSC 8453 (UK)—(2016) In a far-reaching, landmark judgment in the above case, the Supreme Court of UK also sitting as Privy Council in Ruddock v R, [2016] UKPC 7, reviewed the principle of “parasitic accessory liability”454 propounded by the 30-year old judgment of the Privy Council in Chan Wing-Siu v R, [1985] AC 168 and the decisions that followed it.455 The Supreme Court considered that principle as “a serious and anomalous departure from the basic rule.” The “basic rule” was well stated by Lord Parker, CJ in R v Anderson, [1966] 2 QB 110 : [1966] 2 WLR 1195: Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but...if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act....It is for the jury to decide whether what was done was part of the joint enterprise, or went beyond it.

Under that rule, (1) two persons are equally liable for (2) the acts done in pursuance of the JE, (3) including a. the unusual consequences b. if they arise from the execution of the agreed JE; but (4) if one of them goes beyond what has been tacitly agreed as part of JE (5) the other person is not liable for the consequences of that unauthorized act. Thus, the distinction between “principal” and “accessory” is irrelevant as both are equally liable for each other’s acts, irrespective of degree of participation, assistance, or even presence. In fact, in Jogee, the Supreme Court said that “the expression ‘joint enterprise’ is not a legal term of art”, and “it is used in practice in a variety of situations to include both principals and accessories.”456 The Court said: Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other.457

It is said that it was in R v Hyde, 1991] 1 QB 134, [1990] 3 WLR 1115, “where the slope begins.”458 Lord Lane, CJ said: If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the ventures.

Thus, continued participation in the “venture” by B even after “realizing” that A may kill or intentionally inflict serious injury is sufficient to hold B guilty of murder if in fact A kills with requisite intent. There is no requirement of tacit agreement or authorisation of any sort. The culmination of this “wrong turn”459 was Chan Wing-Siu v R, [1985] AC 168. In Jogee, the Court said: From our review of the authorities, there is no doubt that the Privy Council laid down a new principle in Chan Wing-Siu when it held that if two people set out to commit an offence (crime A), and in the course of it one of them commits another offence (crime B), the second person is guilty as an accessory to crime B if he foresaw it as a possibility, but did not necessarily intend it.

Page 16 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY The Court further held: ...we do not consider that the Chan Wing-Siu principle can be supported, except on the basis that it has been decided and followed at the highest level. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. We recognise the significance of reversing a statement of principle which has been made and followed by the Privy Council and the House of Lords on a number of occasions. We consider that it is right to do so for several reasons.460

The reasons stated by the Court are: 1. The Privy Council judgment, moreover, elided foresight with authorisation, when it said that the principle “turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied”. Contemplation and authorisation are not the same at all.461 2. Secondary liability includes cases of agreement between principal and secondary party, but it is not limited to them.462 3. The long established principle that where parties agree to carry out a criminal venture, each is liable for acts to which they have expressly or impliedly given their assent is an example of the intention to assist which is inherent in the making of the agreement. Similarly, where people come together without agreement, often spontaneously, to commit an offence together, the giving of intentional support by words or deeds, including by supportive presence, is sufficient to attract secondary liability on ordinary principles.463 4. In the common law foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over-extension of the law of murder and reduction of the law of manslaughter.464 5. The rule requiring mere foresight as sufficient for the accessory liability brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal.465 The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.466 Criticizing Chan Wing-Siu, Wilson and Ormerod467 state: What moral principle demands that I take responsibility not simply for the consequences of my own choices and those choices of my co-adventurer which I happen to share but also those which I do not share but happen to contemplate that he may, with a following wind, make at some stage in the future?

After expressing its “disapproval” of Chan Wing-Siu, the Court in Jogee proceeded to lay down “a clear statement of the relevant principles”: •

“The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.”468

•

“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.”469

•

The above principle “is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction.”470

“The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law” as laid down in Chan Wing-Siu and the other cases that followed it.471 In other words, the application of the reiterated principle to the earlier cases and their “outcome of the trial” or the convictions, as the case may be, will have to be done on a case-by-case approach on their own merits. This process has been commenced by the Court of Appeal with R v Johnson, [2016] EWCA Crim 1613.

Page 17 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Australia—Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions, [2016] HCA 30 (2016) The above decision was rendered by the High Court of Australia subsequent to the English case of Jogee discussed above, and referred to it and disagreed from it. Miller, Smith and Presley were all convicted of the murder of Hall following a trial in the Supreme Court of South Australia. The deceased was fatally stabbed by Betts in the course of an assault to which Miller, Smith and Presley were said to be parties. Liability for the murder of the deceased was left in each case on the basis of either joint criminal enterprise or extended joint criminal enterprise. In this case, the Court is asked to review the doctrine of complicity in the criminal law known as “extended common purpose” or “extended joint criminal enterprise”. In Miller, the High Court stated that the doctrine as enunciated in McAuliffe v R, (1995) 183 CLR 108 : [1995] HCA 37: holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.472

In Clayton v R, [2006] HCA 58, the High Court was asked to review and overrule McAuliffe on the ground, inter alia, of “‘over-criminalising’: attaching criminal liability to the secondary offender in circumstances in which his or her moral culpability is suggested not to justify that liability.”473 In Clayton, by majority, the Court declined to do so. Among the majority’s reasons for that refusal was the observation that principles consistent with McAuliffe form part of the common law in other countries.474 As discussed above under Jogee, these principles are commonly traced to the decision of the Privy Council in Chan Wing-Siu v R, [1985] AC 168, which was overruled in Jogee for taking a “wrong turn”. In Miller, the Court thought that “Jogee makes it appropriate to reconsider McAuliffe” but declined to overrule it as “the principle of extended joint criminal enterprise liability stated in McAuliffe should remain part of the common law of Australia.”475 The Court said: The paradigm case of joint criminal enterprise liability is where the parties agree to commit a robbery and, in the course of carrying out their plan, one of them kills the intended victim with the requisite intention for murder. Applying the principles of joint criminal enterprise liability..., the secondary party is equally liable if the parties foresaw murder as a possible incident of carrying out the agreed plan.476

The Court, quoted with approval,477 the observation of Sir Robin Cooke in Chan Wing-Siu that the principle: turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.

The Court also referred478 to the observation in McAuliffe479 that “the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and whether the foresight is that of an individual party or is shared by all parties.” The High Court held: [A] joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (“the incidental crime”) committed by a co-venturer that is within the scope of the agreement (“joint criminal enterprise” liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability).480

New Zealand—Cecilia Victoria Uhrle v R, [2016] NZSC 64

Page 18 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY In the above case, the Supreme Court of New Zealand declined to follow the House of Lords and Privy Council decisions in Jogee and Ruddock referred to above. In Cecilia Victoria Uhrle, a case involving party liability in a conspiracy case, the trial judge directed the jury that: the Crown had to prove beyond reasonable doubt that the commission of either murder or manslaughter was known to the applicant to be a probable consequence of prosecuting the common purpose.

It was contended by the appellant that this direction was not in conformity with the decision in Jogee. The Supreme Court pointed out that in Jogee: the United Kingdom Supreme Court held that there must be an intention to commit the particular offence (that is, offence 2), rather than simply foresight of it as a possibility. Such foresight might be evidence of the requisite intention, but was not by itself sufficient to establish liability.

The Court held that “in New Zealand the position is covered by section 66 (2)” of the Crimes Act of 1961 which provides: Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Hence, the Court held: The italicised words [in S. 66 (2) above] set out what the Crown must establish in New Zealand in relation to B and offence 2 in the example given at [3] above. The Crown must establish beyond reasonable doubt that B knew that the commission of offence 2 was a probable consequence6 (In the sense of being something that might well happen) of undertaking offence 1 – an intention to commit offence 2 is not required. The Court is not free to depart from the clear language of s 66 (2).481

Appraisal The above discussion of R v Jogee, [2016] UKSC 8 and Miller v R, [2016] HCA 30 decisions makes it clear that the main point of departure is the unwillingness of the House of Lords in Jogee to apply the Sir Robin Cooke’s “broader principle” of Chan Wing-Siu v R, [1985] AC 168 of extended accessorial liability of inferring the “intent to assist” from mere “foresight” on the part of the accessory that the principal might commit an offence during the execution of common enterprise. Jogee considered that foresight on the part of the accessory might be proof of his intent to assist and nothing more, and that the broader principle would “over-criminalize” the “parasitic liability” of the accessory. On the other hand, in Miller, the Australian High Court was unwilling to overturn Sir Robin’s broader principle for the principal reason that foresight coupled with participation in the joint venture is as good as intent to assist. As Lord Steyn said in Powell:482 the foresight of the secondary party must be directed to a real possibility of the commission by the primary offender in the course of the criminal enterprise of the greater offence. The liability is imposed because the secondary party is assisting in and encouraging a criminal enterprise which he is aware might result in the commission of a greater offence.483

As His Lordship said: In the real world proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases.... The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed.484

Page 19 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 4.5.5 “Reasonable Ground to believe” In State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253 : 1999 (3) Scale 241, the Apex Court observed that “the first condition which is almost the opening lock of that provision is the existence of ‘reasonable ground to believe’ that the conspirators have conspired together.” In Sardar Sardul Singh Caveeshar v State of Maharashtra, AIR 1965 SC 682 : (1964) 2 SCR 378, Koka Subba Rao, J, (as he then was) observed aptly: This section, as the opening words indicate 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 or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators.

In Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883 : (1988) 3 SCC 609 : 1989 Cr LJ 1, the Court held: This Section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Sec. 120-A where it is provided “When two or more persons agree to do, or cause to be done.”

Thus, the application of the second part of section 10 is contingent upon there being a reasonable ground under the first part. For the application of section 10, it is sufficient that there is a reasonable ground to believe485 that conspiracy exists, and strict proof of conspiracy is not needed as, obviously, it is the proof of conspiracy that is sought to be achieved by the section. Conspiracies are hatched in secrecy and executed in darkness and often the only proof that is available is circumstantial evidence.486 To bring the accused within the long arm of the section, it is enough if the prosecution can adduce prima facie evidence to persuade the Court to believe that a conspiracy is afoot. As was stated in Aizaz v State of UP, (2008), per Arjit Pasayat, J, para 7487 Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons.

Prima facie evidence of presence of the accused at the same time and place and whatever was said, done or written by them could form the basis or ground for the belief. In Rishideo Pande v State of UP, AIR 1955 SC 331 : 1955 Cr LJ 873, it was held that it is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from surrounding circumstances and conduct of the parties. In Laxman v State of Maharashtra, AIR 1974 SC 1803 : (1974) 3 SCC 490 : 1974 Cr LJ 1271, it has been held that intention to kill can be inferred from the number and nature of the injuries caused to the deceased. In Harshad Singh @ Baba Pahalvan Singh Thakura v State of Gujarat, AIR 1977 SC 710 : 1977 Cr LJ 352 : (1976) 4 SCC 640, it was observed that conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. In L K Advani v CBI, (1997) 66 DLT 618 : 1997 Cr LJ 2559, it was held that mere entries regarding payments made for the alleged illegal gratification without any further proof of their purpose or involvement of other conspirators did not attract section 10. In Baliya @ Bal Kishan v State of MP, (2012) 9 SCC 696 : (2012) 8 SCR 1154 : 2012 (10) Scale 12, it was held that: the alleged participation of the accused in the commission of the actual act of murder cannot be evidence of the conspiracy in as much as the commission of murder must be the result of the conspiracy already hatched.

4.5.5.1 Can Confessions, Statements Recorded under sections 161, 162 and 164, Cr PC, 1973, be Used for showing “reasonable ground” section 10, Evidence Act, 1872? A crucial question is whether prosecution can use the confessional statements recorded by the Magistrate under section 164, Cr PC, 1973, or by the Superintendent of Police under section 15, Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), or other statements or confessions made by the accused to enable the Court to

Page 20 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY come to the initial prima facie conclusion that “reasonable ground to believe” exists for the application of the long arm of the second part of section 10. As is discussed above under the heading “In Reference to Their Common Intention”, the Courts, right from Mirza Akbar case (1940), have consistently held that anything said, done or written would be relevant under section 10 only if they were said or done when the conspiracy was still afoot as to future implementation of common intention and not as to past events after the conspiracy was terminated. Confessions recorded under section 164 are mostly statements made after the crime is committed and the accused is arrested. The question is whether such confessions and statements made after the conspiracy has ended can be used, though barred under the second part of section 10, for the “limited purpose” of the initial part for showing that “reasonable ground to believe” exists within the meaning of section 10. In State (NCT of Delhi) v Navjot Sandhu, AIR 2005 SC 564 : 2005 AIR SCW 4148 : (2005) 11 SCC 600, Mr Gopal Subramaniam, appearing as prosecuting senior counsel, argued that the relevance of such statements under section 10 cannot be whittled down with reference to the point of time when the statement was made. If that interpretation is to be adopted, there would hardly be any evidence which could be admitted under section 10 for the reason that the statements would necessarily be made by the witnesses after the termination of conspiracy. He said that the exclusion of post-arrest statements of the conspirators even for that “limited purpose” is not warranted by the language employed in the section and it makes section 10 nugatory. The Supreme Court held: Though, in our view, the Section can still play its role, we find some force in this contention. But, it is not open to us to upset the view reiterated in a long line of decisions.... In the light of the foregoing discussion, we have no option but to reject the contention of Mr. Gopal Subramanium on the interpretation of Section 10, though not without hesitation. However, in view of the fact that confessional statement is not being relied on, the question of applicability of Section 10 fades into insignificance.

4.5.5.2 Appraisal The judgment of the Supreme Court in State (N.C.T. Of Delhi) v Navjot Sandhu@ Afsan Guru, AIR 2005 SC 3820 : 2005 CrLJ 3950, is justified not only on the ground of binding precedents of the vintage of Mirza Akbar but also on other grounds. •

As pointed out above, the Supreme Court has held that section 10 has to be split into two parts—the initial first part to show “reasonable ground to believe” as a precondition for the second part of “in reference to common intention” and the post-conspiracy statements have to be excluded under the second part. Hence, it is untenable to permit the very same statements under the first part to show “reasonable ground”.

•

The trial Court is bound to be influenced by the post-conspiracy statements which are expressly excluded by the second part as per the interpretation of the provision by the Courts for nearly 80 years.

•

It will open up the flood gates and statements recorded not only under section 164, Cr PC, 1973 but also statements under sections 161 and 162 will become admissible for the so-called “limited purpose” of showing “reasonable ground to believe” and render the second part and its interpretation by top Courts totally otiose and nugatory.

•

In Jameel Ahmed v State of Rajasthan, AIR 2004 SC 588 : 2003 AIR SCW 6078 : (2003) 9 SCC 673 a case arising under TADA, after a survey of the earlier cases on the subject said: “We have already noticed that this provision of law is a departure from the provisions of Sections 25 to 30 of the Evidence Act, 1872. As a matter of fact, Section 15 of the TADA Act operates independent of the Evidence Act, 1872 and the Code of Criminal Procedure.” The non obstante clause in the opening part of section 15 of TADA merely permits proof of confessions made to police officers of certain rank superseding the provisions of Cr PC, 1973, and Evidence Act, 1872, applies only to section 25 but not to section 10.

4.5.6 “Two or more Persons” It is necessary under section 10 that the prosecution has adduced reasonable ground to believe that two or more persons were involved in the conspiracy. If, at a later stage of the proceeding, the initial belief of the Court on the basis of prima facie evidence is displaced by disbelief that the conspiracy exists, it is clear that the Court cannot convict one accused only on the basis of things said, done or written by the other accused, and the reception in evidence of such evidence against the former will be impermissible under section 10.488 Hence, even if evidence of things said, done or written by one conspirator was initially allowed to be adduced as against other accused to show that a reasonable ground existed to believe that there was a conspiracy, when once the Court was not persuaded about the existence of the conspiracy, such evidence can only be looked at as against the maker and not as against

Page 21 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY other accused. Thus, if at a later stage, the Court comes to the conclusion that at least two persons are not involved in the commission of the offence and discharges the other accused, the Court cannot convict the sole accused on the basis of what has been said, done or written by such other accused. It is, however, important to note that the degree of participation by the conspirators need not be the same to attract section 10.489 When assailants in a crowd are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants.490 It may not be necessary that all members should take part in the actual assault.491 In Barendra Kumar Ghosh v Emperor, AIR 1925 PC 1, it was observed that “in crimes as in other things ‘they also serve who only stand and wait’”.492 In Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : (1955) 1 SCR 1177 : 1955 Cr LJ 857, it has been held: .... it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape.

4.5.6.1 Wharton’s Rule Francis Wharton, the well-known American authority on Criminal Law postulated the rule as follows: An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.493

The examples of such offences given by Wharton are: bigamy, incest, and adultery. Wharton’s rule prohibits the prosecution of two persons for conspiracy to commit a particular offence, when the offence in question can only be committed by at least two persons. Hence, two persons cannot be charged with conspiracy to commit bigamy because bigamy can be committed by two only. It is also possible that charging persons with the offence of conspiracy to commit bigamy instead of the offence of bigamy could result in evading the limit on punishment also,494 as punishment for bigamy under section 494, IPC, 1860, is seven years and for conspiracy to commit bigamy under section 120B (2) would be six months’ imprisonment. As stated in United States v Figueredo, 350 F Supp 1031 (MD Fla 1972): The theory behind the Rule is that where certain crimes, such as adultery, require the concerted action of two persons, these persons cannot be charged with a conspiracy to commit the offense. The conspiracy is merged into the substantive offense, or at least is such an integral part of it that the two cannot be considered separate offenses.... To charge the two persons with both the substantive crime and with a conspiracy to commit the crime would be grossly improper, for the substantive offense cannot logically be committed without a conspiracy. Thus conspiracy is an inherent element of the substantive offense, and should not be made an additional crime.495

Applied to Indian scenarios, the moot issues are: •

•

•

If A and Mrs B conspire to commit adultery, ∘

A is liable for adultery; but

∘

he is not liable for conspiracy to commit adultery under Wharton’s Rule;

Though Mrs B is not liable under section 497, IPC, 1860, for adultery: ∘

she could be protected from the charge of conspiracy to commit adultery on the basis of “Victim Principle” mentioned in Gnanon496 discussed above as section 497 is intended for her protection497; and

∘

She is protected from charge of conspiracy also under Wharton’s Rule.

To take another example, if A has sexual intercourse with B on the urging and abetment by B, a girl who is aged 15 years and below the age of consent of 16 (under section 375, ‘Sixthly’, IPC, 1860), ∘

A is liable for rape;

∘

A is not liable for conspiracy to commit rape under Wharton’s Rule;

Page 22 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY ∘

Though B is not of age of consent for rape, she is not doli incapax under section 83 as she is above 12 and can be guilty of the offence of conspiracy; but,

∘

She will be protected under the “Victim Principle” from the charge of conspiracy as section 375, “Sixthly” is intended to protect her; and

∘

She will be saved from the charge of conspiracy also under Wharton’s Rule.

4.5.6.2 Court’s Powers under section 319 Cr PC, 1973 An interesting question that arises in this regard is: Can the Court arrive at the conclusion, albeit interim, that there is “reasonable ground to believe” that C was also a part of the conspiracy hatched by A and B even though the prosecution has charged only A and B of the conspiracy to commit the particular offence and not C? In other words, is the Court’s belief contingent upon and pre-conditioned by the prosecution’s belief that two or more persons are involved? In the English case of Harbans Singh v The Crown, [2011] EWCA Crim 2992, Harbans Singh was charged with conspiracy to cheat the public revenue along with Bhabdeep Chahal and was convicted. At this trial, Ms Sarbjit Kaur Singh, the wife of Harbans Singh, was originally a co-defendant but the prosecution offered no evidence against her and she was acquitted. At the second trial also involving Harbans and Bhabdeep, Ms Sarbjit Kaur was not indicted as a conspirator because of insufficient evidence and the prosecution itself was doubtful of her role. Bhabdeep’s testimony showed that Ms Kaur played a role as a conspirator but his evidence could not have been used against Ms Kaur unless she was also charged with conspiracy. The trial Judge Mayo advised the jury that it was open to the jury to arrive, on the basis of evidence, at the conclusion that Ms Sarbjit was also a conspirator even though the prosecution chose not to charge her because of insufficient evidence. The Court of Appeal dismissed the appeal and held that the trial judge was right in his advice to the jury and that “it was however open to the jury to conclude, from the evidence as a whole, that Sarbjit was a conspirator even though the prosecution were not seeking to allege that she was.”498 Section 319 of Cr PC, 1973, provides, inter alia, in clause (1): “Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.”

In Raghubans Dubey v State of Bihar, AIR 1967 SC 1167 : 1967 2 SCR 423 : 1967 Cr LJ 1081, the Supreme Court held that: once cognizance has been taken by the Magistrate, ...it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.

The Law Commission of India has expressed the opinion that under section 319 “obviously, that offence should be connected with the one for which the original accused is under trial.”499 The interpretation of the above section was authoritatively laid down in Hardeep Singh v State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86, where on a reference to the constitutional bench of five judges,500 the Supreme Court considered the question as to the scope and extent of the powers of the Courts to arraign any person as an accused during the course of inquiry or trial as contemplated under section 319 of Cr PC 1973. Stating that the power under section 319 “is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial”501 and that it “is a discretionary and an extra- ordinary power....to be exercised sparingly” the Apex Court held: ...we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of cvharge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.502 In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

Page 23 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY The Supreme Court also held that the word “evidence” used in section 319 “means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents”503 and “not on the basis of materials available in the charge sheet or the case diary”504 but “has to be understood in its wider sense” so as to include both at the stage of trial and even at the stage of inquiry preceding the trial.505 As the Madras High Court has observed “this provision has been made by the law-makers only to ensure that the real culprits in serious offences do not escape without facing the trial at the whims and fancies of the police”, or if the Magistrate “while taking cognizance has, by inadvertence, failed to summon him as an accused.”506 Thus, in Hardei v State of UP, (2016) 2 Mad LJ (Cr) 382 : 2016 (3) Scale 511, the Court observed that “the fact that Police chose not to send up a suspect to face trial does not affect power of the trial Court under S.319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial.” 4.5.7 “Anything Said, Done or Written” Under section 10 anything said, done or written by any of the conspirators can be proved as against the others. In murder cases, it often becomes impossible to specify with certainty which of the conspirators has delivered the fatal blow on the victim. Section 34, IPC, 1860, states: “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”507 Like section 10, section 34 has been held to be “only a rule of evidence and does not create a substantive offence.”508 In Emperor v Barendra Kumar Ghosh, (1925) 27 Bom LR 148, Lord Sumner referred to the appellant’s contention that: in Section 34 a criminal act, in so far as murder is concerned, means an act which takes life criminally within Section 302, because the section concludes by saying “is liable for that act in the same manner as if the act were done by himself alone”.

His Lordship observed: By way of illustration it may be noted that, in effect, this means, that, if three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one.

Lord Sumner said that “if this construction is adopted, it defeats itself, for several persons cannot do the same act as one of them does” and “the result is that s. 34, construed thus, has no content and is useless” and “such a proposition was not worth enacting.”509 Similarly, if two persons do two acts “neither act without the other would have been fatal; so that the fatal effect was the cumulative result of the acts of both.” If appellant’s contention is accepted, “both will be acquitted of murder, and will only be convicted of an attempt, although the victim is and remains as murdered man.”510 Hence, Lord Sumner held that “‘a criminal act’ means that unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence.”511 As has been held by Supreme Court in Girija Shankar v State of UP, AIR 2004 SC 1808 : (2004) 3 SCC 793 : 2004 (2) Scale 205: the true concept of Section [S. 34] is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.... The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

In Nanak Chand v State of Punjab, AIR 1955 SC 274 : 1955 SCR (1) 1201 : 1955 Cr LJ 721, the Apex Court held: In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.

Page 24 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY In other words, the resultant offence could be a composite offence constituted by different acts committed by different persons at even different times (as mentioned in the illustration to section 10) each triggered by and bound together by the running thread of common criminal intention. IL v The Queen, [2017] HCA 27, High Court of Australia—Doctrine of Attribution For many decades, in Criminal Law relating to conspiracy and joint liability, and in Civil Law of vicarious liability in tort, the doctrine of attribution512 is the basis of fixing the contours of joint enterprise liability so that acts of one person could be attributed to his partner in the enterprise. As observed in Pandurang, Tukia and Bhilia v State of Hyderabad, AIR 1955 SC 216, para 32 : (1955) 1 SCR 1083 : 1955 Cr LJ 572,513 “it requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all.” It is the common intention that is the link that joins and the buckle that fastens the conspirators and is the basis of attribution of the acts of one to the others. As the Constitution Bench has held in Mohan Singh v State of Punjab, AIR 1963 SC 174 : 1962 SCR Suppl (3) 848, the essential constituent of the vicarious criminal liability prescribed by section 34 is the existence of common intention. In Jai Bhagwan v State of Haryana, AIR 1999 SC 1083 : (1999) 3 SCC 102 : 1999 (1) Scale 372, the Supreme Court held: If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked.

In IL v R, [2017] HCA 27, the appellant and the deceased were participants in a joint criminal enterprise (JE) to manufacture a large commercial quantity of a prohibited drug, methylamphetamine. A ring burner attached to a gas cylinder was lit in a small and inadequately ventilated room during the commission of that crime, causing a fire which led to the death of the deceased. However, the Crown could not prove whether it was the appellant or the deceased who lit the ring burner. So the Crown submitted at trial that even if it were the deceased who lit the ring burner, his suicidal act could be attributed to the appellant with the result that his act could be the “act of the accused” for the purposes of murder or manslaughter under section 18 of the Crimes Act, 1900 (NSW). As the High Court said, “the most elementary difficulty with the Crown case”514 was whether the suicide by the deceased could be attributed to the accused as a part of JE and whether the accused could be held liable for that though the deceased is not liable as he is dead. The Court observed: There should not be anything surprising in the notion of attributing the acts of one person to others with a common criminal purpose where the person’s acts are in the course of, or incidental to, carrying out a common criminal purpose. The same principle applies in civil cases, where, apart from cases of employment or agency, “to constitute joint tortfeasors two or more persons must act in concert in committing the tort”.515

Then, is the accused liable for an act though the deceased is not? In this context, the Court referred to its own earlier decision in Osland v R, [1998] HCA 75 : (1998) 197 CLR 316 : (1998) 159 ALR 170, where Mrs Osland and her son David were tried for the murder of Mr Osland. The prosecution case was that the blows causing death were struck by David but that Mrs Osland acted in concert with him and both were charged as principals on a charge of murder.516 Both the accused pleaded self-defense and provocation and violent behavior by Osland. The jury convicted Mrs Osland of murder but was unable to reach a verdict in relation to David because the High Court said that “the jury’s failure to convict David Albion is to be taken to have resulted from its inability to reach a decision whether or not the prosecution had negatived self-defence and provocation.”517 Then, the critical issue was: were not the two verdicts “inconsistent” in the context of joint enterprise? The Court said: There is no necessary inconsistency between the conviction of a person who substantially contributes to the death of another and the failure to convict or, even, the acquittal of the person whose act is the immediate cause of death.518

The Court gave examples of an accused in JE who inflicted the fatal injury being acquitted for reasons of insanity incapacity, self-defence519 or convicted for reasons of provocation for an offence which is less than the offence for which the other accused is convicted.520 It is more accurate to call the accused who claims justification or excuse as a defence as a “non-responsible” agent and not as an “innocent” agent.521 The High Court, after discussing Osland which it said “resolved much confusion” about the doctrine of attribution, held in IL v R, [2017] HCA 27, para 30:

Page 25 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY

the liability of persons as accessories before the fact to murder (ie persons not present at the commission of the crime) was a form of derivative liability. So too was the liability derivative for persons who were “merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death”. But where two or more persons act in concert then any liability is primary. The acts of one are attributed to the others because they reached an understanding or arrangement that together they would commit a crime and the acts were performed in furtherance of that understanding or arrangement.

The Court proceeded to hold: The important point is that it is the acts which are attributed from one person (the actor) to another who shares the common purpose and, by attribution, becomes personally responsible for the acts. It is not the liability of the actor which is attributed.522

It is only the acts and not the liability that is attributed because in a given case there may not be any liability to be attributed as the actor is exempt because of an excuse or justification as a defence. 4.5.7.1 “In reference to their common intention” The terms “common intention” occur in both section 10 of Evidence Act, 1872 and section 34 of IPC, 1860 and the Courts have given identical connotation to both. It is said that common intention “is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances.”523 It is the single intention that is shared and “it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.”524 It is evident that cases to which section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention.525 On the other hand, section 149, IPC, 1860, dealing with the offence of Unlawful Assembly provides: Every member of unlawful assembly guilty of offence committed in prosecution of common object—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence

While the basis of section 34, IPC, 1860, is “common intention”, the basis of section 149, IPC, 1860, is ‘common object’.526 In Mahbub Shah v Emperor, AIR 1945 PC 118 : 49 Cal WN 678 : 47 Bom LR 941, it was held that common intention within the meaning of the section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan. In Devi Lal v State of Rajasthan, AIR 1971 SC 1444 : 1971 Cr LJ 1132 : (1971) 3 SCC 471 : 1971 III UJ 357 SC : 1971 (4) WLN 37, the Supreme Court held that: the words ‘in furtherance of the common intention of all’ are a most essential part of Section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. The common intention is anterior in time to the commission of the crime. Common intention means a pre-arranged plan.

While section 149 comes under the Chapter VIII on “Offences against Public Tranquility”, section 34 comes under Chapter II on “General Explanations”. Hence, it has been held that “an important feature” of distinction between the two sections is that “whereas Section 34 is an explanatory section and merely lays down a principle of criminal liability without creating a separate and distinct offence, section 149, I.P.C. on the other hand does create a separate and a distinct offence.”527 In Jaikrishnadas Manohardas Desai v State of Bombay, AIR 1960 SC 889 : (1960) 3 SCR 319, para 51 : (1960) 62 Bom LR 893, Gajendragadkar PB, J said: “Section 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders.” In Suresh v State of UP,

Page 26 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY AIR 2001 SC 1344 : 2001 (3) SCC 673 : (2001) 2 SCR 263, the Supreme Court said that section 34 “is a rule of evidence and does not create a substantive offence” and that it “recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention.” On the other hand, section 120A of IPC, 1860 creates a substantive offence of criminal conspiracy. It may be noted that section 34 employs the terms “common intention” and “of all”.528 In Mahbub Shah v Emperor, AIR 1945 PC 118 : 49 Cal WN 678 : 47 Bom LR 941, the Privy Council stated: “Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group.” As was held in Virendra Singh v State of MP, (2010) 8 SCC 407 : (2010) 9 SCR 772 : JT 2010 (8) SC 319: the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

But as held in Suresh: such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence.529

Sir James Fitzjames Stephen stated the English law relating to conspiracy as follows: When two or more persons conspire together to commit any offence or actionable wrong, any thing said, done or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done or written by every one and is deemed to be a relevant fact against each of them.530

While the English law requires that things said, done or written by the conspirators must be “in furtherance” of common intention, section 10 uses a different terminology and requires those actions to be “in reference to their common intention”. JV Ryan points out that “this section goes much further than the English law on the subject”.531 It may be noted that while the marginal note of section 10 refers to “common design”, the substantive part of the section speaks of “common intention” and, hence, both the terms may be taken to have been used interchangeably as synonyms. Interestingly, section 34 of IPC, 1860 dealing with joint and several liability of the accused acting in concert employs the phrase “in furtherance of common intention”532 and provides: Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Did Stephen intend to deviate from the English law while drafting section 10 of the Evidence Act, 1872, by employing the terms “with reference to” instead of “in furtherance of”? In R v Blake and Tye, (1844) 6 QB 126 , Blake was an employee at the Customs House and Tye was also working there as an agent of the importers. Blake and Tye were charged with conspiracy to get goods through customs without paying duty. Two documents were sought to be proved in proof of conspiracy. The first was the day book wherein Tye made false entries to facilitate the passage of goods through customs and the other was the counterfoil in his cheque book which showed he was paid money for his manipulation of records. The Court held that the entries in the day book were relevant as proof of execution of the conspiracy but the counterfoil was inadmissible as it was made after the conspiracy was over and was not “in furtherance” of conspiracy.533 A literal reading of the phrase “in reference to common intention” in section 10534 would suggest that the counterfoil in Blake’s case would have been relevant under that section. But the Courts in India declined to give that expansive interpretation to that phrase and interpreted section 10 in line with English law. In Emperor v Vaishampayan, (1931) ILR 55 Bom 839, on 9 October 1930, a police officer and his wife were shot at and wounded near the police station near Lamington Road in Bombay. The shots were fired by persons from a car parked on the other side of the road. Several persons were arrested and put on trial. One of the pieces of evidence that was sought to be proved was the statement made by an absconding accused to the approver stating that the conspirators have shot at the police officer and that a pamphlet should be brought out to preach and popularize the

Page 27 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY objectives of the conspiracy. The Court shifted the emphasis from the alleged distinction between “in furtherance” in English law and “with reference” under section 10, and focused its attention on the meaning of the term “intention”. The Court said: The word “intention” implies that the act intended is in the future and the section makes relevant statements made by a conspirator with reference to the future. I interpret the words “in reference to their common intention in reference to what at the time of statement was intended in the future.

What the Court was saying was that the very words “intention” and “to intend” look to the future and not to the past as one cannot be said to intend what has already happened, and that part of the statement which referred to the shooting of the police officer was a mere narration of a past event and, hence, inadmissible, whereas the other part relating to the need for publication of a pamphlet was suggestion for future action and relevant.535 In another leading case, Mirza Akbar v Emperor, AIR 1940 PC 180 : (1941) 43 Bom LR 20, the Privy Council further erased the difference between the English law and section 10. In that case, Mehr Taja, who was the wife of Ali Askar, developed illicit relations with Mirza Akbar and both got Ali Askar murdered through a professional killer Omar Sher. The letters exchanged between Mehr Taja and Mirza Akbar which contained crucial evidence of their criminal intention to get rid of Ali Askar,536 and Mehr Taja’s statements after her arrest were adduced in evidence against the accused. Disagreeing with the Courts below, the Privy Council held that the letters were relevant as they related to the future course of action of the conspirators but the statement of Mehr Taja after her arrest was not relevant as it was a narration of past events as the conspiracy already ended with its successful execution. Delineating the scope of relevance of statements under section 10 as laid down in Blake and Vaishampayan, Lord Wright pointed out that the statements could accompany and qualify the acts which are part of the conspiracy or the statements could themselves be the acts done in the course of conspiracy. Holding that Mehr Taja’s statements after her arrest related to “common intention...in the past”, His Lordship observed: The words ‘common intention’ signify common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention,... But it would be a very different matter to hold that 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 admissible against the other party. There is, then, no common intention of the conspirators to which the statement can have reference.537

In R v Saik, [2006] 2 Cr App R 26 : [2006] UKHL 18, Lord Nicholls made an interesting distinction between “intention” and “knowingly” as statutory elements of mens rea in a charge of conspiracy and observed: ... ‘intend’ is descriptive of a state of mind which is looking to the future. This is to be contrasted with the language of substantive offences. Generally, references to ‘knowingly’ or the like in substantive offences are references to a past state of affairs.... Thus on a charge of conspiracy to handle stolen property where the property has not been identified when the agreement is made, the prosecution must prove that the property which was the subject of the conspiracy would be stolen property.

The above judicial pronouncements have effectively clarified that the terminological difference between English law and section 10 did not result in any deviation in substance. 4.5.7.2 Proof of Requirement of M ens Rea for Conspiracy vis-à-vis the Intended Offence An interesting question that was considered in some English cases was whether the quality and level of mens rea required for the “parasitic”538 or secondary offence of conspiracy could be higher than the substantive offence intended to be committed. As was discussed above, under English law, a man is not guilty of rape when he has sexual intercourse with a woman with her consent or under a reasonable belief that she was consenting. For instance, if A and B enter into an agreement with a common intention to commit rape on a woman, and A and B fail to penetrate her in their attempt to rape her, there are in fact two offences: (1) conspiracy; and (2) attempt to rape by A and B.539 In the case of offence of attempt to rape, can they take the plea that they had reasonable ground to believe that she was consenting, a plea they could have taken if they penetrated her? Now, the question is: can the accused take the plea that they are not guilty of even the offence of conspiracy because they had reasonable ground to believe that she was consenting? Under section 10 of the Evidence Act, 1872, there must be common

Page 28 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY “intention” to commit an offence and produce the desired result and nothing short of it.540 In spite of differences between the two, conspiracy and attempt have one thing in common, viz, they are both inchoate offences.541 Can the requirement of mens rea be of lesser level for the commission of rape like “reasonable ground to believe” or “recklessness as to consent” than for attempt and conspiracy which require independent full-blown “intention”?542 With regard to attempted rape in R v Millward & Vernon, [1987] Crim LR 393, Mustill, LJ, posed the problem: When one turns to the offence of attempted rape, one thing is obvious, that the result, namely the act of sexual intercourse, must be intended in the full sense. Also obvious is the fact that proof of an intention to have intercourse with a woman, together with an act towards that end, is not enough: the offence must involve proof of something about the woman’s consent, and something about the defendant’s state of mind in relation to that consent. The problem is to decide precisely what that something is. Must the prosecution prove not only that the defendant intended the act, but also that he intended it to be non-consensual? Or should the jury be directed to consider two different states of mind, intent as to the act and recklessness as to the circumstances?

The same question arose in R v Khan, [1990] 2 All ER 783 : [1990] 1 WLR 813 (CA), where in a gang rape, some accused succeeded in committing rape but the defendant could not penetrate the girl but did acts which were more than merely preparatory and was charged with attempted rape. The jury found that the girl did not in fact consent to sexual intercourse. The trial judge directed the jury that the principles of recklessness as to consent were the same in the charge of attempted rape as well as in the charge of rape. He was convicted and appealed, arguing that it was impossible to have an attempted reckless rape.543 This submission was rejected by the Court. Russell, LJ, said: The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent....the attempt relates to the physical activity; the mental state of the defendant is the same ... Recklessness in rape and attempted rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse ... the attempt does not require any different intention on the part of the accused from that for the full offence of rape.544

Then, the question is: will the above logic apply in the case of conspiracy to commit a crime and the actual commission of crime? This question is more critical in India because criminal conspiracy is an independent offence under section 120A, IPC, 1860. The majority decision in R v Saik, [2006] 2 Cr App R 26 : [2006] UKHL 18, is an authority on the subject. In that case the charge of conspiracy under the Criminal Law Act of 1977 (containing definition of conspiracy) was to commit the offence of money laundering of the proceeds of crime under the provisions of the Criminal Justice Act, 1988. Under the 1988 Act, reasonable grounds for suspicion that the property represented the proceeds of crime sufficed. But it was held that in the case of conspiracy the provisions of section 1 (2) of the 1977 Act came into play and it had to be proved that the conspirator knew that the property was in fact the proceeds of crime or intended that it should be and mere suspicion would not suffice. Nicholls, LJ, of the House of Lords pointed out: the rationale...is that conspiracy imposes criminal liability on the basis of a person’s intention. This is a different harm from the commission of the substantive offence. So it is right that the intention which is being criminalised in the offence of conspiracy should itself be blameworthy. This should be so, irrespective of the provisions of the substantive offence in that regard.

His Lordship proceeded to state: It follows from this requirement of intention or knowledge, that proof of the mental element needed for the commission of a substantive offence will not always suffice on a charge of conspiracy to commit that offence. In respect of a material fact or circumstance conspiracy has its own mental element. In conspiracy this mental element is set as high as ‘intend or know’. This subsumes any lesser mental element, such as suspicion, required by the substantive offence in respect of a material

Page 29 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY fact or circumstances. In this respect the mental element of conspiracy is distinct from and supersedes the mental element in the substantive offence. When this is so, the lesser mental element in the substantive offence becomes otiose on a charge of conspiracy. It is an immaterial averment.545

In R v Pace and Rogers, [2014] EWCA Crim 186, the appellants were charged with criminal conspiracy of dealing with stolen metal scrap which was an offence under section 327 (l) of the Proceeds of Crime Act, 2002. The police, in an undercover operation, laid a trap and passed on innocent scrap to the appellants. The Court held that though under the Act mere “suspicion” that the scrap was stolen was sufficient, for the charge of conspiracy “intention’ or ‘knowledge’ was necessary: “a conspiracy to commit an offence... can require a higher level of mens rea than that applicable to the actual commission of the substantive offence itself.”546 The net result of Saik and Pace decisions is that though mere “suspicion” that the property was the proceeds of the crime was sufficient for the commission of the substantive offence, the mens rea required under the 1977 Act is much higher and the conspirators should “intend or know” that the property was in fact the proceeds of the crime. As Mustill, LJ, opined in R v Millward & Vernon, [1987] Crim LR 393, there was “nothing anomalous” about a situation where, so far as the mental element was concerned, it was easier to prove the substantive offence than the attempt or, for that matter, conspiracy.547 4.5.8 “As against each of the persons believed to be so conspiring” As pointed out already, under section 10, a conspirator is liable not only for his own actions but also for the actions of co-conspirators. In McDonald v R, [1960] SCR 186, the Supreme Court of Canada observed: It is true that on a charge of conspiracy the acts and declarations of each conspirator in furtherance of the common object are admissible in evidence as against the rest... The rule is, however, one which determines the admissibility of evidence as against a person who is a party to legal proceedings.

The last sentence in the above observation clearly shows that the persons by whom acts and statements are made and against whom they are adduced in evidence must have been parties to the same legal proceeding. In Badri Rai v Bihar, AIR 1958 SC 953 : 1959 BLJR 50 : (1959) 1 SCR 1141, a criminal case was pending against a goldsmith Ramji from whom stolen ornaments and molten silver were recovered. Ramji and Badri met the Inspector of Police on the road and promised to pay him a bribe if he would hush up the case against Ramji. The inspector told them that he would not discuss the matter on the road and that they should see him at the police station. The Inspector reported the matter to his superiors. Only Badri went to the police station and offered Rs 500 to the Inspector and told him that Ramji sent the money to hush up the case. The Supreme Court had to consider the question of whether the offer of bribe to the police officer by Badri and his statement that Ramji sent him and the money, was admissible in evidence as against Ramji. The Supreme Court held that meeting the police officer on the road by both Ramji and Badri and offer of bribe was clear proof of conspiracy entered into by them to bribe a police officer and consequently, whatever Badri did or said to the police officer at the police station was provable against Ramji under section 10. 4.5.8.1 Conspirators Liable Jointly and Severally As pointed out above, under section 34, IPC, 1860, the accused acting in concert are liable jointly as well as severally for the acts committed by them as if the acts were committed by each conspirator alone. In Amrita Lal Bose v The Corp of Calcutta, (1917) 42 Ind Cas 305, the question arose whether the three persons who were looking after a theater in Calcutta and committed a violation of the rule of the Municipality prohibiting performance of the theater beyond 1 am were liable to pay the maximum leviable fine of Rs 20 jointly or severally. The case went before the Full Bench of the Calcutta High Court548 on a reference by a Division Bench of the High Court. The Division Bench was inclined to disagree with the earlier opinion of another Division Bench in Amrita Lal Bose v Chairman of the Corporation of Calcutta, 40 Ind Cas 322 : 26 Cal LJ 29 : 21 Cal WN 10091 : 18 Cr LJ 674, which held that Rs 20 was the maximum leviable fine for the offence under the Municipal Rules and it could be collected for the offence and not from each offender. All the five judges of the Full Bench were agreed that (a) Amrita Lal Bose was wrongly decided, (b) that punishment for the offence meant punishment for the offender and (c) that each of the offenders had to pay the fine of Rs 20.549 Mookerji, J, raised the question: Why should a person who commits a breach of the bye-law, get a lesser punishment if he associates with himself several

Page 30 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY other persons as his accomplices? Should not the latter at any rate be regarded as abettors?550

While that would certainly lead to an “absurd position” in the case of criminal liability, what would be the position regarding liability for committing a tort by joint tort-feasors? Mookerji, J, observed: while in a civil suit for damages, however numerous the wrong-doers, the plaintiff is to be compensated for his loss only once, in a criminal proceeding, where each wrong-doer is as guilty as though the others were not guilty also, the full penalty must be inflicted on each precisely as if he had committed the crime unaided....The essence of the matter is that the proceeding has been instituted not to indemnify a person to the extent of the loss he may have suffered from a wrongful act, but to inflict punishment on the wrong-doer....there is prima facie no such thing as division of responsibility among the several participants in a crime.551

But then the question is what about criminal conspiracy to commit a tort? Section 120B of IPC, 1860 provides in Clause (2): Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Hence, in the case of criminal conspiracy to commit a tort each conspirator will be criminally liable to imprisonment up to six months and/or fine, as the case may be. Of course, they will be liable collectively to pay damages if they are sued in a civil action for tort also. 4.5.9 Section 10 vis-a-vis section 6 and Joint Trial under section 223, Cr PC, 1973 As, in the case of Conspiracy, two or more offenders commit one or more offences, the question arises regarding their joint trial. Section 223 of Cr PC, 1973 [section 239 of the old Code] deals with “what persons may be charged jointly” and the relevant provisions state: The following persons may be charged and tried together, namely:— (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) ...... (f)

......

(g) ...... Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.

Section 220 also deals with “Trial for more than one offence” which are committed “in connected together as to form the same transaction” but “committed by the same person” would not fall under that section. In Natwarlal Sakarlal Mody v State of Bombay, (1963) discussing the impact of section 120B, IPC, 1860, on sections 220 and 223 of Cr PC, succinctly sated the law as follows:

one series of acts so and hence, conspiracy 65 Bom LR 660 (SC), 1973, the Apex Court

The combined effect of the three provisions (ss. 235, 236 and 239)552 is that if there is a criminal conspiracy to commit

Page 31 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY different offences, the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of s. 239 (d) is that the offence should have been committed in the course of one transaction i.e., in the present case one and the same conspiracy.

In some cases, the Courts seem to have conflated the test applicable under section 6 of “facts forming part of the same transaction” and the tests applicable under section 223 (a) and (b) of Cr PC, 1973 of whether the accused can be “jointly charged and tried” for the same or different offences “committed in the course of the same transaction”, with the tests applicable under section 10 of “conspiring together” by sharing “common intention”. These decisions seem to imply that the joint and severable liability of conspirators under sections 120A and B of IPC, 1860 and section 10 of Evidence Act, 1872 depends on whether the offences committed by them “form part of the same transaction” so that they can be “jointly charged and tried” under clauses (a) and (b) of section 223 of Cr PC, 1973. It is noteworthy that the words occurring in section 220, viz, “series of acts so connected together as to form the same transaction” are not repeated in section 223 which employs the phrase “different offences committed in the course of the same transaction”. While the former formulation fits into section 6 terminology, the latter suits the ambit of section 10. However, in State of Andhra Pradesh v Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 : (1964) 3 SCR 297 : (1963) 2 Cr LJ 671, the Supreme Court clubbed together both the formulations and opined: The expression ‘same transaction’ occurring in cls. (a), (c) and (d) of S.239 [S.223 of new Code] as well as that occurring in section 235 (l) [S.220 of new Code] ought to be given the same meaning according to the normal rule of construction of statutes.... The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words “so connected together as to form” in cl. (a), (c) and (d) of s. 239 would make little difference.

In other words, the Apex Court was applying section 6 formulation to section 10 for deciding joinder of charges. This is evident from the following observation of the Court: it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction.

Following the above decision, in Balbir v State of Haryana, AIR 2000 SC 11 : 2000 (1) SCC 285 : 2000 (1) SCJ 1, the Apex Court observed that “the expression advisedly used is ‘in the course of the same transaction’. That expression is not akin to saying ‘in respect of the same subject matter’.” The latter expression does not occur in the statutes but was of Court’s own formulation. In R Dineshkumar @ Deena v State rep by The Inspector of Police, CBCID, Chennai, para 7 (2014), the second respondent, Venkatesh, was a party to the conspiracy to kill a person for a consideration of Rs 5 lakhs and took an advance of Rs 50,000 but failed to murder for lack of “valour” and roped in another person to execute the plan. However, the murder was committed by the other conspirators without the knowledge of Venkatesh. After the arrest of the other accused, Venkatesh made a confessional statement to the police under section 161 and later to a Magistrate under section 164 Cr PC, 1973. During trial and after examination in chief of Venkatesh, the Petitioner (fifth accused) filed a petition under section 319, Cr PC, 1973 to include Venkatesh as the accused but the petition was dismissed by the trial Court on the ground of privilege under section 132, Evidence Act, 1872 and Article 20 (3) of the Constitution as the replies given by Venkatesh were covered by the proviso to section 132.553 The High Court held: The Hon’ble Supreme Court had found distinction between the expressions in the course of the same transaction and in respect of the same subject-matter. Here in this case, the subject-matter of conspiracy between A2 and the 2nd respondent/P.W.64 and then between the 2nd respondent/P.W.64 and A3 and the last conspiracy between A2, A3 and the rest of the accused is one and the same viz., to do away with the deceased Vijayakumar. Though the subject-matter of all these conspiracies is one and the same, these conspiracies were not in the course of the same transaction.554

The High Court further held:

Page 32 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 1. If the prosecution wishes to examine a person who has got complicity in the crime as a prosecution witness, it is necessary that he has to approach the Magistrate under Section 306 of Cr.P.C.555 2. If Venkatesh was party to the conspiracy and he was not arrayed as an accused by the police, or by the Magistrate by “inadvertence”, Section 319 of Cr.P.C. could be invoked at a latter point of time during trial to summon him as additional accused and the request to summon him as an additional could not have been denied.556 3. However, “if some of the acts stand out independently, they would not form part of the same transaction”, but, it/they would constitute a different transaction or transactions.557 4. However, the conspiracy that resulted in murder in the present case was different from the conspiracy to which Venkatesh was a party and they did not form part of the same transaction.558 5. In the present case “though all the conspiracies relate to the same subject-matter, they do not form part of the same transaction”. Hence, Venkatesh could not be jointly tried with the other accused.559 6. Venkatesh was not entitled to any privilege under Art. 20 (3) as he was not an accused when he made the confessional statements, but was entitled to the privilege under S. 132, proviso as he must be deemed to have been compelled under the main part of S. 132. “Though, prima facie, it may appear that the said evidence was given voluntarily, in fact, it is out of compulsion by statute.”560 The outcomes of the above decision of the Madras High Court are: 1. The police could leave out one of the conspirators, Venkatesh, from the array of the accused in spite of his sections 161 and 164 statements. 2. The police could summon Venkatesh as a prosecution witness without tendering any pardon. As he was not an accused, section 315, Cr PC, 1973 could be got over and he could become PW without any written request on his part. 3. As he was not arrayed as an accused, Article 20 (3) will not apply, and section 306, Cr PC, 1973 could be got over and no pardon need be tendered. 4. Consequent to the above exercise, Venkatesh, the conspirator, virtually got a pardon without the rigmarole of a pardon. Hence, the High Court dismissed the revision petition to summon Venkatesh as an accused under section 319, Cr PC, 1973 because of his immunity under section 132, Evidence Act and the fact that he was not a party to the second conspiracy that resulted in murder. On appeal to the Supreme Court from the judgment of the High Court dismissing the revision petition, it was held that “the High Court rightly refused to summon PW64 as an accused to be tried along with the appellant and others.”561 However, the High Court also observed: If it is so held, then the 2nd respondent is liable to be tried along with the other accused in the present case, undoubtedly, the examination of the 2nd respondent/P.W.64 as a prosecution witness without there being an order of pardon is illegal. But, for any reason, if it is so held that the 2nd respondent/P.W.64 cannot be tried together with the rest of the accused in one and the same trial on the ground that these offences have not been committed in the course of the same transaction, then, there is nothing illegal in examining the 2nd respondent as a witness for the prosecution without pardon under Section 306 of Cr.P.C.

The Supreme Court observed that the High Court reached the above conclusion “without assigning any reason in support of such a conclusion.”562 The Supreme Court referred to its own judgments in Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938 : (1968) 2 SCR 624 and AR Antulay v RS Nayak, AIR 1988 SC 1531 : (1988) 2 SCC 602 : JT 1988 (2) SC 325, and the observation in AR Antulay: An accused person cannot assert any right to a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array a person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner, in crime, is a different matter. Prosecution can enter Nolle proseque [i] against any accused-person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration.563

Page 33 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Nonetheless, in Dineshkumar case, the Supreme Court was reluctant “to examine the proposition in the present case”, that is: whether the prosecution has a liberty to examine any person as a witness in a criminal prosecution notwithstanding that there is some material available to the prosecuting agency to indicate that such a person is also involved in the commission of the crime for which the other accused are being tried requires a deeper examination.564

It is submitted, with respect, that: (1) The question of whether there is in existence a conspiracy, and whether certain accused persons or certain offences committed by them should be considered as a part of the conspiracy, should be decided under sections 120A and 34, IPC, 1860 and section 10 Evidence Act, 1872 on the basis of whether the accused “conspired together” and shared “common intention” to commit an offence or tort; and (2) If they so conspired and committed certain offences, then the later question would be whether they can be jointly charged and tried for the offences of (a) conspiracy and (b) whatever other offences they might have committed in furtherance of common intention “in the course of the transaction of conspiracy”. In fact, section 223 employs the phrase “offences committed in the course of the same transaction” and this formulation is not same as “facts forming part of the same transaction” of section 6. Whether there is a conspiracy, whether certain persons acted in concert and whether certain offences were committed by them in the execution of common intention should not be decided on the basis of whether they can be charged and tried jointly under section 223 (a) and (d) of Cr PC, 1973 on the anvil of “facts forming part of the same transaction” of section 6 of Evidence Act, 1872 conflated with section 223 of Cr PC, 1973. It is the other way round: If some persons have committed the “transaction” offence of conspiracy by sharing common intention and also committed some other offences in furtherance of common intention, they can be charged and jointly tried under section 223 (a) or (d). After all, section 223 cannot be so construed as to override sections 120A and B, IPC, 1860, and section 10, Evidence Act, 1872. In fact, the Court emphasised that sections 220 and 223 are “enabling provisions”. The illustration to section 10 clearly demonstrates that what is required under that section is the binding and bonding factor of common intention and not concerted action on the part of the conspirators. Each conspirator might act independently and without the knowledge of the others, but his and other’s actions would come within the ring-fence of the umbrella “transaction” of conspiracy if they were acting in furtherance of common intention. There is a joint trial because it is conspiracy; it is not conspiracy because it is amenable to joint trial. In fact, the test of “facts forming part of the same transaction” has been applied in non-conspiracy, single-actor cases like Ratten, Bedingfield and Hadu because that test is a part of the generic concept of res gestae. Section 10 is a particular application of that generic concept and incorporates the specific test of community of purpose and design and, in fact, the heading of section 10 employs “in reference to common design”. Perhaps some of the conceptual confusion can be avoided if it is kept in mind that the term “transaction” is not used in section 223 of Cr PC, 1973 in the same sense in which it is used in section 6 of Evidence Act, 1872. In State of Andhra Pradesh v Kandinalla Subbaiah, (1962) 2 SCR 194, the Supreme Court held: If the alleged offences are said to have flown out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy.565

In fact, section 10 makes the preliminary determination by the Court at the commencement of the trial depends upon “where there is reasonable round to believe that two or more persons have conspired together” and this test should also be relevant in deciding the threshold stage of “charging and trying jointly” under section 223, Cr PC, 1973. The questions regarding whether and which conspirators were in fact privy to conspiracy and what offences can be considered to have been committed as a part of the same transaction are for final disposal of the case and not for the threshold of framing of charges. That will amount to prejudging the case. 4.5.9.1 Commencement and Termination of Relevancy under section 10 As pointed out above, at least two persons are necessary for the commission of criminal conspiracy under section 10 of Evidence Act, 1872 and section 120A of IPC, 1860. But the dangerous potentiality of section 10 is such that the application of the long reach of the section 10 starts “after the time when such intention was first entertained by any one of them”. Here “such” intention refers to the “common intention” but that could not have been “common” when first entertained by one of them and it is an intention that has become “common” subsequently. The last part

Page 34 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY of the lone illustration to the section says that a conspirator will be liable for the actions of the co-conspirators “although they may have taken place before he joined the conspiracy or after he left it.” The following illustration would highlight the reach of the section: 1. 1 January 2010: A first entertained the idea that the existing Government must be overthrown by a people’s war. He commits some murders and causes some explosions in busy areas to create panic and to subvert people’s confidence in the Government. A tries to convert others also to his ideology by distributing pamphlets, literature.. 2. 1 April 2010: B joins A and both commit some more offences in furtherance of their ideology. Conspiracy starts on this date as two persons are there. But B is liable for what A has done before he joined him because the last part of the illustration says “although they may have taken place before he joined the conspiracy or after he left it.” 3. 1 August 2010: C joins the conspiracy of A and B and the three commit some more offences. 4. 1 October 2010: D joins A, B and C and the four commit some more gruesome offences. 5. 1 January 2011: B is fed up with all the bloodshed and criminal activity and, in disgust and repentance, totally disassociates himself from the conspiracy and does not take part in the activities any more. 6. 1 April 2011: E, F and G join hands with A, C and D in the conspiracy and they commit more offences. 7. 1 August 2011: A, B, C, D, E, F and G are all arrested and put on trial for the conspiracy. With their arrest, conspiracy terminates. •

In the above illustration, though technically the conspiracy started on 1 April 2010 with two persons joining hands, the liability under section 10 commences from 1 January 2010 itself because that was the date on which “when such intention was first entertained by any one of them”. So the conspiracy starts with two but liability starts with one only.

•

So, B to G are all liable for the conspiracy and all the offences right from 1 January 2010 and up to 1 August 2011.

•

Though B washed off his hands and left the conspiracy in utter remorse on 1 January 2011, he is still liable even after he left the conspiracy for all the offences committed by all the other conspirators right until 1 August 2011, the date of their arrest and termination of conspiracy. This is the result of the last part of the illustration, ie, “although they may have taken place before he joined the conspiracy or after he left it.”566

•

Hence, some authors have expressed the opinion that the illustration “is wider than the section and goes beyond the English law.”567

•

In Van Riper v United States, 13 F2d 961, at p 967 (2d Cir 1926), Judge Hand said: “For this reason, all that was done before he entered may be used against him, but obviously not what was done after he left.”

Re N Ramaratnam, AIR 1944 Mad. 302, is a case that illustrates the point that the termini of section 10 are liable to flexible interpretation. In that case, the second accused asked the first accused to provide him with a packet of explosive called gelignite for the purpose of blowing up a railway bridge. The gelignite sticks failed to explode on 14 January 1943 and the second accused wrote a letter on 15 January to the first accused asking for a fresh supply of “a pair of bullocks”, a code word for the explosives. This letter which was sent by post was seized by the police on 18 January at the business address of first accused. The question in this case was whether the letter could be proved against the first accused to show his complicity. The Court held that “the common intention, as this necessarily restricted, was to use this one packet for certain purposes, and that intention had been carried out on 14th and could no longer exist on 15th” and that with the first attempt to cause explosion having been abortive, that conspiracy ended there and that conspiracy was not afoot when the letter was written for a fresh supply of explosives and, hence, the letter could not be proved against the first accused.568 In R v Stringer, [2011] All ER (D) 48 (Jun) : [2011] EWCA Crim 1396, the appellants were alleged to have chased the victim along with the principal accused before he was stabbed to death but the appellants contended that they gave up the pursuit midway. Confirming the conviction, the Court of Appeal observed: It is one thing to say that D cannot be liable as an aider or abettor unless P acted with D’s assistance or encouragement when he committed the offence. It is quite another to suggest that the act or words providing the assistance or

Page 35 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY encouragement must be performed or said at the moment of the commission of the offence. Such a limitation would exclude, for example, a person who supplied a murder weapon in advance of the crime knowing the purpose for which P wanted it. The law would be defective if an aider and abettor could escape liability by seeing that there was a gap in time between his conduct and the conduct of P.569

However, the Court observed: There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P’s act as done with D’s encouragement or assistance.570

On the other hand, in S Swamirathnam v State of Madras, AIR 1957 SC 340 : 1957 Cr LJ 422, the Supreme Court observed that (a) There can be a single conspiracy to cheat the public spread over several years. (b) Several persons could join or leave during the course of conspiracy and (c) the fact that several acts could be committed by some of them without the knowledge of the other does not split up the conspiracy into several conspiracies. In Sirima Narasimha Rao v State of Andhra Pradesh, 2010 Cr LJ 769, the High Court pointed out: “The fact that some members of conspiracy are not members from the start but joined the conspiracy only later does not make them any the less liable to conviction.” In ML Sharma v CBI, 2008 Cr LJ 1725, the Gauhati High Court held that: The fact that some of the conspirators, in some of the cases, are same would not make all the conspiracies as conspiracies forming part of the same transaction.

The Supreme Court held that: the joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.571

Thus, “A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity.”572 In the decision of Mehta v R, [2012] EWCA Crim 2824, the Court of Appeal of UK, in the context of defrauding a bank, observed that there could be an “umbrella agreement” between certain conspirators within which there could be other agreements with different other conspirators. The Court observed: In criminal law (as in civil law) there may be an umbrella agreement pursuant to which the parties enter into further agreements which may include parties who are not parties to the umbrella agreement. So, A and B may enter into an umbrella agreement pursuant to which they enter into a further agreement between A, B and C, and a further agreement between A, B and D, and so on. In that example, C and D will not be conspirators with each other.

The last part of the lone illustration to section 10 states that “A” is liable “although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him”. The above part of the illustration follows a list of things said, done or written by the conspirators and requires explanation. The word “them” in that part refers to acts committed by the conspirators and the ignorance of “A” as regards to the particulars of those acts and not to conspirators themselves, as the very next clause states “although the persons by whom they were done were strangers to him”. Though it can be said that a person who joins a conspiracy midway after it is already afoot is liable for what has already been said or done by the other conspirators because he must be deemed to have had constructive knowledge of their earlier acts, the illustration makes it clear that even such knowledge is not necessary and he will be liable even if he is ignorant of all that earlier activity. The fact that a conspirator is liable for what other conspirators have done “after he left” the conspiracy shows that such knowledge is totally irrelevant under section 10. Under the illustration, a conspirator can be said to have shared “common intention” with persons who are even “strangers” to him. Section 108, IPC dealing with “Abettor” provides in Explanation 5:

Page 36 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY

It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

The illustration to the section says: A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C men tioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.

353 Sir James Stephen says: “The suppression of the mutiny and the transfer of the government from the Company to the Crown made a great change and gave an extraordinary impetus to legislation” and “there was always reluctance on the part of the Company” and the shift from Company to the Crown meant readiness to import English law. The IPC, 1860 drafted by Lord Macaulay, who was “nominally a barrister” and devoted entire “time and thoughts...to politics and literature” “remained in the shape of a draft for no less than twenty-two years” and it was Sir Barnes Peacock who made many changes in the draft “meticulously” and saw it through the Legislative Council. Thus, the IPC, 1860 was “triumphantly successful”. James Fitzjames Stephen, A History of the Criminal Law of England, vol III, London, 1883, p 299. See also, National Archives of India; Legislative Dept 1861, A Proceedings, February, 1861, No 9. 354 The object of the amendment was to prevent the commission of crime by nipping them in the bud: State of Andhra Pradesh v Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 : (1963) 2 Cr LJ 671 : (1964) 3 SCR 297. As discussed below, IPC, 1860 originally dealt with conspiracy as abetment (section 107) and under specific offences like Thugs (section 310), being in gang of thieves and dacoits (sections 401, 400). It was in 1870 that the scope of conspiracy was widened by the insertion of section 121A, IPC, 1860 vide, Act XXVII of 1870. Chapter V-A has been introduced in the code by Criminal Law Amendment Act, 1913 (8 of 1913). KD Gaur, Textbook on Indian Penal Code, 4th Edn, New Delhi, 2009. This “was to assimilate the provisions of the IPC to those of the English law.” Wing-Cheong Chan, Barry Wright and Stanley Yeo, eds, Codification, Macaulay, and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, London: New York, 2016, p 136. 355 Putting a new gloss on the age-old concept of vicarious liability, in Bernard v Attorney General of Jamaica, [2004] UKPC 47 : [2005] IRLR 398, the Privy Council (per Lord Steyn) held: “Vicarious liability is a principle of strict liability. It is a liability for a tort committed by an employee not based on any fault of the employer. There may, of course, be cases of vicarious liability where employers were at fault. But it is not a requirement.This consideration underlines the need to keep the doctrine within clear limits... The principle of vicarious liability is not infinitely extendable.” Bernard v Attorney General of Jamaica, [2004] UKPC 47, paras 21–22 : [2005] IRLR 398. Lord Steyn relied on the earlier pathbreaking Canadian decisions in Bazley v Curry, (1999) 2 SCR 534 : 174 DLR 45, and Jacobi v Griffiths, (1999) 2 SCR 570 : 174 (DLR) 71. His Lordship appears to postulate that where, for instance, the master is held liable for the acts of his servant, the liability is based not on fault theory but on the basis that the master may be held strictly liable irrespective of any fault on his part if there is a close connection between the injury and employment (Doctrine of Imputability). See also, Various Claimants v The Catholic Child Welfare Society and The Institute of the Brothers of the Christian Schools, [2010] EWCA Civ 1106. Regarding strict criminal liability, in Gammon (Hong Kong) Ltd v AttorneyGeneral, 1985 AC 1, a leading case on the subject, Lord Scarman emphasized that there is always a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; but the presumption can be displaced only if this is clearly or by necessary implication the effect of the statute. Though section 10 of the Indian Evidence Act, 1872 makes a conspirator criminally liable for what the other conspirators have said, done or written “although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him”, the liability is not strict liability as section 10 as well as section 120A of IPC, 1860 require that there should be a shared common intention. Strict liability offences, by definition, are those for which the Statute does not require mens rea and “there are no fault elements for any of the physical elements of the offence”: see section 6.2 (1)(a) of Criminal Code Act of 1995 of Australia which seeks “to codify the general principles of criminal responsibility under laws of the Commonwealth” of Australia. In IL v R, [2017] HCA 27, the High Court of Australia, following its earlier decision in Osland v R, [1998] HCA 75 : 197 CLR 316 : 73 ALJR 173 : 159 ALR 170, held that “it is the acts which are attributed from one person (the actor) to another who shares the common purpose and, by attribution, becomes personally responsible for the acts. It is not the liability of the actor which is attributed.”

Page 37 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 356 Section 34 (Common intention) and section 149 (Common Object) and section 120A (Criminal Conspiracy) of IPC, 1860 are, inter alia, instances of such vicarious liability. In Abdul Sayeed v State of MP, 2010 AIR SCW 5701 : (2010) 10 SCC 259, para 49 : 2010 (9) Scale 379, the Court observed: “Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the ‘common intention’ to commit the offence.” 357 Circuit Judge Hand said: in Van Riper v US, 13 F2d 961, 967 (2d Cir 1926): “Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made ‘a partnership in crime’.” 358 See for a discussion of the rationale of the concept of conspiracy, Ajay Agarwal v UOI, AIR 1993 SC 1637 : 1993 (3) SCC 609 : (1993) 3 SCR 543; State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 25 : 1999 (3) Scale 241; and Yakub Abdul Razak Memon v State of Maharashtra, (2013) 13 SCC 1 : 2012 (3) Scale 565. 359 Halsbury’s Laws of England, 4th Edn, vol 11, p 58: “The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied.” M C Sarkar et al, eds, Sarkar’s Law of Evidence, vol 1, New Delhi, 2003, p 195. 360 Adambhai Sulemanbhai Ajmeri v State of Gujarat, (2014) 7 SCC 716. 361 J W Cecil Turner, Russell On Crime, 12th Edn, Sweet & Maxwell, vol I, 1964, p 202. 362 Major EG Barsay v State of Bombay, AIR 1961 SC 1762 : (1962) 2 SCR 195 : (1961) 2 Cr LJ 828. 363 James Fitzjames Stephen, A History of the Criminal Law of England, vol III, London, 1883, p 229. 364 J B Thayer, American Law Review, vol XV, p 80; p M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 2, New Delhi, 1998, p 410, para 11. 365 See 69th Report of Indian Law Commission, p 108, para 7.131. 366 R S Wright, Law of Criminal Conspiracies and Agreement, London, 1873, p 40. Wing-Cheong Chan says: “It is difficult to see why non-criminal conduct by an individual should suddenly become more dangerous and worthy of criminalization if someone agrees with him or her.” Wing-Cheong Chan, Barry Wright and Stanley Yeo, eds, “Abetment, Criminal Conspiracy and Attempt”, in Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, Farnham, Surrey, 2013, p 129. However, Gilles points out that as a “group enterprise” conspiracy “has greater potential for inflicting the requisite injury, than does an individual acting alone.” Peter Gillies, The Law of Criminal Conspiracy, 2nd Edn, Sydney, 1990, p 8. In Quinn v Leathem, [1901] LTKHL 2 : (1901) AC 495, Lord Brampton aptly observed: “a grain of powder is harmful but a pound may be highly destructive.” 367 Wing-Cheong Chan, Barry Wright and Stanley Yeo, eds,, “Abetment, Criminal Conspiracy and Attempt”, in Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, Farnham, Surrey, 2013, p 129. 368 Peter Gillies, The Law of Criminal Conspiracy, 2nd Edn, Sydney, 1990, p 261. 369 Law Commission of India, 42nd Report on Indian Penal Code, 1971, p 127, para 5.35. 370 Shaw v DPP, [1962] AC 220. 371 The LTK Law Commission Working Paper No 50, on Inchoate Offences: Conspiracy, Attempt and Incitement, HMSO, London, 1973, para 12. 372 State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 583 : 1999 (3) Scale 241; Yakub Abdul Razak Memon v State of Maharashtra, (2013) 13 SCC 1 : 2012 (3) Scale 565, para 63. 373 Virendra Singh v State of MP, (2010) 8 SCC 407 : (2010) 9 SCR 772 : JT 2010 (8) SC 319. 374 Section 2 (n) of Cr PC, 1973 defines “Offence” as: “any act or omission made punishable by any law for the time being in force...” Section 3 (38) of the General Clauses Act, 1897 also defines “offence” as “any act or omission made punishable by any law for the time being in force”. 375 Subhash @ Dhillu v State of Haryana, 2015, Supreme Court: “To make out the offence under section 120-B of IPC, the prosecution must lead evidence to prove the existence of some agreement between the accused persons.” 376 See footnote 92 above. 377 James Fitzjames Stephen, A History of the Criminal Law of England, vol III, London, 1883, pp 300 and 322; and WingCheong Chan, Barry Wright and Stanley Yeo, eds, Codification, Macaulay, and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, London: New York, 2016; Pramatha Nath Talukdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cr LJ 770; and Somasundaram @ Somu v State Rep By Dy Comm of Police, 2016, Criminal Appeal Nos. 403/2010, decided on 3 March 2016 (SC).

Page 38 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 378 Section 109, IPC, 1860 makes abetment an independent offence if “no express provision is made by this Code for the punishment of such abetment.” Thus, section 306 makes abetment of suicide a separate offence. 379 In Noor Mohammad Mohd Yusuf Momin v State of Maharashtra, AIR 1971 SC 885 : (1970) 1 SCC 696 : (1971) 1 SCR 119, it was held that “the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107, I.P.C.” 380 Abetment is called “incitement” in some Common Law jurisdictions. In R v Holliday, [2017] HCA 35 : 91 ALJR 874, Holliday was charged with the offence of inciting his prison cell mate p to procure a third person to kidnap witnesses against Holliday. p did not do what he was urged to do and reported the matter to the police. The High Court of Australia held that under section 45 (1) of the Crimes Act, 1900, incitement was not a “discrete” or distinct offence unless the incited offence was committed. The Court held that, on the contrary, in England incitement of an offence was a discrete offence even if the incited offence was not committed as that was also the position under the English Common Law. As seen in the text above, Indian position is the same as that obtaining in England. 381 This was an appeal from Manickam @ Poonga Manickam v State, Criminal Appeal Nos.698, 716 and 781 of 2004 and Criminal Appeal No.685 of 2005 decided on 6 October 2007 (Madras Hogh Court) 2007, Madras. 382 Section 116 provides, inter alia: “Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both.” 383 Somasundaram @ Somu v State Rep by Dy Comm of Police, 2016, para 67. Gopala Gouda, J, quoted Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883 : (1988) 3 SCC 609 : 1989 Cr LJ 1, where it was held: “For the present, it may be sufficient to state that the gist of the offence of criminal conspiracy created under Section 120-A is a bare agreement to commit an offence. It has been made punishable under Section 120-B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by the wordings of Section 107 (Secondly)...” Also, Pramatha Nath Talukdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cr LJ 770 384 Thus, mere “foresight” that the offence may be committed is not sufficient but the mens rea of the abettor must relate to the offence actually abetted and committed. 385 Somasundaram @ Somu v State Rep by Dy Comm of Police, 2016. 386 This definition has become famous as “Lord Denman’s antithesis”. Peter Gillies, The Law of Criminal Conspiracy, 2nd Edn, Sydney, 1990, p 1 and pp 79–80. Sir James Stephen opined that the definition of common law conspiracy is so wide that “it is capable of almost indefinite extension.” James Fitzjames Stephen, A History of the Criminal Law of England, vol III, London, 1883, p 229. 387 Law Commission of India, 42nd Report on Indian Penal Code, June 1971, p 127, para 5.33. Inducing breach of contract is a tort but not a crime. 388 Section 120A was added to IPC, 1860 in 1913 and earlier to that conspiracy was not a substantive offence but was confined to a species of abetment under section 107 (2) and the offence of Waging the War against Government of India under section 121. Amritalal Hazra, Superintendent and Remembrancer of Legal Affairs v Emperor, Khagendra Nath Chowdhury, (1915) 19 Cal WN 676 : 29 Ind Cas 513. 389 In Om Prakash v State, AIR 1956 All 241 : 1956 Cr LJ 452, para 18, the High Court held that section 34 employed the term “criminal act” “in the broadest possible sense” and “it would cover any word, gesture, deed or conduct of any kind on the part of a person whether active or passive, which tends to support the common design.” 390 Shankarlal Kachrabhai v State of Gujarat, AIR 1965 SC 1260 : (1965) 1 SCR 287 (per K Subba Rao, J); Parichhat v State of MP, AIR 1972 SC 535 : (1972) 4 SCC 694 : 1972 Cr LJ 322 (per AN Ray, J). The Courts have often stressed on the liability of the conspirators for the “result” of their jointly intended actions. Balu @ Bal Subramaniam v State (UT of Pondicherry), 2015 (11) Scale 635: JT 2015 (9) SC 387: “The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result.”; Charan Singh etc, Lakha Singh v State of Punjab, AIR 1998 SC 323 : 1997 (6) Scale 575 : JT 1997 (8) SC 604: “for ‘that act’ and ‘the act’ in the latter part of the section must include the whole section covered by a ‘criminal act’ in the first part because they refer to it.” Umesh Singh v State of Bihar, 2017, Patna, Criminal Appeal (DB) No. 491 of 1992, decided on 30 January 2017 (Patch High Court).Thus, if the cumulative “result” is a jointly intended offence as in the case of “waging the war” as illustrated in section 10, Evidence Act, 1872, it would not make any difference even if the component acts making up that resultant offence varied for each offender. 391 Section 2 (n), Cr PC, 1973, defines “Offence”: “‘offence’ means any act or omission made punishable by any law for the time being in force...” Section 3 of the General Clauses Act, 1897, defines ‘Offence’ as “any act or omission made punishable by any law for the time being in force.” Technically, an “offence” arises when a rule of law (1) declares certain conduct as a “crime” and (2) prescribes punishment for committing it. So, “offence” is made up of crime and punishment. The Law Commission of India thought that the “simple definition” in the General Clauses Act, 1897, was preferable to that in IPC, 1860, as the latter “is rather awkward and is not conducive as to either clarity or convenience.

Page 39 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Whenever a question arises as to the meaning of the word ‘offence’ appearing in a particular section of the Code, one has to go back to section 40 and wade through the clauses to find out where the section in question is mentioned.” Law Commission of India, 42nd Report on Indian Penal Code, June 1971, p 37, para 2.68. 392 Section 41 of IPC, 1860 defines “Special Law” as: “a law applicable to a particular subject”. 393 Section 42 of IPC, 1860, defines “Local Law” as: “law applicable only to a particular part of India.” See, Dushyant Singh v State (Rajasthan, 24 July 2012), Cr.M.P. (M) No. 1150 of 2015, decided on 7 August 2015. 394 The points of distinction between crime and tort are: (1) Crime is a wrong against the society at large or a public wrong; tort is a private wrong against a person or persons only. (2) Hence, it is the State that prosecutes an accused for his crime; it is the person who is affected by tort who sues the tort-feasor. (3) In the case of crime, the remedy is the punishment of the convict; the remedy for tort is payment of damages or compensation by the wrongdoer to the victim for the loss he suffered. (4) So, Criminal Law is basically punitive; Law of Torts is compensatory and seeks restoration of status quo ante of the victim. (5) Criminal Law looks to the criminal; Law of Torts looks to the victim. (6) As crimes are wrongs against State, grave offences are non-compoundable; as torts are private wrongs, they can be compounded by the victim and the wrongdoer. (7) In exceptional cases, the victim of a crime may also be compensated for the personal loss suffered by him; similarly, the tort-feasor may be compelled to pay heavier punitive or penal damages to act as a deterrent. (8) In some cases, the same wrong can be a crime and also a tort like battery and defamation and the victim can concurrently prosecute and also sue the wrong doer. (9) Sovereign or Head of the State can pardon a convict as crime is a public wrong; he cannot pardon a tort-feasor as tort is a private wrong. (10) Prosecutions are conducted in Criminal Courts; Tortious actions or suits are entertained in Civil Courts. (11) The standard of proof in the case of crime is “proof beyond all reasonable doubt”; in the case of tort it is “preponderance of probability”. Henry John Stephen, New Commentaries of the Laws of England, 19th Edn, vol IV, 1928, pp 3, 4 and 5; Reference re Legislative Jurisdiction of Parliament of Canada to Enact Section 498A of the Criminal Code, [1936] SCR 363. 395 Fitzerald, J, in R v Purnell, [1884] 14 Cox 505. This position has come in for criticism. RS Wright observed: “...there appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of agreement; for, if the act is one which can be done by a person acting alone, and when so done ought not to be punished, it is difficult to see at what point and on what ground criminality can be generally introduced by the fact that two or more persons concur in the act.” RS Wright, Law of Criminal Conspiracies and Agreements, Philadelphia, 1887, p 67. See also, Board of Trade v Owen, (1957) 1 All ER 414, at 415 : [1957] AC 602 (HL). But, Wright conceded that “on the other hand, it cannot be doubted that there may be exceptional cases in which acts, unnecessary to be punished when done by persons acting individually, may become proper objects of penal law when they are done by several or many persons.” The examples he gave were unfair practices of “certain kinds of combined conduct by traders, employers, or workmen in respect of the prices of goods or labour.” RS Wright, Law of Criminal Conspiracies and Agreements, Philadelphia, 1887, p 67. 396 While this proviso requires that “some act besides the agreement is done by one or more parties to such agreement in pursuance thereof”, section 121A (Conspiracy to commit offences punishable by section 121), ‘Explanation’ requires: “To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.” 397 Under the Doctrine of Merger, a lesser offence which is a part of a bigger offence is merged in the latter. For instance, section 390, IPC, 1860, states: “in all robbery there is either theft or extortion”. Hence, if a person is convicted for robbery, he cannot be convicted for theft also as theft merges in robbery. As observed by Professor John Smith, “just as an allegation of robbery necessarily includes an allegation of theft so an allegation of conspiracy to rob includes an allegation of conspiracy to steal.” John Smith, “Note on R v Barnard”, [1980] Crim LR 235. However, the converse is not true and if the charge is conspiracy to steal, it cannot include the conspiracy to rob; as the Court of Appeal of UK held in R v Barnard, (1980) 70 Cr App R 28, it was wrong to think that “that a conspiracy to steal is merely a lesser form of a conspiracy to rob. It is a different agreement. There has to be another agreement if a conspiracy to steal is to become a conspiracy to rob.” Similarly, attempted crime merges with the actual crime, once the actual crime is completed as a part of the same transaction. 398 Amritalal Hazra, Superintendent and Remembrancer of Legal Affairs v Emperor, Khagendra Nath Chowdhury, (1915) 19 Cal WN 676 : 29 Ind Cas 513. 399 See the discussion under section 8 above under the heading “Preparation as Proof of Motive” and the cases in which even preparation can constitute distinct offences. 400 See, William Wilson and David Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform”, in Criminal Law Review, vol 1, 2015, p 3; The Law Commission of United Kingdom, Assisting and Encouraging Crime a Consultation Paper, No 131, 1993, Aiding and Abetting, para 2. http://www.lawcom.gov.uk.; The Law Commission of United Kingdom, (LAW COM No 300), Report on Inchoate Liability for Assisting and Encouraging Crime, 2006, http://www.lawcom.gov.uk. (last accessed April 2019). 401 He may be an accessory “before the fact” or “after the fact” of commission. See the discussion under section 133, infra. 402 In R v Cogan, [1975] EWCA Crim 2 : [1975] 3 WritLR 316 : [1975] 2 All ER 1059 : (1975) 61 Cr App Rep 217 : (1975) 139 JP 608 : [1976] QB 217 (CA), where Leak terrorized Mrs Leak to submit to intercourse by Cogan, and falsely

Page 40 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY represented to Cogan that she wanted to have intercourse with Cogan, the Court acquitted Cogan, the principal, as he lacked mens rea, and convicted Leak for procuring rape. 403 R v Gnango, [2011] UKSC 59, para 22. 404 It was Glanville Williams who called the principle as “victim principle” and said that “where in the perception of the Court a legislation is designed for the protection of a class of persons, such people should not be convicted as accessories to an offence committed in respect of them when they cooperate in it. Nor should they be convicted as conspirators.” Glanville Williams, “Victims and other Exempt Parties in Crime”, in Legal Studies, vol 10, 1990, at p 245. In fact, even if Gnango was the victim, he would not have under any category of protected persons. 405 R v Gnango, [2011] UKSC 59, para 54. 406 Section 1 of the Criminal Law Act, 1977, created a statutory offence of conspiracy to commit a crime. Section 2 (1) provides: “A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence if he is an intended victim of that offence.” Even if Gnango was the victim of the shoot out, the JE would have amounted to an agreement to commit murder of himself---felo de se, felon of himself. David Ormerod and Karl Laird, eds, Smith and Hogan Criminal Law: Text and Materials, 11th Edn, Oxford, 2014, p 275, para 8.7.8. 407 R v Gnango, [2011] UKSC 59, para 60. 408 R v Gnango, [2011] UKSC 59, para 61. 409 Attorney-General’s Reference (No 3 of 1994), [1998] AC 245, at p 261. 410 Anita Davies says: “This effectively means that a participant in a gunfight – if they survived – could be convicted for their own attempted murder.” Anita Davies, “Case Comment: R v Gnango [2011] UKSC 59”, UKSC Blog, http://ukscblog.com/case-comment-r-v-gnango-2011-uksc-59/ (Last accessed in April 2019). 411 R v Gnango, [2011] UKSC 59, para 61. 412 Ibid, para 62. 413 Ibid, para 61. 414 K Subba Rao, J, opined that “without the aid of section 301 of the Indian Penal Code it can be held that when accused 1 to 4 shot at Rama they shot at him in furtherance of their common intention to kill Madha.” Shankarlal Kachrabhai v State of Gujarat, AIR 1965 SC 1260 : (1965) 1 SCR 287. 415 Anita Davies, “A more American legal model for gang violence?” UKSC Blog, http://ukscblog.com/. See also the discussion on Transfer of Malice under section 15 below. R v Gnango, [2011] UKSC 59, para 61. 416 Sir Richard Buxton remarked: “The Supreme Court approached the case with a strong propensity to find grounds for convicting Gnango of murder” and BM by killing PM made Gnango into a murderer instead of a suicide. Richard Buxton, “Being an Accessory to One’s Own Murder”, in Criminal Law Review, 2012, p 275; Atli Stannard observes that the prospect of Gnango being prosecuted for his own attempted murder “surely would ... be a farcical spectacle”, and that the Court’s concern for public opinion had led them to make an erroneous decision. Atli Stannard, “Securing a Conviction in ‘Crossfire’ Killings: Legal Precision vs. Policy”, in Journal of Commonwealth Criminal Law, 2011, pp 299– 309; Elaine Freer states that “it is very hard to see under what common law rule or legislation Gnango is guilty of murder ... [as] the mens rea for an affray is not the same as for a joint enterprise murder”, E. Freer, “R. v Gnango: The Curious Case of Bandana Man — Part 1”, in Criminal Law & Justice Weekly, vol 176, 24 March 2012, p 182; and Graham Virgo, “Joint enterprise liability is dead: long live accessorial liability”, in Criminal Law Review, vol 11, 2012, p 850; David Ormerod and Karl Laird, eds, Smith and Hogan Criminal Law: Text and Materials, 11th Edn, Oxford, 2014, pp 282–283. 417 Section 301 provides: Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. 418 In Andhra Pradesh v Rayavarapu Punnayya, AIR 1977 SC 45 : (1976) 4 SCC 382 : (1977) 1 SCR 601, it was observed: “In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice versa.” However, if the prosecution succeeds in discharging its burden by proving that culpable homicide amounts to murder under the initial part of section 300, the burden of proof shifts on to the accused, as per section 105, Evidence Act, 1872, to prove that his case comes under one of the five Special Exceptions to section 300. 419 In R v Anderson, [1986] AC 27 : 1985 (2) All ER 961 : [1985] 3 WritLR 268, Lord Bridge aptly said that “the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties.” 420 Section 114, IPC, 1860, states: “Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.”

Page 41 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 421 In Re Venkataramaiah, AIR 1935 Mad. 130, at p 132, Single Judge held: “Where the-matter has gone beyond the stage of more conspiracy and offences are alleged to have been actually committed in pursuance thereof, these two sections [Sections 220 & 223 of 1973 Code] are wholly irrelevant. Conspiracy, it should be borne in mind, is one form of abetment (see section 107 I.P.C.).” 422 In State of Andhra Pradesh v Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 : (1964) 3 SCR 297 : (1963) 2 Cr LJ 671, the Apex Court held that this point was conclusively settled in this case. 423 Pramatha Nath Talukdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cr LJ 770. Also, Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883 : (1988) 3 SCC 609 : 1989 Cr LJ 1. 424 See for a discussion of the issues in the split decisions of Gopal Goud and Arun Mishra, JJ, in Somasundaram @ Somu v State Rep by Dy Comm of Police, 2016. 425 Ibid. 426 Huynh v R, [2013] HCA 6, para 37. 427 Ibid, para 37. 428 Huynh v R, [2013] HCA 6, para 38. 429 Alberta and Quebec have adopted the narrower approach, restricting party liability to those who aid or abet the agreement itself, with a particular focus on its formation. R v Trieu, 2008 ABCA 143, 429 AR 200; R v Bérubé (1999), 139 CCC (3d) 304 (Que CA). Ontario and British Columbia have adopted the broader approach, expanding party liability to also include those who aid or abet the furthering of the unlawful object. R v McNamara (No. 1), 1981 CanLII 3120 : (1981) 56 CCC (2d) 193 (Ont CA); United States of America v Lorenz, 2007 BCCA 342 (CanL II) : (2007) 222 CCC (3d) 16 (BCCA). R v JF, 2013 SCC 12, para 18 : [2013] 1 SCR 565. 430 R v JF, 2013 SCC 12, para 17 : [2013] 1 SCR 565. 431 R v JF, 2013 SCC 12, para 21 : [2013] 1 SCR 565. 432 R v JF, 2013 SCC 12, para 40 : [2013] 1 SCR 565. 433 R v JF, 2013 SCC 12, para 44 : [2013] 1 SCR 565. 434 R v JF, 2013 SCC 12, para 53 : [2013] 1 SCR 565. 435 R v JF, 2013 SCC 12, para 43 : [2013] 1 SCR 565. 436 Huynh v R, [2013] HCA 6, para 37. 437 Shankarlal Kachrabhai v State of Gujarat, AIR 1965 SC 1260 : (1965) 1 SCR 287 (Full Bench). 438 In R v Cogan and R v Leak, [1976] QB 217, [1975] 2 All ER 1059, [1975] 3 WLR 316, discussed above under section 8, the Court has held that Cogan, who was abetted by Leak to rape Leak’s wife and raped her, was held not guilty of rape as he was under reasonable belief that she was consenting, but held Leak guilty of abetment to rape. 439 State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 581 : 1999 (3) Scale 241. 440 As Reddy, J, points out: “We do not find any such deeming provision in Section 10.” State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 564 : (2005) 11 SCC 600, para 11 : (2005) Cr LJ 3950. 441 In Girija Shankar v State of UP, AIR 2004 SC 1808 : (2004) 3 SCC 793 : 2004 (2) Scale 205, the Supreme Court aptly stated: “The Section is only a rule of evidence and does not create a substantive offence.” Also, Gharbharan v Chhattisgarh, 2010 Cr LJ 471, at p 473, para10. While it is so, can two or more persons be charged with section 302 read with section 34 without charging them under section 120A or B which involves the charge of two or more committing an offence with common intention? 442 Section 112, IPC, 1860, makes the abettor liable for the act abetted and the different act done if both are done and are independent offences. 443 Malkhan Singh v State of UP, AIR 1975 SC 12 : (1975) 3 SCC 311 : (1975) 1 Mad LJ (Cr) 450. 444 Raju @ Devendra Choubey v State of Chhatisgarh, AIR 2014 SC 3741 : (2014) 9 SCC 299 : 2014 (9) SCJ 453 : 2014 (9) Scale 515. 445 In Mohamed Ali v The State rep by The Inspector of Police District Crime Branch Police Station, Kanyakumari District, Tamil Nadu, 8 June 2017, it was held by Madras High Court: “28. There is a misconception that provisions like section 34, IPC, can be used only for convicting the offender for the offences under the Indian Penal Code alone. A bare reading of section 34, IPC, would show that the framers have used the expression ‘criminal acts’ and not ‘offence’. The word ‘offence’ has been defined under section 40, IPC, which limits its application to the Indian Penal Code alone. The usage of the expression “criminal acts” in section 34, IPC is wider than the word “offence” and therefore, section 34, IPC, can lend itself to other penal legislations as it is only a rule of evidence and not a substantive penal provision.”

Page 42 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 446 See also, Bashirbhai Mohamedbhai v State of Bombay, AIR 1960 SC 979 : (1960) 3 SCR 554 : (1961) 1 SCJ 76 (per Sarkar AK, J). 447 R v Eric Evans, [2014] EWHC 3803 (QBD). The preamble to the Act says that the Act was intended “to make new provision in that law, in place of the provisions of the common law”. 448 The Criminal Law Act of 1967 provided by section 1 (1): “All distinctions between felony and misdemeanour are hereby abolished” and by clause 2 “the law and practice in relation to all offences... shall be the law and practice applicable at the commencement of this Act in relation to misdemeanour.” 449 The UK Law Commission Working Paper No 50, on Inchoate Offences: Conspiracy, Attempt and Incitement, HMSO, London, 1973 and The UK Law Commission Report on Conspiracy and Criminal Law Reform (Law Com No 76) (1976) recommended the abolition of the Common Law offence except agreement to commit substantive offences. Ireland Law Reforms Commission, Consultation Paper on Inchoate Offences, Dublin, (LRCCP 48-2008), para 3.08 also made the same recommendation. 450 Per Lord Nicholls in R v Saik, [2006] 2 Cr App R 26 : [2006] UKHL 18 : [2006] 4 All ER 866 : [2006] Crim LR 998 : [2006] 2 AC 18 . 451 However Peter Gillies says: “The issue of abolition of conspiracy is not a viable one” as “it is too useful a crime for law enforcement agencies, and prosecutors, especially in an era of organised crime....There has been no fundamental change in the last century...” Peter Gillies, The Law of Criminal Conspiracy, 2nd Edn, Sydney, 1990, p 261. 452 It was held in R v Mendez and Thompson [2010] EWCA Crim 516, para 20, that “the principles which apply to a preplanned joint enterprise apply equally to a spontaneous joint enterprise.” It is stated by Crown Prosecution Service (CPS) that “Joint enterprise can apply where two or more persons are involved in an offence or offences. No distinction is made between cases where those involved share a common purpose to commit crime X, and cases where there is no shared purpose.” CPS Guidance on: Joint Enterprise Charging Decisions, December 2012, https://humanrightsforallsite.files.wordpress. com/2016/08/joint_enterprise-cps-police-college.pdf (Last accessed in April 2019) 453 Jogee (SC) and Ruddock v R, [2016] UKPC 7 (Privy Council) were heard together. R v Jogee, [2016] UKSC 8, para 3. 454 The expression was coined to describe the principle laid down in Chan Wing -Siu by Professor Sir John Smith, “Criminal Liability of Accessories: Law and Law Reform”, in Law Quarterly Review, vol 113, 1997, at p 455. 455 The Court said the principle was “developed in later cases, including most importantly the decision of the House of Lords in R v Powell and R v English, [1999] AC 1 : [1997] UKHL 45 : [1997] 4 All ER 545. 456 R v Jogee, [2016] UKSC 8, para 77. 457 R v Jogee, [2016] UKSC 8, para 1. As William Wilson and David Ormerod say the test is whether it is “attributable to the execution of the common purpose”. William Wilson and David Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform”, in Criminal Law Review, vol 1, 2015, p 3. 458 Jonathan Lee, “Reforming Parasitic Accessory Liability in English Law”, in The King’s Student Law Review, vol 7, 2016, p 55. 459 R v Jogee, [2016] UKSC 8, para 87. Also, paras 3 and 82. 460 Ibid. 461 Ibid, para 65. 462 Ibid, para 78. 463 R v Jogee, [2016] UKSC 8, para 78. 464 Ibid, para 83. 465 Ibid, para 84. 466 Ibid, para 87. 467 William Wilson and David Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform” in Criminal Law Review, vol 1, 2015, at pp 3 and 12. Jonathan Lee asks whether it is not correct to say that “in cases where derivative liability results only because D2 has foreseen the possibility of D1 committing the incidental offence, it is a much more blatant and serious affront to the principle of criminal liability based on personal responsibility?” Jonathan Lee, “Reforming Parasitic Accessory Liability in English Law”, in The King’s Student Law Review, vol 7, 2016, p 63. See also, Sir John Smith, “Criminal Liability of Accessories: Law and Law Reform”, in Law Quarterly Review, vol 113, 1997, at p 455; The Law Commission of United Kingdom, Assisting and Encouraging Crime a Consultation Paper, No 131, 1993, Aiding and Abetting, para 2, http://www.lawcom.gov.uk (last accessed in April 2019); The Law Commission of United Kingdom, (LAW COM No 300), Report on Inchoate Liability for Assisting and Encouraging Crime, 2006, http://www.lawcom.gov.uk. (last accessed in April 2019). 468 R v Jogee, [2016] UKSC 8, para 87.

Page 43 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 469 R v Jogee, [2016] UKSC 8, para 87. 470 R v Jogee, [2016] UKSC 8, para 100. 471 R v Jogee, [2016] UKSC 8, para 100. 472 Emphasis added. 473 Miller v R, [2016] HCA 30, paras 1 and 2. 474 Clayton v R, [2006] HCA 58, para 2. 475 Miller v R, [2016] HCA 30, para 2. 476 Miller v R, [2016] HCA 30, para 10. 477 Miller v R, [2016] HCA 30, para 23. 478 Miller v R, [2016] HCA 30, para 30. 479 McAuliffe v R, (1995) 183 CLR 108 : [1995] HCA 37, para 19. 480 McAuliffe v R, (1995) 183 CLR 108 : [1995] HCA 37, para 4. 481 McAuliffe v R, (1995) 183 CLR 108 : [1995] HCA 37, para 5. 482 R v Powell, [1999] AC 1

: [1997] 4 All ER 545 : [1998] 1 Cr App R 261.

483 R v Powell, [1999] AC 1

: [1997] 4 All ER 545 : [1998] 1 Cr App R 261.

484 R v Powell, [1999] AC 1 : [1997] 4 All ER 545 : [1998] 1 Cr App R 261. This statement of Lord Steyn was considered by the Court in Miller as “an important justification for the doctrine grounded in practical considerations.” Miller v R, [2016] HCA 30, para 36. 485 In Parash Jain v State of UP, 2016 (34) LCD 424, it was held that “Reason to believe postulates an objective satisfaction after an application of mind to material and relevant circumstances. The expression ‘reason to believe’ when used in a statute is to be distinguished from an exercise of a purely subjective satisfaction.” 486 Yogesh @ Sachin Jagdish Joshi v State of Maharashtra, AIR 2008 SC 2991 : (2008) 10 SCC 394 : 2008 Cr LJ 3872; Shivnarayan Lakshminarayan Joshi v State of Maharashtra, AIR 1980 SC 439 : (1980) 2 SCC 465 : 1980 Cr LJ 388. 487 2008 Cr LJ 4374 : 2008 (11) Scale 465. 488 Samundar Singh v State, AIR 1965 Cal 598 : 1965 2 Cr LJ 713. 489 This is in contrast to section 34, IPC 1860, which “does take into account the fact of the participation of every individual offender in the offence which is therein described as ‘a criminal act’ as well as his mental state which is therein connoted by the word ‘intention’. Section 149, IPC, 1860, completely ignores both these factors.” Om Prakash v State, AIR 1956 All 241: 1956 Cr LJ 452, para 12. 490 Masalti v State of UP, AIR 1965 SC 202, para 15 : (1965) 1 Cr LJ 226 : (1964) 8 SCR133. 491 Gangadhar Behera v State of Orissa, AIR 2002 SC 3633 : (2002) 8 SCC 381, paras 22–24 : 2002 (7) Scale 402. 492 Barendra Kumar Ghosh v Emperor, AIR 1925 PC 1, para 16. It is a quote from John Milton’s Sennett, “On His Blindness”. 493 R Anderson, Wharton’s Criminal Law & Procedure, vol 1, 1957, § 89, p 191. 494 Wharton’s Rule Law & Legal Definition, http://definitions.uslegal.com/w/whartons-rule/ (last accessed in April 2019). 495 This rule has been followed by many US Courts. People v Purcell, 304 Ill App. 215, 26 NE2d 153 (1940): Conspiracy charge will not lie for an offence which by its nature requires plurality of agents. 496 See the discussion above under the heading “‘Conspiracy’---Transfer of Malice, (b) Victim Principle”. 497 In Sowmithri Vishnu v UOI, AIR 1985 SC 1618 : 1985 SCR Suppl (1) 741, YB Chandrachud, J, held: “The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime” as adultery is “an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.” Also, V Revathi v UOI, AIR 1988 SC 835 : (1988) 3 SCR 373. 498 Under the applicable English law, only husband and wife cannot be charged with conspiracy unless a third person is also joined in the charge. 499 The Law Commission of India, 41st Report on The Code of Criminal Pocedure, 1898, vol 1, p 350, para 24.82. 500 In this case, a two-judge Bench noticed a conflict between the judgments in Rakesh v State of Haryana, AIR 2001 SC 2521 : (2001) 6 SCC 248 : 2001 (4) Scale 522 and in Mohd Shafi v Mohd Rafiq, AIR 2007 SC 1899 : (2007) 14 SCC 544 : (2007) 4 SCR 1023, and on reference to a three-judge Bench it was noticed that already in Dharam Pal v

Page 44 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY Haryana (2004) 13 SCC 9, a reference was made to the Constitution Bench which involved identical issues. Hence, the reference of this case was also made to the Constitution Bench. The conflict of judicial opinion related to whether the Court can act under section 319 only after full-fledged evidence emerges after witnesses were examined in chief, cross and re-examination or even earlier. 501 Hardeep Singh v State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86, para 20. 502 Babubhai Bhimabhai Bokhiria v State of Gujarat, AIR 2014 SC 2228 : (2014) 5 SCC 568 : 2014 Cr LJ 2290 (SC): though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under section 319 of the Code is much higher. As under section 319 the accused is added on the basis of this higher standard, it has been held that he cannot seek discharge under section 227 for the reason that “there is not sufficient ground for proceeding against the accused.” Jogendra Yadav v State of Bihar, AIR 2015 SC 2951 : (2015) 9 SCC 244 : 2015 (8) Scale 442; Hardeep Singh v Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86. 503 Hardeep Singh v State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86, para 71. 504 Hardeep Singh v State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86, para 64. 505 Hardeep Singh v State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86, para 79. 506 R Dineshkumar @ Deena v State rep by The Inspector of Police, CBCID, Chennai, AIR 2015 SC 1816 : (2015) 7 SCC 497 : 2015 (3) Scale 598, para 17. 507 This section as it was originally enacted in 1860 provided: “34. When a criminal act is done by several persons, each of such persons in liable for that act in the same manner as if the act were done by him alone.” The section was substituted by Act 27 of 1870, section 1. 508 Girija Shankar v State of UP, AIR 2004 SC 1808 : (2004) 3 SCC 793 : 2004 (2) Scale 205. In Virendra Singh v State of MP, (2010) 8 SCC 407, para 42 : (2010) 9 SCR 772 : JT 2010 (8) SC 319, the Court said: “Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability.” Sripathi v State of Karnataka, AIR 2010 SC 249 : (2009) 11 SCC 660, para 5 : 2009 (5) Scale 5, the Court said that section 34 “is only a rule of evidence and does not create a substantive offence.” The Allahabad High Court made a thorough analysis of sections 34 and 149, IPC, 1860 and observed: “Whereas Section 34, I. P. C., is merely declaratory of a rule of criminal liability and does not create a distinct offence, Section 149, I. P. C., is not a merely declaratory provision and does create a distinct offence.” Om Prakash v State, AIR 1956 All 241 : 1956 Cr LJ 452, para 2. Hence, it has been held in Virendra Singh v State of MP, (2010) 8 SCC 407, para 42 : (2010) 9 SCR 772 : JT 2010 (8) SC 319, that a charge under section 302 without joining section 34 is maintainable and “little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.” It was also held that “the only difference between a direct charge for an offence and one with the help of Section 34...is that, whereas under the former the criminal act and the intention to commit it are individual to the person charged, under the latter the same are shared by several persons. But the fact that the act and the intention are shared by one with others does not make one any the less an intentional participator in action.” Om Prakash v State, AIR 1956 All 241 : 1956 Cr LJ 452, para 71. Also, Raghbir Chand v State of Punjab, AIR 2013 SC (Supp) 1005 : (2013) 12 SCC 294 : 2013 (10) Scale 20. 509 Emperor v Barendra Kumar Ghosh, (1925) 27 Bom LR 148, paras 14–15. 510 Emperor v Barendra Kumar Ghosh, (1925) 27 Bom LR 148, para 15. In fact, in Sukhram, son of Ramratan v State of MP, AIR 1989 SC 772 : JT 1989 (1) SC 435 : 1989 (1) Scale 66 : 1989 Supp 1 SCR 214, the Supreme Court observed that in case a co-accused is acquitted giving the benefit of doubt, the other accused would also be entitled to acquittal. 511 Emperor v Barendra Kumar Ghosh, (1925) 27 Bom LR 148, para 21. 512 The doctrine is also known as imputability or ascription and is applied in International Law relating to State Responsibility. Ian Brownlie, International Law and the Use of Force by States, Oxford, 1963. Report of the International Law Commission on the Work of its Fifty-third Session: Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001). 513 Also, Vijendra Singh v State of UP, 2017 (1) Supreme 408. 514 IL v R, [2017] HCA 27, para 6. 515 IL v R, [2017] HCA 27, para 29. 516 Osland v R, [1998] HCA 75, para 14 : (1998) 197 CLR 316 : (1998) 159 ALR 170. 517 Ibid. 518 Ibid. 519 In a case where the accused takes a valid defence of insanity, the question may be raised whether he can, because of the very same insanity, be held to be a party to the JE agreement. In Osland, the Court said: “Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea.” Osland v R, [1998] HCA 75, para 79 : (1998) 197 CLR 316 : (1998) 159 ALR 170.

Page 45 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 520 Osland v R, [1998] HCA 75, paras 14–17 : (1998) 197 CLR 316 : (1998) 159 ALR 170. 521 Osland v R, [1998] HCA 75, para 85 : (1998) 197 CLR 316 : (1998) 159 ALR 170. Thus, in R v Bourne, (1952) 36 Cr App R 125, a husband was held guilty of bestiality after compelling his wife to have sexual intercourse with a dog. The husband was guilty even though his wife was never charged, presumably because the duress meant that she was not guilty of the offence. 522 IL v R, [2017] HCA 27, para 29. 523 State of Rajasthan v Shobha Ram, AIR 2013 SC 1760 : (2013) 14 SCC 732, para12 : (2013) 1 SCR 327; Rajkishore Purohit v State of MP, (2017) 4 Mad LJ (Cr) 45. 524 Major EG Barsay v State of Bombay, AIR 1961 SC 1762 : (1962) 2 SCR 195 : (1961) 2 Cr LJ 828. In Ramaswami Ayyangar v State of Tamil Nadu, AIR 1976 SC 2027 : (1976) 3 SCC 779, para 12 : (1976) 3 SCR 876, it was held: “The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise...” 525 Vijendra Singh v State of UP, 2017 (1) Supreme 408. 526 In Ganga Ram Sah v State of Bihar, 2017 (1) Supreme 610, it was held: “It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted.” In Mohan Singh v State of Punjab, AIR 1963 SC 174 : 1962 SCR Suppl (3) 848, it was held: “Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object.” 527 Om Prakash v State, AIR 1956 All 241: 1956 Cr LJ 452, para 27. 528 In Sripathi v State of Karnataka, AIR 2010 SC 249 : (2009) 11 SCC 660, para 6 : 2009 (5) Scale 5, the Court said: “The section does not say ‘the common intentions of all’ nor does it say ‘an intention common to all’”. 529 Suresh v State of UP, AIR 2001 SC 1344 : 2001 (3) SCC 673 : (2001) 2 SCR 263. In Vijendra Singh v State of UP, 2017 (1) Supreme 408, para 24, it was held: “Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. ...Common intention can be conceived immediately or at the time of offence” and could “well develop on the spot as between a number of persons.” 530 James Fitzjames Stephen, A Digest of Evidence, 12th Edn, 1931, Article 4. 531 J V Ryan, The Law of Criminal Evidence in British India, Calcutta, 1912, p 22. 532 In 1870, section 34 was amended by insertion of the words “in furtherance of the common intention of all”, after the word “persons” and before the word “each”, so as to make the object of section 34 clear. Mahbub Shah v Emperor, AIR 1945 PC 118 : 49 Cal WN 678 : 47 Bom LR 941. It was necessary to bring about a change in the wordings of the section on account of certain observations made by Sir Barnes Peacock CJ, in R v Gora Chand Gope, (1866) 5 South WR (Cr) 45. See, Virendra Singh v State of MP, (2010) 8 SCC 407 : (2010) 9 SCR 772 : JT 2010 (8) SC 319. 533 Lord Denman said “any act not done in pursuance of the conspiracy is not evidence for or against another conspirator.” R v Blake and Tye, (1844) 6 QB 126 , p 138. Patteson, J, described it as “a statement made after the conspiracy was effected”. (p 139). Williams, J, said that it merely related “to a conspiracy at that time completed”. Coleridge, J, said that it “did not relate to the furtherance of the common object”. See Lord Wright’s summary in Mirza Akbar v Emperor, AIR 1940 PC 180 : (1941) 43 Bom LR 20. 534 See the 69th Report of the Indian Law Commission (May 1977), p 110, para 7.139. 535 Also, Jayendra Saraswathi Swamigal v State of TN, AIR 2005 SC 716 : 2005 AIR SCW 323 : (2005) 2 SCC 13: “Here, the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and, therefore, Section 10 of the Evidence Act cannot be pressed into service.” 536 For full texts of the letters see Mirza Akbar v Emperor, AIR 1940 PC 180 : (1941) 43 Bom LR 20. 537 Lord Wright was speaking for a Bench of three judges which included Viscount Maugham and George Rankin. Hence, it was held in Indra Dalal v Haryana, AIR 2015 SC (Supp) 1428 : 2015 (6) SCJ 501, that disclosure statement in another FIR cannot be used to prove conspiracy as the common intention is no more in existence. In Jayendra Saraswathi Swamigal v State of TN, AIR 2005 SC 716 : 2005 AIR SCW 323 : (2005) 2 SCC 13, the Court held that the involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be established by the confessions themselves and this was impermissible as the conspiracy was no more afoot. Hence, it is held that the alleged disclosure/confessional statement in another case would be of no consequence. Mohd Khalid v State of WB, [(2002) 7 SCC 334 : (2002) 4 SCJ 101 : 2002 (6) Scale 238; Firozuddin Basheeruddin v State of Kerala, AIR 2001 SC 3488 : (2001) 7 SCC 596 : 2001 (5) Scale 335 and State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253 : 1999 (3) Scale 241. 538 R v Gnango, [2011] UKSC 59, para 42: “parasitic accessory liability.”

Page 46 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 539 Borrowing the facts from R v Khan, [1990] 2 All ER 783 : [1990] 1 WLR 813 (CA), if A succeeded in penetration and B did not, there would be three offences, viz, conspiracy, rape by A and attempt to rape by B. Under section 10 of the Evidence Act, 1872, can B be held guilty of rape by A on the ground of joint liability? Under the circumstances, it would appear unfair to do so. Again, A cannot be held liable for attempt to rape by B, as, under the doctrine of merger, the bigger offence of rape committed by A subsumes the lesser offence of attempt to rape by B. 540 Hence, there cannot be an attempt to conspire, both being inchoate offences. 541 Per Davies, LJ, in R v Pace and Rogers, [2014] EWCA Crim 186. They share two common features. First, in each case the accused incurs liability even though the principal offence is not committed. Secondly, they punish conduct that is one at least step removed from the commission of the principal offence. The UK Law Commission Report on Inchoate Liability for Assisting and Encouraging Crime, 2006 (Cm 6878), p 5, para 1.14. 542 The UK Law Commission recommended that “the law should require full intention and knowledge before a conspiracy can be established.” Report on Conspiracy and Criminal Law Reform, 1976, Law Com No 76, para 1.39. But reference to “full intention” denoted not an intention independent of the substantive offence but only an intention to bring about any consequence specified in the definition of the actus reus of the substantive offence. Report on Conspiracy and Criminal Law Reform, 1976, Law Com No 76, para 7.2. 543 In R v Pace and Rogers, [2014] EWCA Crim 186, Mr Stein appearing for the appellant contended that, just as you cannot “intend to suspect” or “agree to suspect” in conspiracy cases, so you cannot “attempt to suspect” in attempt cases. In R v Mohan, [1975] 2 All ER 193 : (1974) 60 CAR 272, at p 274, it was argued by counsel for the prosecution on appeal that, because the substantive offence did not require proof of an intention on the part of the accused, proof of an attempt to commit the crime likewise did not require proof of an intention. James, LJ, rejected the contention but said that “the attraction of this argument is simple and logical, for it requires in proof of the attempt no greater burden in respect of mens rea than is required in proof of the completed offence.” 544 R v Khan, [1990] 2 All ER 783, at 787–788 : [1990] 1 WLR 813, at 818–819 (CA). 545 R v Saik, [2006] 2 Cr App R 26 : [2006] UKHL 18, para 8. 546 R v Pace and Rogers, [2014] EWCA Crim 186, para74. 547 See also, The UK Law Commission, Consultation Paper No http://www.lawcom.gov.uk/conspiracy.htm (last accessed in April 2019).

183,

Conspiracy

and

Attempts,

2009.

548 The Full Bench consisted of eminent judges L Sanderson, CJ, J Woodroffe, A Mookerjee, Fletcher, and Richardson. 549 Sanderson, CJ, wrote the judgment for the Court with whom Fletcher and Richardson, JJ, concurred. Mookerji, J, agreed with the result but wrote separate opinion with which Woodroffe, J, agreed. 550 Amrita Lal Bose v The Corp of Calcutta, (1917) 42 Ind Cas 305, para 39. 551 Amrita Lal Bose v Chairman of the Corp of Calcutta, 40 Ind Cas 322 : 26 Cal LJ 29 : 21 Cal WN 10091 : 18 Cr LJ 674, para 77. 552 These sections of the 1898 Code correspond to sections 220, 221 and 223 dealing respectively with “Trial for more than one offence”, “where it is doubtful what offence has been committed”, and “what persons may be charged jointly”. 553 R Dineshkumar @ Deena v State rep by The Inspector of Police, CBCID, Chennai, (2014). 554 Ibid, para 28. 555 Ibid, para 17. 556 Ibid, paras 17 and 18. 557 Ibid, para 28. 558 Ibid, para 28. 559 Ibid, para 30. 560 Ibid, para 57. 561 R Dineshkumar @ Deena v State, AIR 2015 SC 1816 : (2015) 7 SCC 497 : 2015 (3) Scale 598. 562 R Dineshkumar @ Deena v State, AIR 2015 SC 1816, para 52 : (2015) 7 SCC 497 : 2015 (3) Scale 598. 563 AR Antulay v RS Nayak, AIR 1988 SC 1531 : (1988) 2 SCC 602, para 133 : JT 1988 (2) SC 325. 564 AR Antulay v RS Nayak, AIR 1988 SC 1531 : (1988) 2 SCC 602, paras 55–56 : JT 1988 (2) SC 325. 565 Emphasis added. The Court said that in S Swamirathnam v State of Madras, AIR 1957 SC 340 : 1957 Cr LJ 422, the Apex Court did not see anything wrong in the trial of several persons accused of offences under sections 120B and 420, IPC, 1860.

Page 47 of 47 4.5 SECTION 10: PROOF OF CONSPIRACY 566 In Sardul Singh Caveeshar v State of Bombay, AIR 1957 SC 747 : (1958) 1 SCR 161 : 60 Bom LR 691, a three-Judge Bench of this Court held: “where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence.” However, in R v Stringer, [2011] All ER (D) 48 (Jun) : [2011] EWCA Crim 1396, paras 52–53, the Court said: “Suppose, for example, that D started to join in chasing V with hostile intent, but quickly thought better of it and stopped. The law would be unjust,... if it held that D would automatically be guilty of whatever violence was inflicted on V by the others who continued to pursue him.” 567 Vepa p Sarathi, Law of Evidence, Lucknow, 2010, reprint, p 98. 568 Re N Ramaratnam, AIR 1944 Mad. 302, para 11. 569 R v Stringer, [2011] All ER (D) 48 (Jun) : [2011] EWCA Crim 1396, para 46. 570 Ibid, para 52. 571 State Through Superintendent of Police, CBI/SIT v Nalini and T Suthethiraraja (commat) Santhan, AIR 1999 SC 2640 : 1999 (5) SCC 253, para 9 : 1999 (3) Scale 241. 572 Damodar v State of Rajasthan, AIR 2003 SC 4414 : (2004) 12 SCC 336, para 15 : 2003 (7) Scale 627.

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4.6 SECTION 11: FACTS NOT OTHERWISE RELEVANT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.6 SECTION 11: FACTS NOT OTHERWISE RELEVANT 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. 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.

Section 11 makes the facts not otherwise relevant as relevant if: 1. They are inconsistent with fact in issue or relevant facts; or 2. Which make the existence of fact in issue or relevant fact highly probable or improbable. The tests adopted by the section are (1) inconsistency and (2) high probability or improbability. The following are the typical examples of facts that are relevant under this section.573 1. Alibi or the plea that the accused could not have committed the crime because he was elsewhere. (illustration (a)) 2. Non-access in cases of questions of paternity where the man says that he could not have been the father either because he was impotent or he was at different place at the time the child was conceived. 3. Self-inflicted harm, ie, the plea that, for instance, the alleged victim of murder, in fact, committed suicide. 4. Third person was guilty and not the accused. 5. The man supposed to have been murdered by the accused is alive.

Page 2 of 2 4.6 SECTION 11: FACTS NOT OTHERWISE RELEVANT 573 P M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 1, New Delhi, 1998, p 433.

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4.7 ALIBI Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.7 ALIBI Under illustration (a), if A was at Lahore on the day and at the time the crime was committed at Calcutta, the fact of crime at Calcutta and the fact of A’s presence at Lahore on the same day and at the same time are two so totally inconsistent facts that if one is true, the other cannot be true. Thus, the plea of alibi is relevant under section 11, and also under section 9 as a fact rebutting the fact in issue. It must be borne in mind that alibi does not figure either in the General Exceptions or Special Exceptions in the IPC, 1860. The reason is that all cases of General or Special exceptions arise where because of A’s actions B is harmed but A can plead in his defense an exception, by way of a justification or excuse, that he was acting in self-defense or that it was done under grave and sudden provocation, insanity. Thus, his plea is an “exception” to his otherwise guilty conduct. But in case of plea of alibi, the accused has not caused any harm to the person because he was nowhere near the scene of offence. So, it is not an “exception” but a plea of defense, and alibi has to be proved under section 103 as proof of particular fact or section 106 as a fact especially within his knowledge.574 4.7.1 Is section 11 a Catch-all Dragnet? Different Views Section 11 has given rise to a difference of opinion as to its interpretation and operation. The opening part of the section states that “facts not otherwise relevant, are relevant” under the section if they are “inconsistent” with or render “highly probable or improbable” the fact in issue or relevant fact. Then, is the section a catch-all dragnet of facts? 1. One view is that the section makes all the logically relevant facts with high probative value admissible under it, even if those facts are not legally relevant under other sections. This view virtually blurs the distinction between facts which are logically relevant and those which are legally relevant and “that would amount to wiping out the theory of relevancy.”575 As stated in the Chapter on the theory of relevancy, under the Evidence Act, 1872, facts are relevant only if they are declared to be relevant by the Act and there is no other way. If section 11 covers all logically relevant facts with high probative value, then, there is no need for other sections on relevancy of facts. 2. Section 11 is stated to be so widely worded as to render the whole scheme of relevancy nugatory. West, J, observed in R v Prabhudas, (1874) 11 BHCR 94: This section is expressed in terms so extensive that any fact which can, by a chain of ratiocination, be brought into connection with another, so as have a bearing upon a point in issue, may reasonable be held to be relevant within its meaning....One of the objects of a law of evidence is to restrict the investigations made by the courts within the bounds prescribed by general convenience, and this object would be completely frustrated by the admission, on all occasions of every circumstance on either side having some remote and conjectural probative force...

Page 2 of 4 4.7 ALIBI West, J’s objection that section 11 is too widely framed is itself subjected to the criticism that his objections are also too widely formulated.576 It is said that section 11 lets in only those facts which make the existence of fact in issue “highly probable or improbable”. It is submitted that West, J’s objection is that section 11 obliterates the distinction between legal and logical relevancy and leaves the matter of relevancy to the unguided judicial discretion. The objection that can be taken against the view mentioned in (1) above is that the definition of the term “proved” in section 3 leaves the question of proof to the “belief” of and assessment of “probability” by the judge, and section 11 leaves the question of relevancy to the assessment of “high probability” to the judge again. However, Sir Stephen accepted the validity of the criticism and said: My theory was expressed too widely in certain parts, and not widely enough in others; and Mr. Whitworth’s pamphlet appears to me to have corrected and completed it in a judicious manner. I have accordingly embodied his definition of relevancy, with some variations and additions, in the text. The necessity of limiting in some such way the terms of the 11nth section of the Indian Evidence Act may be inferred from a judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parbhudas and others....577

3. Sir James Fitzjames Stephen gave his own explanation of the section and said: It may possibly be argued that the effect of the second paragraph of s. 11 would be to admit proof of such facts as these (viz statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts). It may for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime. This makes highly probable that B did commit that crime. Therefore, A’s declaration is a relevant fact under s 11. This was not the intention of the section, as is shown by the elaborate provision contained in the following part of Ch. II (ss 31-39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got. The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved. Some degree of latitude was designedly left in the wording of the section (in compliance with a suggestion from the Madras Government) on account of the variety of matters to which it might apply. The meaning of the section would have been more fully expressed if words to the following effect had been added to it:- “No statement shall be regarded as rendering the matter stated highly probable within the meaning of the section unless it is declared to be relevant fact under some other section of this Act.578

4. The above explanation by Stephen was criticised by Field. He said: The section can hardly be limited, as has been suggested, to those facts which are relevant under some other provisions of the Act, for this would render the section meaningless.

In a similar vein in State v Jagdeo, 1955 All LJ 380, Desai, J, observed: If a fact is relevant under sec. 32, it can be proved notwithstanding that it is not relevant under sec. 11 and to say that a fact relevant under sec. 11 cannot be proved unless it is covered by the provisions of sec. 32 is nothing short of striking out sec. 11 from the Evidence Act.

In C Narayanan v State of Kerala, 1992 Cr LJ 2868, speaking for the Full Bench of the Kerala High Court, Thomas, J, (as he then was), observed: There is nothing in sec. 11 of the Act to suggest that it is controlled by any other section. On the other hand the words used

Page 3 of 4 4.7 ALIBI in sec. 11 indicate that the provision is an exception to other general provisions.

5. It is submitted that Sir Stephen was not speaking of relevancy of “facts” but only of “statements”. The question of whether statements could be brought under section 11 even if they were not relevant under sections like 8 and 32 was also a much-debated question579 and Sir Stephen, perhaps, was only saying that statements ought not to be brought under section 11 if they do not comply with the conditions of sections like 6, 8 and 32. 6. It is evident from the above discussion that Stephen’s explanation has been criticised as rendering section 11 otiose and redundant. The other view that all logically relevant facts with a high degree of probability which do not fall under any of the other sections are covered by section 11 is open to two criticisms: Firstly, it presupposes that facts which are so relevant because of a very high degree of probability are omitted by Sir Stephen in all other sections. Secondly, that view gives such a long arm to section 11 that it would render all other sections superfluous and redundant. If a cat can get in through a bigger hole, where is the need for smaller holes?! 4.7.2 Appraisal Section 11 is considered to be a residuary section580 as most of the facts that are typically admissible under this section are also relevant under one or the other sections of the chapter on relevancy. Illustration (a) to section 11 is an example of the plea of alibi and illustration (b) deals with proof of exclusive opportunity to commit a crime. Alibi and opportunity are relevant under section 7 and section 9, respectively. Hence, the section very rarely, if ever, has been relied upon as the sole basis for admission of facts which are not covered by the other sections. The words “facts not otherwise relevant” in the beginning of section 11 have to be taken to mean what they plainly say, that is, facts not relevant under other sections of the Act. It is submitted that if those facts are statements, they need not be relevant under sections like 6, 8 and 32 but they must not be violative of the safe guards contained in those and other sections pertaining to the relevancy of statements. In fact, in Sevigan Chettiar v Raghunatha, AIR 1940 Mad. 273, Varadachariar, J, pointed out: As regards S. 11, it seems to us, that S. 11 must be read subject to the other provisions of the Act and that a statement not satisfying the conditions laid down in S. 32 cannot be admitted merely on the ground that, if admitted, it may probablize or improbablize a fact in issue or relevant fact.

It is submitted, with great respect, that the above view of the eminent judge with regard to statements places section 11 in its correct and logical perspective. If facts other than statements are to be brought under section 11, those facts need not be relevant also under other sections, because that would render section 11 redundant, but they cannot be admitted in the name of “high probability” if they are repugnant to basic and fundamental notions of hearsay and res inter alios acta contained in other sections of relevancy. Thus, for instance, the bad character of the accused which is declared to be inadmissible by section 54 cannot be admitted under section 11 on the ground that it makes the guilt of the accused “highly probable.”581 In other words, “facts” or “statements” can be relevant under section 11 (a) if they do not offend against any of the other sections of the Evidence Act, 1872 relating to relevancy and admissibility, and (b) if they render the facts in issue or relevant facts “highly probable or improbable.”

574 See also the detailed discussion on “Alibi” under section 105 infra. 575 M Monir, Textbook on the Law of Evidence, 8th Edn, Delhi, 2010 p 60. 576 Vepa p Sarathi, Law of Evidence, Lucknow, 2010, reprint, p 41. 577 James Fitzjames Stephen, Digest of Law of Evidence, Macmillan & Co, London, 1876, p 136, Note 6 to Article 9. See also, John D Heydon, “Reflections on James Fitzjames Stephen”, in Queensland Law Journal, July 2010, p 10. 578 James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, Macmillan & Co, London, 1872, pp 160–161. 579 The 69th and 185th Reports of the Law Commission of India on section 11. 580 Rangayya v Innasimuthu Mudali, AIR 1956 Mad 226, at p 230 : (1955) 2 Mad LJ 687 : 69 Mad LW 513.

Page 4 of 4 4.7 ALIBI 581 M Monir, Textbook on the Law of Evidence, Delhi, 2010, p 61.

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4.8 SECTION 12: SUIT FOR DAMAGES Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.8 SECTION 12: SUIT FOR DAMAGES 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.

James Stephen pointed out that while sections 6–11 lay down the different instances of bases of legal relevancy like motive, cause and effect, section 11 onwards deal with particular instances of relevant facts.582 Section 12 makes those facts relevant which help a Civil Court to determine the quantum of damages in the cases of Torts or Contracts. Legally, “damage” is to be distinguished from “damages”. In Civil Law, while “damage” connotes an injury suffered by an individual because of the wrongful actions of another, “damages” is the monetary compensation that the former is awarded by the Court to be paid by the latter for the injury caused by him. The purpose of awarding the damages is to compensate a person for the injury suffered in such a manner that he is put back approximately in a position in which he was before the injury was caused to him. In other words, it is restoration of status quo ante. Factors such as the age of the victim, the nature and extent of the injury, medical expenses, loss of earnings and physical and mental agony are relevant in the quantification of damages by the Court. Punitive or exemplary damages may be granted by the Court in cases where the Court comes to the opinion that, not only should the victim be compensated but the perpetrator of injury needs to be punished to deter nonrepetition of the wrongful act as in the case of defective food and drug manufacturers.

