Nslui Law Of Evidence Notes Free.docx

EVIDENCE SUMMARIES TABLE OF CONTENTS EVIDENCE SUMMARIES....................................................................................................................1 Unit III: Scope of the IEA...............................................................................................................4 UOI v. T.R. Varma, 1957 SC 5 judges........................................................................................4 Unit IV-Relevance...........................................................................................................................5 Munshi Prasad v. State of Bihar, SC 2001..................................................................................5 Sec. 6............................................................................................................................................5 Rattan Singh v. State of H.P........................................................................................................5 Sukhar v. State of UP, 1999 SC 3 judges....................................................................................7 Yusuf Esmail Nagree v. State of Maharashtra 1968 SC..............................................................9 Sec. 7..........................................................................................................................................12 Balram Prasad Agrawal v. State of Bihar, 1996 SC..................................................................12 Sec. 8..........................................................................................................................................15 R v. Lillyman-QB 1896.............................................................................................................15 R v. Blastland.............................................................................................................................16 Sec. 9..........................................................................................................................................21 Bibhabati Devi v. Ramendra Narain 1947 PC...........................................................................21 Sec. 15........................................................................................................................................22 Makin v. DPP.............................................................................................................................22 Boardman v. DPP-8 judges, House of Lords 1974....................................................................24 DPP v. P-1991 House of Lords 5 judges...................................................................................29 R v. George Joseph Smith-Ct of Crim Appeal, 1915................................................................30 Laxmandas Chaganlal Bhatia v. State, Bom HC, 1966.............................................................32 1

Unit V: Rule against Hearsay........................................................................................................34 Res Gestae.................................................................................................................................34 R v. Bedingfield-Crown Court 1879.........................................................................................34 R v. Andrews House of Lords 1987..........................................................................................36 Gentela Vijayardhan Rao v. State of A.P., 1996 SC.................................................................39 Dying Declarations....................................................................................................................40 Queen Empress v. Abdullah Allahabad HC 1885.....................................................................40 State v. Ram Singh....................................................................................................................44 Pakalanarayanswami v. King Emperor-1939 Privy Council.....................................................52 Unit VI: Types of Evidence...........................................................................................................55 State of U.P. v. Rajesh Talwar...................................................................................................55 Unit VII: Evidence in Conspiracies...............................................................................................64 Sec. 10........................................................................................................................................64 Mirza Akbar v. King Emperor, 1940 PC...................................................................................64 Badri Rai v. State of Bihar 1958 SC..........................................................................................65 Sec. 30........................................................................................................................................67 Sardul Singh Caveeshar v. State of Bombay, SC 1957.............................................................67 Bhagwan Swarup v. State of Maharashtra-1963 SC.................................................................68 Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, 3 judges..............................68 State v. Nalini............................................................................................................................72 Unit VIII: Confessions...................................................................................................................73 State of Maharashtra v. Damu...................................................................................................73 Unit IX: Admissibility of Evidence...............................................................................................76 Pulukuri Kottaya v. King-Emperor, 1946 Bom HC..................................................................76 State of Bombay v. Kathi Kolu Oghad-11 judge bench, SC 1958............................................78 2

State of Uttar Pradesh v. Deoman Upadhyaya-1960 SC...........................................................84 Prabhu v. State of U.P. 1962 SC-3 judges.................................................................................89 Illegally procured evidence........................................................................................................91 R.M. Malkani v. State of Maharashtra......................................................................................91 Unit X: Scientific and Expert Evidence.........................................................................................97 Frye v. United States 1923.........................................................................................................97 Selvi v. State of Karnataka........................................................................................................98

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Unit III: Scope of the IEA UOI v. T.R. Varma, 1957 SC 5 judges 

Respondent was charged with aiding and abetting in bribing an assistant in the Ministry of Commerce-enquiry proceedings against him-complained that the enquiry was vitiated by the fact that i) the respondent and his witnesses were not allowed to give their evidence by way of examination-in-chief but were only cross examined and ii) the respondent was not allowed to put questions to the defense witnesses himself but their answers were confined to questions put by the Inquiry Officer-filed writ petition under Art. 226 in P and H HC to quash the order of dismissal

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Court held: The Evidence Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law. The rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.

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There had been no violation of the principles of natural justice. The witnesses were examined at great length, had spoken to all relevant facts bearing on the question, and there was no other matter on which they could have spoken-court found on facts that the allegation of not being allowed to put questions to the witness was incorrect-writ was dismissed.