582 See James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, Macmillan & Co, London, 1872, p 72.

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4.9 SECTION 13: PROOF OF CUSTOM AND RIGHT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.9 SECTION 13: PROOF OF CUSTOM AND RIGHT 13. Facts relevant when right or custom is in question.-Where the 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, recognized, 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. 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 stopped by A’s neighbours, are relevant facts.

Section 13 deals with proof of right and custom. Right has been defined by John Salmond as a legally protected and recognized interest.583 The term “right” under section 13 includes the whole gamut of legal rights—tangible (movable and immovable) and intangible (good will, intellectual property rights), public and private, proprietary (ownership) and possessory (tenant) rights. It includes rights on one’s own property (like ownership) as well as rights regarding other’s property (like right of way over and right to fish in some one’s land or pond (“easementary rights”). In fact, the illustration to the section refers to the right to fishery. Custom is a long-established practice or usage which gives rise to an obligatory rule. The legal conditions for the creation of a binding custom are: •

Antiquity. The practice must be old enough to create opinion juris or a legal conviction that the practice is obligatory and right or valid. In India, there is no definite time period for the determination of antiquity and it need not be of “immemorial” antiquity as in England.

•

The practice must be repetitive, uniform and consistent.

•

It must be definite and certain, not ambiguous.

•

It should not be clandestine but should be followed openly, peacefully and without interruption by others.

•

It must not be illegal, immoral or opposed to public policy.

Customs can be:

Page 2 of 2 4.9 SECTION 13: PROOF OF CUSTOM AND RIGHT •

General or Local

•

Public or Private

•

Special—confined to a family or caste or particular trade or mercantile activity. In royal or zamindari families, the right of primogeniture (first born) may be prevalent by which the first born among the siblings only will get the crown or property. Similarly, temple customs may vary depending on whether the temple is a Vaishnavite or Shaivite one, and so on.

•

Regional—Under the Hindu Marriage Act of 1955 marrying children of one’s paternal aunt or maternal uncle is prohibited but the Act protects the contrary custom prevalent in South India. In some districts the custom of pre-emption may be in vogue by which any person intending to sell his property must first offer it to his near relatives or neighbours at market value.

Where the question as to the existence of a right or custom arises, section 13 looks to two things, viz, (i) transactions and (ii) particular instances which could throw light on the question. The term “transaction” here has a meaning different from that of section 6 and means anything done by a person or between persons that would affect the rights of the persons. It can be a bilateral transaction like a sale deed executed by the seller and buyer, or a unilateral one like a will or testament. Even a Court’s judgment is a transaction by which a right or custom is recognised or annulled.584 Though the section speaks of the “existence” of a right or custom, it may not be a simple question of yes or no, but of its nature, extent and incidents. Thus, a gift deed might create a title absolutely in favour of the donee or create only a life-estate with a further transfer to another person absolutely. Pre-emption may be alleged to be a sporadic practice only, and not a consistent crystallised custom and the absence of the custom can be proved by particular instances wherein it was departed from and there was no opposition to the departure.

583 PJ Fitzgerald, Salmond on Jurisprudence, 12th Edn, London, 1966, p 218. 584 See the discussion under the Chapter on relevancy of judgments, sections 40–44.

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4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING 14. Facts showing existence of state of mind, or of body, of 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.

(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. 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.

(c)

A sues B for damage done by a dog of B’s which B knew to be ferocious. 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 a 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.

(f)

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

Page 2 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith. (g)

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 C was 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.

(i)

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.

(j)

A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the 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.

(l)

The question is whether A’s death was caused by poison. Statements made by 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 an assurance 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. (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)

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.

Section 14 is one of the important sections that deals with physical and mental facts relating to a person. The section deals with facts relating to three aspects, viz, (a) State of mind; (b) State of body; and (c) State of bodily feeling 4.10.1 State of Mind As discussed under section 8, the basic principle of criminal law is that no act is a crime unless it is done with the requisite guilty intention.585 In almost all the offences, guilty mind is an essential component. However, mental condition may be relevant in civil cases also as in the case of fraud, malicious prosecution and negligence. Section 8 deals with a particular aspect of the guilty mind, ie, motive. Sections 14 and 15 are the other two other sections that touch upon the state of mind of a person from a wider perspective. Section 14 deals with different facets of the mental condition, viz, “intention, knowledge,586 good faith, negligence, rashness, ill-will or good-will towards any particular person.” While intention, knowledge, negligence, rashness and ill will are examples of the mens rea of a person, good faith587 and good-will are the elements that prove the absence of mens rea. For instance, sections 299 and 300 of IPC, 1860 dealing with the offences of culpable homicide and murder, respectively mention intention and knowledge as essential elements of the offences. Section

Page 3 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING 304A of IPC, 1860 speaks of causing death by “rash or negligent act.” Earlier, authors of Jurisprudence used to make a distinction between carelessness, recklessness, rashness and negligence588 but these concepts are being subsumed under the rubric of “negligence”.589 Sir John Salmond in his classic work on jurisprudence defines negligence as follows: “Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.”590 Hence, even “recklessness” has come to be defined in terms in which “negligence” is defined.591 As was stated above,592 the law requires the prosecution to prove the guilty mind of the accused even though the guilty mind is within his exclusive knowledge. In Singapagu Anjaiah v State of Andhra Pradesh, (2010) 9 SCC 799, para 16 : JT 2010 (6) SC 502 : 2010 (6) Scale 374, the Court observed: “as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused...” In Basdev v The State of PEPSU, AIR 1956 SC 488 : (1956) 1 SCR 363, a distinction was drawn between motive, intention and knowledge, and the Court stated: ....we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things...

Then, what are the means by which a person’s state of mind can be ascertained?593 (1) Own Statements The state of mind of a person is impossible to prove by direct evidence.594 It can be either by a person’s own statement or by circumstantial evidence if the state of mind is manifested in one form or the other.595 Of course, good evidence of a man’s mind is his own statement as to his mental condition. In Sahoo v State of UP, AIR 1966 SC 40 (3) : (1965) 3 SCR 86, the accused killed his daughter-in-law inside the house and came out muttering to himself words to the effect: “I have finished her once for all. Hereafter there will be no quarrels.” This statement of the accused, which amounts to a confession, is the best proof of his state of mind. But, as would quite often happen, a person may choose not to give out his true criminal mind596 and, as Brian, CJ, said “devil knoweth not what passes in one’s mind.”597 However, as Bowen, LJ, said, “it is true that it is very difficult to prove what the state of man’s mind at a particular time is, but if it can be ascertained, it is as much a fact as any thing else.”598 (2) Conduct: Sir James Fitzjames Stephen observed: “[T] he only possible way of discovering a man’s intention is by looking at what he actually did, . . . what must have appeared to him at the time the natural consequence of his conduct.”599 Perhaps, a man’s true intentions can be gauged more from what he actually did than what he said because a deceptive criminal may not tell what he intends and may not do what he tells. Under sections 8 and 9, it was seen that absconding by a person can give rise to an inference of his guilty mind; so also, the silence of a person in the face of accusation of the commission of an offence by him. By a process of deductive logic, the person’s mental condition can be inferred from a particular proven conduct. In illustration (a) to section 14: “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.” From A’s conduct of possession of a number of stolen articles, it is deduced that he had prior knowledge that they were stolen articles.600 (3) Intent and Negligent Conduct The borderline of distinction between an act with intent to kill and negligent conduct was highlighted in the Australian decision in Koani v R, [2017] HCA 42. Koani with intent to kill her gave to his de facto partner a modified loaded gun fully cocked which would discharge the bullet by mere touch of the trigger. The gun fired when the woman handled the gun, and the woman died with a single shot to her head. The trial judge told the jury that under section 302 (1) (a) of the Criminal Code (Q), the “act” causing death in a firearms case is the pulling of the trigger or another deliberate act causing the weapon to discharge and if the jury was not satisfied that the discharge of the gun was caused by a willed act, but was satisfied that the deceased’s death was the result of the appellant’s failure

Page 4 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING to use reasonable care in his management of the gun at a time at which he intended to kill or inflict grievous bodily harm on the deceased, he would be guilty of murder. The jury held Koani guilty of murder. But on appeal, the High Court held that the act of causing the death and the intent to kill must coincide and the jury could have held that Koani’s very act of giving the gun to the woman in the way he gave amounted to murder. But the intent to kill cannot be inferred from the alternative narrative of negligent conduct as the trial judge indicated. The conviction was quashed, and retrial was ordered. In Bachan Singh v State of Punjab, AIR 1980 SC 898 : 1980 Cr LJ 636 : 1982 (1) Scale 713, the Supreme Court propounded the theory of “the rarest of the rare cases” and held that death sentence should be awarded only in exceptional cases.601 The Apex Court pointed out that one of the aggravating factors was that “the murder involves exceptional depravity” on the part of the accused and that “in many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator.” In a judgment of 2011 of Surendra Koli v State of UP, (2011) 3 Mad LJ (Cr) 606, the Supreme Court found that the mental condition of “exceptional depravity” of the accused was demonstrated by: the facts of this case [which] are gruesome and horrifying. It seems that several children had gone missing over 2 years from ...2005 onwards. Several of such children were alleged to have been killed by the appellant who is also alleged to have chopped and eaten the body parts after cooking them... House no. D-5, Sector 31 had become a virtual slaughter house, where innocent children were regularly butchered.602

The Indian Courts appear to have adopted three approaches in dealing firmly with cases involving extreme depravity exhibited by the accused in the commission of the crime: 1. Awarding death sentence under the rarest of the rare cases doctrine propounded in Bachan Singh; 2. Ordering that prison sentences for multiple charges shall run consecutively and not concurrently under section 31 and section 427, Cr PC 1973;603 and 3. Ordering that the entire prison sentence shall run without giving the convict the benefit of parole or remission.604 Though the Courts have held that life sentence means “imprisonment for the whole of the remaining period of the convicted person’s natural life”605, still, it has been held that “a convict undergoing life imprisonment has no right to claim remission.”606 (4) Similar Acts Suppose the question is whether A shot and killed B intentionally and it is ought to be proved that A did it intentionally and not accidentally by showing (a) that A shot at B on earlier occasions, and (b) that, earlier, A has shot at X, Y and Z intentionally. For a common man, both facts might appear to have a bearing on the question in issue, ie, whether A shot at B intentionally, but it is obvious that fact (a) has far greater probative value than fact (b). Hence, law treats only fact (a) as relevant for the simple reason that A might have shot earlier at X, Y and Z intentionally but not at B. Similarly, the fact that A shot at B on an earlier occasion does not also necessarily mean that A shot at B now, but that fact is relevant not for proving that A shot at B now but only to prove his state of mind, ie, he shot at him intentionally. That is the reason why Explanation 1 to section 14 specifically states: 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. In Hollingham v Head, (1858) 140 ER 1135, the question was whether the Plaintiff sold guano (manure made out of the droppings of sea birds) to the defendant on certain special terms, and it was sought to be shown by the plaintiff that he sold guano to others on special terms. Willes, J, held that the evidence was not admissible and said: “I do not see how the fact that a man has once or more in his life acted in a particular way, makes it possible that he so acted on a given occasion.” But, Willes, J, proceeded to say: “Where, in deed, the question is one of guilty knowledge or intent, as in the case of uttering forged documents or base coin [counterfeit coin], such evidence is admissible as tending to establish a necessary ingredient of the crime.” The second part of Willes, J’s observation is exemplified in illustrations (a) and (b) to section 14. Explanation 1 is clarified through illustration (n) which says: “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.”

Page 5 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING Similarly, illustration (o) says: “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.” Here the fact that A on earlier occasions shot at B, which is relevant under the illustration, must have led to his prosecutions and might have resulted in convictions. Consequently, Explanation 2 provides: 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.

As in illustration (o), the purpose of proving the previous attempts at shooting at B and of proving his previous convictions under the Explanation 2 is not to show (a) that A has a bad character, which is barred by section 54, or (b) that A killed B but only to prove the state of mind of A, that is, that he shot at B intentionally.

585 In the “heart-rending story” of the Canadian case of R v ADH, 2013 SCC 28 : [2013] 2 SCR 269, a 22-year-old woman, who was already a mother of a baby, delivered a male baby in the washroom of Wal-Mart store and washed the room of blood and, thinking that the baby was born dead stuffed him in the toilet bowl. The store’s staff found the baby to be alive and sent the baby to hospital and the baby was resuscitated. When the woman was charged with the offence of “abandoning” or “exposing” a baby so as to cause risk to life or health under section 218 of the Cr PC, 1973, the woman pleaded that she was not aware that she was pregnant as all medical reports said that she was not pregnant and she had periods till the delivery, and that she did not pick up the baby as he was blue and she thought he was dead. On Crown’s appeal to the Canadian Supreme Court against her acquittal, the question was the fault element of the offence. “Is the fault element to be assessed subjectively or objectively?” Did the offence under section 218 contain a “subjective fault element” of her awareness of exposing the baby to risk of life or health, or did it contain an “objective fault element” of “a marked departure from that expected of a reasonable person in the same circumstances and that the risk to the child’s life or health would have been a foreseeable result by such a person?” (R v ADH, 2013 SCC 28, para 15 : [2013] 2 SCR 269). The Court said: “Subjective fault, of course, may also refer to other states of mind. It includes intention to bring about certain consequences; actual knowledge that the consequences will occur; or wilful blindness — that is, knowledge of the need to inquire as to the consequences and deliberate failure to do so.” (R v ADH, 2013 SCC 28, para 16 : [2013] 2 SCR 269).The Court referred, for comparison, to other offences under the Code dealing with negligence and observed: “The use of the word ‘negligence’ in the name of the offence suggests an objectively defined standard consistent with the meaning of the word ‘negligence’ in the common law of torts. On the other hand, the words ‘wanton and reckless disregard’ could be taken as describing actual knowledge of the risk created by the conduct and therefore a subjective fault element.” (R v ADH, 2013 SCC 28, para 61 : [2013] 2 SCR 269). Under section 218, “the text, context and purpose of s. 218 of the Code show that subjective fault is required” (R v ADH, 2013 SCC 28, para 75 : [2013] 2 SCR 269). Dismissing the Crown’s appeal and upholding the acquittal by the trial Court which was confirmed by the Court of Appeal, the Supreme Court held that she was not guilty of the offence under section 218 as she lacked the subjective element of awareness of risk. 586 In Zaburoni v R, [2016] HCA 12, para 14, where the question was whether the accused communicated HIV to the complainant with an intention to communicate, the High Court of Australia held: “Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.” It has been held that the prosecution cannot be subjected to the burden of proving that the accused circulated obscene material with the knowledge that it was obscene when section 292, IPC, 1860, does not “make knowledge of obscenity an ingredient of the offence.” Ranjit D Udeshi v State of Maharashtra, AIR 1965 SC 881 : (1965) 2 Cr LJ 8 : (1965) 1 SCWR 778. (Concerning the proscription of DH Lawrence’s novel, Lady Chatterley’s Lover. 587 Section 52 of IPC, 1860 defines “good faith” as: “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.” Section 111 of Evidence Act, 1872 deals with proof of good faith in transactions involving relationship of a fiduciary character. 588 Carelessness is failure to take such precautions that an ordinary prudent ought to take to avert the evil consequences of his own actions. Rashness is the mental attitude of a person who fails to take the precautions because he foolishly believes that those consequences will not ensue from his actions. Recklessness is total indifference as to whether the evil consequences follow or not. 589 The Supreme Court pointed out: “Negligence is the genus, of which rashness is the species...It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, with a hope they will not.” State of Karnataka v Muralidhar, AIR 2009 SC 1621, at p 1622, para 6. Sushil Ansal v State, (Delhi Upahar theater case) (2014) 2 SCC (Cri) 717: “Negligence has been understood to be an omission to do something

Page 6 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.” In Empress of India v Idu Beg, ILR (1881) 3 All 776, Straight, J, said that in the case of a rash act, “the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences”. 590 PJ Fitzerald, Salmond on Jurisprudence, 12th Edn, London, 1966, section 139. In cases involving criminal liability for medical negligence, Courts in India and UK are not in favour of imposing that liability unless there is “gross negligence”. In Martin F D’Souza v Mohd Ishfaq, AIR 2009 SC 2049 : 2009 (3) SCC 1 : 2009 (2) Scale 629, the Supreme Court said: “To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings.... for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.” The Supreme Court’s judgment in Jacob Mathew v State of Punjab, AIR 2005 SC 3180 : (2005) 6 SCC 1 : 2005 (6) Scale 130 contains a discussion of Indian and English decisions. See also, Dr PB Desai v State of Maharashtra, AIR 2014 SC 795 : 2014 (1) SCJ 208 : 2013 (11) Scale 429; ASV Narayanan Rao v Ratnamala, AIR 2014 SC (Supp) 605 : 2013 4 Mad LJ (Cr) 67. The first case after the enactment of Criminal Justice Act of 2003 in UK where the Court of Appeal (Crim Div) upheld the conviction and a sentence of two years’ imprisonment was that of the doctor of Indian origin in Garg v R, [2012] EWCA Crim 2520. However, the Court said: “this is not a guideline decision which purports to encompass the full ambit of sentencing in cases of manslaughter by gross medical negligence. Our decision reflects specific individual features of the case.” However, in R v David Sellu, (2013) the Central Criminal Court of England convicted a doctor of committing manslaughter by gross negligence and sentenced him to 21/2 years of imprisonment. http://www.judiciary. gov.uk/media/judgments/2013/r-v-sellu-sentencing-remarks. (last accessed in April 2019). 591 In Gillard v R, [2014] HCA 16, in a case concerning rape of a girl who was under a “position of authority” of the accused, a family friend, the High Court of Australia said: “recklessness as to consent is a state of mind of indifference as to whether the complainant is consenting.” The Court distinguished this state of mind from that of an accused who is heedless of the risk that he or she may be abusing a position of authority over the complainant or the risk that such abuse of authority may have caused the complainant to consent. 592 See text relating to footnote 67 above. 593 P M Bakshi, ed, Basu’s Law of Evidence, 6th Edn, vol 1, New Delhi, 1998, p 562. 594 Phipson says: “Intention, which is a state of mind, can never be directly proved as a fact.” Michael V Argyle, ed, Phipson On Evidence, 10th Edn, London, 1963, p 187, para 422. 595 JV Ryan says: “Such facts can be proved by only two ways, that is, either by the admission of the person whose mental condition is in question, or by inference.” J V Ryan, The Law of Criminal Evidence in British India, Calcutta, 1912, p 32. 596 Sarkar says even if a person gives out his mental feelings “it is obviously unsatisfactory when available.” M C Sarkar et al, eds, Sarkar’s Law of Evidence, 14th Edn, vol 1, New Delhi, 1993, p 263. 597 Sir Thomas Brian, CJ, in Y B Pasch, (1477) 17 Edw IV, f 2, pl 2, quoted by William O Douglas, J, in Scales v United States, (1961) 367 US 203. 598 Edgington v Fitzmaurice, (1885) 29 Ch D 483

.

599 James Fitzjames Stephen, A History of the Criminal Law of England, vol II, chapter XVIII, MacMillan & Co, London, 1883, p 111. 600 See the discussion under section 106 as to inference of intention from conduct of the accused. 601 Thus, in India life sentence has become the standard punishment in most of the murder cases. However, in cases where the judicial conscience was disturbed by the brutality of murder and depravity of the criminal, the Courts, in a series of cases, have adopted the device of awarding a prison sentence without any remission or parole. This was done by the Courts in a number of decisions. In Swamy Shraddananda @ Murli Manohar Mishra v State of Karnataka, AIR 2008 SC 3040 : (2008) 13 SCC 767 : 2008 (11) SCR 93 : 2008 (10) Scale 669, the Apex Court held: “In such a crime, while mulling over the vexed issue of adequate sentence in lieu of death sentence, this Court held that the Court had the power to substitute death by imprisonment for life and also to direct that the convict would not be released from prison for the rest of his life.” The Court also said: “The judicial innovation of bridging the gap between death sentence on the one extreme and only 14 years of actual imprisonment in the name of life imprisonment on the other, in our view serves a laudable purpose as explained in those judgments and does not violate any positive mandate of law in the Indian Penal Code or in the Code of Criminal Procedure.” However, in Sangeet v State of Haryana, AIR 2013 SC 447 : 2013 (2) SCC 452 : 2013 Cr LJ 425, para 58, the Court disagreed with its own earlier decision in Swamy and held: “The appropriate Government cannot be told that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be told that he cannot apply for a remission in his sentence, whatever the reason.” This conflict of judicial decisions was referred by the Court in UOI v V Sriharan @ Murugan, 2014 (11) SCC 1 : 2014 (5) SCJ 196 : 2014 (5) Scale 600 : JT 2014 (6) SC 377, to a Constitutional Bench, and in UOI v V Sriharan @ Murugan, (2016) 7 SCC 1, the Apex Court finally resolved the conflict by affirming Swamy and over-ruling Sangeet (para 105), and held that “a special category of sentence; instead of Death for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative.” Swamy and Sriharan were followed in Tattu Lodhi @ Pancham Lodhi v State of MP, (2016) 9 SCC 675. See, Madhurima Dhanuka, “A New Form of Life

Page 7 of 8 4.10 SECTION 14: FACTS SHOWING STATE OF MIND OR BODY OR BODILY FEELING Imprisonment for India?” in Life Imprisonment and Human Rights, Oxford and Portland, Oregon, 2016, pp 119–140. The Criminal Law Amendment Act of 2013 provides for life imprisonment with commutation and remission and without commutation in sections 370 and 376 of IPC, 1860. The Apex Court has expanded the area of application of the “rarest of rare” cases even to life imprisonment and held that “awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” Hem Chand v State of Haryana, (1994) 6 SCC 727; Hari Om v State of Haryana, (2014) Criminal Appeal No. 906 of 2012, 31 October 2014 (Supreme Court of India). In England, section 269 of Criminal Justice Act, 2003, empowers the Court to prescribe a “minimum term” (minimum tariff) that the convict should undergo while serving mandatory life sentence and “that the early release provisions are not to apply to the offender.” In R v Ian McLoughlin and Lee Newell, [2014] EWCA Crim 188, the Court of Appeal upheld the validity of these provisions. In United States, in Graham v Florida, 560 US 48 (2010), it was held that life sentence without parole, which is valid in adult cases, violates the Eighth Amendment when imposed on a juvenile in a non-homicide case. Graham was followed in Miller v Alabama, 132 S Ct 2455 : 183 L Ed 2d 407. 602 See also Budhadev Karmaskar v State of WB, (2011) 11 SCC 538 : (2011) 11 SCR 397 : 2011 (10) Scale 558 : JT 2011 (12) SC 15. In Soman v State of Kerala, 2012 (12) Scale 719 : (2013) 11 SCC 382 : JT 2013 (2) SC 512, the Supreme Court held that the consequences of the offence should also be taken into consideration and the fact that the victim died after consuming the spurious liquor sold by the appellant was “a ground for enhancing his sentence from two years to five years rigorous imprisonment.” Soman v State of Kerala, 2012 (12) Scale 719 : (2013) 11 SCC 382, para 23 : JT 2013 (2) SC 51. In Booth v Maryland, 482 US 496 (1987), an important issue was whether the consequences and the emotional impact suffered by the victim’s family as a fall-out from the crime and the characteristics of the criminal, and the feelings and the opinions of the family members about the crime and the criminal could be taken into consideration by the Court in determining the sentence. Under a Maryland statute, the “presentence report” in all felony cases also must include a victim impact statement (VIS), describing the effect of the crime on the victim and his family. The Court said: “As we have recognized, a defendant’s degree of knowledge of the probable consequences of his actions may increase his moral culpability in a constitutionally significant manner.... We nevertheless find that because of the nature of the information contained in a VIS, it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” The Court held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Booth v Maryland, 482 US 496, 501–502, 507, n10 (1987). See also, Payne v Tennessee, 501 US 808 (1991), where the Court expressed some reservations about Booth. But, in Bosse v Oklahoma, 580 US ___ (decided on 11 October 2016), the Court clearly reaffirmed Booth. In State of Rajasthan v Jamil Khan, (2013) 10 SCC 721 : 2013 (12) Scale 200, the Apex Court held that “aggravating factors qua the crime and mitigating factors qua the criminal should be properly balanced so as to decide whether an offence of murder would fall under the rarest of rare category to be visited with the extreme punishment of death.” However, in Sangeet v State of Haryana, AIR 2013 SC 447 : 2013 (2) SCC 452 : 2013 Cr LJ 425, the Apex Court cast serious doubts regarding the rulings in some earlier decisions and held “this Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look.” Sangeet v State of Haryana, AIR 2013 SC 447 : 2013 (2) SCC 452, para 80 : 2013 Cr LJ 425. 603 Ravindra Trimbak Chouthmal v State of Maharashtra, (1996) 4 SCC 148 : 1996 (2) Scale 368 : (1996) 2 SCR 1009; and Ronny @ Ronald James Alwaris v State of Maharashtra, AIR 1998 SC 1251 : (1998) 3 SCC 625 : 1998 (2) Scale 261. Referring to the above two cases, the Apex Court observed: “We are not unmindful of the fact that this Court has in several other cases directed sentences of imprisonment for life to run consecutively having regard to the gruesome and brutal nature of the offence committed by the prisoner.” Muthuramalingam v State Rep By Inspector of Police, AIR 2016 SC 3340, para 30 : 2016 (5) Supreme 581. Section 31, Cr PC, 1973, deals with “Sentence in cases of conviction of several offences at one trial” and section 427 deals with “Sentence on offender already sentenced for another offence.” It was also held that under section 427 (2) a second life sentence can be “superimposed” on the earlier life sentence so that the “subsequent sentence of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority” and, in the result, the convict will not get any practical benefit of that remission unless he is given the remission for the second life sentence also. Ranjit Singh v Union Territory of Chandigarh, AIR 1991 SC 2296 : (1991) 4 SCC 304, para 8 : 1991 (3) Crimes 414; and Muthuramalingam v State Rep By Inspector of Police, AIR 2016 SC 3340, para 31 : 2016 (5) Supreme 581. It is not enough that the convict has earned remissions unless the appropriate Government has issued the release orders after remission. Maru Ram v UOI, AIR 1980 SCC 2147 : (1981) 1 SCC 107 : 1980 Cr LJ 1440 (per VR Krishna Iyer, J). The appropriate Government can be the State or the Union Government or by the President of India or the Governor of the State under Articles 72 or 161, as the case may be. UOI v V Sriharan @ Murugan, 2015 (13) Scale 165 : (2015) 4 Mad LJ (Cr) 645. Prison Rules of respective States in India provide for remission. For instance, Ch XXI of Andhra Pradesh Prison Rules, 1979 (applicable also to State of Telengana), deal with “The Remission System” and provides for an Advisory Board of the prison on whose recommendations the concerned Minister issues the release orders in respect of particular prisoners. http://apprisons.gov.in/APPrisonsRules1979.pdf.(Last accessed in April 2019). 604 UOI v V Sriharan @ Murugan, 2015 (13) Scale 165 : (2015) 4 Mad LJ (Cr) 645. 605 Gopal Vinayak Godse v State of Maharashtra, AIR 1961 600, 1961 SCR (3) 440 : (1961) 63 Bom LR 517; and Maru Ram v UOI, AIR 1980 SCC 2147 : (1981) 1 SCC 107 : 1980 Cr LJ 1440. 606 Swamy Shraddananda @ Murli Manohar Mishra v State of Karnataka, AIR 2008 SC 3040 : (2008) 13 SCC 767 : 2008 (11) SCR 93, para 48 : 2008 (10) Scale 669.

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4.11 SECTION 15: ACCIDENTAL OR INTENTIONAL ACTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.11 SECTION 15: ACCIDENTAL OR INTENTIONAL ACTS Section 15. Facts bearing on questionwhether actwas accidental or intentional.When 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 from a different insurance office, are relevant, as tending to show that the fires were 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 counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

Section 15 deals with a situation where the question is whether an act is (a) accidental or intentional; or (b) done with particular knowledge or intention.

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4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION The term “accident” has a special connotation in the legal parlance. As a rule, A is liable for causing injury to B only if he has committed the act intentionally or negligently because, then, he is said to be at “fault”. This is also known as Fault Theory. If A’s act has caused injury to B without any fault on the part of A, ie, without intention or negligence, it is said to be an “accident” and A is not liable for the injury suffered by B. Accident is a valid defense both in the law of torts and criminal law. Thus, section 80 of IPC, 1860 says: Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

The ingredients of the above section are: •

An act done by any person is not an offence

•

If it is a lawful act done

•

∘

in a lawful manner by lawful means and

∘

with proper care and caution; and

He must have done that act ∘

by accident or misfortune; and

∘

without any criminal intention or knowledge

The above section requires that the person must have done the act which is lawful, in a lawful manner and by lawful means. Under section 301,607 for instance, if a person intending to shoot and kill A, by mistake shoots and kills B, the person is liable for murder of B though he did not intend to ill B. According to the Doctrine of Transfer of Malice, the person’s malice or mens rea towards A is transferred to B as the act he originally intended was itself an illegal act.608 It is sometimes said that “Intent follows the bullet”.609 Section 80 expressly excludes acts committed without “criminal intention or knowledge” and acts done with “care and caution”, ie, intentional or negligent acts. Thus, under section 80 as well as under section 301, all unforeseen consequences do not make the act accidental if the intended consequences of that act are themselves unlawful.610 Just because an act is not intentional, it does not necessarily mean that the person is innocent; he could be negligent and be criminally and civilly liable. Similarly, if an act is not accidental, it does not mean that it has got to be intentional; it could be a negligent act. Thus, under IPC, 1860, if A causes the death of B intentionally, it is murder under sections 300/302, and if he caused the death by rash and negligent act, it is a lesser offence under section 304A. A person may be liable without any fault (intention or negligence) on his part only in the exceptional case of absolute or strict liability. 4.12.1 Similar Acts under section 14 and section 15—Distinction611 Section 14 provides for proof of intention in a particular way; for instance, that A shot at B intentionally by showing

Page 2 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION that A shot at B on earlier occasions. The earlier similar acts of A disprove the possible defenses of accident as well as of negligence. But, as was discussed above while dealing with illustration (o) to section 14, that section would not permit evidence of A’s habit of shooting at people intentionally to prove that A shot at B intentionally. But, it is noteworthy that section 15 permits the proof of even such earlier acts provided those acts “formed part of a series of similar occurrences, in each of which the person doing the act was concerned”. Illustration (a) clarifies the above point and says: “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 from a different insurance office, are relevant, as tending to show that the fires were not accidental.” That A lived in several houses earlier, insured them and claimed insurance when they were burnt down are all similar acts that are not relevant under section 14 but are relevant under section 15 because they form part of a method or scheme or system of committing things or modus operandi. Phipson says that a single similar act may be adduced to show “knowledge” (as under section 14) but not a “system” (as under section 15).612 These similar earlier acts cannot be proved to show that the present act is intentional under section 14, but they can be proved under section 15 to show that the present act is intentional, because the present act cannot be considered as accidental if those acts satisfied the tests of section 15. The tests laid down for presuming the method or scheme under section 15 are: 1. The earlier acts formed part of a series 2. of similar occurrences 3. in each of which 4. the person doing the act was concerned. The word “concerned” in section 15 means “involved”. Both section 14 and section 15 deal with knowledge and when it comes to the question of relevance of the earlier similar acts in that context, there is some overlapping between the two sections. Illustration (b) to section 14 says: 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. 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.

Illustration (c) to section 15 says: 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 counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

In the illustration (b) of section 14 quoted above, “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” to show his knowledge though it was only a single earlier instance and though the victim then was a different person. In illustration (c) to section 15, “the facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental”; if it was not accidental for that reason, it means it was intentional and done with the knowledge that it was counterfeit. But here there are three persons C, D and E to form series of similar occurrences involving in each case the accused A. The words “soon before or after” in the above illustration show that under section 15, unlike under section 14, the similar acts need not be earlier but could be later ones. It is of crucial importance to note that both under section 14 and section 15 the similar acts are not admissible to prove the actus reus but only to prove the mens rea613; that is, similar acts cannot be adduced to show that, for instance, A gave a counterfeit coin to B but only to show that he did it with the knowledge that it was counterfeit. 4.12.2 Doctrine of “Signature Crime”: Modus Operandi or System—Cases of Serial Killers It is well-known that some criminals “specialize” in the commission of particular kinds of crimes like bank robberies,

Page 3 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION house-breaking. Some criminals exercise “territorial jurisdiction” and operate within certain areas or places like trains, and buses only. Some criminals commit offences in a particular way or method like killing by smashing the heads of victims with boulders, targeting only women and raping and killing them in a particular way. Thomas Gardner and Terry M Anderson define “signature crimes” as “crimes that are so similar that they bear the mark of common pattern. “614 The terms are also defined as: “any of two or more crimes that involve the use of a method, plan, or modus operandi so distinctive that it logically follows that the crimes must have been committed by the same person.”615 Thus, while the former definition highlights the identity of the crime pattern, the latter definition emphasises the identity of the criminal. The two aspects are the two sides of the same coin as it is the similarity of the pattern in the commission of the crime that leads to the identification of the criminal.616 The Courts and criminologists call those crimes as “signature crimes” because the method of operation or modus operandi is such that the method reveals the identity of the criminal just as a signature or a visiting card (“Calling Card”617) does. As was observed in a United States decision, “the admissibility of ‘signature crime’ evidence invariably involve [s] circumstances in which the fact of the crime is undisputed, but the defendant disputes that he or she was the perpetrator.”618 Similar facts evidence can also be used (a) to rebut the plea of accident or (b) innocent association or (c) to prove sexual intent.619 1) The case of Makin v Attorney-General for New South Wales, (1894) UKPC 56 : (1894) AC 57, a case going up in appeal to the Privy Council from Australia, is often quoted as illustrative of section 15. In that case, John and his wife Sarah Makin were charged with the murder of a baby whom they had received in adoption from its mother on payment of a sum insufficient for its support. The body of the baby was found buried in the garden of a house occupied by them. The Makins pleaded that the death of the baby was natural. Evidence was adduced that 12 other babies were also similarly fostered by the Makins and their bodies also were found buried in the gardens of the houses occupied by them earlier. Lord Herschell, LC, speaking for the Privy Council held the evidence to be admissible as it “bears upon the question whether the acts alleged to constitute the crime ...were designed or accidental or to rebut the defence which would otherwise be open to the accused.” The accused were found guilty and hanged. The above case is noteworthy for the reason that the question there was not “whether an act was accidental or intentional” because the defense in that case was that the death of the baby was natural. Thus, the case would come under the second part of the mental element under section 15, viz, “or done with a particular knowledge or intention”. 4.12.2.1 “Brides in the Bath Tub” Case In R v George Joseph Smith, (1915) 11 Cr App R 2-9, famous as “Brides in Bath Tub Murders”620, George Joseph Smith, with an alias Henry Williams, married Beatrice “Bessie” Williams, and on 12 June 1912, the woman’s dead body was found drowned in the bath tub. The question was whether the death was accidental as pleaded by the accused or homicidal. It was adduced in evidence that the accused married two other women Margaret Elizabeth and Alice Burnham with false names of John Lloyd and George Rose Smith, respectively, and the women were insured or wrote a will a few days before their death naming him as the sole beneficiary, and that they both died drowned in the bath tub. In the case of Beatrice, Smith tried to build up a smoke screen of consultation with a doctor that she was suffering from epilepsy and that she died because of epileptic seizure in the bath tub. The investigating officer and the pathologist conducted many experiments using women of physical build similar to that of the victims and bath tubs of similar dimensions and found that the drowning could have taken place only by Smith suddenly pulling the women’s legs up and putting their heads down in the water when they were bathing. There were no signs of flailing of hands or presence of much water in their lungs as they died more of shock arising out of the sudden rush of water into their nostrils. The jury took only 15 minutes to find Smith guilty and he was hanged on 13 August 1915. 4.12.2.2 Raman Raghav Case Sindhi alias Raman was tried, convicted and sentenced to death on 13 August 1969, by the Additional Sessions Judge, Greater Bombay for the double murder of two brothers, in Chinhavali Farm at Malad on the night between the 25th and 26th of August 1968. A horrific serial killer whose case rocked the city of Bombay in 1968, Raman Raghav accounted for killing 23 persons in 1966, a dozen in 1968 and perhaps more. The victims were mostly slum or pavement dwellers and they were killed by bludgeoning their heads with a blunt weapon when they were sleeping. When he was arrested and interrogated, he agreed to answer the questions only after he was fed with chicken curry and when he was so fed, confessed to many murders, various aliases like Anna, Thambi and Velusami and described his modus operandi. When the trial started in the Court of Additional Session Judge, Mumbai, on 2 June 1969, the counsel for defense contended that the accused was incapable of defending himself

Page 4 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION on account of unsoundness of mind and that even at the time of committing the alleged offences the accused was of unsound mind and incapable of knowing the nature of his acts or that they were contrary to the law. The accused was referred to the Police Surgeon for his medical opinion and the surgeon reported to the Court that the accused was a normal person and that he did not suffer from any mental disorder. In view of the medical opinion, the trial proceeded and Raghav pleaded guilty. A psychiatrist appeared as a defense witness and deposed that Raghav was suffering from chronic Paranoid Schizophrenia for a long time and was therefore unable to understand that his actions were contrary to law. The Additional Sessions Judge, Mumbai, held the accused guilty of the charge of murder and sentenced him to death. Raman declined to appeal. When the case was submitted to the High Court for confirmation as required under section 366 of Cr PC, 1973 (“Referred Case”), the High Court of Mumbai ordered that the Surgeon General, Mumbai, should constitute a Special Medical Board of three psychiatrists to determine whether the accused was of unsound mind, and secondly, whether in consequence of his unsoundness of mind, he was incapable of making his defense. Based on the Report of the Board that Raghav was incurably mentally ill at all critical times of the case as he was suffering from Paranoid Schizophrenia, and that he had delusions of being a representative of kaanoon (Law) and Goddess Shakti and a severe persecution complex, the High Court confirmed the conviction but reduced his sentence to one of life imprisonment.621 4.12.2.3 Evidence of “Propensity” to Commit Offences622 and Prejudicial Effect: Common Law Countries Though at one time the “propensity” evidence was considered by House of Lords as “pitted battlefield”623 and its exclusion as “one of the most deeply rooted and jealously guarded principles of our criminal law,”624 the United Kingdom has moved away from that position.625 Section 103 of the Criminal Justice Act, 2003 mentions “propensity to commit offences of the kind with which he is charged” of the accused as relevant to prove his bad character.626 It is said that the probative value of propensity evidence must “outweigh” its prejudicial effect on the jury.627 In R v Holmes, [2014] EWCA Crim 420, where a woman was sexually assaulted by a man in a dimly lit street at night, the prosecution, in a two-step approach, tried to adduce evidence of previous convictions of the accused in sex-related offences (bad character) to prove “propensity to commit the offence” and then sought to derive proof of the identity of the accused from similarity of offences showing propensity. But the Court of Appeal declined to be persuaded to accept either propensity from dissimilar sexual offences or poor identification of the accused by the victim though it was not a mere “fleeting glance.”628 Section 43 of New Zealand Evidence (NZE) Act of 2006 provides: (1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

Under section 40 (1)(a) of the NZE Act “propensity evidence” is defined as: “... evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved ...”629 Section 97 of the Australian Evidence Act, 1995, also bars evidence of bad character and “tendency” evidence “to act in a particular way, or to have a particular state of mind.” However, section 97 (1)(b) states that such an evidence is permissible where the court thinks that the evidence “will have significant probative value” and under section 101 (2) unless “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.630 4.12.2.4 Chandrakant Jha v State, (2016) Delhi In the case of Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, the appellant “serial killer”, Chandrakant Jha filed three appeals impugning three convictions under sections 302 and 201 of the IPC, 1860 after headless torsos of unknown persons were found packed in a gunny bag/carton outside the Central Jail, Tihar, Delhi on three separate dates when the FIRs were registered. The prosecution pointed out the significant similarities in the three charge sheets and noted in the judgments: 1. the identity of the perpetrator; 2. similarity of the motive; 3. the pattern in which the offences were committed by decapitating the heads of the victim and throwing the headless torso outside the Tihar Jail, Delhi. In the last two cases, body parts like arms and legs were chopped and the amputated parts were thrown in and around Delhi.631 The Delhi High Court (per Sanjiv Khanna, J) made a review of the legal position in the light of the doctrine and case law, and stated that there was the need to make “a thin distinction between the ‘bad character evidence’ and ‘similar fact evidence’.” Khanna, J, observed: ‘Bad character evidence’ would stress and emphasise on the criminal or immoral traits and antecedents of an individual, whereas in ‘similar fact evidence’ the emphasis is predominately on similarity of facts along with safeguards to demonstrate

Page 5 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION that it is legally permissible to rely on such evidence.

Thus, while the bad character evidence shows the general crime-prone nature of the accused, similar fact evidence is case- and fact-specific. In the context of section 15 and its illustration (a) as to whether the act of the accused is “intentional or accidental” or, in other words, whether the act is guilty or innocent, Khanna, J, pointed out that: ‘Similar fact evidence’ can be led when there is a nexus between the similar fact and the main fact in issue. Apposite, when several distinct offences demonstrate a continuity of action, evidence of previous or subsequent acts would, common sense states, become relevant.... A series of transactions or acts are relevant when they seek to bring about a certain result and obtain certain object...Mere similarity is not sufficient and is not a common link, but a pre-existing plan or design and where one transaction forms a part of a series designed to bring about certain result with a certain object, the connection envisaged above exists. For example, when A is required to prove that B has committed a fraud, it is neither sufficient nor relevant to prove that B had committed fraud on others, but it may become relevant if it is to be shown that the fraud committed on B was a part of series of other transaction having common features.632

Khanna, J, observed that “similarity in evidence principle can be applied to rule-out probability of co-incidence, mistake or innocent intent, as well as to identify the perpetrator”633 and “in determining, whether the facts alleged were intended/deliberate, or accidental.”634 These observations of Khanna, J, regarding “similarity” of acts forming part of “series of other transactions” need to be understood in two different ways. First, if the question is whether A shot at B intentionally, the fact that A attempted to shoot at B on one or more earlier occasions is relevant to show that it is an intentional act as it formed part of a scheme or design to kill B (section 14, illustration (i)) This situation demonstrates A’s “disposition” towards B and is different from a second one where it is sought to be shown that A burnt down his house to claim insurance because he was in the habit of burning down his houses and claiming insurance money as he has done earlier. This is similar to insurance claim in illustration (a) to section 15. The first case clarifies A’s state of mind as intentional and not innocent, whereas the second case points to the modus operandi of the accused and shows that the act is intentional and not accidental.635 In both the cases, there is no doubt as to identity of the actor but the issue is whether the action was intentional or not. In the first case, the animus is proved by what A has done to the same victim B earlier, and in the second case, the animus is proved by what A has done to different houses with the same object. Both prove the bad character of the accused in a different way—the first with the same victim and the second with different victims (as was the case with the accused Chandrakant Jha). Khanna, J’s observations pertain to the first case above, and must be distinguished from the second case for which the “Striking Similarity” test was propounded by Lord Salmon in Boardman v DPP, [1975] AC 421, as follows: It has never...been doubted that if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.

In O’Brien v Chief Constable of South Wales Police, [1975] AC 421, Lord Bingham stated: “That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied.” However, in DPP v P, [1991] 2 AC 447, Lord MacKay of Clashfern, LC, differed from Boardman and said: But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle.

Lord MacKay proceeded to lay down the “probative force test” that should be balanced against “prejudice to the accused”: the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.

Page 6 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION Stating that the relationship between the evidence relating to one victim and the evidence relating to another victim as critical, Lord Mackay stated that “striking similarities” test will be only one of the factors and “such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed.” After referring to the altered legal perspective of the House of Lords,636 Khanna, J, observed: The significant development made by the above case law, enables ‘similar fact evidence’ to be tendered as admissible to prove the identity of the perpetrator, to establish the actus and not merely to demonstrate mens rea of the offence charged. The ‘similar fact evidence’ rule, as evolved and perfected, states that evidence of similar facts is often irrelevant, unless it is admissible under the exceptions, i.e. it is relevant and the probative value out-weighs the prejudicial effect....637

4.12.2.5 “Similar Occurrences”, Propensity and Criminal Standard of Proof The previous conduct of the accused may be relevant under the Indian Evidence Act, 1872, inter alia: 1. As forming part of the same transaction under section 6; 2. Under section 8 in relation to the fact in issue; 3. Under section 10 consisting of whatever is said, done or written by the conspirators in reference to common intention; 4. Under sections 14 and 15 to prove his mens rea, or his identity under the doctrine of “Similar facts”; and 5. Under section 54 if it is adduced in rebuttal of his good character. If the previous instances of bad character themselves amounted to offences, the fact that the accused was prosecuted and convicted for the offence or offences will also be relevant, for instance, as under sections 8, 14 (2), 15 and 54 (2). As the previous convictions would have been made by applying the standard of “proof beyond reasonable doubt”, no further proof of such bad character would be necessary in any subsequent case against the accused. If the prosecution wants to adduce instances of prior bad character per se without their resulting in prosecutions or convictions, the problem of their proof in the present case arises. Archibald says: “Where nonconviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth.”638 Then, in the case at hand, should the Court apply the criminal standard of proof beyond reasonable doubt to each of the prior instances before it can act on their evidentiary value? R v Mitchell (2016)—landmark decision639 The above issues and the issues relating to propensity were together reviewed by the Supreme Court of UK in R v Mitchell, [2016] UKSC 55, against the background of the earlier Common Law rules making bad character of the accused irrelevant and in the light of altered UK statutory position as mentioned above. Briefly the facts are that Ms Mitchell was charged with the murder of a man by stabbing him with a knife and the prosecution tried to prove Ms Mitchell’s previous bad character “for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. None of the episodes to which the proposed evidence related had resulted in a conviction.”640 The previous bad character consisted of several stabbings and over a period of time. The Supreme Court referred to the earlier decided cases dealing with bad character and propensity. They were: •

R v Armstrong, [1922] 2 KB 555: Single earlier instance of arsenic poison.

•

R v Ngyuen, [2008] 2 Cr App R 9, para 16: Only one incident of previous misconduct was involved, so that proof of propensity might be said to have merged with proof of the facts involved in that incident.

•

R v Kilbourne, [1973] AC 729: Sexual offences against two groups of boys over a period of time.

•

R v O’Dowd, [2009] EWCA Crim 905 : [2009] 2 Cr App R 16, paras 16 & 84: Three other allegations of rape, two of which related to events that occurred 22 and 17 years before the indicted charges. Because of the introduction of bad character evidence that led to “the intensive investigation of satellite issues”, the trial had been unnecessarily prolonged and rendered unduly complex. The convictions were therefore quashed.

Page 7 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION •

Makin v Attorney General for New South Wales, [1894] AC 57: Several earlier cases of burial of kids in the backyard of house over a period of time.

In R v Hanson, (2005) 1 WLR 3169, para 7, the Court of Appeal said that there were essentially three questions to be considered: 1. Does the history of conviction (s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction (s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted? The Court held: There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged offence charged.641

In the case of Mitchell, the Supreme Court said that the issue as framed by the Court of Appeal with regard to “nonconviction bad character evidence on the issue of propensity” reinforced “the impression that the Court of Appeal considered that the facts of each incident said to establish propensity had to be proved to the criminal standard before the jury could have regard to it.”642 The Supreme Court stated that “a distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists.”643 Should the jury in Mitchell consider the previous non-conviction instances “in isolation from each other” so as to make “it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred?” Stating that the answer to the question is “no”, and disagreeing with the Court of Appeal the Supreme Court held: Decisions about propensity should not be the product of a review of facts about separate episodes in hermetically sealed compartments... It was, of course, necessary to lead evidence of the three incidents. The jury should have been directed to consider whether the sum of that evidence established to the criminal standard that the defendant was possessed of the propensity which was alleged. The evidence in relation to those incidents should have been considered cumulatively, not as separate aspects of the case for a propensity, isolated one from the other...the proper question to be posed is whether the jury is satisfied that a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt.644

The Court held significantly that: The jury is entitled to - and should - consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury’s deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform another. The question impelled by the Order is whether, overall, propensity has been proved.645

4.12.2.6 Appraisal The above statutory developments and judicial pronouncements in the common law countries regarding relevance of evidence demonstrating the “propensity” to commit crimes bear some similarities with the doctrine of “Similar Acts” under section 14 and the doctrine of “Series of Similar Occurrences” under section 15. As pointed out above in the discussion on those two sections, similar act or acts will be relevant under section 14 only if the act or acts relate to the same fact in issue and illustration (p) to section 14 exemplifies that point. The illustration says: 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. The fact that A, on

Page 8 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION 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 is irrelevant.

Though the above illustration uses the plural “other occasions”, it is clear from illustration (i) that one single earlier instance also is equally relevant provided that it relates to the same fact in issue. Illustration (i) says: 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.

Hence, it is evident that section 14 does not deal with “propensity” but deals with the “intent” of the accused vis-àvis the victim. Section 14, in fact, expressly excludes propensity by stating in Explanation 1 that “relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question”; that is, it should be case-specific. It is the doctrine of “series of similar occurrences” in section 15 that closely resembles the doctrine of propensity but the Indian formulation appears to exclude the case of a single previous “occurrence” as it requires “series” of “similar occurrences”. Thus, in R v Ngyuen, [2008] EWCA Crim 585, the Court of Appeal of UK approved the approach of the trial judge to treat a single prior case of attack by using a broken pint glass as a weapon as evidence of “tendency”. It is doubtful whether such a single similar prior incident can satisfy the test of “series of similar occurrences” under section 15. The celebrated example suggested by Lord Hailsham in DPP v Boardman, [1975] AC 421, p 449, was that of the offender who always wears a particular form of head dress while committing offences. As discussed already, the modus operandi is the “signature” or what Murphy calls the “the hallmark of individual offender”.646 As pointed out in R v Hanson, (2005) 1 WLR 3169, para 9, “a single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behavior” or as Lord Salmon said in DPP v Boardman, [1975] AC 421, where it is committed “in a uniquely or strikingly similar manner”. But, as pointed out above, under section 15, a single previous similar incident will not be sufficient to convict the accused. As observed by Khanna, J, in Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 10, evidence of “similar facts” can be used “to prove the identity of the perpetrator, to establish the actus and not merely to demonstrate mens rea of the offence charged.” It is the conduct of the accused that demonstrates his propensity or proclivity to commit the crime in question. Such a conduct is usually antecedent to the crime in question, but it can be subsequent also provided it forms part of the modus of the accused. In that sense, “propensity” consists of two sides of the persona of the accused, viz, the subjective “state of mind” translating itself into an objective “course of conduct”. Under section 15, the issue of propensity arises only where the question is whether “the act was accidental or intentional” but that issue might arise also where the accused takes the plea of self-defense as in R v Mitchell, [2016] UKSC 55, para 6, discussed above and some other cases referred to in that case. Again, criminal propensity demonstrated by a “series of similar occurrences” might involve border-line pathological mental condition as in Raman Raghav case referred to above and a defense of insanity, but it may also occur in usual cases of bank frauds and manipulation of accounts. An issue of critical importance is the scope of application of propensity demonstrated by similar facts evidence as an exception to the rule prohibiting proof of bad character. “Bad character” is the genus, and propensity, proclivity and disposition are species. As pointed above, in DPP v P, [1991] 2 AC 447, Lord MacKay, LC, differed from DPP v Boardman, [1975] AC 421, and said that “restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence....to cases in which there is some striking similarity between them is to restrict the operation of the principle” and that “striking similarities” test should be only one of the factors in the application of the “probative force test” that should be balanced against “prejudice to the accused”. Lord MacKay’s “probative force test” in preference to “striking similarities test” of DPP v Boardman, [1975] AC 421, found favour with Khanna, J, who held in Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 10, that “a pragmatic and a practical approach stands applied and adopted.”647 It is submitted, with great respect, that both in Common Law countries and India, “similar occurrences” test is only one of the exceptions to the Common Law “bad character” rule and is not per se conclusive proof of the guilt of the accused. That test only helps in fixing the parameters of the concept of the amorphous “propensity” and makes relevant and admissible what was hitherto barred as “bad character”.648 The “striking similarities test” stands on par, and nothing more, with other relevant evidence in assessing the “cumulative” probative value of the occurrences. That was what the Supreme Court had taken pains to clarify and put in correct perspective in R v Mitchell, [2016] UKSC 55. The Court held that: (1) The earlier “non-conviction” instances need not each be proved in a series of individual mini-trials and the jury should

Page 9 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION view the evidence of the “totality” of the instances “cumulatively” and “the jury is entitled to - and should - consider the evidence about propensity in the round” to satisfy the criminal standard of proof; and (2) The Court has to be satisfied that “propensity” is proved to the criminal standard in the case at hand.

607 Section 301 states: Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause”. 608 In R v Gnango, [2011] UKSC 59, A and B were engaged in shooting each other in a public place and during the fight, a stray bullet from A’s gun hit and killed a girl who was on her way home. The Supreme Court held that while A would be guilty of murder on the basis of the doctrine of transfer of malice, B also will be liable for murder on the ground of joint liability of engaging in affray with A and the doctrine of transfer of malice. See also the detailed discussion of the case under section 19 above. 609 David C Brody and James R Acker, Criminal Law, 2nd Edn, 2010, p 86. The doctrine is applied also in the case of torts like false imprisonment, assault and battery. Bici v Ministry of Defence, [2004] All ER (D) 137 : [2004] EWHC 786 (QB). The doctrine is not without its critics and as a “legal fiction” it is “uniformly disparaged”. Peter Westen, “The Significance of Transferred Intent”, in Criminal Law and Philosophy, vol 7, 2013, p 321. It is said that “difficulties arise if the defendant kills someone else in the course of killing the person he intended to kill. Is the defendant guilty of two murders? If so, he is guilty of more than one crime that requires the intent, even though he had only single intention to kill... Suppose that the defendant fired a single bullet that passed through his intended victim, killing him and a bystander as well.” Douglas Husak, The Philosophy of Criminal Law: Selected Essays, Oxford, 2010, p 101. 610 Douglas Husak, The Philosophy of Criminal Law: Selected Essays, Oxford, 2010, p 101. The Doctrine of Transfer of Malice has a long vintage. As early as in 1886, in R v Latimer, 17 QBD 359, the Court held the accused liable when the belt he used to hit A ricocheted and injured a woman standing by. Lord Coleridge held: “If a person has a malicious intent towards one person, and in carrying into effect that malicious intent he injures another man, he is guilty of what the law considers malice against the person so injured.” Also, R v Saunders, (1573) 2 Plowd 473; R v Mitchell, [1983] QB 741; but the Court refused to extend the concept to damage to property in R v Pembliton, (1874) LR 2CCR 119. In Re Attorney General’s Reference (No. 3 of 1994), [1994] Crim LR 766, the House of Lords refused to apply to a situation where D attacked a pregnant woman with the result that the child was born prematurely and died. Though D was held liable for manslaughter of the child that was not on the basis of transferred malice, that concept would apply where the action of D had a direct effect on the unintended victim. Here the effect on foetus (inducing premature delivery) which in turn contributed to the child’s death was indirect and transferred malice was not applicable. This concept as enacted in section 301, IPC, 1860, was applied in a host of decisions in India. Emperor v Mushnooru Suryanarayana Murthy, (1912) 22 Mad LJ 333 (even if there is contributory cause like the vicitn picking up poisoned halva); Shankarlal Kachrabhai v State of Gujarat, AIR 1965 SC 1260 : (1965) 1 SCR 287: (whether the victim was within the sight or not when the shot was fired); Rajbir Singh v Uttar Pradesh, AIR 2006 SC 1963 : 101 (2006) CLT 788 (SC) (accused must not have intended to cause the death of the victim) (last accessed in April 2019); Jagpal Singh v State of Punjab, AIR 1991 SC 982 : 1991 Cr LJ 597 : 1991 (1) Crimes 177 SC; Hari Shankar Sharma v Mysore, 1979 UJ (SC) 659; Gyanendra Kumar v State of UP, AIR 1972 SC 502 : 1972 Cr LJ 308 (SC); Shanabhai Balubhai Nayak v State of Gujarat, 2004, Gujarat, Criminal Appeal No. 830 of 1996, decided on 16 August 2004 (Gujarat High Court); Abdul Ise Suleman v State of Gujarat, 1995 Cr LJ 464; State of Rajasthan v Ram Kailash @ Ram Vilas, AIR 2016 SC 634 : 2016 (1) Scale 604. 611 See also the discussion under section 54, infra. 612 Michael V Argyle, ed, Phipson On Evidence, 10th Edn, London, 1963, p 202, para 463. 613 Ernest Cockle, Leading Cases and Statutes on the Law of Evidence, 1903, p 102. 614 Thomas Gardner and Terry M Anderson, Criminal Evidence: Principles and Cases, 7th Edn, 2010, p 78. 615 Merriam-Webster’s Dictionary of Law (1996). 616 In this context, an interesting question in the matter of sentencing is whether the prosecution made the charge that the accused committed a series of similar offences or that the accused committed the offence he is charged with and the scheme of committing similar offences is used only to establish his identity. In Moorov v HM Advocate, 1930 JC 68 : 1930 SLT 596, discussed in detail below, Lord Sands observed: “Had the charge, as originally formulated, of a scheme of the accused to inveigle young girls into his employment for immoral purposes been made good, the sentence pronounced [4 years imprisonment], so far from being too severe, would hardly have been adequate. The unfortunate formulation of this charge has, as it appears to me, coloured the whole case, and is largely responsible for the difficulties which have arisen.”

Page 10 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION 617 Robert D Keppel and William J Birnes, Signature Killers: Interpreting the Calling Cards of the Serial Murderer, New York, 1997; John E Douglas and Corinne Munn, “Violent Crime Scene Analysis: Modus Operandi, Signature, and Staging”, in FBI Law Enforcement Bulletin, February 1992. In the Canadian case of R v Jesse, 2012 SCC 21 : [2012] 1 SCR 716, the appellant was charged with sexually assaulting a severely intoxicated woman, JM, by inserting a foreign object into her vagina. At trial, the Crown sought to introduce similar fact evidence showing that, in 1995, a jury had convicted the appellant of sexually assaulting another severely intoxicated woman, JS, by inserting two large foreign objects into her vagina. The trial judge held: “The evidence of similar fact from the 1993 incident regarding the accused and J.S. is what I find conclusive in terms of the guilt of Larry Jesse in relation to the 2005 incident. It is his highly unusual ‘calling card’ of inserting foreign objects into the vaginas of passed out women as found in the case of J.M. that permits me to conclude his guilt in this case of the offence of sexual assault as charged.” Both the Court of Appeal of British Columbia and the Supreme Court of Canada dismissed the appeals by the accused, with the Supreme Court holding: “Because similar fact evidence is presumptively inadmissible, its probative value must exceed its prejudicial effect. In this case, the prejudicial effect of admitting the prior conviction did not warrant its exclusion. The appellant’s prior conviction for sexually assaulting J.section had significant probative value. Admitting it did not, per se, render the trial unfair or occasion irretrievable prejudice to the appellant.” It is very significant that all the three Courts treated a single act of previous crime by the accused which was said to be “highly unusual” as coming under “similar facts” or “calling card” evidence. There was no “series of similar occurrences” as required under section 15 of the Indian Evidence Act, 1872. In what is known as “Moorov Doctrine”, it was held in the Scottish case of Moorov v HM Advocate, 1930 JC 68 : 1930 SLT 596, that the close interrelation in time, place and circumstances between different offences committed by the same person demonstrated that this amounted to a single course of conduct which could be proved by single witnesses to each offence corroborating one another. The Court said: “The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found.” In this case, Lord Sands, in his separate opinion, observed: “A ‘course’ involves some continuity. Acts isolated by a long period of time do not make a course of conduct. But whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances. A course does not necessarily imply that the offence is committed or attempted every day or even every month. Opportunity or inclination may be intermittent. A man whose course of conduct is to buy houses, insure them, and burn them down, or to acquire ships, insure them, and scuttle them, or to purport to marry women, defraud and desert them, cannot repeat the offence every month, or even perhaps every six months.” See also, Scottish Law Commission, Report on Similar Fact Evidence and the Moorov Doctrine, May 2012, available at: www.scotlawcom.gov.uk/index.php/download_file/view/1004/138/. (Last accessed in April 2019). 618 State v Pinnell, 311 Or 98, 112, 806 P2d 110 (1991). In State v Sterling, 15 Or App 425, 428–430, 516 P2d 87 (1973), “signature crime” evidence was held to be admissible when defendant raised defense of misidentification in rape prosecution. 619 Criminal Law in Solomon Islands, Royal Solomon Islands Police, Chapter 8: Admissibility of Evidence, para 8.5.4. http://www.paclii.org/sb/criminal-law/ch8-admissability-of-evidence.htm. (Last accessed in April 2019). 620 The case became the theme of radio and stage plays as “The Bath Tub” and “The Mysterious Mr Love” and also a TV movie “The Brides in the Bath” in 2003. 621 On finding that the accused was suffering from Paranoid Schizophrenia, the High Court first postponed the confirmation proceedings under section 465 (1) of Cr PC, 1973 and sent the accused to Yerwada prison. Then, the State preferred an appeal to the Supreme Court on the grounds that (1) it was only the Sessions Court and not the High Court that could postpone the confirmation proceedings under section 465, Cr PC, 1973, and that (2) the High Court implicitly accepted the ipse dixit the Medical Board’s findings. The Apex Court dismissed the appeal on both the counts. State of Maharashtra v Sindhi @ Raman, AIR 1975 SC 1665 : (1975) 1 SCC 647 : 1975 SCR (3) 574. Then, the High Court heard the parties and confirmed the conviction but reduced the death sentence awarded by the Sessions judge to life imprisonment for two reasons: (a) section 354 (3) of Cr PC, 1973 was amended in the meantime in 1973 making the life sentence the rule and death sentence an exception and (b) the mentally ill convict had already undergone 19 years of imprisonment. Maharashtra v Sindhi @ Raman, (1987) 89 Bom LR 423. 622 See also the discussion under section 15, supra. 623 DPP v Boardman [1975] AC 421, at p 445 (per Lord Hailsham). 624 Maxwell v DPP, [1935] AC 309, at p 317 (per Lord Sankey). 625 The UK Law Commission (LAW COM No 273) in its report on “Evidence of Bad Character in Criminal Proceedings”, (October 2001), para 1.17, recommended that “leave may be given to the prosecution if (1) the evidence has substantial probative value in relation to a matter in issue which is itself of substantial importance, and (2) the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.” 626 See also, Report of Court of Appeal Criminal Division, “Bad Character”, December 2012, pp 17–18. http://www.judiciary.gov.uk/publications-and-reports/reports/crime/court-appeal-criminal-division/appeal-court-criminaldivision-annualrpt-11-12. (Last accessed in April 2019). Also, David A Hamer, “Probative But Still Prejudicial? Rethinking Exclusion of Propensity Evidence in Sexual Offence Cases”, Sydney Law School Research Paper No 10/21. Available at SSRN: http://ssrn.com/abstract=1548196 (last accessed in April 2019). The accused’s propensity or

Page 11 of 12 4.12 ACCIDENT, INTENTION AND NEGLIGENCE—DISTINCTION predisposition has been held to be relevant in other jurisdictions also. In the Australian case of BBH v R, [2012] HCA 9, the father was convicted of maintaining unlawful sexual relationship with a child below the age of 16 by the District Court and Court of Appeal of Supreme Court of Queensland on the basis of testimony of the brother of the child that the accused has demonstrated on earlier occasions a propensity to take sexual interest in the child. The High Court of Australia dismissing the appeal by the accused held that the Trial Court rightly held that W’s testimony was relevant because it demonstrated the applicant’s propensity to take undue sexual interest in the complainant. Also the Canadian case of R v Morelli, 2010 SCC 8 : [2010] 1 SCR 253. See, Basyle J Tchividjian, “Predators and Propensity: The Proper Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions”, available at https://digitalcommons. liberty.edu/cgi/viewcontent.cgi?article=1052&context=lusol_fac_pubs.(Last accessed in April 2019). 627 But in Pfennig v R, (1995) 182 CLR 461, at p 528, McHugh, J, said: “The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial.” 628 R v Holmes, [2014] EWCA Crim 420, paras 11, 25 and 26. 629 In B v R, [2013] NZSC 151, para11, where the New Zealand Supreme Court held that the complainant in a rape case had the propensity of inviting males to her home on some pretext for sexual overtures, it was held to be inadmissible as evidence if it related to males other than the accused as such “reputation” evidence is barred under section 44 of NZE Act. 630 See, IMM v R, [2016] HCA 14. 631 Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 107. 632 Ibid, paras. 17–18. 633 Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 21. 634 Ibid, para 6. 635 Under section 15 the question is narrow, and it is whether the act is accidental or intentional. Just because the act is not accidental, it need not necessarily be intentional, and it could be negligent. In the latter case, the question of whether it is intentional or negligent can be answered by reference to section 14. 636 “The exposition of the principles in DPP v P represents an authoritative statement of the relevant law as it presently stands in England.” Criminal Law in Solomon Islands, Royal Solomon Islands Police, Chapter 8: Admissibility of Evidence, para 8.6.3. Available at: http://www.paclii.org/sb/criminal-law/ch8- admissibilty-of-evidence.htm (last accessed in April 2019). 637 Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 10. The High Court in its sentencing remarks held: “In light of the above, whilst not confirming the death sentence proposed by the trial court, we award punishment of life imprisonment with a direction that Chandrakant Jha would not be released on remission for remainder of his natural life. This direction would not affect the power under Articles 72 and 161 of the Constitution of India.” 638 John F Archbold, Criminal Pleading, Evidence and Practice, London, 2015, para 13.68. 639 R v Mitchell, [2016] UKSC 55. 640 R v Mitchell, [2016] UKSC 55, para 7. 641 R v Hanson, (2005) 1 WLR 3169, para 9. See also, R v Bowman and Lennon, [2014] EWCA Crim 716. In R v McDonald, [2011] EWCA Crim 2933, the Court observed: “The more specific the similarities between the previous convictions and the index offence, the more relevant are those convictions and the more substantial the argument for their admission in evidence.” In R v Gillespie, [2011] EWCA Crim 3152, the Court held that under sections 101 (1)(d) and 101 (1)(f), Criminal Justice Act 2003, bad character evidence relating to a defendant’s previous fraudulent conduct could be admitted even though no prosecution had arisen from it. 642 R v Mitchell, [2016] LTKSC 55, para 18. 643 R v Mitchell, [2016] LTKSC 55, para 39. 644 Ibid, paras 49, 52 and 54. 645 Ibid, para 43. 646 Richard Glover, Murphy on Evidence, 13th Edn, Oxford, 2013, p 176. 647 Chandrakant Jha v State (Govt of NCT) of Delhi, (2016) 228 DLT 81 : (2016) 229 DLT 398, para 10. 648 In fact, Lord Wilberforce said in Boardman: “There must be ‘a strong degree of probative force’ based on the ‘striking similarity’ of the material facts.” DPP v Boardman, [1975] AC 421.

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4.13 SECTION 16: COURSE OF BUSINESS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IV RELEVANT FACTS—PART I > Sections 6-16

IV RELEVANT FACTS—PART I Sections 6-16

4.13 SECTION 16: COURSE OF BUSINESS 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 dispatched. 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.

This section is based on the maxim “all acts are presumed to have been done rightly and regularly.” The two illustrations to the section refer to questions of whether the letters posted have been dispatched or received. Similar language may be found in section 34 which speaks of relevance of entries made in the books of account “regularly kept in the course of business.” Section 32 (2) deals with the relevance of statements and entries made in the books kept “in the ordinary course of business” by persons who are dead, not found. Section 114, illustration (f) says that “the Court may presume...that the common course of business has been followed in particular cases”, and illustration (f) in the second list of illustrations to the same section says that the above “maxim” may not apply to a case “where the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by the disturbances.” As the Law Commission of India pointed out in its 69th Report: the distinction between S. 16 and S. 114, illustration (f) is that while the former makes the course of business relevant, the latter empowers the Court to draw a presumption that the course of business was followed in the particular case.649

In other words, section 16 enables a party to prove the “existence” of a course of business to prove that a particular act was done and section 114 confers the discretion (“May presume”) on the Court to draw the presumption that the course of business was in fact followed in a particular case. In illustration (b) to section 16, a presumption would arise, on the basis of facts that the letter was posted and was not returned by the Dead Letter Office, that the letter reached the addressee but there is no presumption as to the date or time of reaching.650

649 Law Commission of India, 69th Report on The Indian Evidence Act, 1872, p 163. Emphasis in the original. 650 The principle of illustration (a) is also covered and even extended as to time of delivery by registered post by section 27 (Meaning of Service by Post) of the General Clauses Act of 1897. Section 27 says that “unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post,

Page 2 of 2 4.13 SECTION 16: COURSE OF BUSINESS a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” See also the discussion under section 114, illustration (f).

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Sections 17 to 23 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

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5.1 DEFINITION OF ADMISSION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.1 DEFINITION OF ADMISSION Section 17 defines an admission as follows: Admission defined.-An admission is a statement, oral or documentary or contained in electronic form, 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.

The ingredients of section 17 are: (1) An admission is a statement, oral or documentary (2) which suggests any inference as to any fact in issue or relevant fact and (3) which is made (a) by any of the persons, and (b) under the circumstances hereinafter mentioned. The definitional part of section 17 states that “an admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact”. Section 18 says that admissions can be made in any “proceeding”. •

The reference to “any inference” shows that the definition is neutral in character in the sense that it covers not only the statement that goes against the interests of the maker but also statements that are selfserving. As pointed out by the Law Commission of India, “although in popular language, the expression ‘admission’ is used to connote a statement against one’s interests, that is not the meaning given to it in the Act.”1 In fact, section 21 treats a self-serving statement also as an admission as is evident from its illustration (d) which states:

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.

Admissions can be made not only in civil proceedings but also in criminal proceedings. Under English law the term “admission” is used only in civil cases and all admissions in criminal proceedings are called ‘confessions’.2 However, in India confessions as well as admissions falling short of confessions can be made in criminal proceedings. Otherwise, admissions made to a police officer will be hit by section 25 of the Act. This distinction will be discussed later in greater detail in the chapter on confessions. However, the definition in section 17 is incomplete as section 17 refers to the provisions that follow it for identifying

Page 2 of 2 5.1 DEFINITION OF ADMISSION the persons by whom and the circumstances in which the admissions can be made. Sections 18, 19 and 20 deal with persons whose statements are considered as admissions and sections 21, 22 and 23 prescribe the conditions in which the admissions can be proved.

1

The 69th Report of the Law Commission of India (1977), p 165, para 9.1.

2

Rupert Cross, “Confessions and Cognate Matters: An English View”, Colombia Law Review, vol 66, No 1 (January 1966), pp 79–93.

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5.2 CLASSIFICATION OF ADMISSIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.2 CLASSIFICATION OF ADMISSIONS 5.2.1 Oral and Documentary Section 17 defines admissions as statements “oral or documentary” and, generally, the Evidence Act does not indicate any preference for the documentary vis-à-vis oral admissions. In most cases the difference might lie more on the reliability of a particular admission than whether it is written or oral. But, when it comes to the question of proving the contents of a document, section 22 provides that the oral admissions of its contents are inadmissible “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.” Thus, if the question is whether a document is genuine or not, an oral admission by the executant, for instance, that it is genuine may be sufficient to prove its genuineness. Its contents cannot be proved by oral admission unless the party shows that he is entitled to give secondary evidence under section 65. However, section 65 bars proof of the contents of certain documents by oral admissions and permits proof only by a certified copy. Similarly, where the existence, condition and contents are admitted in writing, section 65 insists that they can be proved by written admissions only. With regard to electronic documents, section 22A provides that, except in cases where their genuineness is in question, oral admissions as to their contents “are not relevant”. 5.2.2 Statement and Conduct The question whether ‘conduct’ as such can be treated as amounting to statement and the interface between statement and conduct under the Evidence Act have to be looked at from different perspectives. (1) Admission by Conduct As seen above, section 17 defines an admission as a “statement, oral or documentary”. Then, should conduct by way of nods also be treated as a kind of statement? In contrast, the United States Federal Rules of Evidence, 2014, provide in “Definitions” in Rule 801: (a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Rule 801 (d)(2) states that a statement, as defined above, can be proved as against an opposing party and this would obviously include admissions. Hence, under US Federal Rules an admission can include “nonverbal conduct, if the person intended it as an assertion.” Section 20 of the Nigerian Evidence Act, 2011, defines an admission as “a statement oral or documentary, or conduct....” Monir observes:

Page 2 of 4 5.2 CLASSIFICATION OF ADMISSIONS

In certain cases, conduct, i.e., flight, silence, demeanour may amount to an admission. Strictly speaking conduct cannot be construed as an admission as it is neither oral nor documentary. (Section 17).3

Hence, it is said that section 17 deals only with oral and documentary admissions and does not include admissions by conduct which are covered by section 8, and by section 115 if the conduct operates as estoppel. It must, however, be pointed out that all admissions may not operate as estoppels, and an admission per se would be admissible as against the party making it even if it does not fulfill the conditions of section 115 to operate as estoppels. In fact, section 31 makes this clear by providing that “Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.” (2) Confession by Conduct As ‘confession’ is treated as a species of admission, if an admission cannot consist of mere conduct, confession also cannot consist of conduct. Monir gives another dimension to the matter. He says: A confession is a species of admission. It is defined in section 17 as an oral or documentary statement. Hence it follows that mere conduct like absconding is not a confession. 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.4

Thus, it can be inferred from the above observation of Monir that if the conduct amounts to an assertion it can amount to an admission or confession. Adrian Keane and Paul McKeown observe: Where an out-of-court accusation is made against a party, his answer, whether given in words or conduct, may constitute an admission insofar as it amounts to an acknowledgement of the truth of the whole or part of the accusation made. Presumably, even silence, by way of reply, will amount to a ‘statement’ when accusation is made in circumstances such that it would be reasonable to expect some explanation or denial.5

While absconding or hiding or concealing of weapon by the accused may not amount to statement but only a piece of circumstantial evidence as Monir rightly says, a nod (of ‘yes’) to the question: did you commit the offence? would amount to an admission which is also a confession. Hence, a distinction should be made between the conduct of nods and gestures as assertions which are part of an oral statement amounting to admission or confession and mere stand-alone conduct like absconding which cannot be considered as statement.6 This interpretation would bring Indian position close to that of US under the Federal Rules referred to above. (3) Dying Declaration by Conduct As will be discussed under section 32, the words “statements, written or verbal” in that section have been held to include the conduct of signs and gestures made by the declarant in response to questions as part of dying “declaration”, as the term employed there is “verbal” and not “oral”. (4) Testimony by Conduct As will be discussed under section 119, “signs” made by a witness “who is unable to speak” or a dumb witness are “deemed to be oral evidence”. This provision must be treated as a special case as even written replies by the dumb witness are deemed to be oral evidence and no principle of general application can be drawn from this. (5) Statements not Conduct While the above provisions look at the question whether conduct amounts to statements, section 8, Explanation 1 states that statements do not per se amount to conduct and provides: Explanation 1— The work “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.

Page 3 of 4 5.2 CLASSIFICATION OF ADMISSIONS As discussed already under section 8, though in normal parlance the conduct of a person would include statements made by him as both are voluntary acts of the same person, Explanation 1 excludes statements unless they accompany and explain conduct otherwise relevant. But, the last part of the above explanation clarifies that it would not “affect the relevancy of statements under any other section of this Act” and this would include the categories (1) to (4) above. 5.2.3 Self-serving and Self-harming Suppose the question is whether A borrowed a sum of money from B. The implications of section 17 can be analyzed by taking two different sets of admissions as examples. (1) The account book of A contains an entry that a certain amount of money was received from B. The account book of B contains an entry showing that he lent the sum of money to A on a certain day. Both the entries are statements that “suggest an inference” that B did lend the money to A and, hence, are admissions within the meaning of section 17. (2) The account book of A contains no entry regarding the receipt of money from B. The account book of B, however, contains an entry showing that he lent the sum of money to A on a certain day. Here also both the entries suggest an inference as to the question in issue but with the difference that B’s account book suggests the inference that he lent the money but A’s account book denies that inference. So, technically, both are admissions in terms of section 17. In both the examples, entries in B’s account book help or serve his cause of proving that he lent the money. These admissions are called self-serving admissions and they could be false and unreliable as anybody can make entries in his own account books that he lent huge amounts to X, Y or Z. On the other hand, in set (1) the account book of A contained an entry that he borrowed the money from B and this admission harms his interests because it exposes him to the liability of a debt. A’s admission is reliable as common sense suggests that nobody would admit that he owes money unless it is true. As the Supreme Court observed: 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. Indeed, it would be the best evidence.7

It must, however, be mentioned that the definition of admission contained in section 17 is neutral and treats both the self-serving as well as self-harming statements as admissions but it is section 21 which makes the distinction and, as a rule, treats the latter and not the former as admissible. Whether an admission is self serving or not is to be determined with reference to the interests of the person making them. In fact section 21 permits the proof of selfserving admissions in certain exceptional circumstances. Hence, as a rule, it is only the self-harming and not selfserving admissions which are admissible under section 21. Section 21 will be discussed in greater detail later. 5.2.4 Formal or Judicial and Non-formal or Evidentiary Ernest Cockle says: Admissions thus expressly made in the proceedings prior to or at the trial are sometimes called formal or express admissions, to distinguish them from those informal or casual statements made by a party against his interest...8

Thus, if a party admits, for instance, in the pleading (Plaint, and Written Statement or “counter”) that he executed a document,9 it is a formal or judicial admission; and if the admission is made, for instance, in a letter to a friend it is a non-formal or evidentiary admission. Section 17 does not make any distinction, in the matter of relevancy, between admissions made in pleadings (Formal) and admissions made otherwise (Non-formal). Section 58 of Evidence Act deals with formal admissions and they are discussed under that section. (this part is omitted from here and integrated in section 58— No fact need to be proved in any proceeding which the parties thereto their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such

Page 4 of 4 5.2 CLASSIFICATION OF ADMISSIONS admissions.

Thus, under section 58, even if a party has admitted certain facts, the Court has the discretion to accept the admission or to insist that the facts should be proved not by admission but by other evidence. Similarly, under sections 229, 241 and 252 of Code of Criminal Procedure 1973 (Cr PC 1973) if the accused admits to his guilt and pleads guilty i.e., confesses, the Court may either accept the plea of guilty and convict him forthwith, or may not accept the plea and order that the trial should proceed. Order XII of Code of Civil Procedure 1908 also deals with the formal admissions and says in Rule (1) that “any party to a suit may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.” Under Rule 2A (1) “every document which a party is called upon to admit, if not denied specifically or by necessary implication...shall be deemed to be admitted...” It is this provision that section 58 of Evidence Act (quoted above) is referring to when it speaks of “any rule of pleading in force at the time they are deemed to have admitted by their pleadings.”) The Supreme Court pointing out the difference between the two kinds of admission in the matter of weightage observed: Admissions in pleadings or judicial admissions, admissible under section 58, made by their parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding upon the party that makes them and constitutes a waiver of proof...On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves not conclusive. They can be shown to be wrong.10

3

M Monir, A Textbook on the Law of Evidence, 8th Edn (New Delhi, 2010), p 81.

4

M Monir, A Textbook on the Law of Evidence, p 98.

5

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 10th Edn, (Oxford, 2014), p 358.

6

Absconding as a species of mere conduct may be found in the following two illustrations to sections 8 and 9: Section. 8 (f) The question is, whether A robbed B. The facts that, after B was robbed, C said in and A’s presence- “the police are coming to look for the man who robbed B.” and that immediately afterwards A ran away, are relevant. Section 9 (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...

7

Satrucharla Vijayarama Raju v Nimmaka Jaya Raju, (1996) 1 SCC 212.

8

Earnest Cockle, Leading Cases on the Law of Evidence, (1903), p 38.

9

In fact under O X, rule 1, the Court is required, at the first hearing of the suit, to ask each party or his agent “whether he admits or denies allegations of fact as are made in the plaint or written statement.” Order XII, Rule 1 states: Notice of admission of case---Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. See also section 294 Cr PC 1973 to similar effect, and the discussion under section 58 infra.

10 Nagin Ramdas v Balpatram Ichcharam, (1974) SCC 242, at p 252.

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5.3 USE OF ADMISSION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.3 USE OF ADMISSION An admission can be used for two purposes: 1. An admission made by a party is a substantive piece of evidence against him; as the Supreme Court said: “Admissions as defined in sections 17 and 20 and fulfilling the requirements of section 21 are substantive evidence, proprio vigore. An admission is the best evidence against the party making it...”11 In Slatterie v Pooley,12 it was observed: “What a party himself admits to be true may reasonably be presumed to be so.” An admission is “though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.”13 2. In Bharat Singh v Bhagirathi,14 the Supreme Court held that an admission is substantive evidence of the fact admitted, and that admissions duly proved are “admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.” 3. It is said that “The purpose of proving an admission of a party is not to contradict a statement given by the party as a witness to the case. The purpose is to prove the case of the party who relies on the admission.”15 4. An admission as a former statement made by a witness can be used for the ancillary purpose of corroborating him under section 157 or contradicting him under section 145 of the Indian Evidence Act, 1872. In Bishwanath Prasad v Dwaraka Prasad, (1974) 1 SCC 78, the Supreme Court (per VR Krishna Iyer J), disagreeing with a series of earlier decisions16, pointed out the difference between the two uses of admission as follows: There is a cardinal distinction between a party who is the author of prior statement and a witness who is examined and is sought to be discredited by the use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of section 21; in the latter case a prior statement is used to discredit the credibility of witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the Court cannot be invited to disbelieve a witness on the strength of the prior contradictory statement unless it has been put to him, as required by S. 145.

In Bharat Singh v Bhagirathi, AIR 1966 SC 405, it was held that the effect of admission is to shift the burden of proof and it is for the person making the admission to explain and it was not necessary that it should be put to him in cross-examination under section 145.

Page 2 of 2 5.3 USE OF ADMISSION 11 Thiru John v Returning Officer, AIR 1977 SC 1724. 12 Slatterie v Pooley, [1840] 6 M&W 664, at p 669. But, it is said: “...is it necessarily so where the facts admitted lie outside the knowledge of the party in question?” FG Richings, “Admission of facts Outside a Party’s knowledge”, 92 South African Law Journal (1975), 246, p 246. 13 Narayan Bhagwantrao v Gopal Vinayak Gosavi, 1960 AIR 100, 1960 SCR (1) 773. 14 [1966] 1 SCR 606 : AIR 1966 SC 405. Also, UOI v Moksh Builders and Financiers Ltd, AIR 1977 SC 409. 15 Ajodhya Prasad Bhargava v Bhawani Shanker Bhargava, AIR 1957 All 1, para 20. 16 This decision of the Supreme Court is in disagreement with earlier decisions where the Courts have taken the view that for admission to be adduced in evidence it must be put to the maker in the witness box and he should be confronted under section 145. Ude Bhan v Daulat Ram, 170 IC 315; and the Privy Council decision in Bal Gangadhar Tilak v Shrinivas Pandit, 39 Bom. 441; Tara Singh v State, AIR 1951 SC 441.

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5.4 RATIONALE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.4 RATIONALE Though it is stated to be an exception to the hearsay rule17, an admission is treated as admissible in evidence for certain valid reasons. •

What is admitted by the party to be true must be presumed to be true, unless the contrary is shown.18 A party shall not be heard to state that what he himself stated must be subjected to the usual tests of oath, truth and cross examination.19

•

It is said that an admission is not as much of a proof of a fact as the waiver of its proof. Suppose A files a suit against B for the recovery of money under a promissory note. It is for A to prove the promissory note signed by B by filing it in the Court. If B in his written statement (counter) admits that he did execute the promissory note but avers that he did not receive the money under it, A is relieved of the burden of producing the note because under section 58 facts admitted need not be proved. Thus, in reality the promissory note is not proved by its production by either party but its proof is waived by B’s admission. It is submitted that ‘waiver of proof’ cannot be postulated as the rationale of admissions as waiver explains only the effect of admission and not its justification. The question that still remains is: why should it operate as waiver?

•

It is said that as an admission is, as a rule, a self-harming statement, it can be taken as true as persons might make false self-serving but not self-harming statements. This is, perhaps, one of the persuasive reasons for accepting the admission as proof vis-a-vis its maker but this is subject to two riders: (a) as pointed above, section 17 covers self-serving as well as self-harming statements and section 21 permits proof of the former under certain conditions; and (b) under section 31 admissions are not conclusive proof of the matters admitted.

17 There seems to be a difference of opinion as to whether admissions are to be treated as an exception to the hearsay rule. In Shatleric v Poolef, (1840) 151 ER 579, dealing with a case of oral admission of the contents of a document, Parke, B, said: “The rule as to the production of the best evidence is not at all infringed. It does not apply to the present case. That rule is founded on the supposition that a party is going to offer worse evidence than the nature of the case admits. But what is said by a party to the suit is not open to that objection. We, therefore, think it is a sound rule that that the admission made by a party to a suit may be received against him.” 18 Nathoo Lal v Durga Prasad, AIR 1954 SCC 355. 19 The 69th Report of the Law Commission of India (1977), p 165, para 9.7.

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5.5 WHO CAN MAKE ADMISSIONS? Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.5 WHO CAN MAKE ADMISSIONS? Section 18 provides: Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived - 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 made 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. Statements made by (1)

by 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)

by 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.

Under section 18 the following persons can make admissions: (1) a party to the proceeding, or by an agent to any such party, (2) parties to suits suing or sued in a representative character; (3) 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, (4) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit. 5.5.1 Party to Proceeding: Under the Indian Evidence Act, 1872, admissions can be made by “party to the proceeding” and the proceeding can be of civil or criminal in nature. Hence, plaintiff and defendant in a civil case, and the prosecution and the accused in a criminal proceeding can make binding admissions. A complainant in the case of non-cognizable offence like adultery (section 497 if IPC) or defamation (Section 500 of IPC) or a prosecutrix in a rape case is also in the position of a party to the criminal proceeding and can make admissions. •

An admission must be an unambiguous statement of the party.

•

An admission can be proved as against the party making them and not as against others.20 Important exceptions are (a) under section 10 anything said by one conspirator can be proved as against himself and

Page 2 of 4 5.5 WHO CAN MAKE ADMISSIONS? also as against other co-conspirators; (b) a confession (being an admission of guilt) made by a co-accused can be proved s against the other co-accused if the conditions of section 30 are satisfied; and (c) admissions made by persons with joint or derivative interest can be used as against each other under section 18. •

The Indian Evidence Act, 1872, is not clear as to whether an admission of a co-plaintiff or co-defendant can be used against other plaintiffs or defendants. As a matter of principle and policy, an admission made by a person should not be permitted to be used against his co-plaintiffs or co-defendants except to the extent of his interest in the subject matter of the suit.21 Otherwise, a co-defendant or co-plaintiff can collude with the adverse party and make an admission favourable to that adverse party.22

•

An admission made by a party in an earlier suit can be used against him in a later suit23, and whether the proceedings are between the same or different parties and whether they are civil or criminal in nature.24

•

An admission made by a witness of a party does not bind the arty.25

5.5.2 Agent of a Party It is a well-established principle of agency applicable under the law of contracts, the law of torts and the criminal law that the principal is bound by the admissions made by his agent. To bind the principal by his admissions, the agent must be regarded by the Court to have had express or implied authority to act on behalf of the principal.26 Members of a partnership are bound to each other as principals and agents and the admission made by one can be proved as against the other. Similarly, admission made by a partner is provable against the partnership firm also. Section 186 of the Contract Act, 1872, says that “The authority of an agent may be expressed or implied” and section 187 provides: An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.

Section 18 of the Partnership Act of 1932 states: “Subject to the provisions of this Act, a partner is the agent of the firm for the purposes of the business of the firm” and section 23 dealing with “Effect of Admission by a Partner” provides: An admission or representation made by a partner concerning the affairs of the firm is evidence against the firm, if it is made in the ordinary course of business

Apart from persons who may be employed as agents, the parties’ attorneys and advocates are also treated as their agents and they can bind their clients by admissions in civil cases. Admissions made by an advocate bind the client on questions of fact but not of law.27 However, in criminal cases admissions made by the advocate do not relieve the prosecution of its burden to prove the case beyond reasonable doubt. Persons with representative character include trustees, executor and administrator of a will. Persons with proprietary or pecuniary interest include co-owners or joint owners of property and co-defendants in a civil suit. The persons must be having joint and not common interest in the subject matter of the suit.28 The principle of the section was stated as follows: When several persons are jointly interested in the subject-matter of the suit, an admission of any of these persons is receivable not only against himself but also against the other defendant, whether they be all jointly suing or sued, provide that the admission relates to the subject matter of the dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered.29

Persons with derivative interest are of three kinds: (1) by privity in law. E.g. the relationship between the executor or administrator of a will and the legatees and heirs;

Page 3 of 4 5.5 WHO CAN MAKE ADMISSIONS? (2) by privity in blood. E.g. relationship between a person and his descendants and ascendants; and (3) by privity in estate, that is relationship established by a contract or deed. E.g. transferor and transferee of property. Thus, admissions made by the executor or administrator of a will or testament will bind the persons named in the will as legatees and heirs. Similarly, an admission made by the father, for instance, that his house was under a mortgage will bind the son as his successor. An admission made by the vendor of a plot of land that it was subject to a right of easement will bind the vendee. Where section 18 provides for the proof of admissions made by persons other than the parties, the section provides for certain built-in safeguards. Thus, the agents must be authorized expressly or by implication, and persons with representative character or with joint interest or with derivative interest must have made the admissions while they were holding such character. 5.5.3 Admission by Third Parties Sections 19 and 20 deal with admissions made by persons who do not have any direct connection with the matter in dispute or, in other words, persons who may be called third parties. The two sections are exceptions to the general rule that admissions by strangers to the suit or “occasional admissions”30 are not admissible in evidence.31 However, an admission to be relevant under these sections, it should fulfill the conditions laid down in sections 17 and 21. Section 19 provides: 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. Illustration 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 admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

In the above illustration, A’s liability to collect rent from C depends upon C’s liability to pay rent to B. If, hypothetically, B filed a suit against C for recovery of rent due from him, C’s admission that he is liable to pay rent to B would have been admissible as against C. So, section 19 says that C’s admission would be admissible in the suit filed by B against A for not collecting rent from C, and B’s contention that C is not liable to pay will fail as C admitted that he has to pay. In the suit between B and A, C is a stranger but his admission is made relevant because if there was a suit between B and C, the latter’s admission would have been relevant. The noted author Field32 gives the following example: A and B are jointly liable for a sum of money to C. C brings an action against A alone. A objects that he cannot singly or severally be liable and that B should be joined as a co-defendant by being jointly liable. An admission by B to his joint liability is relevant between A and C.

• Section 20 provides: Statements made by person 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

Page 4 of 4 5.5 WHO CAN MAKE ADMISSIONS? is an admission.

The illustration is taken from the English case, Williams v Innzs, (1805) 1 Camp 364, where Lord Ellen borough remarked; If a man refers another upon any particular business to a third person, he is bound by what this third person says or does concerning it as much as if that had been said or done by himself

In the above illustration, C’s position is that of what is called in English law a ‘referee’ and if C says that the horse is not “sound”, the admission is binding on A as he himself put C in his own shoes by referring B to C. Stephen opined that the “referee” is in the position of an arbitrator as it has been held by English Courts that the referee’s admission was conclusive on A.33 However, under the Indian Evidence Act, 1872, while C’s admission is binding on A, it is not conclusive as under section 31, A can still show that C was wrong in his assessment of the quality of the horse.

20 Santon v Percival, 5 House of Lords Cases 273. 21 Lachman Singh v Tansukh, (1884) 6 All 395. 22 Kashmira Singh v Madhya Pradesh, AIR 1952 SC 159. 23 Basant Singh v Janki Singh, AIR 1987 SC 341. 24 Dattatreya Shripati v Shankar, (1951) 61 Bom LR 792. 25 Krishna Mohan v Bal Krishna Chaturvedi, AIR 2000 All 334. 26 Govindji v Chotalal, (1900) 2 Bom LR 651. 27 Govindji Jhaver v Chhotalal Velsi, 2 Bom LR 651. 28 Dan v Browne, 4 Comen. 483. 29 Meejan Mathar v Alimudden, (1916) ILR 44 Cal, 130, at p 143. 30 M Munir, Text Book on the Law of Evidence, 7th Edn, revised by Dr Manjula Batra (Delhi, 2006), p 70. 31 Coole v Braham, (1848) 3 Exchequer 183. 32 Field, 6th Edn p 91, referred to in the 185th Report of the Law Commission of India, p 104. 33 Sir James Jitzjames Stephen, Digest of Criminal Law, Article 19, note.

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5.6 CONDITIONS FOR PROOF OF ADMISSIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.6 CONDITIONS FOR PROOF OF ADMISSIONS •

Section 21 is an important provision which lays down the conditions and circumstances in which an admission can be proved. The section says: 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) 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. Illustrations (a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that 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 crime committed 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).

Page 2 of 3 5.6 CONDITIONS FOR PROOF OF ADMISSIONS (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 person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last preceding illustration.

As mentioned in the discussion under section 17, the definition of “admission” therein is neutral in the sense that it includes self-serving as well as self-harming admissions. It is section 21 (1) which lays down the basic principle that “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.” In other words, self-harming admissions can be proved by a party but not self-serving admissions. Illustration (a) explains this principle. The rationale of section 21 has been mentioned above under the classification of admissions into self-serving and self-harming admissions. Section 21 mentions three exceptions to the above principle and under these exceptions self-serving admissions can be proved by the person making them. Exception (1) The illustration (b) says: A, the captain of the ship is tried for casting the ship away, that is, allowing it to drift away from its course or route. A wants to adduce in evidence the logbook maintained by himself wherein the details of the cruise and course followed by the ship are recorded in the ordinary course of business for the purpose of proving that he did not cast the ship away. As the logbook is maintained by the captain himself, the entries therein are selfserving statements and would have been barred under the opening part of section 21. But as the entries in the logbook are made in the ordinary course of business, they would have been relevant under section 32 (2) between third parties if the captain were dead, not found. Section 21 makes an exception in this case for the reason that the statement in the logbook, though a self-serving one, might be true as it satisfies the two safe guards of section 32 (2) that (a) the entry was made in the ordinary course of business; and (b) the book was kept in the ordinary course of business. In the case of this particular illustration, two other features are noteworthy. Firstly, the captain did not know, at the time he made the entries, that they were self-serving. But, as it has been held, admissions are admissible even though, when made, they were not against the party’s interests34 and though the party was unaware of its implications. Secondly, the entries in the logbook were made at a time when the controversy had not arisen---i.e., ante litem motam. However, the admissions are only declared to be admissible by section 21 by lifting the bar, but they are not, as provided by section 31, conclusive of what they state. Exception (2) The second exception relates to: •

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.

Section 14 declares that “facts... 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.” Thus, while section 14 deals with “facts”, section 21, exception relates to “statements” showing the state of mind, and section 21 also applies the safeguard of section 8 that a mere statement is not relevant unless it is accompanied by conduct, with the additional

Page 3 of 3 5.6 CONDITIONS FOR PROOF OF ADMISSIONS condition that the statement should be contemporaneous with the feeling and such as to render the falsehood of the statement “improbable”. Illustration (d) says: 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.

The reason given above for permitting the statements is that “they are explanatory of conduct influenced by facts in issue.” This sounds almost like an illustration to section 8 as what is relevant under section 8 is conduct whereas under section 21 it is the statement whose veracity is established by conduct accompanying it. Illustration (e) which deals with the state of mind of the person who is accused of possessing a counterfeit coin states that the “facts” that he got the coin tested by an expert and that he assured him of its genuineness can be proved under section 21. Exception (3) The third exception says that a self-serving admission may be proved by its maker “if it is relevant otherwise than as an admission.” In other words, what is inadmissible under section 21 may be admissible under some other section and the bar of section 21 will not apply to such a case. This exception is mentioned only out of abundant caution because it goes without saying that if a statement is relevant otherwise than as an admission under some other section of the Indian Evidence Act, 1872, such a statement will be relevant under that other section. Section 22 is dealt with under the heading “Is section 63 Section Exhaustive?” in the discussion on section 63.

34 Falcon v Famous Players Film Co, (1926) 2 KB 474, at p 489.

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5.7 “STATEMENTS WITHOUT PREJUDICE” Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.7 “STATEMENTS WITHOUT PREJUDICE” Section 23 provides: 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. Explanation—Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126.

If there is a dispute between parties and they have gone to a Court for adjudication, often they enter into negotiations by themselves or through a mediator/conciliator to seek an amicable “out of Court” settlement. During these negotiations, both the parties try to be flexible and make proposals to each other expressing readiness to settle for something less than what they claimed in the Court. Suppose the claim is for compensation of Rs 10 lakhs for injuries suffered due to the negligence of the other party. In the Court, the other party may totally deny that he was negligent but during negotiations he might admit to his negligence if the claimant settles for, say, Rs 5 lakhs. The claimant might also propose, as a part of bargain, that he will settle for a compensation of Rs 7 lakhs. If the negotiations ultimately fail, neither of the parties shall be allowed to prove in the Court the various admissions they might have made as a part of negotiations. The Arbitration and Conciliation Act of 1996 provides in section 31 (1): 30. Settlement.—(1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

Section 81 of the 1996 Act treats the communications between the parties during the negotiations for conciliation settlement as “statements without prejudice” and bars the introduction in evidence, in the subsequent arbitration or judicial proceedings, the admissions and proposals made by the parties during conciliation efforts. Section 81 states: 81.Admissibility of evidence in other proceedings.— The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,— (a)

views expressed, or suggestions made by the other party in respect of a possible settlement of the dispute;

(b)

admissions made by the other party in the course of the conciliation proceedings;

(c)

proposals made by the conciliator;

Page 2 of 5 5.7 “STATEMENTS WITHOUT PREJUDICE” (d)

the fact that the other party had indicated to accept a proposal for settlement made by the conciliator.

5.7.1 Application of Rule in Criminal Cases Section 23 expressly confines the application of the “statements without prejudice” to civil cases only. Consequently, the rule does not apply to compounding of offences under section 320 of Cr PC 1973. However, that rule is made applicable even to cases of “plea bargaining” in criminal cases under Cr PC 1973 as amended and section 265K of Cr PC 1973 provides: Statements of accused not to be used.-Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

5.7.2 Juridical Bases of the Rule The juridical bases of the principle are stated by Lord Oliver in the leading case Cutts v Head, (1983) EWCA Civ 8, as follows: (a) it is the policy of law that the parties must be encouraged to settle disputes amicably and that litigation is avoided and (b) the parties have expressly or impliedly agreed that the statements should not be proved in a Court of law to their prejudice.35 In Schering Corp v Cipla Ltd, (2004) EWHC 2587 (Ch), Laddie, J, held that behind the above two bases is the third principle: The Court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the Court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient.

In later decisions, the English Courts have extended the scope of the rule. The rule is not confined any more only to admissions or limited to two party situations or to cases where the negotiations do not produce a settlement agreement. It was held that in general the rule makes inadmissible in any subsequent litigation connected with the same subject-matter proof of any statements made with a genuine intention to reach a settlement and that admissions made to reach a settlement even with a different party within the same litigation are also inadmissible, whether or not settlement is reached with that party.36 One of such extensions of the rule is the “opening shot rule”. 5.7.3 English Position: “Opening Shot Rule” As seen above, “statements without prejudice” are the statements made by the parties during negotiations aimed at a compromise without prejudice to their case in the Court of law. In the case of Barnetson v Framlington Group Ltd, (2007) EWCA Civ 520 (Ct of App), p 1059, paras 19–29,37 the English Court of Appeals considered the question whether the privilege will apply only to negotiations entered into by the parties after the dispute has arisen or even before, and the Court disagreed with the earlier pronouncements that the principle would not apply to negotiations that the parties might engage in “to prevent a dispute from occurring, not to compromise an extant dispute” and opined that it would be “a slippery slope” if the rule were to apply only after litigation has started or threatened, because the parties would be tempted to escalate the dispute with the result that their stances would be further hardened. The Court felt that “the opening shot rule” i.e., the first offer of negotiations by a party to forestall a dispute, should be the point from where “without prejudice” rule should be engaged. Exceptions to the Rule Various exceptions have been engrafted to the “without prejudice” rule by the English Courts from time to time and these exceptions have been listed out by Lord Justice Robert Walker in Unilever plc v The Procter & Gamble Co, (2000) 1 WLR 2436, and some of them are:

Page 3 of 5 5.7 “STATEMENTS WITHOUT PREJUDICE” (1) when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible, (2) Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence. (3) Even if there is no concluded compromise, a clear statement which is made by one party to negotiations and on which the other party is intended to act and does in fact act may be admissible as giving rise to an estoppel. (4) Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’. In Forster v Friedland and Fazil-Alizadeh v Nikbin, [1993 CAT 205], the Court warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion. (5) Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ in Walker v Wilsher (1989) 23 QBD 335, at 338, noted this exception but regarded it as limited to ‘the fact that such letters have been written and the dates at which they were written’. But, occasionally, fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay. (6) There seems to be no reason in principle why parties to without prejudice negotiations should not expressly or impliedly agree to vary the application of the public policy rule in other respects, either by extending or by limiting its reach. In Cutts v Head, Fox LJ said (at p 316) ‘what meaning is given to the words “without prejudice” is a matter of interpretation which is capable of variation according to usage in the profession. (7) In matrimonial cases there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation: ... In the case (2010) of Oceanbulk Shipping & Trading SA (Respondent) v TMT Asia Ltd (Appellants), (2010) UKSC 44, Lord Clarke stated that another of the exceptions to the rule is rectification. A party to without prejudice negotiations can rely upon anything said in the course of them in order to show that a settlement agreement should be rectified.

5.7.4 United States Position With regard to relevance of “statements without prejudice”, US Federal Rules of Evidence (FRE) of 2010 provide: Compromise and Offers to Compromise: (a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. r arriving at a compromise

5.7.5 Apology Acts: Canada, USA and Australia As Russel Getz observes,

Page 4 of 5 5.7 “STATEMENTS WITHOUT PREJUDICE”

an apology38 could be protected at common law from being admitted into evidence if it were a statement made in the course of certain communications protected by the law of privilege, as part of ‘without prejudice’ communications between parties relating to settlement negotiations.39

In this context, it may be noted that an apology under the Apology Acts is different from an apology that is accepted even in India mainly in contempt of Court cases in expiation of the guilt if the contemner offers a sincere apology as an expression of remorse and contrition.40 Under the Apology Acts apology is a part of deal or bargain for arriving at a compromise and an out of Court settlement. During the period 2006-2009, seven Provinces of Canada starting with British Columbia41 have enacted similar Apology Acts42 which were intended to enable a party to a suit to tender apology to the other so as to lessen ill-feeling and facilitate conciliation and settlement of the dispute43. These enactments make the protection accorded to apologies clear by providing that (1) an apology is not an admission of legal fault or liability, express or implied; (2) an apology is not relevant in determining fault or liability; and (3) an apology is not admissible in evidence to establish liability44. In other words, apology might be used in quantification of damages but not in determination of liability in civil cases like medical or insurance liability. Section 2 of the British Columbia Act, 1996, typically provides: Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter. Section 4 of Manitoba Act, 1982, expressly excludes application of apology to criminal matters and provides: “Nothing in this Act affects a prosecution for a contravention of an enactment.” Some 35 States in USA and all States in Australia also have enacted similar laws which have come to be known as “sorry works laws”.45

35 The second basis is said to be of “limited application and of doubtful legal respectability.” See, David Vaver, “‘Without Prejudice’ Communications---Their Admissibility and Effect”, University of British Columbia Law Review, (1974), vol 85, pp 97-101; Perell mentions that the privilege is justified by (i) public policy of encouraging settlement (ii) Theory of Relevancy (iii) Contract Theory and (iv) some or all of the above theories. Exceptions: (i) To repel laches: ‘as I was negotiating I did not pursue remedy’ (ii) fraud (iii) If admission of writing is made in without prejudice statement, it can be admitted for proof of collateral fact or independent fact. Paul M Perell “The Problems of without Prejudice”, The Canadian Bar Review, June 1992, pp 223–260. 36 Rush & Tompkins Ltd v Greater London Council, [1989] AC 1280, Muller v Linsley & Mortimer, [1996] PNLR 74, Unilever plc v The Procter & Gamble Co, [2000] 1 WLR 2436 and Ofulue v Bossert, [2009] UKHL 16 : [2009] AC 990. 37 Barnetson v Framlington Group Ltd, [2007] EWCA Civ 520 (Ct of App), p 1059, paras 19–29. See also Rush & Tompkins Ltd v Greater London Council, [1988] 3 All ER 737; and Cutts v Head, [1984] 1 All ER 597. 38 A sincere feeling of regret for wrongdoing on the part of the accused is often treated as a mitigating factor in sentencing process and absence of that feeling as a negative factor. In R v Lawrence, [2011] EWCA Crim 3129, the Court told the accused: “If ever there was a case where credit for plea was so important, this was it. Had you been able to acknowledge from the beginning [...] that you were involved in a moment of madness which you deeply and fundamentally regretted, it would have given the courts a far greater range of potential sentencing. You chose not to do that. You are not punished for exercising your right to trial, but what it meant was you lost the only true mitigation you had above and beyond your good character.” 39 Russell J Getz, “Uniform Apology Act”, Paper presented at Uniform Law Conference of Canada, Charlottetown, Prince Edward Island, September 9-13, 2007, https://www.ulcc.ca/en/home/119-josetta-1-en-gb/uniform-actsa/apology-actpresentation-dexcuses/1128-policy-paper-on-apology-legislation, p 3 (last accessed in April 2019). See also, Cohen, Jonathan R, “Legislating Apology: The Pros and Cons”, (2002) 70 University of Cincinnati Law Review 819; Cohen, Jonathan R, “Advising Clients to Apologize”, (1999) 72 Southern California Law Review, 1009; Alter, Susan, “Apologizing for Serious Wrongdoing: Social, Psychological and Legal Considerations”, Law Commission of Canada, 1999; Shuman, Daniel W, “The Role of Apology in Tort Law’, (2000) 83 Judicature 180. 40 In Bal Kishan Giri v UP, (2014) (2014) 7 SCC 280, the Supreme Court said at para 15: “An apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the contrition which is the essence of the purging of contempt” but the Court may refuse to accept it if “the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defence.” 41 The other Provinces are: Alberta, Manitoba, Nova Scotia, Newfound land and Labrador, Ontario and Saskatchewan. While the British Columbia Act, 1996, is a stand-alone Act that of Alberta and Saskatchewan are in the form of an amendment to the Indian Evidence Act, 1872.

Page 5 of 5 5.7 “STATEMENTS WITHOUT PREJUDICE” 42 The Act of British Columbia defines “Apology” as meaning “an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.” 43 A 1994 study has shown that in medical malpractice cases, 37% of those interviewed said that an explanation and apology were more important than monetary compensation, and that they might not have filed suits had they been given an explanation and apology. Van Dusen, Virgil and Spies, Alan, “Professional Apology: Dilemma or Opportunity”, American Journal of Pharmaceutical Education 2003, 67 (4) Article 14, p 3. 44 Russell J Getz, “Uniform Apology Act”, Paper presented at Uniform Law Conference of Canada, Charlottetown, Prince Edward Island, September 9-13, 2007, https://www.ulcc.ca/en/home/119-josetta-1-en-gb/uniform-actsa/apology-actpresentation-dexcuses/1128-policy-paper-on-apology-legislation, p 3 (last accessed in April 2019). www.ulcc.ca/en/.../Uniform_Apology_Act_Policy_Paper_En.pdf (Last accessed in April 2019). 45 See www.sorryworks.net/lawdoc.phtml; and Discussion Paper on Apology Legislation, 30 January 2006, Ministry of Attorney General, British Columbia, Move this up and start from the word Columbia. www.ag.gov.bc.ca/dro/.../Discussion_Apology_Legislation.pdf. Also, Peterson, Jan Eric, “Why Not Say ‘I’m Sorry’, Washington State Bar News, May, 2001 (Last accessed in April 2019).

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5.8 ADMISSION NOT CONCLUSIVE PROOF Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > V ADMISSIONS > Sections 17 to 23

V ADMISSIONS Sections 17 to 23

5.8 ADMISSION NOT CONCLUSIVE PROOF Section 31 says: Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.

Under section 4 defines “Conclusive Proof” and provides that “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.” Though section 58 provides that facts admitted need not be proved, it says in the proviso that “the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.” As section 31 says that admissions are not conclusive proof of matters admitted, it means that the maker of the admission can adduce evidence in disproof of his own admission to show that what was admitted is not true or that he made the admission as a result of fraud, coercion, or mistake. In other words, an admission is rebuttable by its own maker. It is submitted that section 58 goes even farther and says that “the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.” Thus, section 58 empowers the Court to insist on proper proof of the facts admitted even if the maker of the admission does not seek to rebut it and even if his opponent seeks to rely on it. As mentioned above, under sections 229, 241 and 252 of Cr PC 1973 even if the accused admits to his guilt and pleads guilty, the Court may not accept the plea and may order that the trial should proceed. Thus, the principle of section 58 of the Indian Evidence Act, 1872, regarding admissions is extended by the Cr PC 1973 also to confessions in criminal proceedings as confessions are after all basically admissions i.e., admissions of guilt. However, section 31 says an admission may operate as estoppel “under the provisions hereinafter contained.” Sections 115-117 deal with estoppels. Under section 115, the principal provision on estoppels, if a person makes a statement to another person and the other person believing it to be true acts upon the statement, the person who made the statement shall not be permitted to deny the truth of the statement. For instance, if A tells B that certain piece of land is not his but belongs to B, A may prove his own admission to be untrue and that the property, in fact, belonged to himself and B will not have any cause of action so as to bind A to his own statement. But, if B, believing A’s statement to be true, acts on that belief and builds a house on the land, estoppel applies under section 115 against A and he shall be allowed to make use of section 31 and prove his admission to be untrue. In other words, A shall not be allowed to retract and rebut his own admission when such an admission has induced B to alter his position. This topic is discussed in greater detail under section 115.

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Sections 24 to 30: Confessions Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

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6.1 DEFINITION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.1 DEFINITION As was seen in the previous chapter, admissions are a species of statements suggesting an inference as to the fact in issue or relevant fact. Confessions are a sub-species of admissions made by an accused admitting that he committed an offence.1 Sections 24 to 30 deal with confessions and in the Evidence Act, 1872 they are placed under the heading “Admissions” starting with section 17.2 It must be borne in mind that sections 24, 25 and 26 are the sections that bar certain confessions as they are considered as involuntary and not made out of free will. While sections 27 and 28 are in the form of exceptions to one or the other preceding sections, section 29 qualifies the admissibility of certain confessions. Section 30 deals with relevance of confession by the co-accused in a joint trial. Thus, there is no exclusive section in the Act under which confessions are declared relevant, and they are relevant only as admissions under section 17 read with sections 18 and 21.3 Against the above background, Stephen attempted to define a confession in terms in which he defined an admission in section 17 and stated: “Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.”4 Phipson says that if the words “at any time” in Stephen’s definition include statements made before the crime was committed, they appear to be too wide5. It is submitted, with respect, that a statement made by an accused before he committed the crime can only refer to his intention to commit the crime and, hence, it cannot amount to a confession or even suggest an inference that he committed the crime. So, “at any time” in Stephen’s definition has a reference only to the time after the crime was committed, i.e., before or during investigation or trial. Thus, under Stephen’s definition, an admission amounts to a confession if the accused (a) states that he committed the crime, or (b) suggests an inference that he committed the crime. Thus, for instance, if the accused says: “I stabbed and killed B”, it is an outright confession. But if he says: “I bore ill will towards B and went to his house with a knife with an intention to kill him”, he is stopping short of saying that he killed him or even stabbed him, but the statement can be taken as “suggesting an inference that he committed the crime”. So, it is said, for Stephen, both the statements are confessions. While there was no problem regarding treating the first statement as a confession, the high courts in India were divided regarding considering the second statement as a confession6 and the question was settled by the Privy Council in Pakala Narayana Swami v Emperor, 1939 PC 47.7 In the above case, Narayana Swami, the accused, was the son-in-law of the Dewan of Pithapore, now in Andhra Pradesh, and his wife borrowed money from Kuree Nukaraju, a peon of the Dewan. The accused went away to Berhampore, where he was living. On 20 March 1937, the peon received an unsigned letter asking the peon to go to Berhampore to collect the money. The peon showed the latter to his wife and went to meet Narayana Swami at Berhampore, but a day later his mutilated body was found in a steel trunk in a train coach at Puri railway station. The prosecution sought to prove as a confession the statement of Narayana Swami that the deceased had come to his house on the evening of 21 March, slept in one of the outhouse rooms for the night and left on the evening of the 22nd by the passenger train. The accused, his wife, his wife’s brother, and his clerk living at his house were charged with the murder before the Sub-divisional Magistrate, Chhatarpur, in May and June 1937. After hearing the evidence, the examining Magistrate discharged all the accused holding that there was no sufficient evidence to support the charge. Thereupon the Sessions Judge, Berhampur, exercising his powers under the Code of Criminal Procedure, 1973 called upon the accused to show cause why they should not be committed for trial, and in July 1937, ordered the accused and his wife to be committed to the Court of Session to stand their trial for offences under sections 120B (conspiring to murder), 302 (murder) and 201 (causing evidence of an offence to disappear) of

Page 2 of 5 6.1 DEFINITION the Indian Penal Code, 1860. The trial court relied on the statement of the accused as a confession and convicted him of murder and sentenced him to death but acquitted his wife of all charges. The Privy Council held that though the statement of the accused contained some incriminating elements, it could not be considered as a confession. However, the Privy Council affirmed the conviction by the lower court on the ground that “their Lordships are unable to say that there was not ample evidence upon which the judge of fact could properly convict of murder. The accused man was found to have been in possession of a trunk in which was the mutilated body of a man recently murdered: a trunk which he purchased a little more than twelve hours before the trunk was placed in the train. He gave no explanation: and contented himself with a denial that he knew the man, or that the man had visited his house, or that he had seen the trunk. All these statements were untrue. In these circumstances it is impossible: to say that the proceedings which ended with a conviction for murder resulted in a failure of justice.” Lord Atkin, propounding the law that stands good even today in India, disagreed with the above stated definition of confession by Stephen and defined it as follows: A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.

His Lordship proceeded to observe: An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession; for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession. The definition [of Stephen] is not contained in the Evidence 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.

Referring to the fact that the accused stated that the deceased left for home by train on 22nd evening, Lord Atkin said that “no statement that contains self-exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.” The above statement of law has been quoted with approval and followed by the Supreme Court in Palvinder Kaur v Punjab, AIR 1952 SC 354. In this case Palvinder, along with her absconding paramour Mohinderpal Singh, was on trial for the murder of her husband Jaspal Singh by administration of potassium cyanide and was charged under section 302 and section 201 (causing disappearance of evidence) of IPC, 1860. The dead body in a decomposed condition was recovered from a well, and the post-mortem examination could not reveal the cause of the death except that there were no indications of corrosive effect of cyanide poisoning. She made a statement to the Magistrate saying, inter alia, that her husband had a stomach upset and asked for medicine and that she told him that the medicine was kept in a bottle in an almirah. Jaspal Singh, who took to photography as a hobby, consumed by mistake potassium cyanide which is used for washing the photo negatives and which was also kept in a bottle in the same almirah and died soon after. Palvinder was frightened and kept the body in a trunk and after a few days she, with Mohinderpal’s help, dumped the body in the well. The Sessions Judge convicted her on the murder charge and gave a sentence of transportation for life, but the high court acquitted her on murder charge but convicted her under section 201, IPC,1860. The Supreme Court allowed Palvinder’s appeal and acquitted her of the charge under section 201 also. The Supreme Court, following Pakala Narayana Swamy decision held that Palvinder’s statement did not amount to a confession as there was no admission of guilt at all as she, in effect, said that her husband died of accidental consumption of cyanide and that where there is no other evidence to contradict the exculpatory part, the Court cannot accept the inculpatory part and reject the exculpatory part of the statement of the accused. The Supreme Court observed: The statement not being a confession and being of an exculpatory nature in which the guilt had been denied by the prisoner, it could not be used as evidence in the case to prove her guilt....Not only was the High Court in error in treating the alleged confession of Palvinder as evidence in the case but it was further in error in accepting a part of it after finding that the rest of it was false.... The court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so it contravened the well accepted rule regarding the use of confession and admission that these 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.

Page 3 of 5 6.1 DEFINITION In Aghnoo Nagesia v Bihar, (1966) 1 SCR 134, para 12, the Supreme Court stated: “Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence.” It must be pointed out that the position of Indian law as stated above differs from that of English law. Under English criminal law, a distinction is made between “plenary” and “non-plenary” confessions and the former term is applied to admissions of guilt and the latter term is applied to admissions which contain inculpatory statements but fall short of being confessions. Thus, not only confessions proper but even inculpatory admissions are also called confessions under English law and the term ‘admissions’ is confined only to civil proceedings. Thus, section 82 (1) of Police and Criminal Evidence Act (PACE), 1984 defines ‘confession’ as including “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”; the words “wholly or partly adverse to the person who made it” imply that a confession can be partly exculpatory also. If a statement which is only “partly adverse” to its maker is also treated as a “confession”, the distinction between a confession and admission gets practically blurred. Where the statement of the accused is a “mixed”8 statement containing inculpatory and exculpatory parts, the practice of the English courts is, as held in R v Sarah Jones, (1827) 2 C & P 629, to leave the entire statement to the jury to decide whether the exculpatory part of it is true or false. In R v Storey, (1968) 52 Cr. App. R. 334, a girl was prosecuted along with another man for the possession of cannabis, a narcotic drug which was recovered from her bed in the apartment. The other accused was also in the same apartment and she stated that the cannabis belonged to the man and not her and that he brought it there against her will.9 Thus, the statement of the girl was an admission to the extent that it admitted that the cannabis was in the apartment but was not a confession as it threw the entire blame on the man. The court of appeal upheld the lower court’s conviction on the ground that her statement was not believable and held that her entire statement was properly referred to the jury as “the fact that the cannabis was on the applicant’s bed in her flat was in itself some evidence of possession to go to the jury. Her unsworn explanation, although, if true, it would have been a complete answer to the charge, did not cancel out or nullify the evidence which was provided by the presence of cannabis.”10 In Nishi Kant Jha v Bihar, AIR 1969 SC 422 : 1969 SCR (1) 1033, the accused was charged with the murder of his friend while they were travelling on a train. He was caught and handed over to the police when he was found washing blood-stained clothes in a river at a nearby village. He admitted that he was washing the blood-stained clothes but gave two contradictory explanations for that. One explanation was that two persons fought with each other in the train and that some blood fell on his clothes. Another explanation was that a shepherd boy injured him while robbing him. The accused was convicted both by the sessions court and the high court. On appeal, the Supreme Court confirmed the conviction and observed that the court need not accept or reject the statement of the accused in its entirety, and it can rely on one part and reject the other. When the courts in England held that the entire statement of the accused must be referred to the jury, it did not mean that the jury must follow the maxim falsus in uno, falsus in omnibus (false in one respect, false in all) and accept or reject it as a whole. It only means that the accused is entitled to have his say, and his statement must be looked at and weighed in its entirety. If the exculpatory part is unbelievable as it is contradicted by other evidence, the courts can reject it and rely on the inculpatory part corroborated by other evidence. The Indian courts have held that the maxim falsus in uno, falsus in omnibus “has no application in India” and is not a mandatory rule.11 The same is true in India also as can be seen from the pronouncements of the Indian courts in Nishi Kant Jha12 and other cases. However, a crucial distinction must be drawn between a confession which is barred by sections 24, 25 and 26, and a confession which is not so barred and is otherwise admissible. A barred confession must be treated as “tainted” and as inadmissible in its entirety. Thus, it was held in Aghnoo Nagesia v Bihar, AIR 1966 SC 119 : 1966 SCR (1) 134: “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-confessional statement.” If the confession is not so tainted but proven to be partly true and partly false, and the inculpatory part is corroborated by other evidence, the principle of Nishi Kant Jha will apply and the Court will sift the grain from the chaff. Untainted confessional statement is like any other piece of oral or documentary evidence and as the Supreme Court has held many times the doctrine of falsusin uno “has no application in India” and is only a rule of caution and not a rule of law.13 In Behara Tanti v Orissa, AIR 1950 Ori. 202, the accused was charged with the murder of his wife by beheading her with a sharp weapon. The prosecution sought to adduce in evidence his following statement as a confession: There was an altercation between me and my wife. I did not know what I did with her though I saw my knife stained with blood. I, therefore, ran to the police station where I realized that I had killed my wife.

Page 4 of 5 6.1 DEFINITION The High Court held that the above statement did not amount to a confession as “it was not a categorical admission that he had actually killed the deceased.” While this may be so as per the tests laid down in Pakala Narayana Swamy decision, the Courts can, after all, convict a person on the basis only of his admission, even if it does not amount to a confession, if there is enough corroborative evidence.14 There does not seem to be any rule either in England or in India that only confessions can form the basis of a conviction and not an admission by the accused. On the other hand, under Indian law, if the statement is only an admission and does not amount to a confession it is admissible even if it is made to the police unless it is made during investigation and attracts section 162 of CrPC, 1973. 6.1.1 Intention to Communicate—Not Necessary Though confession implies a communication to somebody by the accused to make a clean breast of things, the courts in India have held that an intention to communicate is not necessary if, in fact, there is a communication and, hence, even a confessional soliloquy would amount to a confession if it has been heard by somebody nearby. •

W M Best: “Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable.”15

•

Taylor: “What the accused has been overheard muttering to himself or saying to his wife or to any other person in confidence, will be receivable in evidence.”16

•

Phipson: “A statement which the prisoner had been overheard muttering to himself, if otherwise than in his sleep, is admissible against him, if independently proved.”17

In Sahoo v UP, AIR 1966 SC 40 : 1965 SCR (3) 86 Sahoo is alleged to have killed his daughter-in-law Sunderpatti with whom he had illicit relations and a witness has seen “the accused going out of the house at about 6 a.m. on that day soliloquying that he had finished Sunderpatti and thereby finished the daily quarrels.” The accused contended that “one cannot confess to himself: he can only confess to another.” Affirming the conviction and the death sentence given by the Sessions Judge and confirmed by the High Court, Justice Koka Subba Rao observed: “Communication is not a necessary ingredient to constitute confession... a statement, whether communicated or not, admitting guilt is a confession of guilt” and “the probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof.”18 In 2009, the Supreme Court reiterated that communication is not an essential component of a confession, and it would be admissible even if “an accused might have been overheard muttering to himself or saying to his wife or any other person in confidence. He might have also muttered something in soliloquy. He might also keep a note in writing.”19 Thus, even if there is an intention not to communicate on the part of the accused and to keep it secret, as in the case of a confession made in a personal and private diary, it can be adduced in a court of law in proof of guilt.

1

Sahoo v UP, AIR 1966 SC 40.

2

State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, para 8: “‘Confessions’ which is a terminology used in criminal law is a species of ‘admissions’ as defined in Section 17 of the Indian Evidence Act.”

3

Aghnoo Nagesia v Bihar, AIR 1966 SC 119 : 1966 SCR (1) 134: “Sections 17 to 31 of the Evidence Act are to be found under the heading ‘Admissions’. Confession is a species of admission and is dealt with in ss. 24 to 30.”

4

James Fitzjames Stephen, Digest of the Law of Evidence, Gale, 2010 article 22, p 29.

5

Phipson, On Evidence, 9th Edn, D W Elliott, 1966, p 248.

6

In Emperor v Mahomed Ebrahim, (1903) 5 Bom LR 312, it was said: “In order to determine whether the statement is a confession of guilt or an admission of a criminating circumstance, we must look to the statement itself.” Also, Queen v Macdonald, (1872) 10 B.L.R. App. 2; and Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1.

7

It may be mentioned that in this case the Privy Council endorsed the opinion of Straight J, in R v Jagrup, 1885 AWN 131.

8

See Peter Murphy Edn., Evidence, Proof and Facts—A Book of Resources, California, 2003, p 333.

9

See for facts, Adrian Keane, The Modern Law of Evidence, 7th Edn, New York, 2008, p 177.

10 Per Widgery LJ, R v Storey (1968) 52 Cr. App. R. 334, at p 337. 11 Jayaseelan v TN, AIR 2009 SC 1901, at p 1903, para 5.

Page 5 of 5 6.1 DEFINITION 12 See the text corresponding to R v Storey above. 13 Rajinder Singh v Haryana, AIR 2009 SC 1734. See also the discussion on the doctrine of falsus in uno in Chapter XXI infra at pp 728-729. 14 In Queen Empress v Nilmadhub, 15 Cal, 595, at 607, Petharam CJ, said: “If the contents of a document did not amount to a confession the document itself would be relevant as an admission under Section 21 of the Evidence Act.” 15 W M Best, The Principles of the Law of Evidence, 12th Edn (1922), p 454. 16 Taylor, Treatise on the Law of Evidence, 11th Edn., (1931), vol I, p 596. 17 Phipson on Evidence, 7th Edn (1950), at p 262. 18 Sahoo v UP, AIR 1966 SC 40 : 1965 SCR (3) 86. 19 Per Arjit Pasayat J, in Shiva Karam Payaswamy v Maharashtra, AIR 2009 SC 1692.