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Unit IV-Relevance Munshi Prasad v. State of Bihar, SC 2001 

Dudh Nath v. State of U.P.- The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed

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Distance is a material factor for proving alibi

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Place of occurrence of crime was 400-500 yards away from Panchayat where accused were meeting-Court held it cannot be ‘presence elsewhere’-possible for accused to be present at both places at the same time.

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Differences between inquest and post-mortem report-PM Report by itself is not a substantive evidence but it is the doctor's statement in Court, which has the credibility of a substantive evidence and not the report-only to be used for corroboration or contradiction of the doctor’s statement.

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The inquest report also cannot be termed as substantive evidence being prepared by the police personnel being a non-medical man and at the earliest stage of the proceeding. Mere omission or addition of an injury cannot invalidate the prosecution casediscrepancy in inquest or PM report can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case.

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Delay in filing FIR not fatal to prosecution case.

Sec. 6 Rattan Singh v. State of H.P. 

Accused charged with murdering housewife Kanta Devi-she had complained against him earlier-his gun was seized through security proceedings-however he secured it back by making an application through his advocate.

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At about 11.00 p.m. Kanta Devi's mother-in-law woke up sensing that somebody would have intruded into their privacy and asked others whether anyone was there-Kanta Devi 5

cried out that the appellant was standing there with a gun. This was followed by the sound of a gunshot and pellets delved into her body. Kanta Devi's brother-in-law PW 3 Prakram Chand and his sister PW 10 Sheela Devi pounced upon the accused and in a bout Sheela Devi succeeded in wresting the gun from him but he escaped, leaving his torch-light and chappals at the place of incident. 

The appellant owned the gun produced in this case but he said that police had seized that gun from his house-fact of Sheela Devi seizing gun not mentioned in FIR

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Court: Quite often the Police Officer, who takes down the FIR, would record what the informant conveys to him without resorting to any elucidatory exercise. It is a voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all-mere omission will not matter.

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There was overwhelming evidence that the gun was lying near the dead body-The two neighbours who reached the spot on hearing the cry were Piar Singh (PW 4) and Sahib Singh (PW 5). Both of them said that when they reached the place they saw Kanta Devi lying dead and a gun, a torchlight and a pair of slippers were lying on the same site. PW6, PW7 and PW 8 who were present when the Sub-Inspector (PW 23) prepared the inquest have unequivocally said that the gun was lying on the courtyard where the dead body of Kanta Devi remained.

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Under what section can Kanta Devi’s statement be made relevant?- Court: When Kanta Devi (deceased) made the statement that appellant was standing with a gun she might or might not have been under the expectation of death. But that does not matter. The fact spoken by the deceased has subsequently turned out to be a circumstance which intimately related to the transaction which resulted in her death. The collocation of the words in Section 32(1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which cause his death". There need not necessarily be a direct nexus between "circumstances" and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. 6

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It is not necessary that such circumstance should be proximate-distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death

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Even apart from Section 32(1) of the Evidence Act, the statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration 'A' to Section 6- Here the act of the assailant intruding into the courtyard during dead of the night, victim's identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction.

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But then the court must be assured of the remaining two aspects i.e. reliability of the evidence and accuracy of the contents of the pronouncement. Court held: No difficulty in believing Kanta made the statement- BIL mentioned about it even at the earliest opportunity when he gave First Information Statement. It was contended that it was then dark and there was shadow of a mango tree and hence she could not have identified the appellant correctly. The evidence shows that it was a moonlit night and it happened on the open courtyard. The gunning down was followed by a bout between the assailant on the one side and PW 3 and PW 10 on the other during which these witnesses also had occasion to identify the assailant at very close range. Further again, the gun which PW 10 Sheela Devi succeeded in wresting from the appellant is admittedly the gun of the appellant.

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When asked about production of gun under Sec. 313, appellant said ‘I do not know’Court confirmed conviction of HC

Sukhar v. State of UP, 1999 SC 3 judges 

The appellant was convicted under Section 307 IPC for causing injury to NakkalProsecution case was that Nakkal appeared at the police station on the date of occurrence at 9.40 a.m. and narrated the incident as to how he was injured by the accused. The police then treated the said statement as First Information Report and started investigation.

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As per the FIR, the accused Sukhar was the nephew of Nakkal and had cultivated the land of Nakkal forcibly. When Nakkal demanded batai, Sukhar abused Nakkal and 7

refused to give any batai, thus there was enmity between them. On the fateful day during the morning hours, while Nakkal was going on the road, Sukhar caught hold of his back and fired a pistol shot towards him. Nakkal raised an alarm on account of which Ram Kala and Pitam reached the scene of occurrence and at that point of time, Nakkal fell down and the accused made his escape. 

During trial, the prosecution witnesses, according to PW 2, the injured had told him that the assailant, Sukhar had fired upon him. While the trial was pending Nakkal died but the prosecution did not make any attempt to establish how he died or his death was in any way connected with the injury sustained by him on the relevant date of occurrence.

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Defence: What the injured told the witness when the witness reached the scene of occurrence and the factum of alleged shooting by the accused at the injured cannot be said to have formed part of the same transaction. The evidence of PW 2 being categorical that by the time he reached the scene of occurrence, several people had gathered, it cannot be said that what the injured stated to him in fact formed part of the same transaction.

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Witness had heard the sound of firing but did not see him getting hit by the bullet

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SC: for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter.

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Wigmore on Evidence Act: The declaration may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.



Applied Gentela Vijayardhan Rao and Rattan Singh v. State of HP-Statement would be admissible under Sec. 6.

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Whether the evidence was reliable?- PW 2 in the cross-examination admitted that Sukhar, the present appellant and he are inimical to each other since long before. It was also elicited in the cross-examination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet 8

none of them were examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. 

The witness being inimical to the accused and on account of what has been elicited in his cross-examination, his evidence requires corroboration before being accepted. There was no corroboration either from any oral evidence or from any other circumstance-hence conviction was set aside as being based on unreliable and shaky evidence.

Yusuf Esmail Nagree v. State of Maharashtra 1968 SC 

Appellant’s wife was prosecuted under Sec. 471 of the Bombay Municipal Corporation Act- One Munir Ahmed Shaikh a notice clerk was entrusted with the duty of serving the warrant. The charge against the appellant was that he offered to Shaikh on July 18, 1960, a sum of Rs. 25 and on August 2, 1960 a sum of Rs. 100 as a bribe for not executing the warrant.

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On August 2, 1960 appellant fixed a appointment at Shaikh's residence. Shaikh lodged a complaint with the anti-corruption Bureau reporting the offer of a bribe of Rs. 25 on July 18 and the appointment at his residence in the evening. Of August 2, after the complaint was recorded. S. G. S. I. Mahajan obtained the necessary permission from the Chief Presidency magistrate to investigate into the offence. Mahajan decided to lay a trap.



On a sofa in the outer room of Shaikh's residence he set up a microphone which was connected to a tape recorder in the inner room. The microphone was concealed behind books. Mahajan, a radio mechanic and other members of his party remained in the inner room. Shaikh stayed in the outer room. The outer room and the person of Shaikh were searched and no cash was found. At the appointed hour, the appellant came to Shaikh's residence and was received by Shaikh in the outer room. Shaikh and the appellant had an intimate conversation. The appellant offered a bribe to Shaikh produced ten currency notes of Rs. 10 each and gave them to Shaikh. When Shaikh gave the pre-arranged signal "Salim pan lao" Mahajan and other member of his party entered the outer room and found the currency notes in Shaikh's short pocket. The tape recorder was switched on as soon as the appellant arrived and was switched off after 9

the signal was given. The conversation between Shaikh and the appellant was recorded in the tape recorder. The tape remained in the custody of Mahajan. 

From, the shorthand notes made after the tape was replayed one Yakub prepared a transcription of the conversation. The accuracy of the transcription was admitted. At the trial of the case the tape recorder was played in court.



Shaikh was the only eye-witness to the offer of the bribe on August 2, 1960. Mahajan, the radio mechanic and other persons who kept themselves concealed in the inner room of the Shaikh's residence did not witness the offer of the bribe, nor did they hear the conversation between Shaikh and the appellant. The High Court found that his evidence was sufficiently corroborated by the tape recorder.



The appellant handed over Rs. 100 to Shaikh on August 2, 1960. The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s. 6 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.

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6. In S. Pratap Singh v. The State of Punjab MANU/SC/0272/1963 the tape record of a conversation was admitted in evidence to corroborate the evidence of witness who had stated that such a conversation had taken place. In R. v. Maqsud Ali (1965) 2 All E.R. 464 a tape record of a conversation was admitted in evidence though the only witness who overheard it was not conversant with the language and could not make out that was said.