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6.2 ADMISSION AND CONFESSION—DISTINGUISHED Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.2 ADMISSION AND CONFESSION—DISTINGUISHED 1. Admissions are a species of statements suggesting an inference as to the fact in issue or relevant fact, and confessions are a species of admissions admitting the guilt of the accused. 2. Thus, all confessions are admissions, but all admissions are not confessions.20 3. While confessions may be retracted by the accused himself, admissions will not be allowed to be retracted if they operate as estoppels. 4. Under English law, confessions (Plenary) as well as admissions (Non-plenary) are called confessions in criminal proceedings, but Indian Law makes a distinction between confessions proper and non-plenary inculpatory admissions in criminal proceedings. 5. As a rule, admissions cannot be used by the person making them or on his behalf under section 21. A confession made to the police cannot be “proved against a person accused of any offence” (section 25) but the accused can use his confession in his own defence. Thus, where the accused in the FIR filed by himself stated that he killed his wife when he found her in a compromising position, it was held that while the statement could not have been proved by the police against the accused, the accused can rely on the statement to prove that he committed the offence under grave and sudden provocation.21 6. A confession made by the co-accused can be used against the other accused in a joint trial for the same offence under section 30 but an admission made by a co-defendant cannot, as a rule, be used against other defendants in a civil suit.

20 “It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession.” Gulam Hussain v Delhi, 2000 Cr LJ 3949; Kanhaiyalal v UOI, AIR 2008 SC 1044. 21 See Madiah v State, 1992 Cr LJ 502 (Karnataka) relying on earlier decisions.

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6.3 KINDS OF CONFESSIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.3 KINDS OF CONFESSIONS22 6.3.1 Plenary and Non-Plenary: As was seen above, in England all admissions in criminal cases are called confessions and, consequently, a distinction is made between Plenary (plenum means full) and non-plenary confessions depending on whether a statement is (a) a full admission of guilt, or (b) merely an admission of incriminating elements. In India, the position is different, and the former are called confessions proper and the latter are called admissions. This distinction does not hold good in India as non-plenary confessions are not considered confessions at all in view of Pakala Narayana Swamy decision. In Om Prakash v UP, AIR 1960 (2) SC 409 (per Hidayatullah J), the Supreme Court observed that it is only when the statement of the accused can be read as a plenary admission of guilt in straight clear terms that it can be taken as a confession of the crime. 6.3.2 Judicial and Extra-Judicial A confession made by an accused in a Court or recorded by a Magistrate under section 164 of Cr PC, 1973 is considered as a Judicial Confession. Under section 228 (Sessions Court), section 240 (Warrant Case) and section 251 (Summons Case—no formal charge necessary), the judge is required at the outset to read out the charge and explain to the accused the offences he was charged with and ask whether he pleads guilty. Under sections 229, 241 and 252, if the accused pleads guilty, the judge shall record the plea and “may, in his discretion convict him thereon.”23 If the judge decides not to rely on the plea of guilty, he may order the trial to proceed. Hence, as the plea of guilty by the accused is made in a Court before the commencement of the trial, it is called a judicial confession. On the other hand, the accused may choose to make a confession before or during the investigation or afterwards but before the trial. As a confession made to a police officer is inadmissible in a Court of law under section 25 of the Evidence Act, 1872, it is the Magistrate who is authorised to record a confession under section 164 of Cr PC, 1973 after explaining to “the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him.” This confession is also called a judicial confession as it is recorded by a judicial officer.24 Thus, in Gandur Bhagat v Jharkhand,25 (2015), the High Court pointed out that confession can be brought on record only if (a) it is recorded by a Magistrate under section 164, Cr PC, 1973; or (b) it comes under section 27 as an exception to sections 25 and 26 and leads to the discovery of fact; or (c) it is admissible as a confession of the co-accused under section 30; or (d) it is recorded by the Magistrate in terms of section 281 Cr PC, 1973.26 Extra-judicial confession can be made to anybody other than a judicial officer. The courts have been rather cautious in relying on extrajudicial confessions.27 •

An extra-judicial confession is said to be a “weak” kind of evidence and attains credibility if corroborated by a consistent chain of circumstantial evidence.28

•

It is unsafe for the court to rely on it.29

•

Extra-judicial confession requires great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it.30

•

There has to be independent corroboration for placing any reliance upon extra-judicial confession.31

Page 2 of 3 6.3 KINDS OF CONFESSIONS •

Reliability depends upon the veracity of the witnesses to whom it is made32 and witness must be unbiased and not even remotely inimical to the accused.33

•

The main features of confession are required to be verified.34

•

Extra-judicial confession should be corroborated by some other material on record.35

The only consideration is that the confession must have been made voluntarily and without any inducement, threat or promise as mandated by section 24 of Evidence Act, 1872 and sections 16336 and 31637 of CrPC, 1973.38 In UK and USA, there is absolutely no bar on the police officer recording a confession, provided he ensures that it is voluntarily made. In India, a confession made to a police officer is actually an extra-judicial confession but as a confession made to a police officer or made to any person while the accused in police custody is barred by sections 25 and 26 of Evidence Act, 1872, the bar can be lifted and such a confession becomes admissible only if it comes under the exceptions stated in sections 26 or 27.

22 See, Kusuma Ankamma Rao v AP, AIR 2008 SC 2819, at p 2823, para 17 (per Arjit Pasayat J). 23 Section 375 of CrPC, 1973 provides: No appeal in certain cases when accused pleads guilty. Notwithstanding anything maintained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal: (a)

If the conviction is by a High Court; or

(b)

If the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence.

24 The Madras High Court said: “We are unable to agree with the learned Advocate General that a deposition or a statement under Section 164 Cr PC will not constitute the act of the officer, but merely that of the deponent. It may be that what occasioned the record was the statement of an individual; but as the statute imposes a duty on the public officer to record what is stated by the person making the statement, the record will be that of the officer just like any other report by that officer in the discharge of his official duties.” State of Madras v G Krishnan, AIR 1961 Mad. 92 : 1961 Cr LJ 382. 25 Para 10, W. P. (S) No. 2320 of 2015, High Court of Jharkhand at Ranchi. 26 Section 281, CrPC, 1973 provides for the recording of the examination of the accused by a Magistrate, Metropolitan Magistrate or Sessions Court and lays down the procedure for such recording. 27 Kala at Chandrakala v State Through Inspector of Police,12 August 2016, Supreme Court of India, para 7. 28 Sahadevan v TN, 2012 Cr LJ 3014, at p 3019, para 22. Vijay Shankar v Haryana, (2015) 12 SCC 644; S Arul Raja v TN, 2010 (8) SCC 233, para 49; AP v S Swarnalatha, (2009) 8 SCC 383; UP v M K Anthony, AIR 1985 SC 48 : (1985) 1 SCC 505, p 517, para 15; Rajasthan v Kashi Ram, 2006 (12) SCC 254; Kavita v TN, (1998) 6 SCC 108; Pakkirisamy v TN, (1997) 8 SCC 158, at page 162; Baskaran v TN, 2014 (86) ACC 284; Dhan Raj at Dhand v Haryana; 2014 (85) ACC 932. . 29 Rameshbhai Chandubhai Rathod v Gujarat, (2009) 5 SCC 740. 30 Balwinder Singh v Punjab, 1995 Supp (4) SCC 259. 31 Pakkirisamy v TN, (1997) 8 SCC 158. 32 Kavita v TN, (1998) 6 SCC 108. 33 Rajasthan v Raja Ram, (2003) 8 SCC 180. 34 Alokenath Dutta v WB, (2007) 12 SCC 230. 35 Sansar Chand v Rajasthan, (2010) 10 SCC 604. 36 Section 163. No inducement to be offered.—(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164. 37 Section 316. No influence to be used to induce disclosure.- Except as provided in sections 306 and 307, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.

Page 3 of 3 6.3 KINDS OF CONFESSIONS 38 Phoolchand Rathore v MP, (2015), Criminal Appeal No. 573/2002, High Court of Madhya Pradesh. : It is the settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra- judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible. Jagroop Singh v Punjab, (2012) 11 SCC 768 in paras 28 to 30. S Arun Raja v TN, 2010 (8) SCC 233, paras: 49:An extra-judicial confession, if voluntarily made and if it is fully consistent with the circumstantial evidence which is established by the prosecution then it can be relied upon by the courts along with other evidences for convicting an accused. Also, Vijay Shankar v Haryana, 2015 (8) Scale 517.

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6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY It is said that “A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker.”39 A confession, like admission, is considered relevant because it is a self-harming statement and nobody would make a statement harming his interests unless it is true.40 Hence, “the confession statement should pass the twin tests of voluntariness and truthfulness.”41 A confession is said to be voluntary when it is made without “fear of prejudice or hope of advantage.”42 It is said, “voluntariness, being the warrant for veracity, was then regarded as the sine qua non of confessions”.43 The very justification of admitting a confession is that it is made willingly and out of free consent, and this rationale is destroyed if it is obtained by coercion or inducement. Thus Cave J, observed: By the law of England to be admissible a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible.44

Thus, as the Supreme Court of Canada stated, “the confessions rule asks only if the statement was voluntary, not if the statement is true”45 because there is no automatic assumption that a confession is true because it is voluntary. Voluntariness, and not truthfulness, is the threshold requirement for admissibility, and veracity has to be established during trial by other corroborative evidence. As the modern basis of confession rule is the rule against selfincrimination,46 it is the symbiosis of twin considerations of voluntariness and fairness that forms the basis of admissibility. In India, if the confession is made to a person in authority, to the police or in police custody or in response to incriminating questions without the accused being warned, the fairness requirement will be breached, and the confession becomes inadmissible. 6.4.1 “Judges Rules” of England—PACE Act of 1984 In England, confessions can be made by anybody and to anybody including police officers provided they are voluntary. As Rupert Cross observes: In England the admissibility of confessions obtained as a result of prolonged interrogation, or without caution against selfincrimination, or without information as to the right to the presence of a legal advisor are almost entirely dependent on the discretion of the trial judge. In the United States, on the other hand, these questions have been held to raise constitutional issues.47

Rupert Cross further points out that the “foremost” and “fundamental difference” between the position in England and the United States is “the absence in England of any document of a sanctity comparable to that attributed to the Constitution of the United States.”48 The same difference exists even in the case of India with a written Constitution that is given similar sanctity. To enable the police officers to ensure that the confessions are voluntary, the so-called “Judges Rules” were first issued in 1912 by the judges of the King’s Bench to give the English police guidance on the procedures that they should follow in detaining and questioning suspects.49 The Judges’ Rules were not rules of law, but rather a kind of a code of best practice rules for the guidance of the police. These Rules were revised from

Page 2 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY time to time and reissued in 1964 as Practice Note (Judge’s Rules) and have now been replaced by PACE Code C made under the Police and Criminal Evidence Act 198450, a guideline that largely preserves the requirements set out in the Rules.51 In R v Liverpool Juvenile Court, Ex Parte R, (1987) All ER 668, it was held that the Court was bound to ensure that the Judges Rules were followed and to hold a voir dire once the accused represents that the confession was obtained by “oppression” or by anything that would render it unreliable.52 Under section 76 of PACE Act, 1984 on a “representation” to the Court or suo moto, “the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” In Beeres v Crown Prosecution Service (West Midlands), (2014) EWHC 283 (Admin), the Court held: A person in custody awaiting interview or being interviewed [by police] is in a vulnerable position.... where the confession is the sole evidence [as in this case] relied upon by the Crown a Court will need to be especially vigilant to ensure that it is reliable and/or fair....Provided the representation [of oppression] is not mere assertion and is based upon some credible, more than insignificant or trifling, evidence then the rebuttable presumption against admission of the confession evidence is triggered, i.e. the confession is inadmissible unless the prosecution establishes beyond reasonable doubt that the confession has not been obtained in a way that contravenes section 76.53

The Act contains safeguards to ensure that the accused was not under stress when he made the confession and that he was warned of his right to consult a lawyer etc. In Charles v Crown Prosecution Service, (2009) EWHC 3521, para 10 (Admin), the Court remarked “these provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the Police and Criminal Evidence Act and the Code relating to caution, are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how they are to behave.” 6.4.2 United States “Miranda Rules”—Miranda v Arizona (1966) Under the Fifth Amendment to the Constitution of USA, an accused has the right against Testimonial Compulsion or Self-Incrimination. Under this right, which is also known as the right to silence, a person cannot be compelled to be a witness against himself. This right was for long interpreted (1) as a right available only in Federal Courts and not in States’ Courts, and that (2) it was available only in Court proceedings and not in the antecedent police investigation stage. The term “compelled” was interpreted as “legal compulsion” of holding for contempt or perjury which can take place only in Court proceeding and not in investigation. Under the Sixth Amendment, the accused has the right to consult a legal counsel. Often, the police investigation was being conducted without informing the accused of his rights under the Constitution. In the famous case of Miranda v Arizona, 384 U.S. 436 (1966), Ernesto Miranda, an indigent 23-year-old who had not completed the ninth grade, was arrested at his home and taken directly to a police station in Phoenix, Arizona. There, after being identified by the victim of kidnapping and rape, he was taken to an interrogation room where he was questioned about the crimes. At first, Miranda maintained his innocence, but after two hours of questioning, he signed a written confession of guilt. At his trial, the confession was admitted into evidence, and Miranda was found guilty of kidnapping and rape. His conviction was upheld by the Supreme Court of Arizona and Miranda appealed to the US Supreme Court. While it was not clear whether the police warned the accused of his Fifth Amendment right to silence, the police frankly admitted that the accused was not informed of his Sixth Amendment right to legal counsel. Though the police interrogation of Miranda was, in fact, very mild when compared to the earlier objectionable methods, Earl Warren CJ, writing the judgment for the majority found Miranda’s confession inadmissible for the following reasons: (1) The right to silence is available not only in court proceedings but also during the police investigation stage. (2) “[A] n individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described in the [standard police interrogation manuals] cannot be otherwise than under compulsion to speak.” Thus, the overbearing presence of the police was held to be a hostile atmosphere inherently intimidating to the accused. Hence, the police must inform the accused of his constitutional rights to dispel that fear. (3) The Constitution does not require adherence to any particular system for dispelling the coercion of custodial interrogation. Till such time the government evolves effective procedural safeguards, the four-fold warnings laid down in Miranda have to be administered to the accused.

Page 3 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY The warnings that have become famous as Miranda warnings were not required to be given in exactly the same terminology, but the essence of them must be adequately conveyed to the accused. They are: (1) you have the right to remain silent; (2) anything you say can and will be used against you; (3) you have the right to talk to a lawyer before being questioned and to have him present when you are being questioned; and (4) if you cannot afford a lawyer, one will be provided for you before any questioning if you so desire. Warren CJ also held that both inculpatory and exculpatory statements made in response to interrogation by the accused in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against selfincrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them. Miranda decision had its own share of controversy, and Courts and commentators54 questioned the US Supreme Court’s authority to lay down those normative principles. Thus, in Michigan v Tucker, 417 US 433 (1974) in which the Court, speaking through Justice William Rehnquist J (as he then was, and later CJ), viewed the Miranda warnings as “not themselves rights protected by the Constitution, but were, instead, measures to insure that the right against compulsory self-incrimination was protected,” and that they were only “prophylactic standards” designed to “safeguard” or to “provide practical reinforcement” for the privilege against self-incrimination.55 In 2000, in Dickerson v United States, 530 US 428 (2000), the Court struck down a federal statute purporting to abolish Miranda, and Chief Justice Rehnquist, speaking for the Majority held that “Miranda is a constitutional decision” and thus a decision that “may not be in effect overruled by an Act of Congress”56. However, in Howes, Warden v Fields, 565 US __ (2012), the US Supreme Court, reversing the judgment of the court of appeals, held that a convict who is already undergoing prison sentence need not, during interrogation in the nearby office, be given the Miranda warnings regarding the commission of another offence as he is not any more under any ‘shock’ of arrest or nor can he be considered to be in ‘custody’ in Miranda sense. The Court held that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” It was also said in criticism of Miranda that the real test should be whether the confession was in fact coerced keeping in view the “totality of the circumstances”, and whether or not the Miranda warnings were given was not of much consequence. In a way, this argument amounts to begging the question is, without the accused being told of his rights, he will be psychologically under the intimidatory influence of the police interrogation. In fact, that was the main point of Miranda. The flip side of this point is that an accused could have been coerced despite the Miranda warnings as the warnings can be reduced to an empty formality. 6.4.3 Indian Position 6.4.3.1 Rule against Self-Incrimination57—Constitution and Statutes58 In Lawrence v King, (1933) A.C. 699, an appeal from Nigeria explaining the rationale of the rule against selfincrimination, Lord Atkin made the following famous observation: Society is stronger than the individual and is capable of inflicting more harm on the individual than the individual on the society.

Article 20 (3) of the Indian Constitution confers the fundamental right against Testimonial Compulsion and is fashioned after the Fifth Amendment to the US Constitution.59 It says: “No person accused of any offence shall be compelled to be a witness against himself.”60 The ramifications of this provision will be discussed at the appropriate places under sections 27, 73, 132, 146 (3), 147 and 148. Though the terms “testimonial” compulsion and “to be a witness against himself” relate to the trial61 and not to the antecedent investigatory stage of a case, it is obvious that if a confession is shown to have been obtained by inducement, threat or promise at a pre-trial stage, the Court can treat the confession as inadmissible at the trial.62 Confessions made under inducement, threat or promise to a person in authority are declared as “irrelevant” in a court of law by section 24 of the Evidence Act, 1872. Section 163 (1) of Cr PC, 1973 provides that “no police officer or person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872)”. On the other hand, if any person is disposed to make a statement (not necessarily a confession)

Page 4 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY “of his own free will”, section 163 (2) provides that “no police officer or other person shall prevent, by any caution or otherwise, from making in the course of any investigation under this Chapter any statement”. Section 316 of Cr PC, 1973 mandates that, excepting the tender of a pardon to an approver under sections 306 and 307, “no influence, by any means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.” As held in Raja Narayanlal Bansilal v Maneck Phiroz Mistry, 1961 SCR (1) 417,”for invoking the constitutional right against testimonial compulsion guaranteed under Article 20 (3) it must appear that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission of an offence which in the normal course may result in prosecution.” In the notorious Ajmal Kasab case, the Supreme Court of India has held that the U.S. Supreme Court had acknowledged that the measures to protect the accused against self-incrimination embodied in Miranda rules “were already part of the Indian statutory scheme”.63 6.4.3.2 Right to Silence and Fear of Foreign Prosecution—“Whipsawing” Accused In Nandini Satpathy v Dani, AIR 1978 SC 1025 : 1978 SCR (3) 608, Justice Krishna Iyer held that “the accused is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that.” Thus, an accused can refuse to break his silence as to his guilt during the investigation in one case if it is likely to expose him to guilt in another potential investigation. An interesting question has arisen in England and the United States whether an accused can in a domestic criminal or civil proceeding refuse to testify not on the ground that he would be exposed to prosecution in his country but that the testimony would expose him to prosecution in another country64. In King of the Two Sicilies v Willcox, 7 State Trials (N. S.) 1050, 1068, it has been held that the English rule of evidence against compulsory self-incrimination could not be pleaded by a witness against disclosing offences under the laws of another country65. It was thought that “the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty.”66 The rationale seems to be that enforcement of law, jurisdiction and sovereignty are all essentially confined to the territorial limits of a state. However, in United States v McRae, L. R., 3 Ch. App. 79 (1867), the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States, relying on King of the Two Sicilies, argued that the “protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of a foreign country [the United States].”67 In Mc Rae, the Court overruled King of the Two Sicilies and held that the privilege applies to exposure to criminal liability not only in domestic cases but also in foreign cases and that the Court could not “distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.”68 The United Kingdom passed The Evidence (Proceedings in Other Jurisdictions) Act of 1975 which sets forth the procedures by which the British courts may order compliance with foreign discovery requests.69 Such mutual assistance depends, in the absence of a treaty70, not on any legal obligation but on comity and reciprocity. Section 128 of the Evidence Act of New South Wales, 1995 deals with the “privilege in respect of self-incrimination in other proceedings” “on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty.”71 In USA the question has arisen in two different situations: First, whether the constitutional right against selfincrimination under the Fifth Amendment is available to the accused to refuse to testify in a state criminal or civil proceeding on the ground that it will expose him to prosecution under a federal law and vice versa. In Murphy v Waterfront Commission of N Y Harbor, 378 US 52 (1964), at pp 77–78, the US Supreme Court held that “the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law, and a federal witness against incrimination under state as well as federal law.” Second, whether the accused can claim the constitutional right and refuse to testify in a domestic proceeding on the ground that it would expose him to prosecution in a foreign country with which the USA may be treaty-bound to offer mutual assistance in criminal investigation and prosecution. In United States v Balsys, 524 US 666 (1998), Balsys claimed the privilege in deportation proceedings of civil nature on the ground that his testimony in the US Court could subject him to criminal prosecution by Lithuania, Israel, and Germany, and the Supreme Court, denying the privilege, held: “We hold that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause.” But the US courts have also recognised the possibility that compelling a witness in a domestic court to testify with regard to an offence in a foreign state might “whipsaw”72 the witness and lead to his prosecution in the United States and to the

Page 5 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY use of that testimony in the domestic forum if that offence reveals the commission of an offence under domestic law73. Firstly, looking at the King of the Two Sicilies rule from Indian perspective, suppose an Indian paramour is summoned as a witness in a divorce suit for adultery in England74 and he is compelled to testify by the English court overruling his claim for privilege that he will be exposed to criminal prosecution in India as adultery is an offence in India and not a mere ground for civil action. The rule will “whipsaw” the defendant as he will be the loser at both the ends—in the civil suit in England and the potential prosecution under IPC, 1860 when he returns to India. This situation is obviated by the Mc Rae decision. Secondly, as there is no dual judiciary in India as is the case with USA, an accused can plead the privilege in state as well as central prosecutions inter se. Thirdly, it is submitted that Article 20 (3) should apply to the Mc Rae and Balsys type situations where the privilege is claimed in a civil proceeding.75 It is submitted that in a civil suit for divorce on the ground of adultery in India, the paramour can refuse to testify on the ground that it will expose him to criminal prosecution for adultery under IPC, 1860 as the threat of prosecution is the direct and imminent derivative from his testimony76. The terms “any” offence will cover offences under state as well as central laws and, arguably, an offence under foreign law also.77 6.4.3.3 Retracted Confession As was mentioned above, the rationale of admitting confessions is that they are voluntary admissions of guilt by the accused impelled by remorse and repentance.78 Though there is no bar for the courts to rely on a true confession and convict the accused, as a rule of prudence they look for corroboration from other evidence. If there is any doubt that the confession is not credible or that it was not voluntary, the courts will not convict the accused unless his guilt is established by other evidence. Hence, where the accused himself retracts his confession, the courts would hesitate to base the conviction on such a confession. In Rabindra Kumar Pal at Dara Singh v Republic of India, (2011) 2 SCC 490, the Supreme Court reiterated that “a judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.” There have been cases where a confession was made by the accused before a committing Magistrate under section 209, Cr PC, 1973 (before the committal proceedings were abolished by an amendment of 1978) or where a confession was duly recorded by a Magistrate under section 164 of Cr PC, 1973 the confessions were often resiled from and retracted at the sessions trial.79 While a party can be prevented from resiling from his admission under section 31 if it operates as estoppel, an accused cannot be prevented from retracting from his admission if he takes the plea that he was compelled to make it by the police, because of his fundamental right against self-incrimination and right to silence. As pointed out already, the Malimath Committee has expressed concern regarding this matter. The courts in India have held that while there is no legal bar against convicting an accused on the basis of retracted confession, as a matter of prudence the courts should insist on corroboration from independent evidence. In TN v Kutty at Laksmi Narasimhan, AIR 2001 SC 2778, Tamil film actress Rani Padmini and her mother were butchered in their flat in Madras and their driver, cook and watchman were charged with murder. The confessions of the two of the accused were recorded by Judicial Magistrates under section 164 of Cr PC, 1973, but they were retracted by the accused. The sessions judge, however, relied on the retracted confessions and found all the three guilty under section 302. However, the high court overturned the conviction on the grounds that (a) the confessions were retracted, and (2) that the recovery of stolen articles was made before the confessions were made80. On appeal by Tamil Nadu against acquittals by the high court, the Supreme Court disagreed with the High Court and restored the trial judge’s verdict and held: It is not the law that once a confession was retracted the court should presume that the confession is tainted. As a matter of practical knowledge we can say that non- retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.

The Supreme Court disagreed with the high court on the question of discovery of articles before the confession and observed:

Page 6 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY

We are unable to understand how a judicial confession would become bad by reason of the fact that articles belonging to the victims were recovered prior to the making of the confession. That aspect, instead of vitiating the confession, could be a factor in favour of the voluntariness of the confession. When the culprit finds that the articles concealed by him are all disinterred it is possible that he might feel that there is no use in concealing the facts any more. Then he may desire to make a clean breast of everything to any person or authorities.

A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, and the conviction cannot be based on such retracted judicial confession. However, in view of the general reluctance, as a rule, of the courts to rely on retracted confessions81, the Law Commission of India observed82: There is not statutory requirement that the confession of an accused person, later retracted should be corroborated before it is acted upon. In a large number of cases, prisoners who have made lengthy and detailed confessions duly recorded under section 164, Criminal Procedure Code, and have reiterated them in committing magistrate’s court, resile from these confessions in the court of sessions...judicial decisions have laid down the rule that while a conviction on a retracted confession is not illegal, yet prudence dictates that a conviction should be based on such a confession, only if it is corroborated by independent testimony.

In Subramania Gounder v State of Madras, AIR 1958 SC 66, para 14, the Apex Court has held: Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and, therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice’s evidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of a confession are untrue.

6.4.4 Utility of Confession •

Phipson says that “an unambiguous confession is in general sufficient to warrant a conviction without corroboration.”83

•

Reliance on ‘confession’ is based on the Latin maxims confession facta in judicio est plena probation: a confession is the absolute proof, and habemus optimum testem, confitentem reum, which literally means: “we have the best witness, a confessing defendant”; in other words, confession of an accused is the best evidence against him.

•

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt.”84

•

A confession, if voluntary and truthfully made, is an “efficacious proof of guilt”.85

•

A confession that is true but involuntary is no better than a confession that is false but voluntary.86

•

Confession cannot be deduced from mere silence87 or conduct like absconding by the accused. Such conduct, as was already seen, may be relevant under section 8.

•

An extra-judicial confession is in the nature of things a weak type of evidence88, and the court should apply two tests: Is it voluntary? And Is it true?89

•

It was wholly unlikely that the accused would make extra judicial confession to a person whom he never knew,90 and much less to a person who is inimically disposed towards him.91

•

Cave J observed sarcastically: ...I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of confession to be given when the proof of prisoner’s guilt is otherwise clear and satisfactory, but when it is not the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession---a desire which vanishes as

Page 7 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY soon as he appears in a court of justice.92

•

Prudence and justice demand that a confession cannot be made the sole ground of conviction and that it requires to be corroborated by other evidence.93

•

Each and every particular in the confession need not be corroborated by separate and independent evidence.94

39 Subramania Goundan v Madras, 1958 AIR 66 : 1958 SCR 428. 40 In R v Warickshall, (1783), 1 Leach 263, 168 ER 234, at p 263: “A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt.” 41 State by the Inspector of Police, Coimbatore v Manoharan, (2014), Madras, Criminal Appeal No.854 of 2012, decided on 24 March 2014 (Madras High Court). 42 Ibrahim v The King, (1914) AC 599 (P.C.), at p 609. 43 2 Bom LRJ 228. 44 R v Thompson, (1893) 2 QB 12. 45 R v Hodgson, (1998) 2 SCR 449. 46 R v Hodgson, (1998) 2 SCR 449, para 22. 47 Rupert Cross, “Confessions and Cognate Matters: An English View”, Columbia Law Review, vol 66, No. 1 (Jan., 1966), pp 79-93. 48 Rupert Cross, “Confessions and Cognate Matters: An English View”, Columbia Law Review, vol 66, No. 1 (Jan., 1966), p s1. 49 See observations of Lawrence J in R v Voisin, (1918) 1 KB 531. 50 Section 76 of the PACE Act, 1984 provides: Confessions. (1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a)

by oppression of the person who made it; or

(b)

in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence there of, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above. Under Clause (8) oppression means: “(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).” 51 The Rules and their successor documents have become a part of legal procedure also of Jamaica, Western Samoa and Zambia where English Law is followed. 52 In Regina v Middleton, 1975 All ER191, it was held that whenever the admissibility of a confession is challenged “a trial within a trial” is conducted to test the voluntariness of such confession at the earliest. 53 Beeres v Crown Prosecution Service (West Midlands), (2014) EWHC 283 (Admin), para 12 and 10. 54 George C Thomas III, “The End of the Road for Miranda V. Arizona? On the History and Future of Rules for Police Interrogation”, American Criminal Law Review, vol 37, 2000; Fred E Inbau, “Over-Reaction - the Mischief of Miranda V. Arizona”, Journal of Criminal Law and Criminology, vol 89, 1999; Richard A. Leo, “The Impact of Miranda Revisited”, Journal of Criminal Law and Criminology, Vol. 86 (1996); Steven D. Clymer, “Are Police Free to Disregard Miranda?”, Yale Law Journal, vol 112 (2002).

Page 8 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY 55 Michigan v Tucker, 417 US 433 (1974), p 444. 56 Dickerson v United States, 530 US 428 (2000), 432. 57 JH Lanbein, “The Historical Origins of the Privilege against Self Incrimination at Common Law”, 92 Mich. L. Review, (1993–1994), 1054; Joseph L Rauh Jr, The Privilege Against Self Incrimination from John Lilburne to Ollie North, Constitutional Commentary (1988). Kenworthey Bilz opines that with the more efficient use of the DNA and other scientific tests the reliance on confessions and the attendant troublesome concerns of testimonial compulsion and selfincrimination might “fade out”. He, however, concedes that “continued heavy use of traditional evidence will remain until actors in the system (police, prosecutors, judges, and juries) get used to the most novel forensic evidence....If anything, improved forensics should increase guilty pleas by increasing the overall accuracy of criminal evidence.” (Emphasis in the original). See Kenworthey Bilz, “Self-incrimination Doctrine is dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, and the Anxieties of the Liberal State”, Cordozo Law Review, 2008, Vol. 30:3, pp 807–869. Available at: www.cardozolawreview.com/Joomla1.5/content/30-3/BILZ.30-3.pdf (Last accessed in April 2019). 58 See the 180th Report of the Law Commission of India on “Article 20 (3) of the Constitution of India and the Right to Silence” of 9 May 2002 where the Commission made scholarly comparative study of the status of the right in India and other Commonwealth countries. 59 David Fellman, Defendant’s Rights Today, London, Madison, 1976. 60 The maxim ‘nemo teneture seipsum accusare’ (no man can be compelled to criminate himself) was postulated for the first time in 1590 in Cullier v Cullier, (1582–1603) 78 ER 457 (C). It is to be noted that the prohibition is against compulsion. Hence, a man “is competent to prove his own crime, though not compellable”: per Alderson, B., in Udal v Walton, (1845) 153 ER 471 (D). A statement made in ignorance of the right to claim privilege will not make the statement inadmissible, Queen v Coote, (1873) 4 PC 599 (H). The accused must plead the right and if he does not, he is deemed to have waived it. Pakhar Singh v The State, AIR 1958 P& H 294, 1958 Cr LJ 1084. It may be mentioned that this right can be claimed by the accused and not by anybody on his behalf. Lord Diplock observed in Re Westinghouse Uranium Contract, [1978] AC 547, at p 637–638 as follows: “the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law.” 61 State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 808 62 Selvi v Karnataka, (2010) 7 SCC 263. 63 Mohammed Ajmal Mohammad Amir Kasab alias ABU Mujahid v Maharashtra, AIR 2012 SC 3565. 64 Jack Kroner, “Self-Incrimination: The External Reach of the Privilege”, Columbia Law Review, vol 60, No. 6 (Jun., 1960), pp 816–838. 65 King of the Two Sicilies v Willcox, 7 State Trials (N. S.) 1050, 1068. Queen v Boyes, 1 B. & S., at 330 [, 121 Eng. Rep., at 738]. 66 Queen v Boyes, 1 B. & S. 311 [, 121 Eng. Rep. 730]; King of the Two Sicilies v Willcox, 7 State Trials (N S), 1049, 1068; State v March, 1 Jones (N. Car.), 526; State v Thomas, 98 N. Car. 599. Jim Thompson, “Self-Incrimination and the Two Sovereignties Rule”, The Journal of Criminal Law, Criminology, and Police Science, vol 49, No. 3, September– –October 1958, pp 240–249. 67 United States v McRae, L. R., 3 Ch. App. 79 (1867), at pp 83–84. 68 United States v McRae, L. R., 3 Ch. App. 79 (1867), at p 87. 69 Alexander C Black, “Discovery in Great Britain: The Evidence (Proceedings in Other Jurisdictions) Act”, 11 Cornell Int’l L.J. 323, 1978, p 3 23ff. 70 The mutual assistance treaties generally provide for refusal for assistance if it involves domestic law barring testimonial compulsion: (1) Model Treaty on Mutual Assistance in Criminal Matters, 14 Dec 1990 recommended by General Assembly for adoption by Member States. Article 4 (e) provides for exception of testimonial compulsion and states that the assistance requested may be refused if it “requires the requested State to carry out compulsory measures that would be inconsistent with its law and practice had the offence been the subject of investigation or prosecution under its own jurisdiction.” Article 12 also confers the right on the accused to refuse to give evidence if the laws of the requested or requesting State provide for such refusal. (2) European Convention on Mutual Assistance in Criminal Matters of 1959 also empowers a State to enter a ‘reservation’ to the treaty to the effect that the request for assistance should be “consistent with the law of the requested Party”. The law might provide against testimonial compulsion. (3) The SAARC Convention on Mutual Assistance in Criminal Matters, 3 August 2008 provides in Article 5 (1) (ii) that the assistance may be refused if “the execution of the request would be contrary to the domestic law of the requested State Party.” Reference to “domestic law” includes provisions like Article 20 (3) of the Indian Constitution. 71 In Cornwell v The Queen (2007) 231 CLR 260, para 211, the Court disallowed such evidence as “it was used without any protection for the accused from the self-incrimination inherent in much of that evidence.”

Page 9 of 9 6.4 RATIONALE—CONFESSIONS MUST BE VOLUNTARY 72 The term ‘whipsaw’ is here used by the Court in the sense of a saw with handles at both ends and used by two persons simultaneously with to and fro action as in timber cutting. 73 Murphy v Waterfront Comm’n of NY Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Kastigar v United States, 406 US 441, at 448–449, 92 S.Ct., at 1658–1659. 74 Adultery as a tort was abolished in England in 1857 and the husband who wished to be compensated for wife’s adultery could petition for damages under The Matrimonial Causes Acts (latest of 1965) irrespective of whether a divorce petition was also filed. This action for damages was also abolished by the Law Reform (Miscellaneous Provisions) Act of 1970. International Encyclopaedia of Comparative Law, vol 11, Part 1, p 60. 75 In Nandini Satpathy v PL Dani, (1978) 2 SCC 424, it was observed: “Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself.” 76 In Selvi, the Supreme Court referred to the derivative use of testimony. Selvi v Karnataka, (2010) 7 SCC 263, para 7. 77 Sir James Fitzjames Stephen and CS Kenney expressed the opinion that the requirement of proof beyond reasonable doubt would apply to civil as well as criminal proceedings if the commission of a criminal act is in issue. See the discussion on this in the Chapter on Burden of Proof, infra. 78 Subramania Goundan v Madras, 1958 AIR 66 : 1958 SCR 428. 79 “...in India it is the rule to find a confession and to find it retracted later.” Bharat v UP, 1971 (3) SCC 950 (per Hidayatullah CJ). 80 If recovery was made subsequent to and in pursuance of the confession, it would have come under section 27 if the confession was made under the circumstances mentioned in sections 24–26. But in this case the confession was recorded by the Magistrate. 81 Kanhaiyalal v UOZ, (2008) 4 SCC 668. 82 The 14th Report. 83 Sidney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, Ed, London, 1963, p 329, para 795. 84 Chattar Singh v Haryana, AIR 2009 SC 378. 85 Shivappa v Karnataka, AIR 1995 SC 980. 86 Beaman J, observed: “If it appears to the judge that the confession has been improperly induced, no matter how true it may be, he is bound to exclude it.” R v Bhagi, 4 Cr LJ 332. Section 74 of PACE Act of 1984 of England says: “the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” 87 See Laurent B Frantz and Norman Redlich, “Does Silence Mean Guilt?”, The Nation, June, 1953, vol 176, pp 471–477. 88 Makhan Singh v Punjab, AIR 1988 SC 1705. 89 Shankaria v Rajasthan, AIR 1978 SC 1248. 90 Deepak Chandrakant Patil v Maharashtra, (2006) 10 SC 151; Jaswant Gir v State of Punjab, (2005) (12) SCC 438. 91 Rajasthan v Raja Ram, (2003) SCC (Cr) 1965. 92 R v Thompson, (1893) 2 QB 12. 93 Sahoo v UP, AIR 1966 SC 40; and Aashmira Singh v MP, AIR 1952 SC 159. 94 Lavji Mona v Gujarat, AIR 1993 SC 2480.

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6.5 POLICY EXCLUSIONS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.5 POLICY EXCLUSIONS The provisions of the Constitution and other statutes, discussed above, bar admissibility of confessions or statements when they are made under actual coercion etc. Section 24 does not declare as irrelevant every confession made to a person in authority but only when it is made under inducement, threat or promise. Sections 25 and 26 of the Evidence Act, 1872, on the other hand, are based on the policy of law that confessions made to the police or made in police custody, respectively, are presumably made under coercion, and they should be barred without proof of actual coercion unless they come under the exceptions stated in sections 26 (Magistrate’s presence) and 27 (Discovery of fact). Under section 27, which will be discussed later, even if the confession has led to the discovery of fact in pursuance to the confession/statement, if the accused proves that he was subjected to coercion in making it, the statement will be barred by Article 20 (3). Thus, while the exclusion of a confession under section 24 is based on the fact that its making appears to the court to have been obtained by inducement, threat or promise, sections 25 and 26 are based on the presumption that confessions made to a police officer or made in police custody are all made under coercion. Then, what is the rationale of these exclusionary principles? •

“The ground for not receiving such evidence is that it would not be safe to receive a statement made under any influence or fear.”95

•

In Rajkumar Karwal v UOI, (1990) 2 SCC 409 : (1991) Cr LJ 97 : (1990) 2 Crimes 435, the Apex Court pointed out that apart from protecting the accused from “third degree treatment”, the exclusionary rule helps “more importantly”, “to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book.”

•

It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice.96

•

“It is not because the law is afraid of having truth elicited that these confessions are excluded, but because the law is jealous of not having the truth.”97

•

A confession which is voluntary need not necessarily be true and a confession which is not voluntary need not necessarily be false,98 but it is as unsafe to admit the latter as it is to rely on the former.

•

The “maxim” that the confession should be voluntary only means that it should not have been obtained by improper means.99 “Voluntarily” does not mean “willingly” because, for instance, a convict who is going up the gallows is going voluntarily but not willingly.

•

In the case of confessions that are barred by sections 25 and 26, there seems to be a double presumption that (a) they are involuntary, irrespective of proof to the contrary, and that (b) consequently, they are untrue and hence unsafe for courts to rely.100

Discussing the scope of the relevant sections of the Evidence Act, 1872 and Criminal Procedure Code, 1973, in Bheru Singh v Rajasthan, 1994 SCR (1) 559 : 1994 SCC (2) 467, the Supreme Court stated: A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure

Page 2 of 2 6.5 POLICY EXCLUSIONS deal with confessions. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression «accused of any offence» in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164, CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.

95 Per Pollock, CB, in R v Baldry, 5 Cox C.C. 523. 96 Rajkumar Karwal v UOI, (1990) 2 SCC 409 : (1991) Cr LJ 97 : (1990) 2 Crimes 435. 97 Per Williams, J, in R v Mansfield, (1881) 14 Cox C.C. 639. 98 Kasimuddin v R, 30 Cal WN 27, at 31. 99 Per Campbell LCJ, in Re Scotts, 1 D &B 58. 100 Balkishan A Devidayal v Maharashtra, (1980) 4 SCC 600, para 2: “confessions whenever and wherever made to the police shall he presumed to have been obtained under the circumstances mentioned in section 24 and therefore, inadmissible except so far as is provided in section 27 of that Act.”

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6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE Section 24 says: 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 reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, 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.

Section 24 bars the proof of a confession made under inducement, threat or promise held out by a person in authority. Section 163 of CrPC,1973 expressly refers to the above provision and reiterates the principle.101 The rationale of the principle is best explained by Chief Baron Eyre as follows: A confession, forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.102

The ingredients of the section are: 1. the statement must amount to a confession; 2. it should have been made by an accused person; 3. the confession is “irrelevant” if it “appears” to the court; 4. that the making of the confession was caused by inducement, threat or promise; 5. having reference to the charge against the accused person; 6. such inducement etc proceeding from a person in authority; and 7. sufficient, in the opinion of the court, for supposing that by making it 8. he would gain any advantage or avoid any evil of a temporal nature 9. in reference to the proceedings against him. 6.6.1 Who is an “Accused Person”? Section 24 deals with confession “made by an accused person”. In Amarsingh v MP, 1996 Cr LJ 1582, para 13, the Supreme Court observed:

Page 2 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE

Section 25 of the Evidence Act deals with Accused of any offence. ‘Offence’ has been defined in Section 3 (38) General Clauses Act, 1897.103 The phrase ‘accused of any offence’ also occurs in Article 20 (3) of the Constitution, in Sharma v Satish,104 it has been held to mean a person against whom a formal accusation relating to the commission of offence has been levelled (e.g. an information to the police) which in the normal course may result in prosecution. The expression ‘accused person’ in Section 24 and ‘a person accused of an offence’ in Section 25 have the same connotation and describe the person against whom evidence is sought to be led in criminal proceeding. No formal accusation is predicted.

To come within the bar of section 24, the statement must amount to a confession, and it must have been made by an accused person. Reference has already been made to the definition of “confession” as given by Pakala Narayana Swamy case.105 Then, who is an ‘accused’ and when does a person become an accused? The answer to this crucial and basic question does not appear to be all that simple. In Terry v Duckworth, 715 F.2d 1217 (1983), the US court of appeals said: A person becomes an accused when prosecution is initiated against him, either through a formal indictment or information or by the actual restraints imposed by arrest and holding to answer a criminal charge.

In Re Ismail, (1999) 1 AC 320, the meaning of the term “accused” under the UK Extradition Act of 1989 was in issue and Lord Steyn observed: It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of “accused” persons. It is also common ground that it is not enough that he is in the traditional phrase “wanted by the police to help them with their inquiries.” Something more is required. What more is needed to make a suspect an “accused” person? There is no statutory definition....Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an “accused” person. And that is so even if the police continue to investigate afterwards.

6.6.1.1 Meaning under CrPC, 1973 The term “accused” has been used in different meanings in CrPC, 1973106 and, depending on the context, he can be “suspect”, “offender”, “arrested person” and “accused not put on trial” etc.107 In L Choraria v Maharashtra, AIR 1968 SC 938, the Supreme Court observed: There, is no need to refer to the sections of the Code of Criminal Procedure because it may safely be assumed that the word ‘accused’ bears these different meanings according to the context. That does not solve the problem of interpretation of the same word in the Code for there it may have been used in one of the two senses or both.108

Under section 190 of CrPC, 1973 a Magistrate takes “cognisance” of an offence109 in four ways:110 firstly, receipt of a complaint111 by the Magistrate; secondly, filing of a police report or charge sheet by the police under section 173112; thirdly, receiving of information by the Magistrate from a person other than a police officer; and fourthly, the personal knowledge of the Magistrate.113 A “criminal proceeding”114 is set in motion by filing an FIR.115 Firstly, though an FIR is not a substantive piece of evidence,116 it is an extremely crucial piece of evidence coming as it does from the citizen to fulfil his legal obligation under section 39 (1), CrPC, 1973 which mandates that “every person, aware of the commission of, or of the intention of any other person to commit, any offence...forthwith give information to the nearest Magistrate or police officer of such commission or intention”. Secondly, FIR provides the primary “information” to enable the state and its instrumentalities to fulfil their obligation “to take suitable steps to trace and to bring to book the guilty.”117 A mere telephonic message by prosecution witness recorded at the police station or very cryptic information, even if not signed by the person giving the information, cannot be treated as FIR. The information should sufficiently disclose the nature of the offence and the manner in which the offence was committed.118 Though an FIR is filed, and registered by the police119 under section 154 (cognisable cases) and section 155 (noncognisable cases) of Cr PC, 1973,120 the formal accusation by the State takes place only when the charge sheet is filed by the police under section 173 of CrPC, 1973. However, actual framing of the charges is done by the judicial

Page 3 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE officer concerned under sections 228, 240 and 246 of CrPC, 1973 as the case may be.121 Thus, filing a charge sheet is different from framing of the charges; the former is a police action and the latter a judicial function. In Manjit Singh at Mange v CBI, through its SP, (2011) 1 SCR 997, at p 1032, para 21, the Supreme Court said: “The person becomes an accused for the purpose of trial after the charges are framed.”122 It was held that “the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.”123 It was held by the Supreme Court that taking cognisance of the offence is a “condition precedent” for holding a valid trial and issue of process.124 In Directorate of Enforcement v Deepak Mahajan, 1994 (3) SCC 440, the Supreme Court pointed out that there is a difference between a Magistrate taking cognisance of an “offence” under section 190 and taking cognisance of an “offender” 125and observed: “The offender on arrest is termed as suspected person and remains so till such time he comes under the cognizance (as distinct from cognizance of the offence) of a Magistrate or an officer other than the police officer.” In Raghubans Dubey v State of Bihar, AIR 1967 SC 1167, Supreme Court held that “once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are...”126 It can be said that the Magistrate takes cognisance of the offender when he issues a summons or a warrant, as the case may be, under section 204 of CrPC, 1973.127 The Supreme Court held that “summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto...and then examine if any offence is prima facie committed by all or any of the accused.”128 The test is “not whether there is sufficient ground for conviction.” Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.129 It was said that an accused person does not come into the picture at all till process is issued,130 and it is only at the post-summoning stage that the respondents in a criminal complaint would answer the description of an ‘accused’.131 In K M Mathew v Kerala, AIR 1992 SC 2206 : 1991 SCR Supl. (2) 364, it was held that the order issuing the process is an interim order and not a judgment, and it can be varied or recalled. The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused.132 However, it has been held that a person merely called for interrogation will not per se become an accused person.133 6.6.1.2 Meaning under the Evidence Act, 1872 In Amarsingh v MP, 1996 Cr LJ 1582, para 13, the Supreme Court observed: Section 25 of the Evidence Act deals with Accused of any offence. ‘Offence’ has been defined in Section 3 (38) General Clauses Act, 1897. The phrase ‹accused of any offence› also occurs in Article 20 (3) of the Constitution, in Sharma v Satish134, it has been held to mean a person against whom a formal accusation relating to the commission of offence has been levelled (e.g. an information to the police) which in the normal course may result in prosecution. The expression ‘accused person’ in Section 24 and ‹a person accused of an offence› in Section 25 have the same connotation and describe the person against whom evidence is sought to be led in criminal proceeding. No formal accusation is predicted.

The judicial interpretation of the term “accused” in the context of confessions under section 24, 25 and 26 of the Evidence Act, 1872 is different even from the varied connotations given to the term under CrPC, 1973 as discussed above. Under CrPC, 1973 one could apply the tests of (a) the registration of an FIR135, or (b) filing of charge sheet by the police or (c) framing of the charges by judicial officer, or (d) issuance of summons or warrant by a Magistrate, or (e) being a history-sheeter for the characterisation of a person as an accused (section 273, CrPC, 1973)136, depending on the context as pointed out by Choraria and Deepak Mahajan cases referred to above. The Supreme Court came to the conclusion that any of the above tests could be self-defeating in the case of application of sections 24 and 25 of the Evidence Act, 1872. For instance, the police can use third-degree methods on the accused and extort a confession and then get an F.I.R. registered against him. In the case of confession made to a person in authority under section 24, a superior officer can use inducement, threat or promise to the culprit soon after the detection of the crime and extract confession before even informing the police. The legal connotation of the term “accused” under these sections seems to be similar to that of the Rule against self-incrimination or testimonial compulsion under Article 20 (3) of the Constitution. In UP v Deoman Upadhyay, AIR 1960 SC 1125, the Supreme Court abandoned its earlier narrow view137 and made the position abundantly clear: For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, “accused person” in s. 24 and the expression “a person accused of any offence” have the same connotation,

Page 4 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE and describe the person against whom evidence is sought to be led in a criminal proceeding....The adjectival clause “accused of any offence” is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban.... 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.

As pointed out by Justice Krishna Iyer in a later case Nandini Sathpathi v P L Dani, AIR 1978 SC 1025 : (1978) 2 SCC 424 : 1978 Cr LJ 968, a person must be deemed to have become an accused from the moment an F.I.R is filed against him and “suspects, not yet formally charged but embryonically are accused on record, also may swim into the harbour of Article 20 (3)... the preventive blow falls also on pre-court testimonial compulsion.” The reason is that the moment a person makes a confession he accuses himself of an offence and places himself in the position of an accused though he might have been formally charged later.138 In Aghnoo Nagesia v Bihar, AIR 1966 SC 119, the Apex Court held that the word accused includes “a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.” Thus, under the Evidence Act, 1872, the term “accused” is taken as an expression describing the position of a person against whom his confession is sought to be proved even though he was not an accused when actually he made the confession. The same connotation is applied also under section 25 to an accused who makes a confession to a police officer. This question does not, however, arise under section 26 as it deals with an accused who is already under police custody. 6.6.2 If it “appears” to the Court and “sufficient in the opinion of the Court” It is apparent from the language of section 24 that it is sufficient if it “appears” to the Court that the confession was caused by inducement etc and it is not necessary that it should be as strong as “proved” as defined in section 3139 with a high degree probability.140 The expression ‘appears’ connotes that the Court need not go to the extent of holding that the threat etc has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer.141 Once the accused raises the plea that the confession was not voluntary and that it was made under inducement, threat or promise, the Court has to look into the totality of circumstances142 and see whether there are any suspicious circumstances that cast a shadow of doubt on its voluntariness.143 “The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction.”144 There are two important considerations: First, the inducement etc need not be express and it can be implied. Second, the inducement etc need not be directly conveyed to the accused and it is enough if it is conveyed to the accused even through a third person.145 The very terms of the confession, the person by whom and to whom it was made and the time and circumstances in which it was made would all guide the Court in arriving at a conclusion. The Court may, suo moto, entertain doubts regarding the voluntary nature of the confession but its surmise or reasonable guess must be based on evidence already on record.146 Otherwise, the burden of proving that the confession was involuntary rests on the accused and the prosecution need not prove that it is voluntary.147 However, the position seems to be different in the United Kingdom as under section 76 (3) of the PACE Act of 1984 “In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above” ie, in consequence to oppression etc. The words “appears” and “sufficient in the opinion of the Court” in section 24 leave the critical question to the determination by the Court on the basis of available evidence and its assessment of the situation. As has been held by Supreme Court, “Such inducement, threat or promise need not be proved to the hilt....The expression ‘appears’ connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved.”148 6.6.3 “Inducement, Threat or promise having reference to the charge against the accused person” The inducement etc need not be express and it can be implied. The superior-inferior relationship between the person holding out the threat etc and the accused could be such that a word or even a gesture could produce the threat-benefit perception. There are two conditions here: inducement etc must have (1) reference to the charge that was made (2) against the accused person. Mere caution is not a threat. For instance, in R v Baldry, 5 Cox C.C. 523, the accused was told that he need not say anything to criminate himself and what he did say would be taken down and used as evidence against him. It was held that it did not amount to inducement or threat and the confession was admissible.

Page 5 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE To come within the bar of section 24 the inducement etc must relate “to the charge against the accused person”. In Reg. v Shutter, Lord Atkinson gave an interesting example of a warning being given to the mother that, if she did not confess to a certain offence, her daughter would be proceeded against for another offence committed by the latter. Mothers might find the threat of action against their daughters more compelling than action against themselves but as the threat does not relate to the charge against the mother, her confession will not attract the bar and it will be admissible. Lord Atkin commented that “the law of England cannot be so ridiculous as that.”149 However, the House of Lords has held that the confession would be inadmissible if the threat relates not to the particular charge against the accused about which the investigation is going on but against another charge against the same accused.150 6.6.4 “Gain any Advantage or Avoid any Evil of Temporal Nature” The term ‘temporal’ in this context means ‘mundane’ or ‘worldly’ or which is not spiritual. The advantage or evil that might ensue from making or not making of the confession should be relatable to the punishment that would result from the charges against the accused. The inducement etc must “give the accused person grounds, which would appear to him reasonable, for supposing” that the advantage or evil would or would not accrue, as the case may be. The mere existence of an inducement etc is not enough to attract the bar of section 24 and the inducement etc must have had the desired effect of persuading him to make a confession which he would not have otherwise made but for that inducement etc. The inducement, threat or promise must: (a) give the accused grounds that appear to him reasonable grounds for supposing (b) that he would, by making the confession, gain any advantage or avoid any evil (c) of temporal nature (d) in reference to the proceedings against him. The impact of inducement etc on the mind of the accused depends upon the status of the person in authority offering the inducement etc, the position of the accused in relation to the person in authority and other circumstances like the psychology of the accused etc. This assessment will have to be case-specific and the Court will have to put itself in the position of the particular accused and decide whether the accused has been subjected to pressure.151 Moral or spiritual exhortations fall outside the scope of section 24 for two reasons: First, the threat does not relate to the charge against the accused and, secondly, the threat is not of “temporal” nature. Thus, it was held that words of exhortation on moral grounds like “be sure to tell the truth”152 or “you had better, as good guys, tell the truth”153 or on religious grounds like “Don’t run your soul into more sin, but tell the truth”154 and “Now kneel you down, I am going to ask you a very serious question, and I hope you will tell the truth in the presence of Almighty”155 do not amount to a threat of a temporal nature. Referring in a lighter vein to two examples of a Magistrate telling an accused that he would get a longer sentence if he did not confess, and his telling that the accused would go to Hell if he did not confess, Cockle observes: The latter threat might appear the worse, but it would scarcely have the same effect on the mind of the prisoner, who would for the moment be more troubled with his immediate difficulty of getting out of his present trouble, than with his affairs thereafter. Moreover, the magistrate has no jurisdiction with reference to the place mentioned in the latter threat.156

6.6.5 “Proceeding from a Person in Authority” In R v Hodgson, (1998) 2 SCR 449, para 24, the Supreme Court of Canada stated: “The person in authority requirement is properly seen as an integral component of the confessions rule. The emphasis on voluntariness has two main effects: it both avoids the unfairness of a conviction based on a confession that might be unreliable, and has a deterrent effect on the use of coercive tactics.” The Court held “‘Person in authority’ typically refers to those persons formally engaged in the arrest, detention, examination or prosecution of the accused. This definition may be enlarged to encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement.”157 The terms “person in authority” are not necessarily descriptive of persons in Governmental position only though they will be typical candidates. Persons who are in a position to exercise influence over the course of criminal proceedings or the charge against the accused are covered158 but they need not necessarily be persons who have control over investigation and prosecution. Police officers are obviously persons in authority but the English decisions in this regard may not in all cases provide guidance as under English law confessions made to police officers are not barred ipso facto, and they are admissible if they are

Page 6 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE voluntary. On the other hand, under Indian law, confessions made to police officers are barred ipso facto unless they come under the exception of section 27 and they are not proved to be involuntary. The following persons have been held to be “persons in authority”: (1) Customs159 and excise officers are persons in authority for the purposes of section 24.160 As will be discussed under section 25, some of those officers are not considered as police officers for the purpose of that section. (2) Confessional statement to an Intelligence Officer while the accused was in his custody cannot, for that reason alone, be considered as involuntary when the accused has not made any compliant during his examination under section 313 of CrPC, 1973 by the Magistrate regarding any threat held out to him while under custody.161 (3) Where the Magistrate, while recording the confession under section 164 of CrPC, 1973 administered the warnings that the accused was not bound to make the confession and that, if he makes it, it might be used against him, but failed to follow the mandatory procedure of putting the questions to him to satisfy himself that the confession was voluntary, it was held that the confession was inadmissible.162 (4) A superior military officer has been held to be a person in authority with regard to persons under him.163 (5) A mukhia,164 pradhan165 and head166 of panchayat of a village were held to be persons in authority but not a mere member167 of panchayat where he does not have any authority. (6) The real test under section 24 is not only that the confession was made to a person in authority but that the confession was actually made under the impact of the inducement, threat or promise held out by such a person. It was held that while the Panchayat Officers under Bihar Panchayat Raj Act, 2006 could be said to be persons in authority, section 24 is not attracted because it was not shown that any inducement etc were made to the accused.168 In R v Hodgson, (1998) 2 SCR 449, para 24,169 the Canadian Supreme Court envisaged a double test as to the “person in authority”. The objective test is: Is he, in fact, a person in authority? This depends on “a full analysis of the objective relationship between the receiver of the statement and the authorities.”170 In this sense, “the complainant and her family members are capable of being persons in authority. Indeed, anyone is capable of being a person in authority where a person becomes sufficiently involved with the arrest, detention, examination or prosecution of an accused.”171 But the Court held that the subjective test whether the accused had knowledge of the status of the receiver of confession “that the person may influence the process against him or her” and whether the accused had “reasonable” basis for that knowledge is equally crucial. Hence, “if the accused cannot show that he or she had knowledge of the receiver’s status (as, for example, in the case of an undercover police officer) or close relationship to the authorities (as in the case of persons acting on behalf of the state), the inquiry pertaining to the receiver as a person in authority must end”172 and that would mean that the person was in fact a person in authority becomes irrelevant. With respect, it is submitted that in the above case, the Court has placed too heavy a burden of proof on the accused to prove that he made the confession to the person knowing that he was “in authority”. The requirement of proof of the subjective element of the knowledge of the offender of the status of the receiver of the confession should in fact be superfluous in the case of “typical” “traditional” “instrumentalities”173 of State like the police, but its strict application might raise questions of display and identification of authority of officers etc in the case of regular as well as under-cover officers and other persons in authority. It is submitted that for the purpose of section 24 and section 25 of the Indian Evidence Act,1872, the question is whether the person to whom the confession was made was in fact the ‘person in authority’ or ‘police officer’, respectively, (objective test) irrespective of whether the accused had the knowledge of that person’s status (subjective test). The crucial words are persons “in” and “authority”. Jurisprudentially, the term “authority” has a connotation similar to that of “power” and has the meaning of ability to alter the legal relation of others.174 The superior official in an organisation has not only the right but also the authority to report to the police any offence committed by his subordinate. In Hodgson, the Court held that “the complainant and her family members are capable of being persons in authority.” It is submitted, with respect, that the parents or the relatives of a rape victim may have the ‘right’ but not the ‘authority’ to report to the police. The police official to whom the confession is made has the ‘authority’ to take cognisance of the offence vis-a-vis the offender and the ‘duty’ to do so in relation to the government and the society. Though the police are typically “persons in authority” within the meaning of section 24, the confession made to a

Page 7 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE police officer falls under section 25 and its proof per se is barred as against the accused. Though a Magistrate is also a person in authority, a confession recorded by a Magistrate under section 164 CrPC, 1973 is also outside the purview of section 24 as the Magistrate is required under section 164 (3) to warn the accused that he need not make the confession and, if he makes it, it will be used against him and “the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.” Thus, even if the accused was subjected to coercion by the police prior to his making the confession to the Magistrate, the effect of coercion could be considered to have “been fully removed” within the meaning of section 23 of Evidence Act,1872 by the warnings of the Magistrate under section 164 (3). Tender of pardon by a Magistrate in the eventuality of the accused turning an approver under section 306, CrPC, 1973 is an “inducement” or “promise” within the meaning of section 24, but the confession is saved by the provisions of CrPC, 1973 as will be seen below. 6.6.6 Tender of Pardon to Approver and Section 24 Section 163 (1) of CrPC, 1973 provides: No inducement to be offered. (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164.

Thus, section 163 (1) expressly refers to section 24 of the Evidence Act, 1872 and section 163 (1) and (3) reproduce the spirit of sections 24 and 26 of the Evidence Act by barring confessions made under inducement, threat or promise coming from persons in authority, including police officers, and by excepting the confession recorded by a Magistrate under section 164 CrPC, 1973. On the other hand section 306 and 307 of CrPC, 1973 authorise certain Magistrates and the court to tender pardon “with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence” and section 308 provides for withdrawal of pardon and for prosecution if the accused does not comply with the condition on which the pardon was tendered. Strictly, a Magistrate is a prime candidate for being considered as a “person in authority” within the meaning of section 24 of Evidence Act,1872 and of section 163 of CrPC, 1973 and a “tender of pardon” would certainly amount to an “inducement” and “promise” under the two sections. Thus, a confession made by an accused under sections 306 and 307 as a part of a virtual “plea bargain” would be hit by both section 24 of Evidence Act, 1872 and section 163 of CrPC, 1973. Hence, section 316 of CrPC, 1973 provides: No influence to be used to induce disclosure. Except as provided in section 306 and 307, no influence by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.

While section 163 CrPC,1973 bars the use of confession made under inducement, threat or promise to a “person in authority”, section 316 prohibits the use of similar compulsion against the accused without any reference to the position or status of the person offering the inducement etc. As section 316 comes under Chapter XXIV of CrPC, 1973 dealing with “General Provisions as to Inquiries and Trials”, the inference is that any person conducting such inquiry or trial is barred from using such inducement etc. As the section expressly excepts sections 306 and 307, tender of pardon under those two sections are out of the purview of the ban of sections 163 and 316. Though section 24 of the Evidence Act, 1872 does not contain a proviso excepting the tender of pardon under sections 306 and 307 of CrPC, 1973 the rule of harmonious construction would require that such a proviso must be read into section 24 to avoid repugnancy.

Page 8 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE 101 Section 163. No inducement to be offered. 163.No inducement to be offered. (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will : Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164. 102 R v Warwickshall, (1783) 1 Leach. 263. 103 See for a discussion on “Illegal Act’ and ‘Offence’ in Chapter IV above under “Section 10 Interface with IPC”. 104 M P Sharma v Satish Chandra, 954 AIR 300, 1954 SCR 1077 (8-judge Bench: B Jagannadha Das, Ghulam Hasan, N H Bhagwati, T L Venkatarama Iyer, M C Mahajan, B K Mukharjea, S R Das, and Vivian Bose). 105 See the text following footnote 5 above. 106 Thus section 273 of CrPC, 1973 which provides that “all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused”, states in the Explanation that “in this section, ‘accused’ includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this code”. Chapter VIII of the Code deals with “Security for Keeping the Peace and for Good Behaviour” and includes proceedings against persons, who are not accused of any offence but who are “likely” to commit breach of peace and who are suspected, for the purpose of preventive action and to bind them over. Again, section 303 confers the right to be defended by a pleader of his choice on “any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code.” The last part of this section includes the proceedings under Chapter VIII. 107 See, Directorate of Enforcement v Deepak Mahajan, 1994 (3) SCC 440. Section 109 of CrPC refers to “suspected persons”. In Schedule II of CrPC Forms 4, 5, 7 etc refer to person “suspected to have committed” certain offence. The Code for Crown Prosecutors issued in January 2013 by Crown Prosecution Service (CPS), United Kingdom states: “1.4 In this Code, the term ‘suspect’ is used to describe a person who is not yet the subject of formal criminal proceedings; the term ‘defendant’ is used to describe a person who has been charged or summonsed; and the term ‘offender’ is used to describe a person who has admitted his or her guilt to a police officer or other investigator or prosecutor, or who has been found guilty in a court of law.” http://www.cps.gov.uk/publications/code_for_crown_prosecutors/index.html. (Last accessed in April 2019) 108 L Choraria v Maharashtra, AIR 1968 SC 938, para 10. 109 In S Sukumar v S Sunaad Raghuram, AIR 2015 SC 2757, para 11, it was said: ‘Cognizance’ therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed.” In Subramanian Swamy v Manmohan Singh, (2012) 3 SCC 64, it was held: “In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”. Earlier, in S K Sinha, Chief Enforcement Officer v Videocon International Ltd, (2008) 2 SCC 492, para 19, the Apex Court said: “The expression ‘cognizance’ has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” Also, Dr Mrs Nupur Talwar v CBI Delhi, (2012) 11 SCC 465, para 20: “The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed.” 110 Darshan Singh Ram Kishan v Maharashtra, (1971) 2 SCC 654, para 8. 111 Section 2 of CrPC, 1973 defines “Complaint” as: “(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. A report made by a police officer in a case, which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.” Section 190 (1)(a) specifies that the complaint must be “a complaint of facts which constitute such offence” and “therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190 (1)(a) CrPC.” Mehmood Ul Rehman v Khaziri Mohammad Tunda, (2016) 1 SCC (Cr) 124 : (2015) 12 SCC 420. 112 CrPC, 1973, section 2 (r) states: “‘police report’ means a report forwarded by a police officer to a Magistrate under subsection (2) of section 173.” Police report is also known as charge-sheet or final report which is a report on the results of the completed investigation made under Chapter XI, CrPC, 1973. 113 In Rakesh v UP, 26 August, 2014, High Court of Allahabad, the Supreme Court, following its earlier decisions, held that the Magistrate has the options of (1) accepting the final report of the police that the accused were falsely implicated, and (2) at the same time, ignoring the recommendation of the final report, and applying his own mind proceed under section 190 (1)(a) or (b) CrPC, 1973 to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter.

Page 9 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE 114 In Shri Ram Naresh Yadav v MP, 2016 SCC 24, para 27, it was held: “the expression ‘criminal proceedings’ is neither defined in the Constitution of India or the Code of Criminal Procedure, 1973. It is, however, well settled that the expression ‘criminal proceedings’ is wider than the expression ‘judicial proceedings’ defined in Section 2 (i) of the Code. The expression ‘judicial proceedings’ in the Code predicates that it includes any proceeding in the course of which evidence is or may be legally taken on oath. The registration of FIR would certainly not qualify the definition of ‘judicial proceedings’. But...the expression ‘criminal proceedings’, being wider than the expression ‘judicial proceedings’, must encompass the act of institution or registration of First Information Report by the police officer –which is to set in motion criminal action.” 115 In Mohd Yousuf v Afaq Jahan, (2006) 1 SCC 627, the Court explained that registration of an F.I.R. involves only the process of recording the substance of information relating to commission of any cognisable offence in a book kept by the officer in charge of the concerned police station. In T T Antony v Kerala, AIR 2001 SC 2637, it has been held that the term FIR is not used anywhere in CrPC, 1973 and “as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station.” It was also held that there cannot be more than one FIR. Awadesh Kumar Jha at Akhilesh Kumar Jha v Bihar, AIR 2016 SC 373; Anju Chaudhary v UP, 2013 Cr LJ 776 (SC) : (2013) 6 SCC 384; Pandurang Chandrakant Mhatre v Maharashtra, (2009) 10 SCC 773, para 34; Second FIR if it is in the nature of cross complaint or counter complaint, it can be allowed. Amitbhai Anilchandra Shah v Central Bureau of Investigation, 2013 Cr LJ 2313 (SC) : (2013) 6 SCC 348. In Babubhai v Gujarat, (2010) 12 SCC 254, para 10, the Court held that FIR “sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 and 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr PC” In Superintendent of Police, CBI v Tapan Kumar Singh, (2003) 6 SCC 175, para 20, the Court stated: “a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence.” Also, UP v Naresh, (2011) 4 SCC 324. 116 Yaseen v UP, 2016 (1) All LJ 21. 117 Laita Kumari v Government of UP, (2013) 13 Scale 559, para 23. 118 Bhagwan Jagannath Markad v Maharashtra, 2017 Cr LJ 578. 119 Since the “Nirbhaya” case relating to the brutal rape and murder of a young woman in New Delhi on 16 December 2012, the terms “Zero FIR” have come into frequent use. The main issue was the practice adopted by the police of turning away the informants by refusing to register FIR on the grounds that the alleged cognisable offence was not committed within the territorial jurisdiction of that police station. Varma Committee which went into post-Nirbhaya concerns and legal responses recommended that “c) In addition to every individual being able to register an FIR at any police station irrespective of the jurisdiction in which the crime was complained of in writing, every individual must also be able to register his complaint online on a designated website.” (Emphasis added). Justice J S Varma, Report of the Committee on Amendments to Criminal Law, 23 January 2013, New Delhi, p 332, (c). Consequently, the Criminal Law (Amendment) Act, 2013, was passed which also reiterated the duty of the police to register FIR compulsorily. In Lalita Kumari v Government of UP, (2013) 13 Scale 559, para 46, the Supreme Court said that the use of the term “shall” in section 154 (1), CrPC, 1973shows that it is inherently mandatory and “It would be incongruous to suggest that though it is the duty of every citizen to inform about commission of an offence [section 39, CrPC, 1973], but it is not obligatory on the officer-incharge of a Police Station to register the report.” On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero FIRs may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. It must, however, be pointed out that the requirement of Zero FIR ante-dated the Nirbhaya case and as early as 1999 in Satvinder Kaur v State (Govt. of NCT of Delhi), (1999) 8 SCC 728, the Supreme Court held: “the High Court committed grave error in accepting the contention of the respondent that investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of police station at Delhi.” In Bimla Rawal v State (NCT Of Delhi), 2008, HC, 2008 II AD Delhi 188, it was held that if at the time of registration of FIR itself, it is apparent on the face of it that crime was committed outside the jurisdiction of the Police Station, the Police after registration of FIR should transfer the FIR to that Police Station for investigation. Normally a ‘Zero’ FIR is registered by Police in such cases and after registration of FIR, the FIR is transferred to the concerned Police Station.” Malimath Committee in its Report on Reforms of Criminal Justice System, March 2003, vol1, para 7.20.11, also said that it was obligatory on the police officer to register every complaint received by him. 120 On the question whether it is mandatory for the police to register FIR, a bench of three judges in Lalita Kumari v Government of UP, (2012) 4 SCC 1, referred the question to a larger bench and said: “In view of the divergent opinions in a large number of cases decided by this Court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned—the courts, the investigating agencies and the citizens.” The reference was decided by a Constitutional Bench in Lalita Kumari v Government of UP, (2014) 2 SCC 1. The Bench pointed out that filing of FIR “from the point of view of the informant is to set the criminal law in motion..” and held: “111. In view of the aforesaid discussion, we hold: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is

Page 10 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.” Followed in, X v Y, 30 January, 2014, High Court of Madras,; A X Varghese v Kerala, 16 May, 2014, High Court of Kerala,. In cases where the police did not register the FIR or where the police did not make a proper investigation on the basis of FIR, parties used to file a petition in the high court under section 482, CrPC, 1973 or a writ petition under Article 226 seeking a direction to the police. In such cases the Supreme Court has held that such a practice must be discouraged, and that the parties must exhaust the remedies available under CrPC before they finally approach the high court. In Sakiri Vasu v UP, (2008) 2 SCC 409, para 26, the Supreme Court held: If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154 (3) CrPC or other police officer referred to in section 36, CrPC, 1973. If despite approaching the Superintendent of Police or the officer referred to in section 36 his grievance still persists, then he can approach a Magistrate under section 156 (3), CrPC, 1973 instead of rushing to the High Court by way of a writ petition or a petition under section 482, CrPC, 1973. Moreover he has a further remedy of filing a criminal complaint under section 200, CrPC, 1973. Why then should writ petitions or section 482 petitions be entertained when there are so many alternative remedies?” This decision has been followed in: Sudhir Bhaskarrao Tambe v Hemant Yashwant Dhage, (2016) 6 SCC 277, paras 2 and 3; Hamant Yashwant Dhage v Maharashtra, 10 February 2016, Supreme Court of India; Jagdish v State of Rajasthan, 31 August 2016, High Court of Rajasthan; But, see Prabhu Chawla v Rajasthan, AIR 2016 SC 4245 : 2017 (6) SCJ 444, where a three-judge referred Bench took a different view. In Sugesan Transport Pvt Ltd v The Assistant Commissioner of Police, Adyar Police Station, Chennai, 2 September 2016, the Chennai High Court preferred to follow Sakiri Vasu line of judgments referred to above and issued detailed guidelines to the subordinate judiciary and the police in the matter of recording FIRs. 121 Under section 227, CrPC, 1973 a person may be “discharged” even before he is charged (under section 228) on the ground that “there is no sufficient ground for proceeding against the accused.” In Ajay Singh v Chhattisgarh, 2017 (1) Supreme 335, the Court held that “the key words of the section are ‘not sufficient ground for proceeding against the accused’”. It should be noted that the Section employs the word “accused”. In UOI v Prafulla Kumar Samal, 1979 AIR 366 : (1979) 3 SCC 4, it was held: “the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.” But, in Ratilal Bhanji Mithani v Maharashtra, AIR 1979 SC 94 : 1979 SCR (1) 993, the Supreme Court held: “Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused.” Gujarat v Girish Radhakrishnan Varde, (2014) 3 SCC 659: the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police. 122 Australian Criminal Procedure Act 2009, section 3 states: “‘accused’ means a person who (a) is charged with an offence...” 123 P Vijayan v Kerala, (2010) 2 SCC 398. 124 SK Sinha, Chief Enforcement Officer v Videocon International Ltd, AIR 2008 SC 1213, at p 1216, para 12. 125 Kishun Singhv Bihar, (1993) 2 SCC 16: 1993 (1) R.C.R. (Criminal) 647: “It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender.” WB v Mohd. Khalid, (1995) 1 SCC 684 : 1995 (1) R.C.R.(Criminal) 318:”Cognizance is taken of cases and not of persons.” 126 “At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction....At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.” Jagdish Ram v Rajasthan, (2004) 4 SCC 432 : 2004 (2) R.C.R. (Criminal) 194, para 10. 127 In R R Chari v UP, 1962 AIR 1573 : 1963 SCR (1) 121, it was stated that taking cognisance did not involve any formal action or indeed action of any kind but it takes place no sooner a Magistrate applies his mind to the suspected commission of an offence. It was in Emperor v Sourindra Mohan Chuckerbutty, (1910) ILR Vol. XXXVII, Cal. 412, that a Division Bench of the Calcutta High Court first held: “taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.” In Smt. Nagawwa v Veeranna Shivalingappa Konjalgi, 1976 AIR 1947 : (1976) 3 SCC 736, it was reiterated: “In the process of taking cognizance and issue of process to the accused, Magistrate has to form an opinion that a prima facie case is made out against the accused. At that stage, the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant.” 128 Pepsi Foods Ltd v Special Judicial Magistrate, (1998) 5 SCC 749, para 28. 129 Jagdish Ram v Rajasthan, (2004) 4 SCC 432, para 10. 130 Chandra Deo Singh v Prokash Chandra Bose, 1963 AIR 1430 : 1964 SCR (1) 639. 131 Tata Motors Ltd v State, 12 February, 2009, High Court of Delhi, para 20. 132 However, in Akbaruddin Owaisi v The Government of AP, 2014 Cr LJ 2199 (AP HC), it has been held that if a person “can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance.” Though “The State is the master of the litigation in criminal cases” (Sheo Nandan Paswan v Bihar, 1987 AIR 877 : 1987 SCR (1) 702) and it is for the prosecution to

Page 11 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE decide whom to prosecute (R Dineshkumar at Deena State Rep. By Inspector of Police, AIR 2015 SC 1816), there is no reason why a citizen, who finds that a prosecution for an offence against Society is being wrongly withdrawn (nolle prosequi), cannot oppose such withdrawal. Akbaruddin Owaisi, above. 133 Poolpandi v Superintendent, Central Excise, AIR 1992 SC 1795 : 1992 SCR (3) 247. 134 M P Sharma v Satish Chandra, 954 AIR 300 : 1954 SCR 1077. 135 In Romesh Chandra Mehta v WB, (1969) 2 SCR 461, it was held: “Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Also, Balkishan A Devidayal v Maharashtra, (1980) 4 SCC 600. 136 See footnote 84 above. 137 It may be pointed out that earlier judgments of the Apex Court indicate a narrower view that “only a person against whom a formal accusation of the commission of an offence has been made can be a person ‘accused of an offence’ within the meaning of Article 20 (3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court.” See, M P Sharma v Satish Chandra, (1954) SCR 1077; Bhagwan Das v UOI, AIR 1956 SC 175; Raja Narayanlal Bansilal v Maneck Phiroz Mistry, (1961) 1 SCR 417; Bombay v Kathi Kalu Oghad, (1962) 3 SCR 10; Laxmipat Choraria v Maharashtra, AIR 1968 SC 938; Romesh Chandra Mehta v WB, (1969) 2 SCR 461; Balkishan A Devidayal v Maharashtra, (1980) 4 SCC 600, at p 623. This position has been later abandoned as discussed in the text above. 138 Santokhi Beldar v King Emperor, (1932) 12 Pat. 241 (FB). 139 Pyarelal v Rajasthan, AIR SC 1094, at p 1095. 140 Khiro Mandal v The Emperor, (1929) 57 Cal. 649. 141 State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, para 8. 142 Budhoo v Emperor, AIR 1928 Lah. 676. 143 R v Baswanta, 25 Bom. 1683; and Bagga v R, AIR 1925 All. 627. 144 Vinod Solanki v UOI, 2009 (233) ELT 157. 145 Sidney L Phipson, Law of Evidence, 10th Edn, Michael V Argyle, Ed, London, 1963, p 331, para 798. 146 Emperor v Dewan Aahar, 4 Pat. LT 186. 147 See, the 69th Report of the Law Commission of India, p 202. Phipson says that the position of the burden of proof is different in England and that it is for the prosecution to establish that the confession was voluntary, pp 328–329, para 793. In R v Thompson, Cave J, said that the judge would “require the prosecutor to show affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement.” (1893) 2 QB 12. 148 NCT of Delhi v Navjot Sandhu, 2005 AIR SCW 4148, para 8. 149 Referred to in Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint, New Delhi, 2009, p 172. 150 Commr of Customs and Excise v Hartz and Power, (1967) 1 A.C. 760. 151 Pyare Lal v Rajasthan, AIR 1963 SC 1094. 152 R. v Court, 7 C. & P. 486. 153 R. v Reeve, 12 Cox 228. 154 R. v Sleeman, 6 Cox 245. 155 Wild’s Case, (1835) Mood C.C. 452; and Rex v Gilham, (1828) 1 Mood C.C. 186. For a list of admissible and inadmissible exhortations, see Phipson, pp 338–343; and Cockle, p 193. 156 Cockle, Leading Cases on the Law of Evidence, (1903), p 192. 157 R v Hodgson, (1998) 2 SCR 449, para 16. 158 Reg. v Navroji Dadabhai, (1872) 9 B.H.C. 358. 159 S K Modi v Maharashtra, (1979) 2 SCC 58. 160 Harbansingh v State, (1968) 71 Bom LR 599. 161 Pon Adithan v Dy Director, Narcotics Control Bureau, AIR 1999 SC 2355. 162 Preetam v MP, AIR 1997 SC 445. 163 R v Smith, (1959) 2 QB 35.

Page 12 of 12 6.6 SECTION 24 CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE 164 Emperor v Har Piari, AIR 1926 All. 737. 165 Lallan v State, (1969) All WR 377. 166 Emperor v Aushi Bibi, AIR 1916 All. 342. 167 Ludra Hansa v Orissa, (1968) Cr LJ 697. 168 Ratan Gond v Bihar, AIR 1959 SC 18. 169 In this case, the complainant and her parents had confronted the accused at work place and all testified that he admitted the sexual assaults. The complainant’s mother went to call the police and, on her return, struck the accused. After the accused made the confession, the complainant’s father held the accused at gun point allegedly to prevent escape before the police arrived. The issue on appeal was whether the trial judge should have held voir dire on whether the confession was made to person in authority and whether it was voluntary. It was held that accused should have raised the issues before the trial judge which he did not. The appeal was dismissed. 170 R v Hodgson, (1998) 2 SCR 449, para 39. 171 R v Hodgson, (1998) 2 SCR 449, para 49. 172 R v Hodgson, (1998) 2 SCR 449, para 39. 173 R v Hodgson, (1998) 2 SCR 449. 174 In the Hohfeldian sense, ‘liberty’ is what I can do for myself, ‘right’ is what others must do for me, ‘duty’ is what I should do for others and ‘power’ or ‘authority’ is what I can do as against others. Wesley N Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning”, (1913) 23 Yale Law Journal, 16.

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6.7 “PLEA BARGAINING” Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.7 “PLEA BARGAINING” In some other jurisdictions like UK, USA, Australia and Canada, plea-bargaining is provided for175 where, by an agreement with prosecution, the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor.176 6.7.1 UK Practice 6.7.1.1 Newton Hearing In England since the decision in R v Newton, (1983) Crim LR 198, a new practice called “Newton hearing” has emerged where in a trial without jury the accused pleads guilty to an offence but on the basis of a version of facts different from that of the prosecution which might affect the sentence that the Court might impose. In Newton the accused confessed to the offence of buggery but claimed that his wife had given her consent, the latter fact being disputed by the prosecution. The court of appeal ruled that in such cases either (1). Evidence could be heard from both sides and a conclusion reached on the matter which was the root of the problem, or (2) no evidence heard but submissions analysed and, where a substantial doubt still persisted, benefit be given to the defendant. In India a similar situation can arise where in a prosecution for murder the accused pleads guilty but contends that he killed the victim with his consent (culpable homicide not amounting to murder). While culpable homicide is the common ground between the prosecution and the defence, the factual matrix pleaded affects the sentence as they constitute two different offences. 6.7.1.2 “Goodyear” Indication In the United Kingdom, the accused is permitted to ask the trial judge to give “a ‘Goodyear’ indication”177 as to the maximum sentence he would impose on the accused if a plea of guilty were to be tendered at the stage at which the indication is sought. This procedure takes place in public in open court, in the presence of the accused, with both sides represented and the hearing recorded in full. One advantage of such a procedure is that the accused himself can make an informed decision whether to plead guilty or not. Experience suggests that this would result in an increased number of early pleas of guilty and plea bargain, with a consequent reduction in the number of trials and expense of time and effort. In R v Martin, (2013) EWCA (Crim) 2565, the U.K. court of appeal (criminal) held that in Newton situation it is not proper for the Court to give a Goodyear indication of the sentence before completing the Newton hearing as to the truth of facts alleged. 6.7.2 Plea Bargain and Guidelines for Sentencing In England and Wales the Coroners and Justice Act, 2009 set up the Sentencing Council, a statutory authority, which since 2010 developed and implemented a comprehensive system of guidance, consisting of offense-specific guidelines as well as generic guidelines.178 Section 144 of the Criminal Justice Act, 2003 permits plea bargain and provides:

Page 2 of 5 6.7 “PLEA BARGAINING” Reduction in sentences for guilty pleas-— (1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account— (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given. The rationale of the above “trial waiver” provision is stated by the Sentencing Guidelines Council as follows: A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.179

The quantum of the discount is not specified in the above statute of 2003, but guidance is provided in the definitive guideline issued by the Sentencing Guidelines Council. This guideline creates a sliding scale of discounts according to which an offender is entitled to a reduction of up to one third if the plea is entered at first reasonable opportunity, with the reduction declining to one tenth for pleas entered only on the day of the trial.180 It is important to note that it is emphatically stated in the Guidelines that “A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving.”181 This can be true also regarding the collateral effects of the conviction of the accused if he is consequently denied or removed from his employment or denied benefits like housing, etc.182 A Sentencing Council’s guideline that goes pari passu with the above principles is the Totality Principle183 which enables the accused to mention all the offences committed by him to be taken into consideration (TICs)184 for the purpose of mitigating the severity of sentence, and the Courts are required to pass a total sentence which together reflects all the offending behaviour.185 “The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence.”186 6.7.3 Critique of Plea Bargain and “Trial Waiver” In UK and USA there has been a great spurt in cases where the accused entered a plea of guilty and opted for waiver of trial on the charges against him in a plea bargain. An international human rights organisation called Fair Trials submitted a Report on “The Disappearing Fair Trial: Towards a rights-based approach to trial waiver systems”187 The report warns: “The trial is the archetype of criminal justice. But the trial is starting to disappear. The drama of the contested trial is being overtaken by ‘deals’ struck behind closed doors.” The report examines the vast increase in the application of trial waiver systems which has rocketed up to 300% since 1990. In many parts of the world, trials are being replaced by legal regimes that encourage suspects to admit guilt and waive their right to a full trial. A “trial waiver system” is, the Report says, “a process not prohibited by law under which criminal defendants agree to accept guilt and/or cooperate with the investigative authority in exchange for some benefit from the state, most commonly in the form of reduced charges and/or lower sentences.” These can include “plea bargaining,” “guilty pleas,” “summary procedures” and “abbreviated trials” among others. The incentives to the accused are bargains on: 1. Sentence; 2. Charge; 3. Facts; 4. Crown witness/cooperation agreement.188 Of the 90 countries studied by Fair Trials, 66 now have these kinds of formal “trial waiver” systems in place. In some countries, this has become the most common way to settle a criminal proceeding; in the US for example, 97% of the convictions are resolved through guilty pleas. The Report says that the trial waiver systems certainly have advantages in cutting the justice delays, reducing the costs etc but they are not without risks. The risks, inter alia, are that the prosecutors tend to escalate misdemeanours into felonies and scare the accused into a deal and project a higher conviction rate. The Report says: “For this reason, plea bargaining could be operating as a driver of overcharging and the resulting mass incarceration and mass criminalisation of Americans, one in three of whom is estimated to have been arrested by age 23, and more than 2 million of whom are behind bars.” The Report recommends that procedural safeguards should be put in place to ensure, inter alia, that the accused is fully informed about the nature of the charges, implications of a guilty plea, his constitutional and legal rights, mandatory access to a lawyer etc. A court room and

Page 3 of 5 6.7 “PLEA BARGAINING” a criminal trial with a presiding judge and black-robed attorneys are well etched in public mind as symbols of justice and fair play. Fewer trials might result in meagre justice to the accused and also the society at large.189 6.7.4 Plea-Bargaining under CrPC, 1973190 Plea-bargaining is of three kinds: (1) “charge bargaining” ie, the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dropping of other charges; (2) “sentence bargaining” ie, the defendant will plead guilty to the original criminal charge in return for a more lenient sentence;191 and (3) “fact bargaining” where the prosecution agrees not contest the version of facts pleaded by the accused.192 Typically, the US Federal Rules of Criminal Procedure provide for the first two kinds of plea-bargaining193 which has become a prominent feature of US criminal jurisprudence and has considerably expedited the disposal in criminal cases. Chapter XXIA of CrPC, 1973 introduced by the Criminal Law (Amendment) Act of 2005 carries the heading “Plea Bargaining”.194 It is submitted that the heading is a misnomer and it is not clarified in any of its 12 sections whether the chapter provides for both charge- and sentence-bargaining or only one of them. In fact, it provides for none of them. What is manifest from its provisions is that it certainly does not cover charge-bargaining ie, a plea of guilty for an offence lesser than the one the accused is charged with in exchange for concessions. What is, indeed, surprising and not so manifest is that there is also no provision for sentence-’bargaining’ as such as it is for the court to automatically apply the provisions regarding probation of offenders or award 1/2 or 1/4 of the punishment prescribed for the offence, as the case may be, if the stakeholders “work out a mutually satisfactory disposition of the case” which, typically, “may include giving to the victim by the accused the compensation and other expenses during the case.” In other words, an accused who is rich enough to pay the victim can escape, at best, with an admonition or, at worst, with 1/2 or 1/4 of the prescribed punishment and the victim gets the amount of money he bargained for as compensation during the “mutually satisfactory disposition of the case”. The accused can neither bargain for lesser charge nor bargain for lesser punishment; the whole exercise is reduced to the accused ‘bargaining’ for lesser money and the victim for more money. As in the case of tender of pardon under sections 306 and 307, there is an element of reciprocity and give and take in plea bargaining as section 264B (4)(a) of CrPC, 1973 speaks of working out “a mutually satisfactory disposition of the case” at a meeting between the Public Prosecutor, the police officer, the accused and the victim195. However, the new provisions try to ensure that there is no compulsion in the process by requiring (1) under section 264B (1) that the initiative for the bargain should come through an application from the accused along with an affidavit that he “preferred” plea bargain “voluntarily” and (2) under section 264B (4) that the court should examine the accused in camera, in the absence of the other party, to satisfy itself that the accused has filed the application voluntarily. Under section 265C (a), the court is required to ensure that “the entire process is completed voluntarily by the parties”. In fact, the accused is allowed to take part in the bargain along with his pleader.196 Though the court is required to ensure that the process of bargain is voluntary and to sign the Report of mutually satisfactory disposition of the case along with the parties,197 there is no provision requiring the court to participate in the meeting of the parties as a conciliator or even as a facilitator. The plea bargain is a court-annexed exercise and not a courtassisted one. It would be improper to involve the judge in the negotiation process because if the attempts to arrive at plea bargain fail, the case will go before the same judge for adjudication and the admissions and concessions that the parties might have made during negotiations could possibly prejudice him.

175 In R v Caley, (2012) EWCA Crim 2821, the Court of Appeal (Crim) of UK pointed out three main benefits of pleabargaining: (1) the benefit for victims and witnesses, (2) saving the expenditure in public time and money, and (3) indication of remorse for the offence. R v Caley, (2012) EWCA Crim 2821, paras 5–7. The Court observed: “The wellestablished mechanism by which this is done is by reducing the sentence which would have been imposed after a trial by a proportion, on a sliding scale depending on when the plea of guilty was indicated. The largest reduction is of about one third, and is to be accorded, under the well-established practice and the SGC [Sentencing Guidelines Council] Guideline, to defendants who indicate their plea of guilty at the “first reasonable opportunity”. Thereafter the proportionate reduction diminishes. A plea of guilty at the door of the trial court will still attract some reduction, but it is likely to be of the order of one tenth.” The Court said: “At present something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse.” R v Caley, (2012) EWCA Crim 2821, para 6. Section 144 (1) of the Criminal Justice Act, 2003 of UK states: “(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence....a court must take into account: (a) the stage in the proceedings...at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.” Paragraph 5 of SGC in July 2007 (a second edition of 2004), expressly advises that “it might be appropriate to limit the reduction in sentence for plea of guilty where the case

Page 4 of 5 6.7 “PLEA BARGAINING” against the defendant is, irrespective of any admission, overwhelming.” In R v Paul Wilson, (2012) EWCA Crim 386, the court of appeal held that even in such cases, reduction in sentence is appropriate as “even in an overwhelming case the guilty plea has a distinct public benefit.” 176 A W Alschuler, “Plea Bargaining and its History”, Columbia Law Review, vol 79, Issue 1, 1979, pp 1–43. Covey says: “the most important factors that determine the terms on which a plea bargain is negotiated-- what I refer to as the ‘price’ of a plea--are (1) the trial sentence anticipated if the case were tried and resulted in a conviction, (2) the likelihood that a trial will result in a conviction, and (3) the resource costs of trying the case.” Russell D. Covey, “Signaling and Plea Bargaining’s Innocence Problem”, 66 Wash. & Lee L. Rev. 73, (2009), http://scholarlycommons.law.wlu.edu/wlulr/vol66/iss1/3 (last accessed April 2019). 177 This designation takes after the decision in R v Goodyear [2005] 3 All E R 117 where the Court disagreed with the earlier decision in R. v Turner, (1970) 2 All ER 281. In Turner the Court held the defendant is personally and exclusively responsible for his plea; when the defendant enters the plea, it must be entered voluntarily, without improper pressure; there is to be no bargaining with or by the judge and that the judge should never indicate the sentence which he is inclined to impose. This judicial practice was reviewed in 2005 in Goodyear where the court of appeal issued guidelines (the “Goodyear guidelines”) under which advance indications of sentence for proceedings in the Crown Court could be given. 178 All guidelines are available at the website of the Sentencing Council, http://sentencingcouncil. judiciary. gov.uk/ (last accessed April 2019). Though in USA guidelines for sentencing have been evolving since 1970’s, the US model was rejected by Canada in 1980, by Australia in 2000 and by UK in 2008. Julian V Roberts, “Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues, Law and Contemporary Problems”, vol 76, No. 1 (2013).This article is also available at http://lcp.law. duke.edu/. 179 Sentencing Guidelines Council, (SGC), Reduction in Sentence Reduction in Sentence for a Guilty Plea, Definitive Guideline, para 2.2, Revised 2007, https://www.sentencingcouncil.org.uk/wpcontent/uploads/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf (last accessed April 2019). 180 Sentencing Guidelines Council, (SGC), Reduction in Sentence Reduction in Sentence for a Guilty Plea, Definitive Guideline, para 2.2, Revised 2007, https://www.sentencingcouncil.org.uk/wpcontent/uploads/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf (last accessed in April 2019), para 2.6. This guideline will be in force till the Council set up in 2010 makes a new guideline. 181 The Law Commission of England has made proposals for simplifying the Guidelines issued by the Sentencing Council. http://www.lawcom.gov.uk/project/sentencing-code/ (last accessed April 2019). 182 See, for instance, “The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law”, 22 October 2014, A report of the Washington Lawyers’ Committee for Civil Rights & Urban Affairs, http://www.washlaw.org/pdf/wlc_collateral_consequences_report.PDF (last accessed in April 2019). The Report recommends that such effects must be regulated on grounds of Necessity, Due Process, Flexibility and Rehabilitation. 183 It is said that it was David Thomas who “revolutionised” sentencing process in England by propounding the Totality Principle in his pioneering treatise: David Thomas, Principles of Sentencing, 2nd Edn, London, 1979. He stated that a Court “must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces---it must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.” David Thomas, Principles of Sentencing, 2nd Edn, London, 1979, p 57. 184 Mention of TICs by the accused is said to have some “benefits”. They are, inter alia: the court has a fuller and more accurate picture of the offending and is able to give a longer sentence than it would if it were dealing only with the substantive charge; the defendant is able to “clear the slate” to avoid the risk of subsequent prosecution for those offences and put the past behind him which can facilitate his rehabilitation. Although the presence of TICs may increase the sentence, the additional penalty will be less severe than if the offences were prosecuted separately. http://www.cps.gov.uk/legal/l_to_o/offences_ to_be_taken_into_consideration_guidance_(tics)_/ (last accessed April 2019) 185 In the context of English and Welsh law, the totality principle is defined in section 28 (2)(b)) of the Criminal Justice Act 1991, which states that nothing in the Act “shall prevent the court ... in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences”.[5] The principle was recognised in the Criminal Justice Act 2003, section 166 (3)(b). 186 Totality Principle Definitive Guideline, https://www.sentencingcouncil.org.uk/wpcontent/uploads/Definitive_guideline_TICs__totality_Final_web.pdf (last accessed in April 2019). However, the Totality Principle is not followed in some jurisdictions in USA where lengthy prison sentences running into two or more life sentences are given for multiple offenders. In Canada, the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, 2011, amended the Criminal Code, RSC 1985, by adding section 745.51 which permits a judge to order that life sentences be served consecutively if justified by the “character of the offender, the natural of the offence and the circumstances surrounding its commission.” Consequently, on 17 February 2017 Gates J, of Alberta Court of Queen’s Bench delivered a verdict in R v Garland, wherein he sentenced the triple murderer to imprisonment of 75 years without the possibility of parole. The judge called the murders “cunning” and “cruel,” and found no mitigating circumstances present and a “very, very high” degree of blameworthiness. Alexandra Pester, “Canada’s Longest

Page 5 of 5 6.7 “PLEA BARGAINING” Recent Sentences and the Questions and Controversies of Consecutive Life Sentences”, http://www.thecourt.ca/canadas-longest-recent-sentences-questions-controversies-consecutive-life-sentences/ (last accessed April 2019). 187 https://www.fairtrials.org/wp-content/uploads/2017/04/Report-The-Disappearing-Trial.pdf (last accessed in April 2019). 188 The ‘deal’ for pleading guilty could be not only reduced sentence or charge but also prosecution or the accused accepting the opposite side’s version of the facts of the occurrence, and the accused cooperating with the prosecution in the investigation etc against the co-accused. 189 See, Proceedings of Panel discussion on “The Disappearing Trial – The rule of law in a world with more guilty pleas and fewer trials”, Co-organised by The Bingham Centre for the Rule of Law and Fair Trials, sponsored by www.freshfields.com (last accessed in April 2019), on 12 October 2017, at Freshfields Bruckhaus Deringer LLP, London. Also, Julian V Roberts, “Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues”, Law and Contemporary Problems, vol 76:1, 2013. This article is also available at http://lcp.law.duke.edu/ (last accessed in April 2019). 190 See the discussion on the subject also under section 30, infra. 191 Law Commission of India, Report No. 142 on “Concessional Treatment for Offenders who on their Own Initiative Choose to Plead Guilty without any Bargaining”, 1991, Chapter III, p 5, para 3.1. 192 See for example the facts of the Australian case of Dimitrios discussed under section 30 below. 193 The United States Federal Rules of Criminal Procedure, as amended up to 1 December 2011, provide in Rule 11 for ‘plea agreement’ between the attorneys for the government and defence or the defendant appearing in person for himself (‘pro se’) which may provide, inter alia, that the attorney for the Government will (A) not bring, or will move to dismiss, other charges [Charge-Bargain]; (B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case [Sentence-Bargain]. The plea agreement report must be disclosed in open Court and the Court may (1) accept, (2) reject, or (3) defer decision until it reviews the plea agreement report. 194 The amendment came into effect on 5 July 2006. The amendment is the outcome of recommendations of the Indian Law Commission: Law Commission of India, Report No. 142 on “Concessional Treatment for Offenders who on their Own Initiative Choose to Plead Guilty without any Bargaining, 1991, Chapter III, p 5, para 3. 1, recommended both the types of bargain. Law Commission of India, Report No. 154 (1996) on Code of Criminal Procedure, 1973, vol I, p 52, para 8 was also in favour of inclusion of both the types on an “experimental basis” and subject to “guidelines” and these guidelines formed substantial part of Chapter XXXIA. However, the same Report in volume II, p 85, para (g) was referring only to the inclusion of a provision “so that the Court can save some time if the accused confess to have committed the crime and plead for some concession at the time of award of sentence.” See also, the 85th report of Committee of Home Affairs on “Law’s Delays: Arrears in Courts” (2001), p 2; and the Report of the Malimath Committee on Reforms of Criminal Justice System, (March 2003), vol 1, p 178, paras 14.10.1–5, and p 289, Recommendation 106. However, earlier, the Supreme Court has expressed the opinion that plea-bargaining should not be permitted as it was against public policy. Murlidhar Meghraj Loyat v Maharashtra, AIR 1976 SC 1929; Aasambhai v Gujarat, AIR 1980 SC 854; and UP v Chandrika, 2000 Cr LJ 384, at p 386. 195 In the case of R v Nixon, 2011 SCC 34, where a woman was charged with several Criminal Code offences, including dangerous driving causing death, dangerous driving causing bodily harm etc., the Supreme Court of Canada held in a unanimous judgment of nine judges, that though “it is of crucial importance to the proper and fair administration of criminal justice that plea agreements be honoured” (para 63), still the prosecution could go back on the agreement as “prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges.” (para 30). However, the Court felt “the repudiation of a plea agreement is a rare and exceptional event” and “the Crown must explain why and how it made the decision not to honour the plea agreement.” (para63). 196 Section 265C (b), proviso. 197 Section 265D.

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6.8 “COMPOUNDING” OF OFFENCES UNDER SECTION 320 CRPC, 1973 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.8 “COMPOUNDING” OF OFFENCES UNDER SECTION 320 CRPC, 1973 Under section 320 of CrPC, 1973, certain offences specified in the tables in the section can be compounded or compromised by the accused and the person aggrieved by the offence by mutual agreement. Clause 4 (a) of the section provides that where the aggrieved person is a minor or an idiot or a lunatic, “any person competent to contract on his behalf may, with the permission of the Court, compound such offence” and this provision indicates the essentially contractual nature of compounding. Under Clause (8) of the section, “the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.” Unlike plea bargaining under the provisions of CrPC, 1973 discussed above, compounding results in acquittal of the accused and is a private affair and the police and the prosecution have no role to play though in certain cases the prior permission of the court is required. The whole exercise is a voluntary process that does not involve inducement, threat or promise. 6.8.1 Quashing of Cases under Section 482—Court Differentiates In the leading case of in Parbhat Aahir v Gujarat, 2017,198 the Supreme Court made a crucial distinction between quashing of offences under IPC, offences under special criminal statutes and the offences primarily of civil nature and held: any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.

As pointed out already, even within the IPC offences, compounding under section 320 results in acquittal, whereas plea-bargain, in the nature of things, may result in what is bargained for.

198 4 October, 2017, Supreme Court of India.

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6.9 CONFESSION “IRRELEVANT”? Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.9 CONFESSION “IRRELEVANT”? Section 24 says that a confession that falls under its ban is “irrelevant” in a criminal proceeding. It is respectfully submitted that the proper term is “inadmissible” and not “irrelevant”, as the confession made by the accused is barred not on the ground of irrelevancy but on considerations of legislative policy that they should be inadmissible because of real or apprehended involuntariness. A confession made voluntarily out of free will and consent is unquestionably relevant even if it is made to a person in authority without any threat or promise etc or after the effect of the threat etc is removed under section 28. A confession becomes inadmissible under section 25 if it is made to a police officer because the involuntariness of the confession is presumed and not proved. Thus, involuntariness, proven or presumed, of a confession should be taken as affecting its admissibility but not relevancy. Otherwise, the distinction between relevancy and admissibility gets totally blurred.

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6.10 REMOVAL OF EFFECT OF INDUCEMENT ETC—SECTION 28 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.10 REMOVAL OF EFFECT OF INDUCEMENT ETC—SECTION 28 Section 28 provides: 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.

As Ratan Lal and Dhiraj Lal correctly point out, “the proper place of this section would have been after section 24 as it forms an exception to the provisions of that section.”199 If, in the opinion of the court, the hope of advantage or the fear of evil generated in the mind of the accused by the inducement, threat or promise has been fully “removed”, the confession made thereafter becomes fully voluntary and “relevant” or, rather, admissible. The term “removed” gives the impression that the removal is to be made by some other person and not the accused himself. As correctly pointed out by learned commentators200, the baneful impression on the mind of the accused could cease to be operative by (1) lapse of time, or (2) by the counselling by some other person, and it can also be said that the accused might suo moto ponder over a period of time and make the confession and the Court may be persuaded to believe that the confession is untainted and voluntary. The impression could cease to exist by the advice given, for instance, by a lawyer or a friend. Conversely, if it is shown that the effect of counselling or advice has worn off and the accused has lapsed into the influence of inducement etc, the confession may be rejected.201 But once it is shown that the confession was made under the conditions mentioned in section 24, there is a presumption that the accused continues to labour under the impact of inducement etc unless the prosecution succeeds in proving that the impression has been fully removed.202 The transfer or death or retirement of the particular person in authority who held out the inducement etc cannot per se be taken as having had the effect of removing the influence or impact of such unlawful persuasion. In the oft-quoted English case R v Hewett, 1 Carr & Marsh 534, a mistress suspected her maid to have stolen some money and told her “you will be forgiven if you confess.” The next day the maid was taken to the Magistrate but she was discharged even without her making a confession as no one came forward to depose against her. On being arrested the very next day and taken to Bridewell, the Superintendent of police went there along with her mistress and told the maid in the presence of the mistress that she “was not bound to say anything unless she liked and that if she had anything to say her mistress would hear her.” Not aware that the mistress has already promised to forgive her, the Superintendent told her that if she made a statement it might be given in evidence against her. Patteson, J held that the confession was inadmissible as the promise of the mistress to forgive must be considered as still operating on the mind of the accused at the time of making the confession; and the position could have been different if the mistress has not been present at that time.203

199 Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint, New Delhi, 2009, p 222.

Page 2 of 2 6.10 REMOVAL OF EFFECT OF INDUCEMENT ETC—SECTION 28 200 See, for instance, Phipson, On Evidence, 9th Edn by DW Elliott (1966), p 335, para 810; Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint, New Delhi, 2009, p 222, and Batuk Lal, The Law of Evidence, 16th Edn Arvind Kumar Dubey Ed, Allahabad, 2004, p 158. 201 Phipson, On Evidence, 9th Edn by DW Elliott (1966), p 335, para 810. 202 Shobha Param v MP, AIR 1955 MP 125; and Bhagirath v State, AIR 1959 MP 17. 203 See also Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al., vol 1, New Delhi, 1993, pp 511–512; and Basu’s Law of Evidence, 6th Edn, by P M Bakshi, New Delhi, 1998, vol 2, p 1022.

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6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER Section 25 provides: 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.

6.11.1 Rationale of Exclusion of Confessions to Police Unlike section 24 which is hedged in by many conditions before a confession can be treated as barred by it, section 25 bars a confession made to a police officer in one simple and straight forward sentence.204 While under section 24 involuntariness of confession has to be established by proving ‘inducement, threat or promise’, under section 25 the involuntariness is presumed and need not be proved. The rationale of the section’s severity can be inferred from an anecdote recounted by James Fitzjames Stephen himself. He says: During the discussions which took place on the Indian Code of Criminal Procedure in 1872, some observations were made on the reasons which occasionally led native police officers to apply torture to prisoners. An experienced civil officer observed, “There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.” This was a new view to me, but I have no doubt of its truth.205

Sir Stephen mentions that similar provisions were inserted in CrPC of 1861 “in order to prevent the practice of torture by the police206 for the purpose of extracting confessions from persons in their custody.”207 Justice Felix Frankfurter of the United States Supreme Court observed in a memorable judgment: The awful instruments of the criminal law cannot be entrusted to a single functionary.... For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.208

Reflecting similar judicial position, Justice Goswami of the Indian Supreme Court observed: The archaic attempts to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to “start” from a confession they should try to “arrive” at it. Else, when they are busy on their short route to success, good evidence may disappear due to inattention to the real clues. Once a confession is obtained, there is a flagging zeal for a full and thorough investigation with a view to establish the case de hors the confession. It is often a sad experience to find that

Page 2 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER on the confession, later, being inadmissible for one reason or the other, and the case fuddles in the court.209

Jeremy Bentham said: “Torture is employed to obtain a confession for the purpose of supplying the insufficiency of the evidence.”210 Cave J, thought that the police manage to come up with a confession from the accused only when they have no other evidence to fall back upon.211 As Taylor says, there is the danger of overzealous investigating officers in pursuit of evidence, with the hope of securing convictions and their own promotions etc., extorting and magnifying confessions.212 6.11.1.1 Recommendations of the Law Commission of India In the light of the above, the Law Commission of India in its 14th Report on Reforms of Judicial Administration proposed that confessions made to police officers above the rank of Deputy Superintendents be treated as admissible.213 In a later report, the Law Commission sought to give a concrete shape to this recommendation by proposing specific section/clause-wise formulations separately for the confessions recorded by police officers of the rank of Superintendents and above, and for confessions recorded by officers below that rank.214 The Law Commission in its 69th Report recommended that a new section 26A be added on the above lines.215 In its 185th Report, the Law Commission referred to the 1st Report of the Law Commission submitted 150 years ago where, explaining the reasons for including sections 25 and 26 in the Evidence Act, 1872, the Commission castigated the police by saying that the abuse of power by the police was such that “we are persuaded that any provision to correct the exercise of this power by the police will be futile and we accordingly propose to remedy the evil...”. After referring to this, the Law Commission in its 185th Report wondered whether the matters have improved since then and referred to a host of Indian decisions and observed: ...What the First Report of the Law Commission said more than 150 years ago holds good today and, in fact, the situation has vastly deteriorated216....In fact the day all confessions to police, in all types of offences (other than those relating to a few specified categories like confessions by terrorists to senior police officers) is permitted and becomes the law, that will be the day of the demise of liberty217....We, therefore, do not accept the recommendation for introducing section 26A though recommended in the 69th Report.218

The exceptions referred to above by the Law Commission are offences relating to “a few specified categories like confessions by terrorists to senior police officers”. Thus, Acts like Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1987 (section 15), and Prevention of Terrorism Act (POTA) of 2002 (section 32) contained provisions which authorised police officers above the rank of superintendent of police to record confessions made by the accused and these provisions would override the provisions of Evidence Act, 1872.219 Section 15 requires the police officer to ‘explain’ to the accused person that (a) he is not bound to make the confession and (b) it may be used as evidence against him. Merely because the police officers are authorised under these enactments to record confessions does not mean that the Courts are going to rely on them. In Arup Bhuyan v Assam, (2011) 3 SCC 377,220 the Supreme Court held with regard to a confession recorded under TADA by the police officer that: “Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.”221 Appraisal Undoubtedly, the adoption of questionable practices by the police for securing sure-shot convictions should be condemned as subversive of rule of law and of faith in the very justice delivery system. The above quoted comments from the justices of the Apex Courts in England, U.S.A. and India show that the practice of using the “third degree” methods by the police is prevalent also in other long established democratic polities and it is not a practice adopted only by the “native police officers” in India as Stephen seems to believe.222 But the confessions made to the police are not barred wholesale in U.K. and U.S.A. and various safeguards against abuse of power have been built into the system through legislation and judicial decisions. The police are as much a part of criminal justice system as is the judiciary,223 and the functions of prevention, detection, investigation and prosecution of crime continue to be entrusted to the police in India224. Pragmatic and wholesome suggestions for the separation of the investigatory and prosecuting functions of the police have not yet been implemented.225 National Police Commission stated in its Fourth Report of June 1980: This total ban on the entry of a confessional statement recorded by a police officer into the area of judicial proceedings has

Page 3 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER placed the police at a great disadvantage as compared to several other enforcement agencies who also handle investigational work leading to prosecution in court....After a careful consideration of all aspects of this much debated question we feel that the stage has arrived now for us to take a small positive step towards removing this stigma on the police and make it possible for a confession made before a police officer to enter the area of judicial proceedings, if not as substantive evidence, at least as a document that could be taken into consideration by the court to aid it in inquiry or trial...it would largely remove the present feeling of the police that they have been unjustly discriminated against in law.226

In Prakash Singh v UOI, (2006) 8 SCC 1 : 2006 (9) Scale 444 : (2006) Supp 6 SCR 473, where two concerned Director Generals of Police etc filed a PIL, the Apex Court delivered the verdict a decade later and expressed displeasure at the inaction of the Union and State Governments to take action on police reforms in spite of repeated suggestions by the Court and stated: Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations.227

Hence, any systemic deficiencies in the police organisation and functioning must be corrected by legislative measures and by putting in place in-house and external monitoring mechanisms, and not by perpetuating the statutory stigma cast on the police by CrPC, 1973 and the Evidence Act, 1872 during the British colonial era.228 As pointed out above, though enactments like TADA and POTA had authorised the police officers of high rank to record confessions, it meant only that they are made admissible in courts and the courts might rely upon them only if they are satisfied that they are voluntary and credible. In an observation that deserves serious consideration, Mack J, stated in Re Mottai Thevar, AIR 1952 Mad. 586 : (1951) 2 Mad LJ 605, para 8,229 I should like to give expression for what it is worth to the view, which I have had for sometime, that the distrust and apprehensions of the police founded on conditions of lack of education, character and integrity amongst the subordinate police in 1872 do not exist today, at any rate in the same degree, and that the time has come for a modification of these three sections and Section 162, Cri. P. C. and the bringing of the law relating to confessions more into line with that of the United Kingdom which permits a police officer to say in evidence what an accused person told him at the time of his arrest but rigorously shuts out any confession which the Court has no reason to think was not made voluntarily. It is my view that, the removal of these shackles from police testimony is necessary if they are to be evolved into a responsible force, deserving of the confidence of the public, the Bar and the Courts, which can be relied upon to deal severely with any police officer found guilty of concocting a confession or giving false evidence in this direction.

6.11.2 “Police Officer” In Punjab v Barkat Ram, (1962) 3 SCR 338, Raghubir Dayal J, pointed out that “the term ‘police officer’ is not defined in the Evidence Act, or, as a matter of fact, in any other contemporaneous or subsequent enactment.”230 However, His Lordship observed that under the Police Act of 1861 “the word ‘police’ is defined in section I and is said to include all persons who shall be enrolled under the Act.” Consequently, There seems to be no dispute that a person who is a member of the police force is a police officer. A person is a member of the police force when he holds his office under any of the Acts dealing with the police. A person may be a member of the police in any other country. Officers of the police in the erstwhile Indian States and an officer of the police of a foreign country have been held in certain decided cases to be police officers within the meaning of section 25 of the Evidence Act, 1872. There is no denying that these persons are police officers and are covered by that expression in section 25.231

In R v Hurribole, (1876) ILR 1 Cal. 207, Lambert was a member of the regular police force and was so regarded outside Calcutta to which city the Police Act of 1861 did not apply, and he was posted at Calcutta as Deputy Commissioner of Police. He was also invested with the powers of a Magistrate. The accused first made the confession to two police men who took it down in writing and took the accused to Lambert. The accused affirmed

Page 4 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER the truth of his earlier confessional statement and Lambert received the written confession in the capacity of a Magistrate and attested it. The question was whether this confession was hit by section 25 of the Evidence Act, 1872 or not. Richard Garth CJ, repelled the contention that Lambert was not considered as police officer under the Bengal Police Act and held that “the term ‘Police office’ should be read not in any strict technical sense, but according to its more comprehensive and popular meaning. In common parlance and amongst the generality of people, the Commissioner and Deputy Commissioner of Police are understood to be officers of police, or in other words ‘police officers’ quite as much as the more ordinary members of the force”. 6.11.2.1 Wider and Narrower Meanings It has been held in many cases that the term ‘police officer’ should not be understood in or “restrictive” sense232 and “as section 25, Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense.”233 The term ‘police officer’ is understood in the ‘wider’ sense in two ways: Firstly, the terms “police officer” “are not given too narrow a meaning as to refer only to person of the rank of an “officer” but include all members of the regular police force. Head Constable,234 a police patel235 and chaukidar236 have been held to be “police officers”. Secondly, “any person on whom the power to investigate under chapter XII of CrPC is conferred can be said to be a ‘police officer’, no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor.”237As observed in Barkat Ram, the definition of the term ‘police officer’ in the 1861 Police Act “is not restrictive as it uses the expression ‘includes’,238 indicating thereby that persons other than those enrolled under that Act can also be covered by the, word ‘Police’.”239

It is noteworthy that in the first category above the ‘broader’ meaning extends the status of a police officer vertically downwards to all the police personnel in the department irrespective of designation as ‘officer’ and that in the second category the extension of the status of police officer is done horizontally to entirely different category of government employees who are not per se police at all but are Excise, Customs etc officials on whom the law confers the powers of police official in-charge of police station. It is also noteworthy that in the second category of officials, the “broader” interpretation is not extended vertically downwards to include all categories of employees like choukidars etc. Justice Fazl Ali clearly bought out in his concurring separate opinion in Radha Kishun Marwari v Emperor, AIR 1932 Pat. 293, the crucial distinction between “a person who is nothing but a police officer and one who is primarily not a police officer but merely invested with the powers of a police officer” and that blurring the distinction would unduly enlarge the scope of section 25, Indian Evidence Act, 1872. In the same case Terrel CJ, observed that Garth CJ’s observation in Hurribole240 that the term police officer should be given a wider meaning should be taken to include all kinds of police officials but not all kinds of other officials by analogy.241 6.11.2.2 Indicia for Police Officer Then, the question is: what are the indicators for determining whether an official is a police officer? In this context mention may be made to what are called (1) Function test, and (2) Purpose test. While the Function Test looks into whether the powers conferred are typically and substantially those of a police officer under the law, the Purpose Test scrutinises whether the purpose of the conferment of those powers was the prevention and punishment of crime. Raghubir Dayal J made this distinction in Punjab v Barkat Ram, AIR 1962 SC 276 : (1962) 3 SCR 338, as follows: There has, however, arisen a divergence of opinion about officers on whom some powers analogous to those of police officers have been conferred being police officers for the purpose of s. 25 of the Evidence Act. The view which favours their being held police officers, is based on their possessing powers which are usually possessed by the police and on the supposed intention of the legislature at the time of the enactment of s. 25 of the Evidence Act to be that the expression ‹police officer› should include everyone who is engaged in the work of detecting and preventing crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a police officer, does not become one merely because certain powers similar to the powers of a police officer are conferred on him.

6.11.2.3 Purpose Test:

Page 5 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER In Barkat Ram, Raghubir Dayal J, justifying the test observed: The police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police.... It is clear, therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the police Act, that the’ powers which the police officers enjoy are powers’ for the effective prevention and detection of crime in order to maintain law and order... The powers of customs officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods...242

His Lordship further held: The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender. We are therefore of opinion that the duties of the Customs Officers are very much different from those of the police officers and that their Possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it would not make them police officers.243

In Queen Empress v Babulal, ILR (1884) 6 All, Mahmood J, stated: ...the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State›s power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer.

In Nanoo Sheikh Ahmed v Emperor, AIR 1927 Bom 4, para. 12 Marten CJ observed: Now, what was the object of Section 25 of the Evidence Act ? It was, I take it to prevent the abuse of their powers by the police in this country in extorting confessions from persons in their custody ; and I take it that one of the most important periods, during which the accused persons were intended to be protected by the Legislature, was when the case was being investigated by the Police officers and when the accused were perhaps solely in police custody and not allowed to see any other person. Therefore, so far as the spirit of the Act is concerned, we have the same possibilities of evil, when an Excise officer investigates a case as we should have in the case of an investigation by Police officers in charge of a police station under the Criminal P.C.

6.11.2.4 Function test The question whether or not a person is considered as a police officer depends, not on his designation as officer or not even his nomenclature as police or as ‘Excise’ or ‘Customs’, but on whether he has been conferred by the enactment concerned with the real powers and functions of a police officer.244 Under CrPC, 1973, a police officer has not only the powers to require the presence of witnesses under section 160 and powers of arrest, search and seizure under Chapter V, to register F.I.R.s under section 154 but also the power to file a charge sheet (“Report”)245 under section 173, CrPC, 1973. In Badku Joti Savant v State of Mysore, (1966) 3 SCR 698, a Constitution Bench of five learned judges246, has held that even if an officer is invested under any special law with powers analogous to those exercised by police officer in charge of a police station investigating a cognisable offence, he does not thereby become a police officer under section 25, Evidence Act, unless he has the power to lodge a report under section 173 of the Code.

Page 6 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER In Punjab v Barkat Ram, AIR 1962 SC 276 : (1962) 3 SCR 338, Raghubir Dayal J, observed: A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police. Of whatever rank and at whatever time, is inadmissible in evidence in view of s. 25

In Ramesh Chandra Mehta v WB, (1969) 2 SCR 461, a bench of five learned Judges held: ... the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report, under s. 173 of the Code of Criminal, Procedure.

In Raja Ram Jaiswal v Bihar, AIR 1964 SC 828 : 1964 SCR (2) 752, Justice Mudholkar held It would thus follow that an Excise Inspector or Sub Inspector in the State of Bihar shall be deemed to be an officer in charge of a police station with respect to the area to which he is appointed and is in that capacity entitled to investigate any offence under the Excise Act within that area without the order of a Magistrate. Thus he can exercise all the powers which an officer in charge of a police station can exercise under Ch. XIV ‹of the Code of Criminal Procedure, He can investigate into offenses, record statements of the persons questioned by him, make searches, seize any articles connected with an offence under the Excise Act, arrest an accused person, grant him bail, send him up for trial before a Magistrate, file a charge sheet and so on.

6.11.2.5 Appraisal—Call for Reference to Larger Bench Referring to the dicta of various courts referred to above, in Raja Ram Jaiswal v Bihar, AIR 1964 SC 828 : 1964 SCR (2) 752, Justice Mudholkar pointed out that “we may, however, refer to certain decisions in which the question whether an Excise Officer is a Police officer within the meaning of that section has been specifically considered. There is, however, no unanimity in those decisions.” In Nirmal Singh Pehalwan v Inspector, Customs, Customs House, Punjab, (2011) 12 SCC 298, para 15, after noticing both Kanhiyalal as well as Noor Aga,247 Supreme Court “doubted the dicta”248 in Kanhiyalal249 and observed thus: We also see that the Division Bench in Kanhaiyalal case, had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis-a-vis Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar’s case. The latest judgment in point of time is Noor Aga’s case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga’s case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.

In fact many judges appear to have preferred a simpler and straight forward approach of determining whether the powers of the police officer have been statutorily (de jure) and substantially conferred in fact (de facto) on officials like Excise, customs etc, and any scrutiny of the purposes and intent is an unnecessary exercise.250 A Division Bench of the Madras High Court in Public Prosecutor v Paramasivam, AIR 1953 Mad. 917, (per Balakrishna Ayyar J) stated: If he is expressly called a police officer there is no difficulty whatsoever. If he is not so called then the next step is to ask: what does the law require him to do ? What are the duties imposed on him? And what are the powers conferred on him? If these are substantially those of a police officer there need be no qualms in regarding him as one. The material thing to consider would be not the name given to him, nor the colour of the uniform be is required to wear, but his functions, powers and duties. A police officer does not cease to be such merely because he is put into a white, khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container.

In Barkat Ram, (1962) 3 SCR 338, Justice K Subba Rao said in his dissent to Raghubir Dayal J’s “purpose test”:

Page 7 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER

I regret my inability to agree. I cannot bring myself to hold that, while a confession made by an accused to a police officer is not admissible in evidence in a Court of law, the same if made, under exactly similar circumstances, to a customs officer can be relied and acted upon. The reasons for excluding the one from evidence would equally apply to the other.