If a statement is relevant an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by the competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

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7. The radio mechanic did not hear the conversation but proved that the tape recorded all the sounds produced in the room where only Shaikh and the appellant were present. The voices of the appellant and Shaikh were properly identified. The tape was not sealed and was kept in the custody of Mahajan. The absence of sealing naturally gives rise to the argument that the recording medium might have been tampered with before it was replayed. However, it was not suggested either in the cross examination of the prosecution witness or in the answers under Sec. 342 CrPC that any tampering had taken place with the recording.

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The fact that the defence did not suggest any tampering lends assurance to the credibility of the other evidence. The courts below rightly held that the tape recorder faithfully recorded and reproduced the actual conversation.

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The appellant was not making a statement to Mahajan or to any other police officer. He was not even aware that any police officer was listening to him. He was talking to Shaikh. No doubt Shaikh was a police decoy assisting the police in their investigation, but the statement of the appellant to Shaikh while making another offer of a bribe cannot be regarded as a statement by him to the police. Nor can the words uttered by Shaikh be regarded as a statement to the police. Shaikh was talking to the appellant. He knew that what he said was being recorded for subsequent use by the police officers. But he was not speaking to any police officer.

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In the present case, the police officers set the stage for the drama in which the actors were Shaikh and the appellant. The officer hid themselves in the inner room and took no part of the drama. Neither of them can be regarded as having made a statement to a police officer as contemplated by s. 162.

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9. Art. 20(3) argument-Defence counsel argued that by the active deception of the police the appellant was compelled to be a witness against himself. Had the appellant known that the police had arranged a trap, he would not have talked as he did.

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Compulsion may take many forms. A person accused of an offence may be subject to the physical or mental torture. He may be starved or beaten and a confession may be extorted from him. By deceitful means he may be induced to believe that his son is being tortured in an adjoining room and by such inducement he may be compelled to make in incriminating statement. However, the appellant was free to talk or not to talk. His 11

conversation with the Shaikh was voluntary. There was no element of duress, coercion or compulsion-His statements were not extracted from him in an oppressive manner or by force or against his wishes. Therefore he cannot claim the protection of Art. 20(3). The fact that the tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. However, the Court observed that it is not lending approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording 

Kunal: Statement of giving bribe is a declaratory act-directly FII-the conversation is relevant as part of the same transaction in which bribe is being offered.

Sec. 7 Balram Prasad Agrawal v. State of Bihar, 1996 SC 

On 30th and 31st October 1988 at about 2.00 a.m. the deceased Kiran Devi fell in the well situated in the backyard of the house of her in-laws which was occupied by all the three accused along with her. On 31st October 1988 at about 10.00 a.m. her husband respondent No. 2 informed the appellant (her father) that his daughter Kiran Devi had died after falling in the well. Thereupon the appellant went to the house of her in-laws where he found the dead body of his daughter lying near the well. Thereafter he visited the house of the accused 12th November 1988 in order to meet his grandson. At that time he was informed by the neighbours that on the previous night of the date of the occurrence there was quarrel in the house of the accused and they had heard the crying and weeping of Kiran Devi and she was being assaulted by her in-laws-she had previously tried to commit suicide by jumping in the same well-was constantly tortured by in-laws

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Charge under Secs. 498-A, 302 and 34 IPC



Counsel for respondent contended that what the complainant had heard from the neighbours was hearsay and there was nothing to show that the accused were responsible for her suicide.

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Court held-no case made out under sec. 302-no evidence to show that on that fateful night the accused or anyone of them had pushed or thrown Kiran Devi in the well-but charge under Sec. 498-A made out. 12

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Deceased’ father testified that his neighbours told him that on previous night of the incident Kiran Devi was beaten by her mother-in-law Jhalo Devi, husband Paran Prasad and Paran Prasad’s BIL and Kiran Devi was shouting 'Bachao Bachao' 'save save' and they also told that the mother-in-law, husband and elder brother of the husband of Kiran Devi, Girbar Prasad were telling that they would perform the second marriage of Paran Prasad after killing her and were threatening to kill her

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He had also deposed about the suffering undergone by his daughter at the hands of the accused in past after her marriage. That his daughter Kiran Devi had informed him that her husband used to ask her to bring money from him and on this he replied that he had already given Rs. 10,000. She also used to say that her husband Paran Prasad, Girbar Prasad and mother-in-law Jhalo Devi used to beat her. The marriage of his daughter was solemnised in the year 1977. For 5-6 years there was no issue from her and hence her in-law started abusing her and wanted to make a second marriage of Paran Prasad. About four years prior to this incident his daughter Kiran Devi due to the atrocities of her in-laws had jumped into the same well. However the neighbours had saved her.