A full bench of the Bombay High Court in Nanoo v Emperor, (1927) 1. L. R. S. Bom. 78, held that the Bombay Legislature has deliberately conferred upon these Abkari officers substantially all the powers of a Police officer, they have- thereby in effect made them Police officers within the meaning of s. 25.” 6.11.2.6 Diversity of Conferment of Powers Under some Central and State enactments relating to forestry, customs and excise, the officers are clothed with certain frills and trappings of the police but not the power of charge sheeting the accused. Often the divergence in the opinions of different High Courts whether, for instance, the excise officials are to be treated as police or not, is traceable to the fact that certain items of legislative power are found in both the Union List and State List or in the Concurrent List in the Constitution251 and the disparity in the kind of powers that the particular Central or State enactments have conferred on their officers. The acid test that marks off a police officer from other officials is the power to file a charge sheet as, as pointed out earlier, the filing of a charge sheet signifies the first formal State action accusing a person of having committed a crime.252 Excise Officials Thus, in Abdul Rashid v Bihar, AIR 2001 SC 2422, the Supreme Court held that a confession made to the Superintendent of Excise under Bihar and Orissa Excise Act was hit by section 25 as the excise official had all the powers of a police officer. Even an Excise Inspector or Sub-Inspector acting under the same Act was held to be a police officer as under section 77 (2) of the Act he is deemed to be an officer in charge of a police station as under CrPC, 1973.253 The test is not whether the official also is clothed with some of the powers of the police as, for instance, the maintenance of law and order, but whether he has the typical powers of arrest and filing a chargesheet.254 In Amin Shariff v Emperor, ILR 61 Cal. 6076 : AIR 1934 Cal. 580 (FB), it was held that as under section 74 (3) of the Bengal Excise Act the Excise Officer was deemed to be an officer in charge of police station, the official was also a police officer for the purposes of section 25 of Evidence Act, 1872. On the other hand, in Badku Joti Savant v Mysore, AIR 1966 SC 1746, the Supreme Court held that an Excise Officer under the Central Excise and Salt Act of 1944 was not a police officer because, though he had the powers of investigation etc, he was not clothed with the power to file a charge sheet under section 173 of CrPC, 1973. Customs Officers Holding that a Customs Officer was not a police officer in Ilyas v Collector of Customs, AIR 1970 SC 1065, the Supreme Court reiterated that the crucial test for determining whether a Customs Officer was a police officer or not was to see whether he was clothed with the power to file a charge sheet as under section 174 of CrPC, 1973 and, if he was not, he would not be treated as a police officer even if he was conferred with certain other powers like investigation etc. Under the Customs Act of 1962, for the Magistrate to take cognisance of an offence the Customs Officer is required to file a complaint under section 190 (a) and not a “Report” under section 190 (b) like a police officer. Similarly, in Punjab v Barkat Ram, AIR 1966 SC 276, the Customs Officer under the Sea Customs Act of 1878 was also held to be not a police officer as he did not have the power to file a charge-sheet under section 173 of CrPC, 1973 to enable the Magistrate to take cognisance of the offence under section 190 (b), even though the Customs Officer was clothed with certain powers of an in-charge of a police station. In Romesh Chandra Mehta v WB, AIR 1970 SC 940, the Supreme Court held that though the Customs Act of 1962, unlike the Sea Customs Act of 1878, conferred more powers on the Customs Officer including the powers of issuing a warrant, of search and of granting bail, still he was not considered as a police officer as he lacked the power of filing a charge sheet. Other Officials In an interesting decision in Gujarat v Anirudh Singh, AIR 1997 SC 2780, the Supreme Court held that a senior Reserve Police Officer appointed under the State Reserve Police Force Act (SRPF) of 1948, though was considered as a police officer under the Bombay Police Act of 1951, was not a police officer for the purpose of

Page 8 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER section 25 of Evidence Act as his functions were maintenance of law and order and security and not criminal investigation under Chapter XII of CrPC, 1973. The argument that an ordinary accused could not be expected to know those legal distinctions and that he would assume every person in uniform as a police officer was rejected by the Supreme Court on the ground that the crucial question was whether or not the officer was in fact a police officer and not what the accused assumed him to be. In Re Someshwar H Shelat, AIR 1946 Mad. 430, it was held by the Madras High Court that the officer of the Commercial Tax Department acting under the Hoarding and Profiteering Prevention Ordinance of the Provincial Government was a police officer as he was clothed with all the powers of a station house officer. On the same grounds, in Public Prosecutor v Paramasivam, AIR 1953 Mad. 917, it was held that the Prohibition Officer acting under the Opium Act of 1878 was a police officer. The officers appointed under the Narcotic Drugs and Psychotropic Substances Act of 1985 were held to be not police officers for the purpose of section 25 of the Evidence Act as they did not possess the power to charge sheet the accused.255 As an officer vested with the powers of an Officer-in-Charge of a Police Station under section 53 of the Act is not a Police Officer within the meaning of section 25 of the Evidence Act, 1872, it is clear that a statement made under section 67 of the NDPS Act is not the same as a statement made under section 161 of the Code, unless made under threat or coercion.256 It is this vital difference, which allows a statement made under section 67 of the NDPS 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, 1872.257 The Forest Range Officers appointed under the Madras Forest Act of 1882258 and under the Wild Life Protection Act of 1972259 were also held to be not police officers within the meaning of section 25 of the Evidence Act, 1872. An officer of the Railway Protection Force conducting an enquiry under section 8 (1) of the Railway Property (Unlawful Possession) Act, 1966 has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of CrPC, 1973. Particularly, he has no power to initiate prosecution by filing a charge- sheet before the Magistrate concerned under section 173 of the Code, which has been held to be the clinching attribute of an investigating ‘police officer’.260 Though some of the officials mentioned above might not have been considered as police officers in view of the lack of the power to file a charge sheet and, hence, the confessions made to them might not have been hit by section 25, still some of them are endowed with the power to investigate and file complaints under section 220 read with section 190 (a) of CrPC, 1973 and, hence, they would come under “persons in authority” under section 24 of the Evidence Act, 1872.261 Consequently, the courts have to closely scrutinise whether the confessions made to those officers were made under any inducement, threat or promise.262 6.11.3 Appraisal—Recent Developments—Call for Review In the case of Surinder Kumar Khanna v Intelligence Officer Directorate of Revenue Intelligence,263, and the earlier Tofan Singh v TN, (2013) 16 SCC 31, the Supreme Court made a detailed reference to the earlier cases dealing with the question of “police officer” and his powers under Indian Evidence Act, 1872, Excise, Customs and Narcotic Drugs Act, and proposed a reference to larger apex Court Bench to resolve inconsistencies in the earlier decisions as shown below: In Kanhaiyalal v UOI, 2008 (4) SCC 668, it has been categorically held that the officer under section 53 of NDPS Act, 1985 was not a police officer. In arriving at that conclusion the two judge Bench had followed earlier judgment in the case of Raj Kumar Karwal v UOI, 1990 (2) SCC 409. Section 53 provided that the Government may “invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act”. The Court held in Raj Kumar Karwal that the reason for holding that the officer under NDPS was not a police officer was that “there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-in-charge of a police station under Section 53, for the purpose of investigation of offences under the Act.” In Tofan Singh the Court pointed out that there was nothing in NDPS Act that indicated that the power under section 173 has not been conferred or had been excluded as was held in Raj Kumar Karwal and that the judgment in that case “was considered by this court in few cases but without giving imprimatur.”264 It is obvious that “the powers of an officer-in-charge of a police station for the investigation of the offences” that section 53 refers to are comprehensive enough to include the power under section 173, CrPC, 1973 and there was no need to “expressly”

Page 9 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER confer the powers individually. 6.11.4 “Made to” a Police Officer As was discussed already, a confession can be proved even if the confession •

was not addressed to any particular private person, or

•

was an aside or a soliloquy, or

•

even if the accused did not want to communicate to anybody or wanted to keep it secret.

But, for a confession to come under the mischief of section 25, the confession must have been “made to” a police officer. Obviously, there is a difference between a confession “made” and “made to” a person. In the case of a confession “made to” a person, it is a bilateral affair—one making it and the other receiving it. There is a communication link, nexus or connection between the maker and the receiver. Hence, it was held that where the police officer was merely present in a crowd265 when the accused made the confession and it was not made to him, it was not hit by section 25.266 Otherwise, it “would amount to re-writing the provision and to substitute the word ‘to’ with ‘in presence of’. Such interpretation would be also against the spirit of the provision....It is, therefore, not possible to accept the submission that mere physical presence without anything more makes the confession inadmissible.”267 If the accused makes a confession to the police regarding X offence while he is under investigation for Y offence, such a confession also is inadmissible.268 The confession of an accused recorded by a person at the bidding and direction of a police officer is deemed to be a confession made to the police officer and inadmissible in evidence.269 In Sitaram v UP, AIR 1966 SC 1906, the accused murdered his wife and left a confessional letter by the side of the dead body of his wife. The letter was addressed to the sub-inspector of police in which he stated that he alone was responsible for the murder and none else. This letter was later picked by the police and was sought to be proved against the accused at the trial. The Supreme Court held that it was not a confession made to a police officer as he was not even present when the confession was made, and he was ignorant of it and there was no communication link between the accused and the police officer. The Court observed: “The police officer was not nearby when the letter was written or knew that it was being written.” But, in his dissenting opinion, Justice Bachawat rightly pointed out that the presence or absence of the police officer was not decisive as confession can be made to a police officer “by an oral message to him over the telephone or the radio as also by a written message communicated to him through post, messenger or otherwise” and, even if the police officer was ignorant of the fact that confession was made, the confession was “not outside the ban of section 25.”270 Hence, the decision in Sitaram case must be strictly confined to the facts of that case because the very purpose of section 25 can be easily defeated by the police getting confessions addressed to police officer sent by post etc. 6.11.4.1 Section 25 and section 162 of CrPC, 1973—“Made to” a Police Officer: Nexus Theory Section 162 of CrPC, 1973 also bars “statement made by any person to a police officer in the course of an investigation” from being “used for any purpose...at any enquiry or trial in respect of any offence under investigation” under Chapter XII of CrPC, 1973. In Mohd. Shahid v NCT of Delhi, (2015),271 the High Court stated that the “words of section 162, CrPC are therefore wide enough to include a confession made to a police officer during the course of an investigation.”272 The main points of departure relevant for the present purpose between section 162 of CrPC, 1973 and section 25 of Evidence Act, 1872 are that section 162, unlike section 25: (1) bars statements made by any person whether he is an accused or not and (2) bars all statements whether they amount to confessions or not. Hence, it is important to note that in Faddi v MP, AIR 1964 SC 1850, where the accused himself filed an FIR to throw the blame on others, the Supreme Court held that “the report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and s. 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court...” which is relevant under section 21 of Evidence Act, 1872.273 In fact, even a confessional FIR is nor barred by section 162 if it was made before the investigation started but, as the Court held, under section 25, “a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a coaccused.”274 The common crucial factor between the two sections is that the statement under section 162 or confession under section 25 must have been “made to” a police officer. In Himmat Singh v Gujarat, AIR 1965 Guj.

Page 10 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 802, the meaning of the words “made to” was critical in deciding the question whether a letter of confession written by the accused and addressed to the police officer (facts similar to those of Sitaram’s case referred to above) was admissible in evidence under section 162, CrPC, 1973. In Himmat Singh the letter of confession was recovered from the pocket of the bush-shirt worn by the accused when he was in an unconscious state after allegedly he shot and killed his lover and shot himself in an attempt to commit suicide. The Gujarat High Court, holding that the confessional statement was not hit by section 162, observed: ...the words ‘statement made to a police officer’ necessarily intimate the idea of communication or, in other words, a statement being communicated to a police officer by any person. The significant words to be noticed are ‘made’ and ‘to’ and these should be given due weight. These words, in our view, also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. [S. 162] contemplates some positive element to connect the two, the making of a statement and the police officer.275

The High Court also considered the admissibility of Himmat Singh’s confessional letter under section 25 of the Evidence Act and held that the legislative intent and meaning of the words “made to” in section 162 and section 25 was same and the statement of the accused was not barred by either of the sections.276 Thus, the ratio of the decisions of the Gujarat High Court in Himmat Singh (1965) and the decision of the Supreme Court in Sitaram (1966), referred to above, is same. 6.11.4.2 Confession as FIR The term “confession” has the same meaning under section 25 as it has under section 24. Thus, if the statement falls short of a confession as defined in Pakala Narayanaswamy277 it is not inadmissible under section 25 even if it contains admissions and other inculpatory statements. In Faddi v MP, AIR 1964 SC 1850, the appellant-accused himself filed an FIR stating that he found the dead body of his step son in a well. The Supreme Court held that the FIR is admissible in evidence against Faddi and observed: “The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court...” Even if the police were totally ignorant about the commission of an offence and they came to know about the crime only through the F.I.R. filed by the accused wherein he made the confession, still the confession is hit by section 25.278 The crucial question is whether the FIR filed by the accused amounts to a confession or not. In Aghnoo Nagesia v Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 : (1966) 1 SCR 134, the Supreme Court referred to “the question whether...a confessional first information report given by an accused is receivable in evidence against him” and observed: “Decisions of the High Courts on this point are hopelessly conflicting. They contain all shades of opinion ranging from total exclusion of the confession to total inclusion of all admissions of incriminating facts except the actual commission of the crime.” Some High Courts have held that the confessional part should be severed, and the rest of the statement could be treated as admissible. After extensively referring to the cleavage of judicial opinion, the Supreme Court held that “we think that the separability test is misleading, and the entire confessional statement is hit by section 25 and save and except as provided by section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.”279 However, if the accused himself files the F.I.R. wherein he does not make the confession but tries to throw the guilt on some other person to mislead the police, the F.I.R. is admissible in evidence as the statement did not amount to confession.280 However, if a person makes a statement as to the cause of his death in an FIR to the police officer, the statement can be treated as a dying declaration which is admissible in evidence under section 32 (1).281 Both the confessional F.I.R. and the dying declaration in the form of F.I.R. are saved from being hit by section 162 (1), CrPC, 1973 as statements made to a police officer during investigation, because of section 162 (2) which says: “Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (I of 1872), or to affect the provisions of section 27 of that Act.” Thus, the confessional F.I.R. is saved to the extent it has led to discovery of fact by both section 27 of the Evidence Act, 1872 and section 162 (2) of CrPC, 1973 and dying declaration as F.I.R. is saved by section 162 (2) of CrPC, 1973. 6.11.5 “Against a Person Accused of an Offence” The wording of section 25 raises an interesting question. Section 25 says: “No confession made to a police-officer, shall be proved as against a person accused of any offence” and it does not say: “No confession made to a police officer by a person accused of an offence shall be proved as against such a person”. The question is: If ‘A’ makes a confession to the police officer, can it be used against ‘B’ who is an accused in another case? The answer is in the negative because section 25, as it is worded, bars the confession made to a police officer not only against the

Page 11 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER maker but also “against a person accused of any offence”. The reason is that it is a tainted confession and it is absolutely devoid of any credit in a Court of law. An important question related to both section 25, Evidence Act, and section 162 CrPC, is whether a confessional statement made by the accused to the police immediately after the commission of the offence can be used by the accused in his own favour though it cannot be used against him under section 25. In Pakala Narayana Swami v Emperor, 1939 PC 47, para 9 (per Atkin J), the Privy Council has disagreed with many High Courts and held that ‘statement’ under section 162 (1) could be oral as well as written;282 (2) “any person” in section 162 included the statement made by an accused person and (3) the words “apply to a statement made by a person possibly not then even suspected but eventually accused.”283 Firstly, if a confessional statement is made to the police by the accused immediately after the commission of the offence it would amount to an FIR. Such a statement would not be hit by section 162, CrPC, 1973 as it was not made “in the course of an investigation.”284 But, such a statement to the police will be barred by section 25. Secondly, if the confession was made after the investigation has been commenced, the confession will be barred both by section 162 and section 25. As observed in Aghnoo Nagesia v Bihar, AIR 1966 SC 119, “the words of S.162 are wide enough to include a confession made to a police officer in the course of an investigation.” Thirdly, as section 25 employs the terms “no confession...shall be proved as against a person accused of any offence”, Courts have held that the confessional FIR can be used by the accused in his own favour as, for instance, in the case where his statement shows that he acted under grave and sudden provocation and he wants to use that part as a special exception under section 300, IPC, 1860 read with section 105, Evidence Act, 1872.285 In Re Mottai Thevar, 1952 Cr LJ 1210, Mack J held: “There is nothing in the most unsatisfactory state of the law as regards confessions to police officers to stop the user of such a confession in favour of an accused person.” In Shajin v State, 2013 (2) CTC 593, the Madras High Court held that the accused can use the confessional statement made to the police in his own favour though the confessional part cannot be admitted in evidence against him. Then, the critical issue is: Does section 162 bar the use of confessional statement made by the accused during investigation to the police in his own favour, even if section 25 permits such use? While section 25 bars the proof of confession “as against a person accused of an offence”, section 162 has a wider sweep and the statement cannot be “used for any purpose...at any enquiry or trial in respect of any offence under investigation.” Section 162 is severer and bars: 1. All statements, confessional or not; 2. Made by accused or anybody; and 3. All use—against or in favour of the maker. In Sheik Kalesha v Emperor, (1931) 62 Mad LJ 71, it was held that use of a statement made by an accused person to the Police in the course of their investigation was prohibited by section 162, CrPC, as “any person”286 in that section applied not only to witnesses but also to accused persons. In Re Syamo Maha Patro, (1932) 62 Mad LJ 742 : ILR 55 Mad. 903 (F.B.), Lord Reilly aptly observed: “It appears to me in the highest degree improbable that the Legislature, while thinking it wise to shut out statements made to the Police by witnesses, would have allowed statements made by accused persons themselves to the Police to remain admissible.” However, in Khatri Hemraj Amulakah Khaj v Gujarat, AIR 1972 SC 922, the Apex Court permitted the fact that the accused made an FIR to the police immediately after the commission of the offence to be used in his favour to explain his post-offence conduct as reasonable and not the statement. This question came sharply into focus in Sudalaimani v State rep by The Inspector of Police Chrompet Police Station, 2014 (4) CTC 593. The Madras High Court referred to Aghnoo Nagesia and Mottai Thevar cases, above referred to, and pointed out that in the “said two cases the accused surrendered to the Police immediately after committing the offence and gave a confession statement. This singular aspect makes an ocean of difference while determining the legal position which was inadvertently lost sight of by the subsequent Division Benches...” of the High Court.287 Hence, the Court held: Relying upon the statement of law made by the Supreme Court in Aghnoo Nagesia’s case, we have no hesitation in holding that a police confession made after the commencement of investigation cannot be used to give any benefit or advantage to the accused in the light of the ban imposed by Section 162 Cr.P.C....To sum up, if a confession is given to the Police Officer before the start of investigation, then it can be used in favour of the accused as held in Mottai Thevar’s case. If it is given after the commencement of the investigation, its use even in favour of the accused is barred by Section 162 of the Code.288

The following critical propositions arise out of the above: 1. Section 162 bars all statements, confessional or non-confessional, made to police after commencement of investigation. section 25 bars only confessions made to police. 2. Section 162 bars statements made by any witnesses; section 25 bars only confessions made by the accused.

Page 12 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 3. Distinction between confessions made before and after the commencement of investigation is crucial under section 162 as only the later are barred; that distinction is irrelevant under section 25 and both are barred. 4. Confession to police before the commencement of investigation is not barred by section 162 but is barred by section 25. 5. Section 25 bars proof of confession against the accused but does not expressly bar the use of confession in favour of the accused. 6. Section 162 bars any use of confession made after the start of investigation and, hence, bars the use in favour of accused but section 25 does not bar. 7. There will be a conflict between section 162 and section 25 if the latter is interpreted as impliedly permitting the use of confession in favour of the accused which is expressly barred by section 162. 8. Distinction between confession made to police officer (a) before and (b) after commencement of investigation makes an “ocean of difference” under section 162 but not under section 25. Section 162 permits proof of (a) above whether against or in favour of the accused but bars (b) for or against the accused. Section 25 expressly bars proof of confession against the accused but not in favour of accused. 9. The rule that an interpretation favouring the accused must be adopted by courts does not apply where a statute expressly bars that interpretation. Section 162 bars that. As has been held by the Canadian Supreme Court, the modern basis of confession rule is the rule against selfincrimination;289 it is the symbiosis of twin considerations of voluntariness and fairness that forms the basis of admissibility of confessional statements. In that perspective, it will be very unfair to the accused if section 162 is not brought in tune with section 25 either legislatively or judicially, and if he is not permitted to rely on parts of his confessional statement in his own favour while giving full play to the bar against its use against him under both the sections. The Courts have laid down the following in the interpretation of the phrase “Against a Person Accused of an Offence”: •

A confession cannot be used “against” the accused but it can be used by the accused on his own behalf if a part of it helps him at the trial to prove, for instance, that he committed the murder under grave and sudden provocation etc.290

•

A confession made by one accused can be used by another accused when both are facing a joint trial under section 223 of CrPC291. As was seen above, when it was held that the accused who made the confession can himself use it in his own favour, there is no reason why a co-accused cannot use it similarly.

•

On the other hand, a confession made by an accused to the police officer cannot be used also against a co-accused as it is a tainted confession.292

6.11.6 Confession by an Accused after Acquittal—English Case (2007) Section 75 of the Criminal Justice Act of 2003 (Part 10) of England permits retrial of an accused for serious offences (murder is one of the “qualifying offences”) even after his acquittal provided: (a) “new and compelling evidence” is found, and (b) it is in the interests of justice that the retrial should be ordered. Under section 78, evidence is “new” if it was not adduced in proceedings resulting in acquittal and it is “compelling” if it was (a) reliable, (b) substantial, and (c) has high probative value. These provisions were enacted as exceptions to the Rule against Double Jeopardy on the recommendations of the Law Commission. In R v Dunlop, (2007) 1 All ER 593, Dunlop was charged with the murder of Julie Hogg, but he was acquitted after two juries failed to agree and the Crown formally offered no evidence. After acquittal Dunlop confessed to his guilt in the murder in a different case of perjury charge. When a retrial was sought by the Crown, Dunlop contended, inter alia, that he made the confession under the impression that he could not be retried after final acquittal. The court of appeals (criminal) ordered retrial under section 75 of the Act of 2003 referring to the fact that (a) the Law Commission identified the unique features of murder as an offence providing unique justification for making an exception to Double Jeopardy rule; (b) there will be a public outcry if retrial was not ordered; and (c) it was in the interests of justice that the retrial must be ordered.293 In India there is no legislative provision similar to that of the Criminal Justice Act of 2003.

Page 13 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 6.11.7 No Bar of Section 25 in Departmental Proceedings Two important questions that engaged the attention of the courts were whether (1) a confession made to a police officer can be used in a departmental proceeding, and (b) whether the Doctrine of Double Jeopardy would apply to those proceedings. As a departmental proceeding is not a prosecution in a criminal proceeding and, as the charged officer is not an “accused”, a confession made to a police officer can be used against the charged officer. In a case, S B Sinha J, of the Supreme Court held that (1) section 25 and section 162 of CrPC, 1973 use the term “offence” in the sense of an act or omission punishable by law294; (2) those sections do not apply to a departmental proceeding as it is not a criminal proceeding; (3) the Evidence Act, 1872 is not applicable to those proceedings; and (4) the standard of proof in a departmental proceeding is merely preponderance of probabilities.295 It is for the court to assess the reliability on the basis of whether the confession made to the police or in police custody was voluntary or not.296 For the same reasons, the doctrine of Double Jeopardy also does not apply to departmental proceedings and a person can be punished on a criminal conviction and also departmental disciplinary action can be taken for the same act or conduct.297 However, the Supreme Court of United Kingdom has held that the doctrine of double jeopardy will apply to bar more than one disciplinary action for the same act or conduct.298

204 Law Commission of India says that “this section creates an absolute bar against the admission of such confessions” 69th Report, p 203, para 11.7. 205 Sir James Fitzjames Stephen, History of the Criminal Law of England (London: Macmillan & Co, 1883), vol 1, p 442; See also Ed Denson, “Pepper Spray, Pain and Justice”, The Civil Libertarian, 1998. See the dissenting opinion of Justice Felix Frankfurter in Lee v United States, 343 U.S. 747 (1952) where after referring to the above quotation of Sir Stephen, observed that Sir Stephen “acted on this experience in drawing the Indian Evidence Act.” Sir John Woodburn, the Lt. Governor of Bengal in his letter of 12 December 1901 to the Government of India said: “In no branch of the Administration in Bengal is improvement so imperatively required as in the police...The evil is essentially in the investigating staff. It is dishonest and it is tyrannical...” See the Report of the Indian Police Commission of 1902–03. The Report says: “There is no province in India to which these remarks may not be applied.” http://bprd.nic.in/writereaddata/linkimages/2108898614THE%20POLICE%20COMMISSION%20REPORT%201860.pdf (last accessed April 2019). 206 The Madras Torture Commission (1855) appointed by the House of Commons concluded that the “practice seems to be so invariably admitted as an actual existing evil. Report of the Torture Commission (Madras) (1855), p 5, accessed at https://dspace.gipe.ac.in/xmlui/handle/10973/22846?show=full (last accessed April 2019). 207 Sir James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, London, 1872, Macmillan Co, p 126. 208 McNabb v United States, 318 U.S 332 (1943). 209 Dagdu v Maharashtra, (1977) 3 SCC 68, at p 95. In the same vein, the Court observed in Queen Empress v Babu Lal ((1884) ILR 6 All 509: “Instead of working up to the confession, they work down from it, with the result that we frequently find ourselves compelled to reverse convictions simply because, beyond the confession there is no tangible evidence of guilt.” See also the dissenting opinion of K Ramaswamy J, in Kartar Singh v Punjab, where he strongly criticised the police “culture” “to achieve the result irrespective of the means and method which is employed to achieve it” and said that “a Sub-Inspector of the Police may be uncouth in his approach and harsh in his behavior as compared to a Superintendent of Police or Additional Superintendent of Police or any higher officer. But the basic philosophy of the two remains the same.” (1994) 3 SCC 569 : JT 1994 (2) 423 : 1994 Scale 1, paras 453 and 454. 210 Jeremy Bentham, A Treatise on Judicial Evidence, Extracted from the Manuscripts of Jeremy Bentham, Esq. by M. Dupont, London, 1825, p 343. 211 R v Thompson, (1893) 2 QB 12. 212 Taylor, Treatise on the Law of Evidence, 11th Edn, 1931, vol I, pp 582–583, section 862, and pp 590–591, section 874. 213 14th Report, vol 2, p 748, paras 38 and 39. 214 48th Report of 1972 on “Some Questions under the Code of the Criminal Procedure Bill, 1970”, p 5, para 15–22. However, the safeguards were identical in both the cases and the Commission in its 185th Report opined that one single section covering both senior and subordinate police officers would have sufficed. See 185th Report, p 126. 215 The Law Commission of India, 69th Report, p 207, para 11.18. However, the Commission did not draft the new section as proposed. see, footnote 1. 216 See The Law Commission of India, 185th Report, p 132. 217 See The Law Commission of India, 185th Report, p 133. Emphasis in the original.

Page 14 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 218 See The Law Commission of India, 185th Report, p 140. 219 The validity of TADA has been upheld in Kartar Singh v Punjab, (1994) 3 SCC 569. Section 15 of the Act which was held to be an exception to the sections 25 and 26 of the Evidence Act, 1872. Decision in Kartar Singh was affirmed after reference to a Constitutional Bench in Prakash Kumar at Prakash Bhutto v Gujarat, (2005) 2 SCC 409. See also Afzal Khan v Gujarat, AIR 2007 SC 2111; section 15 was held to contain adequate safeguards by way of providing for administration of warnings by the police to the accused on par with section 164 of CrPC, 1973. Simon v Karnataka, (2004) 1 SCC 74 and S N Dube v N B Bhoir, (2002) 2 SCC 254. 220 Arup Bhuyan v Assam, (2011) 3 SCC 377. 221 Followed in Sri Indra Das v Assam, (2011) 3 SCC 380. 222 In a case, Arjit Pasayat, J, said: “Custodial violence, torture and abuse of police power are not peculiar to this country, but is widespread.” Dalbir Singh v UP, AIR 2009 SC 1674, at p 1675, para 8. 223 In Aher Rajakhima v Sourashtra, AIR (1956) SC 217, the Supreme Court observed: “The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the Magistracy nor good to the public. It can only run down the prestige of the police administration.” 224 See Report of the Indian Police Commission, 1902–03, Chapters VIII, VIII and IX. 225 In Delhi v Ashok Kumar Jain, 2014 Indlaw DEL 707, paras 9–11: “because of lack of willingness on the part of the government to separate the investigation from the law and order, despite being directed by the Hon’ble Supreme Court many a times, right from the authoritative pronouncement in Prakash Singh v UOI.” 226 The Fourth Report of the National Police Commission, 1977, “Confessions—Their admissibility in evidence”, para 27.33. 227 Some of the key recommendations by the Supreme Court were regarding separation of investigation from law and order, minimum tenure for senior police officers, creation of the State Security Commissions and a National Security Commission. See, Anurag K Agarwal, “Police and the Rule of Law: Recent Developments in India”, Indian Institute of Management Ahmedabad, Research and Publications, http://www.iimahd.ernet.in/assets/snippets/workingpaperpdf/4033377092014-04-02.pdf (last accessed in April 2019); “Seven Steps to Police Reform”, Commonwealth Human Rights Initiative (CHRI), http://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/seven_steps_to_police_reform.pdf (last accessed in April 2019). 228 In State, Govt of NCT of Delhi v Sunil, (2001) 1 SCC 652, para 21, the Supreme Court observed: “feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post- independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police.” Also, Ram Swaroop v State (Govt NCT) of Delhi, (2013) 40 SCD 431. 229 In Re Mottai Thevar, AIR 1952 Mad. 586: (1951) 2 Mad LJ 605, para.8. 230 Black defines “Police Officer’ as someone “responsible for preserving public order, promoting public safety, and preventing and detecting crime.” Black’s Law Dictionary, 12th Edn, 1999, 1178. In Barkat Ram the Court referred to the definition in Oxford Dictionary as follows: “A department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the extent of its functions varying greatly in different countries and at different periods.” Punjab v Barkat Ram, (1962) 3 SCR 338, para. 34. 231 Punjab v Barkat Ram, (1962) 3 SCR 338, para 34. 232 R v Hurribole, (1876) ILR 1 Cal. 207. 233 Raj Kumar Karwal v UOI, 1990 (2) SCC 409. In R v Hurribole, (1876) ILR 1 Cal. 207, Richard Garth CJ, in an aft quoted observation, said: “I consider that the term ‘police officer’ should be read not in any strict technical sense, but according to its more comprehensive and popular meaning.” 234 R v Dhancham, 4 All. 198. 235 Empress v Baima, 17 Bomb. 485; Queen Empress v Ram Birappa, (1878) ILR 3 Bom. 12. 236 Emperor v Mst Punia, 25 Patna 356; Queen Empress v Salemuddin Sheik, (1899) ILR 26 Cal. 569. 237 Raj Kumar Karwal v UOI, 1990 (2) SCC 409. In Nanoo Sheikh Ahmed v Emperor, AIR 1927 Bom. 4., it was held: “It is not merely the name given to an officer that should determine whether he is a police officer, but the substantial fact whether he exercises the powers of a police officer conferred upon him by law.” Excise officials were held to be police officers since they possessed the same powers of investigation as an officer-in-charge of a police station. 238 In Raja Ram Jaiswal v Bihar, (1964) 2 SCR 752, it was said: “the definition of the word ‘Police’ in the Police Act of 1861 was not a definite definition but only an inclusive one and that the expression ‘police officer’ being not precise in

Page 15 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER defining the class of officers covered by it was to be interpreted according to what the original intention and object of the Legislature must have been in their enacting s. 25 of the Evidence Act.” 239 Punjab v Barkat Ram, (1962) 3 SCR 338. 240 See footnote 5 above. 241 Thus, all employees of Excise etc departments do not come under ‘police officer’ just because an Excise Officer comes within the definition. 242 Punjab v Barkat Ram, AIR 1962 SC 276 : (1962) 3 SCR 338. 243 Punjab v Barkat Ram, AIR 1962 SC 276 : (1962) 3 SCR 338. 244 Raj Kamar Karwal v UOI, 1990 (2) SCC 409. 245 Arjit Pasayat J, points out that the term ‘charge sheet’ did not occur in the CrPC at all and that the Police Manuals, in fact, refer to ‘charge sheet’ in the sense of a Report under section 173 of CrPC, 1973. Meenu Kumari v Bihar, 2006 (4) SCC 359, at p 364, para. 13. 246 Gajendragadkar, P B (CJI)., Wanchoo, K N, Hidayatullah, M, Shah, J C, and Sikri, S M. 247 Noor Aga v Punjab, (2008) 9 Scale 681. 248 Tofan Singh v TN, (2013) 16 SCC 31, para. 38. 249 Kanhaiyalal v UOI, 2008 (4) SCC 668. 250 See also, Noor Aga v Punjab, (2008) 9 Scale 681, para. 104. 251 Under Sch 7 of the Constitution, certain excise duties are both in Union List and State List. So, the States as well as the Central Governments can make laws which may not confer identical powers on the officials under those Acts. Similarly, the entry on ‘Forests’ is in Concurrent List and different States can make Acts conferring dissimilar powers on the Forest Officers. 252 See above the discussion under the sub-heading “Who is an Accused Person?” under section 24. 253 Raja Ram Jaiswal v Bihar, AIR 1964 SC 828. 254 Raja Ram Jaiswal v Bihar, AIR 1964 SC 828. Also, Balkishan Devidayal v Maharashtra, AIR 1981 SC 379. 255 In Ram Singh v Central Bureau of Narcotics, 2011 Cr LJ 3579, the Supreme Court said: “the important attribute of police officer is not only to investigate but also to launch prosecution by filing a report or charge-sheet.” Also Raj Kumar Kanwal v UOI, AIR 19991 SC 45; Badku Joti Savant v Mysore, AIR 1966 SC 1746; Kanhaiyalal v UOI, AIR 2008 SC 1044. 256 Pon Adhithan v Deputy Director, Narcotics Control Bureau, Madras, 1999 6 SCC 1. 257 Kanhaiyalal v UOI, AIR 2008 SC 1044. 258 A E C Richard v Forest Range Officer, Mettupalayam, AIR 1958 Mad. 31 259 Forest Range Officer, Chungathara II Range v Aboobacker, 1989 Cr LJ 2038 (Kerala). 260 Balkishan A. Devidayal v Maharashtra, (1980) 4 SCC 600. 261 In Pon Adithan v Dy. Director, Narcotics Control Bureau, 1999 6 SCC 1, it was held that a confession made to an officer of Narcotic Drugs under threat and pressure would come within the ambit of section 24 of the Evidence Act, 1872 as he is a “person in authority” even if he is held not to be a police officer under section 25. 262 In Francis Stanley v Intelligence Officer, N C B Thiruvananthapuram, 2207 Cr LJ 1157, Supreme Court pointed out those confessions were not like other extra-judicial confessions made to private persons and, hence, they must be subjected to scrutiny. 263 31 July, 2018, Supreme Court of India. 264 Tofan Singh v TN, (2013) 16 SCC 31, para. 28. 265 Punja Mava v State, AIR 1965 Guj 5. 266 Sri Devi v State, 1974 Cr LJ 126; Mst. Maharani v Emperor, AIR 1948 All. 7 267 Alluri Ramayya v Maharashtra, (1987) Cr LJ 1172 : 1987 (1) Bom CR 709. 268 Re Seshampam, AIR 1937 Mad. 209. 269 Emperor v Mst Hari Piari, 97 Ind. Cases 468 : AIR 1926 All. 737. 270 Sitaram v UP, AIR 1966 SC 1906, p 1908, para. 11.

Page 16 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 271 7 September, 2015, Delhi High Court. 272 In Nandini Satpathy v P L Dani, (1978) 2 SCC 424, p 434, para 21, Justice Krishna Iyer pointed out that the area covered by Crl.A.Nos.2295-2296 of 2010 -150- Article 20 (3) and section 161 (2) CrPC, 1973 is substantially the same. “Section 161 (2) of the Criminal Procedure Code is a parliamentary gloss on the constitutional clause”. His Lordship held that Article 20 (3) and section 161 operated “at the anterior stages before the case came to Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that the landmark decision in Miranda v Arizona did extend the embargo to police investigation also, it was observed that there was no warrant to truncate the constitutional protection underlying Article 20 (3). 273 Faddi v MP, AIR 1964 SC 1850. 274 Faddi v MP, AIR 1964 SC 1850. 275 Himmat Singh v Gujarat, AIR 1965 Guj. 802, p 806, para 12. 276 Himmat Singh v Gujarat, AIR 1965 Guj. 802, p 809, para 17. 277 See the text following footnote 5 above. 278 Naresh v MP, 2003 Cr LJ (NOC) 19. 279 Aghnoo Nagesia v Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 : (1966) 1 SCR 134. Hence, if the FIR filed by the accused contains confessional statement, it stands excluded from evidence. Karnataka v K Yarappa Reddy, (1999) 8 SCC 715. 280 Faddi v MP, AIR 1964 SC 1850. 281 Gulam Hussain v Delhi, 2000 Cr LJ 3949. 282 King-Emperor v Maung Tha Din, (1926) ILR 4 Rang. 72 (F.B. of five judges). 283 The Privy Council agreed with: Thimmappa v Thimmappa (1928) ILR 51 M. 967: 55 Mad LJ 351 (F.B.) a Full Bench “accepted the view that Section 162, Criminal Procedure Code, applies to statements made by accused persons”. Also, Re Syamo Maho Patro, 1932 ILR 55 Mad 903 (FB), para 11: Reilly J: “the expression ‘statement made by any person’ in Section 162, Criminal Procedure Code, includes a statement made by a person accused of the offence under investigation.” 284 Re Mottai Thevar, AIR 1952 Mad. 586 : (1951) 2 Mad LJ 605, Mack J observed that “there is a world of difference between a voluntary confession of this kind made to a Police officer, which constitutes the first information he receives of an offence and a confession made by an accused person while in police custody but even the law as it stands completely rules out a confession in the former category.” In other words, Mack J would prefer to treat voluntary confessional FIR as admissible in all cases if it was made to the police (sections 25, 162) though not in police custody (section 26). 285 It was in Re Lal Khan, (1949) 48 Cr LJ 977 (Lahore), that Munir J, held for the first time “there is no legal bar to us using such a confession in favour of the appellants.”; Also, Madiah v State, 1992 Cr LJ 502, pp 506, 507 (Karnataka); Ali Gauhar v Emperor, AIR 1941 Sindh 134; Re Mottai Tevar, 1952 Cr LJ 1210; Vairamuthu v State, (1996) 1 LW Cri 9. 286 In Rankin J said “any person” in section 162 would mean qui vis ex populo or “any of the people”. Azimuddy v Emperor (1926) ILR 54 C 237. 287 The judgments of those Benches were held to be per incuriam by the Court. 288 In fact, in Re Vokkalinga Yengtappa, AIR 1952 Mad. 535, it was already held that “if an accused person produces an incriminating item of property connected with the case,... there is no legal way of that statement being used in favour of an accused even by a defending advocate.” See for a critique of Sudalaimani case, T Sudanthiram, “Sudalaimani v. State, 2014 (4) CTC 593 – Snatching Benefit to the Accused”, 108 Current Tamil Nadu Cases, 2014 (4) CTC; and Sharath Chandran, “Setting Right an Aberration – Sudalaimani v State”, (2014) 3 Mad LJ (Cr) 385. 289 R v Hodgson, (1998) 2 SCR 449, para 22. 290 Madiah v State, 1992 Cr LJ (Karnataka), 502 at pp 506, 507; Ali Gauhar v Emperor, AIR 1941 Sindh 134; Re Lal Khan, (1949) 48 Cr LJ 977; Re Mottai Tevar, 1952 Cr LJ 1210. 291 Imperatrix v Pitamber Jha, (1877) 2 Bom. 61. 292 R v Hari Singh, 12 Bom LR 899. 293 The circumstances in which a court may order a retrial are set out in section 7 (1) of the Criminal Appeal Act 1968, as amended by the Criminal Justice Act 1988, which provides: “Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried”. See also, R v Maxwell, (2010) UKSC 48. In R v B, (2012) EWCA Crim 414, the Court held that the evidence wrongly excluded by the judge constitutes new evidence for the purposes of section 78 (2) on the basis that it was never adduced in or brought forward for consideration as admissible evidence at the original trial. 294 As defined in section 2 (n), CrPC, 1973.

Page 17 of 17 6.11 SECTION 25: CONFESSION MADE TO A POLICE OFFICER 295 Commr of Police, Delhi v Narendra Singh, AIR 2006 SC 1800. 296 Auldeep Singh v Punjab, AIR 1997 SC 82. 297 Manager, RBI, Bangalore v S Mani, (2005) 5 SCC 100. 298 See the discussion under section 40 under the heading “Successive Disciplinary Proceedings and Double Jeopardy-- A Recent English Case (2011)”.

End of Document

6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY Section 26 provides: 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. Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).

6.12.1 “No Confession...shall be Proved” While section 24 says that a confession made under inducement etc is “irrelevant”, section 25 provides that a confession made to a police officer shall not be proved “as against a person accused of an offence”. Section 26 resembles section 25 in providing that the confession shall not be “proved” as against the confessor. As pointed out already, the term “irrelevant” in section 24 should be taken to mean “inadmissible” and a confession barred by that section cannot be used, at all, either against the accused or even by the accused in his own favour. While section 25 bars the proof of the confession not only against the maker but also “as against a person accused of an offence”, section 26 is specific in barring the confession only “against such a person”, namely, the maker of the confession in police custody. Consequently, the confessions barred by section 25 and 26 are not “irrelevant” or “inadmissible” because the bar is partial in that their proof is barred “as against” the accused and not by the accused in his own favour. It is also noteworthy that while both sections 24 and 25 refer to “accused” in the substantive parts of the sections, section 26 refers to “accused” in its heading but not in the substantive part of the section. Section 26 says that “no confession made by any person whilst he is in the custody of a police officer... shall be proved as against such person”. “Any person” includes any person whether he is an accused person or not299 and every person in police custody need not be an accused person. However, the difference in terminology, though avoidable, makes little practical difference as the word “accused” in sections 25 and 26 has been given an interpretation that would include a potential accused also. 6.12.2 Confession to Police Officer while Accused is in Police Custody It may be mentioned that, for the bar to apply under section 25, the question is: “To whom was the confession made, wherever it might have been made?” If the answer is that it was made to a police officer, the confession is barred. Under section 26 the question is: “Where was the confession made?” If the answer is that it was made in police custody, the confession is barred to whomsoever it might have been made, unless it was made to a Magistrate. Thus, the confession could have been made in police custody to any private person including, for instance, a cell-mare in the same custody. Then, the crucial question is: What will be the position if the confession is made to a police officer while the accused

Page 2 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY is in police custody? Will the confession be barred by section 25 and not section 26 so much so that it can be saved from the bar only under section 27 if it has led to the discovery of fact, and not saved under section 26 by the presence of a Magistrate? It is submitted that the Magistrate cannot record the confession as it was made to a police officer. Hence, the presence of the police officer will vitiate the confession, and the presence of the Magistrate cannot solemnise it. Under both the sections the compulsion is presumed and need not be proved by the accused. In Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 : SCR (3) 1962 10, the Supreme Court observed: An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

In Selvi v Karnataka, (2010) 7 SCC 263, para 120, the Apex Court reiterated: In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion.... However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20 (3).

With great respect, it is submitted that the above statement might be correct from the point of interpretation of “compelled to be a witness” under Article 20 (3), but as far as section 26 of Evidence Act, 1872 is concerned if the statement amounts to confession it is barred by the mere fact it was made in police custody, without further proof of compulsion by the accused. 6.12.3 “Custody of a Police officer” The concept of custody is different from that of arrest.300 In a decision, the Supreme Court pointed out that the word “custody” is not defined in CrPC, 1973 and that it must be distinguished from “arrest”. Arrest conveys greater severity than custody. Arrest comprehends custody but not vice versa, in the sense that a person who is arrested is necessarily under the custody, but a person who is under custody need not have been arrested.301 Chapter V of CrPC, 1973 which carries the heading “Arrest of Persons” presupposes in every one of its provisions that the arrested person has committed or is suspected to have committed an offence. Thus, arrest is a means of taking a person into custody and contains a penal element. But all custody need not be penal and can be even benign or beneficial as in the case of ‘protective custody’302 or the parental custody of a child under civil law. However, section 26 speaks of “custody of a police officer” and not other forms of custody. The Thomson Committee of UK said in its Report:303 Custody is detention against the will of the person detained....In our view the crucial question is whether or not that person is free to go about his ordinary business. The test should not depend on any particular form of words used by police officers in addressing the person or on whether or not the person thinks that he is free to go. If the person would not in fact be allowed to go on his way should he attempt to do so, or even express a desire to do so, then be should be regarded as being no longer a free agent but as being in police custody.

In a English decision304, the Court of Appeal, Criminal Division, quoted with approval the following “authoritative” statement of law by Forbes J, in E. v DPP, (2002) Cr LR 737: ...whether a person can be said to be in custody at any particular time is a question of fact to be decided by references to the circumstances of each individual case.... As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person’s freedom of movement is under the control of another.

The court of appeal proceeded to state:

Page 3 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY

...a person may be in custody, notwithstanding that he is not physically confined, provided that he is nevertheless under the direct control of—that is in the charge of —a representative of authority.305

In the landmark decision of R v Rumble, (2003) 1 Cr.App.Rep. (S) 618, the appellant immediately after being sentenced by the Magistrate to a custodial term, simply walked out of the court as at that time there was no usher or security staff present. He was convicted of escape from custody and, on appeal, the court of appeals rejected his contention that he was not in custody as there was no body to take him into custody and held that the moment he surrendered to his bail, he was in custody whether or not any officer sought to restrain his movements. In the decision (2012) of Howes, Warden v Fields, 565 U. S. (2012), the US Supreme had to determine whether the convict already undergoing prison sentence, was in ‘custody’ for the purpose of Miranda warnings during interrogation. The Court reiterated the earlier position that: “‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’306 This observation applying the test of the psychological condition of the accused, apart from the test physical detention, must be confined only to the context of testimonial compulsion with which the decision was concerned, and not as a general test for what constitutes ‘custody’.307 6.12.4 Custody and Arrest It is said that “‘custody’ and ‘arrest’ are not synonymous terms. It is true that in every arrest there is a custody, but not vice versa. A custody may amount to an arrest in certain cases but not in all cases.”308 In AP v Gangula Satya Murthy, (1997) 1 SCC 272, the Supreme Court has held: Such “custody” need not necessarily be post arrest custody. The word “custody” used in Section 26 is to be understood in pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the Section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.

In UP v Deoman Upadhyay, AIR 1960 SC 1125, it was held that section 46, CrPC, 1973 does not contemplate any formality before a person can be said to be taken into custody. Submission to the custody by words of mouth or action by a person is sufficient. Under section 46 (1) of CrPC, 1973, even a person who is under arrest need not be confined or even touched if he submits to arrest by the police.309 Similarly, a person in custody need not be handcuffed or physically confined as the essence of the notion of custody is surveillance and overt or covert exercise of control over the movements of a person. In Mahraj Singh and Harban Singh Sons v UP,310 Allahabad High Court has held that the words ‘in custody’ under the Evidence Act, 1872 “only denote surveillance or restriction on the movement of the person concerned, which may be complete, as, for instance, in the case of an arrested person, or may be partial.” •

Thus, it was held that there are two ingredients in the notion of custody: Firstly, there must be some limitation imposed on the liberty of the accused; and secondly, such restraint may be imposed directly or indirectly either by the police or through some other agency employed by them.311

•

A person may be in the custody of a police officer though the latter may not have physically confined the person.312

•

The bar of section 26 will apply even if the custody or arrest is illegal.313

•

The word ‘custody’ does not mean formal custody but includes a situation where the accused has come into the hands of the police officer or under some sort of surveillance or restraint.314

In Emperor v Lester, (1895) ILR 20 Bom 165, Lester was charged with the murder of her husband and was under arrest. She, accompanied by her friend, was being taken in a tonga to a place called Godhra followed by a mounted policeman. On the way, the policeman went to a nearby village to change the horse and during that time Lester made a confession to her friend. It was held that the confession was inadmissible under section 26 because the

Page 4 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY accused must be deemed to have been in custody in spite of the temporary absence of the policeman as she was not a free woman at that time. Where a village policeman after effecting the arrest of the accused left him in the charge of the villagers and went to inspect the scene of the offence, the accused made a confessional statement to the villagers. It was held that the accused was still in custody of the policeman through the agency of the villagers and the confession was inadmissible.315 In Emperor v Mallangowda, 18 Cr LJ 981, an under-trial prisoner was taken to a dispensary for the treatment of an ailment and the two policemen who accompanied him waited outside while the accused was being examined by the doctor in privacy. During the time of examination, the accused made a confession to the doctor and it was held that the confession was barred by section 26 as the accused must be deemed to have been in the custody. In Paramhansa Jadab v State, AIR 1964 Ori. 144, para 13, the Orissa High Court, after surveying the case law on the subject, observed: It is now well settled that “police custody” for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v Emperor, AIR 1924 Rang 173 the learned Judge pointed out the danger of construing the expression “police custody” in Section 26 of the Evidence Act in a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge observed that if such a view be taken it will be very easy for the police to evade that section and that the correct interpretation would be that “as soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in ‘custody’ within the meaning of Sections 26 and 27 of Evidence Act”. In Haroon v Emperor, AIR 1932 Sind 149 and Pharho Shahwali v Emperor, AIR 1932 Sind 201 it was pointed out that, even indirect control over the movements of suspects by the police would amount to ‘police custody’ within the meaning of that section. In Gurdial Singh v Emperor; AIR 1932 Lah 609 and in Re Edukondalu, AIR 1957 AP 729 also the same principles were emphasised and it was observed that there may be police custody without formal arrest......

6.12.5 Oral Confession made outside Police Station A confession is a confession whether it is made orally or in writing unless it is recorded by a Magistrate under section 164, CrPC, 1973. An extra-judicial confession can be made to an illiterate person and in such a case it can be only an oral confession. Even if the confession is made by the accused orally to a literate friend or relative, it is absurd to expect the latter to go for a pen and paper to record it right in the presence of the accused. In State, represented by the Deputy Superintendent of Police, Namakkal, TN v Kamaraj,316 (2017) the Madras High Court observed that “we have a huge illiterate population in our country and to hold that, only literates can listen to confessions and depose about it in the Court would be a travesty of justice.” Similarly, a confession made to a police officer or made in police custody will be barred under sections 25 and 26 whether it is made orally or in writing. In AP v Gangula Satya Murthy, (1997) 1 SCC 272, admission of an oral confession made to witnesses outside the police station but was later reduced to writing in the police station was challenged as barred by section 26. The Supreme Court rejected the challenge and held that the confession: was not made while he was anywhere near the precincts of the police station or during the surveillance of the police. Though Ext. P-7 would have been recorded inside the police station its contents were disclosed long before they were reduced to writing. We are only concerned with the inculpatory statement which the respondent had made to PW 6 and PW 7 before they took him to the police station. So the mere fact that the confession spoken to those witnesses was later put in black and white is no reason to cover it with the wrapper of inadmissibility.

In Kamaraj case referred to above, the Madras High Court (per P N Prakash J) held that even if the confession recorded in the police station is held to be hit by section 26, the confession orally made in the house of a witness in the absence of the police and before going to the police station was admissible as “there is no requirement in law that an extra judicial confession should be written down by the listener to make it authentic.”317 Thus, it is a question of which confession is sought to be proved actually at the trial, and the earlier oral confession is admissible while the same confession reduced to writing in the police station is inadmissible. 6.12.6 Confession and Religious Privileged Communication

Page 5 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY As was discussed under section 24, spiritual exhortations by a Christian priest to the accused that confession of guilt will save him from Hell etc are not covered by section 24 as they are not of a “temporal” nature. As will be seen infra in chapter 22, certain confessions are treated as “privileged communications” as in the case of communications between husband and wife, and lawyer and the client and they are considered to be inadmissible unless they come under specific exceptions stated in the relevant sections. Unlike in England and some other jurisdictions, Indian Courts do not recognise any Common Law privileges de hors the statutory provisions of the Indian Evidence Act, 1872. In R v Gruenke, (1991) 3 SCR 263, the question arose whether a confession made by Ms. Gruenke to a Christian pastor as to her involvement in murder was inadmissible as a religious privileged communication. The Supreme Court of Canada had to consider “whether a common law prima facie privilege for religious communications should be recognized or whether claims of privilege for such communications should be dealt with on a case-by-case basis”, and also “to consider how the constitutional guarantee of freedom of conscience and religion impacts on these questions.” In Gruenke, Lamer CJ, speaking for the majority held that the confession was admissible as “religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in the way that solicitor-client communications surely are.” His Lordship opined that “Privileged Communications” came under two categories—firstly, the Common Law “blanket”, “class”, “prima facie” privilege for which there is a prima facie presumption of inadmissibility. In such a case, the burden of proof is on the party who questions its privilege and he has to prove the existence of any exception that would permit its admissibility. Lamer CJ held that “such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category.” Secondly, a “case by case” privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (ie, are admissible).” The second category has to satisfy what has come to be known as Wigmore Test318 which required: 1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered. 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The Madras High Court has held that “in India, we have a codified law of evidence where the privileges have been set out in sections 122 to 129, where, there is no bar for the admissibility of a confession given to a priest.”319 6.12.7 “Unless it be made in the immediate presence of a Magistrate” The words “unless it be made in the immediate presence of a Magistrate” engraft an exception to the bar under section 26 and they carry the literal meaning that mere physical presence of a Magistrate is sufficient to make the confession made in police custody admissible under section 26. In fact that was how the section was interpreted by the Courts for a long time. The Courts had also held that even an oral confession made to or in the presence of a Magistrate was admissible under section 26.320 The reason is obvious that the Indian Evidence Act was enacted in 1872 whereas the CrPC, 1973 was made much later in 1898. Naturally, there are references to the Evidence Act, 1872 in CrPC, 1973321 but not vice versa. As it stands even now, after more than 100 years of coming into force of CrPC,1973 and after many amendments to the Evidence Act, 1872, section 26 is not amended to state that the confession must be recorded by the Magistrate as per the procedure laid down in section 164 of CrPC322 That was the reason that the Law Commission of India proposed in its 69th Report of 1977 that section 26 be amended to bring it in line with section 164 of CrPC, 1973 as follows: No confession made by any person whilst he is in the custody of a police officer, shall be proved as against such person unless it is recorded by the Magistrate under section 164 of the Code of Criminal Procedure, 1973.323

The Law Commission of India in its 185th Report also expressed itself in favour of the above proposal and also for substituting “in accordance with Chapter XII” in the place of “under S. 164 of the Code of Criminal Procedure, 1973.”324 However, the above proposed amendments have not been acted upon by the Parliament so far. As a way out of the problem mentioned above, the Supreme Court held as early as 1954 that a confession made in the immediate presence of the Magistrate is not admissible under section 26 if the confession was not recorded in

Page 6 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY the manner laid down in section 164 of CrPC, 1973. In Zwinglee Ariel v MP, AIR 1954 SC 15, para 13, the Supreme Court held that if confessions “are sought to be brought in under Section 26 as confessions made in the immediate presence of the Magistrates, then also they will not be admissible in evidence in that they were not recorded by the Magistrates in the manner prescribed by Section 164, Criminal P. C.” As pointed out by the Supreme Court, section 164 “does not state whose statement or confession is to be recorded by him” and mentions “any statement or confession made to him in the course of an investigation.”325 Sarkar, commenting on the decision of the Supreme Court observed: With great respect, it is submitted that such a proposition does not appear to be in accordance with law, nor with many decisions to the contrary ... referred to or discussed. The obligation to record a confession under S. 164 arises only when it is made to a Magistrate “in the course of an investigation” under ...Ch 12 of Cr.P.C.... and not when it is made to him at any other time or any other occasion....As the ruling stands, it should apply only to a confession made in the immediate presence of a magistrate and in the course of an investigation.326

As the eminent author has correctly pointed out, section 164 of CrPC, 1973 empowers the Magistrate to record the confession only during the course of investigation and the section comes under Chapter XII which deals with investigation by the police. Perhaps what was meant by the Supreme Court in the above quoted decision, and in many other decisions that followed it, was not that section 164 should be read into section 26 as it is, but that the Magistrate should follow the procedure laid down in section 164 so as to exclude the oral admissions and to ensure that the confession is voluntary by administering the warnings prescribed under section 164 to the accused who is already under police custody. In the light of many decisions of the Supreme Court, it is now settled law that the Magistrate in whose presence the confession is made must record it in accordance with the procedure laid down in section 164 of CrPC, 1973 and also that, as held in Kartar Singh v Punjab, 1994 SCC (3) 569 : JT 1994 (2) 423, para 385, “he shall record the confession in the manner provided in Section 281 for recording the examination of the accused person. It shall not only be signed by the Magistrate, but also by the accused himself.” “A confession duly recorded with the prescribed certificate appended to it may be presumed to be voluntary”.327 Thus, where the accused in police custody made the confession in the presence of the Magistrate who recorded the confession but not in the manner prescribed by section 164, it was held that the statement was not admissible under section 26.328 In Jogendra Nahak v Orissa, (2000) 1 SCC 272, the Supreme Court has categorically held that a statement under section 164, CrPC, 1973 can be recorded by the Magistrate only when it is sponsored by the police and not at the instance of any other person. The effect of non-compliance with section 164, CrPC, 1973 in recording a confession by a Magistrate is discussed under section 29, infra. 6.12.8 Judicial Magistrate and Executive Magistrate In Kartik Chakraborty v Assam,329 a three-judge Bench was dealing with a reference was made by a Division Bench on the following issue: Whether the expression Magistrate appearing in Section 26 of the Evidence Act would mean Judicial Magistrate or an Executive Magistrate?

In that case it was contended on behalf of the accused no. 3 and 4 that PW 25 was an Executive Magistrate and, therefore, extraction of confession by the police in front of an Executive Magistrate would not be admissible in evidence and reliance was placed on a Division Bench decision of the Gauhati High Court in Assam v Anupam Das, 2008 Cr LJ 1276 : 2007 (3) Gau LT 697, to contend that the expression “Magistrate” appearing in section 26 of the Evidence Act, 1872 would mean a Judicial Magistrate and not an Executive Magistrate. In Anupam Das, Chelameswar, CJ, as he then was) made an analysis of the interlocking provisions of the Indian Evidence Act, 1872 and CrPC, 1973: The term “Magistrate” is nor defined in the Evidence Act but section 3 (32) of the General Clauses Act, 1897 provides: “‘Magistrate’ shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force.” Section 20 (1) of CrPC, 1973 provides for the appointment of Executive Magistrates and lays down: “In every district and in every metropolitan area the State Government may

Page 7 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.” It is in the context of such separation of powers among the two categories of Magistrates section 3 (1) stipulates that in CrPC, 1973 any reference, without any qualifying words, to a Magistrate shall be construed a Judicial Magistrate. Section 3 (4) expressly clarifies that “Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention” etc, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate”; and (b) “which are administrative or executive in nature... shall, subject as aforesaid, be exercisable by an Executive Magistrate.” “It is in the context of such separation of powers among the two categories of Magistrates”,330 Justice Chelameswar held: the expression “Magistrate” occurring under Section 26 of the Indian Evidence Act can only mean a Judicial Magistrate as the functions of a Magistrate recording a confession of a person in police custody is likely to expose the person making the confession to a punishment.331 The presence of an independent Magistrate by itself is an assurance against the extraction of confession by legally impermissible methods.332

In Kartik Chakraborty v Assam,333 referred to above, answering the reference by the Division Bench, the Gauhati High Court followed Aupam Das and observed that sections 148, 149 and 150 of the first CrPC of 1861 have been incorporated in sections 25, 26 and 27 respectively of the Evidence Act of 1872334 and the provisions do not find a place in the CrPCs of 1882, 1898 and 1973. But both the original statutes were made at a time when the distinction between the legislative and executive wings of the State was not drawn clearly or was only nebulously drawn.335 That was why section 26 of the Indian Evidence Act, 1872 mentioned “Magistrate” without the qualifying “judicial”. It was the Constitution of India, 1950, which in Article 50 incorporated the Directive Principle of the separation of the judiciary from the executive, and it was in this context that CrPC of 1973 makes a clear distinction between judicial and executive magistrates.336 Consequently, section 164, CrPC, expressly provides that it shall be the Judicial Magistrate who shall record the confession “to ensure that the person making such statement is completely free of police influence or there is no fear of any duress or coercion in the making of such a confession.”337 Hence, in Kartik Chakraborthy the High Court held that “the views expressed by the Division Bench in Anupam Das... lays down the correct legal position.”338 A confession recorded by Executive Magistrate-cum-Tehsildar is not admissible in evidence and failure to get it recorded by Judicial Magistrate “cannot be said to be a mere irregularity,339 especially when it has certainly resulted in prejudice to the accused because the Legislature itself had kept the Judicial Magistrate on better footing than Executive Magistrate qua the recording of such statement.”340 It can result in prejudice to the accused where the Executive Magistrate has not observed the safeguards of section 164, and “even oral evidence about it by the [Executive] Magistrate is inadmissible.”341 The view taken by Gauhati High Court discussed above has ultimately prevailed in Madras High Court also. In Sivakumar v State by Inspector of Police, 2006 (1) SCC 714, the Supreme Court (per SB Sinha J) observed: The Madras High Court in some decisions342 held that a village Munsiff was a Magistrate within the meaning of the Code of Criminal Procedure whereupon Section 26 of the Evidence Act was amended343 by adding an explanation that Magistrate does not include the head of the village discharging magisterial functions in the Presidency of Fort St. George or elsewhere unless such headman is a magistrate under the provisions of the Criminal Procedure Code, 1882.

The only provision where such a power may be traced to was section 528 (6) of CrPC, 1898 which read: “The head of a village under the Madras Village Police Regulation 1816 or the Madras Village Police Regulation 1821, is a Magistrate for the purposes of this section.” In Re Lakshmanan, (1971) 1 Mad LJ 178, the Madras High Court pointed out that the Regulations of 1816 and 1821 were superseded by the Madras Village Panchayats Act, 1950, under which only “Presidency Magistrates or the Magistrates of the First Class and such of those Magistrates, specifically empowered can record confessional statement and the Village Munsif, even if he is deemed to be a magistrate, is not competent to record confession.” Rule 72 of the Criminal Rules of Practice and Orders, 1931 of the Madras High Court also reads thus: “Village Magistrates not to record confession. Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the Police investigation has begun.”

Page 8 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY So, it could not be said that the Village Headman is a Magistrate contemplated under CrPC, 1973 who could, if empowered, record confessions under the provisions of the Code. “Therefore, there is no real legal bar to the extra judicial confessional statement made by the appellant to the village Munsif during the investigation being admitted in evidence.”344 Why there is no legal bar has been explained in Alagupandian v The State, 2013,345 as follows: We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the description.

As was held in Alagupandian, the Village Officer may not be competent to record the confession as he is not a Judicial Magistrate but as he is neither a police officer the bar of section 26 also will not apply and the extra-judicial confession recorded by him, like any other ordinary person, will be admissible in evidence. But, the Court in Re Lakshmanan, (1971) 1 Mad LJ 178, “avoided relying on the extra-judicial confession” “though it is not illegal to do so”346 because of three reasons: 1. The taint attached to it by rule 72 of the Criminal Rules of Practice and Orders quoted above; 2. “The extra-judicial confession itself is a weak kind of evidence” and more so when it was recorded by an officer with the above taint; and 3. The conviction of the accused was “fully justified on the other evidence in this case.”347 In Sivakumar, 2006 (1) SCC 714 : (2006) 1 SCC (Cr) 470, Justice SB Sinha disagreed with the first two reasons and opined that Rule 72 has become defunct, redundant and nugatory; “the post of a Village Magistrate since 1973 does not exist’; and “the 1973 Code was brought about to give effect to the constitutional mandate to separate judiciary from the executive”; and “extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact.”348 What is critical in this context is whether the confession was recorded by the Executive Magistrate/village officer while the accused was in the custody of a police officer. It may be noted that in Anupam the confession was made inside the police station to an Executive Magistrate; in Sivakumar the confession was made to a Village Administrative Officer who then handed over the accused to the Police Inspector; and in Lakshmanan the confession was made to a Village Munsif when the accused was not yet apprehended by the police. In an interesting decision in Velu v State, 2009 2 Mad LJ (Cr) 833.349 Madras High Court has held that “even eschewing the...confession statement, the prosecution has established by acceptable evidence that the accused Velu...gave information in his confession leading to recovery of the ornaments belonging to the deceased.” It is submitted that the consequent legal position is as follows: •

a village officer is neither a Magistrate nor a police officer and for that reason neither suffers a ‘taint’ nor gains a plus-point, and

•

a village officer, not being a judicial Magistrate, is not empowered to record a ‘judicial’ confession in view of the provisions of section 26, Indian Evidence Act, 1872, sections 3 and 164, CrPC, 1973 and rule 72 of the Criminal Rules of Practice and Orders quoted above; but

•

as an ordinary person a village officer is on par with anybody else to receive an extra-judicial confession either orally or in writing and carries as much reliability as it deserves under the circumstances of the particular case.

•

What is crucial in this context is whether the accused was in police custody when he made the confession to the village officer and whether it comes under the saving provision of section 27, Indian Evidence Act, 1872 if it has led to the discovery of fact within the meaning of section 27.

•

While section 162, CrPC, 1973 under Chapter XII, CrPC, 1973 bars any “statement” made by “any person” to the police officer “in the course of investigation”, section 26, Indian Evidence Act, 1872 on the other hand, bars “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.”

•

An extra-judicial confession recorded by a Village Officer during the course of investigation by police will not be barred under section 162, but it will be barred under section 26 if it was recorded while the accused is in police custody.350

•

On the other hand, section 164, CrPC, 1973 is an exception to both section 162 and section 26 if the confession is duly recorded by the judicial Magistrate.351

Page 9 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY In Palanisamy alias Kunjupaiyan v State,352 2013, it was held that a confession recorded in the presence of a Tahasildar was not saved by section 26 as he was not a judicial Magistrate. In Kalam at Abdul Kalam v Inspector of Police, (2011) 4 Mad LJ (Cr) 428, the confession either videographed or recorded by the police in the presence of the Executive Magistrate will be hit by sections 25 and 26, as section 26 does not refer to the Executive Magistrate and as section 3 (3), CrPC, 1973 expressly provides that it should be taken as referring only to Judicial Magistrate. In Velu v State, (2009) 2 Mad LJ (Cr) 833, it was held that the confessional statement of the accused has to be recorded only by a Metropolitan Magistrate or Judicial Magistrate as provided under section 164, CrPC, 1973 and it cannot be recorded by any other authority while the accused is in custody of police.353 The Court pointed out that under rule 73 of the Criminal Rules of Practice and Circular Orders, 1958 “the Police, during investigation, has to produce the accused before the salaried Magistrate of the First or Second Class for recording the confession.”

299 Ram Bharose v R, AIR 1944 Ngp 105. 300 Bibhachcha v Orissa, 1998 Cr LJ 1553. 301 Haryana v Dinesh Kumar, AIR 2008 SC 1083. 302 Under section 335 of CrPC, 1973, in the case of an accused person of unsound mind who is found to have committed the offence charged with but acquitted on the ground of unsoundness of mind, the Court shall “order such person to be detained in safe custody”. Under section 270 of CrPC, 1973 a ‘prisoner’ who is brought by ‘an officer in charge of a prison’ to a Court under its orders to answer a charge or appear as a witness, is required to be kept in “custody” in or near the Court. Such custody of a person who is already a prisoner is different from the custody under section 24. 303 Thomson Committee Report Criminal Procedure in Scotland, (Second Report), October, 1975 (Cmnd 6218), paras 3. 03 and 3.12. 304 R. v Montegomery, (2008) 2 All ER 924. 305 R v Montgomery, (2008) 2 All ER 924, p 929, para 14. See also, Regina v Scott Lennon Evans, (2011) EWCA Crim 2842; R. v Dhillon, (2006) 1 W.L.R. 1535. 306 Reference to case citations omitted. 307 See above under the heading United States “Miranda Rules”---Miranda v Arizona (1966). 308 Roshan Beevi v Joint Secretary to Government of TN, 1984 Cr LJ 134, para 29 (per Ratnavel Pandian J, as His Lordship then was). 309 In Alderson v Booth, (1969) 2 QB 216, Lord Parker CJ, said: “there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying ‘I arrest you’ without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear... that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion.” His Lordship added: “it is advisable that police officers should use some very clear words to bring home to a person that he is under compulsion.... the simplest thing is for a police officer to say ‘I arrest you.’” See also, Adley v Crown Prosecution Service, (2013) EWHC 1968 (Admin). 310 8 March, 2006, Allahabad High Court. Also Lay Maung v Emperor, AIR 1924 Rang. 173: “the correct interpretation of the term ‘police custody’ would be that as soon as an accused or suspected person comes into the hands of a police officer, is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in custody within the meaning of Sections 26 and 27 of the Evidence Act.” Paramhansa v Orissa, AIR 1964 Ori. 144; “‘police custody’ for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance.”; Gurdial Singh v Emperor, AIR 1932 Lah. 609; Re Edukondalu, AIR 1957 AP 729; Niranjan Singh v Prabhakar Rajaram Kharote, 1980 AIR 785. Mukesh v State (Delhi), 4 May, 2010, High Court of Delhi. 311 Phorpo v Emperor, 26 S.L.R. 302. 312 Emperor v Jagia, 17 Pat. 569. 313 Ram Babu v Emperor, AIR 1938 Pat. 60. 314 Maharani v Emperor, AIR 1948 All. 7. 315 King Emperor v Pancham, (1933) 8 Luck 410 316 15 May, 2017, High Court of Madras.

Page 10 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY 317 State, represented by the Deputy Superintendent of Police, Namakkal, TN v Kamaraj, Referred Case in Criminal Appeal Nos. 402 and 465 of 2017, para 46. 318 John Henry Wigmore, Evidence in Trials at Common Law, vol 8, (1961) McNaughton Revision, para 2285. 319 State, represented by the Deputy Superintendent of Police, Namakkal, TN v Kamaraj, Referred Case in Criminal Appeal Nos. 402 and 465 of 2017, para 47. 320 See, Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al, Eds, vol 1, New Delhi, 1993, pp 455 ff. 321 For instance section 162 (2) and section 163 (1). 322 In Mohammed Ajmal Mohammad Amir Kasab @ AbuMujahid v Maharashtra, 2012 STPL (Web) 464 SC, para 428, the Supreme Court observed: “The protection of the privilege of the accused against self-incrimination is thus cast as a mandatory duty upon the magistrate, a judicial authority, under sub-sections (2), (3) and (4) of Section 164.” 323 69th Report, p 206, para 11.15. 324 185th Report, p 141. This change was proposed as the Commission has earlier proposed addition of section 164A in its 154th Report on CrPC 325 Sheo Raj v State, AIR 1964 All 290 : 1964 Cr LJ 1, para 3. 326 Sarkar, vol 1, pp 445 and 458.Emphasis in the original. 327 Kartar Singh v Punjab, 1994 SCC (3) 569 : JT 1994 (2) 423, para 388. However, Mohammed Ajmal Mohammad Amir Kasab at AbuMujahid v Maharashtra, 2012 STPL (Web) 464 SC, it was held: “If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed...”. 328 Mahesh v State, 2010 Cr LJ 203 (Madras HC); Tandra Devi v AP, 2001 Cr LJ 4048 (AP). 329 26 October, 2017, High Court of Gauhati.. 330 Assam v Anupam Das, 2008 Cr LJ 1276 : 2007 (3) Gau LT 697, para 26. 331 Ibid, para 27. 332 Ibid, para 28. 333 October, 2017, High Court of Gauhati. 334 Kartik Chakraborty v Assam, paras 23, 24 and 25. 335 Ibid, paras 25 and 26. 336 Ibid, para 27. 337 Ibid, para 28. Anupam Das was also followed by Gauhati High Court in Ratan Singh v Assam, 2012 (6) GLJ (NOC) 123, where it was held that in view of section 3, CrPC, 1973, a reference to a Magistrate unless the context otherwise requires, is to be construed as a reference to a Judicial Magistrate. It was also held that a confession made in the presence of Extra-Assistant Commissioner could not be treated as a confession made in the immediate presence of a Magistrate 338 Para 34. 339 Section 460, CrPC, 1973 deals with “Irregularities which do not vitiate proceedings” and sates that where any Magistrate not empowered by law to do any of the things specified in the section “erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” Recording of a confession is not one of the irregularities mentioned in the section which is ignored. See the discussion under section 29 on the irregularity of failure to administer the warnings by the Magistrate under section 463, CrPC, 1973. See Chapter 35, CrPC, 1973 on “Irregular Proceedings”. 340 Haryana v Parmanand, para 11, 2013, P&H,1995 Cr LJ 396. 341 Phundi v MP, 1993 Cr LJ 1881, para 2. 342 The Empress v Ramanjiyya, para 5, (1878–1810) ILR 2 Mad. 343 Re Lakshmanan, para 15, (1971) I Mad LJ 178. 344 Re Lakshmanan, (1971) I Mad LJ 178. 345 21 November, 2013, High Court of Madras, para 40, ) 346 Lakshmanan, (1971) 1 Mad LJ 178, para 8 and 13. 347 Lakshmanan, (1971) 1 Mad LJ 178, paras 13 and 9. 348 Sidharth etc v Bihar, JT 2005 (12) SC 310; Piara Singh v Punjab, (1977) 4 SCC 452 : 1978 SCR (1) 596. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated; Rajasthan v Raja Ram,

Page 11 of 11 6.12 SECTION 26: CONFESSIONS MADE IN POLICE CUSTODY (2003) 8 SCC 180 held: “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court.” 349 6 April, 2009, High Court of Madras.. 350 In Anupam Das the High Court aptly pointed out: “Obviously, the provision is made in order to prevent the police from extracting confession from the accused while he is under custody and ingeniously circumventing the prohibition of law contained under Section 25 by making it appear that the confession was not in fact made to a police officer but somebody else.” Assam v Anupam Das, Guwahati, para 27, 2007, 2008 Cr LJ 1276 : 2007 (3) Gau LT 697. 351 Andhra Pradesh The Criminal Rules of Practice and Circular Orders, 1990 provide in Rule 31 that “all requisitions for recording of confession of the accused...shall be made to such Magistrate as is nominated by the Sessions Judge for particular police station” and “shall be recorded in open court and during Court hours except for reasons to be recorded in writing. No police Officer should be allowed to be present in the Court Hall or in visible distance from the witnesses or the accused, while the statement of confession is being recorded.” 352 22 March, 2013, High Court of Madras. 353 Velu v State, (2009) 2 Mad LJ (Cr) 833, para 22.

End of Document

6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED Section 27 says: 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.

6.13.1 Doctrine of Confirmation Section 27 incorporates the principle that a confession which is barred by the earlier sections on the apprehension that it was not voluntary, may still be not inadmissible if its veracity is confirmed by the subsequent discovery of any fact. As the Indian Law Commission pointed out, “the section is based on what is usually called the doctrine of confirmation by subsequent facts.”354 The Supreme Court held that “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.”355 In UP v Deoman Upadhyay, AIR 1960 SC 1125, the Supreme Court observed: “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.”356 The Apex Court held in Mohan Lal v Rajasthan, AIR 2015 SC 2098, para 30, that the words employed in section 27 do not restrict that the accused must be arrested in connection with the same offence. In fact, the emphasis is on receipt of information from a person accused of any offence. Therefore, when the accusedappellant was already in custody in connection with other case and he led to the discovery of the contraband articles, the plea that it was not done in connection with that case in which he was arrested, was held to be “absolutely unsustainable.”357 In Suresh v Haryana, 2014 (8) Supreme 289, it was held that in view of the fact that recovery of dead bodies from covered gutters and personal belongings of the deceased from the places disclosed by the accused stood fully established, it cast a duty on the accused as to how they alone had the information leading to recoveries, and failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused. In Pankaj v Rajasthan,358 it was held that “the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under section 8 of the Evidence Act, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.” Thus, even if the confession is not relevant under section 27 because, for instance, the police already knew that weapon was hidden in that place, it is still relevant under section 8 to prove the conduct of the accused consisting of his taking the police to the place.

Page 2 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED 6.13.2 Section 27 Makes Discovery Admissible, Not Reliable It must, however, be emphasised that though the doctrine of confirmation was the rationale of treating confessional statement as admissible if it led to the discovery of certain facts as an exception to the exclusionary rule under the earlier sections, the discovery per se cannot be treated as a guarantee of the veracity of the statement. Section 27 merely lifts the bar and the statement otherwise barred becomes admissible. Under the CrPC, 1973, the court is required to ask the accused whether he pleads guilty or not and, if he confesses to the guilt, the court is given the discretion not to convict him even on the basis of the judicial confession and to order the trial to proceed.359 Under section 27 the discovery part of the statement is extra-judicial and need not even be confessional. In Mani v TN, (2008) 1 SCR 228, para 21, the Supreme Court observed: The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....

Likewise, in Mustkeem alias Sirajudeen v Rajasthan, (2011) 11 SCC 724, para 25, the Apex Court stated: With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.

In Rameshwar Dayal v Uttarakhand,360 (2015), Uttaranchal High Court observed: 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 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 distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety.

It has been held that the expression ‘custody’ which appears in section 27 [and also in section 26, to which it is an exception] did not mean formal custody, and includes any kind of surveillance, restriction or restraint by the police.361 In Vijay Thakur v HP (2014), the Court held that discovery of facts in pursuance of confessional statements to the police is only circumstantial evidence and cannot be relied on in the absence of corroboration.362 If, indeed, the reason for the exclusionary rule is that the confession made to the police or in police custody is presumed to have been obtained by oppression, it is not inconceivable that “discovery” is totally stage-managed. The discovery under section 27 makes the confessional statement to the police only admissible and not ipso facto reliable. In other words, section 27 is only “an enabling provision” that permits the police to prove that part of the statement which led to the discovery of certain material, whether that part amounts to confession or not.363 As the Apex Court said, “Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”364 Section 76 of PACE Act, 1984 of United Kingdom also contains provisions excepting facts discovered as a result of confession obtained by oppression etc. Section 76 states, inter alia, (4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence— (a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

Page 3 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf. (6) Subsection (5) above applies— (a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and (b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession. Thus, under section 76 above, a confession excluded partly or wholly because of oppression etc, (1) may still not affect the admissibility in evidence (a) of fact discovered as a result of confession, or (b) so much of the confession that shows the style of speech, writing and expression of the accused; (2) Provided evidence is given by the accused or somebody on his behalf as to how it was discovered and (3) the discovery exception applies to the entire confession which is wholly excluded or to the particular portion that is partly excluded. The requirement of (2) above that the accused should give evidence of how the fact was discovered might mean that not only should the confession of the accused result in discovery but also that, in a given situation, he should also accompany and lead the police to the discovered fact.365 6.13.3 “Provided that”—Section 27 is Exception to What Section? The section, in an unusual manner366, starts with “provided that” 367implying that the section is an exception to one or more of the preceding sections. Then, the vexed question is: to which of the preceding sections is section 27 an exception? Different opinions have been expressed in this regard: (1) Exception to Section 26 only: (a) Section 27 comes right on the heels of section 26. (b) Section 27 lifts the bar only in case of confession made “in the custody of a police officer” and the only preceding section that bars a confession made in the custody of a police officer is section 26.368 (c) Section 27 is stated to be based on section 150 of CrPC of 1869 which spoke of “information received from a person accused of any offence, or in the custody of a police officer.” It is submitted that section 150 as it originally stood in the CrPC of 1861 provided: “When any fact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt, or not, as relates distinctly to the fact discovered by it, may be received in evidence.” It appears that this section was modified in 1869 by the addition of the words “or in the custody of a police officer” after the words “a person accused of any offence.”369 Though Sir James Fitzjames Stephen said: “I may observe upon the provisions relating to them that sections 25, 26 and 27 were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act XXV of 1861”,370 Section 27 actually omitted the word “or” from section 150 of 1969 and confined itself to confessions made in police custody only.371 In the result, section 27 neither followed the 1861 version nor the amendment of 1869 of section 150 of CrPC, 1973. (d) In Re Pakala Narayana Swami, AIR 1939 PC 49 case the Privy Council observed that “section 27 seems to be intended to be a proviso to section 26”. In Pulukuri Kottaya case, the Privy Council said that section 27 “provides an exception to the prohibition imposed by the preceding section”, ie, section 26. This view is supported by the decision in Devi Ram v State, AIR 1962 P&H 70, p 72, para 6 and by the dissenting opinion of Justice Mehmood in Queen Empress v Babulal, (1899) ILR 21 All 106. (e) In Udai Bhan v UP, AIR 1962 SC 1116, p 1118, paras 7 & 11, the Supreme Court expressed the opinion that section 27 was an exception to section 26 only. (f)

In UP v Deoman, AIR 1960 SC 1125, it was held that “s. 27 is in the form of a proviso to s. 26.”372

Page 4 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (2) Exception to section 25 and section 26 only: (a) Section 27 is an exception not only to section 26 but also to section 25 as the legislative history shows that section 27 was based on section 150 of CrPC of 1861 and 1869 which covered information received both from “a person accused of any offence, or in the custody of a police officer.” The omission of the word “or” in section 27 was accidental.373 So, section 27 covers confessions made to the police as well as in police custody. (b) This opinion was supported by the majority opinion in Queen Empress v Babu Lai, ILR 6 All 509. (c) The Supreme Court held that section 27 is an exception to both sections 25 and 26.374 (3) Exception to sections 24, 25 and 26: (a) As the rationale of section 27 is that the discovery of facts subsequent to the confession made by the accused confirms its veracity, the section should be applied as an exception to all the three preceding sections, namely, sections 24, 25 and 26.375 (b) In UP v Deoman, AIR 1960 SC 1125, p 1145, Justice Hidayatullah (Separate Concurring Opinion) opined that “Section 27 has rightly been held as an exception to Sections 24–26 and not only section 26.” (c) In Aghnoo Nagesia v Bihar, AIR 1966 SC 119, the Supreme Court held that section 27 controls sections 24, 25 and 26. 6.13.4 “Any fact is deposed to as discovered” Section 27 requires that the information should relate to ‘any fact deposed to be discovered’. “The investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received.”376 The Apex Court has held that it is not necessary that the statement should be reduced to writing; it is enough if it is credible.377 The word “discover” (dis-cover) conveys the meaning of coming to know of something that is not already known. In other words, if the police have already come to know from other sources where certain objects were hidden, it cannot be said they were discovered in pursuance of the information given by the accused.378 If an object has been recovered by the police in pursuance to the information given by one accused, a similar statement by another accused stating the same facts cannot be used against the latter as by that time the police have already discovered the object.379 The same object cannot be discovered twice. It has been held that “a joint statement by more than one accused was not contemplated by section 27...”380 It has been held that the dead body comes within the meaning of “object” recovered under section 27.381 Mere statements of the accused that he used a knife or other weapon do not lead to discovery unless he revealed also the place where it has been kept. It has been held that for an object to be discovered under section 27 there should be some concealment of the object.382 Though an object cannot be said to have been discovered from an open or public place,383 the Apex Court has held: It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances.384

In State (NCT of Delhi) v Navjot Sandhu at Afsan Guru, (2005) 11 SCC 600, the Supreme Court observed (per P Venkatarama Reddy J): the pointing out of a material object by the accused himself is not necessary in order to attribute the discovery to him. A person who makes a disclosure may himself lead the investigating officer to the place where the object is concealed. That is one clear instance of discovery of fact. But the scope of Section 27 is wider. Even if the accused does not point out the place where the material object is kept, the police, on the basis of information furnished by him, may launch an investigation which confirms the information given by accused. Even in such a case, the information furnished by the accused becomes admissible against him as per Section 27 provided the correctness of information is confirmed by a subsequent step in investigation. At the same time, facts discovered as a result of investigation should be such as are directly relatable to the

Page 5 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED information.

In K Ramaraj v State, (2013)385 the Madras High Court (per P N Prakash J) held that: Section 27 of the Indian Evidence Act states that the information supplied by the accused which leads to the discovery of a hitherto unknown fact, is relevant... To say that the accused should accompany the officers to point out the place where he has hidden the material object, would be doing violence to Section 27 of the Indian Evidence Act. For example, if during interrogation of an accused in Chennai, he discloses that he has kept a bomb at a particular spot in Madurai railway station, it will be ludicrous to say that the police should have taken the accused along with them from Chennai to Madurai for effecting the recovery of the bomb.386

Though the word “fact” is defined in section 3 as including psychological as well as physical facts, section 27 uses that word in a restrictive sense so as to mean physical or material objects.387 Thus, if the accused reveals to the police that he killed X by stabbing him, that may be a ‘fact’ not already known to the police but mere knowledge is not covered by “fact’ under section 27. If the accused also discloses to the police that he hid the knife in a field and takes them there, the recovery of the knife by the police as the weapon used in the crime is the “discovery of fact” within the meaning of section 27. Thus, “fact” means something more than a mere material object. As Sir John Beaumont of the Privy Council observed in Pulukuri Kottaya v Emperor, AIR 1947 PC 67, at p 70388: It is fallacious to treat the “fact discovered” within the section as equivalent to the fact 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 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 discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.389

In Mohd. Inayatullah v Maharashtra, (1976) 1 SCC 828, paras 12 and 13, it was held: The phrase ‘distinctly relates to the fact thereby discovered’ is the linchpin of the provision. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v Crown, I.L.R. 10 Lah. 283 F.B; Rex v Ganee, I.L.R. 56 Bom. 172). Now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this.

Thus, the “fact” discovered includes not only the object but also “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.”390 There is no legal requirement which mandates taking signature of the accused on the recovery panchnama when, admittedly, the signature of accused was taken on the statement recorded under section 27.391 So much of such information,...as relates distinctly to the fact thereby discovered whether it amounts to a confession or not

The above clause clarifies that the entire confessional statement of the accused will not fall within the ring-fence of the exception but only that distinctive part of the statement that led to the discovery of the fact is admissible. The following illustration will pinpoint the problem: Suppose the accused states: “I killed X by stabbing him with a knife which I have hidden in the thatched roof of my hut.” The above statement taken in its entirety amounts to a confession but if the statement is further analysed and dissected, it consists of two parts: 1. “I killed X by stabbing him with a knife 2. which I have hidden in the thatched roof of my hut.”

Page 6 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED A look at the two parts of the statement would show that first part is the confessional part and the second part is the discovery part which led to the recovery of the knife. The judicial opinion widely differed on the interpretation of this clause and on what to keep out of the ring-fence. Some High Courts have held that a restrictive view must be taken and only the discovery part must be admitted and not the confessional part.392 On the other hand, in Re Athappa Goundan, ILR 1937 Mad. 695 (FB), Madras High Court held that both the parts of the statement must be treated as relevant under section 27. The reason was that if only the second and discovery part is admitted and not the first and confessional part, then, there is no way by which the link between the knife and the crime can be established. In this view of the matter, the relevancy of the discovery part depends on the confessional part and, hence, both must be admitted.393 The issue was finally settled by the Privy Council in Pulukuri Kottaya v Emperor, AIR 1947 PC 67394 in which several persons were charged with rioting and murder and some objects like knives and spears were recovered by the police pursuant to the confessions made by some accused. For instance one accused said: “I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place.” The Madras High Court following the earlier precedent of the Full Bench decision in Athappa Goundan, held that the entire statement was admissible under section 27 and convicted some of the accused on that basis. In Pulukuri Kottaya the Privy Council overturned the convictions affirmed by the Madras High Court, and, holding that Athappa Goundan “was wrongly decided” overruled it. In its landmark judgment, the Privy Council opined that section 27 “is not artistically worded”, and held that confessional part could not be admitted merely because some object has been recovered in consequence to the information given by the accused. Sir Beaumont, speaking for the Court observed: 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....But if all that was 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.395

Consequently, the Privy Council excised the confessional part and admitted only the discovery part.396 The confessional part cannot be said to be as “distinctly” related to the discovered fact as much as the discovery part. The word “distinctly” means ‘directly’, ‘indubitably’, ‘strictly’ and ‘unmistakably’.397 Then the question raised by Athappa Goundan would still remain to be answered and that question is: How is the knife going to be connected to the crime if the statement of the accused that he used it in its commission is cut and discarded?398 The answer is that it is for the police to establish the link by gathering evidence, for instance, of the finger impressions on the knife and match them with those of the accused or of a comparison of the blood on the knife with that of the victim and so on. In the case of Mustkeem at Sirajudeen v Rajasthan (2011), (2011) 7 SCLR 67 the Supreme Court observed: With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible... under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.399

In the case of UP v Sunil,400 (2017), the Supreme Court said that where the prosecution fails to establish the link between the accused and the occurrence, “it is difficult for the Court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and other articles have been made.” 6.13.5 “Information” Section 27 speaks of “information received from a person accused of any offence” and the term “information” is wide enough to include oral or written statement and also signs and gestures.401 As has been discussed above, the discovery must have led to the discovery of some “fact” and fact means not mere knowledge but an object. “In other words, the fact must be the consequence, and the information the cause of its discovery. The information and the fact should be connected with each other as cause and effect.”402 While section 162 of CrPC, 1973 bars “statement made by any person to a police officer in the course of an investigation”, sections 24 to 26 bar proof of statement by way of confession. Section 27 which is said to be a proviso to all those sections uses the term “information” but it is obvious that the information must have been contained in the statements covered by the sections excepted by section 27. In Ramkishan Mithanlal Sharma v Bombay, AIR 1955 SC 104 : 1955 AIR 104 : 1955 SCR (1) 903, the Supreme Court held:

Page 7 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED

This statement may be express or implied. The identifier may point out by his finger or -touch the property or the person. identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject-matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person.

In that case the IO deposed that certain information was supplied to him by the accused 1 in consequence of which he took certain steps. He did not seek to prove that information or any part thereof in the evidence which he gave before the Court. Even when he said that the tin box was dug out from the mud floor of a house at the instance of the accused he did not seek to prove what that information was. Hence, the Supreme Court (per Bhagwati J) held that “the operation of section 27 was therefore not attracted and prima facie there was nothing to prevent that evidence being admitted against the accused.” In this context an important issue that was raised was as to whether the term “discovery of fact” includes not only the recovery of an object but also disclosure, for instance, by the accused of the identity of another accused or where he is hiding etc. In an illuminating analysis in Surendra Dinda v Emperor, AIR 1949 Cal. 514, the Court aptly pointed out: “Identification is essentially a mental act...In any case, the actual fact of identification is something known only to the identifier and can only be known to others by a statement having the effect of communicating the fact of identification.” If a witness has seen somebody unknown to him committing an offence, the witness has the mental cognition of the identity of the offender, and he can recognise him when he sees him again. The cognition and recognition will both remain mental acts of the witness unless they are communicated to third persons by way of identification through spoken or written words or nods, signs and gestures. This is so in the case of ‘information’ under section 27 and also of depositions by witnesses in courts and of identification under section 9 and dying declarations under section 32. But the crucial issue under section 27 is not just the “information received from a person accused of any offence, in the custody of a police officer” but that the information “relates distinctly to the fact thereby discovered”. The question that has been bothering the courts right from the beginning for almost a century was whether “discovery of fact” includes any statement made by the accused that conveys any “information” about any “fact” that is not already known to the police whether the “fact” is mental or physical fact as defined under section 3. As early as 1929, in a classic judgment in Sukhan v The Crown, (1929) ILR X Lah. 283, Shadi Lal CJ (as he then was),403 speaking for seven-member Full Bench on a reference on section 27, observed: The expression ‘fact’ as defined by section 3 of the Statute includes, not only the physical fact which can be perceived by the senses, but also the psychological fact or mental condition of which any person is conscious. It is in the former sense that the word is used in section 27. The phrase ‘fact’ discovered used by the Legislature refers to a material, and, not to a mental, fact.

The Privy Council has in Kottaya v Emperor expressed its agreement with the above judgment in Sukhan and Kottaya was followed by Supreme Court in Ramkishan Mithanlal Sharma v The State of Bombay, AIR 1955 SC 104 : 1955 SCR (1) 903.404 However, an important aspect of the issue is that the courts have also consistently held that while “fact” in section 27 refers to a “material” or physical fact, “it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the fact 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.”405 As the Privy Council pointed out in Kottaya, “knives were discovered many years ago.” In other words, while the term “fact” in section 27 has a narrower meaning than under section 3 and is confined only to ‘physical’ fact, the fact discovered includes not only the material object but also mental cognisance of its hiding and location by the accused etc. While bare knowledge per se is not admissible under section 27, where a material object is admitted under that section it is not only the object but the knowledge about that object is also admissible. Knowledge surrounds and follows the object and they are not separable. This was made crystal clear by Sarkaria J, in Mohd. Inayatullah v Maharashtra, 1976 AIR 483 : 1976 1 SCC 828 : 1976 SCR (1) 715. Now it is fairly settled that the expression ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this.406

Page 8 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED In a series of cases the Courts have repelled the contention that “the fact discovered” in section 27 includes disclosure of any ‘information’ by the accused that is not already known to the police like, for instance, that X committed the crime or that he was hiding in a particular place or that he is an accomplice or that the unidentified man was X and soon. The decisions407 where the lower courts have upheld such contentions have been over-ruled in Kottaya.408 Consequently, it was held: “A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the- information which disclosed the identity of the witness will not be admissible.”409 However, the Supreme Court in an obvious departure from a long chain of authoritative decisions has in Mehboob Ali v Rajasthan, 2015 SCC OnLine SC 1043 interpreted the decisions in Kottaya, Mohd. Inayatullah, Udai Bhan, Damu etc as permitting the admissibility of any already unknown information relating not only to the discovery of material objects but also recognition and identification of persons etc unrelated to the objects. The Court held: It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the Police. The statement of both accused has led to discovery of fact and arrest of co-accused not known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes.

In Mehboob Ali, the Apex Court relied also on two pre-Kottaya high court decisions:410 •

Ismail v Emperor, AIR 1946 Sind 43, where it was held that the statement by the accused made to the Police as to the whereabouts of the co-accused was held to be admissible under section 27 as evidence against the accused.

•

Subedar v King-Emperor, AIR 1924 All. 207, where it was held that a statement made by the accused implicating himself and others could be used as information furnished under section 27 of Evidence Act, 1872.

It is submitted, with respect, that the interpretation of section 27 by the Supreme Court in Mehboob Ali is open to serious objections: •

The judgment is per incuriam as it is contrary to the applicable statutory provisions as authoritatively interpreted by binding precedents of courts at the highest level.

•

Section 162, Cr PC, 1973 and sections 24, 25, and 26, Indian Evidence Act, 1872 were enacted to bar exactly the kind of statements that were held to be admissible by the Court.

•

The above four sections were based on the rationale that confessions and other statements made to the police are untrustworthy and unreliable.411

•

Section 27 as a proviso is based on the Doctrine of Confirmation by the discovery of material objects and not by mere statements disclosing information, unrelated to any material objects, not already known to the police.

•

If any information is given by the accused which will be useful to the police in investigation, it will be naturally something not already known to the police, and if any new information related to criminal investigation is admissible under section 27 the whole statutory framework of criminal jurisprudence for protecting the rights of the accused contained in the above sections will become null and void.

•

Almost a century of consistent judicial decisional jurisprudence will be rendered nugatory.412

•

If it is thought that the time is ripe for ushering in a paradigm shift from distrust to trust of the methodology of police investigation in India, it should be done through carefully deliberated and designed Parliamentary effort and not by judicial restructuring.

6.13.5.1 Can Information Received for One Offence Be Used for Another Offence? The above question may be considered in different contexts; Admissibility of discovery under section 27 vis a vis different offence:

Page 9 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED In Rajasthan v Bhup Ram,413 under section 27 information was elicited by the police from the accused during investigation in connection with a particular offence and weapon of offence was recovered in consequence thereto. That information became relevant in a subsequent case, but the accused contended that the said information is not admissible in evidence in the subsequent case. The high court held that the evidence relating to recovery of pistol was outside the scope of section 27 of the Evidence Act, 1872 inasmuch as the recovery was effected during investigation of another case. The Supreme Court reversed that decision and held that “that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime.” Whether confession recorded for an offence under section 15 of TADA, 1987 be used for different offence In Gujarat v Mohammed Atik, (1998) 4 SCC 351, the Learned Judge of the Designated Court, formulated the question whether “the prosecution be permitted to introduce and prove the confessional statement of an accused alleged to have been made during the investigation of another offence committed on a different date, during the trial of that accused in another crime.” The Judge answered the question in the negative by the trial judge on the premise that unless the confession was recorded during the investigation of the very offence under trial it cannot be used in evidence of that case. It is noteworthy that section 15 is a part of TADA, 1987 which was enacted to deal with terrorism and section 15 (1) expressly overrides the provisions of Indian Evidence Act, 1872 and CrPC, 1973, section 15 makes a departure from section 25 of Indian Evidence Act, 1872 by authorising senior police offices to record the confession by the accused. Consequently, the Supreme Court observed: The requirements stipulated in Section 15 (1) of the TADAA for admissibility of a confession made to a police officer are (1) The confession should have made to a police officer not lower in rank than a Superintendent of Police (2) it should have been recorded by said police officer (3) the trial should be against the maker of confession (4) such trial must be for an offence under TADAA or the Rules thereunder. If the above requirements are satisfied the confession becomes admissible in evidence and it is immaterial whether the confession was recorded in one particular case or in a different case.

The Court proceeded to hold: When there is no statutory inhibition for using such confession on the premise that it was not recorded during the investigation of the particular offence which is under trial there is no need or reason for the Court to introduce a further fetter against the admissibility of the confessional statement. We have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADAA, would not become unusable merely because the case us different or the crime is different.

Can Confession etc Recorded under Sections 161, 162 and 164, CrPC, 1973 Be Used for Section 10, Indian Evidence Act, 1872? See the discussion under the above heading in Chapter IV, under section 10. 6.13.6 “Whether it amounts to a confession or not” As discussed above, in Pulukuri Kottaya it was held that where a statement of the accused in police custody consists of the confessional part and the discovery part, only the discovery part is admissible under section 27. After the confessional part is discarded, the discovery part, by itself, might not contain any confessional elements. A statement to the effect “I had hidden the knife in the field” might be an admission of a gravely incriminating fact, but by Pakala Narayana Swamy standard it is not a confession.414 Hence, section 27 says that that part of the information which has led to the discovery would be relevant “whether it amounts to a confession or not”. Thus, in Ram Kishan Mithanlal Sarma v Bombay, AIR 1955 SC 104, the Supreme Court pointed out:

Page 10 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED

The expression ‘whether it amounts to a confession or not’ has been used in order to emphasize the position that even though it may amount to a confession then that much information as relates distinctly to the fact thereby discovered can be proved against the accused.

Then, the question that arises is: what does “it” refer to in the phrase “whether it amounts to a confession or not” in section 27? Does “it” refer to the ‘information’ or to the entire ‘statement’? It is submitted that the word “it” in the above phrase does not refer to the entire statement but only to that part of the information that led to discovery.415 If the entire statement does not amount to a confession, (a) the statement will not be hit by sections 24, 25 and 26 as all the three sections bar confessions only and not mere admissions even if they are inculpatory, and (b) section 27 would not have been an exception to sections 24, 25 and 26. The information/discovery part may be confessional or non-inculpatory.416 In other words, the discovery part must form part of a statement that amounts to a confession to be covered by section 27,417 because if the discovery part does not form part of a confessional statement that part will be admissible even otherwise and will not be hit by sections 24, 25 and 26. In HP v Jeet Singh, (1974) 4 SCC 370, the Supreme Court observed: The fact discovered by the police with the help of (a) the disclosure statements, and (b) the recovery of incriminating articles on the strength of such statements is that it was the accused who concealed these articles at the hidden places. It is immaterial that such statement of the accused is inculpatory because Section 27 renders even such inculpatory statements given to a police officer admissible in evidence by employing the words ‘whether it amounts to a confession or not’.

In Deoman Upadhyay, the Supreme Court made the necessary distinction between “statement” and “information” and observed: The ban imposed by s. 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 discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.

In Aghnoo Nagesia v Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 : (1966) 1 SCR 134, the Supreme Court stated: A little reflection will show that the expression “confession” in ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession.

6.13.7 Conflict between Section 27, Indian Evidence Act, 1872 and Section 162, CrPC, 1973—Resolved As was discussed above, section 27 is an exception to sections 24, 25 and 26 and permits proof of a confession if it leads to the discovery of fact even if the confession was made to a police officer or in police custody. On the other hand, section 162 CrPC, 1973 bars “any use” of the confession made to police during the investigation of a case. One of the uses is the use of the confession by the accused and in his own favour and this has been discussed already under section 25. The other use of the confession is by the prosecution where it leads to the discovery of fact under section 27 of Indian Evidence Act, 1872. In Jaglva Dhanuk v King-Emperor, (1925) ILR 5 Pat. 63 (F.B.), Mullick J, stated that, if section 162 shuts out statements made by accused persons to the Police, section 27 of the Evidence Act, 1872 must be considered to have been implicitly repealed as CrPC of 1898 was later to Indian Evidence Act of 1872. Similarly, in Rannufi v The Crown, (1926) ILR 7 Lah. 84, the Court opined that, if section 162 applies to accused persons, section 27 of the Evidence Act, 1872 would be virtually repealed.418 But, in Pakala Narayana Swami v Emperor, Lord Atkin preferred to leave the question open and observed: It is said that to give Section 162 of the Code the construction contended for would be to repeal Section 27 of the Indian Evidence Act, for a statement giving rise to a discovery could not then be proved. It is obvious that the two sections can in some circumstances stand together. Section 162 is confined to statements made to a police-officer in course of an

Page 11 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED investigation. Section 25 covers a confession made to a police-officer before any investigation has begun or otherwise not in the course of an investigation. Section 27 seems to be intended to be a proviso to Section 26 which includes any statement made by a person whilst in custody of the police and appears to apply to such statements to whomsoever made e.g., to a fellow prisoner, a doctor or a visitor. Such statements are not covered by Section 162. Whether to give to Section 162 the plain meaning of the words is to leave the statement still inadmissible even though a discovery of fact is made such as is contemplated by Section 27 it does not seem necessary to decide.

Lord Atkin further observed: The words of Section 162 are plainly wide enough to exclude any confession made to a police officer in the course of investigation whether discovery is made or not. They may therefore pro tanto repeal the provisions of the section [S. 27] which would otherwise apply. If they do not, presumably, it would be on the ground that Section 27 of the Evidence Act is a special law within the meaning of Section 1 (2) of the Code of Criminal Procedure, and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on this topic.

In the light of the above, Stodart J said in Re Subbiah Tevar v Unknown, (1939) 2 Mad LJ 455, that as in Pakala Narayana Swami the Privy Council left the issue undecided, “we are not therefore debarred by this decision from following the rule laid down in previous decisions of this Court.” Those decisions included: Thimmappa v Thimmappa, (1928) ILR 51 Mad. 967 : 55 Mad LJ 351 (FB), where Ramesam J, speaking for a Full Bench of Madras High Court, observed that while His Lordship “accepted the view that Section 162, Criminal Procedure Code, applies to statements made by accused persons”, the general rule that statements made by accused persons to the Police in the course of an investigation cannot be proved did not affect the special exception in section 27 of Indian Evidence Act, 1872. In Re Syamo Maha Patro, (1932) 62 Mad LJ 742 : ILR 55 Mad. 903 (FB), para 9, Reilly J held that the application of the principle that general provisions do not derogate from special provisions would save section 27 as it is a special provision that would override section 162 which is a general provision and that “Section 27 is not affected by Section 162 of the Criminal Procedure Code but that Section 162 is affected by Section 27 of the Evidence Act.” The above uncertainty has led to the amendment of section 162. As pointed out in The State v Kali, AIR 1951 HP 28, because “there was a conflict of opinion amongst the various High Courts in regard to the admissibility of a statement made to the police which led to the discovery of the incriminating article”, section 162 was amended in 1941 to “resolve” the issue by providing that “Nothing in this section shall be deemed to apply to any statement failing within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.”419 This amendment removed the ban of section 162 on the ‘use’ by the prosecution of the statement of the accused that led to the discovery of some fact.420 6.13.8 Constitutionality of Section 27 The constitutionality of section 27 became the subject of considerable judicial and academic scrutiny from two aspects: (1) Is section 27 violative of Article 14 as the section makes an arbitrary distinction between confessions made in police custody and those not made in custody and makes the former only admissible and not the latter if they have led to discovery of a fact. (2) Is section 27 violative of Article 20 (3) as a confession made under compulsion also would be relevant under section 27 if it has led to the discovery of some fact? The above two issues require detailed study as they involve serious questions of constitutionality. (1) Is Section 27 Violative of Article 14? Deoman Case Article 14 of the Constitution confers the fundamental right to equality on all persons and prohibits unjustified discrimination between individuals who are similarly placed. Section 27 is an exception to section 26 and treats as admissible that part of the confessional statement made in police custody that has led to the discovery of a fact. In the leading case of UP v Deoman Upadhyay, AIR 1960 SC 1125, Deoman was married to Dulari who, since her infancy, was brought up by her cousin Sukhdei. Sukhdei gifted some of her lands to Dulari and these lands were

Page 12 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED being cultivated by Deoman’s uncle, Mahabir and Deoman. When Deoman and Mahabir tried to enter into negotiations to sell away the lands, Sukhdei expressed her displeasure and resisted the proposed sale. Enraged at that, Deoman slapped her and threatened to smash her face. The next day, Deoman attacked Sukhdei with a gandasa and inflicted lethal wounds and threw away the weapon in a tank. After he was arrested he made a confession stating the entire events and took the police and others to the tank and retrieved the gandasa. On the basis of the confessional statement made by Deoman while in police custody, the Sessions Judge convicted and sentenced him to death. Deoman appealed to the high court and his main contention was that section 27 was unconstitutional as the section made an invidious discrimination between persons in police custody and not in custody and made the confessions made by the former admissible but not the latter. It was argued that there was no rational basis for that distinction and, hence, section 27 was violative of equality before law and equal protection of laws under section 14 of the Constitution. The high court agreed with his contention and declared section 27 as unconstitutional and treated the confessional statement as inadmissible and acquitted the accused as there was no other reliable evidence.421 The State appealed to the Supreme Court against the High court verdict. The Supreme Court reversed the judgment of the High court and held that the distinction made by section 27 between the persons in custody and not in custody had little practical relevance. The court pointed out that the chance of a person making a confessional statement to the police without his being in custody is very remote because when he “approaches a police officer investigating an offence and offers to give information leading to the discovery of fact”, he may “appropriately be deemed to have surrendered himself to police” under section 46 of CrPC, 1973. In other words, the moment the accused not in custody makes such a statement to the police, he will not be allowed to go away, and he will promptly be arrested by the police. Hence, it was also held: The fact that the principle is restricted to persons in custody will not by itself be a ground for holding that there is an attempted hostile discrimination because the rule of admissibility of evidence is not extended to a possible, but an uncommon and abnormal class of cases.422

Justice Koka Subba Rao, who wrote a dissenting opinion, felt that section 27 made an impermissible distinction between the accused in custody and not in custody. After referring to the legislative history of section 27 that it was modelled after section 150 of CrPC of 1869423, His Lordship illustrated the point by giving the following example: A and B stabbed C with knives and hid them in a specified place. The evidence against both of them is circumstantial. One of the pieces of circumstantial evidence is that both of them gave information to the police that each of them stabbed C with a knife and hid it in the said place. They showed to the police the place where they had hidden the knives and brought them out and handed them over to the police; and both the knives were stained with human blood. Excluding this piece of evidence, other pieces of circumstantial evidence do not form a complete chain. If it was excluded, both the accused would be acquitted; if included, both of them would be convicted for murder. But A, when he gave the information was in the custody of police, but B was not so. The result is that on the same evidence A would be convicted for murder but B would be acquitted: one would lose his life or liberty and the other would be set free. This illustration establishes that prima facie the provisions of s. 27 of the Evidence Act accord unequal and uneven treatment to persons under like circumstances.

Hence, Justice Subba Rao opined that the only way out was the amendment of section 27 to undo the hostile discrimination against the accused in custody in contradistinction to the accused not in custody. Appraisal of Deoman Judgment Deoman case was decided by the Supreme Court in 1960 and it was much later in 1966 in Aghnoo Nagesia v Bihar, AIR 1966 SC 119, that the Apex Court finally settled the controversy as to what preceding section 27 was a proviso and held that “Section 27 is in the form of a proviso, and partially lifts the ban imposed by sections 24, 25 and 26.” What is crucial is that both the majority and the dissenting opinions in Deoman proceeded on the basis of the earlier view that “section 27 is in the form of a proviso to section 26”424 and that “the ban which is partial under section 24 and complete under section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody.” On the basis of the Deoman’s view that section 27 is an exception only to section 26, what are the possible scenarios in which an accused person can make a confession and what is its relevancy?

Page 13 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (1) An accused makes a confession to a private person when he is not in custody. The confession is relevant and can be proved against him under section 21 of the Evidence Act, 1872 as an admission of guilt. (2) An accused makes a confession to a person in authority under inducement etc and it is hit by section 24. The only exception is section 28 whereunder the confession might become relevant if the impact of compulsion is removed. (3) An accused makes a confession to a police officer and it is hit by section 25. There is no exception to this section (as at that time section 27 was considered to be an exception only to section 26). (4) An accused makes a confession in police custody and it is hit by section 26. There are two exceptions to this: (a) Confession is recorded by a Magistrate under section 164 of CrPC, 1973, and (2) the confession has led to the discovery of fact under section 27 of Evidence Act, 1872. It is submitted, with respect, that the majority opinion is not free from difficulties: •

The majority held in Deoman that “A person who has committed an offence, but who is not in custody normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence.” It is submitted that it is true that if a person who is not in custody makes a confession to the police officer it can be construed as if he has submitted himself to custody under section 46 of CrPC, 1973425 but as he made the confession to the police officer, it is section 25 that will be attracted and not section 26 and, as per the Court’s view at that time, section 27 is an exception to section 26 and not to section 25.

•

Under section 25 the question is “to whom was the confession made?” and if it is made to a police officer it is hit by section 25 irrespective of whether it was or was not made in police custody. This is particularly so because both the majority and minority opinions held that the bar of section 25 is absolute. The police cannot be permitted to get over the bar by the simple device of getting the accused to make the confession to the police after taking him into custody. Under section 26 the question is “where was the confession made?” and if the confession was made in police custody to a police officer it is section 25, and not section 26, that is attracted and the bar is total, and if it is made to a person other than a police officer, it is hit by section 26 unless it is recorded by a Magistrate or has led to the discovery of a fact under section 27. In fact the majority held in Deoman that “section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody”.426 In Aghnoo Nagesia v Bihar, AIR 1966 SC 119, the Court said: “The partial ban imposed by section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by section 25 on a confession made to a police officer.”

Justice Koka Subba Rao, in his dissent, has given the example, referred to above, of A and B stabbing C and both making confessions to the police that each of them stabbed C but A makes the confession while in custody and B when he was not. His Lordship then proceeded to conclude that “the result is that on the same evidence A would be convicted for murder, but B would be acquitted: one would lose his life or liberty and the other would be set free.” But in this example also both A and B made the confessions to the police, and both the confessions will be barred by section 25, though A made the confession in custody and B when he was not. Consequently, the distinction to be made under section 27 is not between confessions made in custody and not made in custody as argued by the accused in Deoman but between confession made in custody and made to police officer. While the latter is totally inadmissible, the former is admissible to the extent it has led to the discovery of a fact. In that sense there is a classification. It is submitted that a strong ground of attack against section 27 would have been that an accused is under greater threat of compulsion when he is making a confession in police custody (section 26) than when making the confession to the police officer (section 25). In fact in Deoman the Apex Court stated that “It is manifest that the class of persons who needed protection most were those in the custody of the police and persons not in the custody of police did not need the same degree of protection.”427 But, section 27 makes the former confession, or part of it, admissible and leaves the latter totally barred by section 25 if it is made to a police officer. The accused may or may not be under custody when he makes a confession under section 25 and while making confession under section 26 he could be even under arrest. The issues raised in Deoman have drawn attention to important questions of interplay of section 25, 26 and 27, but the basic issue of classification under section 27 is given a quietus by the Supreme Court holding subsequently in Aghnoo Nagesia v Bihar, AIR 1966 SC 119, that section 27 is an exception to sections 24, 25 and 26.

Page 14 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (2) Is section 27 violative of Article 20 (3)? Kathi Kalu Case The other question of constitutionality of section 27 relates to its possible contravention of Article 20 (3) which mandates: No person accused of an offence shall be compelled to be a witness against himself.

A reference has already been made to the Rule against Self-incrimination or Testimonial Compulsion incorporated in Article 20 (3).428 In Bombay v Kathi Kalu Oghad, AIR 1961 SC 808, the Supreme Court429 has held that (a) the rule against testimonial compulsion applies not only to the trial stage but also to the antecedent stage of investigation and (b) the mere fact that the confession was made in police custody does not per se mean that compulsion has been used. Hence, section 27 is constitutional. The judicial opinion that section 27 is an exception not only to sections 25 and 26 but also to section 24 seems to be fraught with certain problems. Firstly, as pointed out by Rankin J, in Durlav v Emperor, AIR 1932 Cal. 297, “but although it is now well held that it [Section 27] is an exception to ss. 24 and 25, there are elements of paradox in that condition. The first consequence is that a part of the statement may be given in evidence although it is under s. 24 induced by threat or promise if something has been discovered in consequence of that part of the statement.” Secondly, the Law Commission of India observed that “we are of the view that the paramount rule of policy embodied in section 24 must override section 27...Section 24 enacts a rule that should have universal application.”430 It is submitted that there is a crucial difference between section 24 on the one hand, and sections 26 and 27 on the other. While the threat or promise is presumed under sections 25 and 26 on policy grounds even if there is absolutely no evidence of it, under section 24 it must appear to the Court, on the basis of evidence adduced, that the threat etc have been held out to the accused; in other words, the accused is compelled to provide evidence against himself by way of confession. This is patently violative of Article 20 (3) of the Constitution which prohibits testimonial compulsion. However, to attract Article 20 (3), it must be proved by the accused, by preponderance of probabilities, that the confession was made under inducement etc and not merely that it “appeared” to the Court that it was so made. Thus, the legal and constitutional position under section 24 cannot be treated on par with that under sections 25 and 26. Kathi Kalu case has shown that even a confession made to a police officer (section 25) or made in police custody (section 26) but saved by section 27 could fall foul of Article 20 (3). The question, inter alia, in that case was whether section 27 was violative of Article 20 (3) and, hence, unconstitutional. As mentioned already, section 25 and 26 bar confessions on policy grounds and not because they are proved to have been obtained by compulsion. But if, in a given case, it is proved that the accused was under compulsion when he made the confession in police custody or to the police officer, such a confession would amount to testimonial compulsion within the meaning of Article 20 (3) and be inadmissible. Hence, where the accused pleads or it appears to the Court from the facts and circumstances of the case that the confession was in fact compelled, the Court has to hold a voir dire to satisfy itself that the accused was not compelled in making the confession. (3) “Compelled” under Article 20 (3) and “Inducement, Threat or Promise” under section 24 In Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 : 1962 SCR (3) 10, the Supreme Court observed: “‘Compulsion’ in the context, must mean what in law is called ‘duress’.... The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted.” The constitutionality of the section 27 was clarified by the Supreme Court in Kathi Kalu case when it observed: If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of Article 20 (3) of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition as aforesaid, unless compulsion has been used in obtaining the confession.431

It is submitted, with respect, that the above two observations of the Apex Court do not cover the entire field of section 24 as that section, like sections 163 (1) and 316, CrPC, 1973,432 refers to “inducement and promise” also in addition to “threat”. As the Court has construed the term “compelled” to mean subjected to ‘duress’, the term will not include the other two elements in section 24, namely, “inducement or promise.” If the term “compelled” in Article 20

Page 15 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (3) has been interpreted as meaning what a person would not do left to himself but for the application of some element of pressure which either coerced him as in the case of duress or tempted him as in the case of inducement, the Constitutional protection for the accused against self-incrimination would have been wider. In fact, sections 163 (1) and 316 of CrPC, 1973 are in terms substantially similar to section 24, Indian Evidence Act, 1872 and these sections appear to treat “inducement or promise” as well as “threat” as elements which will vitiate the voluntariness of the confession. Consequently, it is submitted that where the accused pleads that he has made the confession under inducement or promise within the meaning of section 24 of Indian Evidence Act, 1872 and section 163 of CrPC, 1973, and in a voir dire he proves that to the satisfaction of the Court, still the confession will be saved by the exception in section 27 and not barred by Article 20 (3) as the confession was not compelled under duress. It is relevant to note here that in England, section 76 (2) of Police and Criminal Evidence Act (PACE) of 1984 requires that where the accused “represented” that the confession was obtained by “oppression” of the accused or in consequence of anything that would render it “unreliable”, the Court must hold a voir dire.433 The element of anything that would render the confession “unreliable” under section 76 (2), PACE Act can be “inducement or promise” under section 24 as well as sections 163 and 316, CrPC 1973. The Supreme Court arrived at the interesting conclusion that “an accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more”, “though that fact, in conjunction with other circumstances disclosed in evidence” might be relevant in deciding “whether or not the accused person had been compelled to make the impugned statement.”434 As was discussed already under sections 25 and 26, the confessions made to police officer or made in police custody are per se presumed to be compelled without proof of compulsion, but the above Kathi Kalu observation implies that that presumption of compulsion would be withdrawn because of Doctrine of Confirmation when it is shown that the confession had subsequently led to the discovery of fact, and it would be for the accused to prove that the confession was in fact obtained by compulsion in police custody to bring the case within the ban of Article 20 (3). (4) Searches and ‘Compelled’ Production of Documents by Accused and Article 20 (3) The contours of range and reach of the constitutional protection against testimonial compulsion have come to be drawn by the Supreme Court of India in the right spirit so as to be beneficial to the accused. Firstly, the Court has held that the accused need not be an accused at the time he made the statement, but it is sufficient if he has become an accused person at the time the statement was sought to be proved against him. Secondly, even if the statement did not have the character of being “against himself” at the time it was made it is sufficient it has acquired that character by the time it was sought to be proved against him. Thirdly, to “be a witness” does not mean only to appear as witness but includes any volitional act by which he ‘furnishes’ evidence. Thirdly, ‘testimony’ includes not only oral evidence but also, like under section 119, nods, signs and gestures. Then, two important questions have come up for consideration by Courts in the context of liberal construction of Article 20 (3). First, whether summoning of documents from the accused will amount to testimonial compulsion; and second whether search and seizure of documents in the custody of the accused will fall foul of Article 20 (3). The first question is covered by section 91 of CrPC of 1973 (section 94 of CrPC of 1898). Section 91 provides: 91. Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

In M P Sharma v Satish Chandra, AIR 1954 SC 300 : 1954 SCR 1077, Jagannadh Das J, held:

Page 16 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED

A person can “be a witness” not merely by giving oral evidence but also. by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence”, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.

In Ranchhoddas Khimji Ashere v Tempton Jahangir, AIR 1961 Guj 137 : 1961 Cr LJ 338 : (1961) 2 GLR 415, Bhagwathi J, reiterated the view of Justice Das that giving oral as well documentary evidence is covered by Article 20 (3) and summoning documents in the custody of the accused can be hit by that Article as the accused is required to submit the documents in his custody by his own volitional act. As pointed out above, the second important question was whether mandatory search and seizure of the documents under section 93 of CrPC of 1973 (section 96 of CrPC of 1898) would violate the Constitutional guarantee against self-incrimination. In M P Sharma v Satish Chandra, AIR 1954 SC 300 : 1954 SCR 1077, the argument urged before the Court was that a search to obtain documents for investigation into an offence is a compulsory procuring of incriminating evidence from the accused himself and is, therefore, hit by Article 20 (3) as unconstitutional and illegal. Justice Das repelled that contention and held that “neither the searches nor the seizures are acts of the occupier of the searched premises; they are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense” and are not hit by the provisions of Article 20 (3).435 In Shyamlal Mohanlal v Gujarat, AIR 1965 SC 1251 : 1965 (2) SCR 457, the Court followed the view expressed in Bombay v Kathi Kalu Oghad, 961 AIR 1808 : 1962 SCR (3) 10 that “an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge” and held that section 94 CrPC, 1898 (section 83, CrPC, 1973) “on its true construction, does not apply to an accused person”. (5) Important Issues of “Presumed” Coercion and “Proven” Coercion—under Evidence Act, 1872, CrPC, 1973 and IPC, 1860 Coercion or oppression or compulsion or duress are the elements which the law recognises as the vitiating factors in both criminal law436 and civil law437 in the context of free consent and voluntariness. In fact, the over-arching provision of Article 20 (3) of the Constitution provides that “no person accused of an offence shall be compelled to be a witness against himself.” As was seen above, sections 24, 25 and 26 of the Evidence Act, 1872 expressly bar poof of confessions which are involuntary.438 In some cases, duress is presumed and in others the law requires clear proof and the trial Courts may hold voir dire for the purpose. In fact, the very rationale of admissibility of confessions is that they are made voluntarily and out of compunction and repentance. 1. Presumed compulsion: In the light of the malpractices indulged in by the police, sections 25 and 26, Indian Evidence Act, 1872 bar proof of confession made to a police officer or made in police custody, respectively, and the coercion by the police is presumed. 2. Proven Compulsion: Section 24 makes the confession “irrelevant” if it “appears” to the Court that the confession was made to a person in authority under “inducement, threat or promise”. In fact the accused can plead and prove inducement etc. 3. Statutory Directions: Section 163, CrPC, 1973, provides. No inducement to be offered. (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub- section shall affect the provisions of subsection (4) of section 164. 4. Punishment under IPC, 1860 : Section 330, IPC, 1860 provides: “Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct... shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Section 331, IPC, 1860 deals with causing “grievous hurt” for the same purpose and provides for higher punishment of 10 years of imprisonment of either description and fine. Section 330 contains the following relevant illustrations:

Page 17 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED (a) A, a police-officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section. (b) A, a police-officer, tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence under this section. (c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of revenue due from Z. A is guilty of an offence under this section. 5. It may be noted that while compulsion is presumed under Sections 25 and 26 for the purpose of barring the confession, for the purpose of prosecution and punishment under sections 330 and 331 the offence has to be proved like in any other criminal prosecution relating to hurt and grievous hurt on a complaint with regard to confessions made under sections 24 to 26.

354 Law Commission of India, 69th Report, p 208, para 11.23. See also, Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al., Eds, vol 1, New Delhi, 1993, p 470. In Maharashtra v Damu, (2000) 6 SCC 269, para 35, the Apex Court said: “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 a guarantee that the information supplied by the prisoner is true.” In Sukhan v The Crown, (1929) ILR X Lah. 283, a seven-judge Bench stated that this was the “rationale” of section 27. Also, Pawan Kumar at Monu Mittal v UP, AIR 2015 SC 56. In Suresh Chandra Bahri v Bihar, AIR 1994 SC 2420, the Court held that “the provisions of Section 27 of the Evidence Act are based on the view that if the fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information is true and consequently the said information can safely be allowed to be given in evidence....” 355 Bodh Raj v Jammu & Kashmir, (2002) 8 SCC 45 : AIR 2002 SC 3164 : 2002 Cr LJ 4664; Sikkim v Rakesh Rai, 2012 Cr LJ 2737. 356 In Queen Empress v Babu Lal, (1884), Indian Decisions, 6 Allahabad 510, it was pointed out that section 27 is virtually borrowed from Taylor’s treatise on the Law of Evidence, (1931), vol 1, para 902. 357 Also in Rajasthan v Bhup Ram, 1997 (1) Supreme Today 405, it was held that if the conditions of section 27 are satisfied “that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime.” The conditions stated by the Court are: (1) A fact should have been discovered in consequence of 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. 358 9 September, 2016, Supreme Court of India, para 12. 359 See sections 229, 241, 246 (3) and 252. 360 9 December, 2015, High Court of Uttaranchal.) 361 Dharam Deo Yadav v UP., 2014 (86) ACC 293; Chandra Prakash v Rajasthan, 2014 (4) Supreme 646. 362 Vijay Thakur v HP, Cr. Appeal Nos. 113 and 177 of 2013, decided on 23 June 2015 (Himachal Pradesh High Court). 363 Madiah v State, 1992 Cr LJ (Karnataka), 502, para 7. 364 Anvar P V v P K Basheer, Civil Appeal No. 4226 of 2012, decided on 18 September 2014 (Supreme Court). 365 See the judgment of Madras High Court below in K Ramaraj case under the heading “Any fact is deposed to as discovered”. 366 In Pulukuri Kottaya v King Emperor, AIR 1947 PC 67, it was said that section 27 was not ‘artistically worded’. 367 The only other section in the Evidence Act, 1872 which starts with “provided that” is section 108 and it is an exception to the immediately preceding section 107. 368 The Apex Court has held that it is not necessary that the accused must be under arrest and it is enough if he is in custody. Mohd. Arif at Ashfaq v NCT of Delhi, 2011 STPL (Web) 681 SC, para 68. 369 See, State v Memon Mohamas Hussain Ismail, AIR 1959 Bom 534 : (1959) 61 Bom LR 715 : 1959 Cr LJ 1419. 370 Sir James Fitzjames Stephen, The Indian Evidence Act: With an Introduction of the Principles of Judicial Evidence, London, 1872, Macmillan Co, p 126.

Page 18 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED 371 Justice Koka Subba Rao opined that “the omission appears to be rather by accident than by design.” UP v Deoman, AIR 1962 SC 1116, para 43. 372 Per Shah J, speaking for the Majority. 373 Per Justice Desai of Allahabad High Court in Deoman Upadhyay v UP, AIR 1960 All 1. The Supreme Court overruled the High Court judgment in UP v Deoman Upadhyay, AIR 1960 SC 1125. Justice Koka Subba Rao, in his dissent, opined that “the omission appears to be rather by accident than by design”. Ibid. See also Sarkar, vol1, pp 467–470. 374 Chinnaswami v AP, AIR 1962 SC 1788, p 1793; Ram Kishan v State of Bombay, AIR 1955 SC 104. 375 Queen Empress v Nana, 14 Bomb. 260. See also Sarkar, vol 1, pp 466ff: and Basu’s Law of Evidence, 6th Edn, by P M Bakshi, Ed, New Delhi, 1998, vol 2, pp 270 –1. 376 State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, para 121. 377 Mohd. Arif at Ashfaq v NCT of Delhi, 2011 STPL (Web) 681 SC, para 69. 378 Aher Raj v State, AIR 1956 SC 217; Jaffer Hussain Dastagir v Maharashtra, AIR 1970 SC 1934. 379 Noor Mohammad v State, AIR 1959 Ker. 46. 380 Ramkishan Mithanlal Sharma v Bombay, 1955 AIR 104 : 1955 SCR (1) 903 quoting with approval an unreported judgment of Chagla CJ and Gajendragadkar J delivered on the 11 January 1950 in Rex v Gokulchand Dwarkadas Morarka No. 1. 381 Anuj Kumar Gupta at Sethi Gupta v Bihar, 24 July, 2013, Supreme Court of India. 382 Pulukuri Kottaya v Emperor, AIR 1947 PC 67, at p 70. 383 Makhan Singh v Punjab, AIR 1988 SC 1705; Puran Lal v State, (1997) Cr LJ 454 (Bom). 384 State of HP v Jeet Singh, 15 March 1999, Supreme Court of India. Also, State v Vikram Singh @ Jeete, 27 November, 2015, Delhi District Court. In Limbaji v Maharashtra, AIR 2002 SC 491, the Court said: “we must hold that the accused must be deemed to be in exclusive possession of the articles concealed under the earth though the spots at which they were concealed may be accessible to public.” 385 12 December, 2013, High Court of Madras. 386 Justice Prakash held that when an accused takes the police and points out to the place and gives other particulars which are in his exclusive knowledge and if the police are able to discover a fact, consequently, his knowledge is relevant under section 106 and his conduct is also relevant under section 8 of the Evidence Act, 1872. K Ramaraj v State, 12 December 2013, High Court of Madras. 387 See Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al, Eds, vol 1, New Delhi, 1993, p 478. 388 In Queen Empress v Babu Lal, 1884, Indian Decisions, 6 Allahabad 510, the Court pointed out that S. 27 was “virtually borrowed” from a passage from Taylor’s Evidence which was as follows: “When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner’s statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false.” John Pitt Taylor, A Treatise on the Law of Evidence, vol 1, 1931 Edn, para 902. See, State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, para 13. 389 In Rajasthan v Bhup Ram, 1997 (1) Supreme Today 405, the Court observed: “The ratio therein [Kottaya case] has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth.” Jaffer Husain Dastagir v Maharashtra, AIR 1970 SC 1934; K Chinnaswamy Reddy v AP, AIR 1962 SC 1788; Earabhadrappa alias Krishnappa v Karnataka, 1983 (2) SCC 330; Ranbir Yadev v Bihar, 1995 (4) SCC 392; Shamshul Kanwar v UP, 1995 (4) SSC 430. 390 Pershadi v UP, AIR 1957 SC 211 : (1957) Cr LJ 328; Udai Bhan v UP, 1963 (1) SCJ 454. 391 Kishore Bhadke v Maharashtra, AIR 2017 SC 279 : 2017 (1) Scale 270, para 22. 392 Naresh Chnadra Das v Emperor, (1942) 1 Cal. 436; Nathu v UP, AIR 1958 All 467; B B Singh v King Emperor, (1944) 21 Luck. 56. Queen-Empress v Babu Lal (1884) ILR 6 All 509 (FB), Straight J: “No judicial officer dealing with such provisions should allow one word more to be deposed to...than is absolutely necessary to show how the fact that was discovered is connected with the accused.” Also, Amiruddin Ahmed v Emperor, (1917) ILR 45 Cal. 557 (per Shamsul Huda J).

Page 19 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED 393 The Court said: “The fact deposed to and the fact discovered obviously must be relevant and the fact or thing discovered can only be relevant if it is connected with the offence of which the accused is charged; and the confession in the section is a confession of the offence charged and not of anything else.” Re Athappa Goundan, ILR 1937 Mad. 695 (FB), para 36. 394 A Division Bench of Bombay High Court opined that the Privy Council decision in Pulukuri Kottaya “is not based on proper construction of the word ‘fact deposed to’ in S. 27” but the Supreme Court held that the High Court was wrong in not following Pulukuri Kottaya as the Privy Council decisions are binding so long as the Supreme Court does not take a different view. Panduranga Kalu Patil v Maharashtra, (2002) 2 SCC 490. In fact, in Rajasthan v Bhup Singh, the Supreme Court observed that “the ratio therein [Kottaya] has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth.” (1997) 10 SCC 675, at p 680, para 15. 395 In Sukhan v The Crown, (1929) ILR X Lah. 283, it was contended that if the discovery part is separated from the confessional part the former will be incomprehensible and, hence, under section 39 both the parts of the statement must be admitted “to the full understanding of the nature and effect of the statement.” The Court held: “I do not think that this section can be invoked for the purpose of letting in a confession in respect of which the bar created by sections 24, 25 and 26 of the Indian Evidence Act has not been removed by section 27.” 396 In Sukhan v The Crown, (1929) ILR X Lah. 283, Shadi Lal CJ, observed: “The admissibility or otherwise of the information must depend upon its intrinsic character, and not upon the manner in which the sentence conveying the information is framed by the police officer or the prisoner. It would be unreasonable to suggest that a statement, which could not be received under section 27 if it were placed before the Court in a separate sentence, should be let in as soon as it is amalgamated with the admissible statement.” 397 Mohd. Inayatullah v Maharashtra, 1976 AIR 483 : 1976 (1) SCC 828 : 1976 SCR (1) 715; Meghaji Godadji Thakore v Gujarat, 1993 Cr LJ 370 (Guj). 398 In Kottayya case, the Privy Council, in fact, said: “The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into Section 27 something which is not there, and admitting in evidence a confession barred by Section 26.” AIR 1947 PC 67, para 10. 399 Mustkeem at Sirajudeen v Rajasthan (2011), (2011) 7 SCLR 67, para 27. 400 Paras 13–14, 2 May, 2017, Supreme Court of India. 401 Khabiruddin v Emperor, AIR 1943 Cal. 644; Ramkishan Mithanlal Sharma v Bombay, AIR 1955 SC 104 : 1955 AIR 104, 1955 SCR (1) 903. 402 Sukhan v The Crown, (1929) ILR X Lah. 283. 403 Sir Shadi Lal was the first Indian to be appointed as Chief Justice of a high court and served in that capacity from 1920 to 1934 and was later appointed as a Member of the Judicial Committee of the Privy Council in London. 404 See also, HP Administration v Shri Om Prakash, AIR 1972 SC 975 : 1972 SCR (2) 765; State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600. 405 Pulukuri Kottaya v Emperor, AIR 1947 PC 67, at p 70; Udai Bhan v UP, 1962 AIR 1116 : 1962 Supp (2) SCR 830. 406 Also in Maharashtra v Damu, AIR 2000 SC 1691. 407 Public Prosecutor v India China Lingiah, AIR 1954 Mad. 333: “It is now settled law in this state that the discovery of a witness is a discovery of a fact.” In Re Vellingiri, AIR 1950 Mad. 613, para 9, the Court referred to the jury: “The evidence is that the accused came to the shop in a motor car, got out and pointed out to the Police: ‘This is the shop, that is the man and this is the coolie woman who carried the mattress’.” 408 HP Administration v Shri Om Prakash, AIR 1972 SC 975 : 1972 SCR (2) 765 (Per P Jaganmohan Reddy J). The cases said to be over-ruled were: In Emperor v M Ramanuja Ayyangar, AIR 1935 Mad. 528 : 158 Ind Cas 662, the information admitted was: “the accused pointed out the shop saying that it was in that shop that he purchased the mattress” and “while we were coming out, the accused pointed out that woman with coral beads on her neck and said that was the coolie that carried my mattress.” In Re Athappa Goundan, (1937) 2 Mad LJ 60, para 21: “The location of the thing is not so very material. It may be with A, B or C or may be in one place or the other. The important consideration is always the thing discovered and its connection with the crime. Divorced from the thing, therefore, the information becomes both useless and irrelevant.” 409 In the case of Raju Manjhi v Bihar, 2 August 2018, Supreme Court of India, para 13, one of the accused made a statement to the police revealing the place of hiding of the other accused, the mode of commission of the offence, his participation etc. The police in pursuance of this statement went to the place where the other accused were holed up and on their own search found some money, bags of wine consumed etc. The Court held that the statement constituted information leading to the discovery of fact under section 27. It is submitted, with respect, that the recovery of material objects by the police was by their own search at the place of hiding, and the statement made no mention of the objects. Hence, the entire statement should have been held to be inadmissible under section 27. 410 Mehboob Ali v Rajasthan, 2015 SCC OnLine SC 1043, paras 18 and 19.

Page 20 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED 411 Sukhan v The Crown, (1929) ILR X Lah. 283: “It is an established rule of the Indian law that every confession must be rejected which has been improperly obtained or has been made by an accused person to a police officer or whilst be is in the custody of a police officer.. The principle upon which the rejection is founded is that a confession thus made or obtained is untrustworthy.” Indra Dalal v Haryana, 29 May, 2015, Supreme Court of India: “The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer.” 412 In Panduranga Kalu Patil v Maharashtra, (2002) 2 SCC 490, Thomas J, severely criticised the Division Bench of the Bombay High Court for having “ventured to disagree with a ratio which has become locus classicus and well stood the long period of half-a-century” and that “it is unfortunate that learned judges of the Division Bench of the Bombay High Court, ... have chosen to set a locus classicus at nought without reference to any of the catena of judicial pronouncements rendered by High Court as well as the Apex Court pertaining to the ratio in that decision.” 413 13 January 1997, Supreme Court of India. 414 See the text above following footnote 5. Public Prosecutor v India China Lingiah, AIR 1954 Mad. 333; Re Vellingiri, AIR 1950 Mad. 613. 415 Woodroffe and Ameer Ali observe that the word “it” in the expression “whether it amounts to a confession or not” means “information” and not “so much of”; Woodroffe and Ameer Ali’s Evidence, 10th Edn, (1958), vol 1, p 414. 416 Sikkim v Rakesh Rai, 2012 Cr LJ 2737. 417 Reg. v Jora Hasji, (1874) 11 B.H.C.R. 242: “as a whole, the statement would constitute a confession which the preceding sections are intended to exclude.” 418 In King-Emperor v Maung Tha Din, (1926) ILR 4 Rang. 72 (F.B.), it was stated that section 162 would in effect repeal section 27 if the former included statements by accused also. 419 The Code of Criminal Procedure (Second Amendment) Act. 1941 (I5 of 1941), section 2. 420 UP v Deoman Upadhyay, AIR 1960 SC 1125. 421 Deoman Upadhyay v UP, AIR 1960 All 1. 422 AIR 1960 SC 1125, at 1130. 423 But with the omission of “or”. 424 Also, Udai Bhan v UP, AIR 1962 SC 1116, at p 1118, paras 7 & 11; and also, Pakala Narayanaswamy and Pulukuri Kotayya cases. 425 In the later decision of Aghnoo Nagesia v Bihar, AIR 1966 SC 119, the Supreme Court referred to Deoman on this point and stated: “Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody.” 426 UP v Deoman Upadhyay, AIR 1960 SC 1125. 427 Ibid. 428 See “Indian Position” under “Rationale—Confessions Must Be Voluntary” above. 429 The Bench consisted of 11 eminent judges: B P Sinha C J, S J Imam, S K Das, P B Gajendragadkar, A K Sarkar, K Subbarao, K N Wanchoo, K C Das Gupta, Raghibir Dayal, N Rjagopala Ayyangar, J R Mudholkar. 430 Law Commission of India, 69th Report, p 215, para 11.49. 431 State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 808. 432 Section 163 (1), CrPC, 1973: “No inducement to be offered. (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872).” Section 316. “No influence to be used to induce disclosure.-Except as provided in sections 306 and 307, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.” 433 See also, R v Liverpool Juvenile Court, Ex Parte R, (1987) 2 All ER 668. It was held that “oppression” means “exercise of authority or power in harsh, wrongful manner, cruel or unjust treatment”. 434 R v Liverpool Juvenile Court, Ex Parte R, (1987) 2 All ER 668. 435 M P Sharma v Satish Chandra, AIR 1954 SC 300 : 1954 SCR 1077. 436 See, supra, the discussion under section 8 on coercion affecting free consent of the woman in rape cases etc.

Page 21 of 21 6.13 SECTION 27: DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED 437 See the discussion under section 111, infra, as to “good faith” of transactions in the law of contracts etc. 438 Raju Manjhi v Bihar, 2 August 2018, Supreme Court of India.

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6.14 HOW DO SECTIONS 24 TO 27 OPERATE? Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.14 HOW DO SECTIONS 24 TO 27 OPERATE? Then, briefly, what are the confessions that are hit by sections 24, 25 and 26 and what are the exceptions? (a) Section 24: Confession made to persons in authority under inducement, threat or promise. Confession appears to the Court to have been made involuntarily. Exceptions: (i)

Section 28: The effect of compulsion is removed.

(ii) Section 27: Discovery of fact. (iii) Sections 306 and 307 CrPC, 1973: Tender of pardon. (b) Section 25: Confession made to police officer irrespective of whether the confession is in fact voluntary or not. Involuntariness is presumed as a policy of law. (i)

While all personnel in the police department are considered per se as police officers, Excise, Customs, Narcotic Drugs etc officials may also be considered as police office if they are conferred with powers substantially similar to those of police offices.

(ii) If officials of Excise etc are not considered as police officers for lack of the requisite powers and hence are not covered by section 25, the officials might still come under section 24 as ‘persons in authority’ if it is proved that they resorted to inducement, threat or promise to obtain confession. Exception: (i)

Section 27: Discover of fact.

(c) Section 26: (i)

Confessions made in police custody irrespective of whether the confession is in fact voluntary or not. Involuntariness is presumed as a policy of law.

(ii) Confession made to a police officer while the accused is in police custody would be hit by section 25 and not by section 26 Exceptions: (i)

Section 26 r/w section 164 of CrPC, 1973: Confession recorded by the Magistrate.

(ii) Section 27: Discovery of fact.

Page 2 of 2 6.14 HOW DO SECTIONS 24 TO 27 OPERATE? (d) Section 27: (i)

As Section 27 is a proviso to sections 24 to 26, statement must amount to confession;

(ii) Such statement must lead to discovery; (iii) The particular part of the statement leading to discovery may or may not amount to confession; (iv) Discovery must relate to a ‘fact’ which means material object and things relating to it; (v) Hence, discovery of names of other accused, their place of hiding etc are not ‘facts’; (vi) Discovered fact must not be known already; Thus, in Gandur Bhagat v Jharkhand,439 the High Court said: “Confession can be brought on record only if (a) it is recorded by a Magistrate under section 164 CrPC; or (b) it comes under section 27 as an exception to sections 25 and 26 and leads to the discovery of fact; or (c) it is admissible as a confession of the co-accused under section 30; or (d) it is recorded by the Magistrate in terms of section 281 CrPC.”

439 15 December 2015, High Court of Jharkhand.

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6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. 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.

6.15.1 Ingredients of Section 29 Section 29 provides that a confession otherwise relevant will not become irrelevant merely because it was obtained (a) by a promise of secrecy (b) by deception practised on the accused (c) when the accused was drunk (d) in answer to questions which the accused need not have answered, whatever may have been the form of those questions (e) without warning the accused that he was not bound to make such confession and that the confession will be used as evidence against him. Sarkar says that “the above non-invalidating origins of a confession are not exhaustive”440, meaning thereby that there may be other similar methods which may not vitiate an otherwise admissible confession. 6.15.1.1 “If such a confession is otherwise relevant” Section 29 appears like a rider to the earlier sections as it starts with “If such a confession is otherwise relevant”. What are the earlier sections that section 29 qualifies? According to the majority of judicial pronouncements and the opinions of the learned commentators, “such a confession” means a confession that is not declared inadmissible under any of the previous sections. Sections 24, 25 and 26 are the sections that bar admissibility of certain confessions. So, section 29 refers to confessions that (1) are not made under the inducement, threat or promise, as under section 24, (2) are not made to a police officer as under section 25 or (3) made in police custody but are recorded by a Magistrate under section 164, CrPC, 1973. So, if a confession is not barred by sections 24, 25 and 26, the confession is “otherwise relevant” within the meaning of the opening words of section 29. In Dagdu v Maharashtra, (1977) 3 SCC 68, the Supreme Court observed: “Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant

Page 2 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, 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.”441 Those confessions will be those that are made to private persons not covered by sections 24 and 26. Consequently, if a promise of secrecy is made by a person in authority or the mandatory warnings are not given by a Magistrate under section 164 CrPC, 1973 the confessions made will not be saved by section 29. 6.15.1.2 Rationale of section 29: 1. English Rule: “Evidence is evidence by what ever means it is obtained” Section 29 is based on the English principle that “admissible evidence is evidence by whatever means it is obtained”. Wigmore expressed the opinion that by admitting evidence which is illegally obtained the Court does not condone the illegality but only ignores it.442 In R v Leatham, (1861) 8 Cox C.C. 498, Crompton J, made the famous observation about the means of obtaining evidence: It matters not how you get it; if you steal it even, it would be admissible.

In Kuruma v Reginum, (1955) 1 All LR 23, Lord Goddard speaking for the Privy Council observed: [T] he test to be applied [both in civil and 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...In their Lordships’ opinion when it is a question of admission of evidence strictly it is not whether the method by which it was obtained is tortious but excusable, but whether what has been obtained is relevant to the issue being tried.443

In a similar vein Lord Diplock observed in R v Sang, (1979) 2 All ER 1222, that though the judge may dislike the methods used for obtaining evidence444 which is otherwise admissible, “it is no part of his judicial function to exclude it for this reason”. His Lordship proceeded to state: he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.

It must, however, be stated that the English Courts have tried to ensure that the breadth of the above statements of law did not operate to the detriment of the accused. In Kuruma, (1955) 1 All LR 23, the Court added: “...no doubt in a criminal case a judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused.” In Re Sang, (1979) 2 All ER 1222, Lord Diplock said: “A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value ...”445 2. United States: “Fruits of the Poisonous Tree” Doctrine The exclusionary rule of “fruit of the poisonous tree doctrine”446 mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial447. This doctrine stems from the 1920 decision of Silverthorne Lumber Co v United States, 251 U.S. 385 : 40 S. Ct. 182 : 64 L. Ed. 319 (1920), where the accused Silverthorne was arrested on suspicion of violations of Federal law in connection with his lumber business. Government agents then conducted an illegal search without warrant of the offices of the accused. Based on the evidence discovered in the search, the prosecution requested more documents, and the court ordered Silverthorne to produce the documents. Silverthorne refused and was jailed for contempt of court. The Supreme Court overturning that verdict held that evidence derived from illegally obtained evidence is also tainted evidence and that “...the essence of forbidding the acquisition of evidence in a certain way is that ... it shall not be used at all.” However, the later decisions engrafted exceptions to that rule and in Olmstead v United States, 277 U.S. 438, the United States Supreme Court held that wiretapping of the phone of the accused was not unconstitutional.448 Fourteen years later Olmstead was followed in Goldman v United States, 316 U.S. 129, and it was held that overhearing of the conversation of the accused through Dictaphone was constitutional. In Lee v United States, 343 U.S. 747 (1952), the petitioner, On Lee, had a laundry in Hoboken. Chin Poy, an old acquaintance and former employee, sauntered in and, while customers came and went, engaged the accused in conversation in the course of which petitioner made incriminating statements. He did not know that Chin Poy was “an undercover agent” for the

Page 3 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. Bureau of Narcotics. Neither did he know that Chin Poy was wired with a small microphone in his inside overcoat pocket and a small antenna running along his arm. Unknown to the petitioner, an agent of the Narcotics Bureau had stationed himself outside with a receiving set properly tuned to pick up any sounds the Chin Poy microphone transmitted. The evidence of the overheard conversation was held to be admissible The Court refused to accept the plea that the evidence should be inadmissible as it was gathered by Government agents by committing trespass, and observed: The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are “dirty business” may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions. But to the extent that the argument for exclusion departs from such orthodox evidentiary canons as relevancy and credibility, it rests solely on the proposition that the Government shall be arbitrarily penalized for the low morals of its informers.449

In Segura v United States (1984), 468 U.S. 796 (1984), though the initial entry of the federal agents into the premises of the accused who was a drug peddler was illegal, the subsequent valid search warrant led to seizure of cocaine etc whose presence came to be known because of illegal entry. Stating that the issue was whether, because of an earlier illegal entry, the Fourth Amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant, the Supreme Court held that the evidence came from independent source of valid seizure and it was not the fruit of poisonous tree. “The Court has never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.”450 Referring to Justice Frankfurter’s dissent in Nardone451 that causal connection could be found between the illegal conduct of the Federal agents and the seizure, the Supreme Court trenchantly remarked: “The essence of the dissent is that there is some ‘constitutional right’ to destroy evidence. This concept defies both logic and common sense.”452 In the case of U.S. v Jones, 565 US : 132 S. Ct. 945 (2012), the law enforcement authorities attached the GPS (Global Positioning System) to the car of the respondent, a suspected drug dealer to monitor his movements. As this was done without a warrant, the question was whether this “warrantless information” was inadmissible in evidence as it is violative of the Fourth Amendment right to privacy. Justice Scalia of U.S. Supreme Court held that there was “no doubt that such a physical intrusion would have been considered a ‘search’” and that “the Government physically occupied private property for the purpose of obtaining information”.453 “Emergency Doctrine” However, applying what has come to be known as “emergency doctrine”, the U.S. Supreme Court454 has held: “We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” 3. Indian Position The Indian Courts have closely followed the judicial trend prevailing in England. In Pushpa Devi Jatia v Wadhwan, Addl Secretary, Government of India, (1987) 3 SCC 367, the Supreme Court observed: If evidence is relevant the Court is not concerned with the method by which it was obtained.

In Barindra Kumar Ghosh v Emperor, ILR (1910) 37 Cal. 467, Sir Lawrence Jenkins J, repelled the defence plea that evidence was obtained by illegal search and seizure and observed: “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 [of CrPC] were disregarded.” In Megraj Patodia v R K Birla, AIR 1971 SC 1295, it was held that a document obtained by improper or illegal means could not bar its admissibility.455 If, for instance, the police cause a theft to be committed for collecting some evidence from the house of the accused, the concerned police officer may be prosecuted for the offence of theft but the evidence so obtained will not become tainted for that reason if it is otherwise admissible. The Law Commission of India submitted a Report on “Evidence Obtained Illegally or Improperly: Proposed Section 166A, Indian Evidence Act, 1872” wherein the Commission made a comparative study of the position in UK, USA and other Commonwealth countries and proposed that a new section, section 166A be added conferring discretion

Page 4 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. on the court to exclude evidence illegally or improperly obtained if “its admission would tend to bring the administration of justice into disrepute.”456 However, in MP through CBI v Paltan Mallah, (2005) 3 SCC 169 : 2005 (1) CTC 457 (SC), the Supreme Court has discussed the 94th Law Commission Report and has categorically held that the evidence collected illegally or in violation of the procedural law will not become inadmissible. In Umesh Kumar v AP, (2013) 10 SCC 591, para 27, it was held: “It is a settled legal proposition that 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.” In a series of cases, the Court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20 (3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law.457 It is evident from the above discussion that the above principles applicable in the context of gathering evidence in general are extended to some extent to confessions also by section 29. a) “Promise of Secrecy” The promise should not proceed from a person in authority as that would be hit by section 24. Otherwise, a confession obtained by a false promise of secrecy will not be excluded for that reason. Any breach of confidence or of good faith with the accused will not vitiate the confession made by him.458 In R v Shaw, (1934) 6 C & P 372, a was in custody on a charge of murder and B, a cell-mate, told A: “I wish you should tell me how you murdered the boy, pray speak.” A replied: “Will you be on your oath not to mention what I tell you?” On B promising the same on oath, A made a confession. It was held that the confession was admissible. It must, however, be borne in mind that the ratio of some of the English decisions will not be applicable in India as confessions made in police custody to whomsoever they are made are barred by section 26. b) “Deception practised on the accused” A confession will be admissible even if worst form of trickery or deception is used to coax the accused into making it.459 In fact breach of promise of secrecy is also a form of deception. In Emperor v Mahomed Baksh, (1906) 8 Bom LR 507, the accused made the confession to the medical officer of his military regiment after the latter told the accused that he already got the information about the offence from another person and promised to keep it secret if the accused told the truth. It was held that the confession was admissible in spite of the deception as the officer was not a “person in authority” within the meaning of section 24. In an English decision, where the accused gave to the turnkey460 of a jail in which he was lodged a letter written by him to his father and asked him to post it, the turnkey promised to do so but, instead of posting the latter, handed it over to the prosecutor, it was held that the confession in the letter was admissible.461 Similarly, evidence gathered by keeping secret listening devices or “bugging”462, by secret tape-recording463, by overhearing the conversation of the accused464, or by wiretapping465 have been held to be admissible. Section 46 of the Unlawful Activities (Prevention) Act, 1967, as amended in 2004 permits evidence gathered by electronic interception to be adduced against the accused and provides: Admissibility of evidence collected through the interception of communications. -Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the Information Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case.

USA—4th Amendment and “Eye Witness Doctrine” The 4th Amendment to United States Constitution deals with the right to privacy and provides: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Page 5 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. The above provision has come to be treated as incorporating the so-called “Eye Witness Rule”. It is said that State can during the process of investigation of any crime talk to any eye witnesses as to what they have seen or heard. Orin Kerr466 says: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, don’t trigger the Fourth Amendment. There’s just no Fourth Amendment right to prevent people from talking about what they saw you do.

But the above principle is subject to what is known as the “Third Party Rule”. Under the third-party doctrine, information voluntarily given by a person to third parties—such as cell phone companies or Internet service providers (ISPs)—is not protected by the Fourth Amendment and the doctrine is frequently cited by the government in support of the legality of collection of metadata by National Security Agency. In Katz v United States, 389 U.S. 347 (1967), Charles Katz was convicted on a charge of transmitting wagering information by telephone across state lines in violation of 18 U.S.C. § 1084. Katz made telephone calls from a public booth and his conversation was overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, and that was introduced in evidence at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation, since there was “no physical entrance into the area occupied by petitioner”. Before the Supreme Court the Constitutional issues were: •

Does the right to privacy extend to telephone booths and other public places?

•

Is a physical intrusion necessary to constitute a search and require a warrant?

Speaking for the majority, Justice Stewart held: One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.... The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.

Concurring, Justice Harlan observed that an enclosed telephone booth is an area where, like a home, and unlike an open field, a person has a constitutionally protected “reasonable expectation of privacy”. In other words, according to Katz, firstly, the place had to be protected if the society was willing to recognise an expectation of privacy as reasonable there. Secondly, the person had to “exhibit” an actual expectation of privacy, by taking steps “to keep” the protected space “to himself,” and by not exposing the space “to the plain view of outsiders.” The Fourth Amendment governs not only the seizure of tangible physical objects but extends as well to the recording of oral statements. As the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The “trespass” doctrine applied in earlier cases requiring physical intrusion into privacy is no longer recognised.467 Surveillance in Katz could constitutionally have been authorised in advance, which is a constitutional precondition of such electronic surveillance. “Third Party Doctrine” The Supreme Court decided in a long string of cases in the decade before Katz consistently adopting a simple rule: A person who knowingly exposed private information from a private space to outside third-party observation waived 4th Amendment protection. This has come to be called as the “Third Party Doctrine”. In Hoffa v United States, 385 U.S. 293 : 87 S. Ct. 408 : 17 L. Ed. 2d 374 (1966), Hoffa made many incriminating statements to or in the presence of Partin, a Government informer who did not disclose his identity to Hoffa. The Court held that (1) no rights under the 4th Amendment were violated by the covert operation, and (2) there was no testimonial compulsion under the 5th Amendment as Hoffa’s revelations were voluntary as he relied not on the security of the hotel room, but on his misplaced confidence that Partin would not reveal his wrongdoing. In Carpenter v United States, 484 U.S. 19 : 108

Page 6 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. S. Ct. 316 (1987), Carpenter was the co-author of a column in Wall Street Journal which predicted share market prices and the quality of the column was such that it influenced the market prices. Carpenter, in breach of his duty the Journal to keep confidentiality, conspired and leaked the contents of the column before publication. On charges of fraud under security laws and breach of journal’s confidentiality etc, the mail and electronic communications between the conspirators were given in evidence. The Court applied the Third Party Doctrine and held that Carpenter has foregone the rights under the 4th Amendment as he can’t both reveal the journal information etc with the phone company for transmission to conspirators and still demand a warrant before the phone company gives that information to the government.468 Deception through “Trap or Decoy” witnesses Often, the police use trap witnesses to decoy or mislead the accused into making confessions or providing evidence of guilt. It is widely known that the police use trap witnesses to contact a corrupt public official, pretending as persons interested in getting some favour from the officials and to offer money by way of bribe. The methods used are either the serial numbers of the currency are already noted by the police and tallied when the bribe money is recovered after a raid or the currency is treated with special chemicals or a hidden camera or tape recorder are used to record the transaction of offer and acceptance of the bribe. Under the law, the offeror of a bribe is as guilty as its taker. However, the Courts have held in a number of cases that this kind of “sting” operation is permissible and the trap witnesses who offered the bribe etc will not be treated as accomplices taking part in the crime of offer of bribe. Convictions are not illegal if they are based on the evidence of these trap witnesses.469 A court is justified in acting upon the evidence of a trap witness if he was found to be truthful.470 A more detailed discussion on trap witnesses may be found under section 133. “Mr. Big B” Confessions— R v Hart (2014) As was stated in R v Bradshaw, 2017 SCC 35, para 9, in a Mr. Big operation, undercover officers recruit a suspect into a fictitious criminal organisation for the purpose of eliciting a confession from him. ‘Mr. Big B’ under-cover operations471 are conducted by the police in which a suspect is deceived into believing that he was getting employed in a criminal organisation run by a Big Boss and over a period of time of ‘employment’ they befriend him and win his confidence and inveigle him into making confessions. In the Canadian case of R v Hart, 2014 SCC 52, H’s twin daughters drowned on 4 August 2002. The police immediately suspected that H was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting H into a fictitious criminal organisation. After he was recruited to the organisation, H worked with the undercover officers and was quickly befriended by them. H visited different parts of Canada as a part of his ‘job’ and stayed in posh hotels, and expenses were born by the ‘organisation’. Over time, the undercover officers became H’s best friends and H came to view them as his brothers. According to one of the undercover officers, during this time, H made a bald statement in which he confessed to having drowned his daughters. The operation culminated with a meeting akin to a job interview between H and ‘Mr. Big’, the man purportedly at the helm of the criminal organisation. During their meeting, Mr. Big interrogated H about the death of his daughters, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter. At the trial, H requested that he should be permitted “to testify outside of [the] physical presence” of the public. The trial judge mistook the nature of the respondent’s request as meaning that his testimony should not be heard by the public and disallowed the request. A majority of the court opined that the rejection of the request of the accused was wrong472 and also concluded that the Mr. Big operation had breached H’s right to silence under section 7 of the Canada Human Rights Charter. Justice Moldaver, speaking for the Court, observed: To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth. But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.... any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation

Page 7 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. becomes irrelevant.473

Moldaver J dismissed the Crown’s appeal and affirmed the order of the court of appeal for retrial on the ground that the rejection by the trial judge of in camera testimony was wrong and that two of the ‘Big B’ confessions were inadmissible. In R v Mack, 2014 SCC 58, para 44, the Supreme Court of Canada opined that “...even in cases where Mr. Big confessions are admitted into evidence, concerns with their reliability and prejudice will persist” and “the confessions may be unreliable” because “Mr. Big operations are intended to induce confessions, and the inducements offered to a suspect may incentivize the suspect to falsely confess.”474 Under Indian law, the ‘Mr. Big B’ operation as such would not be illegal as it will come under permissible ‘deception’ under section 29 as a decoy operation, but the statements and confessions of the accused to the police will be hit by section 162, CrPC, 1973 and section 25 of the Evidence Act, 1872, respectively, unless they led to the discovery of facts under section 27 of the Act. c) “When the Accused was Drunk” There are two issues relating to the confessions made under the influence of liquor, whether it was self-imbibed or administered by others. Firstly, is such a confession vitiated and, hence, inadmissible? Secondly, what is the credence that can be given to a drunken person’s confession? On the first issue, section 29 clearly provides that the drunken condition of the accused when he made the confession is not, by itself, a ground for rejection of the confession. Regarding the second issue, the Courts in India never followed the Latin saying in vino veritas est (the truth is in vine) in the sense that a drunken man always tells the truth, and such a confession has to be subjected to scrutiny as far as reliability is concerned. Thus, the fact that the accused consumed liquor before he made the confession or that he was given liquor by others, including the police475, to make him to confess would not for that reason invalidate the admissibility of the confession. Thus, in Eskridge v S, 25 Ala. 33, Chief Justice Chilton observed: “It does not follow necessarily that, because the party was much intoxicated, his reason was so far dethroned as to disable him from comprehending the effect of his admission or from giving a true account of the occurrence to which they had reference.” In R v Spilsbury, (1836) 6 C.& P. 187, Coleridge, J, said: “I am of opinion that a statement made by a prisoner while he was drunk is not therefore inadmissible.... This is a matter of observation for me, upon the weight that ought to attach to this statement when it is considered by the jury.” d) “In answer to questions which the accused need not have answered, whatever may have been the form of those questions” As has been discussed already, an accused has the constitutional right to remain silent and he can refuse to answer questions which are incriminating. The words “whatever may have been the form of those questions” refer to questions that may be “leading questions”. Section 141 of the Evidence Act, 1872 defines “leading questions” as “any question suggesting the answer which the person putting it wishes or expects to receive” and section 142 bars those questions being put to a witness in a trial during examination in chief, save in certain cases. Then, what are the situations in which the accused can be questioned or interrogated? •

Interrogation of an accused may be done by the police during investigation under sections 160 and 161 of CrPC, 1973 but whatever statement he may make is barred by section 162 (1) of CrPC, 1973 from being used for any purpose in any inquiry or trial unless under clause (2) of that section the statements are admissible under section 27 of the Evidence Act, 1872. Even if a statement made by the accused under section 161, CrPC, 1973 leads to the discovery of fact under section 27, the police in India are not under a duty to warn the accused that he need not answer the incriminating questions provided that no compulsion is used to extract answers. The police are also not under duty not to put leading questions as the investigation under sections 160 and 161 is not a trial.

•

Interrogation of the accused may be done by the Court under section 313 of CrPC, 1973 “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. Under section 313 (a) the Court may, at any stage and without warning, put such questions to him as the Court considers necessary; and under section 313 (b) the Court may, after the prosecution witnesses have been examined and before he puts in his defence, also “question him generally on the case”. Section 313 (2) provides that no oath shall be administered to the accused when he is examined under clause (1), and under section 313 (3) the accused shall not render himself liable by refusing to answer the questions or by giving false answers to them. Section 313 (4) says that the answers given by the accused “may be taken into consideration in such enquiry or trial” and “put in evidence for or against him in any other enquiry into

Page 8 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. or trial for, another offence which such answers may tend to show he has committed.” Thus, section 313 (4) consists of two parts: (a) First, the answers given by the accused may be “taken into consideration” in the very case in which the accused is being examined; and, obviously, that will form part of “the matters before” the Court within the meaning of the definition of the word “proved” in section 3; and (b) Second, the self-incriminating answers given in the present case may form part of “evidence” against the accused in a future criminal trial. The words “without previously warning the accused” in section 313 (a) may mean that the accused can be taken by surprise by the Court in examining him but the words may also be interpreted as meaning ‘without warning the accused that he need not answer the incriminating questions’. However, in Laxman v Maharashtra, 2012 Cr LJ 2826, at p 2840, para 32, the Bombay High has, it is submitted with respect, held correctly, that the Court should warn the accused that (a) he need not make the statement, (b) refusal to answer will not render him liable for punishment, and (c) his statement may be taken into consideration at the trial. As under section 273 of CrPC, 1973, the trial invariably takes place in the presence of the lawyer of the accused, it is for the lawyer to counsel the accused that he has the right to silence and that he need not answer incriminating questions put by the Court and, unlike under section 164 of CrPC, there is no statutory duty cast upon the Court to warn the accused. Section 164 has been amended in 2008 by adding clause (5) which provides: “(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” •

Under section 132 of the Evidence Act, 1872, “a witness shall not be excused from answering any question” relevant to the matter in issue even if the answer is a self-incriminating one. The proviso to the section expressly states that the answers shall not subject the witness from “any arrest or prosecution” nor can they “be proved against him any criminal proceeding except a prosecution for giving false evidence by such answer.” The words “a witness shall not be excused” mean that the witness shall be compelled to answer and the only compulsion that the court can lawfully exert is the threat of contempt of court or prosecution under section 179 of IPC, 1960 (Offence of refusing to answer public servant authorised to question)476. As section 132 applies not only to ordinary witnesses but equally also to the accused appearing as a witness, the provision that a witness shall not be excused “upon the ground that that the answer to such question will criminate” might attract the Constitutional bar against self-incrimination under Article 20 (3). It is submitted that the unconstitutionality is not cured by removing the evil consequences of compulsion. Article 20 (3) bans the compulsion itself and not just the consequences.

•

The accused may also confess in a Court when he pleads guilty under section 229 (Sessions cases), 241 (Warrant Cases otherwise than on police report) and 252 (Summons cases) of CrPC, 1973. As the accused pleads guilty in response to a question by the Court whether he pleads guilty or not477, there is no compulsion at all on the accused and he pleads guilty on his own accord.

In the light of the above, it is submitted that section 29 should be confined to extra-judicial confessions only ie, the confessions made to private persons and such confessions are relevant even if they were made “in answer to questions which the accused need not have answered, whatever may have been the form of those questions”. e) Absence of Warnings The last part of section 29 says that a confession would be relevant if it was made without warning the accused that he was not bound to make such confession and that the confession will be used as evidence against him. This particular provision will not cause any problems if the confession is an extra-judicial confession made to any private person or made even to a police officer if the confession is saved by section 27. As pointed out earlier, the Indian law, unlike the Judges Rules in England or Miranda Rules in United States, does not require the police officer to administer such warnings. Main Controversy: Section 164 CrPC, 1973 The main controversy regarding want of warnings turned around a confession recorded by a Magistrate under section 164 of CrPC, 1973. Under that section as amended in 1973: 1. any Metropolitan Magistrate or Judicial Magistrate may record a confession 2. shall explain to the accused “that he is not bound to make a confession and that, if he does so, it may be used as evidence against him”; 3. the Magistrate shall not record the confession unless, upon questioning the accused, he has reason to believe that it is being made voluntarily;

Page 9 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. 4. after recording the confession, the Magistrate is required to make a memorandum at the foot of the record that (a) he administered the warnings, (b) he believed that the confession was made voluntarily, and (c) it was read over to the accused who admitted that it was correct.478 5. An amendment to section 164 (7) made by the Code of Criminal Procedure (Amendment Act, 2008) (Act No. 5 of 2009) substituted the existing proviso with: “Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.” It has been held in Kasab’s case that while the accused will be entitled to legal assistance at the time of recording section 164, CrPC, 1973 statement, “the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial...unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case.”479 Similarly, mere “failure on the part of Magistrate to ask the accused as to why he wants to give a confession” will not vitiate the trial.480 Non-compliance of Section 164—Effect of While section 164 of CrPC, 1973 makes it mandatory for the Magistrate to administer the warnings to the accused before he records the confession, the last part of section 29 states that the confession, otherwise relevant, does not become irrelevant merely because the warnings were not given. The courts and the commentators found an apparent repugnancy between the two provisions and the problem that had to be resolved was whether section 29 would prevail over section 164 so that a confession recorded by a Magistrate would be nonetheless relevant under section 29 even if the warnings were not given as required under section 164. Different views have been expressed in this regard: (a) The Bombay High Court481 has held that CrPC, 1973 is a special enactment applicable only to certain statements made in the particular circumstances contemplated by section 164 and recorded by the Magistrate and it cannot prevail over the general provisions of section 29 unless the circumstances bring section 164 into operation. In effect, this would mean that where the Magistrate records the confession the mandatory provisions of section 164 would apply, and if the confession is recorded by other private persons section 29 would apply. This is a kind of harmonious construction of two conflicting sections of two different enactments. Though they might appear like two sides of the same coin, it is submitted that the real question is not whether section 164 would prevail over section 29 but whether section 29 would prevail over section 164 so as to make ineffective the mandatory provisions of section 164. (b) In Nazir Ahmad v King Emperor, AIR 1936 PC 253, the Privy Council held that where a Magistrate has recorded a confession under section 164 he must substantially comply with its provisions as required under the present section 463 failing which the confession would be inadmissible. Lord Roche observed: Section 164 “is a section conferring powers on Magistrates and delimiting them”482 and “Where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all...Other methods are necessarily forbidden.”483 The “other methods” that His Lordship was referring to was the proof of that confession by oral evidence. (c) The above decision of the Privy Council was quoted with approval by the Supreme Court in Shiv Bahadur Singh v VP, AIR 1954 SC 322.484 (d) In the UP v Singhara Singh, AIR 1964 SC 358, Sarkar J, as he then was, held that a confession recorded without compliance with section 164 will not be admissible and observed: ...if a statute had conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provisions might as well not have been enacted.

After referring to Nazir Ahmad and Shiv Bahadur Singh cases, His Lordship said that the Supreme Court has “found no reason to take a different view.”

Page 10 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. (e) The Law Commission of India has also opined that Nazir Ahmad was rightly decided and proposed an amendment to section 29 to the following effect: “Exception: Nothing in this section shall affect the provisions of sub-section (2) of S. 164 of the Code of the Criminal Procedure, 1973 as to the recording of confessions by Magistrates.”485 (f)

However, in Dagdu v Maharashtra, AIR 1977 SC 1579, a three-judge Bench of the Supreme Court has taken a view that was totally against the earlier precedents. In that case, the Supreme Court found that the Magistrate who recorded the confession “was blissfully unaware of the stringent responsibilities cast by law” and there was nothing on record to show that the Magistrate tried to ascertain whether (a) the accused was making the confession voluntarily, (b) any incentives were offered by the police to the accused, (c) how long the accused was in custody, and (d) where the accused went when he was given time for reflection. The Court found “glaring infirmities” as the Magistrate recorded the confession “mechanically”. Nevertheless, the Supreme Court, speaking through Chandrachud J, as he then was, held that, as “Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act”, so long as the confession did not contravene the provisions of sections 24-28 “it will be admissible in evidence” even if section 164 of CrPC, 1973 has not been complied with.486 However, the Court added a rider by stating that, if the circumstances in which the confession was made cast doubts on its voluntariness or veracity, “the Court may refuse to act upon the confession even if it is admissible in evidence.”

It is submitted, with respect, that (a) firstly, a confession irregularly recorded under section 164 of CrPC, 1973 cannot be considered not to have contravened the provisions of section 26 as it is now settled law that the confession is saved under section 26 only if it is recorded by the Magistrate in accordance with the provisions of section 164, CrPC, 1973. If the confession was recorded in contravention of the mandatory provisions of section 164, it cannot be considered to have been “duly” made within the meaning of section 463 of CrPC, 1973487 and, hence, the confession cannot be saved by section 26; (b) secondly, that the Magistrate did not give the statutory warnings to the accused or failed to ascertain whether the accused was making the confession voluntarily or to append a certificate as required under section 164 are themselves critical and conclusive factors that throw doubts on the voluntariness and veracity of the confession; and (3) thirdly, by treating an irregularly recorded confession as admissible, the Court is throwing on the accused an impossible burden of proof to establish that he was subjected to oppression. It is respectfully submitted that section 463 of CrPC, 1973 expressly provides for a situation where the confession has been recorded by a Magistrate without complying with the provisions of section 164. The section which is placed in the Chapter XXXV on “Irregular Proceedings” provides: 463. Non-compliance with provisions of section 164 or section 281. (1) If any court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to courts of appeal, reference and revision.

Thus, the section applies to cases where after the confession is tendered and received in evidence by a court, it finds that the provisions of section 164 have not been complied with by the Magistrate, the court has to take evidence in regard to such non-compliance.488 In other words, the court has to hold a voir dire to ascertain whether the non-compliance has prejudiced the accused in his defence on the merits and whether the confession was duly made.489 The non-compliance could be of two types: (a) The Magistrate might have, in fact, administered the warnings to the accused but might have failed to record that he gave the warnings; or (b) the Magistrate might not have administered the warnings at all. In the case of the former, the irregularity is curable as the accused would not in any way be “injured in his defence on the merits” as, from his point of view, the purpose of the statutory warning has been substantially served490. But in the case of the latter type of non-compliance, the irregularity is incurable, and the confession cannot be admitted, as the accused cannot be considered to have “duly made” the confession as required by section 463.491 It was also held that where the Magistrate does not append a certificate that the confession is voluntary as required under section 164 (3), the irregularity is fatal.492

Page 11 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. However, in the case of Kehar Singh v State, AIR 1988 SC 1883, the Supreme Court restored the position earlier to Dagdu case by holding that a confession will be admissible in evidence under section 26 of the Evidence Act, 1872 only if it is recorded in compliance with the mandatory provisions of section 164 of CrPC, 1973 and, if there are any irregularities in the recording of the confession, the confession will be admissible only if the irregularities are curable under section 463 of CrPC, 1973 and not otherwise. In Shivappa v State of Karnataka, (1995) 2 SCC 76, the Supreme Court observed: Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its noncompliance goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

In Rabindra Kumar Pal at Dara Singh v Republic of India, (2011) 2 SCC 490, the Supreme Court reiterated the opinion that “the provisions of Section 164 Cr PC must be complied with not only in form, but in essence.”

440 Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al, Eds, vol 1, New Delhi, 1993, p 513. 441 See also, Emperor v Jamuna, AIR 1947 Pat. 305; Rangappa Hanamappa v State, AIR 1954 Bom. 285; Murugan v TN, 1991 Cr LJ 1680; Sarkar, vol 1, p 513. 442 Wigmore, Evidence, McNaughten’s Revision, 1961, vol 8, Article 2176. Also, J B Dawson, “Exclusion of Unlawfully Obtained Evidence”, 31 International and Comparative Law Quarterly, p 513. 443 R v Leatham, (1861) 8 Cox C.C. 498, p 239. 444 Chief Justice Taft, speaking for the Court, stated: “The common law rule is that the admissibility of evidence, is not affected by the illegality of the means by which it was obtained.... Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to exclude evidence the admission of which is not unconstitutional because unethically secured.” Olmstead v United States, 277 U.S. 438 (1928). Brandies, Butler and Stone JJ dissented. Brandies, in his opinion that became a classic, said: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Holmes in a separate concurring opinion entered a caveat that “the Government ought not to use evidence obtained and only obtainable by a criminal act.” 445 Sections 14 and 15 of the Nigerian Evidence Act, 2011 also contain similar balancing provisions. See, Justice Abiodun Akinyemi, “The Evidence Act 2011—An Appraisal”, A Paper Presented At The Ogun State Bar And Bench Forum, on Thursday, 11 July 2013 at Cultural Centre, Abeokuta, Nigeria; and Stephen Oluwaseun Oke, “The Nigerian law on the admissibility of illegally obtained evidence: a step further in reform”, Commonwealth Law Bulletin, 2014, vol 40, No 1, 3–16, http://dx.doi.org/10.1080/03050718.2013.827582 (last accessed in April 2019). The 2011 Act which repealed and recast the earlier 2004 Act still contains many provisions similar to Indian Evidence Act, 1872. 446 The phrase “fruit of the poisonous tree” was first used in Nardone v United States, 308 U.S. 338 : 60 S. Ct. 266 : 84 L. Ed. 307 (1939). 447 In Selvi v Karnataka, (2010) 7 SCC 263, the Supreme Court observed: “The doctrine of excluding the `fruits of a poisonous tree’ has been incorporated in sections 24, 25 and 26 of the Indian Evidence Act, 1872.” 448 Justices Holmes, Brandeis, Butler and Chief Justice Stone dissenting. In his Dissenting opinion Holmes, J, said: “it is a less evil that some criminals should escape than that the Government should play an ignoble part.” 449 In his dissenting opinion Justice Felix Frankfurter said: “The law of this Court ought not to be open to the just charge of having been dictated by the ‘odious doctrine,’ as Mr. Justice Brandeis called it, that the end justifies reprehensible means. To approve legally what we disapprove morally, on the ground of practical convenience, is to yield to a shortsighted view of practicality. It derives from a preoccupation with what is episodic and a disregard of long-run consequences.” 450 The Court opined that “By the same token, our cases make clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence. Suppression is not justified unless ‘the challenged evidence is in some sense the product of illegal governmental activity.’” 451 Nardone v United States, 308 U.S. 338 : 60 S. Ct. 266 : 84 L. Ed. 307 (1939). 452 Segura v United States, 468 U.S. 796 (1984). 453 See, Eoin Carolan, “Surveillance and Individual’s Expectation of Privacy under the Fourth Amendment”, [2012] Cabridge Law Journal, vol. 71, Part 2, July 2012, pp 250–254.

Page 12 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. 454 Mincey v Arizona, 437 U.S. 385, 392 : 98 S. Ct. 2408, 2413 : 57 L. Ed. 2d 290 (1978). 455 Also, Pooran Mal v Director of Inspection (Investigation) of Income Tax, (1974) 1 SCC 345. 456 See the 94th Report of 1983, p 37. Section 30 (2) of New Zealand dealing with “Improperly Obtained Evidence” confers such discretion on the judge and provides: “The Judge must—(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and (b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” 457 Umesh Kumar v AP, (2013) 10 SCC 591. Yusufalli Esmail Nagree v Maharashtra, AIR 1968 SC 147 : 1967 SCR (3) 720; Magraj Patodia v R K Birla, 1970 (2) SCC 888; R M Malkani v Maharashtra, AIR 1973 SC 157 : 1973 SCR (2) 417; Pooran Mal v Director of Inspection, Income-Tax, New Delhi, AIR 1974 SC 348 : 1974 SCR (2) 704; and State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600. 458 Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al, Edns vol 1, New Delhi, 1993, p 513. 459 Chamberlayne’s Evidence, p 1538 quoted in Basu’s Law of Evidence, 6th Edn, by P M Bakshi, Ed, New Delhi, 1998, vol 2, p 1032. 460 A turnkey is the jailer who is the keeper of the keys of the prison. 461 Rex v Derrington, (1826) 2 C & P 418. Phipson says that “it is doubtful whether these cases would now be followed in England and Wales...” footnote 4 above, p 331, para 799. 462 R. v Ali, The times, 19 February 1991 (CA). 463 R. v Katz, (1990) 90 Cr.App.R. 456 (CA). 464 Queen v Sageena, (1867) 7 W.R.(Cr) 56. 465 R. v Effik, (1994) 3 All ER 458. 466 Orin Kerr, Symposium: Carpenter and the eyewitness rule, Scotus Blog (4 August 2017, 1:39 PM), http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/ (last accessed in April 2019). 467 Olmstead v United States, 277 U.S. 438; Goldman v United States, 316 U.S. 129. 468 See also the discussion under the heading “United States: “Fruits of the Poisonous Tree” Doctrine”, above. 469 Maha v State, AIR 1976 SC 449. 470 Suseela v State, 1982 Cr LJ 702, at p 705. 471 ‘Mr. Big B’, also known as the Canadian technique, is a covert investigation technique used with success since 1990 by undercover police investigators in some parts of Canada and Australia to gather confessions for prosecution. 472 The Court said that the public could have been kept out of Court, but the testimony could have been heard by the public through electronic arrangements. 473 R v Hart, 2014 SCC 52, paras 4, 5, and 10. 474 R v Mack, 2014 SCC 58, para 43. 475 Eskridge v S, 25 Ala. 33; Jeffereds v People, 5 Park Cr. (New York) 522. 476 This offence covers not only questions put by courts but also police officers under section 161 of CrPC, 1973. 477 See sections 228 (2), 240 (2) and 251. 478 In Rabindra Kumar Pal at Dara Singh v Republic of India, (2011) 1 SCR 929, at pp 980-982, para 29, the Supreme Court laid down detailed guidelines for recording confession under section 164, CrPC, 1973. In Shivappa v Karnataka, (1995) 2 SCC 76, the Apex Court said: “Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.” An instance of such High Court Rules are: The Andhra Pradesh Criminal Rules of Practice and Circular Orders, 1990 prescribe the following procedure for the confessions to be recorded under section 164, CrPC, 1973. 16. Confessions: (1)

No confession shall be recorded unless; (a)

the Magistrate has explained to the accused that he is under no obligation at all to answer any question and that he is free to speak or refrain from speaking as he pleases; and

(b)

The Magistrate has warned the accused person that it is not intended to make him an approver and that anything said by him will be taken down and thereafter be used against him.

Page 13 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. (2)

Before recording a statement, the Magistrate shall question the accused in order to ascertain the exact circumstances in which his confession is made and the extent to which the Police have has relations with the accused before the confession is made. The Magistrate may usefully put the following questions to the accused:— (a)

When did the police first question you?

(b)

How often were you questioned by the Police?

(c)

Were you detained anywhere by the Police before you were taken formally into custody, and if so, in what circumstances?

(d)

Were you urged by the police to make a confession?

(e)

Have the statement you are going to make been induced by any ill-treatment? And if so, by Whom?

(f)

Do you understand that the statement which you are about to make may be used against you at your trial?

These questions and any others which may suggest themselves and the answers to them shall be recorded by the Magistrate before the records the accused’s statement and shall be appended to the Memorandum prescribed by Sec. 164 (3) of the Code of Criminal Procedure. The Magistrate shall add to the Memorandum a statement in his own hand of the grounds on which he believes that the confession is voluntary and shall note the precautions which he took to remove the accused from the influence of the police and the time given to the accused for reflection. (3)

If the Magistrate has any doubt whether the accused is going to speak voluntarily, he may, if he thinks fit, remand him to a sub-Jail, before recording the statement; and ordinarily the accused shall be withdrawn from the custody of the Police for 24 hour before his statement is recorded. When it is no possible or expedient to allow so long a time as 24 hours, the Magistrate shall allow the accused at least a few hours for reflection.

(4)

The statement of the accused shall not be recorded, not shall the warning prescribed in paragraph 1 of this Rule be given nor shall the questions prescribed in paragraph (2) of the Rule be asked in the presence of a co-accused or of the police officers who have arrested him or produced him before the Magistrate or who have investigated the case.

479 Mohammed Ajmal Mohammad Amir Kasab at Abu Mujahid v Maharashtra, AIR 2012 SC 3565, para 478. 480 State by the Inspector of Police, Coimbatore v Manoharan, Criminal Appeal No. 854 of 2012: in Referred Trial No.1/2012l. 481 Emperor v Ramnath, (1925) 26 Bom LR 111. 482 Nazir Ahmad v King Emperor, AIR 1936 PC 253, para 12. 483 Nazir Ahmad v King Emperor, AIR 1936 PC 253, para 11. Also Taylor v Taylor, 1876 1 Ch. D. 426, 431. 484 Also, Sarvan Singh v State of Punjab, AIR 1957 SC 637; Deep Chand v State of Rajasthan, AIR 1961 SC 1527. 485 The Law Commission of India, 69th Report on Evidence Act, p 222, para 11.74. 486 Dagdu v Maharashtra, AIR1977 SC 1579, p 1590, paras 49–50. 487 The Law Commission of India has observed: “One has to distinguish between two questions, (i) whether the confession or other statement was ‘duly made’, that is to say, made after the necessary warning giving and after putting the required questions under section 164, and (ii) whether the confession duly made was properly recorded.” The 41st Report on the Criminal Procedure Code, 1898, 1969, vol 1, pp 350–351, para 45.6. Also, UP v Singhara Singh, AIR 1964 SC 358 : (1964) 4 SCR 385, at p 362. 488 In Nazir Ahmad v King Emperor, AIR 1936 PC 253, para 9, the Privy Council held that as in that case the Magistrate gave oral evidence as to the confession made to him and did not purport to record the confession under section 164, the question whether the irregularities of non-compliance with section 164 could be cured under section 463 (section 533 of CrPC of 1898) did not arise and the Privy Council declined to express any opinion as to the matter. 489 In Willis (Williams) Slaney v MP, AIR 1956 SC 116 : 1955 SCR (2) 1140, Justice Imam said: “I would point out that the provisions of the Criminal Procedure Code are meant to be obeyed. Where the contravention is substantial and a retrial becomes necessary, public time is wasted and the accused is put to unnecessary harassment and expense.” 490 Ram Singh v Sonia, AIR 2007 SC 1218. 491 Chinna Gowda v Mysore, 1963 (2) SCR 517. 492 Chandran v TN, AIR 1978 SC 1574.

Page 14 of 14 6.15 SECTION 29: CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC.

End of Document

6.16 SECTION 30: CONFESSION OF CO-ACCUSED Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VI RELEVANT FACTS—III > Sections 24 to 30: Confessions

VI RELEVANT FACTS—III Sections 24 to 30: Confessions

6.16 SECTION 30: CONFESSION OF CO-ACCUSED 30. Consideration of proved confession affecting person making it and others 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. Explanation.—“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.

6.16.1 Rationale of Section 30 Under the traditional law, a confession made by a person can be proved only against him and not against others and even this is an exception to the hearsay rule. Section 30 extends the rule even further and makes one person’s confession relevant as against others under the circumstances mentioned in the section.493 Section 30 introduces an innovation and a departure from the English law494 and also from the pre-existing Indian law on the subject.495 Sir James Fitzjames Stephen said:496 “Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.” Lord Steyn observed in R v Hayter, (2005) UKHL 6, p 7, that “A confession is, however, generally inadmissible against any other person implicated in the confession.” Again in Williams v R, (2014) EWCA Crim 1862, para 54. (Emphasis in the original), the court of appeal of England held that “an out-ofcourt confession or admission is an exception to the common law hearsay rule only to the extent that it is to be used against the person who made it.” In Rabindra Kumar Pal @ Dara Singh v Republic of India, (2011) 2 SCC 490, (well known as Graham Staines murder case), the Supreme Court observed: It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute.

Section 10 dealing with proof of conspiracy also adopts this extended principle in cases where two or more persons have entered into a conspiracy, and permits proof of what one person has said, done or written not only against him but also against the co-conspirators. But, under section 10 there must be a reasonable ground to believe, on the

Page 2 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED basis of some evidence, that there was a prior meeting of the minds between the accused to enter into conspiracy. Again, under section 10 whatever is stated by a conspirator can be proved against other conspirators though the statement does not amount to a confession whereas under section 30 the statement of the co-accused must amount to a confession. In Bhuboni Sahu v The King, (1949) 51 Bom LR 955, Beaumont J said: “It will be noticed that the section applies to confessions, and not to statements which do not admit the guilt of the confessing party.”497 The principle behind section 30 was explained by Phear J, in Queen v Belat Ali, (1873) 19 W.R. 67, as follows: It seems to me that it is the implication of himself by the confessing person which is intended by the Legislature to take the place, as it were, of the sanction of an oath, or rather which is supposed to serve as some guarantee for the truth of the accusation against the other.

West J, observed in Empress v Dajt Narsu, 6 Bomb. 288, p 291: Where a person admits to the guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth, and the Legislature provides that his statement may be considered against his fellow prisoners charged with the same crime.

In an exposition of the rationale of section 30 which is considered as a classic,498 in Bhuboni Sahu v R, AIR 1949 PC 257 : (1949) 51 Bom LR 955, Sir John Beaumont speaking for five Law Lords of the Privy Council stated: Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of `evidence’ contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that 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 element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.

In Hari Charan Kurmi And Jogia Hajam v Bihar, AIR 1964 SC 1184 : 1964 SCR (6) 623, the Supreme Court stated: The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to ‘a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrue, and so, s. 30 provides that such a confession may be taken into consideration even against a coaccused who is being tried along with the maker of the confession.

Thus, the basis of the section seems to be that when a person has made a confession, though not on oath, fully implicating himself, the confession “operates as a sort of sanction, which to some extent takes the sanction of an oath and affords a guarantee that the whole statement is a true one.”499 The basis of admitting confession against the maker as an exception to the hearsay rule is the assumption that a person would not admit to his guilt unless it is true, and section 30 takes the next step and provides that if the confession is taken as true against the maker, it could be taken as true against the others implicated with him. 6.16.1.1 Criticism However, the section has attracted vehement criticism. Under English rule of common law, a confession of an accused could be proved as against him and not against the co-accused500. In Re Lilaram Gangamal, 81 Ind. Cases 817, Coutstrotter J, trenchantly remarked: I have always thought that, that was a most unsatisfactory section and was a needless tampering with the wholesome rule

Page 3 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED of English law that, confession is only evidence against the person who makes it.

Learned judges and commentators pointed out that the basic assumptions of the section suffer from practical deficiencies: •

“On the whole, this section has introduced an innovation of a very serious character which is liable to cause miscarriage of justice if not properly understood and applied.”501

•

It is said that the section has introduced a “rather dangerous element”502 and “dangerous material”.503

•

Confession is not taken as a guarantee of truth even as against the maker himself and to extend it against another person “is a wide step”.504

•

It does not follow necessarily that, because the confession is true regarding the maker, it should be true against others also.505

•

“The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on several occasions, and it is very difficult for the Court to guard against the danger.”506 This seems to be true of dying declarations also.

•

Most confessions are not made out of genuine remorse. The confession is not made under oath nor is its maker “confronted” and tested by cross-examination.

•

“Self-implication may be a substitute for oath but it is not an adequate substitute for cross examination.”507

•

“Such a confession is, of course, in the highest degree suspicious.”508

•

The Law Commission of India (1977) recommended the repeal of section 30.509

6.16.1.2 Is Section 30 an Exception to Sections 24, 25 and 26? If a confession of the co-accused is hit by sections 24 to 26 and is not saved by any of the exceptions, it would be untenable to treat section 30 as an unstated exception and admit it even for the limited purpose of the Court “taking it into consideration”. In Santosh alias Neta Khatik v UP, 2016 (92) ACC 168, para 35, the Allahabad High Court has rightly held: the confession of co-accused cannot be made basis for conviction. The reason behind is that the said confession was recorded by the police officer while the maker was in police custody. The second reason is that the accused has no opportunity to test the same through cross-examination nor evidence of such maker of the confession is recorded in his presence.

It is submitted that not only that a confession of the co-accused covered by section 30 “cannot be made basis for conviction” if it is hit by section 26 as held by the Court above, but such a confession should also be treated as inadmissible if it is hit by sections 24 to 26 and not saved by any of the exceptions. 6.16.1.3 Position in England Under section 76 (1) of PACE Act of 1984510: In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings.

Thus, the above provision permits proof of confession made by a person as against himself but not as against the co-accused. On the other hand, section 76A expressly provides for proof of confession of an accused for the coaccused and states: 76A Confessions may be given in evidence for co-accusedE+W+S+N.I.

Page 4 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED (1)

In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2)

If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession (notwithstanding that it may be true) was not so obtained.

(3)

Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above to be proved in the proceedings on the balance of probabilities.

Section 53 (4) of Youth Justice and Criminal Evidence Act 1999 provides: (4)

A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

(5)

In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).

As Adrian Keane, a noted author, points out, the confession of the co-accused is admitted under English law only under two situations. He states: In two exceptional situations, a confession may be admitted not only as evidence against its maker but also as evidence against a co-accused implicated thereby. The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it.511

The first exception is, in fact, no exception at all as the co-accused has to own up the confession wholly or in part.512 The second exception is same as that of section 10 of the Indian Evidence Act, 1872. The upshot of the position is that English law does not have a rule on par with section 30 of the Act, either under common law or under the statutes.513 6.16.1.4 Appraisal—Section 30, Section 10 and Common Law As was discussed above, under English Common Law as well as statue law, a confession made by an accused cannot be used as against a co-accused except in the case of conspiracy because of the prior agreement and the principle of agency. Under Indian law, apart from the case of conspiracy under section 10, a confession can be used against the co-accused under section 30 in the case of joint trial. 6.16.2 Ingredients of section 30 James Fitzjames Stephen seems to have been well aware of the trapdoors of the principle underlying section 30 and the essential elements of the section show that some safeguards were sought to be built into it. 1. “When more persons than one are being tried jointly for the same offence” 2. “a confession made by one of such persons affecting himself and some other of such persons is proved” 3. “the Court may take into consideration”

Page 5 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED 4. “as against such other person as well as against the person who makes such confession”. 6.16.2.1 When more persons than one are being tried jointly for the same offence.514 a) “Tried jointly” While section 10 employs the words “two or more persons”, section 30 requires “more persons than one” but the meaning is the same. Section 30 stipulates that they should be tried jointly for the same offence and the Explanation to the section says: “‘Offence’ as used in this section, includes the abetment of, or attempt to commit, the offence.” In this context a distinction must be made between “trial for more than one offence” “so connected together as to form the same transaction” and committed “by the same person” under section 220, CrPC, 1973 and joint trial of persons who “may be charged and tried together” under section 223, CrPC, 1973; under the former the joint trial is of plurality of offences committed “by the same person” and under the latter the joint trial is that of plurality of the offenders for “the same offence committed in the course of the same transaction”.515 Section 30 speaks of the latter and not the former.516 Hence, at the point of time the trial has commenced,517 there must be at least two accused charged with the same offence. In Birichh Bhuian v Bihar, (1963) Supp. 2 SCR 328, Subba Rao J, as His Lordship then was, held that “a charge is a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him.” It has also been held that “Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the normal rule to be followed in every case.”518 In Essar Teleholdings Ltd v Central Bureau of Investigation, 2015 (7) Supreme 178 : (2016) 1 SCC (Cr) 1: (2015) SCC 562,519 it was held that section 223 “embodies the general mandatory rule providing for a separate charge for every distinct offence and for separate trial for every such charge. The broad object underlying the general rule seems to be to give to the accused a notice of the precise accusation and to save him from being embarrassed in his defence by the confusion which is likely to result from lumping together in a single charge, distinct offences and from combining several charges at one trial. As the Court held, there are exceptions to this rule as in the case of section 233 which embraces “cases in which one trial for more than one offence is not considered likely to embarrass or prejudice the accused in his defence.” The matter of joinder of charges is, however, in the general discretion of the court and the principal consideration controlling the judicial exercise of this discretion should be to avoid embarrassment to the defence by joinder of charges.520 The Supreme Court has held that the Magistrate is vested with the discretion to hold or not to hold a joint trial depending upon whether the accused are prejudiced thereby. In Essar Teleholdings Ltd v Central Bureau of Investigation, 2015 (7) Supreme 178 : (2016) 1 SCC (Cri) 1 : (2015) SCC 562, the Apex Court held: From the reading of Sections 220 and 223 [CrPC], it is clear that a discretion is vested with the Court to order a joint trial. a Court may not deem it desirable to conduct a joint trial, even if conditions of these Sections are satisfied, though not satisfied in the instant case, that is: a) when joint trial would prolong the trial; b) cause unnecessary wastage of judicial time; and c) confuse or cause prejudice to the accused, who had taken part only in some minor offence.521

Thus, the application of section 30 depends on the fortuitous circumstance of whether or not the Court exercises its discretion to hold a joint trial. Section 223 of Cr PC, 1973 refers to “what persons may be charged jointly” and provides that “persons may be charged and tried together” if they are, inter alia, (a) persons accused of the same offence committed in the course of the same transaction” and (b) “persons accused of an offence and persons accused of abetment of, or an attempt to commit, such offence”. Thus, clauses (a) and (b) of section 223 of CrPC, 1973 exactly cover the requirements of section 30 of Evidence Act, 1872. Under the proviso to section 308 of CrPC, 1973 where a co-accused has turned an approver on the tender and acceptance of pardon under sections 306 or 307 but he has not complied with the conditions of pardon, such a person “shall not be tried jointly with any of the other accused.” Judicial interpretation of the above provision regarding joint trial has brought out some important facets: •

If for any reason the accused who made the confession cannot be jointly tried with the other accomplices, the confession cannot be used against such other accomplices.

•

Where the accused pleads guilty and the plea is accepted by the Court and he is convicted, he cannot be said to be jointly tried with other accused who are facing trial.522

•

But, where the accused pleads guilty under, for instance, section 229 or 241 or 252 of CrPC, 1973, the Court has the discretion not to accept the plea and order the trial to proceed. In such a case, the confession made by the accused who pleaded guilty can be used under section 30.523

Page 6 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED •

However, it will be unfair for the Court to defer conviction of the accused pleading guilty only in order that his confession could be used against other accused.524

•

Under sections 227, 239, 245 (1) and (2) of Cr PC, 1973, where an accused has been discharged by the Court for lack of evidence, his confession cannot be used against the other accused facing the trial.525

•

Where the accused died before the commencement of the trial, the confession made by him cannot be used against the other accused as there is no joint trial as far as the dead accused is concerned.526 But where the accused died during the course of the joint trial and after his confession has been proved, it was held that the confession could be used under section 30.527

•

As section 30 requires that the confession of the co-accused must be “proved”, it is said that the confession must have been made earlier to trial and not during the course of the trial.528

•

Even a retracted confession by a co-accused was treated as admissible as against the co-accused “if after such scrutiny they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him.”529

Section 30 Interface with section 10 There are some noteworthy features common to both section 10 and section 30 which can be compared and contrasted. 1. Both the sections deal with plurality of offenders. 2. Under both the sections confessions made by one can be used against the other accused. 3. Section 30 deals only with confessions of the co-accused while section 10 deals with whatever was said done or written by any of the accused. 4. Under section 10 things said, done etc by one accused are “relevant” as against him and also against the other accused. Under section 30 the confession by one accused can be taken “into consideration” against him as well as against other accused. 5. Section 10 will trigger joint and several liability only when the prosecution has established to the satisfaction of the Court that there is a “reasonable ground to believe” in the existence of a conspiracy. Section 30 comes into play when two or more persons are “jointly tried for the same offence” If in a given case the co-conspirator has made a confession within the meaning of section 10, can it be used against the other conspirators under section 30 if they are jointly tried for the same offence? In McDonald v The Queen, (1960) SCR 186, Martland J, of Supreme Court of Canada observed: It is true that on a charge of conspiracy the acts and declarations of each conspirator in furtherance of the common object are admissible in evidence as against the rest... The rule is, however, one which determines the admissibility of evidence as against a person who is a party to legal proceedings.

Justice Martland’s observation clearly implies that the confession made by a conspirator is “admissible” in evidence as against another accused “who is a party to legal proceedings.” As applied to Indian law will the above principle mean that under section 10 for a confession to be relevant the conspirators must all be jointly tried as under section 30? Does section 30 control section 10 to the extent of relevance of confession? First, section 10 can be applied only if there is already a reasonable ground to believe that conspiracy exists and such belief must be based on other evidence, and cannot be based on the sole confessional statement of the accused recorded under section 164, CrPC, 1973.530 Again, in a conspiracy case, all the accused can be jointly charged for conspiracy but may be charged separately for different substantive offences. In Regina v Sweetland, (1957) 42 Cr. App. R. 62, p 66,531 Goddard LCJ held that there is nothing inconsistent in acquitting the accused of conspiracy and convicting of the substantive offence, and vice versa. “Death Abates Trial”? —Important Issues In civil law there is the maxim action personalis moritur cum persona—personal actions die with the person. Civil actions like tort are wrongs against a person, while crimes are considered to be wrongs against the society at large. In Civil Law no plaint can be filed against a dead person nor a decree be passed against a dead person, and in

Page 7 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED Criminal Law it is said that the trial against a dead accused ‘abates’. In Keshar Singh v Bihar, (2013), para 40 the Patna High Court observed: “though the word abatement has not been defined but in a general parlance abatement means termination of proceeding before decision of case on merit. In the context of criminal proceeding abatement cannot have any other meaning then it will be a termination of proceeding without decision on merit.” A criminal trial as well as conviction and award of corporal punishment to the accused will abate because “dead persons are beyond the processes of human tribunal”532 and the punishment becomes “infructuous”533 as there will be none to receive it. In effect, a criminal proceeding against a dead person is as untenable as a proceeding against a nonexistent person. Then, if in a case of joint trial under section 30, one of the accused dies what will be the impact on that trial? In Haroon Haji Abdulla v Maharashtra, 1968 AIR 832 : 1968 SCR (2) 641, Justice Hidayatullah, referring to the confessions made in that case pointed out: As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must be specially scrutinised to finding out if they were made under threat or promise from some, one in authority. If after such scrutiny they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him. Section 30 of the Evidence Act does not limit itself to confessions made to Magistrates, nor do the earlier sections do so, and hence there is no bar to its proper application to the statements such as we have here.

The learned justice dealt with the issue of the death of one of the co-accused and held: Of course, the confession of a person who is dead and has never been brought for trial is not admissible under S. 30 which insists upon a joint trial.... Both Bengali and Noor Mohammad were jointly tried with Haroon right to the end and all that remained to be done was to pronounce judgment. Although Bengali was convicted by the judgment, the case was held abated against him after his death.

Thus, though the death of Bengali resulted in abatement “of the case” against him, as the death occurred after the conclusion of the entire joint trial, the requirements of section 30 were complied with. The interesting question is: what is the effect of death of an accused on the joint trial when there are only two coaccused? In Ram Sarup Singh v Emperor, AIR 1937 Cal 39, J was put on his trial along with L and the trial proceeded for about a year, and about six months before the delivery of judgment, J died. Before his death J’s confession had been put on the record. The Sessions judge held that as J died after the trial and after his confession was taken on record, the confession was admissible under section 30 as “substantive” evidence against L and held him guilty on that sole basis. Mitter J, of Calcutta High Court, held that while the Sessions judge was right in concluding that the confession was admissible under section 30, he was wrong in treating it as reliable substantive evidence as the sole basis of conviction. Henderson J, concurred with Mitter J that the Sessions judge “treated that confession in a way which is not warranted by Section 30” and set aside the conviction of L but did “not think it necessary to express any opinion on the point whether in view of the death of Julai during the trial his confession could be used at all.” As Justice Hidayatullah said in Haroon Haji Abdullah, Henderson J was “dubitante”534 on that issue and His Lordship was perhaps reluctant to express an opinion because the test for deciding whether the trial was concluded is not how long the trial has proceeded but whether the entire evidence has been received from all parties and the oral arguments also have been completed. In the case of Karnataka v Selvi J Jayalalitha,535 the Supreme Court held: However, though in the process of scrutiny of the facts and the law involved and the inextricable nexus of A1 with A2 to A4, reference to her role as well as the evidence pertaining to her had been made, she having expired meanwhile, the appeals, so far as those relate to her stand abated. Nevertheless, to reiterate, having regard to the fact that the charge framed against A2 to A4 is proved, the conviction and sentence recorded against them by the Trial Court is restored in full including the consequential directions.

As is evident from the above observations of the Apex Court, in Jayalalitha case the case against her abated at the appellate stage in the Supreme Court, as the trial has already been concluded and convictions and award of punishments made by the trial court and overturned by the high court, the case has little relevance to section 30.536

Page 8 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED Does it mean that the offence committed by the dead accused is simply erased as if it was never committed? This ‘seminal question’ was considered by the Madras High Court in- State by the Inspector of Police, Coimbatore v Manoharan, 2014 (2) Mad LJ (Cr) 1. Section 256 (2), CrPC, 1973 empowers a Magistrate in a summons case to acquit the accused on the death of the complainant. Section 394, CrPC, 1973537 is the only section in the Code which provides for abatement of appeal on the death of the accused.538 The Code of Criminal Procedure nowhere postulates abatement of accusation against a dead person for the crime committed by him vis-a-vis the victim. This is so for valid reasons: (a) Suppose, A1 to A5 form an unlawful assembly and in prosecution of the common object of the assembly, A1 hacks B to death. During the course of investigation A1 dies of heart attack. Cannot the Police file a final report against A2 to A5 for the offence under section 302, r/w 149, IPC, 1860 showing A1 also in the array of accused? The Magistrate should take cognisance of the offence under section 190, CrPC, 1973 and conduct an inquiry and give a preliminary finding that A1 had died as reported by the police. Thereafter evidence can be adduced in the Sessions Court to show that A1 was part of the unlawful assembly along with A2 to A5 and it was he who had hacked B to death. Only then can A2 to A5 be convicted under section 302, IPC, 1860 with the aid of section 149, IPC, 1860. If we are to hold that no evidence can be adduced against the deceased accused, then A2 to A5 will go scot free. It will lead to absurdity. (b) Suppose, A steals B’s watch. A is arrested and the watch is recovered from him. During investigation, A dies of heart attack. The Police should complete the investigation and file a Final Report before the Magistrate. The Magistrate will not accept the ipsi dixit of Police that A had died. He will conduct an inquiry and at the conclusion of the inquiry he may accept the report and after being satisfied that the watch belongs to B, he can pass orders under Section 452 CrPC returning the watch to B. However, the high court held that though the evidence against the dead accused can be taken into consideration for limited purposes, the court cannot convict A and award punishment in both the above examples.539 However, it is submitted that assuming that there are only two accused in a case under section 120B r/w, for instance section 302, and the principal accused dies by the time the case comes up for trial and the trial against him abates, the evidence available against both the accused showing their joint involvement can be used against the surviving accused and that accused can be convicted and punished under section 302 though he cannot be convicted under section 12B as there are no two accused as required under. Section 120A. In Manoharan’s case, above referred to, Madras High Court observed: Can a final report be filed at all against a dead person and does not the accusation against a dead person abate? Unlike Civil law where no plaint can be filed against a dead person nor a decree be passed against a dead person, the Code of Criminal Procedure nowhere postulates abatement of accusation against a dead person for the crime committed by him visa-vis the victim. The crime cannot abate on the death of the criminal and that is why, time and again, it is stated that the Court under Section 190 Cr.P.C, takes cognizance of the offence and only thereafter, it proceeds to search for the offender.540

The illustrations (a) and (b) to section 30 make it clear that while in (a) confession is admissible against the coaccused, in the case of (b) it is not. Two Interesting Questions (i) Joint Trial of Juvenile and Adult In England an interesting question has arisen in Barker v Leicester Crown Court, (2012) EWHC 4381 (Admin). In that case the court held that if a young defendant is charged jointly with an adult, the case will not be heard in the Youth Court but in the adult Magistrates’ Court. If in that event the adult pleads guilty, there is a sensible and necessary statutory power in section 29 (2) of the Magistrates’ Courts Act, 1980 enabling the adult Magistrates’ Court to remit the remaining young defendant to the Youth Court to be dealt with there. That is where he ought to be tried and, if necessary, sentenced. In the sensational “Nirbhaya” rape and murder case involving adult and juvenile accused, the Supreme Court said that the sixth juvenile accused cannot face trial with other adult accused in the fast track court even if the Juvenile Justice (Care and Protection of Children) Act, 2000 is quashed as violative of the constitution.541 In Pratap Singh v

Page 9 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED Jharkhand, (2005) 3 SCC 551, a Full Bench of five judges of the Supreme Court has held that “the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Board”.542 As mentioned already, section 223 of CrPC, 1973 requires that the accused must be jointly tried for the same offence, and it would imply that they must be jointly tried in the same Court. The Juvenile Justice Act, 2015, provides in section 23: (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child. (2) If during the inquiry by the Board or by the Children’s Court, the person alleged to be in conflict with law is found that he is not a child, such person shall not be tried along with a child. The courts have to clarify the legal position with regard to cases where one of the accused is a juvenile and he is tried in the Juvenile Court while the other adults are tried in regular criminal court and the confession made by of one them is sought to be used against the others under section 30. (ii) Relevance of Confession of Co-accused under section 32 (3) Second question was whether the confessional statement of one of the dead accomplices could be admitted under the later part of section 32 (3): “Or against interest of maker—When the statement is against the pecuniary for 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.” In Nga Po Yin v Emperor, (1906) 5 Cr LJ 300 one PN was tried for the murder of KM and found guilty and sentenced to death and executed before the trial of the appellant Po Yin. One of the issues in the case was whether PN’s statement to the Committing Magistrate that Po Yin had decapitated the victim could be admitted under section 32 (3). The Court of Judicial Commissioner, Upper Burma, held that the statement would be relevant and admissible under section 32 (3) and observed: Section 30 merely enacts a special exception to the general rule that a confession (admission) can be provide proved (only) against the person who made it. It does not limit the operation of section 32. Illustration (b) to section 30 cannot ... be construed to have this effect.

In Mohammad v Emperor, (1925) 26 Cr LJ 1308, p 1313, the statement of a deceased accomplice was held by the Lahore High Court to be admissible under section 32 (3) in so far as it referred to the part which the deceased accomplice had admitted to having taken in the crime. In Haroon Haji Abdulla v Maharashtra, AIR 1968 SC 832 : 1968 SCR (2) 641, Justice Hidayatullah observed that a confession made by the co-accused in a joint trial and died during trial becomes relevant under section 30 read with section 32 (3) when he “was fully tried jointly”. However, in Achhay Lal Singh v Emperor, AIR 1947 Pat. 90, the Patna High Court declined to admit the statement of a dead accomplice under section 32 (3). The Court said that the rationale of section 32 (3) was that the person must have made a self-harming statement rendering him liable to prosecution. But in that case there was already evidence in existence “which would inevitably have led to his prosecution and might by itself have led to his conviction”. However, in Narpat v The State, (1961) 62 Cr LJ 591, the statement of a dacoit implicating his accomplices was admitted under section 32 (3) even though the dacoit had died of gunshot wounds. The Allahabad High Court disagreed with Achhay Lal Singh and stated: It is not necessary to suppose that S. 30 Indian Evidence Act contains the only exception to the rule that a confession can be used only against its maker. ... Another exception is to be found in cl. (3) of Sec. 32 Indian Evidence Act. This clause lays down that, when the statement is likely to expose a person to a criminal prosecution, the statement may be admitted if the maker of the statement is dead. ... A statement admitted under Cl. (3) of Sec. 32, Indian Evidence Act need not be confined to that portion, which exposes the maker to a criminal prosecution. The statement may well extend to connected matters. So such a statement may be admitted in evidence in so far as it implicates accomplices and the maker of the statement.543

Page 10 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED Lee Chez Kee v Public Prosecutor, (2008) 3 Sing. L.R.(R) 447, the Singapore Court of Appeal held that the statement by appellant’s accomplice who had already been sentenced to death after being convicted in an earlier trial for the same murder and was subsequently executed, were wrongly admitted as section 378 (1)(b)(i) of the Singapore Criminal Procedure Code (comparable to section 32 of the Evidence Act, 1872) had to be read together with section 30 of the Evidence Act, 1872 and not independently of it. The Court held: “S. 30 of the Evidence Act contained a positive prohibition against the admission of statements that were confessions made by an accomplice in a separate trial who was not called to testify in the accused person’s trial.”544 b) “For the same offence” Section 211 of Cr PC, 1973 dealing with “Contents of charge” provides, inter alia: (1) Every charge under this code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. ...... (3) The law and the section of the law against which the offence is said to have been committed shall be mentioned in the charge. From the above section it is clear that “charge” means the offence mentioned in a particular section of IPC, 1860 or any other criminal statute. Section 2 (b), Cr PC, 1973, says that “‘charge’ includes any head of charge when the charge contains more heads than one.” In this sense, the word “same offence” under section 30 means the identical offence and not an offence of a similar nature. As observed by Sudershan Reddy J, in Monica Bedi v AP, (2011) 1 SCC 285, the test is to ascertain whether the two offences are the same: it is not the identity of allegations but the identity of allegations of the offences; identical allegations can constitute different offences also.545 Theft and robbery may be similar offences but they are not identical because they do not fall under the same section of IPC, 1860. But the Explanation to section 30 of Evidence Act, 1872 and section 223 (b) of Cr PC, 1973 give a wider connotation to an offence by including in its scope not only the principal offence but also the abetment and the attempt of that offence. IPC, for instance, deals, in some cases like that of murder, in three different sections with (a) the commission of the offence, (b) its abetment and (c) attempt. Hence, where A is accused of the murder of X, and B and C are accused of the offences of abetment and attempt, respectively, of the same murder, they may be charged under different sections as required under section 211 of CrPC, 1973 but they can be tried jointly under section 223 (b) of Cr PC, 1973 for the three offences committed by A, B and C. Hence, the test is not whether the accused committed the offences during the course of the same transaction but whether the offences committed by them fall under the definition of the same offence or its abetment or attempt. Thus, in R v Amrita Givinda, 10 Bom HC 497, where A, B and C were being tried jointly for the offence of murder, abetment and concealing the evidence, respectively, it was held that the confession by C cannot be used against A and B as they were being tried jointly but not for the same offence. The offences of murder (by A) and abetment (by B) would come under the explanation to section 30 but not the offence of concealment of evidence (by C) and it was C’s confession that was sought to be proved against A and B. Though the three offences were committed during the course of the same transaction, C’s offence was different from those of A and B and his confession could not be proved against A and B. In Deputy Legal Remembrancer v Karna Baistobi, (1895) ILR 22 Cal 164, where the accused were being tried jointly for the offences of selling a minor girl for prostitution (section 372, IPC, 1860) and buying a minor for prostitution (section 373), the confession by one could not be used against the other as they are two different substantive offences under IPC, 1860 though they may be related offences. Section 30 and ‘Plea-Bargaining’ under Chapter XXIA of CrPC, 1973 If plea-bargaining by one of the co-accused has been accepted by the Court, can the confession made by him be proved against the other co-accused? Dimitrios Likiardopoulos v The Queen (2012) —Australian High Court

Page 11 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED An interesting question arose in the Australian case of Dimitrios Likiardopoulos v The Queen, (2012) HCA 37, where the appellant and seven others were charged with murder. The Crown had accepted pleas of guilty to lesser offences from each of the other persons said to be the principal offenders. The appellant submitted that in law he could not be an accessory to murder in circumstances in which the there was no “murder” to which he could be an accessory. Alternatively, the appellant submitted that it was an abuse of process for the Director of Public Prosecutions to accept pleas of guilty to lesser offences while prosecuting the appellant as an accessory to murder. The High Court unanimously held that the evidence at the trial was capable of proving that one or more of those whom the appellant directed and encouraged to assault the deceased were liable as principals for the murder. The Court held that there was no inconsistency between the other participants’ convictions for manslaughter and the appellant’s conviction for murder on the accessorial case because the evidence in each case differed. Further, the acceptance of the pleas of guilty to lesser offences involved an exercise of prosecutorial discretion. The Majority held that certain decisions involved in the prosecution process are insusceptible of judicial review. Chapter XXIA of CrPC, 1973 introduced by the Criminal Law (Amendment) Act of 2005 carries the heading “Plea Bargaining”.546 Two important features of Chapter XXIA are noteworthy: (1) section 265A (1)(a) permits pleabargain for offences other than those for which the punishment prescribed is death, life imprisonment547 or imprisonment for a term exceeding seven years548; and (2) under that Chapter, unlike compounding of an offence under section 320, plea-bargain does not result in acquittal.549 Unlike in other Common Law jurisdictions there is no provision under Chapter XXIA for plea bargain for an offence lesser than the charged offence. If one or some of the co-accused being tried jointly for the same offence under section 30 enter into plea-bargain agreement under Chapter XXIA of CrPC, 1973, there will be a conviction for the charged offence and under section 265E, the Court may order payment of compensation to the victim and award, inter alia, 1/2 or 1/4 of the punishment prescribed for that offence, as the case may be, as per clauses (a) to (d). As section 30 requires “joint trial for the same offence” and not identity of punishment of the co-accused, Chapter XXIA, without a provision for charge-bargaining being included, may not affect section 30 though the dynamics of their interoperability can only be worked out by judicial interpretation on the basis of fact-situations. “Confession” The use of the statement by one accused against the other co-accused is permissible under section 30 only when it amounts to a confession that implicates the maker as well as the others. If the statement is only an admission or an exculpatory statement on the part of the accused and throws the entire guilt on to the other accused, such a statement cannot be used under section 30.550 In other words, the statement must amount to a full admission of guilt551 in the sense it has been defined in Pakala Narayana Swamy v Emperor, AIR 1939 PC 47 case. Thus, the term “confession” must be strictly interpreted and it must be an admission of guilt for the offence with which its maker is charged and not some other offence with which the others might have been charged. 6.16.2.2 “Affecting himself and some other of such persons” The above phrase has become the subject of much discussion and clarification in the decided cases. As stated above, while the statement of the accused must amount to a confession against the maker as well as the other coaccused, what should be the degree of culpability that the maker is prepared to take upon himself in comparison to the other accused? Suppose, in a bank robbery case, the accused says: “I was a very reluctant participant in the robbery and I tried to dissuade the others. As they did not heed my advice, I was forced to take part in the crime and I agreed to stand outside the bank just to keep a watch. The others robbed the bank.” Here, the statement amounts to a confession but the accused throws the whole blame on the others and only a little on himself.552 In R v Ganraj, 2 All. 444 (emphasis in the original), Straight J, proposed a test: The test s. 30 intended should be applied to a statement of one prisoner proposed to be used in evidence as against another is, to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried, with the other person or persons against whom it is tendered. In fact to use a popular and well understood phrase, the confessing prisoner must tar himself and the person or persons he implicated, with one and the same brush.

The test of “tarring himself with the same brush with which he tarred others” has been followed in other cases also and the Supreme Court also applied the same principle in Balbir v State, AIR 1957 SC 216, where it held that the

Page 12 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED confession of the co-accused could not be used under section 30 unless it implicated “substantially” the maker as it did the others.553 It is submitted, with respect, that Justice Straight was in fact applying not one but two tests. Firstly, the confession of the maker must be sufficient to convict him and, secondly, the maker must implicate himself to the same extent to which he is implicating others. Both the tests may be open to question. The first test amounts to begging the question because, under that test, the initial question of relevancy of the confession under section 30 as against the co-accused depends on whether the judge has made up his mind on its reliability and on convicting the makeraccused on its basis. Section 30 merely says that the Court “may take into consideration such confession” and not that it should be sufficient to form the basis of conviction against the maker. Secondly, in a particular case, the part played by the confessing accused who is jointly tried might have been, in fact, relatively a smaller one and to reject his confession only on that ground might not serve the purpose with which section 30 has been framed. An interesting question arose In Re Manicka Padayachi, 72 Ind. Cas. 497 : AIR 1921 Mad. 490, where A and B were charged with murder and abetment to murder, respectively, of C by administering a corrosive substance called ‘Vikram’ by mixing it in a tumbler of arrack given to C. A made a confession in which he admitted to have given the arrack with the drug to C not to kill but only to disable C. Later A retracted that confession. A was convicted finally of causing hurt under section 328 (Causing hurt by means of poison, etc. with intent to commit offence) of IPC, 1860. The main question before a three-judge Bench of the Madras High Court was whether the confession of A could be used against B as both were charged for murder and its abetment but not for hurt to which A admitted. Reversing the order of the lower Court that the confession could not be so used, the high court held that “the correct view is clearly that persons under trial for a major offence are also being charged with and tried for any minor offence or offences, constituted by the particular ingredients of the major offence which may be proved”. However, Madras High Court took a different view in Re Periaswamy Moopan, (1930) ILR 54 Mad 75, where the accused stated that it was the other accused who actually killed and that under threat he was compelled to dispose of the body (an offence under section 207, IPC, 1860), and held that the confession could not be used against the co-accused as, under section 30, the confession must relate exactly to the same offence for which the other accused are actually charged. It is submitted, with respect, that section 30 requires that the accused must be tried jointly for the same offence and that the confession should be made “affecting himself and some other of such persons” and not that the confession must be made for the same offence with the same degree of culpability. In Mohammad Sabir v Rex, AIR 1952 All 796, the Allahabad High Court aptly observed: all that is necessary for a confession to be admissible against a co-accused is that the maker should inculpate himself in all the offences in which he implicates the other co-accused, and it is not necessary that he should ascribe to himself as major a part in the commission of the crime as he ascribes to the other co-accused. The explanation to the section makes it clear that an attempt to commit the offence and an abetment of the offence are included in the term ‘offence’. So even if the maker implicates himself only in an attempt to commit, or, in the abetment of, the offence, or a minor part in the commission of the offence, the admissibility of the confession against the other accused is not affected.

6.16.2.3 “The Court may take into consideration such confession” Section 30 merely says that the court may take a confession of the co-accused into consideration. The courts and commentators have observed that the words “may take into consideration” exclude the possibility of the confession being considered as “evidence” within the definition of section 3, or even as “relevant” or “admissible”. As pointed out above, the effort on the part of the courts seems to be to considerably reduce the importance of the confession under section 30 as the section has been held to be a serious departure from English law and from the traditional principle that the confession should be used against the maker and not against others. Sir Lawrence Jenkins observed in Emperor v Lalit Mohan Chuckerbuttv, (1911) ILR 38 Cal 559, p 588, that a confession can only be used to “lend assurance to other evidence against a co-accused”. In Re Peryaswami Moopan, (1913) ILR 54 Mad 75, p 77, Reilly J observed that the provision of section 30 goes not further than this: “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence.” Thus, in Bhoboni Sahu v The King, AIR 1947 PC 357, the Privy Council observed: The confession may be considered by the Court, 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 element in consideration of all the facts proved in the

Page 13 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED case; it can be put in scale and weighed with the other evidence.

The Privy Council said that the confession of the co-accused was “obviously evidence of a weak type” and “it is much weaker type of evidence than the evidence of an approver”. While the approver’s evidence under section 133 is given on oath, in the presence of the accused and tested by cross-examination554, the confession under section 30 does not run that gauntlet.555 In State through Superintendent of Police, CBI/SIT v Nalini, (1999) 5 SCC 253, p 307, the Supreme Court stating that the confession of the co-accused suffered from ‘inherent weaknesses’ proceeded to point out: “First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.” In Hari Charan Kurmi and Jogia Hajam v Bihar, AIR 1964 SC 1184, comparing the confession of the co-accused under section 30 with the evidence of an accomplice under section 133, Gajendragadkar CJ, observed: The testimony of the accomplice is evidence under s. 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars. The statements contained in the confessions of the co- accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. the 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 its conclusion deducible from the said evidence.

In Kashmira Singh v MP, AIR 1952 SC 159, Kashmira Singh and Gurubachan Singh were charged with the murder of a boy called Ramesh. Gurubachan made a confession implicating himself and Kashmira. The prosecution depended entirely on the confession and the testimony of witnesses and the Supreme Court found the circumstantial evidence to be not sufficient to convict the accused. Acquitting the accused, the Supreme Court, echoing the opinion of the Privy Council in Bhuboni Sahu, observed: ...the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence.

It is submitted, with respect that in Bhuboni Sahu the Privy Council did not say that the confession under section 30 is not “evidence” but only said that it is not by itself “proof”. Little purpose is served by insisting that the confession is not ‘evidence’, or that it is not ‘relevant’ or ‘admissible’ under section 30, because, after all, section 30 comes under “Of the Relevancy of Facts” in Chapter II. It should be borne in mind that section 30 says that the confession of the accused may be taken into consideration “as against such other person as well as against the person who makes such confession”. It will be absurd to say that “may take into consideration” means two different things: (a) against the maker it means “evidence” and (b) against the others it is not evidence. As Chief Justice Richard Garth observed in Empress v Ashootosh Chuckerbutty, (1879) 4 Cal. 483: There is no provision in the section by which the confession is to be receivable against one prisoner in one way, and against the other prisoner in another way. But although the section does, in my opinion, make the confession admissible in evidence against either prisoner, the weight which ought to be attached to such evidence, and the question, whether, taken by itself, it is sufficient in point of law to justify a conviction, is a question for the Judge who tries the case.556

Section 30 requires that the confession made by the co-accused must be “proved” before it can be used under the section. It is only the facts which are relevant that can be “duly proved” within the meaning of section 165.The confession will come within the purview of the terms “the matters before it” in the definition of “Proved” in section 3.557 It is true that section 30 does not say that the confession is “proof” as pointed out in Buboni Sahu, but no other section in Chapter II on Relevancy says that about any other relevant evidence. It is submitted that the legal position has been correctly stated by the Full Bench (per Richard Garth CJ) in Empress v Ashootosh Chuckerbutty, (1879) ILR 4 Cal 483, referred to above:

Page 14 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED

I am of opinion that under Section 30 the confession of a prisoner which affects himself and some other prisoner charged with the same offence, becomes, when duly proved, admissible in evidence as against both prisoners, and must he so dealt with by the Court. When this confession has been duly proved, it may, by the express language of the section, be taken into consideration against either prisoner; and I do not see in what other way it can be taken into consideration than as evidence.

Jackson J, a member of the above Full Bench, observed that “the Legislature, in my opinion, has not avoided calling the confession of an accused person ‘evidence’ against a co-prisoner. It has not so called it, because that is not the phraseology of the Act.” According to the learned Judge, “the confession spoken of in section 30 of the Evidence Act, 1872 to put the intention of the Legislature into a common English legal phrase, ‘is evidence’” and “the same general test must be applied to confession by the co-accused as to other kinds of evidence” keeping in view the fact that the confession suffers from the infirmities pointed out by Bhuboni Sahu case referred to above.558 Again, it is sometimes said that the confession of the co-accused is not “substantive” evidence and it can be used only as “corroborative” evidence.559 Even if it is so, the distinction between substantive and corroborative evidence relates to the use to which a piece of evidence may be put but not to its relevancy. The question should, in fact, be whether the confession is corroborated by other evidence and not vice versa. Hence, it would be better that the emphasis is shifted to the evidentiary value of the confession under section 30 from whether the confession is not “evidence” or “proof” or “relevant” or “admissible”. Even section 133 dealing with the evidence of an accomplice says that a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. While the confession under section 30 has its own infirmities vis-à-vis accomplice’s evidence as pointed out above, the accomplice’s evidence, which is given on the promise of pardon and is liable to exaggeration by the accomplice, is not free from taint either. In fact, section 114, illustration (b) cautions that an accomplice is unworthy of credit unless corroborated in material particulars. Hence, the question ultimately is one of credit-worthiness of the confession of a co-accused under section 30 or of an accomplice under section 133 and section 114, illustration (b). Thus, keeping in line with the earlier decisions that tried to play down the importance of a confession under section 30, the Supreme Court focused on the evidentiary value of the confession and observed in Kashmira Singh v State of MP, AIR 1952 SC 159: Where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale560 as an additional reason for believing that evidence....The proper way to approach a case of this kind is, first to marshall 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 capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be stuffiest to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence561 and thus fortify himself in believing that without the aid of the confession he would not be prepared to accept.

6.16.2.4 Applicability of section 30 as against Accused and against Co-accused In State through Superintendent of Police, CBI/SIT v Nalini, (1999) 5 SCC 253, p 307, the Supreme Court stated: “A confession can be used as a relevant evidence against its maker because section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein.” It may be pointed out that section 10 also makes what is said or written by a conspirator relevant as against the co-conspirators irrespective of whether the statement amounts to a confession or not. The confessions relevant under section 10 may also be relevant under section 30 if the conspirators are tried jointly for the same offence, and it is difficult to harmonise the totally conflicting standards of relevancy and proof in overlapping cases under the two sections. However, it should be borne in mind that section 30 applies the same standard of reliability that the confession may only “be taken into consideration” even against the maker himself.562 Confession is the best piece of evidence as against the maker and it is relevant and admissible against the maker under section 18, independently of section 30. Even if the confession is to be treated as having only corroborative value as against the co-accused, why should it not be treated as substantive evidence as against the maker?563 The infirmities of the confession of the co-accused vis-avis the other co-accused are utterly irrelevant as against the maker himself. If the confession is good enough to be

Page 15 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED relied upon to convict the other accused, the courts may say that it is good enough to convict the maker himself. On the other hand, it is possible to envisage a situation where the courts may be prepared to convict the maker of the confession on the basis of his own confession, but let go the other accused, as the confession is supposed to suffer from inherent infirmities as against the latter. It is submitted that, even under section 30, the courts ought to make a distinction between the use of the confession as against the co-accused and its use as against the accused that made the confession. In the light of the above serious difficulties in the interpretation of section 30, the various reservations expressed by the judges and commentators about the rationale of the section and the way the section has come to be interpreted by the Supreme Court following the earlier precedents, serious consideration may be given to the recommendation of the Law Commission of India in its 69th Report to repeal the section. The Commission stated: We are, therefore, of the view that even to the limited use that the confession can be put under the section, is not justifiable, and we recommend that the section be repealed.564

Section 39 provides: What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers.When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

Under the above provision, “when any statement of which evidence is given forms part of a longer statement...evidence shall be given of so much and no more of the statement... as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.” The courts have held that section 39 cannot be relied upon by the prosecution to circumvent section 27 and get inadmissible portions of the confessional statement admitted in the name of getting “full understanding” of the longer statement.565

493 Section 313 (1) Proviso (b) of CrPC, 1973 states that accused’s “failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.” It is interesting to note that no negative inference can be drawn from the silence of one accused against the other co-accused also. 494 See Sarkar’s Law of Evidence, 14th Edn, M C Sarkar et al, Eds, vol 1, New Delhi, 1993, p 522. 495 Basu’s Law of Evidence, 6th Edn, by P M Bakshi, Ed, New Delhi, 1998, vol 2, p 1042. 496 A Digest of the Law of Evidence, 12th Edn (1936), at p 36. 497 Bhuboni Sahu v The King, (1949) 51 Bom LR 955. 498 Rabindra Kr. Pal at Dara Singh v Republic of India, (2011) 2 SCC 490, para 99. Also, per Vivian Bose J, in Kashmira Singh v MP, AIR 1952 SC 159. 499 Per Straight J, in Queen Empress v Jagrup, 7 All 646. 500 R v Turner, (1882) 1 Moo. C. C. 347 and R v Blake, (1844) 6 Q.B. 126

.

501 Sarkar, vol 1, p 524. 502 Per Glover J, in R v Jaffer Ali, 19 W.R. Cr. 57. 503 Per Phear J, in R v Sadhu Mandal, 21 W.R. Cr. 69. 504 Basu’s Law of Evidence, 6th Edn, by P M Bakshi, ed, New Delhi, 1998, vol 2, p 1043. 505 Ibid. 506 Bhuboni Sahu v The King, 76 IA 147, p 157.

Page 16 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED 507 Law Commission of India, 69th Report, p 223, para 11.80. Emphasis in the original. 508 Justice Cunnigham quoted in Basu’s Law of Evidence, 6th Edn, by P M Bakshi, ed, New Delhi, 1998, vol 2, p 1043. 509 The 69th Report, p 226, para 11.94. But, in its 185th Report, the Commission disagreed with the earlier recommendation, p 187. 510 Inserted in the Act by the section 128 of Criminal Justice Act of 2003 of the United Kingdom. 511 Adrian Keane, The Modern Law of Evidence, 5th Edn, Oxford University Press, 2000, pp 385–386, quoted with approval by Lord Steyn in R v Hayter, (2005) UKHL 6, para 25. 512 Section 27 (3) of the Evidence Act, 1990, of Nigeria contains an interesting provision which states: “(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” Thus, the provision permits proof of confession of the accused as against other co-accused only if (1) the confession is made in the presence of the other accused, and (2) the co-accused has adopted the confession by words or conduct. 513 In Baker v The Queen, (2012) HCA 27, the Australian High Court refused to adopt into Australian Common Law the exception to the Common Law Principle incorporated in section 76A of the English PACE Act, 1984 referred to above and stated: “The difficulties of adapting the common law of Australia to meet a foreign legislative change are even greater than adapting it to meet an Australian legislative change.” Hence, the Court refused to admit the out-of-Court confession made by the co-defendant that he committed the guilty act to prove that the appellant/accused was not guilty. Section 27 of New Zealand Evidence Act of 2006 also does not permit the use of the statement by the coaccused and provides: “Defendants’ statements offered by prosecution: (1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a codefendant in the proceeding.” 514 Section 15 of TADA Act, 1987 after its amendment in 2003 provided that “notwithstanding anything in the Code [Cr PC] or in the Indian Evidence Act, 1872 (1 of 1872)” a confession made by an accused person “shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder: Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.” 515 In AP v Cheemalapati Ganeswara Rao, 1963 AIR 1850, it was said that “The only provision in the Code which permits the joint trial of more than one person is s. 239.” Section 239 is the 1898 version of section 223 of 1973 Code. 516 Section 184, CrPC, 1973 deals with “Place of trial for offences triable together” and states that offences that may be tried jointly under section 220, and offences for which offenders may be tried jointly under section 223 “may be inquired into or tried by any Court competent to inquire into or try any of the offences.” 517 An interesting question here is: when can a trial be said to have commenced? In UOI v Major General Madan Lal Yadav (Retd), AIR 1996 SC 1340, the Apex Court explained a ‘trial’: “...trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto.” In Gomer Sirda v Queen- Empress, (1898) ILR 25 Cal 863, it was said: “trial has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and, defence, if the accused be defended, present in Court for the hearing of the case.” Gomer Sirda followed in: Dagdu Govindshet Wani v Punja Vedu Wani, (1936) 38 Bom LR 1189; Sahib Din v The Crown, (1922) ILR 3 Lah. 115; Fakhruddin v The Crown, (1924) ILR 6 Lah. 176; and in Labhsing v Emperor, (1934) 35 Cr LJ 1261. In Re Narayanaswamy Naidu v Unknown, 1 Ind Cas 228, a Full Bench of the Madras High Court held that “Trial begins when the accused is charged and called on to answer and then the question before the Court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged.” Also, Sriramulu v Veerasalingam, (1914) ILR 38 Mad. 585. Bihar v Ram Naresh Pandey, AIR 1957 SC 389: the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. VC Shukla v State through CBI, AIR 1980 SC 962: “...The proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or 240 amount to a trial...” Moly v Kerala, AIR 2004 SC 1890: “Inquiry must always be a forerunner to the trial.” Vijay Dhanuka v Najima Mamtaj, 2014 Cr LJ 2295 (SC): “The exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged u/s.202 of the Code.” In Ratilal Bhanji Mithani v Maharashtra, AIR 1979 SC 94, the Court said: “The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry.” In “Common Cause”, A Registered Society thr. its Director v UOI, AIR 1997 SC 1539, it was elaborated: “(i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under section 228 of the Code of Criminal Procedure, 1973 in the concerned cases, (ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under section 246 of the Code of Criminal Procedure, 1973.” In Hardeep Singh v Punjab, (2014) 2 SCC (Cri) 86, para 35: “In view of the above, the law can be summarised to the effect that as ‘trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is

Page 17 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED only at the stage of framing of the charges that the court informs him of the same, the ‘trial’ commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.” In UK where there is a trial by jury (“always remembering that it is inevitably a trial by jury, not by a judge.” R v Tonner, (1985) 1 All ER 807), it has been held in Ex Parte Guardian Newspapers Ltd, (1999) 1 All ER 65, at para 10 that “by a police it starts when a jury is sworn and the defendant is put into the charge of the jury....” In the decision of Martinez v Illinois, 572 US ___ (2014), the US Supreme Court held that it “consistently treated as a bright-line rule: A jury trial begins, and jeopardy [of trial and conviction of accused] attaches, when the jury is sworn.” However, in Lord Chancellor v Ian Henery Solicitors Ltd, (2011) EWHC 3246 (QB), the Court held: “A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty.” The UK Criminal Defence Service (Funding) Order 2007, Schedules 1 and 2 contain an identical definition of “cracked trial” and state that it “means a case on indictment in which -... (i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence...” Hence it is submitted that similarly in India also the trial cannot be said to have commenced by framing of the charges by the Magistrate or by issuance of process to the accused but only after he pleads ‘not guilty’ or he pleads guilty but the Court exercises its discretion not to accept the plea and orders the trial to proceed under sections 229 or 241 or 252 of CrPC, 1973. If the accused pleads guilty and the Court accepts his plea and convicts him forthwith, there is no trial as far as that accused is concerned, though the trial might proceed as against the other co-accused, if any. Under section 246 (4) the accused can “claim to be tried” by not pleading guilty etc. 518 AP v Cheemalapati Ganeswara Rao, 1963 AIR 1850. 519 Also, Chandra Bhal v UP, (1971) 3 SCC 983. 520 Essar Teleholdings Ltd v Central Bureau of Investigation, (2016) 1 SCC (Cr) 1: (2015) SCC 562. 521 Also, Chandra Bhal v UP, (1971) 3 SCC 983. 522 Reg v Kalu Patil, (1874) 11 B.H.C. 146. 523 Ram Sarup Singh v Emperor, AIR 1937 Cal. 39; Shanker v Emperor, 24 AIR 1926 All 318; Queen Empress v Chinna Pavuchi, (1899) 23 Mad. 151. 524 Queen Empress v Pattua, (1900) All WN 192; Emperor v Kheoraj, (1908) 30 All. 540. 525 Sudhesh Budharmal Kalani v Maharashtra, AIR 1998 SC 3258. 526 Dengo Lendero v Emperor, AIR 1938 Sind 94. “Of course, the confession of a person who is dead and has never been brought for trial is not admissible under section 30 which insists upon a joint trial.” Haroon Haji Abdulla v Maharashtra, AIR 1968 SC 832 (per Hidayatulla, J). 10 Bom. HC 497. 527 Haroon Haji Abdulla v Maharashtra, AIR 1968 SC 832. 528 See, the 69th Report of the Law Commission of India, p 225, para 11. 93. The Law Commission in its 185th Report also agreed with this interpretation, p 186. 529 Haroon Haji Abdulla v Maharashtra, AIR 1968 SC 832 (per Hidayatulla J). 530 R Dineshkumar at Deena v State Rep. By Inspector of Police, 16 March 2015, Supreme Court of India; also, Firozuddin Basheeruddin v Kerala, 2001 SCC (Crl) 1341. 531 Also, Koury v The Queen, (1964) SCR 212. 532 AP v S Narasimha Kumar, (2006) 5 SCC 683. 533 Bondada Gajapathi Rao v AP, AIR 1964 SC 1645 : 1964 SCR (7) 251 (per Sarkar J). 534 A ‘dubitante’ opinion is one where “the judge doubted a legal point but was unwilling to state that it was wrong.” Black’s Law Dictionary, 9th Edn, 2009, p 574. 535 Para 542, http://www.supremecourtofindia.nic.in/FileServer/2017-02-14_1487056122.pdf (last accessed in April 2019). 536 Section 394, CrPC, 1973 deals with “Abatement of appeal” and provides: “(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation: In this section, ‘near relative’ means a parent, spouse, lineal descendant, brother or sister.” “Every other appeal” in clause 2 above means “an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine.” AP v S Narasimha Kumar, (2006) 5 SCC 683. Section 377, CrPC, 1973 deals with appeal by state government on the ground of “inadequacy” of sentence, and section 378 deals with appeal against acquittal. An appeal from a sentence of fine will not abate under section 394 because under section 70, IPC, 1860, the “the death of the offender does not discharge from the liability of any property which would, after his death, be legally liable for his debts.” So, the fine will be a burden

Page 18 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED on his estate and his heirs may pursue the appeal to get relief from fine. Harnam Singh v HP, AIR 1975 SC 236 : (1975) 3 SCC 343; Shri Gopala Balu Kamble v State of Maharashtra, 27 September, 2011, High Court of Bombay. 537 Section 394 (2) states: “(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant...” (section 431 of the old Code). 538 In Bondada Gajapathy Rao v AP, AIR 1964 SC 1645 : 1964 SCR (7) 251, the three-judge Bench of Supreme Court held that, under section 431 of the old Code, even after the death of the convict an appeal could be continued by his relatives where the sentence, apart from imprisonment, involves also fine that affects his estate. But, where, as in this case of SLP and not an appeal, his possible acquittal on appeal might entitle him to reinstatement in office and consequential back salary, the Apex Court held that an appeal could not be permitted for such indirect interests. 539 State by the Inspector of Police, Coimbatore v Manoharan, 2014 (2) Mad LJ (Cr) 1, para 15 (per P N Prakash J). 540 State by the Inspector of Police, Coimbatore v Manoharan, 2014 (2) Mad LJ (Cr) 1. 541 Subramanian Swamy v Raju, (2014) 8 SCC 390 : 2014 (6) SCJ 124. In Salil Bali v UOI, (2013) 7 SCC 705, the Supreme Court refused to declare the Juvenile Justice Act of 2000 as unconstitutional. 542 Earlier a three-Judge Bench of Supreme Court in Umesh Chandra v Rajasthan, AIR 1982 SC 1057 : 1982 SCR (3) 583 (per Fazal Ali J) held that “It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child. We are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place.” The Act in question was Rajasthan Children Act, 1970. But a Division Bench of the Apex Court (per Arijit Pasayat J) in Arnit Das v Bihar, (2000) 5 SCC 488, did not notice the decision in Umesh Chandra and ruled that reckoning date is the date of production of the accused before the Court and not the date of the occurrence of the offence. When the conflicting decisions were referred to Pratap Singh (supra, text), the Full Bench held that Umesh Chandra was “the correct law”. See also, B B Pande, “Setting the Juvenile Justice Course Right: A Critique of Pratap Singh v State ofjharkhand”, (2005) 6 SCC (J) 1. 543 Narpat v The State, (1961) 62 Cr LJ 591, p 592. 544 Lee Chez Kee v Public Prosecutor, (2008) 3 Sing. L.R.(R) 447. See, for a comment on this case, Nathaniel Yong-Ern Khng and Chen Siyuan, “Recent Developments in the Hearsay Rule”, Singapore Law Review, (2010) 28 Sing. L.R. 22– 38. Available at: http://works.bepress.com/siyuan_chen/29 (last accessed in April 2019). 545 His Lordship made the observations in the context of double jeopardy of prosecuting and punishing an accused twice for “the same offence” under Article 20 (2) of the Constitution. 546 The amendment came into effect on 5 July 2006. The amendment is the outcome of recommendations of the Indian Law Commission: Law Commission of India, Report No. 142 on “Concessional Treatment for Offenders who on their Own Initiative Choose to Plead Guilty without any Bargaining, 1991, Chapter III, p 5, para 3.1, recommended both the types of bargain. Law Commission of India, Report No.154 (1996) on Code of Criminal Procedure, 1973, vol. I, p 52, para 8 was also in favour of inclusion of both the types on an “experimental basis” and subject to “guidelines” and these guidelines formed substantial part of Chapter XXXIA. However, the same Report in volume II, p 85, para (g) was referring only to the inclusion of a provision “so that the Court can save some time if the accused confess to have committed the crime and plead for some concession at the time of award of sentence.” See also, the 85th report of Committee of Home Affairs on “Law’s Delays: Arrears in Courts” (2001), p 2; and the Report of the Malimath Committee on Reforms of Criminal Justice System, (March 2003), vol1, p 178, paras 14.10.1–5, and p 289, Recommendation 106. However, earlier, the Supreme Court has expressed the opinion that plea-bargaining should not be permitted as it was against public policy. Murlidhar Meghraj Loyat v Maharashtra, AIR 1976 SC 1929; Kasambhai v Gujarat, AIR 1980 SC 854; and UP v Chandrika, 2000 Cr LJ 384, at p 386. 547 Hence, the situation of murder/manslaughter plea-bargain that has arisen in Dimitrios Likiardopoulos v The Queen, referred to in the text below, cannot arise in India as such grave offences are excluded from plea-bargaining though the principle laid down in that case might apply by analogy to lesser offences covered by section 265A. 548 The section also excludes offences affecting the socio-economic conditions of the country and offences against a woman or child below the age of 14 years. The Central Government issued Notification No. SO 1042 (II) dated 11 July 2006 enumerating the offences affecting the socio-economic condition of the country. Under section 265B the benefit of the Chapter is confined to first time offenders only. 549 See, the 111th Report on Criminal Law (Amendment) Bill, 2003, Department-Related Parliamentary Standing Committee on Home Affairs, (Presented to Rajya Sabha on 2 March 2005), para 4.4.6. 550 Emperor v Santya Bandu, 11 Bom LR 533. 551 Empress v Baijoo, (1881) All WN 20. 552 Periaswamy v R, ILR 54 Mad 75. 553 This condition is not applied to the evidence of an approver which stands on a different footing. See the discussion under the heading “The Court may take into consideration such confession” above.

Page 19 of 19 6.16 SECTION 30: CONFESSION OF CO-ACCUSED 554 In Haricharan Kurmi v Bihar, AIR 1964 SC 184, Gajendragadkar J, stated that testimony of an accomplice is evidence within the meaning of section 3. 555 Under section 306 tender of pardon can be made to “any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies” and it has been held that “the extent of culpability of the accomplice in an offence is not material” (Rajasthan v Balveer at Balli, AIR 2014 SC 1117) and that it does not matter that “he does not implicate himself to the same extent as the other accused.” (Suresh Chandra Bahri v Bihar, 1995 Supp. (1) SCC 80.) 556 Empress v Ashootosh Chuckerbutty, (1879) 4 Cal. 483. 557 In R v Gangappa, 38 B 156, p 174, Macleod CJ, said: “It seems to me immaterial whether such a confession is called ‘evidence’ or ‘matter’. If anything that a court may take into consideration to enable it to come to a conclusion whether the guilt of the accused is proved, can be called evidence, then the confession is evidence...” 558 Empress v Sundra, (1884) All WN 38. 559 Public Prosecutor v Sheik Ibrahim, AIR 1964 AP 548. See the discussion in the Chapter XXIII on “Substantive and Corroborative Evidence—Distinction.” 560 In Bhuboni Sahu case, the Privy Council said: “The confession is only one element in consideration of all the facts proved in the case; it can be put in scale and weighed with the other evidence.” AIR 1947 PC 357. 561 In Emperor v Lalith, (1911) 38 Cal. 559, p 588, Jenkins CJ, said: “...the Court can only treat a confession as lending assurance to other evidence against a co-accused.” Also, Pancho v Haryana, AIR 2012 SC 523, at pp 527–528. 562 It should be borne in mind that section 15 of TADA, 1987 is very differently worded when compared to section 30, Indian Evidence Act, 1872. Section 15 provides, inter alia: “a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made there under”. It may be pointed out that the words “or co-accused, abettor or conspirator” in the proviso to section 15 were not in the original section but were added by Amendment of Act 43 of 1993. Hence, in State v Nalini, (1999) 5 SCC 253, Quadri J, stated: “On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him, so it is implicit that the same can be considered against all those tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against a co-accused, abettor or conspirator charged and tried in the same case along with the accused.” In Nalini, Thomas J took the view that the confession coming within the purview of section 15 is a substantive evidence as against the maker thereof but it is not so as against the co-accused/abettor or conspirator in relation to whom it can be used only as a corroborative piece of evidence. Wadhwa J, held that the confession of an accused serves as a substantive evidence against himself as well as against the co-accused, abettor or conspirator. Quadri J, broadly agreed with the view taken by Wadhwa J. Also, State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600. With regard to confessions recorded by the police under section 15 of the TADA Act, 1987, the Supreme Court has held that the confessions are substantive evidence against the other accused as well as against the maker and the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. Sanjay Dutt v Maharashtra, through CBI (STF), Bombay, AIR 2013 SC 2687 : 2013 (4) Scale 462. Jayawant Dattatray Suryarao v Maharashtra, (2001) 10 SCC 109; Ravinder Singh at Bittu v Maharashtra, (2002) 9 SCC 55; Mohmed Amin v Central Bureau of Investigation, (2008) 15 SCC 49; State through Supdt. of Police, CBI/SIT v Nalini, (1999) 5 SCC 253. 563 In State v Nalini, (1999) 5 SCC 253, the Apex Court held that while a confession is substantive evidence against its maker, it cannot be used as substantive evidence against another person, even if the latter is a co-accused, and can only be used as a piece of corroborative material to support other substantive evidence. But, section 30 does not say so. 564 69th Report, p 225, paras 11.90 and 91. It may, however, be pointed out that the Law Commission in its 185th Report did not agree with the above recommendation as, in its view, the confession is merely taken in to consideration by the court and the courts have given a very restrictive scope to the section. See the 185th Report, p 187. 565 Karam Din v Emperor, AIR 1929 Lah. 338.

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Sections 32 & 33 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

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7.1 SECTION 32 (1): DYING DECLARATION ETC. Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.1 SECTION 32 (1): DYING DECLARATION ETC. Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has 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; 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 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 or general interest, of the existence of which, if it existed, he would 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 a document relating to a transaction mentioned in section 13, clause (a).—When the statement is contained in any deed will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

Page 2 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. (8) or is made by several persons, and expressing 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. (b) 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. (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) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. (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. (f)

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. (i)

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.

(j)

The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. (l)

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 libelous character. The remarks of a crowd of spectators on these points may be proved. 7.1.1 Rationale of section 32 Section 32, like section 33, deals with statements made by persons who cannot be called as witnesses for one reason or the other as mentioned in the section. Consequently, (1) Section 32 is an exception to the hearsay rule, (2) the opposite party has no opportunity to cross-examine the person and (3) the Court and the parties will not have the opportunity to observe his demeanour and assess him. Thus, if A is grievously injured by B and, on the verge of death, and A tells C about who attacked him and the cause and the circumstances of the transaction, A is said to make a dying declaration. After A’s death, C appears as a witness and tells the Court: “A told me that B attacked him and injured him”. B attacking A is something that could have been seen but C has not seen it. So, C is not a direct witness to the event and his evidence is hearsay. Hearsay is sometimes classified into two kinds, viz.,

Page 3 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. (a) Individual Hearsay and (b) Composite Hearsay. Where A testifies about B’s statements, it is individual hearsay and where he testifies about what a group of individuals have said, it is composite hearsay.1 Illustration (n) is an example of Composite Hearsay and says that the remarks of a crowd of individuals about the libelous character of a caricature are admissible under section 32. In fact, section 32 provides for eight exceptions to the hearsay rule and is, more or less, in line with English law. There are two reasons for making these exceptions: 1. Firstly, the necessity2 arising out of the non-availability of (a) the particular persons as witnesses; and of (b) the same evidence from any other source.3 2. Secondly, the evidence that is made relevant under section 32 has certain built-in safeguards for its veracity. Mere non-availability of persons or evidence cannot be a ground for admitting inherently unreliable evidence coming from untrustworthy witnesses and, hence, certain circumstantial guarantee of its trustworthiness is to be ensured. For, instance, in the case of dying declarations admissible under sections 32 (1), there is some guarantee that a dying man may not speak falsehood. In each of the eight cases covered by section 32, including dying declaration, the evidence, that should have been otherwise rejected as hearsay, is merely declared as relevant evidence which is eligible for consideration by the Court and it is for the Court to decide whether the evidence is reliable or not. However, it is important to note, as the Law Commission of England pointed out, the evidence that is sought to be proved under section 32 should not be evidence of “(1) facts which are not admissible at all, whoever gives evidence of them; and (2) facts which are admissible, but of which the declarant could not have given oral evidence.”4 Section 116 of Criminal Justice Act, 2003, of England dealing with “Cases where a witness is unavailable”, provides, inter alia: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter.

If, for instance, a statement by A is sought to be proved under section 32 that B told A, the declarant, what B has seen or heard, the Law Commission of England states that A’s statement is “second-hand hearsay” and inadmissible.5 Even if A were to be alive/available and appears as a witness, he could not have deposed as to what B told him as that would be hearsay. Thus, a fact which is otherwise inadmissible does not become admissible under section 32: for instance, hearsay, privileged communication, bad character, and if the declarant himself had no personal knowledge of facts stated that will be hearsay of hearsay. There is also the rule in USA that the statement of the declarant is to be treated like the testimony of a witness on the stand in determining admissibility and his statement of facts only is to be admitted and not his opinions and inferences. Thus, the statement that he was “killed” was held to be admissible and not that he was “murdered” because the latter involves the characterization of the act as an offence. But, this rule is now severely confined in application.6 7.1.2 “Statements, written or verbal” It is the written and verbal statements of the persons and their conduct which are made relevant under section 32. The Indian Evidence Act, 1872 has made a distinction between “written” and “oral” statements in certain sections like section 3 (“evidence”) and a reference to oral evidence in section 60. Hence, the use of the term “verbal” and not “oral” in section 32 has given rise to conflict of judicial opinion as to whether “verbal” means “oral” or something more. Of course, “verbal” would certainly include “oral” statements and the Courts have held that oral dying declarations are as admissible as written statements.7 In Queen Empress v Abdullah,8 the victim whose throat has been cut made signs and gestures in response to questions put to her and the question was whether those signs together with the questions could be treated as a verbal statement under section 32 (1). WC Petheram, CJ, of Allahabad High Court, with whom Straight, Oldfield and Brodhurst, JJ, concurred, held: Is the statement a “verbal” one? “Verbal” means by words. It is not necessary that the words should be spoken. If the term used in the section were “oral,” it might be that the statement must be confined to words spoken by the mouth. But the meaning of “verbal” is something wider. From the earliest times it has been held that the words of another person may be so adopted by a witness as to be properly treated as the words of the witness himself.9

Page 4 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. Mahmood, J, the sole Indian judge on the Bench disagreed with the majority and stated in his dissent: I would, in general, willingly defer to the opinions of those whose mother-tongue is English, but, sitting here as a Judge, I am bound to form the best opinion that I can, and to act on such opinion, and to me “verbal” cannot mean more than “by means of a word or words.” Nodding the head or waving the hand is not a word. I therefore put aside Clause (1) of Section 32, which can only apply to “statements written or verbal.”10

Fifty years after Abdullah, in Chandrasekhara @ Alisandiri v King,11 a case that went up in appeal from the then Ceylon, a woman’s throat was half-slit and she could make only signs and gestures in answer to questions, and the nod of assent to the question “was it Alisandiri?” was held by the Privy Council to be a verbal statement within the meaning of section 32 as “the word used is “verbal” and not “oral” which is used elsewhere in the Ordinance, as for example in section 3 and section 119 in reference to evidence given in Court.” The Privy Council, relying on Abdullah, drew support for its conclusions from section 119 and held that the case “closely resembles the case of a person who is dumb and is able to converse by means of a finger alphabet”. It was further held that “it is difficult to adhere to a clear line of division between the description of signs and the interpretation of signs” though the witnesses sometimes “trespassed beyond the line and so usurped” jury’s function, and “evidence of signs of an ambiguous or uncertain character ought not to be admitted at all”.12 As observed per Hines, J, in Mockabee v Com, 78 Kentucky 382: dying declarations are not necessarily either written or spoken. Any method of communication between mind and mind may be adopted that will develop the thought, as the pressure of the hand, a nod of the head or a glance of the eye.