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He also proved two post cards which he had received when his daughter was pregnant and in these post cards he was informed that his son-in-law was trying to get married to one Lalo Devi.

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Court: His evidence about what his deceased daughter told him earlier about her sufferings at the hands of the accused was admissible under Section 32 of the Evidence Act.

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On that fateful night apart from the victim only the accused were present in the house. Thus what happened on that night and what led to the deceased falling in the well would be wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. Burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased, spread over years as is well established from the unshaken testimony of P.W. 9, father of the deceased girl, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the 13

prosecution case. This burden under Section 106 of the Indian Evidence Act is not discharged by them. 

However, the informants turned hostile-counsel for the appellant submitted that what was deposed to by the complainant would not remain in the realm of hearsay evidence as these informants have been examined as witnesses

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Sec. 60 of IEA-oral evidence has to be direct-The evidence before the court can be divided into original and unoriginal. The original is that which a witness reports himself to have seen or heard through the medium of his own senses. Unoriginal, also called derivative, transmitted, secondhand or hearsay, is that which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily senses, but what he had learnt respecting the fact through the medium of a third person. Hearsay, therefore, properly speaking is secondary evidence of any oral statement.

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Court held even assuming the statements were hearsay, there was clinching evidenceevidence of hostile witnesses can be relied upon to the extent of corroboration of the prosecution case-Even if the nature of information alleged to be conveyed to the father of the deceased by the neighbours about what was actually heard by them on that fateful night may be ruled out as hearsay, the fact that some information was conveyed to him by the neighbours on 12 th November 1988 which prompted him to rush to police as he entertained grave doubt on the basis of what was conveyed to him by neighbours about the conduct of the accused on that night would remain admissible in evidence-That part of his evidence was not shaken in cross examination. Not only that but even the hostile witnesses P.W. 3 and 4 who are alleged to have given some information to the witness P.W. 6 on 12th November 1988 had not even whispered either in their chief examination or cross examination about their not having conveyed any information or not having met P.W. 6 on 12th November 1988 as deposed to by P.W, 6 in his evidence. This part of the evidence of P.W.6 would not be hit by the rule of exclusion of hearsay evidence.

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Court held that under Sec. 114 of the IEA the cruel conduct of the accused could be presumed to have continued till the death of the deceased-If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate 14

time both forwards and backwards may sometimes be drawn-court convicted under s. 498-A. 

KA: Fact that she had been harassed-state of things, crying out for help relevantoccasion.

Sec. 8 R v. Lillyman-QB 1896 

The prisoner was tried upon an indictment containing three counts. The first charged him with an attempt to have carnal knowledge of a girl above the age of thirteen and under the age of sixteen; the second with an assault on the same girl with intent to ravish her; the third with an indecent assault, also upon the same girl. The girl was examined as a witness in support of these charges, and deposed to the acts she complained of having been committed without her consent. For the Crown, evidence was tendered in chief of a complaint made by the girl to her mistress, in the absence of the prisoner, very shortly after the commission of the acts charged, and it was proposed to ask the witness called for that purpose to state the details of the complaint in the language used by the girl.

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Evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestæ, is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witnessbox, and as being inconsistent with her consent to that of which she complains.

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Whether the contents of the complaint can be admitted, or is it only proof that a complaint was made-yes they can-but the evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witnessbox negativing her consent, and affirming that the acts complained of 15

were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. 

It is the duty of the judge to impress upon the jury in every case that they are not entitled to make use of the complaint as any evidence whatever of those facts, or for any other purpose-The whole statement of a woman containing her alleged complaint should, so far as it relates to the charge against the accused, be submitted to the jury as a part of the case for the prosecution.

R v. Blastland 

Appellant was convicted of buggery and murder of a 12 year old boy-The appellant's own evidence, shortly stated, was that he admitted meeting the deceased boy at some time between 6 and 7 p.m. on the Thursday not far from where the body was later found. He engaged in homosexual activity with him, to which, according to the appellant, the boy consented in return for a money payment. He first attempted to bugger the boy but, when the boy complained of pain, desisted before achieving penetration. He then had oral intercourse with the boy. Very shortly after this the appellant said he saw another man nearby (Mark) who, inferentially, could have seen what had happened between the boy and the appellant. Fearing that he had been observed committing a serious offence, the appellant panicked, ran away, and returned to his home.