As is evident from every day experience, even persons who are able to speak often communicate not only with spoken words but also by various nods and gestures. A nod of assent impliedly adopts the words used in the question. In Laxman v Maharashtra, 2002 SCC (Cri) 1491, the Supreme Court held: A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.13

In Meesala Ramakrishan v State ofAP,1994 (2) Ren CR (Criminal) 675: (1994) 4 SCC 182 the Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that ‘verbal’ statement does not amount to ‘oral’ statement. In the “Nirbhaya” brutal gang-rape and murder case of Mukesh v State for NCT of Delhi, (2017),14 the dying declaration of the victim was recorded after the doctor certified that she was fit “to make a statement through nonverbal gestures”.15 The Metropolitan Magistrate recorded the dying declaration made partly in writing and partly by signs and gestures “by putting her multiple choice questions”16 and the Court held that though the questions “are being nomenclatured as leading questions”17 “a perusal of the questions and the simple answers by way of multiple choice put to the prosecutrix is manifest of the fact that those questions and answers were absolutely simple, effective and indispensable.”18 Section 2 (1) of Nigeria Evidence Act, 199019 defines “statement” as including “any representation of fact, whether made in words or otherwise.” While the term “words” would include spoken as well as written words, “or otherwise” would include signs and gestures also. Rule 801 of US Federal Rules of Evidence, 2012, is more specific and defines a “Statement” as: “(a) “Statement” means a person’s oral assertion, written assertion, or non-verbal conduct, if the person intended it as an assertion.” Section 4 of New Zealand Evidence Act, 2006 also provides: “statement means—(a) a spoken or written assertion by a person of any matter or (b) nonverbal conduct of a person that is intended by that person as an assertion of any matter.” One of the interesting questions that was considered in Queen Empress v Abdullah, was whether answers by signs and gestures would be relevant under section 32 to questions which are leading questions. Petheram CJ observed: The same objection which is now made to the admission in evidence of these signs might equally be made to the assent given by a witness in an action to leading questions put by counsel. If, for example, counsel were to ask—“Is this place a

Page 5 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. thousand miles from Calcutta?” and the witness replied “Yes,” it might be said that the witness made no statement as to the distance referred to. The objection to leading questions is not that they are absolutely illegal, but only that they are unfair. The only question here is, whether the deceased, by the signs of assent which she made, adopted the verbal statements employed by the questions? I think it must be held that she did so.20

Straight, J, in his concurring opinion pointed out that: it has been held more than once in England that it is no objection to the admissibility of a dying declaration that it was made ‘in answer to leading questions or obtained by earnest and pressing solicitations.’—(Russell On Crimes, vol 3, p 269.21

However, in Chandrasekhara @ Alisandiri v King, LR (1937) AC 220, the Privy Council opined that “answers to questions of a leading character may be of little weight” but such matters are for jury “going to the weight and not to the admissibility of the evidence.”22 It is obvious that for a person who is on the verge of death and is not in a position even to speak and can respond only by signs and gestures, it will be easier to respond to leading questions than other questions. In fact, the flip side of the issue is: should responses only to leading questions be taken into consideration as that is when the declarant can be taken to adopt the words in the question? In Emperor v Motiram, (1937) Bom LR 68, one of the questions was whether answers by signs and gestures would be relevant under section 32 only if questions are leading questions and not otherwise. In Emperor v Sadhu Charan Das, (1937) Bom LR 68, the “statement” or dying “declaration” merely consisted of evidence to show that three persons were made to stand before the injured woman and she was asked to point out which of the three wounded her and she pointed out her husband as the person who wounded her. Here, it is evident that her response was not as an answer to a leading question, as in R v Abdullah where Dulari was asked: “did Abdullah injure you?” and she gave a nod of assent. If the question is a leading question, it can be said that the respondent adopted the words in the question. Though that was not the case in Sadhu Charan Das, there also the Court did not make any distinction between the two kinds of questions and accepted the identification by gesture pointing to the husband as relevant under section 32 (1). After reviewing Abdullah and other cases23, in Moti Ram Broomfield, J of the Bombay High Court, observed: This section [Section 119] has no direct relevance. It deals with statements of witnesses, i.e., persons who are actually examined in Court, whereas Section 32 deals with statements made by persons who cannot be called as witnesses. But perhaps Section 119 has some little importance as suggesting that the framers of the Act were prepared to include answers given by signs in the category of oral evidence. It cannot, of course, be suggested that Section 119 only permits answers to be given by signs to leading questions.24

In fact, as a rule, leading questions cannot be put in examination in chief of any witness. Broomfield, J, was trying to bring out the difference between sections 32 and 119 by pointing out that under section 119 the witness’ statement is made under oath and subject to cross-examination and under the scrutiny of the judge where as the statement under section 32 does not have those merits. Hence, reference to section 119 is useful only to the limited extent of drawing the inference that signs and gestures can be treated on par with verbal statements. It is true that leading questions, in the context of examination of a witness or of dying declaration, face the basic objection of prompting a witness or declarant to say what the questioner wants him to say. But, as Sir Lionel Leach, CJ, said in Re Guruswami Tevar,25 “it is not possible to lay down any hard and fast rule as to when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances”, and the main overwhelming concern in recording a dying declaration should be to let the declarant say, may be in his last chance, what he wants to say. Issues like the format of questions or of answers, which may be of importance in a given fact-situation to assess the reliability of the declaration, should sub serve that basic concern. 7.1.2.1 “Of Relevant Facts” Section 32 says that “statements ... of relevant facts ... are themselves relevant” if they are made by persons and under circumstances mentioned in the section. The section does not make a mention of relevancy of statements about facts in issue. Sections like 7, 8, 9 and 11 refer to both facts in issue and relevant facts in tandem but section 32 does not. In fact, most of the illustrations to section 32 refer to statements made with regard to facts in issue

Page 6 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. also. As all facts in issue are also relevant facts26, the words “relevant facts” in section 32 should be taken as including facts in issue also.27 7.1.3 Persons Unavailable Section 32 refers to four cases of persons who are unavailable to appear as witnesses and they are: •

the dead

•

not found

•

incapable of giving evidence

•

whose attendance cannot be procured without unreasonable delay and expense.

7.1.3.1 “Dead” Section 32 proceeds on the basis that “by the decease of the person, better evidence cannot be had”28 and thus, as mentioned above, “necessity” is one of the basis of section 32. The death of a person must be proved first before section 32 can be resorted to section 136 says that: if a fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned must be proved before evidence is given of the fact first mentioned ...

Illustration (a) to that section says: “It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.” Section 104 which deals with burden of proof provides: The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustration (a) to section 104 says: “A wishes to prove a dying declaration by B, A must prove B’s death.” Hence, if the person purporting to make a dying declaration survives, his statement is not admissible under section 32.29 Though it has been held that the death must be strictly proved,30 Sarkar has opined that “death may be presumed under S.108.”31 Obviously, presumption of death of a person who has not been heard of for seven years will not be applicable for the situation of dying declaration under section 32 (1). 7.1.3.2 “Cannot be found” It can be said that a person cannot be found if the party seeking his attendance in the Court as a witness could not trace him in spite of diligent search for him. It is not enough that the party is ignorant or unaware of the person’s whereabouts but the party must show that he could not locate the person even after reasonable exertion.32 Section 64 of Cr PC, 1973 states that a copy of the summons may be left with a male member of the family where “a person summoned cannot, by the exercise of due diligence, be found”. (Emphasis added). Section 4 of Part II of the Dictionary annexed to the Australian Evidence Act, 1995 deals with “Unavailability of Persons” and provides in the relevant part: (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (f)

all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.33 7.1.3.3 “Become incapable of giving evidence” It is said that a witness who is incapable of giving evidence is in the same category as that of the dead or cannot be

Page 7 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. found. There seems to be a difference of opinion as to whether the incapacity should be shown to be permanent or even temporary incapacity would attract the section. One view is that the incapacity should be permanent as, otherwise, the case would come under the next category of a person “whose presence cannot be procured without unreasonable delay and expense”34 and if the Court considers the testimony of the person to be important, the Court may postpone the examination of the witness to a convenient date, keeping in view the circumstances of the case.35 If the person has testified in an earlier proceeding under circumstances that will bring the case under section 33, and his presence as a witness cannot be procured in the present case because of incapability, his previous deposition can be brought on record.36 A man who has become very old, blind and could not move has been held to be incapable.37 But Re Ashgar, 8 CLR 124, the Court came to the conclusion that the incapacity need not be permanent and it is sufficient if the person is not in a position to go to Court and depose. It is submitted that the Courts must be slow in resorting to this provision because, as pointed out already, as section 32 is an exception to the hearsay rule, the opposite party does not have an opportunity to cross examine and “confront” the person and the Court and the parties will not have the opportunity to observe his demeanour and assess him. The party seeking to prove the unavailability and incapability of the witness must be put to strict proof38. The words “incapable of giving evidence” may be understood in two ways: First, the witness may not be physically in a fit condition to go to Court and depose though otherwise he is competent to testify. In such cases, the law provides for the issuance of commission to record evidence39. Second, it may be understood in the sense in which the incompetence of a witness is defined in section 118 of the Evidence Act, 1872. The section says: All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them and from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation: A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him or giving rational answers to them. Thus, section 118 applies a double test of: (a) comprehension and (b) communication. It is for the Court to determine whether a person is incapable of giving evidence in this sense and the Court may arrive at its opinion by examining the person in the Court or even on the basis of medical certificate. 7.1.3.4 “Whose attendance cannot be procured without unreasonable delay and expense” Section 32 confers discretion on the Court to determine whether it is worthwhile to incur the expense of time and money in procuring the attendance of a particular person who may be away at a far off place or otherwise not immediately available. It is in the interest of the party calling a witness to have him in Court in person and testify as that may carry greater conviction with the Court. Similarly, it is also in the interest of the opposite party to have the witness personally testify so that the party will have an opportunity to cross examine him and test his veracity and impeach his credit. As the Court has the transcendental interest in finding the truth and doing justice to the case, it is in the interest of the Court also to ensure that the witness is personally present so that the Court can observe the demeanour of the witness40 and assess him and his testimony. Hence, the Courts have held that this provision should be sparingly used in extreme cases.41 While section 33 uses the word “presence”, section 32 employs the term “attendance” and both have the same meaning.42 Section 33 mentions another category of persons, i.e., who are kept out of the way by the opposite party but that category does not find a mention in section 32.43 As the statement of the person since dead is not made under oath and is not tested by cross examination, section 158 tries to reduce the effect of those deficiencies by providing: 158. What matters may be proved in connection with proved statement relevant under section 32 or 33.—Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

Thus, the other party is given every opportunity to adduce evidence to question the veracity of the statement and challenge the credibility of the person who made the statement.

Page 8 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 7.1.4 Section 32 (1): The cause of his death, or as to any of the circumstances of the transaction which resulted in his death 7.1.4.1 Rationale of Dying Declaration—Common Law Justification In Inderpal v State of MP, (2001) 10 SCC 736 and in Kantilal Martaji Pandor v Gujarat44 the Supreme Court observed that: Unless the statement of a dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence.

It may be stated, with respect, that the so-called “dying declaration” may also be relevant under section 6 as “facts forming part of the transaction”45 and, in fact, illustration (a) to section 6 says: A is accused of 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.

At the very outset, the relevancy of dying declaration as a spontaneous and contemporaneous statement of the victim of a crime as a part of res gestae under section 6 must be distinguished from its relevancy under section 32 (1). The conditions of spontaneity and contemporaneity for relevancy of statements which are required under section 6 are not necessary under section 32 (1). In other words, a dying declaration relevant under section 32 (1) can be made subsequent to the event or transaction that resulted in death and it can be made not spontaneously but at the instance of somebody. However, in Sharad Bidhrichand Sarda v Maharashtra, AIR 1984 SC 1622 the Supreme Court pointed out: Some of the statements which have a causal connection with the death of Manju or the circumstances leading to her death are undoubtedly admissible under section 32 of the Evidence Act but other statements which do not bear any proximity with the death or if at all very remotely and indirectly connected with the death would not be admissible.

The main reasons for admitting dying declarations are: first, it is the only evidence available from the deceased, who is often the best and sometimes the only eye witness to the occurrence.46 In other words, the justification for its reception is necessity47; secondly, it is thought that one who believes himself about to die has lost all motive for falsehood48 and thirdly, it may be his last chance to reveal the truth. Though the terms “dying declaration” do not occur in section 32 (1), there are other provisions of the Evidence Act, 1872 which refer to the relevancy of a “dying declaration” under section 32 (1).49 As will be seen later, the reason for this is that section 32 (1) covers not only dying declarations as understood strictly in the Common Law Doctrine, but also statements not made under expectation of imminent death. As stated above, the terms “dying declaration” do not occur in section 32 (1) at all and as section 32 (1) states clearly the statement need not be made under the expectation of death, leave alone imminent death. The English Common Law rationale does not apply to section 32 (1) at all. In Rattan Singh v State of HP50 the Supreme Court held: If the said statement had been made when the deceased was under expectation of death it becomes dying declaration in evidence after her death. Nonetheless, even if she was nowhere near expectation of death, still the statement would become admissible under Section 32 (1) of the Evidence Act, though not as dying declaration as such, provided it satisfies one of the two conditions set forth in the sub-section.... Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death.51

Hence, section 32 (1) is generally taken as including a “dying declaration” and makes relevant a statement made by a person as to the cause of his death.52 The principle behind the provision has been well stated by Eyre, CB in the locus classicus of R v Woodcock, 1 Leach 500, at p 504 as follows: The general principle in 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 is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of

Page 9 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. justice.53

These were statements made not just in danger of death (in periculo mortis), but at the point of death (in articulo mortis), and it was death, not some other altruistic concern, that caused the mind to be “induced by the most powerful considerations to speak the truth”.54 The above rationale is founded in the Latin maxim Nemo moriturus praesumuntur mentiri55 i.e., a dying man may not speak falsehood, and the assumption is that “Truth sits upon the lips of dying men”.56 As Lush, LJ, said in R v Osman, 15 Cox CC 1, “a dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips.”57 As the United States Supreme Court explained, dying declarations “are equivalent to the evidence of a living witness upon oath” and “every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful considerations to tell the truth.”58 Thus, the prospect of “immediately going into the presence of his Maker” is supposed to be an adequate substitute for the requirements of administration of oath and cross-examination of witness in a Court of law. In Laxman v Maharashtra, 2002 SCC (Cri) 1491, Supreme Court of India observed: The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with.

It is said that “the sense of impending death produces in man’s mind the same feeling as that of a conscientious and virtuous man under oath”.59 Criticism of Rationale However, the common law practice of admitting dying declarations as an exception to the hearsay rule and its rationale with religious overtones that a dying man would not like to meet his Maker with a lie on his lips did not find favour with some American commentators and judges. For instance, McCormick, an authority on the law of evidence, remarked that dying declaration is “the most mystical in its theory and traditionally among the most arbitrary in its limitations.”60 In Thurston v Fritz, 138 (Kant 1914)61, the Kansas Supreme Court commented: We are confronted with a restrictive rule of evidence commendable only for its age, its respectability resting solely upon a habit of judicial recognition, formed without reason, and continued without justification.

Aviva Orenstein observes that dying declaration “was perhaps the laughing stock of hearsay exceptions” and “it seems antiquated and parochial, depending, as it does, on religious beliefs in divine punishment for its reliability and policy justifications.”62 The common law principle that a dying declaration is “super reliable” because the fear of God is a substitute for both oath and cross-examination, is found unacceptable for the reasons that (a) there are “cultural normative concerns about such a less secular super-reliability thesis”, (b) it is for the accused to decide whether he should cross-examine the witness or not, and not for law or Courts and (c) the truthfulness of the declaration will be tested not in the crucible of cross-examination but of the realm of God and after-life.63 One of the main reasons for this trend is, perhaps, that the right to confront a witness by cross-examination is a Sixth Amendment Constitutional right in the USA64 and the person who makes a dying declaration is not available for that confrontation.65 However, the US Federal as well as some State enactments contain provisions on admissibility of dying declarations.66 US Federal Rules of Evidence as amended up to 1 December 2010 provide in section 804 (B) dealing with “Hearsay Exceptions”: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

In the case of Crawford v Washington, 541 US (2004) 36, Crawford was charged with assault an attempt to murder Kenneth Lee for an earlier attempt to rape Sylvia, the former’s wife. Sylvia could not testify because of matrimonial privilege in vogue in the State of Washington and as the privilege did not apply to out of Court statements, her taperecorded statement to the police was sought to be introduced as evidence. The trial Court treated the statement as

Page 10 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. reliable and convicted the petitioner, the Court of Appeals reversed the conviction on the ground that the statementwas unreliable and the Washington Supreme Court restored the conviction on the ground that though the statement did not fall within the Common Law exceptions, “it bore guarantees of trustworthiness”. The US Supreme Court (per Scalia J) overruled Ohio v Roberts, 448 US 56 (1980) wherein the common law justification for admitting dying declarations was followed, and held that: the Framers [of the United States Constitution] would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.67

A “testimonial” statement is one that “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations” in view of its use in Court proceedings. The Sixth amendment right of confrontation applies to out of Court testimonial statements as well as in-Court statements. Thus, if a police officer is stabbed by the criminal whom the officer was pursuing, and the officer makes a statement to his police colleagues about the stabbing, the statement is treated as testimonial as it was made for the purposes of brining the assailant to book even if it was made in the expectation of death. The Supreme Court further observed that where testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability’” and that it “need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

It may be noted that in Crawford, Sylvia’s statement was only an out of Court statement and was not a dying declaration and she was available as a witness but was not called. The decision in Crawford with regard to “out of Court” “ex parte statements” had far-reaching consequences on investigations in domestic violence cases (like those in Ratten) and has been criticized on the ground that testimonial dying declarations can never be admissible by Crawford test as the dying declaration will be relevant as such only if the declarant is dead and he would not be available to be confronted and cross-examined.68 United Kingdom Abolishes Common Law Doctrine of Dying Declaration Section 118 of the Criminal Justice Act of 2003 of UK dealing with “Preservation of certain common law categories of admissibility” provides in clause (2) that “With the exception of the rules preserved by this section, the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished.” ‘Dying declaration’ is not one of such rules preserved by the section. Section 116 of the Criminal Justice Act, 2003, of the UK deals with ‘Cases where a witness is unavailable’ and provides: (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

Page 11 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. It is important to note that under section 116 (2) (a), quoted above, all relevant statements made by persons who are dead are admissible irrespective of whether they relate to the cause of their death and whether they made the statements in expectation of death. section 116 does not employ the terms “dying declaration” at all and covers statements made by all unavailable witnesses.69 In fact, it was Glanville Williams who opined that there is no need to confine the hearsay exception to declarations made while dying and it ought to be extended to declarations of all deceased persons and to those people who are unable for any other reason to give evidence.70 It can be said that clauses (a) and (b) of sub-section (1) section 116 and clauses (a) to (d) of sub-section (2) are also covered by the opening para of section 32 of Indian Evidence Act, 1872. But clause (e) of section 116 is not mentioned in section 32 but is included in a somewhat similar provision of “kept out of the way by the adverse party” in section 33 of the Indian Evidence Act71 except that under clause (e) of section 116 it is enough if the witness does not give or continue to give evidence out of fear for any reason and not necessarily because of the actions of the adverse party. While “fear” relates to the state of mind of the witness, “kept out of way” refers to the acts of the adverse party, and the fear might arise out of the apprehensions, real or imagined, entertained by the witness and also arise out of the acts of the adverse party. The Law Commission of India opined that there was no reason for not including this category also in section 32 and suggested an amendment to that effect.72 “Cause of death” and Cases of Rape Where A stabbed B, and B, before his death, tells C that he was stabbed by B and how and why he was stabbed, B’s statement is treated as a dying declaration. As will be seen a little later, under the Indian law it is not necessary that the person making the statement should actually be dying or that he should be under the actual fear of death or that death should ensue soon after the statement. Hence, “dying declaration” is a misnomer to the statement relevant under section 32 (1).73 What is necessary is that the person should subsequently die and the death should ensue from the cause stated in the declaration and not some other intervening cause. Illustration (j) to section 8 states: (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.

In the above illustration, it is stated that “the fact that, without making a complaint74, she said that she had been ravished is not relevant as conduct under section 8, though it may be relevant as a dying declaration under section 32”. It is obvious that her statement will not be relevant under section 32 (1) unless (1) she dies and (2) she dies because of rape. Perhaps, that illustration is not happily worded. In juxtaposition to this illustration, illustration (a) to section 32 says: “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”. This illustration proceeds to say, inter alia, that A’s statement as to the cause of her death referring to the rape is a relevant fact. However, there is a cleavage of judicial opinion in this regard. In Kappinaiah v Emperor, AIR 1931 Mad. 233 (2): (1931 (32) Cr LJ 751) a woman was raped and she made a statement that the accused raped her and three days later, unable to bear the shame, committed suicide. It was held that her statement could not be treated as a dying declaration because her death resulted from suicide and not due to rape. In other words, her statement relates to the cause of her suicide and the circumstances of the transaction that resulted in her suicide and it cannot be treated as a dying declaration that can proved against the accused.75 However, in State v Anthony Nicholas, 2006 Cr LJ 1582 (Kant), where the a girl lodged an F.I.R stating that her father committed rape on her and she subsequently committed suicide, it was held that the F.I.R. could be taken as a, dying declaration relating to the circumstances of the transaction that resulted in her death. In Deepak v State of MP, 1994 Cr LJ 767, where a woman’s modesty was outraged by the two accused when she was with her paramour and she was threatened that she will be defamed, and she committed suicide shortly thereafter, the MP High Court observed that: to hold that such dying declaration of the deceased in a case of suicidal death is not a relevant fact, would be negation of

Page 12 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. justice and clear misinterpretation of the provisions of section 32 (1) of the Evidence Act.

Again, in Punjab v Chatinder Pal Singh, AIR 2008 SC 974, a girl of 16 1/2 years was raped by the accused in a hotel and the girl, unable to bear the shame, committed suicide. She made a dying declaration to the police officer who recorded it after obtaining a certificate from the doctor as to her fitness. Another dying declaration was recorded by the Sub-Divisional Magistrate after obtaining another medical certificate as to fitness. The Supreme Court affirmed the acquittal on the ground of inconsistencies between the dying declarations but the fact that the victim’s death was caused by suicide and not by rape did not prove to be a disqualification. It is submitted that section 32 (1) speaks of “the statement 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.” In the context of death by suicide committed by the woman because of rape on her, two questions would arise: 1. Is it a dying declaration within the meaning of section 32 (1)? 2. Is the declaration “opposable” to or provable against the accused? The nexus between (1) and (2) can be established if it can be shown that the “death” was either caused by the accused or that he was the cause of the circumstances of the transaction which resulted in her death. Where a woman who committed suicide bringing her case under section 113A makes a dying declaration mentioning her husband or his relative as the person who subjected her to cruelty, the Court may draw the presumption that the suicide was abetted by her husband or the relative. As is discussed below under the heading “Distinction between English law and sections 32 (1)”, 32 (1) applies to any death and is not confined to homicides only. Hence, the dying declaration made by a woman who commits suicide after rape can be proved against the rapist under section 32 (1). In such a case the rape is the direct and proximate cause of death and certainly a “part of the transaction that resulted in death.” The two illustrations in section 32 and section 113A discussed above exemplify this point. In Sandy v Ved Prakash, 167 (2010) DLT 341 (DB), para 78 the Delhi High Court held: the second limb of Section 32 (1) of the Evidence Act 1872 is not restricted by the fact that in the cases before the Court, with reference to the cause of the maker’s death, the death has to be a fact in issue i.e. the death is not an ingredient of the offence. In whatever manner the cause of death comes into question, in a proceeding where the circumstances of the transaction have a proximate and a direct cause with the person’s death, whatever be the offence under enquiry, the statements would be admissible in evidence.

Thus, in Santosh Kumar v State of UP, 2002 Cr LJ 301, the accused was charged with rape and murder of a young girl and the girl, unable to bear the shame, committed suicide. Though the charge of murder could not be proved, the girl’s statements pertaining to her being raped were held admissible under section 32 (1) of the Evidence Act, 1872 as it led to the circumstances leading to her death and the cause of her death was “in question”. In Joginder v State (2012),76 a girl’s statement of 3 July 2000 that she was raped was taken as FIR and as a dying declaration though she committed suicide more than a month later on 13 August 2000. However, in Inderpal v State of MP, (2001) 10 SCC 736 where it was held by the High Court, reversing the trial Court’s verdict, that the accused was not guilty of abetment to suicide under section 306, IPC, and the question was whether he could be held guilty of acts of cruelty within the meaning of section 498A, IPC, on the basis, inter alia, of her complaints to the police, the Supreme Court held that “when we are dealing with an offence under section 498A IPC disjuncted from the offence under section 306 IPC the question of her death is not an issue for consideration and on that premise also section 32 (1) of the Evidence Act will stand at bay so far as these materials are concerned.”77 On the other hand, where the deceased did not die of the injuries inflicted on him by the accused but died of tetanus or some other intervening cause, it was held that the victim’s statement could not be treated as a dying declaration.78 In Moti Singh v State of UP, AIR 1964 SC 900, Supreme Court observed: When the dead person in the present case is not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

Page 13 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. The fact that the death did not ensue immediately and that it occurred after a gap of a few days after the injury would not affect the admissibility of the dying declaration.79 In Jitender Singh v Delhi,80 (2014), it was held that: the same very statement which was recorded as a complaint or statement under Section 161 Cr. P.C. can be considered as a dying declaration if ultimately the victim does not survive as a result of injury sustained by him/her.

Where the accused was charged with the offences of causing dowry death under section 304B and of cruelty under section 498A of IPC, and the accused was acquitted of the charge under section 304B, it was held that the dying declaration would not be relevant in the case of section 498A as under that section there is no question of cause of death. A fortiori, where the letter of deceased merely stated that in the event of his death the appellant shall be held responsible as appellant intended to kill him cannot be accepted as a dying declaration as only an apprehension was expressed by the deceased.81 7.1.5 “His” Death Under section 32 (1) the statement must relate to the cause of the death of the declarant and not somebody else’s death because the section refers to the cause of “his’ death, i.e., the declarant’s death. The earlier cleavage of judicial opinion on the question whether the provision could be taken to refer to even the cause of the death of another person (“wider view”) or only the cause of the death of the declarant only (“narrow view”)82, has been set at rest by the decision of the Supreme Court in Ratan Gond v State of Bihar, AIR 1959 SC 18. In this case, Ratan Gond, aged 28 years, was charged with the murder of Baisakhi, a girl of nine years, by beheading her. He committed this ghastly murder as some body promised to pay him Rs 80 for procuring the head of a girl. On the fateful day, Baisakhi and her sister Aghani, aged five years, went to the nearby forest to pluck wild berries. Their mother Jatri, a widow, who also went on a similar work, returned home to find only Aghani and not Baisakhi. Aghani made a statement to her mother and also others about the cause of the death of Baisakhi. Aghani died within a few months even before her statement could be recorded by the Court. The trial Court and the High Court relied, inter alia, on the statements of Aghani and convicted Ratan Gond and sentenced him to death. On appeal the Supreme Court held that Aghani’s statements could not be treated as dying declarations. SK Das, J, speaking for the Court observed: In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion that the statements do not come within section 32 (1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that section 32 (1) does not apply to the statements of Aghani.

However, in the landmark decision of Tejram Patil v Maharashtra, 2015 (2) Supreme 743. (2015), where the mother of the deceased also died during the course of the transaction of dowry death of the deceased, after a view of the earlier decisions, it was held by the Apex Court that “25. It is thus clear that the DD is admissible not only in relation to the cause of death of the person making the statement and as to circumstances of the transaction which resulted in his death, if the circumstances of the said transaction relate to death of another person, the statement cannot be held to be inadmissible when circumstances of ‘his’ death are integrally connected to the circumstances of death of such other person.” 7.1.6 “Circumstances of the transaction which resulted in his death” The words “resulted in death” do not mean “caused his death”.83 While the phrase “cause of his death” conveys certain close causal relationship between the injury inflicted on the victim and his death, the phrase “circumstances of the transaction which resulted in his death” widen the scope of the enquiry and comprehend a chain of factsituations that might have commenced much before even the injury and led to the culmination in final events. In Sharad Bidhrichand Sarda v Maharashtra, AIR 1984 SC 1622, Syed Murtaza Fazalali, J, pointed out: The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or very with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama, long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as on organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that

Page 14 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3–4 months the statements may be admissible under s.32.

Such a situation is readily conceivable in cases involving “dowry deaths” or “faction killings” where the tragic “finale” of the drama and the dramatis personae are only the culmination of a long chain of events. The long correspondence between the woman and her husband and in-laws regarding the dowry demands and many events and incidents that happened since the marriage could form part of the “circumstances of the transaction which resulted in death”. In Pakala Narayana Swami v Emperor, AIR 1939 PC 47, the facts of which have already been discussed,84 the victim received a letter on 20 March 1937 asking him to go to Berhampore to receive money due to him and his mutilated dead body was found on 23 March 1937 in railway coach in Puri. The question in this case was whether the statement made by the victim to his wife that he received the letter and that he was going to Berhampore to collect the money was admissible in evidence as the dying declaration of the deceased. In its landmark judgment, the Privy Council observed: It has been suggested that the statement making it must be at any rate near death, that the “circumstances” can only include acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used do not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed... “Circumstances of the transaction” is a phrase that no doubt conveys some limitation. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the actual occurrence....The statement made by the deceased..., appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death.

It may be noted that, in the above case, when the deceased made the statement to his wife, he was not even injured; nor was the death even remotely present in his mind. On the other hand, he must have been in a happy frame of mind that he was going to get back his money from the accused. Still, the Privy Council was prepared to stretch the phrase “circumstances of the transaction” that far because there was the nexus between the statement and the death and observed that “circumstances must have some proximate relation to the actual occurrence: though as for instance in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose.”85 How far back the Courts can go depends on the nexus discoverable from the facts and circumstances of each case and statements made 5 years earlier to death were held to come within the purview of section 32 (1).86 As observed by Fazalali, J, in Sharad Bidhrichand, AIR 1984 SC 1622 case referred to above, “circumstances” could include the motive for causing the death also, and this sets at rest the earlier controversy whether motive can be treated as a part of the circumstances.87 In State of UP v Ramesh Prasad Mishra, AIR 1996 SC 2766, the Supreme Court reiterated the above position. In an interesting decision in the dowry death case of Banarsi Dass v Haryana,88 (2014), where there was some evidence indicating that the burn injuries suffered by the woman while cooking were perhaps accidental and not homicidal, the Supreme Court held that in that case “the dying declaration does not come under section 32 (1) of the Indian Evidence Act, 1872” for the reasons, inter alia: b. PW-16-ASI Jagdeep Singh, who is also the investigating officer, had not recorded the statement given by the deceased. What he recorded was the statement made by the deceased to the Tehsildar and what the Tehsildar dictated to him. It has come in evidence that the Tehsildar did not have any problem or difficulty in recording the statement himself. It is also not a case of any translation. c. The statement does not pertain to the cause of death or circumstances of the transaction which resulted in death. The death in this case ... after seven weeks of the incident, is not caused by the burns but on account of a serious infection, septicemia caused due to improper management of the wound. It is fairly clear that the patient...was not apprehending death, not merely because she lived for more than seven weeks after the incident but because of the nature of the burn injuries which we have referred to above.89

Page 15 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 7.1.7 Distinction between English Common Law Doctrine and Section 32 (1) As already pointed out, the Common Law doctrine of dying declaration has been abolished in England by the Criminal Justice Act, 2003. However, as the Indian law continues to adopt the doctrine under section 32 (1), it is interesting to note the points of departure. 7.1.7.1 “Cases in which the cause of that person’s death comes into question” Phipson says that the dying declarations are peculiar to criminal law90 and that “the declarations are not admissible upon charges other than homicide; or as to homicides other than that of the declarant.”91 As far as the second part of Phipson’s statement of English law is concerned, as pointed out above, section 32 (1) also lays down the same principle and requires that the declaration should relate to the cause of ‘his’ i.e., the declarant’s death and not somebody else’s death. But the question is with regards to the first part of Phipson’s observation i.e., whether the declaration should relate only to homicide viz., murder or manslaughter, of the declarant and not, for instance, his suicide. In India, it has been held that section 32 (1) would apply even to suicides as well as homicides.92 In Sharad Birdhichand Sarda v Maharashtra, (1994) 4 SCC 116, the Supreme Court held that section 32 (1) would apply “... whether the death is a homicide or suicide”.93 If, for instance, a woman has committed suicide within seven years of her marriage due to dowry harassment, her statement as to the cause of her suicide would certainly be relevant under section 32 (1) even though it is not a case of homicide. It was held that a suicide note could be considered as a dying declaration.94 However, where the accused was charged with the offences under section 304B (of causing dowry death) and under section 498A (of subjecting a woman to cruelty), and he was acquitted of the former charge, it was held that the dying declaration could not be proved for the proof of the second charge as under section 498A cause of the death was not in question.95 7.1.7.2 “whatever may be the nature of the proceeding in which the cause of his death comes into question” As was seen above, under English law the cause of the death must be called in question in criminal cases relating to homicide, i.e., murder and manslaughter only. Section 32 (1) makes a clear departure from English law by providing that the dying declaration would be relevant “whatever may be the nature of the proceeding in which the cause of his death comes into question”. Thus, section 32 (1) could be pressed into service in a civil as well as in a criminal proceeding provided that the cause of the death came into question in that proceeding.96 In Sandy v Ved Prakash, 167 (2010) DLT 341 (DB), para 71, the Delhi High Court observed: Section 32 (1) can be looked at from another angle. The expression used by the legislature is “cases in which the cause of his death comes into question” and not the expression “offences in which the cause of his death comes into question”. The use of expression “cases” in Section 32 (1) of Evidence Act is suggestive of the fact that it was the intention of the legislature that the admissibility of statements under Section 32 (1) of the Evidence Act 1872 is not to be restricted to only for offences where death is an integral part of an offence. In all cases where the death of a person comes into question (not in issue) such statements would be admissible in evidence.

The cause of the death can come into question in a civil proceeding as in the case of section 25 of the Hindu Succession Act, 1956 which provides: 25. Murderer disqualified.—A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

Thus where A murders B his father, section 25 of the 1956 Act bars the former from benefiting by his own crime and disqualifies him from inheriting the property of his victim. Thus, in a civil suit regarding inheritance of the property of B, his other successors could show that A should not be permitted to claim inheritance as he was the murderer and, in proof of the murder, prove the dying declaration of B implicating A as the culprit. Illustration (a) to section 32 clearly shows that section 32 (1) would apply equally to cases of (i) homicide, (ii) rape and (iii) the civil action for a tort.

Page 16 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 7.1.7.3 “whether the person who made them was or was not, at the time when they were made, under expectation of death” As was stated at the outset, the very rationale of admitting a dying declaration is that impending death might impel a person not to speak falsehood. Consequently, there was the insistence under the English law that a statement would be relevant as a dying declaration only when it was made by a person who was aware of the imminence of death and with no hope of recovery. As stated by Lord Alverstone, CJ, in R v Perry, 1909 (2) KB 697, the person must have “a settled hopeless expectation of death”. Consequently, The Courts started focusing attention on the semantics of the statement to draw an inference as to whether the declarant was in fact under the “expectation of death” and “abandoned all hope of recovery”97. In R v Christie, 1914 AC 545, the deceased who was seriously wounded asked his doctor whether the injury was a mortal one and he was told by the doctor that a recovery was possible and there have been such cases of recovery. The deceased said “I am satisfied” and made the statement. It was held that the statement was not admissible as a dying declaration as it was not made under the apprehension of death. R v Jenkins, (1869) ILR CCQ 187, is a case which, perhaps, over-emphasizes the terminological exactitude that was expected from a dying person. In that case, a statement was made by the deceased about ten hours before her death to a Magistrate’s clerk who was recording it. Before writing down her statement, the clerk asked her: “Is it with fear of death before you that that you make these statements? Have you any present hope of recovery?” The declarant replied: “None”. When the clerk wrote out the statement along with the above conversation, he omitted the word “present” and when he read out the statement to her, she added the word “present” and signed it. It was held that the statement was not admissible as a dying declaration as her conscious addition of the word indicated that she had a lingering hope of future recovery. The crucial criterion was whether the person knew or thought that the death was impending though actually the death might have ensued after a gap of time. It is the psychological condition of the declarant expecting death that carries a guarantee of truth irrespective of whether the death actually occurred as soon after as was expected. Conversely, even if death has ensued immediately after the declaration, if the declarant was not in fact aware or under the expectation of imminent death, the declaration would not be admissible under English law. An interesting American case from Louisiana to the point is Garza v Delta Tau Delta Fraternity National ABC, 918 So.2d 1019. Courtney Garza, a girl of 21 years, a student of Southern Louisiana University and a resident of Delta Fraternity, wrote a three-page note sometime before committing suicide wherein she stated that she was depressed for some time and thought of suicide and on 9 April 2009 she was drinking with a girl friend and got a lift from another person and went to the room of one Paul Upshaw who raped her. The parents sued the Fraternity, Paul Upshaw for wrongful death of Courtney. The sole issue presented for the Court’s determination was whether the suicide note in question was admissible in evidence as a dying declaration as codified in Article 804 (B) (2) of the Louisiana Code of Evidence enacted in 1988. The Louisiana Supreme Court disagreeing with the lower Court held: In summation, we find that the suicide note does not meet the qualifications of a statement under belief of impending death pursuant to La. C.E. [Louisiana Code of Evidence] art. 804 (B)(2). The article provides that the statement be made at a time when the declarant was “believing that [her] death was imminent”; that is, believing in an “impending death.” The use of the words “imminent” and “impending” militate against allowing the use of a suicide note which was written before the mortal wound was inflicted. “Impending” and “imminent” are words which require that a mortal wound or injury be inflicted at the time of the statement. The very act of writing the note militates against spontaneity. Courts have consistently assessed the physical condition of the declarant at the time the declaration was made, and the declarant’s belief that she will not survive the injury. The decisions previously cited almost uniformly involved the factual situation in which the mortal injury had been inflicted prior to the statement.

Section 32 (1) expressly states that a declaration is admissible irrespective of whether it was made under the expectation of death or not.98 A dying declaration that was made under expectation of death need not be discarded only because death took place after a few days.99 As was discussed above, Pakala Narayana Swamy case has clearly established that a declaration would be admissible even if it was made at a time when the deceased was not even injured and death was not even remotely present in his mind.100 In Haryana v Mange Ram, AIR 2003 SC 558 the Supreme Court held: The basic infirmity committed by the High Court is in assuming that for a dying declaration to be admissible in evidence, it is necessary that the maker of the statement, at the time of making statement, should be under the shadow of death. That is not what Section 32 of the Indian Evidence Act says. That is not the law in India. Under Indian Law, for dying declaration to

Page 17 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the believe that his death was imminent. The expectation of imminent death is not the requirement of law.

7.1.7.4 Declarant to be a competent witness It is submitted that a crucial distinction has to be made in the context of “competency” of the dying declarant. The terms “statements ... made by a person ... who has “become incapable of giving evidence” in the opening paragraph of section 32 relate to a person who is alive and available but is suffering from an incapacity described in section 118 that makes him not “competent to testify”.101 As the declarant in the case of dying declaration is by definition dead, the question of his becoming “incapable of giving evidence”, that is, to testify or to depose, does not arise. But the question that could possibly arise is whether the declarant was in a fit physical and mental condition when he made the dying declaration. The rule of English law is that the declarant must be a competent witness102 and Phipson says that “thus imbecility or tender age will exclude the declaration”.103 Taylor also says: It follows, therefore, that where the declarant, if living, would have been incompetent to testify by reason of infidelity, imbecility of mind, or tender age, his dying declarations are inadmissible.104

The Law Commission of England says: If the declarant would not have been competent, it would clearly be wrong to treat his or her statement as evidence of its truth. The time when the declarant must have been competent as a witness should clearly be the time when the statement was made, rather than when it is sought to adduce it.105

This rule has been held to be not applicable in India.106 It is difficult to see how the rule will not be applicable in India because who are “competent to testify” has to be decided as per the provisions of section 118 of the Evidence Act, 1872 which states “all persons shall be competent to testify” but lays down the double test of comprehension and communication to determine incompetence.107 It is unthinkable that a person who cannot understand the questions put to him and give rational answers to them can validly make a dying declaration. Where the parents of the deceased declarant stated that she was not mentally sound, it was held that the Court below should have taken that fact into consideration before relying on the declaration.108 Though section 32 applies where the person “is incapable of giving evidence”, the incapacity should be related to his condition when he appears as a witness and not his incompetency when he made the statement amounting to dying declaration. 7.1.8 Recording of Dying Declaration A dying declaration can be made by anybody and to anybody.109 In Ramesh v Haryana, 2016,110 the Supreme Court observed: It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man.” Videography of the dying declaration is only a measure of caution and in case it is not taken care of, the effect of it would not be fatal for the case.111

It is not mandatory that only a Magistrate should record it and it can be recorded by anybody,112 whether it be a private person, a Magistrate or a police officer or a doctor. Again, it is not necessary that the dying declaration must be reduced to writing as section 32 itself says that the statement can be ‘verbal’.113 In cases like where A, the declarant, is lying grievously injured and is pouring forth to B, a passerby, about the cause of his death, it is unreasonable to require B, if he is a literate, to run for a pen and paper to record the statement. Thus, it depends on the facts of each case whether the statement could have been reduced to writing or not. At any rate, the fact that the declaration was oral and not written might affect its reliability but not its relevance.

Page 18 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. In cases where there is time and opportunity to record a dying declaration, the Courts have laid down various guidelines for the proper record of it.114 The Criminal Rules of Practice and Circular Orders, 1990 issued by the High Court of Andhra Pradesh lay down in rule 16 that where the dying declaration is recorded by the Magistrate he should follow the following guidelines: (1) While recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death. (2) Before taking down the declaration, the Magistrate shall disclose his identify and also ask the declarant whether he is mentally capable of making a declaration. He should also put simple questions to elicit answer from the declarant with a view to knowing his state of mind and should record the questions and answers signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant (3) The declaration should be taken down in the words of the declarant as for as possible. The Magistrate should try to obtain from the declarant particulars necessary for identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded. (4) After the statement is recorded, it shall be read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement. It is evident from the above guidelines that the disclosure of his identity by the Magistrate was intended to infuse confidence in the mind of the declarant that he could speak the truth fearlessly as he will be revealing the facts to a judicial officer. 7.1.8.1 Declarant must be in fit condition As can be seen from the AP High Court guidelines, a duty is cast on the Magistrate to ensure, by putting questions and eliciting answers, that the declarant was in a fit physical and mental condition when making the statement.115 The Magistrate is also required to obtain “whenever possible” a medical certificate as to the mental condition of the declarant. However, failure to obtain a medical certificate is not fatal to the admissibility of the dying declaration.116 Normally, the Court relies on the medical opinion as to fitness but where the ocular opinion was to the effect that the declarant was in a fit state, the medical opinion could not prevail.117 Need for Medical Certificate It should be borne in mind that the dying declaration is made by a person who is seriously injured and who eventually died of those injuries. He could be under great stress and agony at the time of making it and the Court should ensure that the declaration was made at a time when the declarant was in a fit physical and mental condition to make it. One way of ensuring that the declarant was in a fit condition is to see whether a doctor was present at that time to monitor the declarant’s condition. A medical certificate issued by a doctor who checked the condition of the declarant would be of great value to the Court in this regard. In a landmark decision rendered by a five-Judge Bench in Laxman v Maharashtra, (2002) SCC (Cri) 1491, the Apex Court held: It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration.118

The Supreme Court held in Mukesh v State for NCT of Delhi, 2017,119 that the Court “while admitting a dying declaration, must be vigilant towards the need for ‘Compos Mentis Certificate’ from a doctor as well as the absence of any kind of tutoring” and that it was satisfied that the doctor, SDM and MM who recorded three DDS were all satisfied that the declarant was in a fit physical and mental condition. The pronouncements of the Courts on the requirement of a medical certificate are bound to be, in the nature of the things, contextual and case-specific. (a) The fact that the declaration was very brief and did not cover all matters will not vitiate the declaration as a dying person cannot be expected to hold forth on the subject. Brevity adds to its credibility and weight.120

Page 19 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. (b) Where the declaration contained a very detailed account of the entire history, motive and minute particulars of the attack and it was not attested by either his wife or the doctor who were present, it was held that the declaration looked like a fabrication and was unreliable.121 (c) Where the declaration was recorded by the doctor in the question-answer form in the presence of other witnesses and it was corroborated by other testimony, it was held that a conviction could validly be founded on the declaration.122 (d) Where the doctor asked all the relevant questions and the deceased answered them coherently, and at the end the doctor asked whether the declarant wanted to say any thing more and the declarant died before he could answer, it was held that the declaration was complete in material particulars and hence, admissible.123 (e) In Tamil Nadu v Karuppasamy, AIR 2009 SC 948, the accused murdered his wife by pouring kerosene on her and setting her on fire because she objected to his relationship with another woman. The wife’s dying declaration was recorded by the Magistrate after the doctor certified her to be “conscious and oriented”. Though the trial Court convicted the accused, the High Court overturned the conviction on the ground that the Magistrate “was totally carried away” by the doctor’s certificate. Arjit Pasayat, J, of the Supreme Court restored the conviction saying that the High Court’s opinion “is, to say the least, an absurd conclusion” as it was the doctor who was the appropriate person to certify. (f)

Where the declaration was recorded by a Magistrate in the presence of the doctor who also endorsed it, the fact that the doctor was not later examined in the Court did not vitiate the admissibility of the declaration.124

(g) There is no inflexible rule of law or prudence that a declaration recorded by the police is not worthy of credit. Thus, where the police officer recorded the declaration and the doctor present attested it, the mere fact that the doctor did not state that the declarant was in a fit condition did not affect its admissibility as other witnesses deposed to his fit condition.125 7.1.8.2 Verbatim record The person recording the dying declaration should try to reproduce the words actually used by the declarant to the extent possible.126 In other words, the actual words of the deceased must be proved and not merely their substance.127 Rule 16 (3) of the AP High Court guidelines requires that “the declaration should be taken down in the words of the declarant as for as possible” and clause (4) says that after it was recorded “it shall be read over to the declarant”. Though the rule does not expressly say that it should be taken down in the same language, the requirement that it should read over to the declarant implies that it should be written in the language in which it was made. As observed in Najjam Faroqui v State of WB, 1992 Cr LJ 2574, the dying declaration recorded in the language used by the declarant acquires added strength and reliability. Where a constable was recording the declaration at the behest of the Magistrate and the Magistrate was asking questions and getting answers in Sindhi from the declarant even about minute details and translating them to the constable into Hindi who was writing it down in Marathi, it was held that a conviction based solely on such a declaration was unsustainable. However, while it is desirable that the declaration should ideally be reproduced to writing in the language in which it was made, the fact that it was taken down in a different language would not mean that it should be discarded.128 Where the declaration was made both in Urdu and Kannada and it was taken down only in Kannada, it was held that it could not be discarded for that reason alone.129 7.1.8.3 In Question-Answer Form Where a Magistrate records a dying declaration, it is desirable that it is recorded in question and answer form.130 This is intended “to enable the Court to see how much was suggested by the examiner and how much spontaneously produced by the declarant.”131 As quoted above, rule 16 (1) and (3) of the AP High Court Criminal Rules of Practice and Procedure refer to questions being put to and answers elicited from the declarant in two contexts: First, in clause (1) for the purpose of checking the fitness of the declarant and second, in clause (3) for recording the declaration. Clause (3) directs that “every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded” when a Magistrate was recording the declaration. For obvious reasons, a declaration not recorded in question and answer form even by a Magistrate cannot be rejected because it all depends on urgency of the condition of the particular declarant and on whether the Magistrate had the time to focus on form than on the substance of the declaration.132 Under rule 16 (1) “while recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death.” Hence, the Magistrate should try and put

Page 20 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. only those questions that would bring around a declarant probably in agony to focus on the cause of injury and not stray on to other issues. Thus, the rule in effect means that where the declarant’s condition and available time permit, ideally the declaration should be recorded in the question and answer form and be signed by the declarant. However, if the declaration otherwise meets all requirements of section 32 (1) and is found to be worthy of credence, it is not to be rejected only on ground that it was not recorded in the form of questions and answers.133 It was held: Nor would dying declaration go bad merely because the magistrate did not record it in the form of questions and answers. It is axiomatic that what matters is the substance and not the form.134

7.1.8.4 Must be Complete The very purpose of recording a dying declaration is to elicit from the declarant information on two matters, viz., (a) the cause of his death or (b) the circumstances of the transaction that resulted in his death. Suppose the declarant says: “A attacked me with a knife and caused grievous injury because ...”

and dies. This statement is patently incomplete because, may be, the declarant wanted to add that he attacked the assailant first or that he was caught in a compromising position with the assailant’s wife. In the former case it would be no offence as the assailant was acting in self-defense and, in the latter case, it could be culpable homicide not amounting to murder. In Cyril Waugh v King, 1950 AC 203, at pp 210 & 212; ALJ 412 (PC), the condition of the deceased was grave but he wanted to make a statement to the police in the presence of the doctor. He lapsed into coma before he could complete what he wanted to say and died. It was held by the Privy Council that the statement was inadmissible as a dying declaration as the deceased could not convey the whole of what he wanted to say.135 However, if the declaration is complete as to the cause of the death, it will be a valid dying declaration even if the declarant wanted to say some thing more but died before completing it. Even if the statement is incomplete, the dying declaration part of it could be complete in itself.136 In Abdul Sattar v Mysore, AIR 1956 SC 168, the dying declaration was: I was going home. When I came near the house of Abdul Majid, Sattar shot me from the bush. He ran away, I saw.

The declarant could not complete the statement and died. It was held: Under the circumstances the dying declaration, though incomplete, was complete in so far as the accused Sattar having shot the deceased was concerned.

7.1.9 Multiple Dying Declarations Particularly in cases of dowry deaths and dowry suicides, reported cases reveal that the woman makes two or more declarations to different persons like the doctor, police, Magistrate and relatives. It is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case.137 If the declarations are consistent and not contradictory, they may be relied upon.138 But, sometimes the first declaration is made spontaneously and truthfully and mentions the names of certain persons but the second and later declarations add or omit certain names because of prompting by her relatives.139 The woman might omit the name of her husband even though he was also guilty because of her notions of being a dutiful “Bharath nari”140 and might include the names of her in laws though they were not even present at the time of occurrence.141 Though the Supreme Court expressed the opinion that the first in point of time must be preferred to the later ones,142 it is not advisable to make any such a priori preference and, in such cases, the Courts have, in fact, been careful in looking for corroboration before they could rely on one or the other declarations.143 In Sharda v Rajasthan, AIR 2010 SC 408, the deceased made three dying declarations, the first to a doctor, second to Sub-Inspector, and the third to an Executive Magistrate, and the first two declarations said that the cause was the stove-burst and the third said that it was mother in law that poured kerosene and set her ablaze, the Supreme Court overturned the conviction based on the third declaration even

Page 21 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. though it was made to an Executive Magistrate.144 In Nallam Veera Stayanandam v Public Prosecutor, High Court of AP, (2004) 10 SCC 769, the Supreme Court held: ... in the case of multiple dying declarations each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.145

As held by the Court in Shudhakar v State of MP, AIR 2012 SC 3265, “the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence.”146 In Punjab v Parveen Kumar, 2005 (9) SCC 769, the Court held that no reliance could be placed on any declaration where “the two dying declarations ... stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested.” 7.1.9.1 Dying Declarations Recorded by Police As mentioned already, dying declarations can be recorded by any body, including a police officer.147 In fact, though section 162 (1) of Cr PC, 1973 bars at any trial the use of a statement made to the police during investigation, section 162 (2) saves from its operation a dying declaration made to a police officer. Hence, a dying declaration made to the police is admissible in evidence even if it is made during investigation. However, if such a statement was made to a police officer and the declarant did not die, such a statement, not being a dying declaration, cannot be used even for the purpose of corroboration (section 157) as the bar of section 162 applies. Though section 157 of IE Act 1872 says that the former statement made “before any authority legally competent to investigate the fact, may be proved” for corroboration and though a police officer is “legally competent to investigate”, section 162 Cr PC bars its use for the purposes of corroboration under section 157148 though section 162 permits its use for the purpose of contradiction of the witness under section 145 of Evidence Act, 1872. •

However, a survey of decided cases will reveal that, depending on the circumstances and availability of time, it is safer for the police officer to record them with the attestation by a doctor or other witnesses or to get them recorded by a Magistrate.149

•

In Munnu Raja v State of MP, (1976) 3 SCC 104, the Supreme Court observed: “The practice of the Investigating Officer himself recording the declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but what we want to emphasize is that better and more reliable methods should be taken recourse to and the one recorded by the police officer may be relied on if there was no time or facility available to the prosecution for adopting any better method.”150

•

The dying declarations recorded by the investigating agencies have to be very scrupulously examined.151 Where the declaration was recorded by the police officer even though he had enough time to get it recorded by a Magistrate, it was held that the declaration was not reliable.152

•

Where the declaration was recorded by the IO himself as the condition of the deceased was grave and there was no time to call a Magistrate, the Court might admit it after strict scrutiny.153

•

Where the police officer recorded the statement of the injured person in the hospital as an FIR, the FIR could itself be treated as a dying declaration after the declarant died due to the injuries.154

•

Where the declaration recorded by the police officer was in the nature of an FIR and neither the thumb impression of the declarant was taken nor was it attested by a doctor, it was held that it was unreliable.155

7.1.9.2 Evidentiary Value of Dying Declaration 1. In its landmark decision in Kushal Rao v Bombay,156 the Supreme Court has laid down the following guidelines: •

...a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected...”.

Page 22 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. •

“...clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight.”

•

“It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away”.

•

It may also be shown that “the statement has not been properly recorded, for example, the statement bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement.”

•

“Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.”157

•

“But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction.”158

•

“...each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.”

•

“...it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence”.

•

“...a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character”.

•

“...in order to test the reliability of a dying declaration, the Court has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.159

(2) In SP Devaraji v Karnataka, AIR 2009 SC 1725, the Court held that a dying declaration need not necessarily be recorded by a Magistrate only and the rule requiring corroboration is only one of prudence and not a rule of law.160 (3) In Satish Ambanna Bansode v Maharashtra, AIR 2009 SC 1626, it was held that while a dying declaration is entitled to great weight, the Court must bear in mind that it was not made under oath and not subject to cross examination. “The Court has to be on guard” and must ensure that it was not made under tutoring.161 (4) Merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.162 Fact ors like (a) who made the declaration and his background; (b) to whom it was made and his relationship, if any, to the declarant. If it is a magistrate it would carry greater weight. An endorsement by a doctor will further buttress its reliability; (c) the persons who were present when it was made, whether they were interested in tutoring the declarant; (d) how soon it was made after the injury; would play an important role in assessing the reliability of the declaration.163 7.1.9.3 Contradiction and Corroboration by Statement of Surviving Declarant

Page 23 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. If the person who made the so-called dying declaration did not die, the statement cannot be used as a dying declaration but if the declarant is called as a witness, it can be used as a prior statement for the purposes of contradiction under section 145 and corroboration under section 157 of the Evidence Act, 1872.164 7.1.9.4 Contradiction and Corroboration of Dying Declaration It has been pointed out already that dying declaration is one of the exceptions to the hearsay rule and that it suffers from the drawback of being evidence not given in the open Court or on oath and not subject to cross examination. The Evidence Act, 1872 remedies these defects to certain extent by providing in section 158: What matters may be proved in connection with proved statement relevant under section 32 or 33.—Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

Thus, under section 158, both the parties in a civil or criminal proceeding can lead evidence which they would have had the opportunity to lead if only the declarant is alive and available as a witness, for two purposes: (a) to corroborate or contradict the declaration and (b) to confirm or impeach the credit of the witness under the provisions of the Evidence Act, 1872 like sections 155, 156 and 157. For example, as has been held in Rajasthan v Teja Ram, AIR 1999 SC 1776, resort can be had to section 155 to “impeach the credit” of the declarant by reference to his contradictions within the declaration or between declarations if there are more than one.

1

PM Bakshi, ed., Basu’s Law of Evidence, 6th Edn, (New Delhi, 1998), vol 2, p 1109.

2

Bhajju @ Karan Singh v State of MP, 15 March 2012, Criminal Appeal No. 301 of 2008, 15 March 2012 (Supreme Court of India, Criminal Appellate Jurisdiction), the Supreme Court said that the admissibility of dying declaration “is founded on the principle of necessity.”

3

Deepak v State of MP, 1994 Cr LJ 767.

4

The Law Commission of England and Wales, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997, p 95, para 8, 10. (Emphasis in the original). http://www.lawcom.gov.uk/app/uploads/2016/08/No.138Criminal-Law-Evidence-in-Criminal-Proceedings-Hearsay-and-Related-Topics-A-Consultation-Paper.pdf (Last accessed in April 2019).

5

The Law Commission of England and Wales, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997, p 95, para 8, 15.

6

Robert H Klugman, “Some Factors Affecting the Admissibility of Dying Declarations”, 39 Journal of Criminal Law & Criminology (1948–1949), p 648.

7

Lawman v Maharashtra, (2002) 6 SCC 710, the Supreme Court has held that “a dying declaration can be oral or in writing.” Also, Parbin Ali v Assam, (2013) Criminal Appeal No. 1037 of 2008, 7 January 2013 (Supreme Court of India, Criminal Appellate Jurisdiction).

8

(1885) ILR 7 All 385. (The facts of the case have been discussed in detail under section 8 above.)

9

Ibid, para 6.

10 Ibid, para 10. In Emperor v Moti Ram, (1936) 38 Bom LR 818, Broomfield, J, expressed himself in favour of the opinion of Mahmood J. 11 LR (1937) AC 220. The case related to section 32 of Ceylon Evidence Ordinance, 1895 which was in pari materia section 32 of the India Evidence Act, 1872. 12 Rajasthan v Darshan Singh @ Darshan Lal, (2012) 5 SCC 789, para 18, it was held: “The law required that there must be a record of signs and not the interpretation of signs.” 13 Also, Shudhakar v State of MP, AIR 2012 SC 3265, p 3270, para 18. 14 Criminal Appeal No. 607 of 2017, 9 July 2018 (Supreme Court of India, Criminal Appellate Jurisdiction). 15 Ibid, para 160.

Page 24 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 16 Ibid, para 161. The victim made in all three DDs, the first one was recorded by the doctor and second was recorded by the SDM. 17 Ibid, para 148. 18 Ibid, para 185. All the accused were sentenced to death. 19 This Act has been repealed by the Evidence Act of 2011. 20 (1885) ILR 7 All 385, para 6. 21 Queen Empress v Abdullah, para 7. 22 As discussed above under footnote 11, the question that was asked in this case was also a leading question. State of Colorado in USA provides in Colorado Statutes, Title 13: Courts and Court Procedure—Evidence, section 13-25-119, 1 (c): “(c) That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement”. For instance: “who attacked you?” is a fair question; “Did A attack you?” is a leading question that was asked in Abdullah and Chandrasekhara and found to be unobjectionable in both the cases by the Privy Council; and “Why would’nt you say that A attacked you?”, or words to that effect, will perhaps be an objectionable leading question as per Colorado test. Permissible “earnest and pressing solicitations” as mentioned by Straight J, in Abdullah, referred to above, are different from questions “calculated” to lead the declarant “to make any particular statement”. 23 Emperor v Sadhu Charm Das, (1921) ILR 49 Cal 600, Chandrika Ram Kahar v King-Emperor, (1922) ILR 1 Pat 401, and Ranga v The Crown (1924) ILR 5 Lah 305. 24 Emperor v Motiram, (1937) Bom LJ 68. 25 Re Guruswami Tevar, ILR [1940] Mad 158, at para 15. 26 Raghu Bhusana v Vidia Varidhi, 34 Mad 875, it was contended that, under section 32, facts in issue were not relevant facts but the Court held that “if a fact is in issue, it is undoubtedly a fact relevant to the case or proceeding.” 27 The Law Commission of India in its 69th report proposed an amendment to section 32 so as to include a reference to facts in issue also. See p 231, para 12, 21. The Commission in its 185th Report concurred with that proposal. See p 195. 28 Per Williams, J, in Fitch v Chapman, 10 Connecticut 11. 29 Emperor v Ram Sattu, 4 Bom LR 434; Ram Prasad v Maharashtra, AIR 199 SC 1969. 30 Queen v Gozalao, 12 WR Cr 80. 31 MC Sarkar et al, eds, Sarkar’s Law of Evidence, 14th Edn, vol 1 (New Delhi, 1993), p 559. 32 R v Lakhi Narayan, 24 WR Cr 18. 33 In Sio v The Queen, [2016] HCA 32, para 18, the Australian trial judge applied clause (g) as “her Honour was satisfied that all reasonable steps had been taken by the Crown to compel him to give evidence, but without success.” 34 Re Pyari Lal, 4 CLR 504. 35 Emperor v Gajendra Mohan, AIR 1943 Cal 222. 36 Hariprasad v State, AIR 1953 All 660. 37 Mandal v Manga Ram, AIR 1961 Pat. 21. 38 Chainchal Singh v Emperor, (1945) 72 IA 270. 39 Under section 75 of CPC the Court may issue commission “to examine any person”. Under section 286 of Cr PC, the Magistrate or the commissioner “can proceed to the place where the witness is and take down the evidence in the same manner” as in trials or warrant cases under the Code; and under section 287 the parties may examine the witness by sending the interrogatories to the Magistrate or the commissioner. 40 Section 280 of Cr PC and O XVIII, rule 12 of CPC provide that the Court may record such remarks as he “thinks material respecting the demeanour” of the witness whilst under examination. 41 R v Lakhan, 21 WR 56; Bulliswamy v Annapurnamma, AIR 1976 AP 270. In R v Riat, Hughes LJ said: “the critical thing is that every effort has to be made to get the witness to court”. [2012] EWCA Crim 1509. See also, R v Claridge, [2013] EWCA Crim 203. 42 The Law Commission of India proposed an amendment to bring both sections 32 and 33 on par with each other by substituting “presence” in the place of “attendance” in section 32. The 69th Report, p 229, para 12, 14. 43 Queen Empress v Abdullah, (1885) ILR 7 All 385. The Law Commission of India opined that there was no reason for not including this category also in section 32 and suggested an amendment to that effect. See 69th Report, p 229, para 12, 14.

Page 25 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 44 Criminal Appeal No. 1567 of 2007, 25 July 2013 (Supreme Court of India Criminal Appellate Jurisdiction). 45 See, Tejram Patil v Maharashtra, 2015 (2) Supreme 743. 46 Vikas v Maharashtra, Case No. Appeal (crl.) 321 of 2006, 21 January 2008 (High Court of Judicature), para 26. 47 Jai Karan v State of NCT, Delhi, (1999) 8 SCC 161. 48 Robert H Klugman, “Some Factors Affecting the Admissibility of Dying Declarations”, 39 J Crim L & Criminology (1948– 1949), p 646–650. 49 The terms “dying declaration” occur in Illustration (a) to section 104, which says: “A wishes to prove a dying declaration by B, A must prove B’s death”, and in Illustration (j) to section 8 which says that a rape victim’s statement “may be relevant as a dying declaration under section 32, clause (1).” 50 Rattan Singh v State of HP, 1997 (4) SCC 161, para 12. 51 Also, Karan v State, Delhi, CRL.A. 1403/2014, 27 May 2016 (High Court of Delhi). 52 In Queen Empress v Abdullah, (1885) ILR 7 All 385, para 6, Petheram, CJ, said: “Section 32 was intended by the framers of the Act to provide for cases of ‘dying declarations’”. 53 Also, Nembhard v R, [1982] 1 All ER 183 (per Sir Owen Woodhouse); Supreme Court also expressed the opinion that the situation of solemnity of death is like oath taking. Ravi Kumar v State of TN, (2006) 9 SCC 240. 54 In Laxman v Maharashtra, 2002 6 SCC 710, the Supreme Court referred to this as “justice theory”. 55 Vikas v Maharashtra, (2008) 2 SCC 516, at p 526, para 31 (per Thakker, J). An illuminating discussion on the rationale of dying declaration may be found in the Supreme Court decision in Dashrath v State of MP, AIR 2008 SC 316, at p 318, para 9 ff (per Arjit Pasayat, J). See also, Amar Singh Munna Singh Suryavanshi v Maharashtra, AIR 2008 SC 479 : (2007) 15 SCC 455, (per SB Sinha, J); Bijoy Das v State of WB, (2008) 4 SCC 511; Vinay D Nagar v Rajasthan, (2008) 5 SCC 597; and Paniben v Gujarat, AIR 1992 SC 1817. 56 Mathew Arnold, Sohrab and Rustom and other Poems, ed by Justus Collins Castlemen (Milwaukee, 1905): “Man, who art thou who dost deny my words? Truth sits upon the lips of dying men, And falsehood, while I lived, was far from mine.” William Shakespeare, King John, Act V, section IV: “What is the world should Make me now deceive, Since I must lose the use of all deceit? Why should I then be false, Since it is true That I must die here, Live hence by truths?” 57 “Lest he be punished in the Hereafter.” People v Borella, 312 Ill 34 : 143 NE 471 (1924); State v Debnam, 222 NC 266, 22 SE (2d) 562 (1942); State v Jordan, 216 NC 356, 5 SE (2d) 156 (1940). 58 Kirby v US, 174 US 47, 61 (1899); in Babu Lal v State of MP, AIR 2004 SC 846, para 7, the Supreme Court said that in the case of a dying man “every motive of falsehood is obliterated.” 59 Ravi Kumar v State of TN, (2006) 9 SCC 240. See also, Vikas v Maharashtra, Case No. Appeal (crl.) 321 of 2006, 21 January 2008 (High Court of Judicature) where the Supreme Court said: “when even a shadow of continuing in this world is practically over, every motive of falsehood is vanished.” 60 Charles T McCormick, On Evidence, Kenneth S Broun ed, 6th Edn (2006), vol 2, § 309, at p 363. 61 Thurston v Fritz, 138 (Kant 1914), 625, at p 627. Interestingly, the Court stated that “the rule admitting and the rule restricting (dying declaration in criminal cases) are entirely court made, and when the reason for this restriction to cases of homicide cases, if it ever existed, then such restrictions should likewise cease” and extended its application to civil cases also. Under common law, dying declarations were not admissible in civil cases. 62 Aviva, Orenstein, “Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence”, University of Illinois Law Review, vol 2010 5 (2010), pp 1412–1413. It is said that one need not posit a godless modern society to maintain that the concrete medieval notions of divine judgment and eternal damnation on which the dying declaration exception is based do not figure prominently in modern secular society. Michael J Polelle, The Death of Dying Declarations in a Post-Crawford World, 71 Modern Law Review (2006), pp 300–01. 63 For an excellent critique, see Stephen J Cribari, “Is Death Different? Dying Declarations and the Confrontation Clause after Crawford”, William Mitchell Law Review, (2009), vol 35:4, p 1542 ff. 64 The Sixth Amendment provides, in relevant part, that “[i] n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right was held applicable against the states under the Fourteenth Amendment. Pointer v Texas, 380 US 400, 403 (1965). The US Supreme Court has explained “confrontation” to mean cross-examination. Kirby v US, 174 US 47, 55 (1899); Mattox v US, 156 US 237, 240 (1895). 65 Aviva, Orenstein, “Her Last Words: Dying Declarations and Modern Confrontation Jurisprudence”, University of Illinois Law Review, vol 2010 5 (2010), pp 1411–1460. 66 See the facts of Garza case discussed in the text under the heading “whether the person who made them was or was not, at the time when they were made, under expectation of death”. 67 This proposition is similar to the rule contained in section 30 of the Indian Evidence Act.

Page 26 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 68 See Stephen J Cribari, footnote 63 above, p 1552 ff. 69 In Al-Khawaja and Tahery v UK, (2009) 49 EHRR 1, the European Court of Human Rights (ECHR) held that as statements made by unavailable witnesses cannot be subjected to the EU Convention right of the accused to examine witnesses against him (Article 6 (3) (a)), such statements cannot be the “sole or decisive” basis for conviction. Against this decision, UK appealed to the ECHR Grand Chamber. During that time, the English Courts disagreed with the ECHR decision. For instance, R v Horncastle, [2009] UKSC 12 : [2010] 2 AC 10 . Ultimately, ECHR Grand Chamber also held in UK v Al Khawaja, (2012) 54 EHRR 23, that the statements made by unavailable witnesses can be the sole basis for conviction. For a comment on this decision see, Antze du Bois-Pedain, “Hearsay Exceptions and Fair Trials in Strasbourg”, [2012] Cambridge Law Journal, vol 71, Pt 2, July 2012, pp 251–260. 70 Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial, 3rd Edn (Stevens and Sons, 1963), p 203. 71 See also the discussion under section 33 below. 72 See 69th Report, p 229, para 12, 14. 73 The Supreme Court pointed out that the words “dying declaration” do not occur in any of the Indian statutes. Dashrath v State of MP, AIR 2008 SC 316 (per Arjit Pasayat, J). 74 The term “complaint” has been defined in section 2 (d) of Cr PC as: “any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 75 Also Re Peria Cheliah Nadar, AIR 1942 Mad. 450 : (1942) 43 Cr LJ 810. 76 CRL.A.880/2010, 30 August 2012 (High Court of Delhi). The Delhi High Court followed Santosh Kumar and Sandy cases. 77 See for similar facts and decision by the Apex Court, Kantilal Martaji Pandor v Gujarat, Criminal Appeal No. 1567 of 2007, 25 July 2013 (Supreme Court of India, Criminal Appellate Jurisdiction). 78 Wali Muhammad v Emperor, AIR 1930 Oudh 249; R v Rudra, ILR 29 Bom 45. 79 Maniben v Gujarat, AIR 2007 SC 1932; Najam Faraghi v State of WB, AIR 1998 SC 682. 80 Delhi High Court, CRL.A. 464/1999, 2 April 2014 (High Court of Delhi). Also, Sri Bhagwan v State of UP, (2013) 12 SCC 137 81 Babubhai Bhimabhai Bokhiria v State of Gujarat, (2014) 2 SCC (Cri) 644. 82 See the discussion in the 69th Report of the Law Commission of India, pp 235–237. The Commission agreed with the wider view on the ground that the rationale of section 32 that the impending death guarantees the veracity of the statement, applies equally even where the statement refers to the cause of the death of some other person. See p 237, para 12, 57. 83 Sharad Bidhrichand Sarda v State of Maharashtra, AIR 1984 SC 1622; Chinnavaleyan v The State, (1959) 1 Mad LJ 246. 84 See the text following footnote 5 in Chapter VII above. 85 See also, Rattan Singh v State of HP, AIR 1997 SC 768. 86 Ranjit Singh v State, AIR 1952 HP 81. 87 The view that motive can be treated as a part of circumstances was held by the High Court of Patna and the erstwhile Courts of Judicial Commissioners of Nagpur and Himachal Pradesh. Emperor v Somra, AIR 1938 Pat. 52; Chunilal v R, AIR 1924 Ngp 115; Findlal v State, AIR 1954 HP 11. The Madras High Court took the opposite view and held that motive could not be considered as a part of circumstances. Beggani Appalnarasayya, AIR 1941 Mad. 101. 88 Criminal Appeal No (s). 534–535 of 2012, 18 December 2014 (Supreme Court of India), para 14. 89 Para 17, ibid. 90 Phipson, On Evidence, 10th Edn, Michael V Argyle ed, (London, 1963), p 11, para 16 (2). 91 Phipson, On Evidence, 10th Edn, Michael V Argyle ed, (London, 1963), p 406, para 1054. Emphasis in the original. 92 R v Bissoouranjun, (1866) 6 WR Cr 75; Lalji v R, (1927) ILR 6 Pat 747; Deepak v State of MP, 1994 Cr LJ 767 (MP); Kans Raj v Punjab, AIR 2000 SCC 2324. 93 See also, Bahiron Singh v State of MP, 2009 Cr LJ 3738. 94 Maharshtra v Anil, AIR 2006 Bom 513. 95 Gananatha Pattnaik v Orissa, (2002) 2 SCC 619, at p 623, para 10.

Page 27 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 96 As pointed out above, section 804 (B) of Us Federal Rules of Evidence also provides that a dying declaration will be relevant “in a prosecution for homicide or in a civil action or proceeding”. 97 The Sussex Peerage, 11 C&F 108, at p 112. 98 Tehal Singh v Punjab, AIR 1979 SC 1347 : 1979 Cr LJ 1031. 99 Maniben v Gujarat, AIR 2007 SC 1032. 100 See the text above following footnote 56. 101 See below under the heading “Declarant must be in fit mental condition”. 102 R v Drummond, 1 Lea CC 338; R v Pike, 1829 C&P 598. 103 Phipson, p 407, para 1056; R v Pike, (1829) C&F 598. 104 John Pitt Taylor, A Treatise on the Law of Evidence, as Administered in England and Ireland, vol 1, (London, 1848), p 473. Taylor says that in R v Drummond, 1 Lea CC 338, “the declaration of an attainted convict was rejected. That would no longer be a ground of objection.” Ibid. 105 The Law Commission of England and Wales, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997, p 96, paras 8, 13 and 14. http://www.lawcom.gov.uk/app/uploads/2016/08/No.138-Criminal-LawEvidence-in-Criminal-Proceedings-Hearsay-and-Related-Topics-A-Consultation-Paper.pdf (Last accessed in April 2019). 106 See Monir, Evidence, 4th Edn, para 220 quoting Cunningham, Law of Evidence, pp 161–162. 107 As Sarkar observes, “Competency is the rule and the incompetency is the exception”. MC Sarkar et al, eds, Sarkar’s Law of Evidence, vol 2 (New Delhi, 2003), p 1806. 108 Dandu Lakshmi Reddy v State of AP, AIR 199 SC 3255. 109 Elliot and Phipson, Manual of the Law of Evidence, 12th Edn by DW Elliott (London, 1987), p 43. 110 Criminal Appeal No. 2526 of 2014, 22 November 2016 (Supreme Court of India), para 28. 111 Mukesh v State for NCT of Delhi, 2017, para 185, Criminal Appeal Nos. 607–608 of 2017, 5 May 2017 (Supreme Court of India, Criminal Appellate Jurisdiction). 112 Surender Kumar v Punjab, (2012) 12 SCC 120. 113 Natha v State of MP, 2003 (1) Crimes 502. 114 Kushal Rao v Bombay, AIR 1958 SC 22; Vikas v Maharashtra, (2008) 2 SCC 516; Vinay D Nagar v Rajasthan, (2008) 5 SCC 597; Bijoy Das v State of WB, (2008) 4 SCC 511; Kusa v Orissa, AIR 1980 SC 559 : 1980 SCR (2) 801; Paras Yadav v Bihar, 1999 Cr LJ 1122. 115 In burns cases the question that arises is whether the person loses his mental faculties because of burns and the heavy sedative drugs given. Experts state that neither the burns not the drugs normally affect the higher functions of the brain. BD Gupta and CB Jani, “Status of Compos Mentis in Relation to Dying Declaration in Burn Patients”, Journal of Indian Academy of Forensic Medicine, vol 25 (4), (2004), pp 133–136. 116 Sher Singh v Punjab, AIR 2008 SC 1426. 117 Nanhau Ram v State of MP, AIR 1988 SC 912 : 1988 Cr LJ 936. 118 In Shanmugam alias Kulandaivelu v State of TN, Case no. 337 of 2002, 12 November 2002 (Supreme Court of India), it was held: “The proposition laid down in P Rosamma v AP, 1999 (7) SC 695) that ‘in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the same subject to the satisfaction of a Magistrate’ is no longer good law in view of the larger bench decision in Laxman v. State of Maharashtra, [2002 6 SCC 710].” 119 Criminal Appeal Nos. 607–608 of 2017, 5 May 2017 (Supreme Court of India). 120 Jayaraj v State of TN, AIR 1976 SC 1519 : 1976 Cr LJ 1186; Surajdeo Ojha v Bihar, AIR 1979 SC 1505 : 1979 Cr LJ 1122. 121 Mohar Singh v Punjab, AIR 1981 SC 1578 : 1981 Cr LJ 998. 122 Malik Ram Bhoi v Orissa, 1993 Cr LJ 984. 123 Kusa v Orissa, AIR 1980 SC 559 : 1980 SCR (2) 801. 124 Sanmugam v State of TN, AIR 2003 SC 909. 125 Damodharan v State of TN, 2004 (3) Crimes 369. 126 Vinayak Dutt v State, AIR 1970 Goa 96; Pritam Singh v State, 1972 AWR 521.

Page 28 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 127 Phipson, On Evidence, 10th Edn, Michael V Argyle ed, (London, 1963), p 408, para 1057. In Muralidhar @ Gidda v Karnataka, 2014 (86) ACC 259. The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, this by itself creates a lot of suspicion about credibility. 128 Ramesh v Maharashtra, 2001 Cr LJ 3780 (Bom). In Rajasthan v Bhup Ram, 1997 (1) Supreme Today 405, it was held that “assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language.” 129 Karnataka v Sheriff, AIR 2003 SC 1074. 130 Ravi Chandra v Orissa, AIR 1980 SC 1738. 131 Phipson, On Evidence, 10th Edn, Michael v Argyle ed, (London, 1963), p 1056, para 1057. 132 Ganpath Mahadeo Mane v Maharashtra, AIR 1995 SC 1180. 133 Prem Kumar Gulati v Haryana, 2014 (87) ACC 885, SC; Satish Chandra v State of MP, (2014) 6 SCC 723. 134 Rajasthan v Bhup Ram, 1997 (1) Supreme Today 405. 135 The same was held in R v Charles Daki, (1960) EAR 34. 136 Taylor, Treatise on the Law of Evidence, 11th Edn, (1931), vol I, p 494, ¶ 721. 137 Amol Singh v State of MP, (2002 (5) SCC 468. 138 Vithal v Maharashtra, 2007 Cr LJ 310 (SC); Lallubhai v Gujarat, AIR 1972 SC 1776; Kundula Bala Subrahmanyam v State of AP, (1993) 2 SCC 684, [1993] 2 SCR 666, (1993) Cr LJ 1635; Mukesh v State for NCT of Delhi, 2017, Review Petition (CRL.) NO. 570 of 2017 in Criminal Appeal no. 607 of 2017, 9 July 2018 (Supreme Court of India). 139 Sunil Kashinath Raimale v Maharashtra, 2006 Cr LJ 589 (Maharashtra). 140 In P Babu v State of AP, (1993) Cr LJ 3547, a case of wife-burning, the woman, after making the declaration implicating her husband, poignantly pleaded that her husband should not be beaten for that reason and the Court said that this stemmed “from the values of Indian womanhood”. In Shivani v State, 2010 Cr LJ 676 (Delhi), a case of bride burning, the woman made two declarations stating in the first declaration that her husband was a passive spectator and, in the second one, as a saviour. See also, Maharshtra v Vasant Shankar Mhasane, 1993 Cr LJ 1134 (Bomb). 141 Kamala v Punjab, AIR 1993 SC 374 : 1993 (1) ALT Cri 484. 142 Gangaram Gehani v Maharashtra, AIR 1982 SC 839 : 1982 SCR (3) 277; Mohan Lal v Maharashtra, AIR 1982 SC 839. 143 Raju Devade v Maharashtra, (2016), Raju Devade v State of Maharashtra, Criminal Appeal No.1012 of 2008, 29 June 2016 (Supreme Court of India, Criminal Appellate Jurisdiction); Maharshtra v Sanjay Rajhans, 2005 Cr LJ 120 (SC). 144 Lakhan v State of MP, 2010, (2010) 8 SCC 514, para 11, it was, however, held that “a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case.” 145 Mukesh v State for NCT of Delhi, 2017, Criminal Appeal Nos. 607–608 of 2017, 5 May 2017 (Supreme Court of India, Criminal Appellate Jurisdiction). 146 Also, Harish Kumar v Haryana, Criminal Appeal No. 1297 of 2011, 16 December 2014 (Supreme Court of India, Criminal Appellate Jurisdiction) (last accessed in April 2019); Chirra Shivraj v State of AP (2012) 7 SCC 569. 147 Atul Ghandia v State of Assam, 1990 Cr LJ 1049 (Gauhati). 148 Ramprasad v Maharashtra, AIR 1999 SC 1969; Putchalapalli Naresh Reddy v State of AP (2013), Criminal Appeal No. 1521–1522 of 2011, 18 October 2013 (Supreme Court of India, Criminal Appellate Jurisdiction) (last accessed in April 2019). 149 State of Punjab v Amarjit Singh, AIR 1988 SC 2013 : 1988 (36) BLJR 664. 150 See also, Dalip Singh v Punjab, AIR 1979 SC 1173. 151 Gujarat v Jayrajbhai Punjabhai Varu, 2016, Criminal Appeal No. 1236 of 2010, 11 July 2016 (Supreme Court of India, Criminal Appellate Jurisdiction) 152 Public Prosecutor, High Court of AP v Pothula Narasmha Rao, 1993 Cr LJ 2789; Pearilal Rana v State, 1992 (1) Crimes 1167; Meera v Maharshtra, AIR 2004 SC 1879. 153 Babura v Rajasthan, 1993 Cr LJ 2696 (Rajasthan). 154 Ramanbhai Naranbhai Patel v Gujarat, 2000 SCC (Cr) 113. 155 Maniram v State of MP, AIR 1994 SC 840 : 1993 Cr LJ 946.

Page 29 of 29 7.1 SECTION 32 (1): DYING DECLARATION ETC. 156 Kushal Rao v Bombay, AIR 1958 SC 22 : 1958 SCR 552. See also, Rafique @ Rauf v State of UP, (2013) Criminal Appeal No. 752 of 2008, 2 July 2013 (Supreme Court of India, Criminal Appellate Jurisdiction) (last accessed in April 2019); Atbir v Govt of NCT of Delhi, (2010) 9 SCC 1; Prem Kumar Gulati v Haryana, 2015 (3) Supreme 538; Mukesh v State for NCT of Delhi, 2017, Mukesh v State For Nct of Delhi, Criminal Appeal Nos. 607–608 of 2017, 5 May 2017 (Supreme Court of India, Criminal Appellate Jurisdiction) 157 Ram Bihari Yadav v Bihar, Criminal Appeal No. 207 of 1987, 21 April 1998 (Supreme Court of India). 158 In saying so, the Supreme Court disagreed with the earlier judgment of the Court in Ram Nath Madhoprasad v State of MP, AIR 1953 SC 420: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally, and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.” Kushal Rao was followed later. Re Guruswami Tevar, ILR [1940] Mad 158, 170, (per Sir Lionel Leach CJ for FB of five judges); Maniben v Gujarat, (1992) 2 SCC 474, at pp 480–481; Munna Raja v State of MP, 1976 AIR 2199 : (1976) 3 SCC 104; Ramawati Devi v Bihar, AIR 1983 SC 164 : (1983) 1 SCC 211. Nallapati Sivaiah v Sub-Divisional Officer, Guntur, 2007, SC, Appeal (crl.) 1315 of 2005, 26 September 2007 (Supreme Court of India). It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind”. Pathan Kareemull v State of AP, 2015, AP. Crl.A. No. 717 of 2010, 13 August 2015 (High Court of Andhra Pradesh). 159 K Ramachandra Reddy v Public Prosecutor, (1976) 3 SCC 618. 160 See also, Dashrath v State of MP, AIR 2008 SC 316. However, in Rajasthan v Bhup Ram, 1997 (1) Supreme Today 405, it was held: “If the dying declaration recorded by...judicial magistrate is reliable, there is no legal hurdle in basing a conviction on it even without any supporting material.” 161 Kalavathi v Maharashtra, (2009) 4 SCC 37; PV Radhakrishna v Karnataka, (2003) 6 SCC 443, at pp 449–450. 162 Srajdeo Oza v Bihar, AIR 1979 SC 1505 : 1979 Cr LJ 1122; Prempal v Haryana, (2014), Criminal Appeal No. 2030 of 2012, 3 September 2014 (Supreme Court of India, Criminal Appellate Jurisdiction) 163 For a summary of case law, see Paniben v Gujarat, 1992 AIR 1817 : 1992 SCR (2) 197. 164 Maqsoodan v State of UP, AIR 1983 SC 126 : 1983 SCR (2) 45; Gentela Vijayavardhan Rao v State of AP, AIR 1996 SC 2791; State of UP v Veer Singh, AIR 2004 SC 4614; and Ranjit Singh v State of MP, AIR 2011 SC 255; S Arul Raja v State of TN, 2010 (8) SCC 233. If the person eventually does not die after making the statement, then the same cannot be treated as a dying declaration. Rattan Singh v State of HP, (1997) 4 SCC 161; Ramprasad v Maharashtra, (1999) 5 SCC 30. In Sharawan Bhadaji Bhirad v Maharashtra, (2002) 10 SCC 56 held that when a statement is recorded as a dying declaration and the victim survives, such statement need not stand the strict scrutiny of a dying declaration, but may be treated as a statement under section 164, Cr PC.

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7.2 SECTION 32 (2): ENTRIES IN THE ORDINARY COURSE OF BUSINESS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.2 SECTION 32 (2): ENTRIES IN THE ORDINARY COURSE OF BUSINESS Section 32 (2) says that a statement made by a person who is dead is relevant: •

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; or

•

of the date of a letter or other document usually dated, written or signed by him.

The words “such person” refer to the persons mentioned in the first paragraph of the section, i.e., who are dead. The phrase “ordinary course of business” means what is done routinely or habitually as a matter of course and not something done for a particular purpose or occasion. The justification for permitting this exception to the Hearsay Rule is that the statement was not manufactured for an occasion or to suit somebody’s particular need but was made as a matter of course.165 The word “business” is to be taken to mean any activity or professional work and not confined to trade or commercial activity only. The F.I.Rs registered by the police, the entries made by a priest in a register recording the marriages performed by him in a church, a post-mortem report prepared by a surgeon, the entries made by a businessman in his account book fall under this category. The entry must have been made by the person himself and not by somebody at his bidding. Though section 32 (2) applies equally to oral as well as written statements, the categories mentioned after the words “in particular” indicate that written entries are given greater emphasis.166 In Price v Lord Lorrington, (1703) 1 Smith’s LC 277, which was an action for the recovery of the price of beer sold and delivered, the plaintiff produced as evidence a book containing an account of the beer delivered by the plaintiff’s deliveryman and signed by him. The signature of the delivery man and his death were proved and the Court held the entries to be admissible evidence. Sarkar points out the difference between English law and Indian law on the subject and these distinctions are useful in understanding the scope of section 32 (1). Under English law the statements must have been made: •

in the discharge of a duty to a third person;

•

contemporaneously with the events;

•

with the person’s personal knowledge;

•

in relation only to the facts which he is duty bound to record and not other collateral matters.

Page 2 of 2 7.2 SECTION 32 (2): ENTRIES IN THE ORDINARY COURSE OF BUSINESS Under Indian law none of the above conditions is required. Thus, a person’s statement will be relevant under section 32 (2) even if •

there is no duty imposed on him to make the statement or entry;

•

the record was made later to the transaction and not about the time it occurred;

•

the facts are not of his personal knowledge but learned by him from others; and

•

the statement relates to collateral facts provided they are relevant facts.

165 See Taylor, Treatise on the Law of Evidence, 11th Edn, (1931), vol I, p 477 for various reasons for this exception. 166 MC Sarkar et al, eds, Sarkar’s Law of Evidence, 14th Edn, vol 1 (New Delhi, 1993), p 592 quoting Norton.

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7.3 SECTION 32 (3) STATEMENTS AGAINST INTERESTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.3 SECTION 32 (3) STATEMENTS AGAINST INTERESTS Section 32 (3) says: (3) or against interest of maker.—When the statement is against the 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.

The above clause makes the following relevant: (1) Statements against: (a) Pecuniary or monetary interest; or (b) Proprietary or ownership interest. (2) Statements that would expose the maker to (a) Criminal prosecution; or (b) Suit for damages.167 The rationale of this exception to the hearsay rule is the same as that of admissions and confessions, viz., that a person is unlikely to speak falsehood when he makes statements that adversely affect his interests or that are likely to expose him to criminal or civil liability.168 But, obviously, the exception would not be attracted unless the person making the statement was aware, at the time he made the statement, that what he was stating was in fact against his interests. Thus, it is not enough that what is contained in the statement went against his interests because of subsequent developments.169 The following illustrations to the above provision clarify the principle involved. (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. (f)

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.

Illustration (e) relates to statement against pecuniary interest and (f) refers to exposure to criminal liability. The facts of illustration (f) above are identical to those of the famous Sussex Peerage case, 11 C1 & F 113, but in that case the statement was held not to be admissible whereas under the illustration it is stated to be admissible.170 In both the cases of statements against interest and statements exposing the maker to civil or criminal liability, the statements must have been made when the maker was still potentially liable civilly or criminally and not after the risk of liability has passed away, as, for instance, a

Page 2 of 2 7.3 SECTION 32 (3) STATEMENTS AGAINST INTERESTS

167 Under English law statements falling under the first category only are relevant and not the second category. 168 However, admissions and statements against interest stand on entirely different footing: (a) the former are the creation of procedure where as the latter are a matter of reasoning and evidence; (b) The former are primary evidence and the latter are secondary admitted when the primary evidence is not available. (c) The former are relevant in proceedings where the maker is a party. The latter are admissible even between third parties. (d) The former are admissible even if the maker was not aware of it being against his interest when he made it. The latter are admissible only when the maker was aware of it being against his interest at the time of making it. See, PM Bakshi, ed, Basu’s Law of Evidence, 6th Edn, (New Delhi, 1998), vol 2, p 1241, para 140. 169 Phipson, On Evidence, 10th Edn, Michael V Argyle ed, (London, 1963), p 361, para 904. 170 Sarkar says the illustration is a departure from the rule laid down in that case. MC Sarkar et al, eds, Sarkar’s Law of Evidence, 14th Edn, vol 1 (New Delhi, 1993), p 610.

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7.4 SECTION 32 (4) THE EXISTENCE OF ANY PUBLIC RIGHT OR CUSTOM OR MATTER OF PUBLIC OR GENERAL INTEREST Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.4 SECTION 32 (4) THE EXISTENCE OF ANY PUBLIC RIGHT OR CUSTOM OR MATTER OF PUBLIC OR GENERAL INTEREST Section 32 (4) says: (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 or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

Under the above provision the statement of a person who is dead must relate to: (1) His opinion as to the existence of (a) Public right or custom; or (b) Matter of public or general interest; and (2) The maker (a) must have been likely to be aware of such existence; and (b) must have made the statement before any controversy as to such right, custom or matter had arisen. •

The “opinion” of the maker of the statement is not his individual opinion but an opinion as to the reputation prevalent in the public as to the right.

•

The word “public” could mean not only the general public but also a section of the public as in the cases of rights or customs in vogue in a particular community or region. Public rights would include rights in which their use and exercise by the public may be involved as in the case of highways, fisheries, public wells and temples.

•

Statements as to private rights and customs are not covered by this provision.

•

The person making the statement must be one who is likely to be aware of the existence of such right or custom or matter either because of his position as, for instance, a patwari or village officer or of his acquaintance with the subject.

•

The person making the statement must have made it ante litem motam or before the controversy has risen regarding the existence of such right. This condition is prescribed to ensure that the statement was not manufactured to subserve the interests of a particular party.

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7.5 SECTION 32 (5) AND (6): PROOF OF THE EXISTENCE OF RELATIONSHIP: 32 (5) AND (6) Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.5 SECTION 32 (5) AND (6): PROOF OF THE EXISTENCE OF RELATIONSHIP: 32 (5) AND (6) The questions like whether two persons are related to each other as father and son, whether a man and a woman are husband and wife, and whether a person is an adopted child or merely a foster child are often the subject of litigation in Courts of law. While blood relationship can be established by the modern scientific methods like DNA fingerprinting171, the Evidence Act, which was enacted in 1872 at a time when even blood tests were not reliable tools for establishing relationship by blood, had to deal with the proof of relationship with different devices like opinions of persons who ought to know, general reputation in the society and statements made in wills, family portraits, pedigrees, tombstones. (A) Section 32 (5) provides that the statement by a person who is dead is relevant: 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.

This provision deals with three kinds of relationship, viz., by blood, marriage and adoption. While relationship through blood, marriage and adoption can be proved by documentary or oral evidence, relationship by blood can be proved also by scientific evidence like DNA finger printing. While relationship by marriage may be dissolved by divorce or by the death of a spouse, the relationship by blood and by adoption is not subject to termination. The above provision permits proof of the relationship by the statement of a person who is dead provided that: (i)

the person “had special means of knowledge” of that relationship; and

(ii) the statement was made before the question in dispute was raised, i.e., ante litem motam. Special means of knowledge does not necessarily mean personal knowledge. Persons who by virtue their position, association or intimacy with the family are likely to have the requisite opportunity to know are also included. But the knowledge should not be based on what is known from strangers as it will amount to “hearsay upon hearsay”172. The person who has special means of knowledge can be a close member of the family173 or a servant or a doctor or a family priest174 who is associated with the ceremonies of birth, marriage and adoption of the family. A senior member of the family is presumed to be a person who has the special means of knowledge.175 The burden of proof is on the party who offers such evidence. Illustration (k) says: The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. This illustration requires closer scrutiny and explanation. Firstly, if the “dispute” that clause (5) refers to is the one to which A’s heirs are parties, A’s admission can be proved but it cannot be proved between third parties. Secondly, A’s admission will be of no value unless he was validly married to B’s mother at the time he

Page 2 of 3 7.5 SECTION 32 (5) AND (6): PROOF OF THE EXISTENCE OF RELATIONSHIP: 32 (5) AND (6) was born.176 Thirdly, Indian law, unlike Roman law and some Continental legal systems, does not recognize legitimation of a child by father’s subsequent acknowledgement or what is called in Roman law legitimatio per subsequence matrimonium. Fourthly, clause (1) only says that A’s statement is a “relevant fact”, and B cannot be held to be A’s son only on A’s statement unless other conditions of law are fulfilled. Illustration (l) says: “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.” This illustration also requires closer examination and clarification. As the date of birth indicates the commencement of relationship by blood177, statement as to the date of birth is relevant under this provision provided the statement also refers to the fact of relationship as father and son. What should be in question under section 32 (6) is not mere date of birth but relationship by blood.178 Thus, in Haynes v Guthrie, (1884) 13 QBD 818, a person refused to pay for the goods supplied to him under a contract on the ground that he was a minor and sought to adduce in evidence a statement made by his deceased father in an affidavit in an earlier case mentioning his date of birth. The Court refused to admit this evidence as the question in this case was not as to relationship by blood and “the only question is, what was the date of birth.” On the other hand, illustration (k) correctly exemplifies the provision: “The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact” and if that statement also mentions the date of birth it is incidentally relevant as evidence of commencement of that relationship. However, in Subba Raju v Subbaraju, AIR 1968 SC 947, a person claiming to be 19 years old bequeathed all his properties to his mother under a will, but the reversioners contested the will. The written statement filed by the mother in an earlier suit that the testator was a major was sought to be proved in the present suit. The Court held that the statement was not relevant under section 32 (5) or (6) as the statement was not made ante litem motam. The Court further observed: It is clear from sub-section (5) that if it is construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption. But such a literal construction is not a proper one has been ruled in more than one decision.

(B) Section 32 (6) provides: 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.

Though both the clauses refer to the proof of the same kind of relationships, section 32 (6) differs from section 32 (5) in the following respects: •

Section 32 (5) deals with the stated relationships of persons who are dead or alive, section 32 (6) deals only with the relationships “between persons deceased”.

•

While section 32 (5) declares as relevant written or verbal statements made by persons who are dead, section 32 (6) makes relevant only the statements contained in the documents like will, deed, pedigree mentioned in the clause. So, oral statements are not relevant under clause (6).

•

While section 32 (5) requires the maker to be a person who “had special means of knowledge” of that relationship, that condition is absent in section 32 (6). That is so because section 32 (6) contains other built-in safeguards and requires that (a) the will or the deed should relate “to the affairs of the family to which any such deceased person belonged” and that (b) the family pedigree, tombstone, family portrait or other thing “on which such statements are usually made” and these two requirements ensure to an extent the truthfulness of the statements. In addition, clause 6, like clause (5), also requires that the statements should have been made ante litem motam.

The family pedigree that is admissible under section 32 (6) is the document that contains it. An oral account of the genealogy will not come under this provision but might come under section 32 (5) if the person making it has “special means of knowledge” and it was made ante litem motam. Emphasizing the same, in Bihar v Radha Krishna Singh, AIR 1983 SC 684, the Supreme Court cautioned against admitting oral account of the genealogy “where a long line of descent has to be proved spreading over a century” and stated that “there is a great risk and a serious

Page 3 of 3 7.5 SECTION 32 (5) AND (6): PROOF OF THE EXISTENCE OF RELATIONSHIP: 32 (5) AND (6) danger involved in relying solely on the evidence of witnesses given from pure memory” because the interested witnesses normally have the tendency to draw more from imagination and twist the facts to help a party.

171 Sections 53, 53A and 54 of Cr PC provide for ordering by the Court and by the police of tests like DNA finger printing in criminal cases. 172 MC Sarkar et al, Sarkar’s Law of Evidence, 14th Edn, ds vol 1 (New Delhi, 1993), p 621. 173 Prabhakar v Sarubhai, (1943) Nagpur 79. 174 Gobardhan Mandal v Janak Nath Mukharjee, (1953 Cal 199). 175 Md Asad Ali v Sadiq Ali, AIR 1943 Oudh 91. 176 See section 112 of Evidence Act. 177 Oriental Government Security Life Association v Nrasimhachari, (1901) ILR 25 Mad 183. 178 See Ratan Lal, p 290.

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7.6 SECTION 32 (7) PROOF OF CUSTOM OR RIGHT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.6 SECTION 32 (7) PROOF OF CUSTOM OR RIGHT Section 32 (7) provides that a statement made by a person who is dead is relevant: When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

As was discussed earlier, section 13 provides that where the question is as to the existence as to any right or custom: “(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence” is relevant. As under section 32 (6), under clause (7) also oral statements are not admissible. While under section 32 (4) statements as to public rights or customs are relevant, under clause (7) even private customs and rights are covered.

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7.7 SECTION 32 (8) STATEMENTS BY SEVERAL PERSONS— “COMPOSITE HEARSAY” Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.7 SECTION 32 (8) STATEMENTS BY SEVERAL PERSONS— “COMPOSITE HEARSAY” Section 32 (8) provides: When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

As pointed out at the outset above, the above provision deals with “composite hearsay” or group reactions. Illustration (n) clarifies the above provision and says: “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 libelous character. The remarks of a crowd of spectators on these points may be proved.” As Sarkar points out, the illustration is taken out of the facts of the famous “Beauty and the Beast” case of Du Bost v Beresford, 2 Camp 512. In this case, the plaintiff, a painter, painted one Mr Hope and Mrs Hope and depicted the wife as very beautiful and the husband as ugly and exhibited the painting with the caption “Beauty and the Beast”. Beresford, the brother of Mrs Hope, who saw the picture cut it into pieces and Du Bost sued for damages. The defence was that the picture was a libel intended to bring the Hopes into public contempt, and witnesses were called to depose about the impressions that the picture produced in their minds that it was representation of the Hopes and to testify as to the statements of recognition by other spectators. Here what the witnesses said about their own feelings is the direct and original evidence, and testimony as to spectators’ reactions was hearsay. Both were held to be receivable in evidence. Illustration (n) calls for an explanation. Section 32 deals with the statements made by persons who are dead, not found, incapable of giving evidence and whose presence cannot be procured without unreasonable delay or expense. “The remarks of the crowd of spectators” that are made relevant under the illustration are obviously not made by persons who are all dead179 and all or some of the members of that crowd may be available to appear as witnesses, in which case the illustration is inappropriate under section 32. The “inconvenience”180 of calling the crowd to the Court may be arguably a valid ground181 but that is not one of the reasons for the admissibility of the evidence mentioned in the opening part of section 32. The witnesses who are called to testify as to the impressions of the crowd will be giving hearsay evidence of the opinions of the crowd. It will be “hearsay on opinions”.182

179 Monir opines that the section 32 (8) will be attracted only if the person or some of the person who made that statement are dead. M Monir, Text Book on Law of Evidence, 7th Edn, (2006), p 134. 180 Queen v Ram Dutt Chowdhury, 23 WR 35 (CR), it is stated that the evidence is receivable on account of the difficulty or impossibility of procuring the attendance of all the individuals who composed the crowd.

Page 2 of 2 7.7 SECTION 32 (8) STATEMENTS BY SEVERAL PERSONS— “COMPOSITE HEARSAY” 181 The 69th Report of the Law Commission of India where it refers to the practical difficulty of procuring the attendance of all the individuals that composed such crowd. See p 264. 182 Markby, Taylor, Wigmore and Field have expressed their reservations on this illustration.

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7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 Section 33 provides: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.—Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; Provided.—that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Like section 32, section 33 also provides for an exception to the hearsay rule and deals with relevancy of testimony given by persons who are since dead but with the addition of another category of persons, viz., those who are “kept out of the way by the adverse party”. The ingredients of the section are that (a) the evidence by a person who is dead was given: (i)

in a judicial proceeding; or

(ii) before any person authorized by law to take it (b) is relevant for the purpose of proving the truth of the matter (i)

in the same judicial proceeding; or

(ii) in a later stage of the same judicial proceeding (c) provided (i)

that the proceeding was between the same parties or their representatives in interest;

(ii) the adverse party in the first proceeding had the right and opportunity to cross-examine; (iii) the questions in issue were substantially the same in the first as in the second proceeding. 7.8.1 Rationale As observed by the Privy Council in Chainchal Singh v King Emperor, (1945) 72 IA 270:

Page 2 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33

It is an elementary right of an accused person, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the court trying the case, which then has the opportunity seeing the witness and observing his demeanour and can thus form a far better opinion as to his credibility than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for a witness to be before the court ...

Sections 32 and 33 provide for such exceptional cases that the Privy Council was alluding to. It applies equally to both civil and criminal proceedings, and permits the deposition by a witness in a prior judicial proceeding to be proved in a later judicial proceeding when the witness is dead because the earlier testimony satisfies all the legal requirements viz., the deposition was made in a judicial proceeding and on oath and subject to cross examination. The deposition would be evidence only when it has been recorded in the earlier proceeding by a Court or a person authorized by law to take evidence having jurisdiction over the matter and it has been duly recorded as per the requirement of law relating to the procedure for recording, competency of witness, administration of oath and cross examination by the adverse party. As the section requires that both the proceedings must be between the same parties or their representatives in interest, and that the issues must be substantially the same in both the proceedings, the only matter that is missing in the second proceeding is the opportunity for the Court and the parties to observe the demeanour of the particular witnesses at the time of deposition. Thus, when compared to section 32, the evidence permitted under section 33 constitutes only a minor exception to the hearsay rule. 7.8.1.1 “Judicial proceeding, or before any person authorized by law to take it” As section 33 requires that the “evidence” recorded earlier must have been given in a “judicial proceeding”, mere affidavits183 filed in Courts and evidence given in arbitration proceedings are excluded from the purview of section 33. The terms “judicial proceeding” is not properly defined in any statute. Section 2 (i) of Cr PC, 1973 states by way more of a description than a definition that it “includes any proceeding in the course of which evidence is or may be legally taken on oath” and does not mention the other indicia like cross examination. If the Court conducting the proceeding lacked the jurisdiction over the matter, such a proceeding cannot be considered to be a judicial proceeding. A Commissioner appointed by the Court under section 284 Cr PC, 1973 and Order XXVI of CPC, 1908 to record evidence of a witness, and a coroner appointed under the Coroners Act of 1871184 are considered as “authorized by law” to take evidence within the meaning of section 33 of Evidence Act, 1872. In Ram Prasad v Additional Director of Consolidation, AIR 1994 SC 2733, the Supreme Court held that though the earlier suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil courts do not get wiped out and are entitled to be considered.185 Similarly, under the Indian Registration Act of 1908, at the time of registration of wills, the Registrar may cause the summons to be issued to witnesses, administer oaths and examine the witnesses186 to satisfy himself that the will was properly made, and the witnesses may be cross examined by persons who are opposing the will. As the evidence is recorded by the Registrar who is authorized by law to take evidence, such evidence may be used in a later civil proceeding where the will is challenged.187 7.8.1.2 “Later stage of the same judicial proceeding” Section 33 provides that the testimony recorded in a proceeding in a Court is relevant not only in subsequent proceeding but also in a later stage of the same proceeding. One instance of this situation is provided by section 299 of Cr PC, 1973 which states: It is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

Under the above section, where the accused is absconding and there is no immediate prospect of arresting him, the Court may proceed to examine the witnesses for the prosecution and record their evidence in the absence of the accused and their depositions may be given in evidence against him in the inquiry or trial against him after his

Page 3 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 arrest, if the witness is dead. It may be noted that while under the proviso to section 33, inter alia, the opposite party must have had the right and opportunity to cross-examine the witness, no such pre-condition is provided for under section 299 Cr PC, 1973. Committal to Sessions Court under Cr PC, 1973 Prior to the 1978 amendments to Cr PC, 1973 cases exclusively triable by the Sessions Court had to pass through a preliminary stage of “committal proceeding” conducted by a Magistrate. Committal procedure under Cr PC went through three stages. (1) Full-fledged: Until 1955, the Magistrate was empowered to hold what were known as “committal proceedings” in all cases188 exclusively triable by the Sessions in a full-fledged manner wherein he would receive documentary evidence, examine witnesses and record their evidence and “commit” the case to the Sessions Court if he found that there was a prima facie case. (2) Abbreviated: Second, the scope of committal proceedings was modified by the amendment of Cr PC in 1955189 and an abbreviated procedure190 was prescribed for police report cases for the purpose of expediting them. It was the preliminary stage of the Sessions trial and the Magistrate used to commit the case along with testimonial evidence recorded by him and the documents submitted to him. Thus, the Sessions trial was in fact the later stage of the same criminal proceeding within the meaning of section 33 and if a witness who has been examined by the committing Magistrate died before commencement of the Sessions trial, his evidence could be proved before the Sessions Court under section 33 of the Evidence Act, 1872. However, if the witness died before he was cross examined in the committal proceeding, his testimony could not be used at the Sessions.191 The opinion that was widely shared by Courts and learned commentators in other jurisdictions also was that the committal proceedings were (a) an unnecessary duplication of a trial, (b) time-consuming (c) unfair to the accused as only prosecution story was highlighted in the press, (e) almost all cases got committed and (f) often evidence admitted at committal was rejected at the trial.192 (3) Abolition: Third, the 1978 amendment of Cr PC, 1973 has done away with the committal “proceedings” as such but retained the committal stage wherein the Magistrate would commit the case to the Sessions193 after satisfying himself that there was a “sufficient ground for proceeding”194 on the basis of the record. The record would include not only the FIR, charge sheet but also the record of the examination of the complainant and witnesses by the committing Magistrate under section 200 of Cr PC. Though the witnesses examined under section 200 are required to make their statements on oath, the statements are made behind the back of the accused and he has, at that stage, neither the right nor opportunity to cross examine the witnesses. Consequently, the condition prescribed in the proviso to section 33 is not complied with and the statements of the witnesses under section 200 of Cr PC, 1973 cannot be used under section 33.195 As Sarkar points out, the conditions mentioned in section 33 “must all be fulfilled, before a previous deposition can be admitted in evidence. The absence of any of them will render the evidence inadmissible.”196 In the absence of proof of compliance of the conditions stated in section 33, the earlier testimony cannot be used.197 However, it has been held by the Madras High Court that the parties can waive those conditions in civil proceedings but not in criminal proceedings.198 7.8.1.3 “The proceeding was between the same parties or their representatives in interest” (a) “Same parties” If the first and second proceedings are between the same parties and the issues are same, there will be no problem. In a civil proceeding, the parties are the plaintiff/Petitioner and the defendant/respondent. In a criminal proceeding, it is the State in whose name and on whose behalf the prosecution is conducted against the accused and the case is cited as State v X. The Explanation to section 33 clarifies that “a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section”. In the case of certain offences relating to marriage like bigamy (section 494 IPC), adultery (section 497 IPC)199, and matrimonial cruelty (section 498A)200 and the offence of defamation (sections 499/500 IPC)201, the Court will take cognizance of the offense only on a complaint filed by the aggrieved person and he will be virtually in the position of a prosecutor even though the State is the prosecutor formally. In a rape case the victim is referred to as the prosecutrix by section 146 of the Evidence Act, 1872. Under section 301 of Cr PC, 1973 in cases where the Public Prosecutor or the Assistant Public Persecutor is appearing officially, “any private person” may instruct a pleader to

Page 4 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 prosecute any person but the pleader will conduct the prosecution under the directions of the official Prosecutor and may, with the Court’s permission, present oral arguments after the evidence is closed in that case. Section 302 of Cr PC also permits even a private person to conduct prosecution in person or by a pleader. In such cases, the private prosecutor will also be in the position of a party to the proceeding. (b) “Representatives in Interest” The expression “representative in interest” has not been defined anywhere but it means “privies”.202 Privies are classified into (a) privies in estate, e.g., vendor-vendee, lessor-lessee (b) privies in blood, e.g., father-son, predecessor-heir and (c) privies in law, e.g., administrators and executors of wills. It is said that the use of the word “was” in “the proceeding was between the same parties or their representatives in interest” refers to the first proceeding and this has generated considerable discussion by Courts and commentators. It is said the expression “representative in interest” is “vague”203 and is “not very happy”204 because it requires that the parties to the first proceeding must be the representatives in interest of the second proceeding. In other words, it requires that the father, vendor or the testator, as the case may be, should be the representative in interest of the son, vendee and the executor, respectively. This is an inversion of the natural order of things and in fact it is the other way round under English law in which the parties to the second proceeding should be the representatives in interest of the parties to the first proceeding. Stating that the first proviso to section 33 inverts the requirement under the English law and observing that the inversion in section 33 was intentional and not accidental, the Privy Council held that: It covers not only cases of privity in estate and succession of title, but also cases where both the following conditions exist, namely, (i) the interest of the relevant party to the second proceeding in the subject matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding and (ii) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical.

Sarathi points out that the so-called “inversion” of the position under English law by Stephen was accidental and not intentional as Stephen used the same phraseology while stating the English rule in his Digest.205 Stephen stated the principle under English law as follows: That the proceeding, if civil, was between the same parties or their representatives in interest.206

As the Law Commission of India aptly pointed out, section 33 means only that the parties to the later proceeding must be the representatives in interest to the parties to the first proceeding and the elaborate explanation given by the Privy Council and its references to Hindu Law “appears to be inappropriate”.207 (ii) “Right and Opportunity to Cross Examine” Section 33 proviso requires that “the adverse party in the first proceeding had the right and opportunity to cross examine” The term “adverse” here means the party who is adverse to the party calling the witness and the adverse party must have had both the right and the opportunity to cross examine the witness.208 Under section 165 of the Evidence Act, 1872, “the judge may in order to discover or to obtain proper proof of relevant facts” put any relevant or even irrelevant questions to any witness at any time and the parties have no right of cross-examination except with the permission of the Court. Thus, under that section the parties cannot cross examine the witness as a matter of right and, even if the parties are permitted to cross-examine by the Court, the testimony cannot be used in later proceedings as that will be a case of a party having an opportunity to cross examine without the right to cross examine. Under section 313 (1) of Cr PC, 1973 the Court may put questions to the accused to enable him “personally to explain any circumstances appearing in the evidence against him” and clause (2) provides that no oath shall be administered to the accused when he is so examined. Under clause (4) the answers given by the accused “may be taken into consideration” in such trial or enquiry and may be “put in evidence for or against him” in any other trial or enquiry for any other offence that the answers tend to show that he has committed. Under section 315, Cr PC, the accused “cannot be called as a witness except on his own request in writing”. Hence, examination of the accused by the Court, suo moto, without administering oath to him does not make him a witness. Consequently, section 313 does not confer on the prosecution the right to cross examine the accused after the questioning by the Court. Under section 200 of the Cr PC, 1973 a Magistrate taking cognizance of an offence on complaint by any person shall examine the complainant and the witnesses present and the substance of such examination shall be reduced

Page 5 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 to writing and shall be signed by the complainant, the witnesses and the Magistrate. At that stage, the complainant may or may not have named the offender and as the Magistrate takes cognizance of the offence under section 190 only subsequently after satisfying himself that there is a prima facie case, section 200 does not confer any right to cross examine the complainant or the witnesses.209 Hence, the record of the statements made by the complainant and the witnesses cannot be used under section 33 of the Evidence Act, 1872 in a later proceeding.210 In Barju Sah v Jharkhand,211 2015, it was held that: at the time of recording statement u/s 164, Cr PC, there vests no right or opportunity with the adversary to cross-examine the witness. Hence, Section 33 of Indian Evidence Act is not applicable in the case at hand meaning thereby that we cannot legally read the statement of victim recorded u/s 164, Cr PC on the strength of Section 33 of Indian Evidence Act at least. However, the statement of witness recorded u/s 164, Cr PC, itself bears a corroborative value.

In Umesh Singh v Bihar, 2017,212 it was contended that the evidence of two witnesses should not be considered as they died before being cross-examined, the Patna High Court rejected the contention and held that the witnesses: were present on the relevant dates and on account of recalcitrant attitude of the accused, they could not be cross-examined and in the meantime they died. As such, the mistake was of the defence as they did not choose to cross- examine the witnesses... The defence cannot take advantage of their own mistake.

Where the witness died before his cross examination213 or before his cross examination could be completed214, it was held that his evidence could not be used under section 33. (iii) “Questions in issue were substantially the same” The proviso to section 33 requires that “the questions in issue were substantially the same in the first as in the second proceeding”. Though the plural “questions” is used, it is not necessary that each and every question must be common in both the proceedings.215 What is required is that the particular issue on which the evidence was given earlier is same in the second proceeding also, so as to ensure that on that issue the adverse party had the right and opportunity to cross examine the particular witness.216 Hence, the two proceedings might involve issues of which only some are common, and the evidence given on those common issues in the first proceeding may be used in the later proceeding if all the conditions of section 33 are satisfied.217 In Re Rama Reddi, (1881) 3 Mad 48, A was charged by R and S gave evidence for R, and A appeared as defense witness. A was acquitted and he prosecuted R for making a false charge against him and also S for perjury. In the latter prosecution, the evidence given by A’s witnesses in the earlier prosecution were sought to be proved as the witnesses died by that time. It was held that the evidence could be used against R as all the conditions of section 33 were satisfied (e,g., “between the same parties”) but not against S as he was not a party to the first proceeding but only a witness. As mentioned already, section 33 applies equally to both civil and criminal proceedings and the section will apply not only to civil proceedings inter se and criminal proceedings inter se but also between a civil proceeding and a criminal proceeding. Suppose A files a false criminal complaint against B and B is tried and acquitted, and B files a civil suit for malicious prosecution against A claiming damages. The depositions recorded in the criminal proceeding in State v B can be proved in the civil suit of B v A. Similarly, if A sues B for defamation claiming damages and some witnesses are examined in that civil proceeding, and later A also prosecutes B for defamation under section 500 of IPC, the testimony of the witnesses in the suit of A v B can be used in the criminal case of State v B as in the latter case A is virtually the prosecutor in the defamation trial as mentioned above. Thus, the depositions made in a civil proceeding can be used in a criminal proceeding and vice versa provided, of course, that the other conditions of section 33 are satisfied. (iv) “Kept out of the way by the adverse party” As pointed out already, this ground is found only under section 33 and not under section 32218, though the other grounds are common to both. Where a witness who deposed in the first proceeding is kept out of the way by the adverse party either by collusion, corruption or compulsion, his deposition can be used in the subsequent proceeding on the basis of the principle that a party shall not be allowed to take advantage of his own wrong.219 In

Page 6 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 R v Scaife, (1851) 17 QB 238 : 20 LJMC 229, where three persons were indicted for felony and one witness for the prosecution was proved to be absent because of inducement offered by one of the accused, it was held that his evidence could be used as against the accused who kept him away but not against the other two accused.

183 Doraiswami v Balasundaram, AIR 1927 Mad. 507. 184 The Act had very limited territorial jurisdiction confined to the ordinary original jurisdiction of the High Courts of Calcutta and Bombay. The Law Commission of India in its Report No. 206 of 2008 on “Proposal for enactment of new Coroners Act applicable to the whole of India” proposed a draft Coroners Bill 2008. The Bill provides for the appointment of a coroner for each district of a State and for Union Territory and that the inquest held by the coroner is deemed to be a judicial proceeding within the meaning of section 193 of IPC. The coroner is authorized to examine witnesses and record evidence under the draft bill. 185 Kbattoo v Dy Director of Consolidation, Varanasi, 2015 (127) RD 311, it was held that “pleadings, evidence or compromise, of civil/revenue suit, which contain admission within the meaning of section 17 of Evidence Act, 1872 are admissible in evidence under section 33 of Evidence Act, 1872, but judgments that have not become final are not admissible in evidence under the provisions of section 40 and 43.” 186 Section 36 of the Act. 187 K Papa Rao v Satyanarayana, AIR 1983 AP 257. 188 Whether the cases were instituted by police report or on complaint or in any other manner. 189 Amendment to section 207A of Cr PC. By adopting the via media between the abolitionists and retentionists of full committal proceedings, the amendment approved by the Parliament did not quite adopt the view stated even in the Statement of Objectives of the Amendment Bill of 1954 that the committal procedure should be abolished altogether in cases initiated on police reports. See Law Commission of India, 41st Report on Criminal Procedure Code, 1898, p 143. 190 It is “abbreviated” in contrast to cases instituted by complaint or otherwise to which the then existing more detailed procedure was applicable. See, the Law Commission of India, 14th Report on Reform of the Judicial Administration, vol 2, pp 789ff on Committal Proceedings. 191 If the opposite party was given an opportunity to cross examine but the party chose not to cross examine, the testimony could be used at the Sessions. See also, 185th Report of the Law Commission, p 226. 192 Statement of Objectives of the Amendment Bill of 1954; and see for position in U.K., Alec Samuels, “Criminal Justice Act”, The Modern Law Review, vol 31, No 1 (January,1968), pp 16–39. The Committal proceedings which were in vogue in U.K. also, have been abolished by section 51 of the Crime and Disorder Act 1998 in “indictable-only” offences, and replaced by a new “sending” procedure. Schedule 3 of the Criminal Justice Act (CJA) of 2003 amended section 51 of the 1984 Act and extended the “sending” procedure to offences which are triable “either way”. section 51 (12) (b) says: “either-way offence” means an offence which, if committed by an adult, is triable either on indictment or summarily”. It was decided to extend the new procedure in a phased manner w.e.f. April 2012. Under Abolition of Committal Proceedings and other CJA 2003 matters (Commencement order No 28), committal proceedings are abolished in the specified areas with effect from 18 June 2012 and committal proceedings will be abolished in all remaining areas as of 28 May 2013. http://www.crimeline.info/news/abolition-of-committal-proceedings (Last accessed in April 2019). It is said that the step to abolish committal proceedings was taken because “it is in the interests of victims and witnesses, and of the criminal justice system generally, that court procedures should be made as efficient as possible, for example by cutting out unnecessary court hearings.” See Written Ministerial Statement of Ministry of Justice by the Lord Chancellor and Secretary of State for Justice (Kenneth Clarke QC). https://www.parliament.uk/documents/commons-vote-office/22-Justice-PublicBodiesReform.pdf.(Last accessed in April 2019). 193 Section 193 of Cr PC provides that, except as otherwise provided, “no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” Somewhat different procedure has been prescribed under sections 208 and 209 depending on whether the case was instituted otherwise than on police report or on police report. 194 Section 204 Cr PC. 195 Amarnath v State, AIR 1969 All 489 : 1969 Cr LJ 1203. 196 MC Sarkar et al, eds, Sarkar’s Law of Evidence, 14th Edn, vol 1 (New Delhi, 1993), vol 1, p 642. Emphasis in the original. 197 Bal Gangadhar Tilak v Shriniwas Pandit, AIR 1915 PC 7 : (1915) 17 Bom LR 527. 198 Kottam v Umar, ILR 46 Mad 117.

Page 7 of 7 7.8 RELEVANCE OF EVIDENCE OF PRIOR PROCEEDINGS: SECTION 33 199 Section 198 (1) Cr PC provides: “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) [offences relating to marriage] except upon a complaint made by some person aggrieved by the offence.” In the case of bigamy, the aggrieved person is the husband or under (1) (c) the wife or her relatives, as the case may be. Section 198 (2) says that only the husband of the woman shall be the aggrieved person in the case of adultery. 200 Under section 198A of Cr PC the Court can take cognizance of the offence under section 498A of IPC only “upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.” 201 Section 199 (1) of Cr PC “upon a complaint made by some person aggrieved by the offence.” 202 MC Sarkar et al, Sarkar’s Law of Evidence, 14th Edn, eds vol 1 (New Delhi, 1993), p 350 203 Chandreswar v Bisheswar, AIR 1927 Pat. 61. 204 Chandreswar v Bisheswar, AIR 1927 Pat.61. 205 Vepa P Sarathi, Law of Evidence, 6th Edn (Lucknow, 2010), p 155. 206 James Fitzjames Stephen, A Digest of Evidence, 12th Edn (1931), Article 32, p 41. 207 185th Report, p 231. 208 Nakpas Khan v Emperor, AIR 1948 Sind 122 : 49 Cr LJ 558. 209 Such a right would arise only after the Magistrate takes cognizance of the offender under section 246 in warrant cases and under section 251 in summons cases. Emperor v Mathews, AIR 1929 Cal 822. 210 Sashi Jena v Khadal Swain, AIR 2004 SC 1492. 211 Jharkhand High Court, para 36, Cr. Appeal No.1089 of 2004, 13 August 2015 (High Court of Jharkhand). 212 Patna, Criminal Appeal (DB) No.491 of 1992, 30 January 2017 (High Court of Judicature). 213 VM Mathew v VS Sharma, 1995 (6) SCC 122. 214 Narsing Das v Gokul Prasad, AIR 1928 All 140. 215 Subrahmanya v Laksminarasamma, AIR 1958 AP 22. 216 Bal v Shrinivas, (1915) ILR 39 Bom 441. 217 Re Ram Reddi, (1881) 3 Mad 48. 218 See above under section 32. 219 Taylor, p 350, footnote (i); S Sarkar, vol 1, p 651; Ratanlal, 21st Edn, p 297; and ND Basu, vol 2, p 1346, para 30.

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7.9 SECTION 33 AND SECTION 326 OF CR PC, 1973 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.9 SECTION 33 AND SECTION 326 OF CR PC, 1973 Under section 326 of Cr PC, 1973 where a matter was heard and the evidence was recorded wholly or in part by a judge in a criminal case and the judge is succeeded by another judge, the successor judge “may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself.” The successor judge may, if he feels it necessary in the interests of justice, resummon any witness and examine, cross examine or re-examine that witness. It has been held that the general provisions of section 33 were not affected by section 326 of Cr PC, 1973.220 As, in this case, the proceeding before the successor judge is a mere continuation of the same proceeding.

220 Lekal v Crown, AIR 1927 Lah 332.

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7.10 SECTION 33 AND SECTION 299 OF CR PC, 1973 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.10 SECTION 33 AND SECTION 299 OF CR PC, 1973 Section 299 (1) of Cr PC dealing with “Record of evidence in absence of accused” provides: If it is proved that an accused person has absconded and that there is no immediate prospect of arresting him, the court competent to try or commit for trial such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount which is included in S. 33of delay, expense inconvenience which, under the circumstances of the case, would be unreasonable.

It can be seen that under the above provision the grounds for admitting the already recorded testimonial evidence are the same as under section 33 except the ground of “keeping the witness out of way by the adverse party”. section 273 of Cr PC incorporates the most fundamental principle of criminal jurisprudence that all evidence must be recorded in the presence of the accused and not behind his back and provides: Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal appearance is dispensed with, in the presence of his pleader.

Section 299 (1) is one such exceptional provision for recording of evidence in the absence of the accused where the accused is absconding and there is no immediate prospect of arresting him and the evidence so recorded can be used as evidence after he is brought for trial after his arrest. 7.10.1 Can the Conditions of sections 33 and 299 be Waived? Some critical issues have arisen as to whether the testimony of the witness in the prior proceeding can be read in the subsequent proceedings without complying with the conditions prescribed under the above two sections where the accused has waived proof of compliance. This topic gas been discussed in detail in chapter 3 under the heading “Objection as to admissibility and as to Mode of proof”.

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7.11 DE BENE ESSE DEPOSITIONS—UK AND USA PRACTICE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.11 DE BENE ESSE DEPOSITIONS—UK AND USA PRACTICE De bene esse, a Latin phrase literally means “of well being” but in legal parlance, it means “good for the present” or “conditional”. A party might propose that the deposition of a witness be taken right away as he is unlikely to be available as a witness at the time of trial. The reasons for unavailability could be many, as for instance, the witness is suffering from a terminal illness and he may not live long to appear as a witness at the trial or he might leave the country for compelling reasons without the possibility of return. In such a case, the deposition de bene esse could be used at the trial if approved by the judge. At that stage, the deposition is “good for the present” in the sense that crucial testimony is not lost sight of. But if it turns out that the witness is available to appear as a witness at the trial, the earlier deposition de bene esse will be ignored or disregarded at the trial as it must be deemed that it was first accepted by the judge as “conditional” one. However, if the earlier deposition de bene esse differs substantially or significantly from the testimony given in the Court at the trial, the former may be used to contradict and impeach the credit of the witness. In the United States of America, the de bene esse procedure that was being followed in Admiralty cases under sections 863–865 of United States Statutes is replaced by Federal Rules of Civil Procedure, (as amended to 1 December 2010) which provide for a different procedure common to admiralty and civil cases.

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7.12 INDIA Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VII STATEMENTS BY PERSONS UNAVAILABLE > Sections 32 & 33

VII STATEMENTS BY PERSONS UNAVAILABLE Sections 32 & 33

7.12 INDIA Order XVIII, rule 16 of CPC, 1908 provides: 16. Power to examine witness immediately.—(1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness, and if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.

In Kishan Lal Gupta v Dujodwala Industries, AIR 1977 Delhi 49, para 7, the Delhi High Court observed: Circumstances may arise in a case where it is not possible for a party to examine his witnesses in Court. A witness may be about to leave the country; another may be too old or dangerously ill; still another may be living either in a foreign country or very far from the place where the Court sits. In order to meet such contingencies, a party is allowed to examine a witness de bene esse or on commission. This is allowed to be done on the condition that if the witnesses continue to be ill or absent during the trial their evidence may be read at the trial, but if they recover or return, then the evidence shall be taken in the usual manner.

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Sections 40–44 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

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9.1 JUDGMENTS RELEVANT INTER PARTES ONLY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.1 JUDGMENTS RELEVANT INTER PARTES ONLY As a rule a judgment binds only the parties and binds them with regard to that particular lis (suit or proceeding) only and not persons who are not parties. The doctrine of precedent means only that the basic legal principle laid down and applied in one case by a superior court will be followed and applied to another case between different parties also if the applicable rule and fact-situation are substantially identical. Even in such a case, what is applied is the reason of the first decision (ratio decidendi) and not the entire judgment, and the second court has to deliver a judgment again even while it follows the principle laid down in the earlier binding precedent. 9.1.1 Exceptions to the Rule The Evidence Act, 1872 makes certain exceptions to the above general rule of irrelevancy of the judgments on important considerations of policy and convenience.

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9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY Section 40 provides: Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Section 40 says that where the question is whether a court should take cognizance of a suit or hold a trial, the fact there is a judgment, order or decree which by law bars the court from proceeding with that case is a relevant fact. In Ajay Singh v Chhattisgarh, 2017, (1) Supreme 335, paras 16, 17, the Supreme Court said: though CrPC does not define the term “judgment”, yet it has clearly laid down how the judgment is to be pronounced”, and that “a judgment, as has been always understood, is the expression of an opinion after due consideration of the facts which deserve to be determined.

Section 2 (9) of Code of Civil Procedure 1908 (CPC 1908) defines a judgment as “the statement given by the judge on the grounds of a decree or order”.1 Section 2 (2) defines a “decree” as meaning “the formal expression of an adjudication which...conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit ... “2 Section 2 (14) states that an “order” means “the formal expression of any decision of a Civil Court which is not a decree”. Thus, the judgment contains the decree or order and also states the grounds on which the Court arrived at its adjudication after the consideration of evidence and the applicable law. Thus, section 40 provides that if in an earlier case the Court has finally adjudicated a matter, that judgment will be relevant in a later case so as to bar the subsequent Court from reopening that matter again.3 9.2.1 Rationale Section 40 is founded on the maxim nemo debet bis vexari pro una et eadem causa (no body shall be vexed twice for one and the same cause) and the maxim interest republicae sit finis litium (it is in the interest of the State that there should be an end to litigation). The Supreme Court observed: It is true that maxim Nemo debet bis vexari pro una et eadem causa is founded on principle of private justice as it states that no man ought to be twice put to trouble if it appear to the Court that it is for one and the same cause. The maxim Interest republicae sit finis litium concerns the State that Law suits be not protracted. This maxim is based on public policy.4

In Indian Council For Enviro-Legal Action v UOI, 2011) 8 SCC 161, paras 114–115, the Supreme Court dealing with a case where a party wantonly delayed with repetitive interlocutory applications the execution of the Apex Court’s judgment rendered more than decade back, expressed its anguish and observed:

Page 2 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY

The maxim ‘interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality.

Thus, the maxim incorporates the principle of (a) private convenience that a person should not be vexed twice for the same cause, and (b) of public policy that it is in the best interests of peace and harmony of a State and the people at large to ensure that there should be a finality to litigation,5 and that multiplicity of suits must be avoided. The above principle finds application in both civil and criminal laws.6 9.2.2 Res judicata in Civil Law In civil law the maxim is res judicata pro veritate accipitur or in short res judicata which means that when a case has been finally adjudicated by a Court of competent jurisdiction the matter cannot be reopened and re-litigated again between the same parties or their representatives in interest. “Res judicata literally means a—thing adjudicated or— an issue that has been definitively settled by judicial decision”.7 This rule is incorporated in section 11 of the CPC 1908. Suppose A files a civil suit for damages for defamation against B and the Court finally dismisses his suit. A cannot file another suit against B regarding the same matter because section 11 of CPC bars such repetitious and vexatious suits. In Satyadhyan Ghosal v Deorajin Debi, AIR 1960 SC 941,8 explaining the principle of res judicata the Supreme Court observed: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.9

It has been held that: Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.10

However, if in a litigation for a particular property a pure question of law had been decided, the decision will not operate as res judicata in subsequent proceedings between the same parties but for different property.11 Though section 40 uses the terms “suit or trial”, it is not necessary that all the issues that were the subject matter of the earlier case should also form part of the lis in the later case or vice versa. For instance, where the question whether A is the adopted son of B is settled by a Court holding in favour of A’s adoption, that judgment bars a later Court dealing with partition of B’s properties from reopening the issue of A’s adoption. So the bar of res judicata can apply even regarding a particular issue and this is called “issue estoppel”.12 As observed by the Law Commission, “obviously, the section should be construed widely, so as to cover such cases also”.13 In Masud Khan v State of UP, 1974 AIR 28 : 1974 SCR (1) 79314 the Supreme Court observed: Issue-estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions... The principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently, even for a different offence which might be permitted by law... The rule thus relates only to the admissibility of evidence which is designed to upset a

Page 3 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY finding of fact recorded by a competent court at a previous trial.15

9.2.3 Autrefois Convict and Autrefois Acquit in Criminal Law What is Res Judicata to civil law, Autrefois Convict and Autrefois Acquit are to criminal law.16 The French words autrefois convict mean “previously convicted” and autrefois acquit mean “previously acquitted”. Thus, where a person has been tried for an offence and convicted or acquitted, as the case may be, finally by a Court of competent jurisdiction, it is unfair to try him for the same offence all over again as such a prosecution amounts to persecution. Section 300 (1) of Code of Criminal Procedure 1973 (Cr PC 1973)17 incorporates both these principles and provides: A person who once has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence...

The Explanation to section 300 clarifies that “the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section”.18 Under section 203 of Cr PC, the complaint against a person can be dismissed by the Magistrate if he “is of the opinion that there is no sufficient ground for proceeding”. Similarly, under section 227 of Cr PC the Judge, after consideration of the record and after hearing the prosecution and the accused, may discharge the accused if he considers that “there is no sufficient ground for proceeding against the accused”.19 In the case of the dismissal of complaint or of the discharge of the accused, there is no commencement of trial as such, and the preliminary condition of section 300 that the person should have been “tried” for an offence and “convicted or acquitted” of such an offence is not fulfilled. So, the process of a fresh trial can be re-commenced after such a dismissal of complaint or discharge of the accused.20 The above legal protection given to the accused under the doctrine of autrefois convict and autrefois acquit is also referred to as the Doctrine of Double Jeopardy. The idea is that an accused should not be put to jeopardy or peril of trial and punishment twice for the same offence. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. It was reiterated by American Supreme Court in Bravo-Fernandez et al v US, (2016) 194 L Ed 2d 585, that “the Clause protects against a second prosecution for the same offense after conviction; as well, it protects against a second prosecution for the same offense after acquittal”.21 If the same act of the accused constitutes an offence under more than one criminal enactment, section 26 of the General Clauses Act, 1897, provides that “then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence”. In other words, if the same act is an offence under IPC, 1860 and also under the Prevention of Corruption Act, 1988 the offender can be prosecuted and punished under either the IPC or PCA but not under both the enactments.22 In Lusmikant v Bureau of Indian Standard Act,23 2015, the MP High Court observed: In view of aforesaid judgments of Supreme Court, it is clear that the litmus test to ascertain whether two offences are the same is not the factual foundation or identity of allegations but the identity of the ingredient of offence”.

It is interesting to note that this substantive right of the accused against Double Jeopardy is provided for in procedural Codes like Cr PC and the Indian Evidence Act, 1872.24 Article 20 (2) of the Constitution elevates the protection against Double Jeopardy to that of a fundamental right and provides: “No person shall be prosecuted and punished for the same offence more than once”. As this Constitutional provision requires that the accused must have been “prosecuted and punished”, it is evident that for the right to be available to the accused (i) the prosecution must have taken place and (ii) the accused must have been punished. The requirement of prosecution eliminates mere dismissal of complaint or discharge of the accused and places the Constitutional provision on par with the Explanation to section 300 of Cr PC. On the other hand, the requirement of punishment covers only autrefois convict and omits autrefois acquit.25 Thus, while both autrefois convict and autrefois acquit are protected as ordinary legal rights under section 30026 (and, hence, also under section 40 of the Evidence Act, 1872), autrefois convict is elevated to the position of not only a constitutional right but also a fundamental right.27

Page 4 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY Explaining the operation of the doctrine of aurefois acquit, in Sambasivam v Public, Prosecutor, Federation of Malaya, 1950 AC 458, Lord MacDermott speaking for the Privy Council said: the effect of a verdict of an acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.28

It must, however, be mentioned that doctrines of autrefois convict and autrefois acquit bar only the State from repeated prosecutions and/or convictions of an accused for the same offence, and the doctrines are not a complete extension of res judicata or constructive res judicata or issue estoppel to criminal law and hence, in Kalyan Chandra Sarkar v Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284 the Supreme Court observed that “the principles of res judicata and such analogous principles ... are not applicable in a criminal proceeding”. Thus, there is no bar against the accused filing successive habeas corpus petitions under Articles 226 or 32 of the Constitution,29 or bail petitions30 even if the earlier petitions have been dismissed. 9.2.4 UK “Abrogates” Doctrine of Double Jeopardy In the case of R v Norris, [2013] EWCA Crim 712, the Court of Appeal has observed that section 76 of the Criminal Justice Act of 2003 has “abrogated” the doctrine of Double Jeopardy. Section 76 provides: (1) A prosecutor may apply to the Court of Appeal for an order— (a) quashing a person’s acquittal in proceedings within section 75 (1), and (b) ordering him to be retried for the qualifying offence. (2) A prosecutor may apply to the Court of Appeal, in the case of a person acquitted elsewhere than in the United Kingdom, for— (a) a determination whether the acquittal is a bar to the person being tried in England and Wales for the qualifying offence, and (b) if it is, an order that the acquittal is not to be a bar. (3) A prosecutor may make an application under subsection (1) or (2) only with the written consent of the Director of Public Prosecutions. (4) The Director of Public Prosecutions may give his consent only if satisfied that— (a) there is evidence as respects which the requirements of section 78 appear to be met, (b) it is in the public interest for the application to proceed, and (c) any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem. (5) Not more than one application may be made under subsection (1) or (2) in relation to an acquittal. The terms “qualifying offence” in section 76 (1)(a) mean, according to section 75 (8), the offences listed out in Part I of Sch 5 of the Act which includes a fairly long list of serious offences like murder, manslaughter and rape. Section 78, to which reference is made above in section 76 (4)(a), deals with “New and Compelling Evidence” and provides: (1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence. (2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related). (3) Evidence is compelling if— (a) it is reliable, (b) it is substantial, and

Page 5 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. (4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related. (5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person. In Norris case referred to above, Norris and Dobson and three other whites were arrested for the brutal murder of Stephen Lawrence, a black man, but the prosecutions were either discontinued as in Norris’ case or resulted in acquittal as in Dobson’s case for insufficient evidence. Charges of racist prejudice were made against the investigation, and private prosecutions were commenced. A public enquiry under the chairmanship of Sir William Macpherson of Cluny was set up and in 1999 his report31 recommended, inter alia, that the rule of Double Jeopardy “should be abrogated: this change was effected by section 76 of the Criminal Justice Act, 2003”.32 In the case of the other accused prosecuted in R v Dobson, [2011] EWCA Crim 1256 : [2011] 1 WLR 3230 the Court of Appeal characterized Double Jeopardy as “ancient rule”33 and ordered fresh trial on prosecution applying for quashing of the acquittal on providing new and compelling forensic evidence under section 76 read with section 78 of CJA. The Court observed: This decision means, and we emphasise that it means no more than that the question whether Dobson had any criminal involvement in Stephen Lawrence’s death must be considered afresh by a new jury which will examine the evidence and decide whether the allegation against him is proved. The presumption of innocence continues to apply.34

Norris was rearrested and the Court of Appeal rejected Norris’ plea that the trial judge was wrong in referring to the jury the forensic evidence, and the Court paved the way for the trial of Norris’ as his prosecution was earlier abandoned and he was not tried as was the case with Dobson. No quashing of acquittal was found necessary as there was not even a trial as such. 9.2.5 Section 40 and Judgments in Civil and Criminal cases inter se The maxim nemo debet bis vexari operates as a bar between civil cases inter se and criminal cases inter se but not between civil cases and criminal cases. Suppose, A prosecutes B for committing adultery with A’s wife and B is convicted. Subsequently, A files a suit for divorce against his wife on the ground of adultery with B. Though, the first is a criminal case and the second a civil suit, the issue in both the cases is whether B committed adultery with A’s wife. Nevertheless, the judgment in adultery case is not applicable to the divorce suit and the second Court has to independently arrive at its own conclusion whether A’s wife committed adultery with B. This is so even though the standard of proof required in the criminal case of adultery is proof beyond all reasonable doubt which is higher than the test of mere preponderance of probabilities in the civil case of divorce. Even the evidence of witnesses recorded in the adultery case cannot be used in the divorce case under section 33 as the parties were different—in the former case the parties were A and B35 and in the latter they were A and his wife.36 The resultant legal position will be same even if the sequence of judgments is reversed and the divorce case is decided first and the criminal prosecution for adultery later. However, if in the earlier criminal case the judgment was founded on the plea of guilty by the accused, that plea and the judgment can be proved in the subsequent civil case if the same issue arises again.37 However, there has been conflict of opinion on the inter se operability of judgments in civil and criminal cases. The Privy Council observed in Emperor v Khwaja Nazir Ahmad, AIR (32) 1945 PC 18, para 28, that “it is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations”. In Karam Chand Ganga Prasad v UOI, AIR 1971 SC 1244 : 1971 Cr LJ 1072 : (1970) 3 SCC 694, para 4, it was held: It is a well established principle of law that the decisions of the civil Courts are binding on the criminal Courts. The converse is not true”. In BN Kashyap v Emperor, AIR 1945 Lahore 23, it was stated that: to hold that...it would not be open to criminal Courts to go behind the findings of the civil court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration in this country.

Page 6 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY In MS Sheriff v Madras, AIR 1954 SC 397 a Constitutional Bench of the Supreme Court had to deal with a different but related issue of precedence between two parallel civil suits for damages for wrongful confinement and two criminal prosecutions under IPC for wrongful confinement. Pointing out that “there is some difference of opinion in the High Courts of India on this point”, the Apex Court held that “as between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence”. The Apex Court opined that (1) “a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime”; and (2) “it is undesirable to let things glide till memories have grown too dim to trust” [of witnesses]. But, “this, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution”. However, in V M Shah v Maharashtra, 1996 AIR 339 : 1995 SCC (5) 767 after noting the decision in MS Sheriff, the Apex Court held that, as there is no hard and fast rule, “the findings recorded by the criminal court stand superseded by the findings recorded by the civil court”, particularly when the civil Court “after full dressed trial recorded the finding”. Finally, in KG Premshanker v Inspector of Police, (2002) 8 SCC 87, the Supreme Court held that: If the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff’s case... would be binding, Hence, the observation made by this Court in V. M. Shah v State of Maharashtra and anr.38 that the finding recorded by the criminal Court stands superseded by the finding recorded by the civil Court is not correct enunciation of law.39

In other words, there is no automatic rule of precedence between judgments in civil and criminal cases. If the judgment in a civil case comes under sections 40 to 43, such a judgment will be “relevant” in a criminal case and the Criminal Court will consider it depending on the circumstances of the case (as in V M Shah), but if the judgment is conclusive under the terms of section 41 it will prevail and be binding on the criminal Court. In the Australian case of Beckett v The State of New South Wales, [2013] HCA 17 the Director of Public Prosecutions directed that eight charges of offences alleged to have been committed by Becket against her husband should not be proceeded with. The trial judge treated that direction as nolle prosequi (prosecution’s plea of “unwilling to prosecute”) and followed Davis v Gell, [1924] HCA 56 : (1924) 35 CLR 275, which held that: acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain the action and cannot be assumed....where there is termination but no acquittal the question of guilt is open.40

In Becket, the High Court of Australia declined to follow its earlier decision in Davis and held that in all proceedings in which the prosecution has, for whatever reason, terminated favourably to the plaintiff, she is not required to prove her innocence. The relevance of these decisions for the purpose of the discussion of inter se operability of judgments in civil and criminal cases is not that a judgment in a criminal case acquitting the accused is relevant in a subsequent civil case. In the case of civil suit for malicious prosecution, an essential ingredient, inter alia, is that the plaintiff has been acquitted of the charge in the earlier criminal case maliciously filed by the defendant. Thus, the prior decision of acquittal is a fact in issue41 in the later civil suit. The Becket decision holds that the effect of plea of nolle prosequi in the earlier criminal case is the same as acquittal after trial.42 Section 321 of Indian Cr PC also provides for “Withdrawal from prosecution” and states: The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried” and that would result in discharge if no charge has been framed, or in acquittal if charge has been framed.

9.2.6 Article 311 (2) of Indian Constitution Article 311 of the Indian Constitution deals with penalties in the service by way of “dismissal, removal or reduction in

Page 7 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY rank” of a civil servant and provides in clause (2) that the penalty cannot be imposed “except after an enquiry” in which the incumbent is (a) informed of the charges and (b) he has been given an opportunity of being heard with regard to those charges. However, the second proviso to that clause says that the clause “shall not apply— (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge”. Suppose, a civil servant was found to indulge in corruption in the discharge of his duties which is a ground for disciplinary action as well as a criminal prosecution. Then, the requirements as to enquiry, intimation of charges and the right to be heard under Article 311 (2) shall be dispensed with and the penalty may be imposed on the incumbent in disciplinary proceedings if he was convicted by a criminal court for the very same conduct, which is also a crime. The terms “shall not apply” in the proviso indicate that the conviction operates as a bar to the disciplinary enquiry. 9.2.7 Double Jeopardy under Article 20 (3) and Disciplinary Proceedings As pointed out above, for the same cause of action like accepting a bribe, a person may be proceeded against in a disciplinary proceeding and also prosecuted under criminal law if that conduct amounts to an offence. Maqbool Hussain v Bombay, [1953] SCR 703 it was held that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence. In Venkataraman v UOI, AIR 1954 SC 375 the question arose whether disciplinary proceedings before the commissioner of enquiry under conduct rules of an employee and the employee’s prosecution under criminal law would amount to double jeopardy. The Supreme Court rejected the appellant’s contention on the grounds that (a) the commissioner of enquiry was merely a fact-finding authority who would report his findings without the power to take action and (b) “if we are to accept the petitioner’s contention as correct, the man cannot be prosecuted for it, even though the authority inflicting the penalty of removal was not a competent court to investigate any criminal charge nor was the punishment imposed in exercise of disciplinary jurisdiction a punishment for an offence”. The same legal position holds good even in the United States and it is said that the disciplinary proceedings are “free of punitive criminal intent” and are therefore not “essentially criminal in nature”.43 9.2.8 Successive Disciplinary Proceedings and Double Jeopardy– English Case (2011) In R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales (2011), AIR 1954 SC 375 an interesting question arose whether double jeopardy will bar successive disciplinary proceedings. In that case, the appellant, Coke-Wallis, was a chartered accountant and a member of the respondent Institute of Chartered Accountants in England and Wales, which was the professional body responsible for the regulation of chartered accountants. Coke-Wallis formerly practised in Jersey, Scotland, where he and his wife were directors and shareholders in a number of trust companies carrying out regulated financial services work. In September 2003 Coke-Wallis and his wife were convicted in Jersey of failing to comply with a direction of the Jersey Financial Services Commission that no records or files in respect of the companies were to be removed from the offices of the companies, having been caught by police attempting to take away by ferry suitcases containing documents and records relating to the companies from the jurisdiction of the Jersey authorities. In November 2004, relying on the Jersey conviction, the Institute’s Investigation Committee preferred a complaint (“first complaint”) against CokeWallis, alleging that he was liable to disciplinary action under the Institute’s bye-laws. The first complaint was dismissed by a disciplinary committee (“the tribunal”) in April 2005 on the basis that the tribunal was not satisfied that the offence of which Mr Coke-Wallis was convicted in Jersey corresponded with any indictable offence in England and Wales. When the Institute initiated second complaint against Coke-Wallis on substantially same charges, he approached the Courts on the ground that the proceedings on the second complaint after the dismissal of the first complaint were violative of autre fois/res judicata doctrine. After his appeal was dismissed by the Court of Appeals, Coke-Wallis approached the Supreme Court of the UK and the main question before the Court was whether the double jeopardy doctrine applied to second disciplinary proceeding after the failure of the first disciplinary proceeding. The Supreme Court unanimously allowed the appeal and held that the principle of res judicata required that the second complaint be dismissed. Earlier also in Harry Lee Wee v Law Society of Singapore, [1985] 1 WLR 362, Lord Bridge said: No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which any profession is governed.44

Page 8 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY Both in Harry Lee Wee and Coke-Wallis the Courts considered the question from the angle also of professions like health care where stringent disciplinary actions by professional monitoring bodies might be necessary to protect the patients’ interests, but, still, they considered nemo debit bis vexare maxim to be too transcendental.45 9.2.8.1 Multiple Investigations The Doctrine of Double Jeopardy applies only to prevent retrial of an accused for the same offence after he has been duly tried and acquitted or convicted finally, as the case may be, by a court of competent jurisdiction. As was discussed above, if the accused is merely discharged, he can be tried. The law also provides safe-guards to the accused person to ensure speedy and fair trial to protect him against prolonged investigations by the police and prolonged trials by the courts which can cause jeopardy to the personal liberty and freedom of the accused. The doctrine does not per se bar multiple investigations by the police with regard to the same accused for the same offence though such vexatious investigations can cause considerable harassment to the accused. In Emperor v Khwaja Nazir Ahmad, AIR (32) 1945 PC 18 the Privy Council spelt out the power of the investigation of the police, as follows: In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court.

In fact, interference and directions to the police by the Court in the process of investigation after it has taken cognizance of the case and issued process might cause apprehensions of bias. In TT Antony v Kerala, (2001) 6 SCC 181, the Supreme Court pointed out that harassment could be meted out to the accused by repeated investigations and observed: However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173 (2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case.

In Amrutbhai Shambhubhai Patel v Sumanbhai Kantibhai Patel, 3 (2017) 4 SCC 177 : 2017 Cr LR (SC) 219 the Court referred to the powers of the trial Court under section 311, Cr PC 1973, to summon witnesses and under section 319 to add accused, and held: neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial.

In Athul Rao v Karnataka,46 after the police investigated the complaint filed by the mother of the second complainant, completely investigated the case, and filed charge sheet, and the trial Court issued the process, the second complainant filed the complainant alleging other offences arising out of the same incident, the Court held that the trial Court was right in rejecting the second complaint, and said: The respondent No. 2 is not the complainant. The complaint in question was instituted by the mother of respondent no. 2. She was not the applicant [in the present appeal]. In any case, at the instance of respondent no. 2, it was not open to the Court to direct further investigation as the Trial Court had already framed charges and taken cognizance of the case against the appellant who appeared before it in the said proceedings. The prayer for further investigation was not at the instance of the investigating agency nor on the ground of detection of material evidence.

Page 9 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY 1

The Court also said: “The provisions clearly spell out that it is imperative on the part of the learned trial judge to pronounce the judgment in open court by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative part of the judgment”. It has been held by Madras High Court in Re Athipalayan, (1960) 2 Mad LJ 450, para 4, that “the judgment must be pronounced in open court, signed and dated”. In both the above cases, the trial judge merely announced the conviction and sentence but did not write and sign and pronounce the judgment. In Ajay Singh, the Court said, at para 19, “as is evincible in the instant case, the judgment is not available on record and hence, there can be no shadow of doubt that the declaration of the result cannot tantamount to a judgment as prescribed in the Cr PC “.

2

In Rishabh Chand Jain v Ginesh Chandra Jain, (2016) 6 SCC 675, it was stated: “In terms of section 2 (2), it is only where court adjudicating a case, conclusively determines rights of parties with regard to any one or more or all matters in controversy, that it qualifies as “decree”.

3

In Maharashtra v Ramdas Shrinivas Nayak, (1982) 2 SCC 463, the Supreme Court has held that “the principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence”.

4

Commissioner of Central Excise, Nagpur v Shree Baidyanath Ayurved Bhavan Ltd, (2009) 12 SCC 419.

5

Nagabhushanammal (D) by LRS v Chandikeswaralingam, 2016 (3) Scale 5.

6

See the discussion under section 115 on doctrine of cause of action estoppel and issue estoppel.

7

Nagabhushanammal (D) by LRS v Chandikeswaralingam, 2016 (3) Scale 5, para 14. However, if in a litigation in between the same parties for a particular property, a pure question of law had been decided, the decision will not operate as res judicata in subsequent proceedings for different property. Satyendra v Raj Nath Dubey, AIR 2016 SC 2231.

8

In Sheoparsan Singh v Ramnandan Singh, AIR 1916 PC 78, Privy Council observed: “Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: “If a person though defeated at law, sue again, he should be answered, ‘you were defeated formerly’. This is called the plea of former judgment.’... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law”.

9

Dr Subramanian Swamy v State of TN, (2014), para 24 AIR 2015 SC 460 : 2015 (2) SCJ 47. Also, Tarini Charan Bhattacharjee v Kedar Nath Haldar, (1928), 115 Ind Cas 593. “The question whether a decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata”; Abhoy Kanta Gohain v Gopinath Deb Goswami, AIR 1943 Cal 460 : “Correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata”.

10 Satyendra Kumar v Raj Nath Dubey, AIR 2016 SC 2231. 11 See the discussion under section 115 on “Issue Estoppel”. 12 The 69th Report of the Law Commission, p 296, para 16:6. 13 In Assistant Collector of Customs v L R Malwani, AIR 1970 SC 962, it was said: “The issue estoppel rule is but a facet of the doctrine of autrefois acquit”. 14 In State ofAP v Kokkiliagada Meerayya, AIR 1970 SC 771 : 1969 SCR (2) 62, the Court said: “the rule of issue estoppel in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of section 403 of the Code of Criminal Procedure [1898]” and the Court referred to a number of decisions where the Apex Court approved and applied the rule. In Connelly v Director of Public Prosecutions, [1964] 2 AC 1254 , Lord Lawton stated: “there is some English authority and a large amount of Australian, New Zealand and United States authority to support the submission that where, in the course of deciding a total cause of action, one specific issue is determined, then, if that issue arises as an essential ingredient in subsequent proceedings between the same parties, that issue cannot be relitigated”. Also in Sealfron v US, (1948) 332 US Rep. 575. 15 In Connelly v Director of Public Prosecutions, [1964] AC 1254 : [1964] 2 All ER 401, it was said: “In civil law the doctrine of res judicata occupies the same place as the plea of autrefois does in the criminal law”. In Pritam Singh v Punjab, AIR 1956 SC 415 : 1956 Cr LJ 805, the Apex Court stated that “The maxim ‘res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings”. Also, Sambasivam v Public, Prosecutor, Federation of Malaya, 1950 AC 458 PC, (per Lord MacDermott). See for an exhaustive discussion of case-law, Moosa v Sub Inspector of Police, 2006 Cr LJ 1922 : 2006 (1) Ker LT 552 (per PR Raman, J). 16 Before the Cr PC 1973 was amended by the Act II of 1974, the corresponding section was section 403. 17 In Ratilal Bhanji Mithani v Maharashtra, 1979 AIR 94 : 1979 SCR (1) 993, the Supreme Court observed: “it is clear that in a warrant case instituted otherwise on a police report, ‘discharge’ or ‘acquittal’ of accused are distinct concepts

Page 10 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY applicable to different stages of the proceedings in Court. The legal effect and incidents of ‘discharge’ and ‘acquittal’ are also different”. 18 In UOI v Prafulla Kumar Samal, (1979) 3 SCC 4, the Apex Court said: “The Judge while considering the question of framing the charges under section 227 of the Cr PC 1973 has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case”. Also, Sajjan Kumar v CBI, JT 2010 (10) SC 413 : (2010) 9 SCC 368. 19 Where on the first complaint the accused has been discharged, it was held that “proceedings in the second complaint would not be barred, because no trial had been conducted against the respondent, in furtherance of the first complaint”. Ravinder Kaur v Anil Kumar, 2015 (4) Supreme 208. In the decision of Martinez v Illinois, 572 US _(2014), the prosecution, after being given repeated adjournments for producing two key witnesses, failed to produce them and submitted that it would not “participate” in the prosecution any more, the trial judge swore in the jury and proceeded to give the verdict of not guilty. The Supreme Court of Illinois reversed the trial court verdict and held that Martinez’s trial has not started and he “was never at risk of conviction” as the prosecution did not commence and that he could still be prosecuted. The US Supreme Court, reversing the decision of Illinois Supreme Court, held that it “consistently treated as a bright-line rule: A jury trial begins, and jeop ardy attaches, when the jury is sworn” and that “Martinez was subjected to jeopardy because the jury in his case was sworn .... Here, there is no doubt that Martinez’s jeopardy ended in a manner that bars his retrial: The trial court acquitted him of the charged of fenses”. In Director of Public Prosecutions v Jarman, [2013] All ER (D) 116, when J’s case was listed for trial the prosecutor was not present and the case was dismissed for want of prosecution. The prosecution then issued information for the same offence which was stayed on the basis of autrefois acquit. The Magistrates’ Courts Act, 1980 provides in section 27: “Effect of dismissal of information for offence triable either way. Where on the summary trial of an information for an offence triable either way the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment”. Section 15 says: “Non appearance of prosecutor. (1) Where at the time and place appointed for the trial or adjourned trial of an information the accused appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information or, if evidence has been received on a previous occasion, proceed in the absence of the prosecutor. (2) Where, instead of dismissing the information or proceeding in the absence of the prosecutor, the court adjourns the trial, it shall not remand the accused in custody unless he has been brought from custody or cannot be remanded on bail by reason of his failure to find sureties”. On appeal by DPP, lifting the stay, it was held that “a dismissal under section 15 Magistrates’ Courts Act, 1980 did not have the same meaning as under section 27 as in the instant case J was charged with a summary only matter. The defendant had not been in peril of conviction and therefore autrefois acquit did not apply”. In relation to England and Wales, the expression “offence triable either way” means an offence, other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act, 1988, which, if committed by an adult, is triable either on indictment or summarily. 20 The courts in United States were confronted with the problem of “issue estoppel” in cases where the jury gave contradictory verdicts on the same facts and similar issues and the accused claimed acquittal on one charge because they have been acquitted on the other charge on identical facts. Sometimes, the jury gave conviction verdict on the compound offence but acquittal verdict on a component offence or one hung verdict. In Bravo-Fernandez, the accused were convicted of giving and taking bribe for securing favourable legislation from the State Senate but were acquitted of conspiracy which went undisputed in bribery charge. The Trial Court wrongly counseled the jury that “gratuity” is the same as “bribery” and their conviction on that count by the jury was vacated on appeal. The Supreme Court, relying on US v Powell, 469 US 57, 63, 65 (1984), held that the “Powell’s starting point was our holding in Dunn v US, 284 US 390 (1932), that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s verdict of acquittal on another count”. The Court also held that “issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency”. Bravo-Fernandez et al v US, (2016) 194 L. Ed 2d 585, pp 12–19. Lissa Griffin, “Untangling Double Jeopardy in Mixed-Verdict Cases”, 63 SMU L Rev 1033 (2010), http://digitalcommons.pace.edu/lawfaculty/658/ (last accessed in April 2019); Daniel K Mayers & Fletcher L Yarbrough, “Bis Vexari: New Trials and Successive Prosecutions”, 74 Harv. L. Rev. 1, (1960), pp 38–39. 21 In a long chain of decisions, the Supreme Court and the High Courts have consistently held that under Article 20 (2), section 300 of the Cr PC 1973 and section 26 of the General Clauses Act, the bar of Double Jeopardy applies only when the two offences are identical i.e., their ingredients are the same. If the two offences are distinct, mere similarity of facts or allegations in the prosecutions do not make them identical. Maqbool Hussain v Bombay, (1953) 4 SCR 730; TS Baliah v TS Rangachari, (1969) 3 SCR 65; Bombay v SL Apte, (1961) 3 SCR 107; VK Agarwal v Vasantraj B Bhatia, (1988) 3 SCC 467; Rajasthan v Hat Singh (2003) 2 SCC 152; Jeewan Kumar Raut v CBI, 1994 (2009) 7 SCC 526; Leo Roy Frey v Superintendent, District Jail, [1958] SCJ 301 : 1958 SCR 822 : AIR 1958 SC 119 : [1958] Mad LJ (Crl) 289; RR Sinha v Jharkhand (2011), Om Prakash v The State, AIR 1955 All 275 : 1955 Cr LJ 754. If one of the actions against the accused is an executive one like confiscation of property and not a judicial prosecution, the bar does not apply. Maqbool Hussain v Bombay, (1953) 4 SCR 730. Under Article 20 (2) there should be both prosecution and punishment. SA Venkataraman v UOI, (1954) SCR 1150. In Gian Chand Madhok v State (MP),1954 Cr LJ 1481, it was held that difference in the punishment, the requirement as to prior sanction for prosecution and the special rules of evidence cannot make it an offence. Justice MC Chagla held in The State v Pandurang Baburao, AIR 1955 Bom 451 :

Page 11 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY (1955) 57 Bom LR 868 that “there is clear legislative sanction in favour of the option to be exercised by the prosecution” whether to prosecute under one or the other enactments. Also, Re Bapanaiah, AIR 1970 AP 47, 1970 Cr LJ 199. 22 Lusmikant v Bureau of Indian Standard Act, Madhya Pradesh, para 16, Misc. Criminal Case No. 5411/2014, decided on 2 September 2015 (Madhya Pradesh High Court). 23 Prior to amendment, section 491 of Cr PC 1898, conferred the statutory right to the writ of Habeas Corpus which is now a fundamental right under Article 32 (Supreme Court) and a constitutional right under Article 226 (High Courts). 24 Section 120 of the Indian Air Force Act, 1950, provides: “When any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, ... he shall not be liable to be tried again for the same offence by a court-martial or dealt with under the said sections”. (See also, section 121 of the Army Act in similar terms). On the other hand, section 126 states: “Successive trials by a criminal court and a court-martial. (1) A person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence, or on the same facts”. Thus, section 120 bars a retrial of a service person for the same offence by a Court Martial after he has been acquitted or convicted by a Criminal Court or Court Martial, section 126 permits retrial of a service person by a Criminal Court with the prior sanction of the Central Government after he has been convicted or acquitted by a Court Martial. Article 33 says that “Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—(a) the members of the Armed Forces; or ... be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them”. Section 1 of the Evidence Act, 1872 excludes its application to Courts Martial set up under the Army, Navy and Air Force acts. 25 In State of AP v Kokkiliagada Meerayya, AIR 771 : 1969 SCR (2) 626, the Supreme Court said that section 403 Cr PC, 1898 (present section 300), “governs the entire principle of autrefois acquit and autrefois convict”. 26 Venkataraman v UOI, AIR 1954 SC 375. 27 This statement of the law was quoted with approval by the Supreme Court in Pritam Singh v Punjab, AIR 1956 SC 415 : 1956 Cr LJ 805; Piara Singh v Punjab, 1969 1 SCC 379; and Manipur Administration v Thokchom Bira Singh, 1964 7 SCR 123. 28 Ghulam Sarwar v UOI, AIR 1967 SC 1335 (Article 226); Srikant v District Magistrate, (2007) 1 SCC 486; Lallubhai Jogibhai Patel v UOI, AIR 1981 SC 728; Nazul Ali Molla v State of WB, 1969 (3) SCC 698 (Articles 226 and 32). 29 Kalyan Chandra Sarkar v Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284. 30 See The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William MacPherson of Cluny, 1999, (Command Papers, No. 4262-I), available at http://www.archive.official-documents.co.uk/document/cm42/4262/sli-47.htm (last accessed April 2019). The report recommended, inter alia: “38. That consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented”. The Law Commission of UK in its Report on “Double Jeopardy and Prosecution Appeals”, March 2001, Part VIII, http://www.lawcom.gov.uk (last accessed April 2019), also recommended that the rule “should be subject to an exception in certain cases where evidence is discovered after an acquittal”. The exception should be confined to cases of homicide like murder, genocide. R v Norris, [2013] EWCA Crim 712, para 1). It was also said that the evidence should be “reliable and compelling” (para 3) and it should be in the “interests of justice” that there should be a retrial, (para 4). The “appropriate Court” will be the Court of Appeal, Criminal Division, (para 5). Lord Auld, welcoming the Law Commission’s exception “under stringent standards”, proposed that the exception should be extended to other graver offences also. Lord Justice Auld, Review of the Criminal Courts of England and Wales, 2001, chapter 12, para 63, http://webarchive.nationalarchives.gov. uk/+/http://www.criminal-courts-review.org.uk/ccr-00.htm (last accessed April 2019). The CJA has, in fact, extended the exception to other non-homicidal grave offences. However, Michael Zander sounds a warning and says: “This is novel and potentially very difficult and controversial terrain. Testing the workings of the concept for a few years would enable every one ... to get the feel of it in order to decide whether it should be retained, scrapped or extended”. Michael Zander QC, “Lord Justice Auld’s Review of the Criminal Courts—a Response”, http://www.lse.ac.uk/collections/law/staff%20publications%20 full%20text/zander/auld_response_web.pdf (last accessed April 2019). 31 R v Norris, [2013] EWCA Crim 712, para 2. It is submitted, with respect, that the report did not propose the abrogation, as such, of Double Jeopardy rule but, as mentioned above, only that the Court of Appeal be authorized “to permit prosecution after acquittal where fresh and viable evidence is presented”. In fact, under CJA, certain preconditions are to be met before a retrial can start: (1) the offence must be a “qualifying offence”; (2) The DPP must give his written permission; (3) DPP must satisfy himself that (a) new and compelling evidence is available and (b) it is in public interest to retry the accused; and (4) the prior acquittal is quashed and retrial is ordered by the Court of Appeal. See also, Alisdair Gillespie, The English Legal System, (Oxford, 2007), p 398; and Nyssa Taylor, “England and Australia Relax the Double Jeopardy Privilege for Those Convicted of Serious Crimes”, 19 Temple International & Comparative Law Journal, (2005), p 189 ff. 32 R v Dobson, [2011] EWCA Crim 1256 : [2011] 1 WLR 3230, para 5. 33 Ibid, para 15.

Page 12 of 12 9.2 SECTION 40: RES JUDICATA AND DOUBLE JEOPARDY 34 As mentioned in the discussion under section 33, though the State is a party as the prosecutor in the criminal case of adultery, as the complainant is also deemed to be party. 35 See, Gulab Chand v Chunnilal, (1907) 9 Bomb LR 1134. In that case of civil suit for damages for malicious prosecution, the Court held that the judgment of acquittal and the evidence recorded in the earlier criminal case against the present plaintiff were inadmissible. 36 B Meenakshisundaram Chetty v Kuttimalu, (1958) Ker 39. 37 V M Shah v State of Maharashtra, 1996 AIR 339 : 1995 SCC (5) 767. 38 Followed in Air Customs Officer Igi New Delhi v Pramod Kumar Dhamija, AIR 2016 SC 934 : 2016 (3) SCJ 217. 39 Emphasis in the original. 40 See, the discussion on relevancy of a judgment as a fact in issue under section 43 below. 41 In Davis the Court opined that the termination of prosecution by nolle prosequi may be favourable to the accused in the sense that the criminal proceedings come to an end but that is not the same thing as acquittal. See, the discussion on relevancy of a judgment as a fact in issue under section 43 below. With respect, it is submitted that Beckett was rightly decided. If the termination of proceedings on the plea of nolle prosequi is not treated as amounting to acquittal and the “question of guilt is open” as Davis held, the accused will be at a great disadvantage as he is left with no legal means of proving his innocence in the earlier criminal case, and proceeding against the malicious accuser. Or, the “question of guilt” in a criminal case has to be decided in the civil suit for malicious prosecution but, in that case, the precondition of suit for malicious prosecution that the accused must have been acquitted will not be met. 42 Helvering v Mitchell, 303 US 391 (1938). 43 Harry Lee Wee v Law Society of Singapore, [1985] 1 WLR 362, p 368G. 44 R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales, [2011] UKSC 1, para 45 (per Lord Clarke). The Supreme Court explicitly left to Parliament the policy question whether a public policy exception should be made to nemo debit bis vexare rule in the case of professional disciplinary proceedings. 45 Athul Rao v Karnataka, AIR 2017 SC 4021 : 2017 (9) SCJ 207 . 46 Phipson, Law of Evidence, 10th Edn, Michael V Argyle, ed, (London, 1963), p 507, section 1343.

End of Document

9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS 9.3.1 Kinds of Judgments–in rem and in personam Judgments are classified into (a) judgment in personam and (b) judgment in rem. As Phipson points out, in the present context the terms in rem and in personam “have never been clearly defined”.47 The operative portion of a judgment is the decree which is “the formal expression of an adjudication which...conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit ... “48 If that determination of the rights of the parties affects only the parties and none else, such a judgment is called judgment in personam. However, if it affects also persons who are not parties to the case, it is called judgment in rem. If the judgment adjudicates not only the rights of the parties inter se but also determines the status of a person or a thing,49 it is a judgment in rem. Hence, it is not correct to state that a judgment in rem affects the status of a res or a thing only.50 Section 41 deals not just with the legal character of a res like a ship under admiralty jurisdiction but mainly with the legal character of persons inter se or over a res. Thus, a judgment granting divorce to A and B is as much a judgment in rem as a judgment declaring a temple to be not a private but a public place of worship, as in both the cases the Court has pronounced upon the “status” or legal character of persons in one case and of the property in the other. Once a divorce is granted, the judgment affects not only the personal rights of A and B in that they cease to be husband and wife and their interpersonal rights a vinculo matrimoni (from the bond of marriage) as such are terminated, but also affects their status towards the whole world in that they resume their status as single persons and anybody can marry them again. So, in this case, the judgment in rem affected not only their status towards the rest of the world but also their inalienable rights in personam. On the other hand, a judgment granting a remedy in the case of a breach of contract is a judgment in personam as the rest of the society is in no way affected by the judgment. Commentators generally refer to the judgments covered by section 41 as judgments in rem but the Select Committee in their Report on the Indian Evidence Bill observed that the use of the terms in rem was avoided “for the sake of simplicity, and in order to avoid the difficulty of defining or enumerating judgments in rem”.51 9.3.2 Res Judicata and Judgment in rem While the doctrine of res judicata bars the same parties from re-agitating the matters already finally adjudicated upon, a judgment in rem bars not only the parties but also the whole world from reopening the issues of status and legal character already settled finally by a Court of competent jurisdiction. In other words, res judicata bars the parties and none else, a judgment in rem bars the parties as well as all others. Section 41 provides: Relevancy of certain judgments in probate, etc., jurisdiction.—A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Page 2 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS

Such judgment, order or decree is conclusive proof— that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

9.3.3 Ingredients of section 41 1. A final judgment, order or decree of a competent Court 2. in the exercise of (a) probate (b) matrimonial (c) admiralty or (d) insolvency jurisdiction 3. which confers upon or takes away from any person (a) any legal character or which (b) declares any person to be entitled to any such character or (c) To be entitled to any specific thing 4. not as against any specific person but absolutely is relevant 5. when the existence of (a) any such legal character or (b) the title is relevant. 6. Such a judgment is conclusive proof that the legal character conferred or taken away, or declared to have been entitled, or that the thing was the property of the person declared to have been entitled from the date the judgment has come into effect from the date declared by the judgment. From the above it is evident that section 41 clearly treats the legal character of a person as well as a thing or res as coming within the scope of a judgment in rem provided the judgment has the effect “not as against any specific person but absolutely”. In this context, it is important to refer to Chapter VI of Specific Relief Act, 1963, which deals with “Declaratory Decrees” and contains only two sections. Section 34 provides: Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

Page 3 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS However, section 35 clarifies that the decree granted under section 34 as to any “legal character” or “right to any property” is only a judgment in personam and states: Effect of declaration.—A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

It is submitted, however, that if the decree given under section 34 relates to the judgments referred to in section 41 of the Evidence Act, 1872 relating to matrimonial, probate, insolvency and admiralty jurisdictions, such a decree will be a judgment in rem and binds not only the parties but the whole world. To that extent section 35 of the Specific Relief Act, 1963 is controlled by section 41 of the Evidence Act. 9.3.4 Two parts of section 41 Section 41 consists of two parts: a. the first part provides that judgments in probate, matrimonial, insolvency and admiralty jurisdictions to be relevant in cases where the existence of the status of a thing or a person conferred or taken away by such judgment is relevant, and b. the second part makes the judgments conclusive proof of the fact that the status of the thing or of the person was conferred or taken away from the date of the coming into force of the judgment. In fact the importance of the two parts referred to above is emphasized in section 42 where it is stated that judgments not covered by section 41 but which refer to “matters of public nature relevant to the enquiry” are relevant but “are not conclusive proof of that which they state”. 9.3.5 “Final judgment of a competent Court” A judgment is relevant and operates as conclusive proof under section 41 only if it is a final judgment of the Court. A “final” judgment does not necessarily mean that the judgment must have been rendered by the highest Court of the land. The finality of a judgment, order or decree depends on 1) its intrinsic nature i.e., whether it is merely interlocutory or is a disposition of the rights and duties of the parties. A mere interlocutory order is not covered by section 41; and 2) (a) whether there is no provision for further appeal against that judgment; and (b) if there is a provision for an appeal, whether (i)

an appeal has not been preferred, or

(ii) an appeal has been made and it has been disposed of. Thus, a judgment can become final at any stage of judicial hierarchy depending on whether an appeal has been provided for and, if it is, whether an appeal has been actually preferred or not.52 The “competency” of a Court depends upon whether the Court is conferred by law with the requisite territorial, personal or pecuniary jurisdiction, as the case may be. The words “competent Court” refer not only to a Court located in India but also any where in the world as a judgment in rem is, by definition, valid and enforceable against the whole world. Otherwise, an Indian husband and wife who are granted a divorce in U.S.A. will revert to their single status in USA but will continue to be considered as husband and wife in India. But, the recognition and enforcement of foreign decrees and judgments are not a matter of right of the parties but of comity of nations and depends on the existence of bilateral or multilateral agreements providing for such reciprocal recognition and enforcement by the two States.53 9.3.6 “In the exercise of probate, matrimonial, admiralty or insolvency jurisdiction” Section 41 confines the conclusiveness of the judgments in rem to only four fields54 viz.,

Page 4 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS •

probate,

•

matrimonial,

•

admiralty and

•

Insolvency jurisdiction.

9.3.6.1 “Probate” Section 2 (f) of the Indian Succession Act defines a “probate” as “the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator”.55 Section 2 (h) states: “will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. The probate is a certificate granted by the Court to the effect that the will annexed to it is genuine, that it is established from the death of the testator56 and that it is conclusive proof of the title of the executors of the will.57 Granting of a probate by a Court declares in rem the genuineness of the res i.e., the will and the status of the legatees and executors as such.58 The grant of probate is only a method by which a will can be proved.59 One issue which led to divergence of judicial opinion and scholarly comment60 was whether the refusal to grant probate by the Court will fall within the scope of section 41 and have the negative effect of taking away the legal character as to the genuineness of the will, as to the legal character of the legatees and the beneficiaries under the will and of the executors or administrators. While the Madras High Court had held that it did,61 the Bombay High Court came to the opposite conclusion and held that “the finding of a Court that an attempted proof has failed is not judgment such as is contemplated under the section” and does not bar the legatees to move a Court again to prove the genuineness of the will and their own legal character.62 The Law Commission of India in its 69th Report, agreeing with the opinion of the Bombay High Court,63 suggested an amendment to section 41 to clarify the position, and in its 185th Report the Commission proposed the following amendment: Explanation: An order refusing to grant probate does not fall within the scope of the section.

It is respectfully submitted that if the earlier judgment was based on inadequacy of proof or on the technical grounds like default, the judgment might not bar reconsideration of the matters by another Court at a later stage but when a Court on an earlier occasion has gone into the merits of the case thoroughly and held that, for instance, that the will was a forgery or that the executor was of unsound mind or that it has not been duly attested, it is unfair and against public policy to allow all the issues to be reopened in a second suit, not only on the ground of res judicata but also under section 41 of the Evidence Act, 1872. 9.3.6.2 “Matrimonial” Courts exercising matrimonial jurisdiction may grant any of the following remedies: 1. Nullity of marriage; 2. Divorce; 3. Restitution of Conjugal Rights; and 4. Judicial Separation. A marriage may be declared as null and void by a court on the ground, for instance, that the spouse already had a husband or wife living, as the case may be, or that the marriage was within prohibited degrees of relationship. In such case, the marriage is a non est and will be void ab initio i.e., right from the date of marriage. However, where a decree of divorce is granted by the Court, the marriage is valid in all respects from the date of marriage to the date of divorce but it terminates after divorce. But in both the cases, the decree of the Court snaps the marital relationship of the parties and they revert to the legal status of being single and eligible to remarry. Hence, a decree of nullity as well as of divorce affects the legal character of the parties and is a decree in rem. It must however be stated that while a decree of divorce operates in rem in snapping the matrimonial bond, it does not operate so as to prove, conclusively or even prima facie the facts on which the decree is based. Thus, if the decree of divorce is granted between A and B on the ground of adultery of B with C, the decree operates in rem as against the whole

Page 5 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS world as far as divorce is concerned, but it would not be even prima facie evidence against C that he was guilty of adultery unless he was a party to the divorce suit.64 In the case of restitution of conjugal rights, the parties to a marriage who, for one reason or the other, have started living separately will be directed by the Court to restore their marital relationship and live under one roof. Conversely, where the spouses have not been able to live together because of incompatibility or for any other reason and their further living together is undesirable, the Court, at the instance of either of the parties, grants a decree of judicial separation permitting them to live separately without their marital bond being severed. In such a case, the parties to the marriage can, if they find it congenial, resume their cohabitation and live as husband and wife.65 Thus, in the case of restitution of conjugal rights as well as judicial separation, the marital tie is not in any way affected and the effect of the decree is to direct the parties to live together in the former case, and live separately in the latter case. Hence, they are judgments in personam and are not covered by section 41. In the light of the above, it is evident that section 41 covers only the cases of nullity of marriage and divorce and not of restitution of conjugal rights and judicial separation. The Courts in India are empowered to exercise matrimonial jurisdiction under the following enactments: 1. Prohibition of Child Marriage Act, 2006 2. The Family Courts Act 1984 3. The Hindu Marriage Act, 1955 4. The Special Marriage Act, 1954 5. Dissolution of Muslim Marriage Act, 1939 6. Parsi Marriage and Divorce Act, 1936 7. Indian Christian Marriage Act, 1872 8. Native Converts Marriage Dissolution Act, 1866 9. Indian Divorce Act, 1869. 9.3.6.3 “Admiralty”66 Though at one time admiralty law was equated with maritime law or the entire law of the sea, it is now confined to matters relating to ships and shipping, bottomry, salvage, forfeiture and particularly to claims and liens over the ships.67 The admiralty issues may relate to (a) domestic law as in the case of rival claimants for the ownership of a ship, or (b) Private International Law cases with a “foreign” element as in the case where one of the claimants is a foreign national, or (c) Public International Law as in cases where the ship is berthed in England and the rival claimants are the de jure and de facto Governments of Spain during Spanish civil war.68 It also covers claims over enemy ships condemned as prizes of war during a state of hostilities between States, and international law relating to prizes of war is administered by domestic Prize Courts. A judgment of a Prize Court that a neutral ship was validly condemned as a prize of war for carrying contraband to the enemy State is a judgment in rem.69 Admiralty judgments may not be covered by section 41 if they do not affect the status of a res or a person as in the case of contractual relations of charter parties and, hence, may not be judgments in rem. Commenting on the admiralty jurisdiction in India, the Law Commission of India observed: As far as India is concerned, admiralty jurisdiction is being exercised only some of the India High Courts as the matter is still governed by the obsolete English Admiralty Court Act of 1861, initially applied in India by the (English) Colonial Courts of Admiralty Act, 1899 and then adopted by India by Colonial Court of Admiralty (India) Act (Act No.16 of 1891)....the state of the law in this branch of jurisprudence is unsatisfactory. The jurisdiction of the Courts to deal with admiralty matters needs to be more precisely defined.70

The Admiralty jurisdiction exercised by the High Courts in Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 applied by (English) Colonial Courts of Admiralty Act, 1890 and adopted by Colonial Courts of Admiralty (India) Act, 1891 which conferred Admiralty Jurisdiction including the power to arrest and detain a vessel, on the Chartered High Courts of Madras, Bombay and Calcutta only. After independence, Indian

Page 6 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS Parliament has not passed the necessary comprehensive legislation providing for admiralty jurisdiction of different High Courts. The nature and extent of the Admiralty jurisdiction exercised by the High Courts in India have been reviewed by High Courts in Kamlakar v The Scindia Steam Navigation Co Ltd, LX II Bom LR 995, Rungta Sons Ltd v Owners and Master of Edison, 66 Cal WN 1083 and National Co Ltd v M S Asia Mariner, 72 GWN 635. In MV Elisabeth v Harwan Investment & Trading Pvt Ltd, Goa, AIR 1993 SC 1014, the Supreme Court sought to fill the legislative vacuum to a certain extent by holding that all High Courts in India being superior courts of record possess inherent admiralty jurisdiction.71 Questions of jurisdiction have arisen as in the case of Kerala High Court exercising admiralty jurisdiction with regard to ships berthed in far off places like Bombay and the High Courts had to resort to writ jurisdiction in dealing with admiralty matters like claims over ships.72 The New Admiralty Act of 2017 The Indian parliament has passed The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.73 The Act “consolidates the laws relating to admiralty jurisdiction, legal proceedings in connection with vessels, their arrest, detention, sale and other matters connected therewith or incidental thereto”. Section 17 repeals the application in India of five obsolete British statues on admiralty jurisdiction namely, “(a) the Admiralty Court Act, 1840 (b) the Admiralty Court Act, 1861, (c) Colonial Courts of Admiralty Act, 1890, (d) Colonial Courts of Admiralty (India) Act, 1891, and (e) the provisions of the Letters Patent, 1865 applicable to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts”. Under section 1 (2) “the Act does not apply to an inland vessel or a vessel under construction” and also “this Act shall not apply to a warship, naval auxiliary or other vessel owned or operated by the Central or a State Government and used for any non-commercial purpose, and, shall also not apply to a foreign vessel which is used for any non-commercial purpose as may be notified by the Central Government”. Section 3 states that the jurisdiction in respect of all maritime claims under this Act shall vest in the respective High Courts and be exercisable over the waters up to and including the territorial waters of their respective jurisdictions in accordance with the provisions contained in this Act”. Under section 2 (1)(a) “admiralty jurisdiction” means the jurisdiction exercisable by a High Court under section 3, in respect of maritime claims specified under this Act”. Section 2 (1)(f) defines a “maritime claim” as “a claim referred to in section 4” and section 4 mentions, inter alia, (a) dispute regarding the possession or ownership of a vessel or the ownership of any share therein; (b) loss or damage caused by the operation of a vessel; (c) loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel; (d) Salvage; (j) Towage; (k) Pilotage; (m) construction, repair etc of the vessel; (r) disputes as to sale of the vessel; (s) insurance; etc. Under section 7 any maritime claim arising in respect of a damage or loss of life or personal injury arising out of, inter alia, any collision between vessels, the High Court shall not entertain any action under this section against any defendant unless— (a) the cause of action, wholly or in part, arises in India; or (b) the defendant, at the time of commencement of the action by the High Court, actually and voluntarily resides or carries on business or personally works for gain in India .... As already pointed out, section 41, Evidence Act, 1872 will not apply to judgments rendered under the above 2017 Act unless the judgments affect the status of a thing or a person as in the case of owner of a ship under section 4 of the 2017 Act. 9.3.6.4 “Insolvency” Insolvency jurisdiction is exercised by the High Courts under the Letters Patent of different High Courts and under the Presidency Towns Insolvency Act of 1909 and by the mofussil courts under the Provincial Insolvency Act of 1920. Insolvency arises where a person is declared to be insolvent by a Court because his debts exceed his assets. Where a Court holds a person to be an insolvent or that he is discharged as an insolvent, the judgment is conclusive proof as to his status. 9.3.7 Other Cases of Judgments on Status and Legal Character As pointed out already, section 41 is confined only to four categories of status and legal character viz., probate, matrimonial, admiralty and insolvency. In fact there are other equally important categories of status and legal character like lunacy, legitimacy and adoption whose final determination by the Court would be no different from the

Page 7 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS categories mentioned in section 41, and as the former are not mentioned in section 41 it may lead to the conclusion that the judgments concerning them are (a) not relevant; (b) not in rem and (b) are not conclusive under the two parts of section 41.74 Though under section 112 of the Evidence Act, 1872 a child is conclusively presumed to be legitimate if the conditions of the section are fulfilled, the judgment will not operate in rem as it does not fall within the four categories of section 41. As pointed out above, section 35 of the Specific Relief Act, 1963,75 treats the decrees as to legal character as only judgments in personam. Hence, they are not judgments in rem76 and they will be relevant under section 40 of the Evidence Act as res judicata and will bind only the parties and their privies. While lunacy, like insolvency, is a reversible status, legitimacy and adoption are not alterable. Legitimacy and adoption are good candidates for inclusion within the scope of section 41.

47 See the opening paragraph of the discussion above under section 40. 48 In Jurisprudence, the term “status” has been variously defined by jurists. See, Salmond on Jurisprudence, ed PJ Fitzgerald, 12th Edn (London, 1966), pp 240–241. “Status” is taken as a legal term describing the sum of rights, liabilities, capacities that the law attaches to a person, as one belonging to a class distinct and separate from others, which are incapable of being changed at the option of such person. Sir William Anson defined the term as: “The essential feature of a status is that the rights and liabilities affecting the class which constitutes each particular status are such as no member of a class can vary by contract”. Sir William R Anson, Principles of Contract, 1st Edn (Oxford, 1879), p 328. Thus, one may speak of legal character of minority, marital status, insanity, insolvency. As applied to res or things, one may speak of property being res nullius (thing belonging to none like fish in the sea), res communis (thing belonging to everybody like open air, high seas), public property over which no individual has exclusive rights (like roads), bona vacantia (e.g., assets of deceased person leaving no heirs) and so on. It is important to note that in Jurisprudence “status” is viewed only from the point of the legal character of a person and not res, and even as applied to a res “status” is viewed not as a legal character of the thing as such but as the legal character of a person’s ownership or absence of it over the res. Hence, terms like res nullius, res communis and bona vacantia must be understood in terms of the legal character of a person claiming rights over the res and that is how section 41 also postulates. 49 For instance, Lord Hoffman defined the terms in rem and in personam as “judicial determinations of the existence of the rights viewed, in the one case rights over the property and in the other the rights against a person”. Cambridge Gas Transport Corp v The Official Committee of Unsecured Creditors of Navigator Hildings Plc, para 13, Case No. [2006] UKPC 26, 16 May 2006 (Privy Council). Ratan Lal also says that a judgment in rem “is always as to the status of the res”. Ratan Lal, p 321. In fact, section 41 as well as Jurisprudence deal with “legal character” of a person on whom the law confers or takes away certain rights, liabilities and also his rights over a thing. In Dr Subramanian Swamy v State of TN, (2014), para 23, the Apex Court said: “The literal meaning of ‘res’ is ‘everything that may form an object of rights and includes an object, subject-matter or status”. 50 See Report of Select Committee in Gazette of India, 1 July 1871, Pt V at p 273 quoted in Sarkar, On Evidence, 15th Edn (1999), p 867. See also the 69th Report of the Law Commission of India, p 298, para 16.18. 51 An exception to this is that under section 366 of the Cr PC 1973 (Sentence of death to be submitted by Court of Session for confirmation), “when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the Court”. The Cr PC 1973 provides under section 374 for an appeal to the High Court by the accused against his conviction but a reference under section 366 is mandatory even if the accused chooses not to appeal. 52 See, Cheshire, North and Fawcett, Private International Law, (New York, 2008), chapter 15: Recognition and enforcement of foreign judgments: the traditional rules, pp 513–594. David R Wingfield, “Comity and the Enforcement of Foreign Judgments”, 2008, http://www.eccourts.org/static/jei_doc/2008/cpr2000/ComityandtheEnforcementofForeignJudgmentsbyDavidWingfield.p df (last accessed April 2019). See, for a discussion of the evolution of State practice on the subject in India, NPAK Muthiah Chettiar (Died) v KS Rm Firm Shwebo, Burma, AIR 1957 Mad. 25, (1955) 2 Mad LJ 608. 53 In R Viswanathan and R Gajambal Ammal v Rukn-ul-Mulk Syed Abdul Wajid (deceased) and V Gajambal Ammal, AIR 1963 SC 1, it was said that the conclusiveness mentioned under section 41 will apply to a judgment, order or decree only if it falls within the categories mentioned therein; the status of being joint or separate in relation to a Hindu coparcenary property does not fall within the ambit of section 41. 54 Part IX of the Indian Succession Act of 1925 deals with “Probate, Letters of Administration and Administration of the Assets of the Deceased”. 55 Section 227 (Effect of Probate), Indian Succession Act. 56 Section 273 (Conclusiveness of probate or letters of administration), Indian Succession Act.

Page 8 of 8 9.3 SECTION 41: CONCLUSIVENESS OF CERTAIN JUDGMENTS 57 Surinder Kumar v Gian Chand, AIR 1957 SC 875. In S Parthasarathy Aiyar v M Subbaraya Gramany, AIR 1924 Mad. 67, it has been held that “it is not right, as has been suggested in some cases, to treat a will of which probate has not been granted as non-existent and the property passing by intestacy. On the contrary, the will is a perfectly valid document. The executor under it can deal with the property and give a perfectly good title though it may be that to complete that title it requires probate to be taken out at a later date”. In Valerine Basil Pais (dead) by LRs v Gilbert William James Pais, 1993 (2) Kar LJ 301, it has been observed that even in cases where grant of probate has been obtained by fraud, so long as the grant remains unrevoked, the grantee represents the estate of the deceased. 58 Crystal Developers v Asha Lata Ghosh, AIR 2004 SC 4980. 59 Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al, eds vol 1 (New Delhi, 1993), p 737. 60 Chinnasami v Harihara Bhadra, (1893) ILR 16 Mad 380. 61 Ganesh v Ram Chandra, (1887) ILR 21 Bom 563 (DB); and Kalyan Chand v Sita Bai, AIR 1914 Bom 8 (FB). 62 Sarkar also agrees with the opinion of the Bombay High Court and says that “a finding that, on the evidence on the record, the due execution of a will has not been proved, should not be treated as a final decision upon the genuineness or otherwise of the will and will not preclude a fresh application on the part of the executors, when they are in a position to support it with more complete proof”. Sarkar, n 25 above. 63 Kalyanlal v Radha Churn, (1867) 7 WR 338 (per Sir Barnes Peacock). See also the 69th Report of the Law Commission of India, paras 16.16 and 17. 64 In Krishna Bhatacharjee v Sarathi Choudhury, (2016) 2 SCC 705, para 22, it was observed: “...it is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped”. Hence, the claim preferred under section 12 of the Protection of Women from Domestic Violence Act, 2005 is valid as she has not ceased to be an “aggrieved person” under section 2 (a) of the Act. 65 J Duncan M Derrett, “Admiralty Jurisdiction in India”, International and Comparative Law Quarterly (1961), 10, pp 637– 640; Samareshwar Mahanty, Maritime Jurisdiction and Admiralty Law in India, 2nd Edn (Allahabad, 2017). 66 Section 140 of the Cr PC 1973 deals with summoning of assessors to assist the Court “in any admiralty or viceadmiralty cause” and mentions cases of “salvage, towage or collision” in that context. 67 The Cristina, 1938 AC 485. 68 India set up Prize Courts in Calcutta during the Bangladesh war. 69 151st Report on “Admiralty Jurisdiction” in 1994, p 6, paras 2.5 and 2.7. 70 See Binita Shrikant Hathi, “Ship Arrest in India”, Legal Service India.com. 71 Syam Kumar VM, “Arrest of Ships for Enforcing Maritime Claims”, http://shippinglawtimes.blogspot. com/2007/12/thursday-may-17-2007-arrest-of-ships.html (Last Accessed in April 2019). 72 No. 22 of 2017. The Act received the assent of the President on the 9 August 2017. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint (Section 1 (3)). 73 See above under the heading “Two Parts of section 41”. 74 See above the discussion under the heading “Ingredients of section 41”. 75 See the 185th Report of the Law Commission of India, pp 264 and 265. 76 In Duchess of Kingston’s Case, (1776) 168 ER 175, the Court observed: “As a general principle a transaction between two parties, in judicial proceedings, ought not to be binding upon a third: for it would be unjust to bind any person who could not be admitted to make a defence, or to examine a witness, or to appeal from a judgment he might think erroneous ... “

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9.4 SECTION 42: RELEVANCY OF JUDGMENTS REGARDING MATTERS OF PUBLIC NATURE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.4 SECTION 42: RELEVANCY OF JUDGMENTS REGARDING MATTERS OF PUBLIC NATURE 42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.—Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. Illustration A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

As a rule, a judgment binds only the parties to the suit, and others who are not parties to the suit are not bound by it as the non-parties would not get notice of the suit or a right of being heard.77 Hence, judgments are operative and binding inter partes or between the parties only. One exception to this rule of natural justice is section 41 under which judgments which affect the status and legal character of a person or thing are relevant and binding erga omnis or against all others. Another exception to the rule is contained in section 42 which provides that even judgments that are not covered by section 41 would be relevant in suits between non-parties also “if they relate to matters of public nature”. The illustration to the section clarifies the principle. A sues B for trespass on his land and B asserts the existence of a public right of way over the land. On an earlier occasion, A sued C for trespass on the same land wherein C claimed a public right way and the Court gave a judgment in C’s favour. The judgment in the suit between A and C will not operate as res judicata under section 40 in the suit between A and B as the parties are different. It will not be relevant under section 41 as a judgment in rem as the matter does not relate to probate, matrimonial, admiralty and insolvency jurisdictions. But as the existence of a public right of way over A’s land is a matter of “public nature” in which everybody is interested, the earlier judgment between A and C will be relevant in the suit between A and B but is not so determinant of the matter in question as to be conclusive proof of the public right alleged. In other words, the later Court can look into the earlier judgment as a relevant piece of evidence and nothing more, and it can come to an independent decision as to the existence of the right. The rationale of section 42 is that judgments on matters of public nature are part of the reputation and the existence of reputation is itself evidence. Those judgments may be looked into in subsequent suits on the same matters even though the parties are different. In other words, the earlier judgments are only relevant but not conclusive proof of the public matter and the party denying the existence of a public right can adduce evidence in rebuttal of it and the later Court is free to follow or differ from the earlier judgment.

Page 2 of 2 9.4 SECTION 42: RELEVANCY OF JUDGMENTS REGARDING MATTERS OF PUBLIC NATURE

“Matters of public nature” include public customs, rights of preemption, way, fisheries, ferry, drawing water from a well or pond and the matter should concern the public at large.

77 Section 211 of the Cr PC 1973 deals with “Contents of Charge”.

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9.5 SECTION 43: JUDGMENTS RELEVANT AS FACT IN ISSUE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.5 SECTION 43: JUDGMENTS RELEVANT AS FACT IN ISSUE 43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.—Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act. Illustrations (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libelous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C. (b) A prosecutes B for adultery with C, A’s wife. B denies that C is A’s wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C. (c) A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant. (d) A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime. (e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue. (f)

A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.

9.5.1 Scope of section 43—Two Parts Section 43 consists of two parts and states: (1) a judgment which is not relevant as res judicata under section 40, or as in rem under section 41, or as on matters of public nature under section 42 is irrelevant qua judgment, (2) unless the existence of an earlier judgment is relevant in a subsequent case as a fact in issue or as a relevant fact under some other section of the Evidence Act. The net effect of section 43 is that it saves from the barring nature of its provisions judgments which may be relevant under other sections on relevancy. (a) The second part says that it is the existence of the judgment which might be relevant but not the judgment as such and

Page 2 of 3 9.5 SECTION 43: JUDGMENTS RELEVANT AS FACT IN ISSUE (b) The second part does not provide for the relevance of even the existence of that judgment but only permits the party seeking to prove the existence of the judgment to look for some other section under which it might be relevant as a fact in issue or relevant fact. Illustration (f) states: A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue. Illustration (d) is also to the point and states: A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime. The decree obtained by A against B in a civil suit is not relevant in C’s criminal prosecution except for showing the motive for the crime under section 8 that he murdered A “in consequence” and this nexus is the basis of the relevancy. Illustration (e) requires a more elaborate explanation. It says: A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue. In this case, the charge states two things: (a) A committed theft, and (b) that he was previously convicted of theft.78 As a rule, the previous offences and convictions of the accused are irrelevant as they are evidence of bad character, which is irrelevant under the main part of section 54. But Explanations to section 54 state: Explanation 1.–This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 2.–A previous conviction is relevant as evidence of bad character.

The previous conviction is relevant, inter alia, for theft under section 75 of IPC for awarding enhanced punishment, and section 211 of Cr PC 1973 dealing with “Contents of Charge” requires in clause (7) that in such cases of enhanced punishment the date and place of previous conviction must be stated in the charge. As stated in Explanation (1) to section 54 the previous conviction as evidence of bad character is itself “a fact in issue”. Thus, illustration (e) to section 43 refers to the previous conviction being a fact in issue. 9.5.2 Relevance of Judgments in Civil and Criminal Cases inter se As seen above in the discussion under section 40, a previous judgment in a civil suit may be relevant as res judicata in a later suit, and, similarly, a previous judgment in a criminal proceeding may be relevant in subsequent criminal proceeding if it amounts to Double Jeopardy. As a rule, judgments rendered in civil cases are irrelevant in criminal cases and vice versa for the following reasons: 1. The parties are different. In criminal cases, the State is a necessary party and the prosecution is conducted in the name and on behalf of the State. In a civil case, persons or corporations are parties. 2. The standard of proof is widely different. In civil case, it is preponderance of proof and in criminal cases it is proof beyond all reasonable doubt. 3. The issues may not be identical in both the proceedings. Thus, a judgment in a civil case is, as a rule, irrelevant in a later criminal case and vice versa. One of the exceptions to the above rule is section 41. If a judgment comes under section 41, it operates in rem and erga omnis, and though judgments relating to probate, matrimonial and insolvency jurisdictions are invariably civil, they are relevant in the subsequent criminal proceedings also. Thus, if A and B are divorced in 2009 and A prosecutes C for adultery with B in 2010, C can adduce in evidence the decree granting divorce to A and B to prove that B is now a single woman and is no more A’s wife. C can do this even though he was not a party to the divorce proceeding. But a judgment in criminal case cannot, in the nature of the things, come under section 41 or section 42 as both those sections deal with civil matters. 9.5.3 Relevance of Judgment as a “Transaction” under section 13 Section 43 says that a judgment which is not relevant under sections 40 to 42, may become relevant under some other section of the Evidence Act, 1872 if its existence is a fact in issue or a relevant fact. The question that has arisen in this context is whether a judgment could be considered as a “transaction” by which “the right or custom in question was created, modified, recognized, asserted or denied, or which was inconsistent with its existence” within the meaning of section 13. While a judgment can be considered, jurisprudentially, as a “title” or the source of a right

Page 3 of 3 9.5 SECTION 43: JUDGMENTS RELEVANT AS FACT IN ISSUE within the meaning of section 13, is it a “transaction” within the meaning of section 13 so as to be relevant under section 43 as a relevant fact “under some other provision of this Act”? Though there has been conflict of judicial opinion on this question, the issue seems to be settled finally by the opinions of the Privy Council and of the Supreme Court that a judgment is a transaction. The judicial trend, stated briefly, was on the following lines: •

In Gujjulal v Fateh Lal, ILR (1880) 6 Cal 171, in the earlier case, in which the defendant in the present case was a party but not the plaintiff, it was held that A was the heir of B. The plaintiff will win the present case if the earlier judgment can be treated as relevant under section 13. The Calcutta High Court held that the earlier judgment was not relevant as (a) it was not inter partes and not res judicata under section 40; (b) it is not a judgment in rem covered by the four categories mentioned in section 41; (c) not covered by section 43 as it is not a matter of public nature; and (d) a judgment cannot be treated as a transaction relevant under section 13 to come within the reach of section 43.

•

In Collector of Gorakhpur v Palakdhari Singh, ILR (1889) 12 All 1, the Allahabad High Court held the earlier judgment holding that A was born to B by C was relevant in the later case as a transaction. Orissa High Court has also held similarly.79

•

In Ram Ranjan Chakerbarti v Ram Narain Singh, ILR 22 Cal 533 (PC), the Privy Council was prepared to treat the earlier judgments as relevant under section 13 and section 43.80

•

The Supreme Court has also held that previous judgments could be treated as transactions under section 13.81

•

If the earlier judgments could be held to be transactions within the meaning of section 13, they can be brought under section 43 also in appropriate cases.

78 Ramachandra v Gadhadhar Mahapatra, AIR 1980 Ori. 54. 79 In Dino Mony Chawdharani v Brojo Mohini, (1901) 29 IA 24 (PC), the Privy Council treated even the police orders to prevent breaches of peace relating to land disputes as relevant under section 13. 80 Srinivas v Narain, AIR 1954 SC 379; Sitaldas v Santram, AIR 1954 SC 606. 81 Norton, p 218 quoted in Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al, eds vol 1 (New Delhi, 1993), p 756.

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9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > IX RELEVANCY OF JUDGMENTS OF COURTS > Sections 40–44

IX RELEVANCY OF JUDGMENTS OF COURTS Sections 40–44

9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION 44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.—Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. 9.6.1 Ingredients of section 44 Section 44 provides that: (1) a party to a suit may show that (2) a judgment which is relevant under sections 40, 41 and 42 and (3) which was proved by the opposite party (4) (a) was rendered by a Court not competent to deliver it or (b) was obtained by fraud or (c) by collusion. Section 44 permits a party to challenge a judgment adduced by the opposite party on the ground that it was a nullity as it was delivered by a Court without jurisdiction, or that it was obtained by fraud or collusion. It may be noted that assumption by a Court of a jurisdiction that it inherently lacks is a mistake on its part, whereas fraud and collusion are something played on the Court by a party and a judgment may be vitiated by any of the factors. Section 44 refers only to judgments relevant under sections 40, 41 and 42 and not to section 43. Norton says: “I do not see why the same rule ought not to apply to the case of a judgment, tendered under section 43”.82 Suppose A was prosecuted for the murder of B, his father and was finally found guilty. Subsequently, when A seeks to inherit his father’s estate, Z, B’s brother files a suit contending that A should be disqualified from succeeding to his father’s property as A was convicted for the murder of his father. The judgment convicting A is certainly a fact in issue in the suit between Z and A. If A can show that the Court that convicted him of murder lacked jurisdiction or that fraud has been played on the Court, his conviction would become a nullity and the impediment to his succession would have been removed. Thus, there was no reason for the non-inclusion of section 43 within the scope of section 44.83 It has been, however, held that section 44 does not purport to enumerate all the grounds on which a decree can be attacked by a separate suit84 and the section does not destroy the substantive right of the party to challenge a judgment on other grounds, which exist independently of the Evidence Act, 1872.85 But, the right of a party to plead

Page 2 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION lack of jurisdiction or fraud or collusion is too basic a right, which exists independently of section 44.86 9.6.1.1 “Any party to a suit or other proceeding may show” The words “any party to a suit or other proceeding may show” in section 44 indicate that the section applies equally to criminal as well civil proceedings. The party may plead the nullity of the earlier judgment in the present suit and he need not file a separate suit for getting the judgment declared as a nullity.87 Strictly speaking, section 44 lays down not only a rule of evidence but also a rule of procedure88 as it does not declare the vitiated judgment to be irrelevant but only permits the affected party to challenge the judgment. Once the party succeeds in his challenge, the judgment becomes a non est and has to be ignored by the later Court and there will not be any more a question of relevancy of non-existing judgment. So, in effect, what section 44 provides for is the relevancy of lack of jurisdiction of the Court and of the fraud and collusion when they are pleaded by a party, and not the irrelevancy per se of the judgment concerned. A party can challenge a judgment under section 44 whether or not he was a party to the earlier suit or proceeding wherein the judgment was rendered. Though section 44 employs the words “any party”, it will be against the principles of natural justice and fair play to permit a party who himself perpetrated the fraud or collusion on the earlier Court to benefit from his own unclean hands.89 An interesting aspect of section 44 is that the party raising the plea of lack of jurisdiction, fraud or collusion could also have been a party to the earlier suit and he ought to have raised these pleas in revision or appeal then itself. If he did not raise those objections against that judgment at that time, the judgment would have become final and operated as res judicata in the present suit. section 21 of the CPC 1908, as it originally stood prior to the amendments of 1976, provided that “no objection as to the place of suing” could be taken in the Court of Appellate or Original Jurisdiction unless it was urged in the Court of first instance at the earliest opportunity and in all cases where the issues are settled at or before such settlement, unless there has been a consequent miscarriage of justice. The Civil Justice Committee in its Report of 1924 referred to the conflict between section 21 of the CPC 1908 and section 44 of Evidence Act, 1872 and observed that “this is anomalous”. The Committee observed: It should not be left to a litigant to lie quietly when a judgment is passed against him and ignore it on the ground that the Court which passed it had no pecuniary or territorial jurisdiction. The recommendation we make leaves unaffected other grounds of competency of the tribunal which passed such judgment.

The Committee recommended that section 44 be so amended so “as to enable the Courts to admit, in evidence, judgments if not reversed or set aside, even though the Court that passed them had no territorial or pecuniary jurisdiction to do so”.90 This would have resulted in the total reversal of the position under section 44 of the Evidence Act, 1872. The CPC 1908 was amended in 1976 and a section 21 was added which provides that “no objection as to place of suing” (Clause 1) or “as to the competence of a Court with reference to the pecuniary limits of its jurisdiction” (Clause 2) shall be allowed “unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice”. The Law Commission of India in 1977 has also agreed with the above recommendation of the Civil Justice Committee but thought that the recommendation has been taken care of by the following amendment to the CPC 1908 in 1976 by the addition of section 21A.91 Section 21A provides: Bar on Suit to set aside decree on Objection as to place of suing.—No suit shall lie challenging the validity of a decree passed in former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing. Explanation—The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.

Page 3 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION One answer to this question would be that section 44 expressly includes in its operation section 40 which deals with res judicata92 and a judgment that has become final also can be challenged under section 44 as it would be totally untenable to allow a judgment delivered without inherent jurisdiction to operate. It has been held that the earlier judgment will be ignored as a nullity even without formally setting it aside.93 However, amendments to section 21 (1) and (2) of CPC 1908 in 1976 bar the parties from raising objections as to territorial or pecuniary jurisdiction at the stage of revision or appeal unless they were raised in the Court of first instance at the earliest possible opportunity or when the issues were settled. Section 21A which was also added in 1976 bars the filing of a fresh suit by the same parties or their privies to challenge the validity of a decree passed in a former suit on the ground of objection to the place of suing. It is obvious that these amendments to the CPC 1908 have to be read harmoniously with section 44 and the outcome would be that while the parties cannot reopen the issues of objections as to territorial or pecuniary jurisdiction, the persons who were not parties or their privies can do so under section 44 on the grounds mentioned therein. 9.6.1.2 “Court not competent to deliver it” That a Court was not competent to deliver a judgment means that the Court lacked the jurisdiction to try the case in the first instance.94 Such a Court is called coram non judice95 or a Court without the requisite jurisdiction. For instance, a murder trial can be conducted only by a Court of Sessions under the Cr PC 197396 and if A Court lower to the Sessions Court tries a murder case, the trial is invalid and the judgment it delivers a nullity. As has been said, “the competency of a Court and its jurisdiction are synonymous terms”.97 Jurisdiction is the formal authority of a Court to take cognizance of a case and to adjudicate the matter before it. The jurisdiction of a Court is classified into: 1. Territorial jurisdiction 2. Pecuniary jurisdiction and 3. Jurisdiction in relation to a subject matter The territorial jurisdiction of Courts is confined to the territorial limits delimited by law and the jurisdiction is coextensive with the territorial boundaries.98 While the Supreme Court of India can exercise jurisdiction through out the territory of Union of India, the jurisdiction of the High Courts is, as a rule, confined to the territorial limits of the State concerned. Similarly, the jurisdiction of the Subordinate Courts is limited to the districts.99 The term “pecuniary” in this context means the monetary value of the subject matter of the suit in civil cases and the City Courts Acts of different States prescribe the pecuniary jurisdiction of the hierarchy of civil Courts.100 The subject matter of the suit also determines the jurisdiction of a Court. For instance, the Small Causes Court cannot deal with suits relating to partition of property. Outside the hierarchy of regular civil Courts, there are Courts set up under special enactments like the Family Courts Act of 1984 which even oust the jurisdiction of the ordinary civil Courts in relation to the subject matter covered by those special enactments. In Foreshore Co-op Housing Society Ltd v Praveen D Desai, (2015) 6 SCC 412 (2015) the Supreme Court observed that: it is well settled that essentially jurisdiction is an authority to decide a given case one way or the other. Further, even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the court has no jurisdiction it cannot confer upon it by consent or waiver of the parties.

9.6.1.3 “Obtained by Fraud or Collusion” Fraud As Lord Chief Justice De Grey said, “fraud vitiates the solemn proceedings of the courts of justice”.101 The maxim is fraus omnio vitiate—fraud vitiates everything. In Patch v Ward, 1867 (3) LR Chancery Appeals 203, Sir John Rolt, LJ, observed: Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance

Page 4 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION of the real facts of the case, and obtaining that decree by that contrivance.

The term “Fraud” has been defined in section 17 of the Contract Act, 1872 and clauses (i) and (ii) are relevant to the present purpose and provide: ‘Fraud’ means and includes any of the following acts...: (i)

the suggestion, as a fact that which is not true by one who does not believe it to be true;

(ii)

the active concealment of a fact by one having knowledge or belief of the fact;

Clauses (i) and (ii) refer, respectively, to the Latin maxims suggestio falsi (suggestion of falsehood) and suppressio veri (suppression of truth). The words “obtained by” in section 44 of the Evidence Act, 1872 indicate that it is the party in whose favour the judgment was pronounced that must have played the fraud. Such a fraud could be played either by the party personally or through witnesses by making them commit perjury. In Chengalvaraya Nayudu v Jagannath, AIR 1994 SC 853 : 1994 SCC (1) 1 : JT 1993 (6) 331 : 1993 Scale (4) 277, the Supreme Court of India observed: Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law.... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss.102

In the above case, Jagannath purchased certain property belonging to the appellants in a Court auction on behalf of Chunilal Sowcar with whom he was working as a clerk and later executed a release deed in favour of Chunilal. The auction was held in execution of a decree obtained by Chunilal against the appellants but the appellants paid to Chunilal the entire decretal amount and got back the property. Without disclosing the fact that he executed the release deed, Jagannath filed a suit for partition of property stating that he purchased the property on his own behalf and played fraud on the lower court and obtained a preliminary decree in his own favour. The appellants challenged the preliminary decree. The High Court reversed the lower Court’s order and held in favour of Jagannath on the ground that the defendant/appellants should have proved the fraud by producing the release deed. The Supreme Court set aside the order of the Division Bench of the High Court on the ground that “Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court” and that “such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings”. In Bhaurao Dagdu Paralkar v Maharashtra, 2005 (7) SCC 605, the Supreme Court held that “suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud”. In the case of UOI v Ramesh Gandhi (2011),103 it was held by the Supreme Court: “Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest”. Whether perjury would come within the purview of fraud under section 44 has been a much debated question and the balance of judicial and juristic opinion seems to be in favour of not treating perjury as fraud within the meaning of the section.104 As has been observed by Sadasiva Ayyar J, in Kadirvelu Nainar v Kuppuswamy Naickar,1919 Mad 1044, p 1046, if perjury is also included within fraud as a ground to challenge a judgment that has become final, the doctrine of res judicata will become useless and there will be no end to litigation. “Collusion” Wharton says that “collusion” in its wider sense means “a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose”. Collusion in the specific context of judicial proceedings is a secret arrangement between two persons that one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose. In this specific sense, it may be of two kinds: (1) when the facts put forward as the foundation of the judgment of the Court do not exist; and (2) when the facts do exist, they have been corruptly preconcerted for the express purpose of obtaining the judgment.105 Suppose, A, the owner of excess land under the Urban Land Ceiling Act, enters into an ante-dated agreement with B to make it appear as if he agreed to sell the land to B even before the Act came into force. B, as

Page 5 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION previously agreed, files a suit against A alleging that he gave earnest money to B under the agreement of sale and pleads for the transfer of land and registration of the sale deed. A admits to the sale agreement and expresses his readiness to register the sale. Accordingly, the Court gives a judgment in favour of A as what has been alleged by A has been admitted by B and no trial is deemed necessary. Thus in this case, the facts of an agreement of sale between A and B, and the alleged payment of earnest money do not exist at all and they were all fabricated by A and B for the purpose of defeating the provisions of the Urban Land Ceiling Act. This is a case of obtaining a Court decree in a collusive manner. On the other hand, if a husband and wife file for divorce by mutual consent without alleging any wrongdoing by either of them, the judgment of divorce delivered in the case will not be a collusive one because (1) the agreement is real and not sham; (2) there is no sinister purpose served by the suit as the law permits the spouses to file for divorce by mutual consent and (3) the law expressly permits that ground. A decree obtained by collusion can be set aside at the instance of a third person and not by either of the parties to the suit or their privies.106 9.6.2 Avoidance of a Foreign Decree Section 13 of the CPC 1908 provides: When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except(a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f)

where it sustains a claim founded on a breach of any law in force in India.

Section 2 of the CPC 1908 deals with “Definitions” and states: (6) ‘foreign judgment’ means the judgment of a foreign Court” and “(5) ‘foreign Court’ means a Court situate outside India and not established or continued by the authority of the Central Government. As a rule, foreign judgments cannot be enforced in India as a matter of right and their enforcement depends on whether a particular foreign country has reciprocal arrangements with India as required under section 44A of the CPC 1908. A “reciprocating territory” is defined in explanation 1 to section 44A of the CPC as: “Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory”. Lack of jurisdiction and fraud are common to both section 44 of Evidence Act, 1872 and section 13 of the CPC 1908 but “collusion” is not mentioned in section 13 of CPC. Courts in India have on occasions declined to treat a foreign decree as enforceable under section 44 of Evidence Act, 1872 and section 13 of CPC 1908 if the decree has been procured by fraud. A leading case is Satya v Teja Singh, AIR 1975 SC 105 : 1975 SCR (2) 97 where the Supreme Court refused to enforce a judgment of a US Court on the ground that it was obtained by fraud. In that case, Ms. Satya and Mr. Teja Singh, both Indian citizens domiciled in India, got married in Jullundar, India on 1 July 1955 according to Hindu rites. Two children were born to them. In 1959, Teja Singh left for higher studies to USA and obtained a doctorate and a job in Utah University. Satya remained in India for five years with her minor children as Teja Singh promised to return to India after his studies. After finding that Teja Singh was not inclined to return to India, she filed for maintenance for herself and her children under section 488 of the old Cr PC 1898 (section 125 of the present Code). Under section 488, as it originally stood, the term “wife” did not include a divorced wife. Teja Singh appearing through his counsel stated that his marriage has been dissolved by a decree of divorce granted by the Court of Nevada in USA and that he was no more under an obligation to maintain Ms Satya did not appear in the divorce suit in Nevada, did not submit to its jurisdiction and went unrepresented.

Page 6 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION Justice Chandrachud holding that the validity of the decree and its enforceability in India must be judged in terms of the provisions of section 13 of CPC 1908, observed: The judgment of the Nevada court was rendered in a civil proceeding and therefore its validity in India must be determined on the terms of section 13 [of the Hindu Marriage Act, 1955]. It is beside the point that the validity of that judgment is questioned in a criminal court and not in a civil court. If the judgment falls under any of the clauses (a) to (e) of section 13, it will cease to be conclusive as to any matter thereby adjudicated upon.

The learned judge came to the conclusion that Teja Singh went to Nevada as a “bird of passage” “solely to found jurisdiction and procure a decree of divorce on a misrepresentation that he was domiciled in Nevada”. Allowing the appeal of Ms Satya, His Lordship held: Prior to the institution of the divorce proceedings respondent might have stayed, but never lived in Nevada. He made a false representation to the Nevada court that he was a bona fide resident of Nevada. Having secured the divorce decree, he left Nevada almost immediately thereafter rendering it false again that he had ‘the intent to make the State of Nevada his home for an indefinite period of time.’

82 The Law Commission of India has recommended the inclusion of section 43 also in section 44 by way of an amendment. See the 69th Report, p 317, para 16.95. 83 Shaminath v Ramjas, 9 All LJ 1. 84 Mahes v Manindra, AIR 1946 Lahore 233 (FB). 85 Venkatappa Naick v Subba Naick, (1905) 29 Mad 179. 86 Rajjib Pandey v Lakhan Senda, 3 Cal VIN 660. 87 Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint (New Delhi, 2009), p 330. 88 See for a detailed discussion on this aspect, Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al, eds vol 1 (New Delhi, 1993), pp 757 and 761 ff. 89 The Report of the Civil Justice Committee, pp 499–501, paras 2–3. 90 The 69th Report of The Law Commission of India, pp 317, paras 16.93–94. 91 Per Justice Banerjee in Rajib v Chowdhury, 3 Cal WN 660. 92 Bishunath v Mst Mirchi, AIR 1955 Pat. 66. 93 Kettilamma v Kelappan, 12 Mad 228. 94 In Latin Coram non judice means before a person who is not a judge. 95 See Sch I, Chapter XVI. 96 Sardar v Anuruyal, 21 Bombay 205. 97 The Courts can exercise extraterritorial territorial jurisdiction or jurisdiction beyond the territorial limits of India in certain cases. For instance, under section 4 of the IPC, 1860, the Indian Courts can exercise such extraterritorial jurisdiction where the offence is committed by “(1) any citizen of India in any place without and beyond India; (2) any person on a ship or aircraft registered in India wherever it may be”. 98 See, for instance, section 7 of the Cr PC 1973 on “Territorial Divisions”. 99 See for instance Andhra Pradesh City Courts Act (Act 19) of 1972: The pecuniary jurisdiction of a Junior Civil Judge is up to Rs 1 lakh, that of the Senior Civil Judge up to Rs 10 lakhs and that of the District Judge above Rs 10 lakhs. 100 R v Dutchess of Kingston, 20 How St Tr 355, at p 544. 101 Also Hamza Haji v State of Kerala, AIR 2006 SC 3028; and AV Papayya Sastry v Government of AP, AIR 2007 SC 1546.

Page 7 of 7 9.6 SECTION 44: JUDGMENTS WITHOUT JURISDICTION AND OBTAINED BY FRAUD AND COLLUSION 102 UOI v Ramesh Gandhi (2011), (per Chelameswar, J); Judgment of 14 November 2011, Criminal Appellate Jurisdiction, Criminal Appeal No. 1356 of 2004. 103 See the learned discussion in the 69th Report of the Law Commission of India, pp 314–315. 104 Wharton’s Law Lexicon, 14th Edn, p 212. 105 Chauhana v Gaya Prasad, AIR 1971 All 439 following Venkatarammana v Viromma, 10 Mad 17. 106 The proceedings under section 488 of the Cr PC 1973 (section 125 of the amended Code) for the grant of maintenance are criminal proceedings.

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Sections 34–38 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VIII STATEMENTS IN SPECIAL CIRCUMSTANCES > Sections 34–38

VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38 Sections 34 to 38 deal with relevance and proof of statements that are contained in documents that require special rules.

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8.1 ENTRIES IN BOOKS OF ACCOUNTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VIII STATEMENTS IN SPECIAL CIRCUMSTANCES > Sections 34–38

VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.1 ENTRIES IN BOOKS OF ACCOUNTS Section 34 provides for entries made in books of accounts and states: 34. Entries in books of account when relevant.—Entries in books of account, including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Illustration A sues B for Rs 1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt.

While discussing section 17, it was seen that under that section even self-serving admissions come within the definition of an admission but under section 21 such admissions are, as a rule, barred from being proved by the party who made them. The exceptions stated in section 21 include statements that would be relevant under section 32 if the maker of the statement is dead, not found. Section 32 (2) makes relevant, inter alia, the entries made in books in the ordinary course of business. Such entries may be self-serving statements also but they are permitted to be proved because they are made in books kept in the ordinary course of business and not manufactured for a particular self-serving purpose. That rationale is applied by section 32 (1) to statements made by persons who are dead, not found and section 34 extends the rationale to a particular kind of statements, i.e., “entries in books of account, regularly kept in the course of business” made even by persons who are alive and available. Like section 32, section 34 is also, in fact, an exception to the rule in section 21 that self-serving statements shall, as a rule, be barred. The justification for the provision is that: •

It is only the particular entries that are relevant to the matter before the Court that are admissible;

•

The entries are contained in a book;

•

It is a book of accounts which naturally contains a series of different entries, including the relevant entries;

•

The account books are (i)

“regularly kept”

(ii) “in the course of business”. •

Such statements are only “relevant” in the sense that the Court may look into them but such statements shall not alone be sufficient evidence to charge any person with liability.

The assumption of section 34 is that there is a high degree of “improbability of untruth” in statements that satisfy the above conditions. As the account books are kept by persons who are employees in an establishment and are responsible to a supervisor, the chances of accuracy and correction of mistakes are very high. Of course, as some of the scams show, there is always the possibility of an unscrupulous person going to great lengths to cook up

Page 2 of 3 8.1 ENTRIES IN BOOKS OF ACCOUNTS accounts over extended periods of time. But in any case, as Tindal, CJ, observed, “it is easy to state what is true than what is false; the process of invention implied trouble”.1 8.1.1 “Books of Account” It has been held that section 34 applies only to books of accounts and nor stray papers. This implies that the book consists of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. Loose sheets of paper cannot be called book.2 The Supreme Court has held in CBI v VC Shukla, AIR 1998 SC 1406 (popularly known as Jain Hawala case): •

the alleged entries in diaries were merely memoranda of the person and could not be treated as books of account without even debit and credit entries;

•

however, spiral pads and spiral note books could qualify to be books but not loose sheets of paper;

•

the entries need not have been made at or about the time the related transactions took place to pass the test of “regularly kept”. In other words, the entries need not be contemporaneous with the transaction to which they relate; and

•

“Business” means “activities carried on continuously in an organized manner with a set purpose to augment one’s own resources”.3

The Supreme Court has held no particular form of books of account is generally prescribed, although books are far more satisfactory when kept in the form of daily entries of debits and credits in a day book or journal.4 8.1.2 “Regularly Kept” It has been held that “regularly” does not mean correctly kept, nor does it necessarily mean kept on hour to hour or day to day basis as and when the transactions take place.5 The fact that there are mistakes or incorrect entries does not affect the relevancy of the entries though it might affect their reliability.6 It only means certain periodicity of maintaining the counts. 8.1.3 “Shall not be ... sufficient Evidence” As mentioned in chapter on theory of relevancy above, section 34 is, like section 114, Ill. (b), one of the few sections in the Indian Evidence Act, 1872 that speak about reliability of relevant evidence. Section 34 says that the entries in the accounts books “shall not alone be sufficient evidence to charge any person with liability” and the lone illustration says that “the entries are relevant but are not sufficient, without other evidence, to prove the debt”. The word “alone” in the section means what the illustration says “without other evidence”. In Jaswant v Sheo Narayan, 21 IA 157, the Privy Council pointed out: “But there is even a better test than the correspondence of the books with themselves and that is their correspondence with other evidence”. The entries require to be corroborated only if they are to be used to fasten “liability” on a person, but if the entries are used for other purposes the entries can be treated as independent evidence in their own right.7 Even if the entries are correct and authentic, they are not sufficient evidence to charge any person with liability and they should be corroborated. Thus, the requirement in such cases under section 34 is mandatory. Obviously, the liability could be civil or criminal.8 The High Courts have held that corroboration under section 34 could come even from the other statements of the person himself who is seeking to prove the entries in his own account book.9 With regard to mode of proof of the entries, in Iswar Das v Sohan Lal, AIR 2000 SC 93, the Supreme Court held that mere extracts from account books were not account books within the meaning of section 34 and they were inadmissible. The reason is that the Court would not be able to ascertain from extracts whether the account book was regularly kept in the course of business or not. The party trying to prove the entries by secondary evidence must lay the foundation for doing so under section 65. It is only in the case of proof of account books under the Banker’s Book Evidence Act, 1891 that certified copies of the entries are allowed. However, it was held in Chandradhar Goswamy v Gauhati Bank, AIR 1967 SC 1058, that though the entries in Banker’s book may be proved by certified copies under the Banker’s Book Evidence Act, 1891 as far as the mode of proof is concerned, when the question is whether they are sufficient to charge a person with liability, section 34 of the Indian Evidence Act, 1872 will apply and the entries must be corroborated by other evidence. In Mertimer v M Challan, (1840) 4 Jur

Page 3 of 3 8.1 ENTRIES IN BOOKS OF ACCOUNTS 172 : 151 All ER 320, it was held that books of Bank of England come under the category of documents “not easily movable” [as under section 65 of the Indian Evidence Act, 1872] because of the great public inconvenience that would be caused if the originals are required to be produced. Whereas the fact of the existence of the entries in the account books is relevant under section 34, the fact that there are no entries regarding the transaction is not relevant under that section. However they have been held to be relevant under section 9 (“support or rebut an inference”) and section 11 (“inconsistent” with or render “highly probable or improbable” any fact in issue or relevant fact).10

1

Poole v Ducas, 1 Bingham NC 649.

2

Ganesh Prasad Ray v Nurendra Nath Sen, AIR 1953 SC 34.

3

This judgment, in effect, upheld the judgment of the Delhi High Court in LK Advani v CBI, (1997) Cr LJ 2559.

4

Mahasay v Narendra, AIR 1953 SC 43.

5

Mukundram v Dayaram, 10 NLR 44.

6

Jain Plastic Industry v Gopi Chand, AIR 1990 Del 51.

7

The 69th Report of the Law Commission of India, p 273, para 13.16.

8

Section 43 of the Indian Evidence Act, 1855 (the predecessor to the present Indian Evidence Act, 1872) provided: “Books proved to have been regularly kept in the course of business, shall be admissible as corroborative but not as independent proof of the facts stated there”. Thus, the Indian Evidence Act, 1855 required corroboration in all cases and not just in cases of foisting liability on a person.

9

Narain Das v Firm Ghasi Ram, AIR 1938 All 353; Mt Kar Devi v SriKishan, AIR 1932 All 60 (DB); Balmukand v Jagannadh, AIR 1963 Raj. 212; DK Aswathanarayana v Md Husaain, AIR 1965 AP 33.

10 AP v C Ganeswara Rao, AIR 1963 SC 1850. State Bank of India v Yammam Gouramani Singh, AIR 1994 SC 1644.

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8.2 PUBLIC RECORDS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VIII STATEMENTS IN SPECIAL CIRCUMSTANCES > Sections 34–38

VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.2 PUBLIC RECORDS Section 35 provides: 35. Relevancy of entry in public record, made in performance of duty—An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

Under section 35 an entry made in public record is “itself a relevant fact” if the following conditions are fulfilled: 1. The entry must relate to fact in issue or relevant fact; 2. It must have been made in any public or official book, register or record; 3. It must have been made by a. a public servant in the discharge of his official duty, or by b. any other person in performance of a duty specially imposed by the law of the country in which such book, register or record is kept. This section also is an exception to the hearsay rule, and like all other exceptions, section 35 is based on a justification. The principle of the section is that where something is recorded in a public or official book by a public servant or official in discharge of official duty or of legal duty, trust and confidence can be reposed on the accuracies of the entries in the record because they are made by a responsible person and in a record which are subject to discipline and public scrutiny. As Lord Blackburn stated in Sturla v Fleccia, 5 AC 643: The principle is that it should be a public enquiry, a public document and made by a public officer in performance of public duty or a duty specially enjoined by the law.

Another reason for reliance on public records is that as they are not accessible to or amenable to be made by private persons.11 Section 21 of Indian Penal Code, 1860 defines a “public servant” and section 74 of the Indian Evidence Act, 1872 defines a “public document”. It is not every entry that the public official makes that is relevant but only an entry which he is required or authorized by law to make.12 However, it is not necessary that the public official must have had personal knowledge of the subject matter of the entry nor that the entry must have been made contemporaneously.13 A review of judicial decisions gives a picture of the nature of documents covered by section 35. 8.2.1 FIRs

Page 2 of 4 8.2 PUBLIC RECORDS •

The FIR filed with the police under section 154 of CrPC has been held to be relevant under section 35 as an entry in public record.

•

But as FIR does not fall within the definition of evidence under section 3 of the Indian Evidence Act, 1872, it is not substantive evidence but it can be used as a former statement of the witness for the purpose of corroboration or contradiction under sections 157 and 145, respectively.14

•

As FIR is made before and not after the commencement of the investigation of the case by the police, it is not hit by section 162 of CrPC. In fact, it is the FIR that triggers investigation.

•

A case diary maintained by the police officer under section 172 is not admissible as evidence as section 172 (2) expressly says so.15

8.2.2 Proof of Age Proof of age of a person might become an important fact in a wide variety of cases some of which are mentioned below: •

Criminal cases: (i)

the age of the accused to show that he is or is not capable of committing a crime16;

(ii) the age of the male or female to ascertain whether he or she is capable of consenting17; (iii) the age of the accused or convict to determine whether he is a juvenile18; •

Civil cases: (1) Whether the parties have attained the requisite age of majority or eligibility for the purpose of contracts, marriage, elections. (2) Retirement from employment;

In a number of cases, age has been sought to be proved by resort to the following records: School Registers, Certificates. The Education Codes in different States require the Head Master of the school to maintain an admission register wherein he is expected to enter details, inter alia, of the date of birth of the pupils. It has been held: •

The school admission register is a public document and the headmaster is a public servant19.

•

Entries regarding date of birth in School admission register are relevant.20

•

There is a presumption of genuineness of entry in High School certificate.21

•

School certificate does not carry much weight if the material on the basis of which it is given is not verifiable.22 There is the possibility of parents mentioning false age at the time of admission. This is more so when the entry was said to have been made by the chowkidar of the school who was an illiterate.23

•

Matriculation certificates24, and High School certificates for proof of age for contesting in elections25 are relevant;

•

To prove that the prosecutrix in a rape case was incapable of giving valid consent, the entry in the school register was held to be admissible.26

•

Where the entries in the school register as well as in the Municipal records were made much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of the mother of the prosecutrix of 14 years in a rape case, conviction was held to be proper.27

•

School records have greater probative value than horoscopes28.

•

In rural areas where proper seriousness is given to correct entry of date of birth, school register could not be relied upon and other evidence was looked into to decide whether the girl has attained the requisite age to exercise her right to petition for divorce under section 13 (2)(iv) of the Hindu Marriage Act of 1955 on the ground that she repudiated the marriage as it was solemnised before her attaining 15 years of age.29

Registers of Births and Deaths and of Marriage

Page 3 of 4 8.2 PUBLIC RECORDS •

The above registers come within the purview of public documents as defined in section 74 of the Indian Evidence Act, 1872 and under section 65 only a certified copy of the document is admissible.30

•

The entries made in the register of births and deaths at about the time of birth or death and the entry was entered in the register kept by competent statutory authority.31

•

An entry in the register of births made by the officer in charge in the performance of his official duty is relevant and may be proved by a certified copy.32

•

A register of births and deaths maintained by the village under the instructions of Board of Revenue is a public document kept by public officials and it is relevant for proof of the date of death.33

Municipal, Revenue Registers. •

Municipal register of births and deaths is admissible.34

•

Entries in municipal register of births and deaths are relevant for proof of death of a person or the date of death.35

•

There is a presumption of genuineness of entry in revenue record.36

•

A statement of age in the pleadings of a party was held to be evidence of his age.37

•

An entry in voter’s list carries greater evidentiary value than an entry in the admission register.38

It may be noted the entries under section 35 are only declared to be relevant as a piece of evidence. They are not conclusive proof of the subject matter.39

11 The 69th Report of the Law Commission of India, 1977, p 276, para 14.4. 12 Ali Nasir Khan v Manik Chand, (1902) ILR 25 All 90. 13 Doe v Anderson, 15 QB 756. In Shashibhushan Bose v Girish Chander Mitter, ILR 20 Cal 940, the Calcutta disagreed with the earlier view in Saraswati Dasi v Dhanpal Singh, ILR 9 Cal 434, that such a personal knowledge of the official was necessary. 14 Chitar v E, ILR 47 All 280; Hasib v State, AIR 1972 SC 283. 15 Md Ankoos v The Public Prosecutor, High Court of AP, 2010 Cr LJ 861. 16 In Pratap Singh v Jharkhand, a Full Bench of five judges of the Supreme Court has held that “the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Board”. (2005) 3 SCC 551. Earlier a three-Judge Bench of Supreme Court in Umesh Chandra v Rajashtan, AIR 1982 SC 1057 : 1982 SCR (3) 583. (per Fazal Ali, J) held that “It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child. We are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place”. The Act in question was Rajasthan Children Act, 1970. But a Division Bench of the Apex Court (per Arijit Pasayat J) in Arnit Das v Bihar, (2000) 5 SCC 488, did not notice the decision in Umesh Chandra and ruled that reckoning date is the date of production of the accused before the Court and not the date of the occurrence of the offence. When the conflicting decisions were referred to Pratap Singh (supra text), the Full Bench held that Umesh Chandra was “the correct law”. See also, BB Pande, “Setting the Juvenile Justice Course Right: A Critique of Pratap Singh v State of Jharkhand,” (2005) 6 SCC (J) 1. BB Pande, “Setting the Juvenile Justice Course Right: A Critique of Pratap Singh v State of Jharkhand”, (2005) 6 SCC (J) 1. 17 See for a discussion of various forensic scientific tests for the determination of the age of the victim of rape, Kailash, Tanti Banjara v MP, (2013), 2013 (6 ) Scale 1 : (2013 ) 14 SCC 340. Vijay, Chinee v MP, (2010) 8 SCC 191. 18 In the Juvenile Justice Act, 1986, a “juvenile” was defined under section 2 (h) to mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. The Juvenile Justice Act, 1986 was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 that came into force on 1 April 2001. The 2000 Act defined “juvenile or child” in section 2 (k) to mean a person who has not completed eighteen years of age. Section 69 of the 2000 Act, repealed the Juvenile Justice Act, 1986. In Pratap Singh v Jharkhand, (2005) 3 SCC 551, a Constitutional Bench of the Supreme Court held that section 20 of the 2000 Act would apply only to cases in which the accused was below 18 years of age on 1 April 2001, the date on which the 2000 Act came into force but it would have no application in case the accused had crossed the age of 18 years on the date of coming into force of the 2000 Act. Pratap Singh’s case was, however, superseded by a number of amendments by the 2000 Amendment Act w.e.f. 22 August 2006

Page 4 of 4 8.2 PUBLIC RECORDS which gave retrospective effect to the 2000 amendment. In Hari Ram v State of Rajasthan, (2009) 13 SCC 211, the Supreme Court held that Pratap Singh decision is no longer good law. See also, Dharambir v State (NCT of Delhi), (2010) 5 SCC 344; Mohan Mali v MP, AIR 2010 SC 1790; Dayanand v Haryana, Criminal Appeal No 30 of 2011, [Arising out of SLP (Criminal) No 808 of 2010] and Lakhan Lal v State of Bihar, [2011] 1 SCR 770, at pp 776–777, paras 8–9. In Salil Bali v UOI, AIR 2013 SC 3743 : 2013 (9) Scale 140, para 64, the Supreme Court, dealing with a batch of writ petitions challenging the Act or its provisions, held that it did not think that “any interference is necessary with the provisions of the Statute till such time as sufficient data is available to warrant any change in the provisions of the aforesaid Act and the Rules”. 19 Bhim Mandal v Mangaram Gosain, AIR 1961 Pat. 21; Vishnu Maheswaran Namboothiri v Kuruvilla Kochitri Kuruvilla, AIR 1957 Ker. 103. 20 Mnickchand v Krishna, (1931) 28 NLR 127. 21 Mayank Rajput v State, 1998 Cr LJ 2979 (All). 22 Jankinath Roy v Jyothish Chandram, ILR 1941 Cal 41. 23 Brij Mohan v Priyabrat, AIR 1965 SC 282. 24 Harishkesh v Sushil Chandra Maulik, AIR 1957 Cal 211; Vaidtanath v Rambadan, AIR 1966 Pat. 383. 25 Mayadhar Naik v SDO, AIR 1962 Ori. 221. 26 Kedarnath Singh v State, 1995 Cr LJ 4121 (Del). 27 Murugan, Settu v TN, Criminal Appeals Nos 455–457 of 2004, [2011] INSC 462. 28 K Venkataraman v UOI, 1974 Lab IC 1190 (Ori). 29 Luxmi v Mahendra Singh, (1986) 2 DMC 251. 30 Allianz US Life Insurance Bank v Hemant Kumar Das, 1938 Cal 641; Tamiz Uddin v Taju, 46 Cal 152. 31 Chitru Devi v Ram Devi, AIR 2002 P&H 59. 32 Bena Devi v Bachan Singh, AIR 1980 All 174. 33 Ramalinga Reddi v Kotayya, (1917) 41 Mad 26. 34 Vadyanath Sahay v Rambadan Singh, (1901). 35 Rjendra Kumar v Srichandra Narain Singh, (1970) 2 SCC 277. 36 Anwar Hussain Sheikh v SantiKumar Mandal, AIR 1887 Cal 120. 37 Manoranjan Das Gupta v Suchitra Ganguli, AIR 1989 Cal 14. 38 Nazir Hussain Haldar v State, 1998 Cr LJ 1720 Cal. 39 K Venkataraman v UOI, 1974 Lab IC 1190 (Ori).

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8.3 RELEVANCY MAPS, CHARTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

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VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.3 RELEVANCY MAPS, CHARTS Section 36 provides: Relevancy of statements in maps, charts and plans.—Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.

In Dwijesh Chandra Roy v Naresh Chandra Gupta, AIR 1945 Cal 492 SR Das, J, observed: A map by itself is nothing but statement made by the maker by means of lines and pictorial presentations instead of word of mouth as to the state or configuration of a particular site and the objects standing thereon. To admit in evidence a map without calling the maker thereof is the same as admitting in evidence statements made by a third party who is not called as witness. In other words, it amounts to admitting hearsay.

The section deals with two categories of documents: 1. Published maps or charts generally offered for public sale; and 2. Maps or plans made under the authority of Government. The first category derives its justification from (a) accessibility to the public scrutiny and (b) the possibility of exposure and criticism of errors. The second category gets its reliability from the authenticity of its source, i.e., the Government. With regard to second category, section 83 of the Indian Evidence Act, 1872 provides for a rebuttable presumption of law (“shall presume”) and states: Presumption as to maps or plans made by authority of Government.—The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

The above section applies the presumption to two matters, i.e., that the maps and plans were (a) in fact, made by the Governments, and that they were (b) accurate. However, where the maps or plans are made by the Governments “for the purpose of any cause”, as for instance, for a particular dispute or Court case, the presumption applies only partially to the extent of their source (i.e., the Government) but not their accuracy. With regard to the first category of maps or charts “generally offered for public sale” relevant under section 36, section 87 provides for a presumption of fact (“may presume”) with regard to, inter alia, maps and charts, and says: Presumption as to books, maps and charts.—The Court may presume that any book to which it may refer for

Page 2 of 2 8.3 RELEVANCY MAPS, CHARTS information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.

Thus, section 87 applies the presumption only to the author, time and place of publication of maps and charts but not to their accuracy as their source may be private only and not Governments. Just as the Court, before taking judicial notice of facts, may refer to dictionaries under section 57, the Court may also refer to any published maps and charts. It may be noted that section 36 leaves out plans from the purview of those “generally offered for public sale”, and omits charts from the purview of Government publications. Historically, charts were mostly navigational being prepared as aids in navigation of ships over the seas and water courses. In Re Drachenfels, (1900) ILR 27 Cal 860, Ameer Ali, J, held the chart made for navigation over the Hoogly River as “authoritative”.

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8.4 FACTS OF PUBLIC NATURE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VIII STATEMENTS IN SPECIAL CIRCUMSTANCES > Sections 34–38

VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.4 FACTS OF PUBLIC NATURE Section 37 provides: Relevancy of statements as to fact of public nature contained in certain Acts or notifications.—When the court has to form an opinion as to the existence of any facts of a public nature, any statement of it made in recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any dominion, colony or possession of His Majesty, is a relevant fact.

It may be noted that the above section deals with “the existence of facts of public nature” contained in the recitals in Acts of Parliament and Government notifications but not with proof of those Acts. Such facts might relate to whether certain areas are declared as “disturbed areas” or whether certain classes are declared as backward or as minorities in an Indian State.

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8.5 PROOF OF FOREIGN LAW Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > VIII STATEMENTS IN SPECIAL CIRCUMSTANCES > Sections 34–38

VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.5 PROOF OF FOREIGN LAW Section 38 deals with proof of foreign law and provides: Relevancy of statements as to any law contained in law books.—When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

The above section has been discussed under the caption of “Foreign Law” under section 45.

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8.6 PART OF LONGER STATEMENT Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

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VIII STATEMENTS IN SPECIAL CIRCUMSTANCES Sections 34–38

8.6 PART OF LONGER STATEMENT Section 39 provides: What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

Section 39 has been referred to under section 32 (1) also. If, in a given case, an oral or written statement forming part of a conversation, document is relevant, it will be necessary to go through the entire statement to understand its nature and contents. Noscitur a socii or know by the context is a maxim that can be applied to the statements also. But of where only a part of a longer conversation, document or book is relevant, section 39 requires that evidence may be given only so much of it that the Court considers necessary to “the full understanding of the nature and effect of the statement, and of the circumstances under which it was made”. Reference to the “circumstances under which it was made” brings in the context in which the statement was made. The purpose of the section is to avoid wastage of the time and effort of the Court in the perusal of unnecessary and irrelevant parts of statements.

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Sections 45–51 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

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X OPINION EVIDENCE Sections 45–51

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10.1 RATIONALE OF RELEVANCY OF OPINION EVIDENCE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

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X OPINION EVIDENCE Sections 45–51

10.1 RATIONALE OF RELEVANCY OF OPINION EVIDENCE As a rule, the law requires that the persons who depose as witnesses must state the facts seen, heard or perceived by them and not the opinions and inferences drawn by them from those facts. As the Supreme Court of India pointed out, “the function of drawing inference is a judicial function and must be performed by the Court.”1 Opinions are often subjective and liable to vary with every person and not necessarily relatable to facts, and even if they are so relatable, the interpretation of facts by that person may be faulty, biased or downright perjury. Opinions may just depend on nothing more than a person’s ipse dixit (“so he says”). Like hearsay evidence, opinions are intrinsically unreliable. Hence, the rule relating to relevance of opinion evidence, including expert opinion evidence, is expressed as an exclusionary one with certain exceptions.2 Sir James Stephen said: The fact that any person is of opinion that a fact in issue, or relevant or deemed to be relevant to the issue, does or does not exist is deemed to be irrelevant to the existence of such fact, except in the cases specified in this chapter.3

Though interpretation of facts and drawing inferences from them in an objective manner with a trained judicial mind is a function of the Courts,4 often the Courts find that the matters under consideration relate to fields of knowledge in which the judge may not have the requisite competence to form an opinion by himself and he needs the assistance of a person who is specially skilled or acquainted in that matter.5 There is such an explosion of scientific and technological knowledge in various fields, it is too much to expect a judge to keep himself abreast of all these developments. The judges, the lawyers and the police find it absolutely necessary to make use of science and technology to discharge their functions. However, the opinions of the experts are not conclusive evidence of the issues6 and it is still for the Court to sift that evidence and assess its reliability.7 As early as 1554, in Buckly v Rice Thomas, (1554) 1 Plowden 118, at p 1248 Saunders J, observed: ... if matters arise in our law which concerns others sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is an honourable commendable thing in our law. We approve of them and encourage them as things worthy of commendation.

As was held by the Supreme Court of Canada in the leading decision of R v Mohan, [1994] 2 SCR 9, at pp 20–25,9 the admission of expert evidence depends on the following criteria: (1) relevance; (2) necessity in assisting the judge; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. As for the “necessity” criterion, the Court said that: “if on the proven facts a judge or jury can form their own conclusions without help, then the opinion of expert is unnecessary.”10 The Court added: There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.11

Page 2 of 2 10.1 RATIONALE OF RELEVANCY OF OPINION EVIDENCE Sections 45 to 51 deal with “opinions of third persons when relevant”. The term opinion has not been defined in the Evidence Act, 1872 but the term has been judicially defined by an Australian Court as “an inference from observed and communicable data.”12 While observabilty guarantees objectivity, communicability ensures verifiability. The opinions which are relevant could be that of: 1. the experts (sections 45 to 47); or 2. persons (i)

“who would be likely to know” (section 48);

(ii) “having special means of knowledge” (sections 48 and 49); or 3. an institution (section 47A). As is evident from the above, opinion evidence can be of laymen or of experts. Persons who are covered by category (2) above are not strictly experts within the meaning of section 45.

1

Mobarik Ali Ahmed v State of Bombay, AIR 1957 SC 857.

2

For instance, section 76 (1) of the Evidence Act of Australia states “The opinion rule” as: “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” Section 79 mentions the exceptions to this rule, including expert evidence.

3

Sir James Stephen, Digest of the Law of Evidence, 9th Edn, 1987, Article 48.

4

J B Thayer, A Preliminary Treatise on Evidence at the Common Law, 1898, reprinted 1969, p 524; also C Tapper, Cross and Tapper on Evidence, 12th Edn (2010), p 530.

5

It is said that since Roman times expert witnesses were being called to assist the judges and the jurors. Emanuel Tanay, American Legal Injustice: Behind the Scenes with an Expert Witness, Lanham, Maryland, 2010, p 31. As Tapper put it, “the law recognizes that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw true inferences from facts stated by witnesses. A witness is therefore allowed to state his opinion about such matters, provided he is expert in them”. C Tapper, Cross and Tapper on Evidence, 12th Edn, 2010, p 530. R v Abbey, [1982] 2 SCR 24, p 42.

6

S Gopal Reddy v State of AP, AIR 1996 SC 2184.

7

Law Society of India v Fertilizers and Chemicals Travencore Ltd, AIR 1994 Ker. 308.

8

See also N Kathleen Sam Banks, “Trials and Tribulations: Social Science Evidence, Expert Witnesses, The Voice of Authority and the Discourse of Ideology in the Courts”, Murdocch University Electronic Journal of Law, vol 6, No. 4 (December 1999).

9

The Court held that the cost-benefit analysis requires the judge to balance the probative value of the expert evidence against its prejudicial effect. R v Mohan, [1994] 2 SCR 9, at p 21.

10 R v Mohan, [1994] 2 SCR 9, p 23. 11 R v Mohan, [1994] 2 SCR 9, p 24. In the decision in White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, the Supreme Court of Canada went a step farther and held that “a proposed expert’s independence and impartiality goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty.” 12 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5), (1996) 136 ALR 627, at p 629 (Per Lindgren J). This definition was approved by the Federal Court of Australia in Bank of Valletta PLC v National Crime Authority, (1999) 165 ALR 60, at para 20.

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10.2 SECTION 45: OPINIONS OF EXPERTS Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

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X OPINION EVIDENCE Sections 45–51

10.2 SECTION 45: OPINIONS OF EXPERTS 45. Opinions of experts.—When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts Illustrations (a)

The questions is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b)

The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c)

The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

10.2.1 Experto crede—Trust the Expert This section which deals with expert opinion as to “foreign law, or of science, or art, or as to identity of handwriting or finger impressions” also defines experts as “persons specially skilled” in those subjects.13 Section 4 of New Zealand Evidence Act of 2006 provides: expert means a person who has specialized knowledge or skill based on training, study, or experience. Expert evidence means the evidence of an expert based on the specialized knowledge or skill of that expert and includes evidence given in the form of an opinion.14 In State of HP v Jai Lal, (1999) 7 SCC 280, para 13,the Supreme Court said: “An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject.” Experto crede is a Latin motto which means “Believe one who has had experience in the matter”. Section 293 of Code of Criminal Procedure, 1973 (CrPC) provides for use of reports of scientific experts in “evidence in any inquiry, trial or other proceeding under this Code” and provides, inter alia: (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

Page 2 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. The above provisions apply only to Governmental institutions and not to private bodies and as a matter of precaution the Courts have been insisting that the expert must also be summoned as a witness.15 Lord Bingham CJ, made an interesting observation in R v Steven Jones, [1997] 1 Cr App R 86, comparing the expert witnesses with ordinary witnesses. His Lordship said: Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.

In other words, if C has seen A killing B, only C can appear as a witness and testify and nobody else can substitute for him. On the other hand, fingerprints or striation marks on the bullets can be compared by any expert in that field and depose in the Court of law as to his findings and in that sense the experts are interchangeable. But, as Lord Bingham CJ, pointed out, the trial process will be subverted if the defendant is permitted to challenge his conviction by trial Court in appeal by bringing in another expert whose testimony could have resulted in his acquittal by the trial Court.16 It is interesting to note that section 30 of the Criminal Justice Act, 1988 of England17 dealing with “Expert Reports” provides that “an expert report shall be admissible as evidence in criminal proceedings whether or not the person making it attends to give oral evidence”, but “If it is proposed that the person making the report shall not give oral evidence, the report shall only be admissible with the leave of the court.” 10.2.2 Who is an Expert? Two questions arise under section 45: (1) What is the field of his expertise? Is it covered by section 45? and (2) Is he an expert? In Makita (Australia) Pty Ltd v Sprowles, [2001] NSWCA 305 : 52 NSWLR 705, the Court of Appeals of New South Wales observed: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.18

To ensure that the expert evidence is trustworthy, the Courts in India and elsewhere take certain steps like the following: •

Preliminary questions are put to the witness to establish that he has the requisite knowledge and expertise in the matter under enquiry to be called an expert.19

•

A person’s eligibility as an expert may have to be assessed not just from the academic qualifications but also from his practical experience.

•

Where the expert was an employee of the company on whose behalf he was deposing, it was held that his evidence was rightly rejected as he was an interested witness.20

•

Where it was shown that a proposed expert witness had a relationship with the party calling him which a reasonable observer might think was capable of affecting the expert’s view so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased his conclusions might probably be.21

Page 3 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS •

Thus, in relying or rejecting the expert opinion, the Court will look into whether he is an independent person and whether his evidence has the intrinsic quality of being objective, supported by data and impartial in the choice of facts and presentation of opinion.

•

Ultimately, “the duty of an expert is to depose and not to decide. The only function of an expert is to furnish the data with necessary scientific criteria so as to enable the judge to czome to an independent conclusion.”22

The Evidence Act, 1872 does not prescribe any qualifications for recognition as experts. Section 45 is exhaustive on the subjects covered by it and the section mentions “foreign law, or of science, or art, or as to identity of handwriting or finger impressions” as the areas of expertise. Whether or not formal education and training are necessary for the claim of expertise depends on the particular field of knowledge. For instance, in the areas of medicine and law, the Courts might look for both formal education and training. Pollock CB, observed: Suppose a case is dependent on medical testimony, would the evidence of a man be receivable who had studied medicine in one of the universities, but never practised it?23

Anderson B, applied the same principle to law and said: If a man has studied law in Saxony and never practiced in Prussia be competent to prove the law of Prussia, why should not a Frenchman be competent to prove it?24

After referring to the above opinions of the Chief Baron and Baron, Cockles observes: The above case can scarcely be taken as laying down a definite rule that an expert witness must be a practitioner ... It would be strange that a young and comparatively inexperienced practitioner should be admitted as a witness in preference to a learned professor of high reputation.25

The words “specially skilled” in section 45, like the terms “science or art”, have been given wide connotation which is not necessarily related to academic qualifications. A person without a degree or diploma can be considered as an expert if he has the requisite specialisation.26 In R v Bingley, 2017 SCC 12, the question was whether the opinion of Drug Recognition Expert (DRE) who was specially trained in the application of 12-step drug recognition evaluation under the statute could be accepted as expert opinion by the Court (1) without his having any specialised qualifications in that science, and (2) without any voire dire administered by the Court as to his expertise. The Supreme Court of Canada held: The test for expertise is merely knowledge outside the experience and knowledge of the trier of fact. Knowledge of the underlying science is not a precondition to the admissibility of a DRE’s opinion.27 “The trial judge is not obliged to hold a voir dire to determine the admissibility of the evidence” because “his expertise has been conclusively and irrebuttably (sic) established by Parliament.28

Thus, a gold smith as to identification of a metal as gold,29 an excise Inspector as to the strength of liquors,30 and a police officer trained in guns as to the working condition of a gun31 have been held to be experts. 10.2.3 Facts and Opinions A question that might arise at the threshold is: (1) should the experts state only the facts observed by them and leave to the judge the function of drawing the inferences from those facts? or (2) should the experts also give their opinions about the facts observed by them? The three illustrations to the section throw light on certain aspects of this question. In the first illustration: “The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.” Here the expert can validly state (a) as facts that certain symptoms are caused by a particular poison and (b) also state his opinion that A’s symptoms show that he died of that poison. Here, the expert need not have examined the deceased person and might base his opinion on the information given to him regarding the symptoms. Similarly, an

Page 4 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS expert can be asked about the symptoms caused by a particular poison and from what the expert says the Court can draw its own conclusions. On the other hand, illustration (c) deals with comparison of the proven handwriting of A with his alleged handwriting. Here the expert has to personally compare the two handwritings before he can give his opinion. Suppose a dead body is recovered from a well and the police suspect homicide and send the body for postmortem for the identification of the cause of the death. The forensic medicine expert who performed the autopsy deposes in the Court that: 1. he did not find the water-logging of the lungs and stomach (oedema); 2. absence of oedema means that the person might have been killed elsewhere and the dead body was thrown in the well to mislead the police that it was a case of suicide; 3. normally, such oedema is present in the case of suicide as the person breaths in water before he dies; 4. but there are exceptional cases reported by authors in treatises on Medical Jurisprudence where oedema was absent even in cases of suicide where the person dies of shock even before he hits the water in the well. 5. as there are no indications of injuries on the body suggesting homicide, he is of the opinion that it was a case of suicide and not homicide. In the above case items (1) and (2) relate to facts which only an expert can find and not any ordinary person. Item (3) is a general scientific fact observed in such cases. Item (4) refers to the findings of expert-authors in exceptional cases. Item (5) is a statement of scientific facts found by the expert witness in the present case during the autopsy and of his own opinion based on those facts. The Courts in India have even permitted hypothetical questions to be put to the experts so as to elicit their opinions on matters pertaining to the trial.32 Thus, there are certain “facts” which only an expert can find and there are certain “opinions” that only an expert can arrive at by his scientific expertise. Though in some cases the Courts may be able to draw their own inferences based on the facts mentioned by the experts, there are matters where the judge’s discretion has to yield to the superior specialised knowledge of the experts. 10.2.4 Reliability of Expert Opinion Evidence Under section 45 the Courts have to form opinions on the basis of the opinions of experts and this situation of “opinions on opinions” exposes the inherent weakness of the expert opinion evidence. An expert is not a witness of fact and his opinion evidence is really of an advisory character.33 Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.34 The witness of facts does not give his opinion on facts; but presents the facts as such. However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny.35 Expert opinion is generally considered to be unreliable not necessarily because the experts, in general, are unreliable witnesses but because all human judgment is fallible and the expert could go wrong because of some defect of observation, some error of a premise or an honest mistake of conclusion.36 There can be situations where there can be an honest difference of opinion, as for instance, the time of death or the distance from which the gun has been fired at. An honest expert might like to hedge in his opinion by “ifs” and “buts” and state the parameters. But in many cases, assuming that the experts examined by both the parties are suitably qualified, honest and their evidence is based on verifiable facts and established principles and scientific methods, logically there should be no divergent opinions–especially the diametrically opposite—as are often witnessed. When there is a dichotomy in opinion, one of the opinions will be correct and other will obviously be erroneous.37 Sometimes, there can be only a thin line of demarcation between fact and opinion, and the expert and the Court might find it difficult to disentangle the fact from the opinion. Again, in a given case, expert opinion evidence may be as important as expert evidence as to fact.38 However, some judges have been less than enthusiastic in relying on the experts. In Abinger v Ashton, (1873) 17 LR Eq 358, at p 374 Lord Jessel, Master of Rolls, was rather severe in his criticism of experts when he said: In matters of opinion, I very much distrust expert evidence. Although the evidence is given on oath, the person knows that he cannot be indicted for perjury. But this is not all. Expert evidence of this type is the evidence of persons who sometimes live by their business but in all cases are remunerated for their evidence. It is but natural that his mind should be biased in favour of the person employing him and accordingly we find such bias. [U] ndoubtedly there is a natural bias to do

Page 5 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves witnesses, rather considering themselves as paid agents of the person who employs them. The greatest failing of even the well-meaning experts is that they fall in love with their own opinions and fail to see the other side. As has been well said, “Expert witnesses are affected by that pride of opinion and that kind of mental fascination with which men are affected when engaged in the pursuit of what they call scientific enquiries.”39 It is said: “Success in forensic work depends upon rigorous adherence to ethical standards....The most challenging and productive contribution of an expert is to advise a lawyer that he has no case.”40

Consequently: •

Often the experts are called by both the sides in a case and invariably the experts plead for the party who called them and paid them.41

•

Hence, the Courts are skeptical about the experts as the experts are said to “come with a bias in their minds to support the cause in which they are embarked.”42

•

The net result is “a battle of experts, with the judge or jury understandably disposed to believe that each expert might have testified with equal positiveness for the other side had he been called by it.”43

It is said that trial by the judge should “not devolve to trial by expert” and “expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance”.44 As was observed in R v Mohan, [1994] 2 SCR 9: Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.

Hence, the Court “will inappropriately defer to the expert’s opinion rather than carefully evaluate it.”45 An expert witness should never assume the role of an advocate.46 Moreover, the Court’s approach “is to treat independence and impartiality as bearing not just on the weight but also on the admissibility of the evidence.”47 In R v Mohan, [1994] 2 SCR 9, the Supreme Court of Canada stated that the party proposing to offer expert evidence must fulfill two conditions: Firstly, (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert; and secondly, its probative value is not outweighed by its prejudicial effect–a residual discretion to exclude evidence based on a cost-benefit analysis:48 White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, para 32, the Supreme Court of Canada said: The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.

The flip side of the position is equally crucial and noteworthy. As the Supreme Court of Canada pointed out, after all, “experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias.”49 As the hard reality, it is difficult to distinguish between an advocate who is paid to “plead” his party’s case and an expert who testifies in favour of the party who pays him. That being so, in most cases, a mere employment relationship of the expert with the party calling the evidence will be insufficient to brand him as per se unreliable and unworthy of any credit. On the other hand, inter alia, a direct financial interest in the outcome of the litigation will be of more concern as to the expert’s independence and impartiality.50 10.2.5 Safeguards for Expert Evidence The Evidence Act, 1872 has provided for certain safeguards with regard to expert evidence. •

Section 159 which deals with “Refreshing memory” by witnesses provides that “an expert may refresh his memory by reference to professional treatises”.

Page 6 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS •

Section 160 permits a witness to “testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of facts themselves ...” Thus, a forensic expert who performed the autopsy and wrote out a report may refresh his memory by reference to the report though, for instance, he might have written the report long back and forgotten its exact contents.

•

Section 161 provides that the document by which the witness has refreshed his memory “must be produced and shown to the adverse party if he requires it” and the adverse party “may, if he pleases, cross-examine the witness thereupon.”

In the leading case of Prem Sagar Manocha v State (NCT of Delhi), (2016) 2 SCC (Cri) 315 : (2016) 4 SCC 571, the critical issue was whether two bullets used in Jessica Lal murder case were fired from the same pistol. In his report the ballistic expert stated that both “appear to have been fired from pistol” but “no definite opinion could be given ... unless the suspected firearm is available for examination.” In the Sessions Court he was asked by the judge to give his opinion based only on a comparison of the marks on the two bullets and he deposed that they “appear to have been fired from two different firearms”. This opinion favoured the accused. After the Sessions Court acquitted all the accused, on appeal by the State against acquittals, the High Court, suo moto, directed that the appellant/ballistics expert, along with a few other witnesses, be proceeded against for perjury under section 193, Indian Penal Code (IPC), 1860, for changing his opinion. On appeal the Supreme Court quashed the perjury proceeding. The Apex Court referred to its own earlier judgment in an appeal by the accused in the same murder case34b where the Court51 stated that “there is no evidence on record to suggest that [the appellant] gave an opinion to oblige the prosecution.”52 The Supreme Court pointed out that there was no “somersault” as it was the trial court which insisted for an opinion without the presence of the firearm, and in that context only, the appellant gave the non-specific and indefinite opinion. An expert, in such a situation, could not probably have given a different opinion ... We fail to understand how the stand taken by the appellant, as above, attracts the offence of perjury.

13 See for an exhaustive study of the subject of expert evidence, Ireland Law Reform Commission Consultation Paper on Expert Evidence, (LRC CP 52–2008), particularly Chapter 3 ff. available at: http://www.lawreform.ie/_fileupload/consultation%20papers/cpExpertEvidence.pdf (last accessed in April 2019). 14 Singapore Evidence Act which is substantially similar to Indian Evidence Act, 1872 has been amended in 2012 and section 47 provides, inter alia: “(1) Subject to sub-section (4), when the court is likely to derive assistance from an opinion upon a point of scientific, technical or other specialised knowledge, the opinions of experts upon that point are relevant facts. (2) An expert is a person with such scientific, technical or other specialised knowledge based on training, study or experience. (3) The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge. (4) An opinion which is otherwise relevant under subsection (1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant.” 15 Report of the Handwriting Experts would not be admissible in evidence in absence of formal proof and examining the expert: Poornaiah v UOI, AIR 1967 AP 338; Balkrishna Das v Radha Devi, AIR 1989 All 133; Ishawari Prasad v Mohd Isa, AIR 1963 SC 1728; Re Gadavarthy, AIR 1960 AP 164 : 1960 Cr LJ 315; Banarsi Store v President of India, AIR 1953 All 318 : Susil Kr Adhya v Rangalal Patwari, AIR 1983 Ori. 256. In State by the Inspector of Police, Coimbatore v Manoharan, (2014), in Referred Trial No 1/2012l, the Madras High Court held that “there is no necessity for the prosecution to have examined them as a matter of course, but, we felt that the interest of justice would be better served, if these experts are examined as witness ...” 16 R v Steven Jones, [1997] 1 Cr App R 86. 17 Criminal Justice Act of 2003 has not amended this provision. 18 Section 79 of the Evidence Act of Australia states: “Exception: opinions based on specialised knowledge— (1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.” See also Honeysett v The Queen, [2014] HCA 29. 19 Thus, before the testimony of a witness becomes admissible, his competency as an expert must be shown may be by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. Balkrishna Das v Radha Devi, AIR 1989 All 133. 20 Novapan India Ltd v CCE&C, (1994) 72 ELT 769. 21 Novapan India Ltd v CCE&C, (1994) 72 ELT 769.

Page 7 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS 22 Thyssen Stahhunion GmbH v Steel Authority of India, AIR 2002 Del 255. 23 Bristow v Sequiville, 19 LJ Ex 289. 24 Bristow v Sequiville, 19 LJ Ex 289. 25 Earnest Cockle’s Cases and Statutes on Evidence, 8th Edn (1952), pp 123–124. 26 Re Govinda Reddy, AIR 1958 Mys 150 : 1958 Cr LJ 1489. Academic qualifications are not important as instruction is not available in many universities. The handwriting experts take training from leading experts and gain experience by practice and study. The value of the expert does not depend on his qualification rather it depends upon the soundness of the reasoning advanced by him. Devi Prasad v State, AIR 1967 All 64 : 1967 Cri LJ 134. 27 R v Bingley, 2017 SCC 12, para 22. 28 R v Bingley, 2017 SCC 12, paras 28 and 27. 29 Assiastant Collector of Central Excise v VP Syed Mohd, AIR 1983 SC 168. 30 SC Batra v VP, AIR 1974 SC 639. 31 Jarnail Singh v Punjab, AIR 1999 SC 321. 32 Raghuni Singh v Emperor, (1882) ILR 9 Cal 455, at p 461; Deorao v Emperor, AIR 1046 Ngp 320 at p 335. 33 Ramesh Chandra Agrawal v Regency Hospital Ltd, AIR 2010 SC 806. 34 SPS Rathore v CBI, 20017 Cr LJ 537. 35 Premsagar Manocha v State (NCT of Delhi), AIR 2016 SC 290 : 2016 (1) Scale 220. 36 Murari Lal v State of MP, AIR 1980 SC 531. 37 Chamkaur Singh v Mithu Singh, (2013), P&H High Court, 2014 (1) RCR (Civil) 303 : (2014) 174 PLR 293. 38 In the Canadian case of R v Sekhon, 2014 SCC 15, the Supreme Court held that the evidence of expert was merely “anecdotal” and unreliable and, hence, inadmissible, when he said that in his vast experience of dealing with about 1000 drug cases he has not come across any “blind courier” case where the carrier of drugs did not know that he was carrying drugs in the vehicle he was driving. 39 People v Patrick, 182 N.Y. 131. 40 Emanuel Tanay, American Legal Injustice: Behind the Scenes with an Expert Witness, Lanham, Maryland, 2010, p 37. 41 In Sqn Ldr (R) Umeed Ali Khan v Dr Sultana Ibrahim, LEX/SCPK/0483/2006, the Supreme Court of Pakistan said: “Besides it must be remembered that an Expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interest.” In Premsagar Manocha v State (NCT of Delhi), (2016) 2 SCC (Cri) 315 : (2016) 4 SCC 571, the Indian Supreme Court referred to Pakistani decision but held that “in any case, a Government scientific expert certainly stands on a different footing.” 42 Tracey Peerage Case, 10 C1&F 254. 43 Lewis Mayers, The American Legal System, 1963, p 81. 44 White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23. It is said that an “expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.” White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, para 2; and National Justice Compania Naviera SA v Prudential Assurance Co, [1993] 2 Lloyd’s Rep 68 (QB). 45 White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, para 17. 46 National Justice Compania Naviera SA v Prudential Assurance Co, [1993] 2 Lloyd’s Rep 68 (QB) 2. 47 Ibid, para 40. However, in Australia and USA, the expert’s objectivity and impartiality will generally go to weight, not to admissibility. National Justice Compania Naviera SA v Prudential Assurance Co, [1993] 2 Lloyd’s Rep 68 (QB) 2, paras 43–44. 48 R v Mohan, [1994] 2 SCR 9, at pp 20–25. 49 Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, para 32. 50 Ibid, para 49. 51 Sidhartha Vashisht @ Manu Sharma v State (NCT of Delhi), (2010) 6 SCC 1. 52 The Supreme Court also referred to the English case National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”), [1995] 1 Lloyd’s Rep 455, where the Queen’s Bench (Commercial Division) even went to the extent of holding that the expert has the freedom in such a situation to change his views. It was stated that “if an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be

Page 8 of 8 10.2 SECTION 45: OPINIONS OF EXPERTS stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report”.

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10.3 SECTION 45A: OPINION OF EXAMINER OF ELECTRONIC EVIDENCE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > X OPINION EVIDENCE > Sections 45–51

X OPINION EVIDENCE Sections 45–51

10.3 SECTION 45A: OPINION OF EXAMINER OF ELECTRONIC EVIDENCE Section 45A, which was inserted by Information Technology Act of 2008, deals with relevancy of expert opinion on electronic evidence and provides: 45A. Opinion of Examiner of Electronic Evidence.—When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation.—For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

Section 79A of the Information Technology, 2000 Act referred to in section 45A provides: Section 79A—Central Government to notify Examiner of Electronic Evidence: The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the official Gazette, any department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation.—For the purpose of this section, “Electronic Form Evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines”.

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10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > X OPINION EVIDENCE > Sections 45–51

X OPINION EVIDENCE Sections 45–51

10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE Section 46 provides: 46. Facts bearing upon opinions of experts.—Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Illustrations (a)

The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b)

The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.

Section 46 permits “facts” to be adduced to support or rebut the opinions of experts. Both the illustrations to the section clarify the position and those facts might be brought in through the evidence of other experts, treatises on the subject.53 The Law Commission of India in its 69th54 and 185th55 Reports recommended the addition of section 45A so as to provide additional safeguards: •

the expert witness shall not testify as an expert unless a copy of his report of his opinion is given to all the parties;

•

the report shall be addressed to the Court and not to the party that called him;

•

the expert owes a duty to help the Court and this duty shall override any obligation to the party calling him.

10.4.1 Expert Evidence should be “Direct”–Bullcoming v New Mexico (2011) Section 60 of the Evidence Act, 1872 requires that the oral evidence given by a witness must be direct and must be confined to what he has seen, heard or perceived by his senses. It is noteworthy that the section proceeds to state that if the oral evidence refers to an opinion or to the grounds on which the opinion is held, “it must be the evidence of the person who holds that opinion on those grounds” and if the opinion is that of experts expressed in a treatise commonly offered for sale, the opinion and the grounds on which the opinions are held can be proved by producing that treatise if the expert is dead, not found, incapable of giving evidence or whose attendance cannot be procured without unreasonable delay or expense. It is important to note that whether the expert witness is testifying as to the

Page 2 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE facts observed or opinions held by him, it is direct evidence under section 60. Opinion evidence is “direct” in contradistinction to “hearsay” but it is “circumstantial” as against the other meaning of “direct”56 because the doctor who performed the postmortem and the ballistics expert who tested the bullets and guns in a case are themselves testifying as to the facts observed and opinions held by them but they are not eye witnesses to the murder. Section 60 deals only with the mode of proof of facts observed and opinions held by witnesses, and the relevancy of the opinions, as with the relevancy of any facts, must be established by reference to the provisions of the Evidence Act, 1872 relating to relevancy. In the US case of Bullcoming v New Mexico, 564 U.S. 647 (2011), the accused was charged with driving while intoxicated (DWI) and the principal evidence against him was the report of Mr Caylor, the forensic expert of New Mexico Department of Health, Scientific Laboratory Division (SLD) who tested the blood sample of the accused and certified that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification and instead, called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. The Supreme Court of US reversed the judgment of the Supreme Court of the State of New Mexico and remanded the case. Disagreeing with the State’s proposition that “dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination”, the Supreme Court held: We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

However, in the landmark case of Williams v Illinois (2012), 567 US 132 S. Ct. 2221 : 183 L. Ed. 2d 89, Williams was charged with aggravated abduction, robbery and rape of a woman and the vaginal swabs containing semen were sent by Illinois State Laboratory (ISL) to another lab in Maryland and the Maryland lab sent the DNA profile report back to ISL. The expert witness of ISL testified that she matched the DNA profile sent by Maryland lab with ISL’s own DNA database and identified that it was of Williams, the accused in this case. Rejecting the defence objection that the expert’s testimony was inadmissible as she based her testimony on Maryland lab’s report which was not adduced in evidence and subjected to the 6th amendment right of confrontation, the US Supreme Court, affirming the judgment of Illinois Supreme Court, held that the expert herself was subject to cross-examination in this case and she can base her opinion on the Maryland lab’s report which was not adduced in evidence. The accused could, if he chose to, have summoned the report and subject its author to cross-examination. The Court further held that even if the report was adduced in evidence by the prosecution, it does not violate 6th amendment right as (a) the report was made even before any body was suspected, much less the accused, (b) the report “was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose” and (c) the report was not even “inherently inculpatory”. The Court held: “On the contrary, a DNA profile is evidence that tends to exculpate all but one of more than 7 billion people in the world today. The use of DNA evi dence to exonerate persons who have been wrongfully accused or convicted is well known.” And, “if DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile” the financial burden that would cause “would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable.” In the Australian decision in Yusuf Aytugrul v The Queen, [2012] HCA 15, the accused was tried for and convicted of murder by the Supreme Court of New South Wales and he appealed to the High Court of Australia. The appeal concerned the admissibility of some evidence led at trial about a DNA analysis. A hair found on the deceased’s thumbnail had been subjected to mitochondrial DNA testing. The results of that testing showed two things: first, that the appellant could have been the donor of the hair and, second, how common the DNA profile found in the hair was in the community. This second aspect of the results was expressed in evidence both as a frequency ratio and as an exclusion percentage. The expert who had conducted the test gave evidence to the effect that (a) one in 1,600 people in the general population (i.e., the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that (b) 99.9% of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). Dealing with the relationship between “frequency ratio” and “exclusion percentage”, the High Court observed: ...it is important to recognise that evidence of DNA analysis tendered by the prosecution is tendered in proof of a case that the accused is guilty of the offence charged. It is not usually tendered only to exclude the possibility that there may be

Page 3 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE others who committed the offence (unless the possible class of offenders is limited). It is usually tendered to show that there is at most a small pool of persons, including the accused, who could have left a trace at the scene of the crime. But demonstrating that there are many persons in Australia who did not commit the crime charged against the accused may be thought, if that information is considered in isolation, to tend to distract attention from whether the accused is the one out of the remaining number of possible perpetrators who did commit the crime.

Affirming the conviction and rejecting the appellant’s contention that the evidence that the expert witness gave in the form of an exclusion percentage was not admissible, the Court stated: In this case, where both the frequency ratio and the exclusion percentage were given, and the relationship of one to the other was explained, there was neither a wrong decision of any question of law nor on any other ground a miscarriage of justice ... Given that the exclusion percentage and the frequency ratio were different ways of expressing the same statistical statement, the probative value of the exclusion percentage was necessarily the same as that of the frequency ratio.57

The English decision in R v Ogden, [2013] EWCA Crim 1294, following the earlier decisions, has held that for convicting the accused even where the DNA evidence is strong the Courts must look for independent evidence, even if tenuous, linking the accused to the crime. In Regina v Doheny and Adams, [1997] 1 Cr App R (S) 269, Phillips LJ observed: The significance of the DNA evidence will depend critically upon what else is known about the suspect...The possibility that two of the only 26 men in the UK with a matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant’s guilt.

In Lashley v Regina, [2000] EWCA Crim 88, Kennedy LJ, said: the sole evidence against an appellant was DNA found on a cigarette left at the scene of the crime. It was accepted that there would be between seven and ten males in the United Kingdom to whom this profile related. There was no other evidence before the jury linking the defendant to the crime. The judge ought to have acceded to submissions at the close of the prosecution case that the case should be withdrawn from the jury. In an appropriate case the additional evidence need only be very limited, but there must be some independent evidence establishing a nexus between the defendant and the crime.

10.4.2 Liability of “Negligent” Expert Witness—Landmark UK Judgment in Jones v Kaney (2011)—Bolam Test In Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582,58 Justice McNair laying down what has come to be known as “Bolam Test”, observed that an expert ... is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.59

An important issue that was the subject matter of a well-reasoned judgment by the Supreme Court of the UK and of considerable debate in legal fraternity is that of immunity of an expert witness from civil action for damages for negligence by the party that engaged the expert.60 In Jones v Kaney, [2011] UKSC 13, the Supreme Court went against the weight of the earlier judicial authority and held that, in certain respects, the immunity should be abolished.61 The present action has its origin in a road traffic accident that occurred in Liverpool on 14 March 2001. The appellant, Jones, was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by Bennett. Bennett was drunk and he was driving while disqualified. The appellant claimed that he suffered significant physical injuries and also post-traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome. The

Page 4 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE solicitors of Jones engaged Ms Kaney, a consultant clinical psychologist, to prepare a report on Jones’ mental condition for the purpose of litigation. In her report the expert stated that Jones was suffering from PTSD. In her second report she said that Jones was not suffering from all the symptoms of PTSD but only some of them. The Insurance Company Fortis engaged another clinical psychologist Dr El-Assra who said in his report that that Jones was faking the symptoms. As is the practice in UK and USA, the district judge ordered the two experts to hold discussions and to prepare a joint statement. Consultation between the two experts took place on telephone and Ms Kaney signed the Joint Report written by Dr El-Assra without reading his own report or even the joint report. The joint report was damaging to Jones and it stated that Jones was not suffering from PTSD and it was no more than an adjustment reaction to the accident. It further stated that Ms Kaney had found the appellant to be deceptive and deceitful in his reporting.62 Consequently, Jones was forced to settle for an amount of damages from Bennett significantly less than what could have been obtained but for Ms Kaney signing the Joint Report.63 Lord President Phillips of the Supreme Court, speaking for the majority, referred to the earlier authorities on the subject and quoted Lord Mansfield’s observation in R v Skinner, (1772) Lofft 55 that “neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office”. In Stanton v Callaghan, [2000] QB 75, what the Supreme Court referred to as “the leading case” on immunity of experts,64 Chadwick LJ, observed: In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity.

In the present case Lord Phillips was aware that absence of witness immunity will have the chilling effect that the risk of claims arising out of conduct in relation to legal proceedings would have. It would make claimants reluctant to resort to litigation. It would make witnesses reluctant to testify. If they did testify, it would make them reluctant to do so freely and frankly.

Nevertheless, His Lordship pointed out: A significant distinction between an expert witness and a witness of fact is that the former will have chosen to provide his services and will voluntarily have undertaken duties to his client for reward under contract whereas the latter will have no such motive for giving evidence.

Consequently, Lord Phillips held on the basis of the principle “where there is a wrong, there must be a remedy”65 that: ... the immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. I emphasise that this conclusion does not extend to the absolute privilege that they enjoy in respect of claims in defamation.66

Thus, the majority opinion meant that: 1. The scope and extent of immunity of an expert witness engaged by a party is more limited than that of an ordinary witness as the expert is under a contract to render expert professional services and he is paid for it, whereas an ordinary witness is not. If the expert is negligent in the discharge of professional service he is liable for it. Ubi jus, ibi remedium. 2. Honest revision of opinion by an expert in the light of discussions with the other expert is different from negligent rendering of opinion as was the case in Jones. 3. The legal position of the expert’s contractual relations with the party that engaged him is different from his position as a witness in the Court and, as a witness, he will enjoy the immunity from any action for defamation on par with any other ordinary witnesses. Of course, all witnesses will be liable for criminal actions like perjury.

Page 5 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE 4. An expert witness can turn hostile because, for instance, he is bought over by the opposite party. Hence, an expert must be held accountable for his actions as an expert. 5. The possibility of an expert shying away from being a witness is no greater than a doctor shying away from medical practice because of fear of litigation. 10.4.3 Best Practices in other Jurisdictions United Kingdom: (A) Justice Woolf in his famous Report on “Access to Justice” (1996) has suggested wide-ranging judicial reforms and he made various proposals regarding expert evidence also. He proposed: •

Experts have a duty to the court, which overrides any obligation to the person from whom the expert has received instructions or payment.

•

Experts must certify, at the end of the expert report that they understand and have complied with their duty to the court.

•

No party may call an expert or put an expert’s report in evidence without the court’s permission.

•

At any stage, the court may direct a discussion between experts for the purpose of reaching an agreed opinion on issues, or for preparation of a statement on those issues where they agree and disagree, along with their reasons for disagreeing.67

(B) The Civil Procedure Rules (CPR) of 1999 which were enacted in England to implement the recommendations of Lord Woolf with regard to expert evidence are revised by CPR–Civil Rules and Directions, Incorporating the 73rd Update changes and they provide:68 •

Rule 35.3 (1) It is the duty of an expert to help the court on the matters within his expertise.

•

(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

•

Rule 35.4: (1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

•

Rule 35.4 (2) and (3) provide that the party which seeks to call an expert should mention the field and/or the name of the expert and if the Court grants permission, it shall be only for that field and/or that expert only.

•

Rule 35. 7 (1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

•

Under Rule 35.7 (3), where the parties cannot agree on the expert, the Court may appoint an expert from a list given by the parties or in a manner directed by the Court itself.

•

Rule 35.5: (1) Expert evidence is to be given in a written report unless the court directs otherwise.

•

Rule 35.10: (2) At the end of an expert’s report there must be a statement that — (a) the expert understands his duty to the court; and (b) he has complied with that duty.

(C) The Law Commission of the UK prepared a Consultation Paper on Expert Evidence in 200969 and made certain recommendations. In this scholarly report, the Commission made extensive references to statutory provisions and judicial decisions in other jurisdictions and, in particular, in USA. The Commission adopted the “Daubert test” of the US Supreme Court.70 One of the recommendations of the Commission was: •

Proposal (1) of its recommendations dealt with “a ‘gate-keeping’ role and validity-based admissibility test”.

•

“6.4.Our key proposal is that there should be an explicit “gate-keeping” role for the trial judge with a clearly-defined test for determining whether proffered expert evidence is sufficiently reliable (that is, sufficiently trustworthy) to be admitted.”

•

“6.5 The application of this test would determine whether the tendered evidence is admissible as a matter of law. It would therefore be applied after the judge has provisionally concluded that the evidence is relevant and likely to be of assistance to the jury (on the assumption that it is reliable) but

Page 6 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE before he or she considers the application of any available discretion to exclude otherwise admissible evidence”. •

“Gate-keeping” by Courts was necessary in UK and USA because of the jury system prevalent in criminal trials.

(D) Law Commission Report on Expert Evidence in Criminal Proceedings in England and Wales, 22 March 2011,71 basing its recommendations on the Consultation Paper above referred to recommended: (1) there should be a statutory admissibility test which would provide that an expert’s opinion evidence is admissible only if it is sufficiently reliable to be admitted; and (2) there should be a statutory provision to the effect that, if there is any doubt on the matter, expert evidence presented as evidence of fact should be treated as expert opinion evidence. It is interesting to note that the above recommendation (2) makes a distinction between expert evidence of fact and of opinion, and, by implication, treats the latter as inferior to the former. The Commission proposed a “Reliability Test”: (1) a statutory provision in primary legislation which would provide that expert opinion evidence is admissible only if it is sufficiently reliable to be admitted; (2) a provision which would provide our core test that expert opinion evidence is sufficiently reliable to be admitted if – (a) the opinion is soundly based, and (b) the strength of the opinion is warranted having regard to the grounds on which it is based; (3) a provision which would set out the following key (higher-order) examples of reasons why an expert’s opinion evidence is not sufficiently reliable to be admitted: (a) the opinion is based on a hypothesis which has not been subjected to sufficient scrutiny including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny; (b) the opinion is based on an unjustifiable assumption; (c) the opinion is based on flawed data; (d) the opinion relies on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; (e) the opinion relies on an inference or conclusion which has not been properly reached. (4) a provision which would direct the trial judge to consider, where relevant, more specific lowerorder) factors in a Schedule to the Act and to any unspecified matters which appear to be relevant. (E) In R v Dlugosz, [2013] EWCA Crim 2, para 11, (2013), the Court of Appeal observed: It is essential to recall the principle which is applicable, namely in determining the issue of admissibility, the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted. If there is then the court leaves the opposing views to be tested before the jury.

(F) In R v Hamilton (Stephen), [2014] EWCA 1555, para 43, the Court of Appeal stated: Whilst legislative reform has not been taken forward, following the Law Commission Report on Expert Evidence in Criminal Proceedings, there is real concern about the use of unreliable or inappropriate expert evidence. As a result, Part 33 of the Criminal Procedure Rules has been revised (with effect from 1 October 2014) and a new Practice Direction is to be published which will incorporate the reliability

Page 7 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE factors recommended by the Law Commission for the admission of expert evidence.

(G) As “the Government declined to legislate” the recommendations of the Law Commission, the Lord Chief Justice issued Revised Criminal Practice Directions.72 (1) 33A.1. Expert opinion evidence is admissible in criminal proceedings at common law if, in summary, (i) it is relevant to a matter in issue in the proceedings; (ii) it is needed to provide the court with information likely to be outside the court’s own knowledge and experience; and (iii) the witness is competent to give that opinion. (2) As there is nothing in common law which precludes the Court from assessment by the Court of the reliability of an expert opinion by reference to substantially similar factors to those the Law Commission recommended as conditions of admissibility, courts are encouraged actively to enquire into such factors. (3) 33A.5. Therefore, factors which the court may take into account in determining the reliability of expert opinion, and especially of expert scientific opinion, include: (a) the extent and quality of the data on which the expert’s opinion is based, and the validity of the methods by which they were obtained; (b) if the expert’s opinion relies on an inference from any findings, whether the opinion properly explains how safe or unsafe the inference is (whether by reference to statistical significance or in other appropriate terms); (c) if the expert’s opinion relies on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results; (d) the extent to which any material upon which the expert’s opinion is based has been reviewed by others with relevant expertise (for instance, in peer-reviewed publications), and the views of those others on that material; (e) the extent to which the expert’s opinion is based on material falling outside the expert’s own field of expertise; (f)

the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion relates);

(g) if there is a range of expert opinion on the matter in question, where in the range the expert’s own opinion lies and whether the expert’s preference has been properly explained; and (h) whether the expert’s methods followed established practice in the field and, if they did not, whether the reason for the divergence has been properly explained. (4) 33A.6. In addition, in considering reliability, and especially the reliability of expert scientific opinion, the court should be astute to identify potential flaws in such opinion which detract from its reliability, such as: (a) being based on a hypothesis which has not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny; (b) being based on an unjustifiable assumption; (c) being based on flawed data; (d) relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; or (e) relying on an inference or conclusion which has not been properly reached. United States of America: “Gate-keeping” by Courts •

Appointment of neutral experts has been recommended by many American commentators like Wigmore73 and Learned Hand.74

Page 8 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE •

In Frye v US, 293 F 1013 (1923) the Court of Appeal for the District of Columbia held that, to be admissible, a scientific theory underpinning an expert witness’s evidence “must be sufficiently established to have gained general acceptance in the particular field in which it belongs”.

•

The US federal courts and most US States now use a different test called the “Daubert test”75 focusing on the reliability of the particular evidence being tendered. Thus, while the Fry test emphasises on the general acceptability of the expert opinion, the Daubert test is more case-specific at the intrinsic reliability of a particular opinion.

•

As observed in the Canadian case of R v J-LJ, [2000] 2 SCR 600, para 34 “Thus, in the United States, as here, ‘general acceptance’ is only one of several factors to be considered.”

•

As Michael J Saks, states: Expert testimony did not turn on whether the expert community in question agreed among themselves that they were in possession of dependable knowledge, but on whether the putative knowledge could be demonstrated to be valid.76

•

The Daubert test also required that it is for the judge to do “gate-keeping” to ensure that the witness is really an expert and his evidence passes the admissibility and reliability tests so that the jury will not be misled or misinformed.

•

The US Federal Rules of Evidence deals with “Opinions and Expert Testimony” in Article VII which provides: ∘

Rule 702 as amended in 2000 incorporates the Daubert test and provides: An expert may testify, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

∘

Rule 703 provides that “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.”

∘

Rule 706 (a) deals with the “appointment” of experts and provides that the Court may, on its own motion or on the motion of a party,(a) appoint any expert witnesses agreed upon by the parties and (b) may also appoint its own expert witness.

∘

Rule 706 (a): The expert witness (a) shall notify the parties of his findings, (b) his deposition may be taken down by the parties,(c) the witness may be asked to testify by the Court or by any party, and (d) “The witness shall be subject to cross-examination by each party, including a party calling the witness.”

∘

Rule 706 (d) says that “Nothing in this rule limits the parties in calling expert witnesses of their own selection.”

53 Shantinath Ramu Danole v Jambu Ramu Danole, (1996) 11 SCC 88; Ram Aaran Mal v State, (1990) Cr LJ 846 at p 849 (All): Total absence of contusion and the like, on the body of the deceased, in medical evidence completely rules out the version given by the eye witnesses that the deceased was hit and that the injuries were caused by lathis. 54 Law Commission of India, 69th Report, p 341. 55 Law Commission of India, 185th Report, p 288. 56 See Chapter on Kinds of Evidence above. 57 Yusuf Aytugrul v The Queen, [2012] HCA 15, para 28. 58 The Bolam test has been approved by the Supreme Court of India in Jacob Mathew v Punjab, (2005) 6 SCC 1. 59 See also below the discussion on “Daubert test” and “Fry test” under the heading “United States of America: ‘Gatekeeping’ by Courts”.

Page 9 of 9 10.4 SECTION 46: FACTS THAT SUPPORT OR ARE INCONSISTENT WITH EXPERT EVIDENCE 60 In Meadow v General Medical Council, [2007] QB 462, the Court of Appeal held that expert witnesses had no immunity against disciplinary proceedings before professional tribunals where fitness to practice was in issue. 61 The Supreme Court observed: “Surprisingly, this immunity has never been challenged in the past. It has simply been accepted that an immunity which protects witnesses of fact applies equally to prevent a client from suing in negligence the expert that he has retained.” Jones v Kaney, [2011] UKSC 13, para 2. 62 The Court pointed out: “The present case is unusual in that, on the agreed facts, the respondent has admitted to putting her signature to a joint report that did not express her views.” Jones v Kaney, [2011] UKSC 13, para 59. 63 Blake J, of the trial Court followed the existing precedents and upheld the immunity of the experts but granted a “leap frog certificate” appeal direct to the Supreme Court and observed: “An expert who negligently prepares for a joint conference, fails to carefully scrutinise the proposed joint statement before signing it, or is persuaded to record entirely unfounded imputations against his instructing party based upon a failure to remember or record the instructions, can cause great damage to a party in civil proceedings. The policy of the CPR [Civil Procedure Rules, 1999], and expedition and economy in the resolution of disputes means that the courts will not lightly permit a party to find another expert to replace one in which he has lost confidence. The Claimant was not so permitted in the present case. Once the damage is done in a careless concession in a joint report, it cannot be undone. The injured party is left with a wrong without a remedy.” See also Jonathan Glasson, Matrix, “Case Preview: Jones v Kaney”, ukscblog.com (last accessed in April 2019). 64 Jones v Kaney, [2011] UKSC 13, para 23. 65 See Clare Montgomery QC, Matrix, “Case Comment: Jones v Kaney [2011] UKSC 13”, ukscblog.com (last accessed in April 2019); also Daniel Shapiro, “Expert Witnesses: now liable for inexpert evidence”, http://docplayer.net/4285356Jones-v-kaney-2011-uksc-13-expert-witnesses-now-liable-for-inexpert-evidence.html (last accessed in April 2019). Daniel Shapiro, an attorney, represented the successful appellant, Jones in the case; “Jones v Kaney [2011] UKSC 13: inexpert experts”, courtno83.blogspot. com/2011/.../jones-v-kaney-2011-uksc-13-inexpert.html ((last accessed in April 2019). 66 Lord Hope and Lady Hale wrote dissenting opinions. Lord Hope felt that there was a “formidable body of authority which should not be lightly disregarded” and that “if there is a need to reform the law in this area, it would be better to leave it to be dealt with by Parliament following a further report by the Law Commission.” His Lordship also felt that, till that time, “the lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what is to be affected by the removal and what is not, the uncertainties that this would cause and the lack of reliable evidence to indicate what the effects might be suggest that the wiser course would be to leave matters as they stand.” See Clare Montgomery QC, Matrix, “Case Comment: Jones v Kaney [2011] UKSC 13”, para 148, ukscblog.com (last accessed in April 2019). Lady Hale stated that “it does not seem to me self-evident that the policy considerations in favour of making this exception to the rule are so strong that this Court should depart from previous authority in order to make it. To my mind, it is irresponsible to make such a change on an experimental basis.” See Clare Montgomery QC, Matrix, “Case Comment: Jones v Kaney [2011] UKSC 13”, para 190, ukscblog.com (last accessed in April 2019). 67 Rt Honourable Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (Department of Constitutional Affairs, UK: July 1996) online: Department of Constitutional Affairs http://www.dca.gov.uk/civil/final/index.htm. (Last accessed in April 2019). See recommendations 156–173 dealing with expert evidence. 68 Came into force on 5 June 2014. 69 The Law Commission Consultation Paper No 190 on “The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Reliability”, 7 April 2009. 70 See the discussion below on “United States of America”. 71 http://www.lawcom.gov.uk/expert_evidence.htm (last accessed in April 2019). 72 Amendment No 2 to the Criminal Practice Directions, [2013] EWCA Crim 1631 (Amendment No 1, [2013] EWCA Crim 2328). This Practice Direction adds Practice Directions at CPD I, inter alia, CPD V Evidence Part 33A. 73 John H Wigmore, A Students Textbook of the law of Evidence (Brooklyn, The Foundation Press, 1935), section 563. 74 Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, Harvard Law Review (1901), at p 56. 75 Daubert v Merrell Dow Pharmaceuticals, 509 US 579 (1993). 76 Michael J Saks, “The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence”, 40 Jurimetrics (1999– 2000) 229.

End of Document

10.5 FIELDS OF EXPERTISE Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > X OPINION EVIDENCE > Sections 45–51

X OPINION EVIDENCE Sections 45–51

10.5 FIELDS OF EXPERTISE 10.5.1 “Foreign Law” Foreign Law is the law that is in force outside India and not in India. Law is mostly territorial and the law of a country will be in force strictly within its territorial limits. On the other hand, Personal Laws like Hindu Law and Muslim Law which are of customary nature have no territorial link unless they are codified and are reduced to statutory form in which case they have only territorial application. Thus, customary Personal Law runs with the persons but statutory Personal Law runs with the territory wherein they operate. Thus, for instance, enactments relating to Muslim personal law passed in India will not be applicable to Muslims living in Pakistan. It has been held that the law relating to marriages applicable to Shia Muslims “can by no means be called a foreign law” and is considered as “the law of the land and is in force in India.”77 Customary International Law is part of the law of the land of India, and International Law contained in treaties and Conventions to which India is a party is also transformed into law of the land if India has enacted the necessary enabling legislation. 10.5.1.1 Issues of Foreign Law Issues of foreign law become the subject matter of dispute in a suit involving questions of Conflict of Laws or International Law. Suppose an Indian Hindu woman marries an American Christian in Paris and sets up their matrimonial home in Geneva and later seeks a divorce in Hyderabad, and also suppose that the Court decides that the law of the place where the marriage has been performed shall apply to the case. In that case, the Hyderabad Court will have to look into what the French Law is on the subject. Again, suppose an Englishman allegedly committed the offence of possessing the narcotic drug of Heroin in England and sought refuge in India. If the UK seeks his extradition from India, the Indian Court may have to satisfy itself that possessing Heroin is an offence under the law of the UK before he can be extradited from India. In the above two cases, the Indian Court has to form an opinion regarding what the French law or English law is on the subject. 10.5.1.2 Proof of Foreign Law Section 57 of the Evidence Act, 1872 says that Courts in India “shall take judicial notice” of “all laws in force in the territory of India” including statutes and case reports78 and there is no need for any party to prove Indian law before Indian Courts as they are presumed to know that law. The maxim is jura novit curia i.e., the Court knows the law. Hence, expert evidence cannot be let in on questions of Indian law. In the case of Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25, the Supreme Court of Canada agreed with the Information Commissioner’s contention that reliance by the lower Court upon expert evidence to interpret the domestic law of Access to Information Act, 1985 would constitute an error of law because opinion evidence is inadmissible in the Court room to prove the ordinary meaning of legislative terms, “as the interpretation and articulation of domestic law lies at the very heart of the judicial function”.79 Foreign law, on the other hand, stands on a different footing. Though it is generally said that “foreign law is a question of fact and it has to be proved like any other fact”,80 foreign law is something more than a mere question of fact.

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As has been stated by the Law Commission of India in its 69th Report “foreign law is not a ‘fact’ in the ordinary sense.”81 In its 185th Report the Commission said that “In fact, the decision of the court on a foreign law is treated as a question of law and not as a question of fact.”82

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Though in England, questions of fact are decided by the jury, questions of foreign law are decided by the judge.

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Nevertheless, foreign law is proved by adducing evidence like any other fact.

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In India also, the Courts rely upon interpretations of foreign law by the Courts in that country and by the learned commentators.

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In USA, the Federal Rules of Civil Procedure require the party raising an issue of foreign law to give notice in pleadings or otherwise in writing.83

In Bumper Development Corp v Commissioner of Police for the Metropolis, [1991] 1 WLR 1362,84 the Court of Appeal of England stated: It is trite law that foreign law in our courts is treated as a question of fact which must be proved in evidence. It is however the duty of the judge when faced with conflicting evidence from witnesses about a foreign law to resolve those differences in the same way as he must in the case of other conflicting evidence as to facts.

The Court also held that the judge below “was not entitled to reject the evidence of the experts” and that he “was not entitled to rely upon his own researches”.85 In India, Foreign Law can be proved by any of the following means: 1. By production in Court of the laws published in the foreign country: section 38 provides: When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant. 2. Under section 84 “the Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country.” 3. By producing the case reports of the foreign country: Under section 84, “the Court shall presume the genuineness ... of every book purporting to contain reports of decisions of the Courts of such country.” 4. By calling the experts on the Foreign Law as witnesses under section 45. 5. By the production in Courts under section 60 of the treatises commonly offered for sale and written by the experts on foreign law for their opinions and the grounds on which the opinions are held. 10.5.2 “Science or Art” As has been pointed out already, the terms “science or art” are given a wider meaning. Field86 observes: The words ‘science’ or ‘art’ are to be broadly construed, the term ‘science’ not being limited to higher sciences, and the term ‘art’ not being limited to fine arts but having its original sense of handicraft, trade, profession and skill in work which, with the advance of culture has been carried beyond the sphere of common pursuits of life into that of artistic and scientific action.

In State v S J Choudhary, 1996 Cr LJ 1713,87 the Constitution Bench of the Supreme Court has held that: each of the words ‘science’ and ‘art’ has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, whenever the Court has to form an opinion upon a point relating to any aspect of science or art.

Page 3 of 16 10.5 FIELDS OF EXPERTISE Thus, the term “science” is not confined to the natural or physical or life sciences only and includes any field of systematised knowledge of intellectual enquiry. As much as Chemistry and Physics, Sociology, Criminology, Penology and other Social Sciences also fall within the purview of section 45. Similarly, the word “art” is not restricted to “fine arts” like music and painting. Historically, the words “philosophy” and “art” encompassed all fields of knowledge and even now the broader meanings are still in popular use as is evident from the use of academic qualifications like Doctor of Philosophy (PhD) and Master of Arts (MA). As observed by Davies J: Art, in its legal significance, embraces every operation of human intelligence, whereby something is produced outside of nature; and the term “science” includes all human knowledge which has been generalized and systematized, and has obtained method, relations and the form of law.88

The tests to be used for the purposes of section 45 are: 1. Is the field of knowledge esoteric in the sense that it cannot be acquired by simple commonsense or practical wisdom? Expert opinion is not admissible in cases where the Court can form the requisite opinion from other evidence and circumstances of the case.89 2. Does it require such specialised study or training that the Court cannot form an intelligent opinion on the issues before it without the assistance of the inputs of persons who are specially skilled in that field? 3. “The test to be applied by the judge in deciding whether expert opinion should be called is whether the point to be decided involved special acquaintance with particular subject, or whether it is a mere question of legal or moral obligation about which one person is as good a judge as another.”90 10.5.3 Relevance of Forensic Medicine and Forensic Science Facts relating to Forensic Medicine and Forensic Science may be relevant, inter alia, under •

Section 7: as to “cause or effect”. Facts relating to effects of poisons, asphyxia (strangulation), gunshot wounds, rigor mortis will come under this provision.

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Section 9: in particular “identity of any thing or person” or “fix the time or place in which any fact in issue or relevant fact happened”. Finger impressions and foot prints, handwriting, polygraph and Narco Analysis, DNA tests, blood tests, Ballistics, cause and time of death, postmortem examination or autopsy and a host of other evidence like fixing the age come under this provision.

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Section 14: “State of mind or bodily feeling.”

10.5.3.1 Forensic Medicine In Baliraj Singh v State of MP,91 (2017), the Supreme Court stated that “It is settled proposition in criminal jurisprudence that ordinarily, the value of medical evidence is only corroborative.” Medical Jurisprudence or forensic medicine is said to be not an exact science and it is not possible to state with mathematical precision, for instance, the exact time of the death or when certain injuries have been inflicted.92 However, experts in forensic medicine play a very important role in criminal proceedings and their evidence is often relied upon by the Courts in arriving at a certain conclusion.93 As was discussed under section 9, questions as to the cause of the death, the time of the death, whether a particular wound is capable of causing the death, fixing the age of a person, the determination of the sex, height of a person where only a bone of the hand or the leg is available and so on become critical to the finding of guilt in criminal cases and the experts are called to give their opinions as witnesses. The notion of determination of identity under section 9 has two different aspects: •

Testimonial Identification: This relates to the identification of a person or a thing by the witnesses who saw them. For instance, the question whether the accused in the dock is the person who committed the murder can be answered by the witness who saw the person who committed that murder and the witness can identify the culprit either in the Identification Parade and/or in the Court. If the witness personally knows the accused, he may identify him by name. If the accused is already known to the witness, it is called

Page 4 of 16 10.5 FIELDS OF EXPERTISE identification by recognition and in R v Turnbull,94 the Court of Appeal of England observed that “recognition may be more reliable than identification of a stranger.” •

Expert Identification: As forensic expert is not a witness to the crime or personally familiar with the persons, the process of identification does not relate to who the accused is or the deceased is in the testimonial sense but relates to the identification of the person on the basis of the blood test or DNA test. For instance, if an expert is called to conduct DNA test to determine whether B is the son of A, the expert will not depose as to the names of the persons but as to the genetic similarity of the two persons.

Apart from giving evidence as to the state of the body, the experts give evidence as to whether an accused person is sane or not and whether a person is in a proper physical and mental condition to write a will or to make a dying declaration. Cause of Death The identification of the cause of the death sometimes becomes necessary for determining whether the death was homicidal or suicidal. •

In “bride burning cases” the accused takes the defense that the woman committed suicide because 0f health problems and that it was not a homicide committed by in-laws. Dr DLN Prasad, who is a famous burns specialist and retired as a surgeon in Osmania General Hospital, Hyderabad, mentioned that he found that where a woman wants to commit suicide by burning herself with kerosene, she pours the fuel on her shoulders in a sitting posture, and in cases of homicide the kerosene is poured on her head by the inlaws before igniting it.

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The cause of the death in the cases of drowning is determined on the basis of whether there was the edema or water-logging of the lungs. Where the deceased is killed elsewhere and the body is thrown in the water in a well or tank, edema will not be there.

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Where asphyxia is the cause of the death, it could be due to drowning, strangulation, hanging and the examination of the body and the presence of marks on it will reveal the exact cause.

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Where the death is caused by the administration of poisons, a Toxicology expert will be able to identify the exact poison that has been used form the symptoms caused by it.95

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In the case of wounds caused by instruments like sharp knives or blunt clubs, the medical experts are able to identify the fatal injury and whether a particular instrument has been used.

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Ballistics and the medical experts will be able to identify the particular gun used on the basis of the make and the bore of the gun. The direction in which and the distance from which the gun has been fired is determined on the basis of the entry and exit wounds of the bullet. Where the “tattoo marks” left by the gun powder were found near the entry wound on the body, the Court preferred to believe the expert that the gun was fired almost from point-blank range than an eye witness account that it was fired from a distance.

Time of Death The time of death becomes necessary sometimes to determine whether a particular person had the opportunity to commit murder. The time of the death may be fixed by various methods: •

Presence of temperature in the body checked by oral or anal thermometers might indicate that death occurred fairly recently.

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The presence or absence of rigor mortis (death stiffness) might indicate the time of death.

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The stage of the digestive process of the food in the stomach might also indicate the time of death.96

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Many other factors like the setting in of the decomposition of the body, the room temperature also help in the determination of the time of the death.

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In view of many variables, often, the time of death can be determined only approximately and not exactly.

Reliability of Medico-Legal Evidence The evidence of experts in forensic medicine or forensic science suffers from the deficiencies inherent in all forms of expert evidence to which reference has already been made. Subject to this caveat, it can be said that the Courts

Page 5 of 16 10.5 FIELDS OF EXPERTISE have on occasions relied on medico-legal evidence where the expert and his evidence were found to be trustworthy and reliable. •

“The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”97

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It was held that sufficient weightage must be given to a doctor who based his opinion on the autopsy actually conducted by him than the opinions expressed in the treatises on Medical Jurisprudence.98

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It was held that the doctor who examined the deceased and conducted the past-mortem was the only competent witness who could depose about the injuries and the cause of the death.99

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Where the doctor has examined the person and had noted the injuries and has opined that the injuries could not have been self-inflicted, the Court held that his opinion was more reliable than that of the doctor who gave the opinion on the basis of X-Ray report and the injury only.100

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The Courts consider the medical experts competent to depose about the nature of the injuries and not on how they are caused.101 The opinion of the doctor as to how the injuries were caused cannot override the credible evidence of the eye witnesses to the contrary.102

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For determining the age of an alleged juvenile offender under section 7-A of the Juvenile Justice (Care and Protection of Children) Act of 2000, the trial Court ought to have sought the opinion of the Medical Board.103

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The Juvenile Justice (Care and Protection of Children) Rules, 2007 Rule 12 (3)(a) states that the age determination inquiry for a juvenile shall be conducted by calling for (i) the matriculation or equivalent certificates, (ii) the date of birth certificate from the school, (ii) the birth certificate given by a corporation or a municipal authority or a panchayat. Rule 12 (3)(b) provides that only in the absence of (i), (ii), and (iii) above the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.104

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For the determination of the age of the prosecutrix in a rape case, ossification test is only to assist the Court and not binding. Relied on oral evidence that is prosecutrix was below 16 years and convicted the rape accused.105

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In an interesting case regarding the bride-burning, two dying declarations were recorded by two Executive Magistrates wherein the deceased stated that it was an accident that took place while she was preparing tea with a kerosene stove because the gas-cylinder was empty, and the dying declarations were sought to be relied on by the accused-husband, the Court disbelieved the “so-called dying declarations recorded by the Executive Magistrates” and relied on the evidence of forensic expert and the doctors that the gas cylinder was 80% full, there were no indications that she was preparing tea and that the death occurred due to burning in the toilet and not in the kitchen. The accused was convicted under sections 306 (abetment to suicide) and 498A (dowry harassment).106

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The Supreme Court held that “... oral evidence of eye witness has to get primacy as medical evidence is basically opinionative. If there is total inconsistency, it is expert evidence that gets primacy.” Thus, where the expert opinion said that there were no firearm injuries and the eye witness said that fire arms were used, the Court relied on expert opinion.107

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Where in a rape case there was a disparity between ocular evidence and forensic expert’s evidence, the Court disbelieved the ocular evidence and relied on the expert evidence which established that there was no laceration, abrasion, redness or swelling in vaginal part of prosecutrix and even spermatozoa was not detected on her vaginal swabs. Consequently, the High Court set aside the conviction of the accused.108

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In case there is a contradiction between medical evidence and ocular evidence, the law is that though the ocular testimony of the eye witness has greater evidentiary value vis-à-vis medical evidence, where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evidence may be disbelieved.109

Page 6 of 16 10.5 FIELDS OF EXPERTISE 10.5.3.2 Forensic Science Just as forensic medicine is medicine as applied in Courts, forensic science is science as applied in Courts. Forensic science includes study of handwriting, signatures, finger and foot prints, blood and semen tests, polygraph or lie-detector tests, Narco-Analysis, DNA Fingerprinting, Breathalyzer tests, Ballistics or guns and so on. While fingerprints and DNA tests have relatively higher degree of certainty and reliability than polygraph and narcoanalysis. Finger prints Identification by fingerprints is one of the oldest of the methods but the science has become more sophisticated with the use of the technology developed in biometrics. Apart from the usual physical examination of fingerprints, optical, ultrasound and computer-aided comparisons have come into vogue that has enhanced the reliability immensely. The three basic patterns of fingerprint ridges are the arch, loop, and whorl. An arch is a pattern where the ridges enter from one side of the finger, rise in the center forming an arc, and then exit the other side of the finger. The loop is a pattern where the ridges enter from one side of a finger, form a curve, and tend to exit from the same side they enter. In the whorl pattern, ridges form circularly around a central point on the finger. There are other minute details which further help in the identification process. Unlike the science of the study of handwriting and signatures, Courts have always placed greater reliance on the science of fingerprints. The Supreme Court observed that “the science of identifying of fingerprints is an exact science and does not admit of any mistake or doubt and the risk of an incorrect opinion is practically nonexistent.”110 It must, however, be mentioned that a thorough and scholarly Report on Finger Print Enquiry of 14 December 2011 in UK111 cautioned against any complacency in placing reliance on the science of fingerprints. The Report stated: 1. “Fingerprint evidence should be recognised as opinion evidence, not fact, and those involved in the criminal justice system need to assess it as such on its merits.”112 2. “Fingerprint comparison continues to serve as a valuable source of evidence but practice can be improved ... At the same time, it has to be recognised that it is not realistic to expect a zero error rate and therefore the reliability of fingerprint evidence depends on a proper appreciation by fingerprint examiners, and the legal community, of the limitations of the discipline and in particular the subjective nature of the judgments that underlie a fingerprint opinion and the many variable factors of relevance to it ...”113 3. “Examiners should discontinue reporting conclusions on identification or exclusion with a claim to 100% certainty or on any other basis suggesting that fingerprint evidence is infallible.”114 Handwriting and Signatures It has been held that “the science of identification of handwriting unlike the science of identification of finger prints which has attained near-perfection is not quite perfect and the risk is, therefore, higher.”115 In SPS Rathore v CBI, 2017 Cr LJ 537, para 27, it was held that “expert evidence as to handwriting is only opinion evidence and it can never be conclusive.” But there is no justification for condemning the expert opinion or treating it on par with accomplice’s evidence and invariably insisting on corroboration.116 It is a rule of prudence that no conviction can be based solely on the basis of the expert evidence and the Courts ought to look for corroboration from other evidence.117 As was mentioned in the discussion under section 9, under section 73 of the Evidence Act, 1872 the Court has the power to ask any person present in the Court to give a sample of his handwriting or signature for comparison by itself. The Courts have repeatedly held that as the Courts are not experts on handwriting, fingerprints, and it is not advisable to the Court to take upon itself the task that should properly be performed by the expert.118 •

The function of an expert is to place before the Court all the facts and the bases of his conclusions and opinions and the Court may, in the process of forming its opinion, also resort to section 73.119

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When the opinions of the experts on both the sides are conflicting, the Court may use its own eyes and ears and verify the truth under section 73.120

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In the absence of expert opinion, it is unsafe for the Court to rely on its own comparison.121

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As the Court is not an expert on handwriting, the Courts should be slow in having recourse to section 73 to base its judgment.122

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In cases where no experts are called by the parties because of the cost involved, it is not only the power but also the duty of the Court to invoke section 73 and verify and satisfy itself.123

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When the Court resorts to section 73 for comparison by itself, the Court must not give a bare finding but must record the grounds on which it based its opinion.124

Blood Tests Blood grouping and other blood tests are resorted to and relied upon in civil and criminal proceedings for a variety of purposes. If a blood-stained knife is recovered from the accused, the blood can be compared with the blood of the deceased to establish that the knife was used in the murder. Before the advent of DNA finger printing, blood grouping was resorted to determine the paternity of a child. The blood grouping is not useful to prove paternity but it is determinant in excluding paternity. Suppose the blood group of the child “X” is “A” and of putative father “Y” is also “A”, it does not necessarily follow that Y is the real father of X as there are millions of persons with blood group A. On the other hand, if the child’s blood group is A and of the mother and the putative father is O, that man cannot be the real father. Thus, in Perumal Nadar v Ponnu Swami, AIR 1971 SC 2352, the Supreme Court observed: “Blood test cannot show positive any man is the father but can show positively that a given man could or could not be the father. It is obviously the latter aspect that puts the blood test as the most valuable in determining the paternity.” Blood grouping tables are available in books on Forensic Science and on the Internet which show the group that the child will get basing on the groups of the mother and the putative father. If they do not match, it can be said that the man is not the father of the child. DNA Profiling125 The technique of DNA “finger printing” was developed in 1984 by the British geneticist Alec Jeffreys.126 In India, The Center for Cellular and Molecular Biology at Hyderabad has done pioneering work under the leadership of Dr Lalji Singh, and the Center has been consulted by the Courts in cases in which the identity issues has been critical.127 DNA (deoxyribonucleic acid) is a chemical compound within the body’s cells. DNA carries the unique code of identity for every individual. Each person, at conception, receives half of the genes from his mother (the ovum) and half from his father (the sperm). In simple terms it is a technique by which an individual can be identified at molecular level. The sequential arrangement of the individual nucleotides is responsible for giving uniqueness to any particular living form, be it humans, animals, plants, or microbes. These sequences are known to vary from individual to individual except in identical twins. These are used as genetic markers to identify the individual. Analysis or “typing” of small fragments of a person’s DNA will make it possible to know with certainty which genes came to him from which parent. These genes may be tracked within a family group, from grandparent to grandchild, uncle to niece, brother to sister and so on.128 The advent of DNA profiling or finger printing has brought about greater clarity and certainty in the identification processes in homicide, rape and similar other criminal cases and in determining paternity and maternity.129 In Pantangi Balarama Venkata Ganesh v State of AP, (2009) 14 SCC 607, para 41, the Supreme Court said: Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.

In District Attorney’s Office for the Third Judicial District et al. v William G Osborne, 129 SCR 2308, Chief Justice Roberts observed: DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.

Deborah Daniels, assistant US Attorney General for Justice Programs said: “DNA is to the 21st century what fingerprinting was to the 20th,” and “the widespread use of DNA evidence is the future of law enforcement in this country.”130 In People v Wesley, 140 Misc. 2d 306, 533 N.Y.S.2d 643, 656 (Albany County Ct. 1988), the Court

Page 8 of 16 10.5 FIELDS OF EXPERTISE observed: “[DNA typing is] the single greatest advance in the ‘search for truth’ ... since the advent of crossexamination.”131 In District Attorney’s Office v Osborne (2009), 557 U.S. 52 : 129 S. Ct. 2308 : 174 L. Ed. 2d 38, the Supreme Court of US observed: “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty”132 and will “lead to changes in the criminal justice system.”133 A host of private agencies advertise their skills and expertise in DNA business on the Internet to woo customers and they claim near 100% certainty and reliability for the tests. The tests are based on the sequencing of genes in a human being and the sequence is so unique for every person that, in terms of mathematical probability, it is claimed that it is almost impossible to be repeated in another person. Depending on the purpose, DNA profiling may require only a blood sample or buccal smear134 but even finger nails and hair also provide DNA material. It must, however, be stated that DNA testing is not free from controversy.135 In fact it has been said that the very use of the words “finger printing”136 in the context of DNA is misleading as it gives the impression that DNA profiling is as certain and verifiable as the science of finger printing. Jonathan Finn observes: The technique does not provide a unique identification, as does fingerprinting; it offers only probability identification. The misleading term ‘DNA fingerprinting’ is gradually replaced with ‘DNA profiling’, ‘DNA typing’ or ‘DNA analysis’.137

It is also said by the scientists and commentators that there are still many gaps to be filled regarding the methodology and protocols, choice of samples, possibility of contamination, lack of validation and authenticity of experts and institutions conducting the tests.138 It is said that human error, bad laboratory practices, or even outright fraud can still lead to skewed results.139 Thus, in the landmark decision of People v Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989), Vilma Ponce and her two-year old daughter were stabbed to death in Bronx. The police questioned Jose Castro, a handyman in the neighbourhood and noticed a blood stain on his watch. The samples taken from the two victims and from the blood stain on the watch were sent for DNA matching and a match was established between the two samples. At the trial, the prosecution sought the admission of DNA profile in evidence. The Court held that “DNA forensic identification tests” were acceptable for both inculpatory and exculpatory purposes but the Court held that in the instant case the forensic laboratory had not applied the approved procedures and, hence, the evidence of guilt could not be admitted. In R v Dean Charles Cleobury, [2012] EWCA Crim 17, the Court of Appeal in England deprecated the practice of some parties asking the Court to reconsider the DNA reports without any apparent reasons. The Court observed: It has become not uncommon to try to persuade this court to reconsider the DNA evidence given at trial by adducing a new report. There are occasions when this is justified where there has, for example, been an advance in DNA science; there may be other cases where it is in the interests of justice for the court to receive fresh evidence ... It may, of course, be the case that after the trial there is some new scientific discovery or other matter which, despite the exercise of due diligence by lawyers for the defence and the work of a competent expert, make it in the interests of justice for this court to consider fresh evidence. That is not the position in this appeal...140

Acts and Bills on DNA Testing In 1994, the US enacted its DNA Identification Act and scrapped the need for fingerprint identification. As of August 2007, the database contained over five million DNA profiles in its Convicted Offender Index.141 In the United Kingdom Police and Criminal Evidence (PACE) Act 1984, Criminal Justice and Public Order Act 1994, Criminal Evidence Act 1997, Criminal Justice and Police Act (CJPA) 2001, Criminal Justice Act (CJA) 2003 and Serious Organised Crime and Police Act 2005 contain provisions permitting the DNA profiling, building DNA data bases and retention of profiles and samples.142 The UK maintains the National DNA Database (NDNAD) of a size similar to that of USA. Countries like Canada143 and Malaysia144 have also enacted legislation regarding DNA profiling. In India a Draft DNA Profiling Bill of 2007 is still pending and DNA (Deoxyribonucleic acid) Data Bank Bill of 2010 was circulated for the comments of the States and other institutions. The “Introduction” to the 2007 Bill states: The Deoxyribose Nucleic Acid (DNA) analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead without any doubt.

Page 9 of 16 10.5 FIELDS OF EXPERTISE In India under CrPC, 1973 barring the cases where the blood is found let out as in the case of stabbing or where the semen is found on the body or the clothes or in the vaginal swabs in a rape case,145 blood or semen can be taken, if the accused is not consenting, by compulsion only. As was discussed under section 9, section 53 of CrPC, 1973 as amended in 2005, permits a police officer to order a medical practitioner to conduct an examination of the accused including: the examination of blood, blood stains, semen, swab in cases of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques, including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.146

The Supreme Court held that: After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme” and “DNA report deserves to be accepted unless ... it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.147

Section 53 permits the medical examiner “to use such force as is reasonably necessary for the purpose” of conducting the examination. But in Selvi v Karnataka, (2010) 7 SCC 263, the Supreme Court has not expressly held that section 53 was unconstitutional though the section sanctions the use of reasonable force for conducting the tests mentioned therein. It must be pointed out that, depending on the purpose for which it is being conducted, the DNA fingerprinting can be done in a non-invasive way as the “hair samples and finger nail clippings” that the Explanation to section 53 refers to will also provide enough DNA material. Case Law In the UK, in the famous case of Attorney General’s Reference (No 3 of 1999), (2001) 1 All ER 577, a woman was raped by a burglar in her own home. Vaginal swabs were taken and DNA profile of the semen of the rapist was obtained from the swabs. On an earlier occasion the same man was charged and arrested for an unrelated burglary and his saliva sample was taken and retained in the DNA data base under PACE Act of 1984. The earlier profile matched with the DNA profile of the semen from the vaginal swabs and the man was charged with burglary, assault and rape. The House of Lords, over-ruling the Court of Appeal, held that the DNA evidence could be legally used against the accused.148 The Courts in India have been calling for and relying on DNA tests whenever they found it necessary in criminal cases involving the identification of the accused or the deceased149 and also in civil cases involving paternity.150 However, the Courts have been reluctant to order or refer to DNA profiling in cases where there is absolutely no proof of non-access or where the putative father is on a fishing expedition.151 The Madras High Court refused to order second DNA test and ignored the first test merely on the basis of vague allegations by the party against whom the result of the test went.152 Polygraph (Lie-detector), Narco-Analysis and Brain-Mapping As the Supreme Court pointed out in Selvi v Karnataka, (2010) 7 SCC 263, polygraph tests are conducted by the police for the purpose of “improving the investigation efforts in criminal cases”153 and “are essentially confirmatory in nature”154 The Apex Court also said that “this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual.”155 As La Forest J of Supreme Court of Canada stated in R v Béland, [1987] 2 SCR 398, at p 434 with respect to the evidence of the results of a polygraph tendered by the accused, such evidence should not be admitted by reason of “human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science”. A polygraph is popularly referred to as a lie-detector and it is used to check the truthfulness of the statements made by a person undergoing the test. Polygraph is an instrument that measures the physiological changes produced by the nervous system in a person when he is answering questions about what he has done or seen. The assumption is that when a person is consciously lying regarding a matter about which he is interrogated by the police, certain nervous reactions are produced in him which are measured by the polygraph by reading a) blood

Page 10 of 16 10.5 FIELDS OF EXPERTISE pressure b) breath/respiration rate and c) skin conductivity by attaching rubber/plastic cuffs to the forearm, chest and fingers just as it is done in the case of blood pressure test or ECG test. Narco-analysis consists of injecting barbiturates like Sodium Pentothal or Sodium Amytol into a person’s body which has the effect of creating a sleep-like stupor that reduces his inhibitions and makes him more talkative. In that mental state he is thought to reveal things which he would not have otherwise done. These drugs are also sometimes called truth drugs or truth serums and they are known to produce serious side-effects when they are injected into a person. At one time it was thought “truth is in vine” (in vino vertitas est) and that a drunken man will speak the truth. But the Courts have refused to recognise the utility of liquor as a truth-finder! Brain-mapping is a method of investigation that American neurologist Dr Lawrence A Farwell is credited with. An expert in brain wave science, Dr Farwell called his technique “brain-wave fingerprinting” or “brain mapping test.” During the tests, forensic experts apply unique technologies to find out whether a guilty suspect’s brain recognises things from the crime scene which an innocent suspect would have no knowledge of. The subject is made to sit in front of a computer and an audiovisual display is made of pictures, sounds which are associated with a particular crime. The sensors attached to his body monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the picture or sound and the brain “recognises” them. While polygraph test is relatively non-invasive, narco-analysis is invasive. Dr P Chandra Sekharan, the highly regarded former Director of the Forensic Sciences Department of Tamil Nadu, has characterised the narco practice as an unscientific, third-degree method of investigation. At the 1977 US Senate hearings on its secret mind-control project, the CIA acknowledged that “no such magic brew as the popular notion of truth serum exists”. In 1989, the New Jersey Supreme Court (State v Pitts) prohibited the use of sodium a metal narco-analysis because the results of the interview were not considered scientifically reliable. It also said that even under the best of conditions, the barbiturates would elicit an output contaminated by deception, fantasy, garbled speech, and so on.156 Studies have shown that persons who make truthful confessions are those who are likely to confess had interrogators persisted in using regular methods, and that persons who lie can continue to tell a lie even under the influence of a so-called truth serum. In his classic work The Rape of the Mind, author and physician Joost Merloo says that the investigator can use techniques by which he can induce and implant his own thoughts and feelings in the suspect.157 In some earlier decisions, the Courts have held in favour of permitting narco tests. In 2008, in Santokben v Gujarat, 2008 Cr LJ 68, it was held by Gujarat High Court that narco tests did not violate Article 20 (3), that conducting the tests by the investigating agency was sanctioned by law and that the consent of the accused is not necessary as no investigation can ever take place as the accused would never give his consent. As pointed out earlier,158 in Selvi v Karnataka, (2010) 7 SCC 263 the Supreme Court has held not only that conducting tests like polygraph, narcoanalysis and brain-mapping were of doubtful utility but also that conducting the tests without the consent of the person was unconstitutional and violative of Articles 20 (3) and 21.159 10.5.4 Tracking Dog Evidence Though the High Courts in India were prepared to place cautious reliance on the evidence of the sniffer dogs which are specially trained for the purpose of tracking, the Supreme Court has expressed its reluctance to rely on canine skills. The High Courts have held: •

Where the dog has tracked the bag and the clothes of the accused and led the police to the house of the accused, the Bombay High Court opined that one factor that went in favour of the evidence of the dog is that the dog is not amenable to influences and that special breeds of dogs outclass even the sophisticated gadgetry in detection.160

•

Though it was contended that the evidence of a dog is inherently a weak and unreliable species of evidence and it cannot naturally be tested in cross examination, the Bombay High Court referred to the general global trend in other countries to place reliance on sniffer dogs’ evidence as they are carefully chosen on the basis of the pedigree and are imparted special training. However, the Court treated the dog’s evidence as clinching corroborative evidence only.161

•

It was held that, though at one time it was thought that it would be unwise to make human life and liberty be made dependent on canine skills which can go wrong and which cannot be tested in cross examination, of late the English, Scottish and Canadian Courts162 have started treating the dog’s evidence as admissible. It was also opined that the Court must also look into the depositions of the dog’s handlers as to

Page 11 of 16 10.5 FIELDS OF EXPERTISE how the dog has led them to identify the accused and other objects. However the Court was unwilling to rely only on the dog’s evidence in the absence of other independent evidence.163 The Supreme Court of India has held: •

The evidence of sniffer dogs cannot be equated with the opinions of expert witnesses.164

•

The dog’s evidence suffers from three infirmities: ∘

The dog can go wrong by misjudging the smell or mistaking the track. Its handler can also go wrong in misreading the dog’s behaviour.

∘

Since the dog cannot go into the witness box and testify under oath, it is its human companion who has to go into the witness box and report on dog’s evidence. This is clearly hearsay.

∘

It is unsafe to make the life and liberty of a person depend upon canine inferences.165

•

“... from a scientific point of view there is little knowledge and much uncertainty as to the precise faculties which enable the police dogs to track and identify criminals ... the life and liberty of human beings should not be made to depend on animal sensibilities.”166

•

“Investigating agencies can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.”167 In other words, the dog’s skills and instincts can be used for the purpose of investigation by the police and for gathering other evidence on the basis of the clues offered by dogs but the Courts will not depend upon the dog’s evidence.

•

In the light of the above, conviction of a person based on sniffer dog’s evidence for the murder of his wife and the adopted son was overturned by the Supreme Court.168

10.5.5 Other Fields of Expertise The Courts have called for and relied upon the expert opinion in the fields of ballistics, typewriting, computers, whenever the Courts were seized of the matters relating to those fields of expertise. 10.5.5.1 Ballistics169 •

A police officer who is trained and well experienced in the handling of the guns could be relied regarding his opinion that the gun was in a working condition when it was used by the accused.170

•

Though a comparison microscope and the photographs of the cartridges are the best method of proving that a particular gun was used in committing a crime, the opinion of the expert who examined the bullets under the microscope can be relied upon though the photographs were not produced.171

•

A rifled firearm barrel leaves its own striations or a sort of tell-tale marks on the fired bullets, and firing pin markings on cartridge case.172 These are the “finger-prints” that guns leave on the bullets recovered from the human bodies that lead to the identification of the gun and through that the gunman.173

•

Whether the gun has been fired from point-blank or very close range from the body can be gauged by the gunpowder marks that leave a “tattooing” effect around the entry wound.174 It has been held that though the gun has been fired from point-blank range, tattoo marks may not be present on the skin for various reasons like wearing of clothes at the point of entry of the bullet.175 Where the expert’s opinion is not clear as to the distance and the marks around the wound could have been caused by blood clotting, the treatises of experts on forensic science and the evidence of the eye witnesses that the gun was fired from a distance can be relied.176

•

The opinion of the ballistic expert as to the distance from which the gun was fired was held to be preferable to that of the medical expert.177

In Premsagar Manocha v State (NCT of Delhi), (2016), the ballistic expert in his report opined that two bullets were fired from a pistol but stated that he would not be able to say whether they were fired from the same firearm unless the gun was also given to him for testing. He repeated the same opinion during his testimony but the judge pressed him to give his opinion based only on the striations on the two cartridges. The expert opined that they appeared to have been fired from different firearms. When the High Court initiated suo moto proceedings seeking to prosecute him for perjury for his “somersault” in rendering his opinion, the Supreme Court held that he gave the second opinion in the trial Court only on being urged by the Court and he did not do so on his own. Hence, the Apex Court

Page 12 of 16 10.5 FIELDS OF EXPERTISE quashed the perjury proceedings against him. The Court also referred to the decision in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The “Ikarian Reefer”), [1995] 1 Lloyd’s Rep 455, where the Queen’s Bench (Commercial Division) even went to the extent of holding that the expert has the freedom in such a situation to change his views. It was stated that: if an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

Suresh Singhal v State (Delhi Administration), 2017 (2) Supreme 110 where two .32 revolvers were used by different accused persons and the expert was no sure as to the revolver from which the fatal bullets were fired because of lack of definite identifiable marks on the bullets, the Court said that the benefit of doubt must be given to the accused. 10.5.5.2 Typewriting •

Though the Supreme Court initially held that study of typewriting did not fall within section 45 of the Evidence Act, 1872 as it was not mentioned in the field covered by the section,178 the Court rightly overruled itself and held that the subject would fall within the word “science” in section 45 and the opinion of the expert that a document was typed on a particular typewriter was relevant and reliable.179

•

The Law Commission of India has recommended the revision of section 45 so as to expressly include “typewriting” as one of the areas on which expert opinion could be treated as relevant.180 The Commission, accepting the suggestion of CBI, opined that “the evidence of an expert regarding the typed documents is, therefore, of importance and needs to be considered at par with the evidence of an expert on handwritten documents.”181

77 Aziz Bano v Muhamad Ibrahim Hussain, (1923) 47 All 8235. 78 Section 3 of The Indian Law Reports Act of 1875 provides: “Authority given only to authorized reports–. No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case decided by any High Court for State, other than a report published under the authority of any State Government.” 79 However, the Canadian Supreme Court found that the lower Court merely referred to expert’s opinion for the ancillary purpose of understanding the functioning of the departments and not for interpreting the Act. Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25, paras 31–33. 80 Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25; Gangadhara Sah v Swaminatha Mudali, AIR 1926 Mad. 218 : 22 LW 679, paras 3 and 4: “The law of that State, however, it was recognized had as being the law of a Foreign State to be proved as a matter of fact by the expert witness” and “the question ‘What a foreign law is on a particular point’ is a question of fact and has to be proved by the parties setting it up.” Hari Shanker Jain v Sonia Gandhi, (2001) 8 SCC 233: “a point of foreign law is a matter of fact” and “under Section 57 (1) of Indian Evidence Act, 1872, the Court shall take judicial notice of, inter alia, all laws in force in the territory of India. Foreign laws are not included therein. Sections 45 and 84 of Evidence Act permit proof being tendered and opinion of experts being adduced in evidence in proof of a point of foreign law.” 81 Law Commission of India, 69th Report, p 344. 82 Law Commission of India, 185th Report, Pt IIIA, p 290. 83 Rule 44.1. 84 Dicey and Morris observe: “In any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge by expert evidence or sometimes certain other means. Dicey & Morris, The Conflict of Laws, 11th Edn, rule 18, p 217. 85 Dicey & Morris, The Conflict of Laws, 11th Edn, rule 18, p 71. 86 Field, Evidence, 9th Edn, p 2442. 87 This was a reference to five-Judge Bench on the question whether ‘type-writing’ came within the scope of section 45 and the Bench, overruling an earlier decision, held that it did.

Page 13 of 16 10.5 FIELDS OF EXPERTISE 88 Clifford v Richardson, 18 Vt 620, at p 627. 89 R Saraswathy v Bhavathy Ammal, AIR 1989 Ker. 228. 90 Sheo Tahal v Arjun, 56 IC 879. 91 AIR 2017 SC 2114 : 2017 (7) SCJ 185. 92 Pratap Misra v Orissa, AIR 1977 SC 1307. 93 Dharam Deo Yadav v State of UP, (2014) 2 SCC (Cri) 626. The judgment contains good discussion on DNA and other tests. 94 R v Turnbull, [1977] QB 224 (CA), p 228. 95 See for instance, Hadu v State, AIR 1951 Ori. 53, where the accused used Belladona containing Atropine. 96 Jaising P Modi, Medical Jurisprudence and Toxicolgy, 23rd Edn by K Mathiharan and Amrit K Patnaik, (2008); and Jhala and Raju’s Medical Jurisprudence, 6th Edn, 1997, p 281 give a table of different kinds of food items and the approximate time taken for digesting them. Jaisingh P Modi’s work has been relied upon in Gurdeo Singh v Rajasthan, 1992 (1) WLC 267 : 1991 (1) WLN n464, para 19. 97 Haryana v Bhagirath &, (1999) 5 SCC 96. See also Rais @ Toun v State of MP, Criminal Appeal Nos.1363-1365 of 2010; Tomaso Bruno v State of UP, (2015) 3 SCC (Cri) 54 : (2015) 7 SCC 17. 98 Md Zahid v State of TN, AIR 1999 SC 2416. Vijay Pal v State (GNCT) of Delhi, (2015) 2 SCC (Cri) 733 : (2015) 4 SCC 749. 99 Mafabhai Nagarbhai Rawal v Gujarat, AIR 1992 SC 2186. 100 Tanviben Pankaj Kumar Divetia v Gujarat, AIR 1997 SC 2193. 101 Dharma v Nirmal Singh Bitta, AIR 1996 SC 1136. 102 Darshan Singh v Haryana, AIR 1997 SC 364. 103 Rafiq Ahmed Sayeed Ahmed v Maharashtra, 2010 Cr LJ (NOC) 224 (Bom). See also Radhabhai Lahanu Parekar v Maharashtra, 2010 Cr LJ (NOC) 115 (Bom). 104 Darga Ram @ Gunga v Rajasthan, AIR 2015 SC 1016 : 2015 (1) SCJ 423. 105 Parhlad v Haryana, 2015 (8) Scale 436; Arjun Singh v State of HP, (2009) 4 SCC 18; Vishnu alias Undrya v Maharashtra, (2006) 1 SCC 283; Raj Nath v Assam, (2001) 5 SCC 714; State of MP v Anoop Singh, 2015 (7) Scale 445. 106 Jamnalal Pande v MP, 2010 Cr LJ 538. 107 Kapildeo Mandal v Bihar, 2008 Cr LJ 730 (SC). In Kailash v State of MP, AIR 1995 MP 1,the Supreme Court observed: “When, however, oral evidence is found to be inconsistent with the medical evidence, the question of relying upon one or the other would depend upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefor.” Darbara Singh v Punjab, (2012) 10 SCC 476, para 5: “So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy.... It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.” Also, Mahavir Singh v State of MP, AIR 2016 SC 5231 : 2016 (10 ) Scale 591. 108 Sagar v Haryana, 2010 Cr LJ (NOC) 160 (P&H). 109 Himanshu Mohan Rai v State of UP, AIR 2017 SC 1425 : 2017 Cr LJ 2250 : 2017 (2) Mad LJ (Crl) 220; Gangabhavani v Rayapati Venkat Reddy, (2014) 1 ACR 147. 110 Muralilal v State of MP, AIR 1980 SC 531; Jaspal Singh v Punjab, AIR 1079 SC 1708. 111 The Report is the outcome of a public enquiry held into the identification and verification of fingerprints associated with the case of HM Advocate v McKie, 1999. The terms of reference included, inter alia, “to report findings of fact and make recommendations as to what measures might now be introduced, beyond those that have already been introduced since 1999, to ensure that any shortcomings are avoided in the future.” The enquiry was conducted by Sir Anthony Campbell and the Report runs into 788 pages. The Report made many key findings and recommendations and is available at www.thefingerprintinquiryscotland.org.uk (last accessed in April 2019). 112 The Report is the outcome of a public enquiry held into the identification and verification of fingerprints associated with the case of HM Advocate v McKie, 1999, p 741. 113 The Report is the outcome of a public enquiry held into the identification and verification of fingerprints associated with the case of HM Advocate v McKie, 1999, p 600, para 34.23.

Page 14 of 16 10.5 FIELDS OF EXPERTISE 114 The Report is the outcome of a public enquiry held into the identification and verification of fingerprints associated with the case of HM Advocate v McKie, 1999, p 695, para 38.77. 115 Murarilal v State of MP, AIR 1980 SC 531; Krishna Murthy v Kamalamma, AIR 1994 AP 102; Vandavasi Karthikeya alias Krishnamurthy v S Kamalamma, AIR 1994 AP 102 at p 114. 116 Murari Lal v State of MP, AIR 1980 SC 531. 117 Alamgir v State (NCT Delhi), AIR 2003 SC 282. 118 O Bhratna v Sudha Karan, (1996) 2 SCC 704. In Tarak Nath Sha v Bhutoria Bros Pvt Ltd, AIR 2002 SC 206, the Court held that the Court is not a handwriting expert and the Court does it only through its visual experience. 119 State (Delhi Administration) v Pali Ram, AIR 1979 SC 14. 120 Suresh Kumar v Mewa Ram, AIR 1991 P&H. 254. 121 State (Delhi Administration) v Pali Ram, AIR 1979 SC 14; Lellapalli Sakuntala v Vedantham Seethamahalakshmi, 2008 (6) All LT 113; Shanta Trivedi v Life Insurance Corp of India, AIR 1988 Del 39. 122 Thiruvengadam Pillai v Navaneethammal, (2008) 4 SCC 530; Alauddin v Sishir Kumar Dutta, AIR 1989 Gau 42. 123 Murarilal v State of MP, (1989) 1 SCC 704. 124 Lalit Popli v Canara Bank, (2003) 3 SCC 583. 125 Robin M White and Jeremy J D Greenwood, “DNA Fingerprinting and the Law” in The Modern Law Review, vol 51, No 2 (March, 1988), pp 145–155. 126 See Alec Jeffrys, V Wilson and SL Thein, “Hypervariable ‘Minisatellite’ Regions in Human DNA”, (1985) Nature 314: pp 67–73; Jeffrys et al., “Individual-specific ‘fingerprints’ of human DNA”, (1985) Nature 316: pp 76–79; Jeffrys et al, “DNA Fingerprints and Segregation of Multiple Markers in Human Pedigrees”, 30 American Journal Of Human Genetics, 1986, p 11. 127 Robin M White and Jeremy J D Greenwood, “DNA Fingerprinting and the Law” in The Modern Law Review, vol 51, No 2 (March, 1988), pp 145–155. 128 Monoamine oxidase A gene (MAOA) has earned the nickname “warrior gene” because it has been linked to aggression in observational and survey-based studies. However, no experiments have tested whether the “warrior gene” actually drives behavioral manifestations of these tendencies, especially in controlled experimental settings. Rose McDermott et al., “The ‘Warrior Gene’ (MAOA) Predicts Behavioral Aggression Following Provocation”, (12 February 2010). Proceedings of the National Academics of Science, 2009. Available at SSRN: http://ssrn.com/abstract=1552099 (last accessed in April 2019). 129 Charles L Williams, “DNA Fingerprinting: A Revolutionary Technique in Forensic Science and its Probable Effects on Criminal Evidenciary Law” in Drake Law Review, vol 37, 1097–88, No 1, p 1; Fontg, Ricardo, DNA Fingerprinting: A Guide to Admissibility and Use, 57 Mo. L. Rev. 501 (1992); Edward Connors, Thomas Lundregan, Neal Miller and Tom McEwe, “Convicted by Jury and Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial”, in US Department of Justice, 1996; Pandit, MD, Lalji Singh, “DNA Testing, Evidence Act and Expert Witness”, in Indian Police Journal, Oct–Dec, 2000, p 99; Guidelines for DNA: The National Accreditation Board for Testing and Calibration Laboratories has given two documents regarding DNA fingerprinting: i. Standards, Quality Assurance and Guidelines for DNA Fingerprinting and ii. Specific Guidelines for DNA Fingerprinting Laboratories in the year 1999; Yashpal Singh, Mohd Hasan Zaidi, DNA Tests in Criminal Investigation, Trial and Paternity Disputes, (Allahabad, 2006), p 36. Courts are taking DNA evidence as expert opinion as in the case of fingerprints. Lalji Singh, My Travails in the Witness Box (New Delhi, 2012), p 7; Lily Srivastava, Law and Medicine, (New Delhi, 2010), pp 131– 132. 130 Ms Deborah Daniels said this in an interview with USA Today on 15 April 2003. 131 See also Thompson & Ford, “DNA Typing: Acceptance and Weight of the New Genetic Identification Tests”, 75 Virginia Law Review (1989), 45. 132 In this case the Supreme Court denied that there was a Constitutional right to post-conviction DNA testing by the accused. See Brandon L Garrett, “DNA and Due Process” in Fordham Law Review (2010), vol 78, pp 2919–2960. 133 District Attorney’s Office v Osborne, 129 S. Ct. 2308, p 2323. 134 The term “Buccal Swab” derives from the Latin “Bucca” meaning cheek. A Buccal swab, therefore, refers to a DNA collection process involving cells taken from the cheek (from the inside mouth area). 135 Michael Lynch, Simon A Cole, Ruth McNally, Truth machine: the Contentious History of DNA Fingerprinting, 2008 University of Chicago Press, 2008. 136 “DNA fingerprinting,” “DNA typing,” “DNA profiling,” “DNA mini-satellite analysis,” “DNA forensic identification tests,” “DNA identification tests,” “DNA RFLP analysis” and “DNA tests” are all terms that have been used in commentaries and cases. Reliance on names that are used in legal literature should be limited because the same name is sometimes

Page 15 of 16 10.5 FIELDS OF EXPERTISE used to describe different tests and different names are used to describe the same test. Moreover, even tests performed by the same company may be different at different times. 137 Jonathan Finn, Capturing the Criminal Image: From Mug Shot to Surveillance Society, NED, University of Minnesota Press, 2009, p 64. See also Andrew Mason, A Brief History of Forensic Science’s Blood and DNA Test Methods, http://forensicscience.suite101.com/article.cfm/a-brief-history-of-forensic-sciences-blood-and-dna-testmethods#ixzz0sKG6sKoI. (Last accessed in April 2019). 138 Eric S Lander opines that by following Frye test of general acceptability “the courts have been too hasty ... even though DNA fingerprinting clearly offers tremendous potential as a forensic tool, the rush to court has obscured two critical points: first, DNA is far more technically demanding than DNA diagnostics; and second, the scientific community has not yet agreed on standards that ensure the reliability of evidence.” Eric S Lander, “DNA Fingerprinting on Trial” in Nature, vol 339, 15 June 1989, p 501. 139 See the interesting article by Janet C Hoeffel, “The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant”, Stanford Law Review, vol 42, No 2 (January, 1990), pp 465–538. 140 R v Dean Charles Cleobury, [2012] EWCA Crim 17, paras 15 & 17. 141 In USA some States like Connecticut and Pennsylvania enacted legislation or introduced Bills on DNA profiling. 142 In R (on the application of GC) (FC) v The Commissioner of Police of the Metropolis and R (on the application of C) (FC) v The Commissioner of Police of the Metropolis, [2011] UKSC 21, Section 64 (1A) of PACE Act as supplemented by guidelines issued by the Association of Chief Police Officers (“ACPO”) provided that data should be destroyed only in exceptional cases. The Supreme Court, by a majority, overruled R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 and held the present ACPO guidelines are unlawful because they are incompatible with right to privacy under Article 8 of European Convention on Human Rights. 143 DNA Identification Act of 1998. 144 Deoxyribonucleic Acid (DNA) Identification Act of 2008. 145 In a rape and unnatural offence case, rectal swab was relied on. Mukesh v State for NCT of Delhi, 2017 (3) Scale 356. 146 Explanation to section 53 added by amendment in 2005. 147 Mukesh v State for NCT of Delhi, paras 213 and 224 2017 (3) Scale 356. 148 Under the PACE Act, the earlier profile should have been destroyed after a reasonable period but the House of Lords held that the failure to do so did not vitiate the evidence which was otherwise relevant. 149 Sanjay Singh v Delhi Administration, 2007 Cr LJ 964; Santosh Kumar Singh v State Through CBI, (2010) 9 SCC 747; Inspector of Police, TN v John David, (2011) 5 SCC 509; Krishan Kumar Malik v Haryana, (2011) 7 SCC 130; Surendra Koli v State of UP, (2011) 4 SCC 80; Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v Maharashtra, (2012) 9 SCC 1; Sandeep v State of UP, (2012) 6 SCC 107; Rajkumar v State of MP, (2014) 5 SCC 353; Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik, (2014) 2 SCC 576. 150 Raghunath v Sharadbhai, AIR 1986 Bom 386; Sadashiv Mallikarjun Khedarkar v Nandini Sadasiv Khedarker, 1995 Cr LJ 4090 (Bom), at p 4093; Sanjeera v Sahm, 2000 Cr LJ 1208 (Kerala); S Thangavelu v S Kannammal, AIR 2005 Mad. 106 (107). 151 Sanjitha v Kerala, 2003 (1) Crimes 460 (Kerala). 152 Veeralakshmi v Superintendent of Police, Madurai District, Madurai, [2015] 2 Mad LJ (CRL) 39. 153 Selvi v Karnataka, (2010) 7 SCC 263, p 1. 154 Selvi v Karnataka, (2010) 7 SCC 263, p 5. 155 Selvi v Karnataka, (2010) 7 SCC 263. p 85. 156 It is said that Abdul Karim Telgi, the kingpin of stamp-paper scam in India, was awake during the narco-analysis and spoke only what he wanted to tell the police. 157 Meerloo mentions that during the Korean War, an officer of the US Marine Corps, Colonel Frank H Schwable, was taken prisoner by the Chinese Communists. After months of intense psychological pressure and physical degradation, he signed a well-documented “confession” that the US was carrying on bacteriological warfare against the enemy. After his repatriation, Colonel Schwable issued a sworn statement repudiating his confession and said: “The words were mine but the thoughts were theirs.” Joost A M Meerloo, The Rape of Mind: The Psychology of Thought Control, Menticide, and Brainwashing (Netherlands, 1956), p 7. The word “brain-washing” is derived from the Chinese “His Nao”. Meerloo coined the word “menticide” or killing of mind. Joost A M Meerloo, The Rape of Mind: The Psychology of Thought Control, Menticide, and Brainwashing (Netherlands, 1956), p 14. See also Sriram Lakshman, “Narcoanalysis and some hard facts” in Frontline, vol 24, Issue 9, 05–18 May 2007. 158 See the discussion under section 9.

Page 16 of 16 10.5 FIELDS OF EXPERTISE 159 See the discussion under section 9. 160 Babu Magbul Shaikh v Maharashtra, 1993 Cr LJ 2808 (Bombay High Court). 161 Pandian Kanappan Nadar v Maharashtra, 1993 Cr LJ 3883; also Shri Ashok Gavade v Goa, 1995 Cr LJ 943. 162 In the Canadian Supreme Court decision in R v Chehil, 2013 SCC 49, it was held that “sniff search” by a trained narcotics dog is authorised by common law and does not require prior judicial authorisation (R v Chehil, 2013 SCC 49, para 19) and “in light of the consequences of a false indication, the reliability of a particular dog is also relevant to determining whether a particular sniff search was conducted reasonably in the circumstances.” (para 48). Also, “evidence of the searching dog’s performance during past deployments is also relevant.” (para 50). In R v Kang-Brown, 2008 SCC 18 : [2008] 1 SCR 456, the high accuracy of sniffer dogs who were properly trained and deployed was key to endorsing a reasonable suspicion standard for sniff searches. 163 A Bhadran v Kerala, 1995 Cr LJ 676. 164 Abdul Rajak Mutaza Dafadar v Maharashtra, AIR 1970 SC 283. 165 Abdul Rajak Mutaza Dafadar v Maharashtra, AIR 1970 SC 283. 166 Gadde Lakshmi Mangaraju v AP, (2001) 6 SCC 205, at p 206, (a) to (c). 167 Gadde Lakshmi Mangaraju v AP, (2001) 6 SCC 205, at p 206, (a) to (c). 168 Dinesh Borthakur v Assam, (2008) 5 SCC 697 (Per SB Sinha J). See also Surinder Pal Jain v Delhi Administration, AIR 1993 SC 1723; and State of UP v Ram Balak, AIR 2008 SC (Supp) 1128; Lalit Kumar Yadav v State of UP, 2014 Cr LJ 2712 (SC). 169 The word “Ballistics” is derived from the Latin word “ballista” and refers to a body in motion. Ballistics is that part of forensic science which deals with the study of motion of projectiles like bullets. Rashika Gupta, “Ballistics: the probative value of evidence”, 1992 Cr LJ 121. Firearms identification is often confused with ballistics, which, properly speaking, deals with the motions and velocity that firearms impart to projectiles (i.e., bullets and shot). By contrast, it is the forensic science discipline of toolmark identification that aims to identify particular tools, such as a gun barrel or a bolt cutter, as the unique source of marks on crime scene evidence, such as a bullet. Adina Schwartz, A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, p 11, 6 Colum. Sci. & Tech. L. Rev. 1 (28 March 2005), available at: http://www.stlr.org/cite.cgi?volume=6&arti-cle=2 (last accessed in April 2019). 170 Jarnail Singh v Punjab, AIR 1999 SC 321. 171 Ramanathan v State of TN, AIR 1978 SC 1204. 172 For an interesting discussion on ballistics, firearms and cartridges, see Ghurey Lal v UP, (2008) 10 SCC 450, paras 25–27. 173 Adina Schwartz, footnote 137 above, p 12. 174 Modi’s Textbook of Medical Jurisprudence and Toxicology, 25th Edn (New Delhi, 2016) p 63: “When there is a close shot that is in the range of powder blast and the flame is within one to three inches, for small arms there is a collar of soot and grease (if present on the bullet) around the circular wound of entry. Singed hairs may be seen if the body is not covered with clothing. Partially burnt and unburnt grains of powder are blasted into the skin causing a tattooing which cannot be easily wiped off ... The wound of exit is often larger than the wound of entrance, and its edges are irregular and averted, but free from scorching and tattooing.” Suresh Singhal v State (Delhi Administration), 2017 (2) Scale 139 : (2017) 2 SCC 737. In Rajasthan v Daud Khan, (2016) 2 SCC 607 : 2016 (2) SCJ 707 the Supreme Court held: “15. That apart, merely because there was no blackening of the skin does not lead to the inevitable conclusion that the shot was fired from a distance.” 175 Rajasthan v Daud Khan, (2016) 1 SCC (Cri) 793 : (2016) 2 SCC 607. 176 Mohan Singh v State of MP, 1999, 1999 Cr LJ 1334. 177 Raza Pasha v State of MP, AIR 1973 SC 575. 178 Hanumant v State of MP, AIR 1952 SC 343. 179 State v SJ Chaudhary, AIR 1996 SC 1491. 180 Law Commission of India, 69th Report, p 341. 181 Law Commission of India, 69th Report, p 332.

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10.6 OPINION EVIDENCE SECTIONS 47–51 Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed V Nageswara Rao

Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > X OPINION EVIDENCE > Sections 45–51

X OPINION EVIDENCE Sections 45–51

10.6 OPINION EVIDENCE SECTIONS 47–51 While sections 45 and 46 deal with the relevancy of opinions of experts only, sections 47 to 51 deal with the opinions of third parties who do not fall within the definition of “expert” under section 45 but who have intimate knowledge of matters mentioned in those sections. 10.6.1 Opinions as to Handwriting 47. Opinion as to hand-writing, when relevant.—When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Illustration The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C, is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.

10.6.1.1 Modes of Proof of Handwriting Proof of handwriting becomes relevant in criminal cases involving, for instance, forgery, and in civil cases concerning the authenticity of a will. The term “handwriting” obviously includes signature also though section 47 refers to both “written and signed”. “Modes of proof of handwriting” is discussed under section 67. 10.6.2 Opinion as to Digital Signature 47A. Opinion as to digital signature where relevant.—When the Court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

Section 3 of the Evidence Act, 1872 as amended, provides that, inter alia, that expression “Certifying Authority” shall have the meaning assigned to it in the Information Technology Act of 2000. The Information Technology Act defines that expression as meaning “a person who has been granted a license to issue a Digital Signature Certificate under section 24” of that Act. Under section 21 (2) of the Information Technology Act, no license shall be

Page 2 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 issued unless the applicant “fulfills such requirements with respect to qualification, expertise” as may be prescribed by the Central Government. Thus, as mentioned in the discussion under section 45, in the case of digital signature, section 47A treats the opinion of the Certifying Authority as relevant for the reasons of its expertise and authenticity. 10.6.3 Opinions as to Right or Custom Section 48 provides: When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant. Explanation.—The expression “general custom or right” includes customs or rights common to any considerable class of persons. Illustration The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

The nature of the legal notion of a right and custom has been discussed under section 13. A right or custom can be proved under the Evidence Act, 1872 by the following ways: 1. Under section 13 (a), where the question is as to the existence of a right or custom, any transaction by which it is created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence can be proved as a relevant fact. Under section 13 (b), any particular instances in which the right or custom was claimed, recognised, or in which its exercise was disputed, asserted or denied or departed from are also relevant facts. 2. Under section 32 (4), a statement made by a person who is dead, not found as to the existence of any “public right or custom” is relevant if the statement was made by a person who “would have been likely to be aware” and the statement was made ante litem motem or before the controversy has arisen as to the existence of such right or custom. 3. Under section 32 (7), a statement made by a person who is dead, not found is contained in any deed, will or document and relates to any transaction mentioned in section 13 (a) referred to above, is declared as relevant for proof of such right or custom. 4. Under section 48, where the Court has to form an opinion as to the existence of any general right or custom, the opinions of persons “who would be likely to know of its existence” are relevant. Under the Explanation, “general custom or right” is defined as to include “customs or rights common to any considerable class of persons”. The terms “class of persons” can include people belonging to a place, caste, community, profession. The illustration to the section refers to the general right to draw water of a well by the people of a village. 10.6.3.1 Proof of Right or Custom under section 32 (4) and section 48 In certain respects, section 32 (4) and section 48 overlap each other. Section 32 (4) deals with proof of “public right or custom” and section 48 deals with the proof of “general right or custom”. It has been rightly said that “the word ‘general’ is an equivalent of the term ‘public’”182 and they are “synonymous”.183 Again, though section 32 (4) provides that the statement must be that of a person who “would have been likely to be aware” of the existence of the right or custom and section 48 refers to opinion of persons “who would be likely to know of its existence” but, in effect, the difference is only in terminology and both lay down similar standards of close familiarity with the existence of the right or custom. The points of departure between section 32 (4) and section 48 are: •

Section 32 (4) refers to “statements” of persons who are dead. On the other hand, section 48 refers to “opinions” of “persons” and, obviously, the persons could be living or dead. But as the opinions of the persons who are dead are also “statements” within the meaning of section 32, such statements must be

Page 3 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 deemed to fall outside the purview of section 48. In the result, the scope of section 48 is confined only to persons who are alive. •

Section 32 (4) requires that the statements must have been made “before any controversy had arisen” and section 48 does not contain any such restriction.

•

But, if the opinions as to general right or custom are of persons who are dead and are made after the controversy has arisen they will not be relevant even under section 48 just as they are inadmissible under section 32 (4).184 Otherwise, section 32 (4) will be rendered nugatory.

10.6.4 Opinion as to usages, tenets Section 49 provides: When the Court has to form an opinion as to the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.

The above section deals with the opinions of persons “having special means of knowledge” on matters relating to: •

“The usages and tenets of any body of men or family”: Jurisprudentially, a distinction is made between “usage” and “custom” and it is said that usage or habit hardens into custom after a long and consistent practice. Though the Evidence Act, 1872 used the term “custom” in the preceding section itself, the use of the term “usage” in section 48 cannot be taken as a reference to a mere habit or practice devoid of legal obligation and should be taken as synonymous with “custom” in the present context. The usages can be family customs like primogeniture or local or regional customs like preemption and marriage within prohibited degrees or mercantile customs like law merchant.185

•

“The constitution and government of any religious or charitable foundation”: The use of the terms “constitution and government” of a religious or charitable “foundation” should be taken to refer, not to the day-to-day religious rites and rituals or practices to be followed in a temple, mosque or a church, but to the purposes and objectives of the foundation. This particularly applies to denominational institutions in Christianity and Hinduism.186 In Shore v Wilson, 9 Cl&F 355, where the founder of a charity expressed her wish that the charity should serve “godly preachers of Christ’s Holy Gospel”, evidence was admitted to show that a religious sect of Protestant Trinitarian Dissenters existed which bore the name of Christ’s Holy Gospel and that she herself was a member of that sect. In Tilkayat Govindlalji v State, AIR 1962 Raj. 196, (Nathdwara Temple Case), the Court had to go into the historical background of the temple “of the denomination known as ‘Pushti Margiya Vaishnav Sampradaya’, more popularly known as ‘Vallabh Sampradaya’”.187

•

“The meaning of words or terms used in particular districts or by particular classes of people”: Section 99 of the Evidence Act, 1872 provides that “evidence may be given to show the meaning of illegible and not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions ...” The meaning of the same word in the same language may vary in different districts or regions and more so in India with many dialects. The meaning of the words may vary between the common parlance and technical usage. The word “bow” may mean one thing to an archer and something else to a boatman or a dress-maker.

10.6.5 Opinions as to Relationship 50. Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations

Page 4 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 (a)

The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b)

The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

10.6.5.1 Ingredients Section 50 provides that: 1. When the Court has to form an opinion as to the relationship of one person to another 2. the opinion, expressed by conduct, as to the existence of such relationship 3. of any person who, as a member of the family or otherwise, has special means of knowledge on the subject 4. is a relevant fact. 10.6.5.2 Long Cohabitation and Live-in Relationship The two illustrations to section 50 show that the acknowledgement by the members of the family and friends as to the relationship of marriage and legitimacy is admissible in evidence if the acceptance is not by mere expressions of the members’ opinion but is supported by their conduct and treatment as husband and wife and as legitimate son, respectively. Thus, “opinion” means something more than mere gossip or hearsay.188 It may be noted that illustration (b) speaks of “legitimacy” of the son and not mere paternity and, hence, reputation is extended to marriage between the parents and birth during marriage in terms of section 112.189 If, in such a case, the factum of marriage is disproved and it is shown to be a mere live-in relationship, the opinion evidence of legitimacy of the son based on his being treated as such by close relatives will be irrelevant. Thus, relevancy of opinion evidence as to relationship can arise under section 50 only when there is no other credible evidence. Again, while “live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral”,190 if the man or the woman is already married and the marriage is subsisting, such a livein relationship will be illegal and unlawful as it would be adulterous191 which would constitute a ground for criminal prosecution of the man by her husband, or for seeking divorce by the husband of the woman or by the wife of the man, as the case may be. If the question is whether A and B are husband and wife, the fact that their relatives and friends not only “opined” that they were married but also that they expressed the opinion by their conduct by “receiving” and “treating” them as such is relevant under section 50. While section 32 (5) and (6) refer to “any relationship by blood, marriage or adoption between persons”, section 50 does not clarify or specify the nature of the relationship and merely refers to “the relationship of one person to another” which could conceivably comprehend the whole gamut of inter-personal relationships like friendship, enmity, ill-will. For instance, a person accused of murder may like to adduce under section 50 evidence of reputation that he had the friendliest of relations with the deceased. Perhaps, the proviso and the illustrations to section 50 are indicative of a more restrictive meaning of the term “relationship”. Apart from relationships by blood, marriage and adoption,192 non-marital relationship between a man and woman is covered by the section.193 Though there is no express provision of law in this regard, the Supreme Court has held that long cohabitation as husband and wife gives rise to a presumption of marriage so as to protect the legitimacy of the children born to them194 or to grant maintenance under section 125 of CrPC, 1973195 or remedies under the Protection of Women from Domestic Violence Act, 2005196 (DA Act) or “palimony”.197 It should be borne in mind that, according to the Supreme Court, it is not mere long cohabitation but long cohabitation as husband and wife that gives rise to presumption of marriage in the absence of proof of marriage. This is a presumption based on (a) the fact that the man and the woman held themselves out as husband and wife and (b) the general acceptance and recognition as such by their relatives and friends. It is submitted that an intention to enter into marital relationship may have to be implied in cases where the man and the woman held themselves out as husband and wife for a long time. However, in cases where the factum of marriage is proved, the Court would draw the presumption that all the ceremonies have been gone through.198 If it is proved that the alleged marriage did not take place at all and it was only a live-in relationship,199 neither the marriage nor the legitimacy can be presumed.200 In Nitin Agrawal v Rekha, (2017), the respondent continued to live with her husband even after divorce for the sake of their children and developed sexual relations with the appellant after a secret sham marriage. However, she never cohabited with the appellant though they were having frequent sex elsewhere. When the appellant’s parents did not approve of his relations with the respondent and got him engaged to another girl, the respondent started extorting money from him and finally approached the Family Court for restitution of conjugal rights under section 9 of the Hindu Marriage Act,

Page 5 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 1955. When the Court granted the relief prayed for, the appellant approached the High Court in appeal. The High Court, setting aside the decree of the lower Court, held: The learned Judge of the Family Court has wrongly shifted the burden upon the appellant. In fact, it was for the respondent to prove that the marriage was performed as per the customs under Hindu law. She has failed to prove her cohabitation with the appellant after the alleged marriage, as husband and wife. There is absolutely no iota of evidence in that regard, of the neighbours, relatives or friends of the respondent. Surprisingly, the children of the respondent were also not aware of the so called marriage between the appellant and respondent. No evidence in that regard is adduced on behalf of the respondent. The society was not knowing about the divorce between the respondent and her ex-husband as they continued to stay together as husband and wife, for the sake of their children.

10.6.5.3 Live-in Relationship and Presumption of Marriage Providing reliefs under the Act of 2005 to the woman in live-in relationship is different from treating the relationship per se as amounting to marriage. In Velusamy v D Patchaiammal,201 the Supreme Court held that one of the conditions for presumption of marriage is that “they must be otherwise qualified to enter into a legal marriage.” This condition would disqualify (1) persons already married, (2) persons within prohibited degrees of relationship, (3) same-sex couples, and (4) minors. An interesting question arose in A Vidya Sagar v State of AP, a domestic violence case, whether a man who is already married and his marriage is subsisting could enter into a live-in relationship with another woman so as to raise the presumption of second marriage or “a relationship in the nature of marriage”. The High Court of Andhra Pradesh observed that the fact that the man who is admittedly married will fall within the condition mentioned above in Velusamy case including enjoying the status of not being married”202 because a married man cannot validly contract second marriage.203 It is submitted that while a long co-habitation in a live-in relationship with a person who is already married cannot be held to have given rise to a presumption of marriage, such a live-in relationship can be held to be “a relationship in the nature of marriage” within the meaning of section 2 (f) of DV Act, 2005 to entitle the woman for the remedies available to her under the Act. If one were to hold that the Velusamy condition that both the parties to a live-in relationship must be eligible “to enter into a legal marriage” to give rise to a presumption of marriage is conflated to “a relationship in the nature of marriage”, it would give a license to married men to enter into live-in relationships that would absolve them from responsibilities of “marital” as well as “relationship in the nature of marriage” and that would result in subversion of the very objectives of the 2005 Act. Hence, a clear distinction has to be made between long co-habitation or live-in relationship that might give rise to (1) presumption of marriage under section 50 with all the requisite pre-conditions of eligibility for marriage and all the attendant consequences, and to (2) “a relationship in the nature of marriage” or a quasi-marital relationship that would entitle the woman to remedies under the DV Act, 2005 without the legal attributes of marital status. Thus, it is untenable to assume that either the law or the Courts are going to treat the live-in relationship as a legally viable alternative or substitute for marriage as a social institution with religious underpinnings.204 As the proviso to section 50 of the Evidence Act, 1872 clearly states, general reputation or a presumption regarding marriage cannot be the basis for holding a person guilty of the offences of bigamy or adultery (sections 494 and 497 of IPC, 1860 respectively) or for granting matrimonial remedies and in such cases strict proof of marriage will be insisted upon.205 The Courts have been very reluctant to draw that presumption even in civil cases of restitution of conjugal rights and the party alleging the marriage is put to strict proof.206 The fact that the wife did not file for divorce or restitution of conjugal rights for as long as 40 years after the alleged bigamous second marriage of the husband gives rise to the presumption that she was not a lawfully wedded wife at all.207 However, while long cohabitation might give rise to a general reputation that a man and woman are married and are living as husband and wife, the converse is not true and the fact that the husband and wife started living separately for long and that the wife started living with another man does not give rise to a presumption that a divorce has been granted.208 The safeguards provided under section 50 are that (a) it is not mere opinion but the conduct expressing that opinion that is relevant and (b) the opinion and the conduct must be “of any person who, as a member of the family or otherwise, has special means of knowledge on the subject”. 10.6.5.4 Cohabitation, Common-Law Marriage and Civil Partnership under English Law The original concept of a common-law marriage is a marital relationship arising out of a long cohabitation between a

Page 6 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 man and woman, and the couple representing themselves to others as being married without being formally solemnised by religious service or registered with a state or church registry. The Law Commission of England in its report of 2007209 referred to “the prevalence of this misconception” and “the common law marriage myth” and “a widespread belief that English law recognises cohabitants as ‘common law spouses’ once they have lived together for some period of time and that they are thereafter treated for legal purposes as if they were married.”210 However, the fact is that “cohabitation outside marriage in England and Wales has become increasingly common over recent decades, and is expected to become more prevalent in the future.”211 The report also said that “just as cohabitation has been increasing, so too has its public acceptance. The British Social Attitudes survey 2000 assessed public attitudes towards various aspects of cohabitation and marriage. 67% of respondents agreed that it was ‘all right for a couple to live together without intending to get married’.”212 The report said: “But for many purposes – not least financial relief on separation and death – cohabitants and spouses are treated quite differently.”213 Hence, the scheme proposed by the Commission “would not equate cohabitants with married couples or give them equivalent rights. Nor would it provide a new status which cohabitants should sign up to in order to gain new rights.” The Commission recommended various safeguards and remedies to the cohabitants provided they fulfilled the conditions viz., “(1) they are living as a couple in a joint household; and (2) they are neither married to each other nor civil partners.”214 Under the Civil Partnership Act, 2004, the “civil partnership” is what is commonly called as “gay or same sex couple” and under section 1 “(1) A civil partnership is a relationship between two people of the same sex (‘civil partners’).” Based on the Law Commission’s report, the Cohabitation Rights Bill, 2014–2015 has been introduced in the House of Lords of the British Parliament.215 The Bill is intended to “Provide certain protections for persons who live together as a couple or have lived together as a couple; and to make provision about the property of deceased persons who are survived by a cohabitant; and for connected purposes.” Section 2 defines a “cohabitant” as “any two people (whether of the same sex or the opposite sex)216 who—(a) live together as a couple, and (b) meet the first and second conditions specified in sub-sections (2) and (3).” The conditions, inter alia, are that the cohabitants must “have lived together as a couple for a continuous period of two years or more” and “are neither married to each other nor civil partners of each other, and (b) are not within prohibited degrees of relationship in relation to each other.” The Bill envisages rights and responsibilities in the matter of child care and property and succession which are somewhat similar to those of regularly married couple in the event of divorce.217 The prevalent social practice of cohabitation is recognised in few other jurisdictions, more from the point of protection of the cohabitants and the kids where the couple are divorced or judicially separated a mensa et thoro— from bed and board. Some Provinces in Australia and Canada recognise this non-formal “irregular” marriage (termed “domestic union” or “civil union”) and the period of cohabitation required is typically two years. In the USA, only few States recognise common law marriage and some States like Michigan abolished it and even in the States where it is recognised, the form and extent of recognition widely vary from State to State.218 10.6.6 Relevance of Grounds of Opinion Evidence Section 51 provides: Grounds of opinion, when relevant.—Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. Illustration An expert may give an account of experiments performed by him for the purpose of forming his opinion.

While section 32 deals with statements made by person who are dead on the matters mentioned therein, sections 45 to 50 deal with opinions of persons who are alive or dead.219 Thus, opinions on forensic science or forensic medicine are relevant only under section 45 whether the expert is alive or dead because section 45 is the only portal through which such opinions can be admitted.220 If he is alive, he must be called as a witness and give his testimony in a Court of law under oath and subject to cross-examination. In effect, section 51 states that the witness who is giving his opinions may also be asked to state the grounds on which he arrived at his opinions. In other words, his opinions must be objective and not subjective and he may be asked to state the reasons for them so that his veracity and the tenability of his opinions could be tested during cross-examination. As has been said, “opinion is no evidence, without assigning the reason of such opinion.”221 If the expert is dead, his treatise, if any, in which he has stated his opinions must be produced under section 60. If

Page 7 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 the expert who is dead has not written any treatise containing his opinions, his opinions will be inadmissible under the Evidence Act, 1872. Section 60 deals with both the situations: 1. Firstly, section 60 says: “Oral evidence must, in all cases whatever, be direct; that is to say ... if it refers to an opinion or to the grounds on which the opinion is held, it must be the evidence of the person who holds that opinion on those grounds:” 2. “provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held may be proved by the production of such treatises” where the opinions are those of an expert who is dead. Section 158 provides for the safeguard that where any statement is proved under section 32, “all matters may be proved, either in order to contradict or corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.” On the other hand, if the opinion evidence given under sections 45 to 50 is that of any living person, he has to give his evidence under oath by appearing as a witness in the Court of law and he is subject to cross-examination. If an expert on DNA fingerprinting is giving his opinion, he may be required, as mentioned in the illustration to section 51, to give an account of the experiments conducted by him for the purpose of forming his opinions. Thus, three aspects of opinion evidence must be kept in mind: 1. The provisions that deal with the relevance of opinion of persons dead or alive, namely, section 32 (dead) and sections 45 to 50 (alive). 2. The mode of proof of opinion evidence: section 60. 3. The provisions that deal with testing the veracity of opinion evidence: sections 51, 158.

182 Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint (New Delhi, 2009), p 362. 183 Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al., eds, vol 1 (New Delhi, 1993), p 834. 184 See Ratan Lal and Dhiraj Lal, The Law of Evidence, 21st Edn, Reprint (New Delhi, 2009) p 362. However, Sarkar opines that section 48 “refers to the evidence of a living witness produced in the court, sworn and subject to cross examination.” Sarkar’s Law of Evidence, 14th Edn, MC Sarkar et al., eds, vol 1 (New Delhi, 1993), p 834. Basu quotes Norton’s observation to the same effect. PM Bakshi ed, Basu’s Law of Evidence, 6th Edn, (New Delhi, 1998), vol 2, p 1692. 185 Law merchant or lex mercatoria is the system of rules and customs and usages generally recognised and adopted by traders as the law for the regulation of their commercial transactions and the resolution of their controversies. 186 In Dr Subramanian Swamy v State of TN, (2014), AIR 2015 SC 460 : (2014) 5 SCC 75, the Apex Court held at para 10: “The term ‘religious denomination’ means collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religious denomination’ would stand on a different footing together from the right to maintain its own affairs in matters of religion.” 187 Also, The Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Tirtha Swamiar of Shirur Mutt, AIR 1954 SC 282. 188 Dalgobinda Paricha v Nirmal Charan, AIR 1959 SC 914. 189 In M Govindraju v K Munisami Gounder, AIR 1997 SC 10 : (1996) 5 SCC 467, where a woman left her husband and started living with another man and gave birth to a son by the latter, it was held that the boy was rightly treated by the trial Court as legitimate as his putative father’s sister gave her daughter in marriage to the boy as per custom. “That fact was corroborative of a valid acknowledgement of paternity and legitimacy ... if the people, especially the relatives, had treated and acknowledged the appellant as the legitimate son of his father by forging a bond of matrimony.” Section 32, Illustration (k) says: The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. This is an illustration to clause (5) of section 32 which speaks of relevancy of statements by persons who had special means of knowledge and made prior to dispute as to relationship by blood, marriage and adoption. Unlike the illustration (b) to section 50, this illustration to section 32 refers only to paternity and not legitimacy, as the former speaks of “legitimate” son whereas the latter merely refers to A being the “father” and B being “son”.

Page 8 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 190 Lata Singh v State of UP, AIR 2006 SC 2522. 191 In Indra Sarma v VKV Sarma, (2013), the Supreme Court said: “the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage.” 192 In the context of sections 113A and 113B of Evidence Act, 1872 and sections 304B and 498A of IPC, it was held that the word “relative” “principally includes a person related by blood, marriage or adoption.” U Suvetha v State by Inspector of Police, (2009) 6 SCC 787; Vijeta Gajra v State of NCT of Delhi, (2010) 11 SCC 618; Punjab v Gurmit Singh, (2014), 1996 (1) Recent Criminal Reports 533. See also Ramanatha Aiyar’s, Advance Law Lexicon (2012), vol 4, 3rd Edn: the word relative means any person related by blood, marriage or adoption. 193 Section 2 (f) of Protection of Women from Domestic Violence Act, 2005 defines “Domestic relationship” as: “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”. The term consanguinity means “of the same blood” (Latin: com- together + sanguineus- of blood). 194 “A strong presumption raises in favour of wedlock where the partners have lived together for a long spell as husband and wife ... Law leans in favour of legitimacy and frowns upon bastardy.” Badri Prasad v Deputy Director of Consolidation, AIR 1978 SC 1557; A Dinohamy v WL Balahamy, AIR 1927 PC 185 (Presumption of marriage unless contrary is proved); Mohabbat Ali v Md Ibrahim Khan, AIR 1929 PC 135 (Presumption in favour of marriage and against concubinage); Gokal Chand v Parveen Kumari, AIR 1952 SC 231 (Presumption applies unless rebeutted); Tulsa v Durghatiya, 2008 SC 1193. In Lousia Adelaide Piers & Florence AM De Kerriguen v Sir Henry Samuel Piers, (1849) II HLC 331, the House of Lords observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption and that the law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence. 195 Velusamy v D Patchaiammal, 2010 AIR (SCW) 6731 : (2010) 10 SCC 469 : [2010] (11) Scale 112. In Dwarika Prasad Satpathy v Bidyut Prava Dixit, (1999) 7 SCC 675, the Supreme Court held that though the maintenance proceedings under section 125 CrPC, 1973 are in the nature of criminal proceedings, for proof of marriage the standard is not the strict proof of beyond reasonable doubt. In Mahinder v Aarti (name changed),where a 65-year old man lived with a 30year old housemaid as husband and wife for three years, the Delhi High Court (per Hima Kohli J) affirmed the order of the Family Court granting Rs 3000 per month as maintenance on the ground that as per settled legal principles, in proceedings under section 125 (...) CrPC, 1973, the standard of proof required to prove the validity of a marriage is not very stringent, and if it can be shown that the parties living as husband and wife, were being treated as married, then the same would be considered a valid marriage, sufficient to award interim maintenance to the dependants. See the newspaper Deccan Herald, 19 April 2011. CRL.REV.P. 153/2011 and CRL.M.A. 3979-3980/2011 Decided on: 01 April 2011. 196 Chanmuniya v Virendra Kumar Singh Khushwaha, (2011) 1 SCC 141: The Protection of Women from Domestic Violence Act, 2005 gives a very wide interpretation to the term “domestic relationship” as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of “domestic relationship”. “We are thus of the opinion that if the above mentioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C.” 197 In USA the expression “palimony” was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. The first decision on palimony was the well-known decision of the California Superior Court in Marvin v Marvin, (1976) 18 Cal. 3d 660. 198 Reema Agarwal v Anupam, AIR 2004 SC 1418; GC Behra v Adikanda Behra, AIR 1972 Ori. 38. It is submitted that this proposition begs the question as, for instance, under the Hindu Marriage Act of 1955, the factum of marriage can be proved only if all the rites are followed. 199 In Velusamy v D Patchaiammal, AIR 2011 SC 479 : 2010 AIR (SCW) 6731 : (2010) 10 SCC 469 : [2010] (11) Scale 112, the Supreme Court held: “In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 ... If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage”. The Court laid down the following conditions: 1. The couple must hold themselves out to society as being akin to spouses. 2. They must be of legal age to marry. 3. They must be otherwise qualified to enter into a legal marriage. 4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. In Madan Mohan Singh v Rajni Kant, AIR 2010 SC 2933, the Supreme Court held that “the live-in- relationship if continued for such a long time, cannot be termed as ‘walk in and walk out’ relationship and there is a presumption of marriage between them ...” 200 Sastry Velaider Aronegary & his wife v Sembecutty Viagalie, (1881) 6 AC 364 . However, in Khushboo v Kanniammal, (2010) 5 SCC 600, the Apex Court said there was no law which prohibits live-in relationship or pre-marital sex. 201 AIR 2011 SC 479 : 2010 AIR (SCW) 6731 : (2010) 10 SCC 469 : [2010] (11) Scale 112.

Page 9 of 9 10.6 OPINION EVIDENCE SECTIONS 47–51 202 A Vidya Sagar v AP, Criminal Petition No.4105 of 2013, decided on 12 September 2014 (Andhra Pradesh High Court). 203 The High Court did not go into the merits of the contention as the case was a petition for quashing of proceedings under section 482 of CrPC, 1973. A Vidya Sagar v AP, Criminal Petition No.4105 of 2013, decided on 12 September 2014 (Andhra Pradesh High Court). 204 Yamunabai Anantrao Adhav v Anantrao Shivram Adhav, AIR 1988 SC 644. 205 BS Lokhande v Maharashtra, (1965) 2 SCR 837; Surjit Kaur v Gajra Singh, AIR 1994 SC 135. A person cannot be held guilty of a crime on the basis of a presumption. See Dinesh Barthakur v Assam, AIR 2008 SC 2205; Re Dolgonti Raghava Reddy, AIR 1968 AP 117. 206 Khiteswar Phukan v Sowla Gogal alias Phukan, AIR 1991 Gau 61. 207 Dharam Dev Malik v Raj Rani, AIR 1984 Del 389. 208 Daljit Kaur v Amarjit Kaur, AIR 2009 P&H. 118. However, in M Govindraju v K Munisami Gounder, AIR 1997 SC 10 : (1996) 5 SCC 467, it has been held that if the woman abandoned her husband and started living with another man and bore a son by the latter, she must be deemed to have been divorced as per custom of the caste of Gounders. 209 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019). The Commission stated that the report “builds on” its own Consultation Paper No 179, Cohabitation: The Financial Consequences of Relationship Breakdown, A Consultation Paper, 31 May 2006, https://www.lawcom.gov.uk/cohabitation/ (last accessed in April 2019). 210 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019), Appendix A, The Current Law, p 149, para A.2. 211 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019), p 2, para 1.6. 212 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019), p 6, para 1.11. It is said that most cohabiting couple would prefer marriage as the option “but get deflected from this course for a number of reasons” like financial, emotional and “25 per cent of all children are born to cohabiting couples.” Anne Barlow, et al, “Cohabitation, Family Responsibility and the Law– A Briefing Paper”, University of Exeter, http://www.resolution.org.uk/site_content_files/files/researchbriefing.pdf (last accessed in April 2019). 213 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019), pp 149–150, para A.3. 214 The Law Commission, Report on Cohabitation: The Financial Consequences of Relationship Breakdown, Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, July 2007, Cm 7182, http://www.lawcom.gov.uk. (Last accessed in April 2019), p 141, para 8.2. 215 The Bill was introduced by Lord Marks of Henley-on-Thames. 216 The Law Commission’s recommendation referred to in the text excluded the same sex partners from its scope as they are covered by the Civil Partnership Act, 2004. 217 See Alexandra Bevir, “Cohabitation Rights Bill” in Family Law Journal, March 2014 (Jordan Publishing Ltd, United Kingdom). 218 Anne Barlow, et al, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford, 2005), p 53; Anne Barlow, Cohabitants and the Law, (London, Butterworths LexisNexis, 2001). 219 As already mentioned, only section 48 can be said to deal with the opinion of a person who is alive because section 32 (4) specially deals with the opinions of persons who are dead on the matters which section 48 also deals with. 220 Section 32 does not provide for the relevance of the opinions of the dead on those subjects. 221 Rambler v Tryon, 7 S&R 94 (Per Duncan J)

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