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There was a formal admission by the prosecution in the following terms: "Mark was fully investigated by the police after the death of Karl Fletcher, including medical examination and submission of his clothing for forensic examination." The medical examination revealed an injury to Mark's penis, the significance of which was canvassed with the medical experts who gave evidence. The forensic examination disclosed nothing to connect Mark with Karl. In addition there were formal admissions by the prosecution showing Mark to have been known to engage in the past in homosexual activities with adults but not with children. There were also both formal admissions and evidence relating to Mark's movements on the evening of Karl's murder.

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In a series of interviews with police officers, Mark had successively made and withdrawn admissions of his own guilt of the offences with which the appellant stood charged-At the trial counsel for the appellant sought to put the material in these 16

interviews before the jury, first by an application to call a police officer and elicit from him directly what was said, secondly by an application to call Mark, treat him as a hostile witness, and cross-examine him about what he had said at the interviews-applications were rejected 

The prosecution had made available to the defence the statements of a number of witnesses to the effect that Mark had said to them that a little boy had been murdered. A woman named June, with whom Mark was living, was alleged by another woman to have told her that Mark came home about 8 p.m. on the Thursday evening of the murder, that at the time Mark was shaking like a leaf, covered in mud, and wet from his knees downwards, and that he then told her that a young boy had been murdered. Other witnesses said they had been told by Mark on the Friday morning before the finding of Karl Fletcher's body that a boy had been murdered, and according to one witness that the murdered boy lived at an address which, though not in fact the address of the Fletcher family, was only a short distance from it in an adjoining street. The defence wished to call the woman, June, and the other witnesses mentioned in order to elicit from them what Mark had said about the boy's murder. The judge ruled that this evidence, like the evidence of what Mark had said to the police, would be hearsay and therefore inadmissible.

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Appeal allowed on the issue: Whether evidence of words spoken by a third party who is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate the state of knowledge of the person speaking the words if the inference to be drawn from such words is that the person speaking them is or may be guilty of the offence with which the defendant is charged.

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Court refused to allow statements made by Mark to the police-To admit in criminal trials statements confessing to the crime for which the defendant is being tried made by third parties not called as witnesses would be to create a very significant and a dangerous new exception to the rule of hearsay.

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Argument of defense: The authorities relating to the application of the hearsay rule contrast two distinct situations. In the first situation evidence is sought to be adduced of a statement made to a witness in order to prove the truth of the facts stated. This is hearsay 17

evidence and must be excluded, unless it can be brought within one of the recognised exceptions to the hearsay rule. In the second situation evidence is sought to be adduced of a statement made to a witness in order to prove, not the truth of any facts stated, but the state of mind either of the person who made the statement or of the person to whom it was made. This evidence is not within the hearsay rule at all; it is direct and primary evidence of the state of mind of the maker or recipient of the statement. 

Knowledge is a state of mind. What Mark said to the witnesses on the Thursday evening when Karl was murdered and on the following morning was direct and primary evidence of his knowledge of the murder before the body had been found. Accordingly the evidence was direct and primary evidence of that which it was called to prove. It was not excluded by the hearsay rule and should have been left to the jury, together with all the other evidence, for them to draw such inferences from it as they saw fit.



HL: If it is right, the argument does appear to lead to the very odd result that the inference that Mark may have himself committed the murder may be supported indirectly by what Mark said, though if he had directly acknowledged guilt this would have been excluded



Statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.



The issue at the trial of the appellant was whether it was proved that the appellant had buggered and murdered Karl Fletcher. Mark's knowledge that Karl had been murdered was neither itself in issue, nor was it, per se, of any relevance to the issue. What was relevant was not the fact of Mark's knowledge but how he had come by that knowledge. He might have done so in a number of ways, but the two most obvious possibilities were either that he had witnessed the commission of the murder by the appellant or that he had committed it himself. The statements which it was sought to 18

prove that Mark made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To do so would have been mere speculation. Thus, to allow this evidence of what Mark said to be put before the jury as supporting the conclusion that he, rather than the appellant, may have been the murderer in the light of the principles on which the exclusion of hearsay depends, to be open to still graver objection than allowing evidence that he had directly admitted the crime. If the latter is excluded as evidence to which no probative value can safely be attributed, the same objection applies a fortiori to the admission of the former. 

The classic illustration of a statement admissible to prove the state of mind, again directly in issue, of the person to whom the statement was made is Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965. The appellant had been captured in the Federation of Malaya by security forces operating against terrorists. He was tried and convicted of unlawful possession of ammunition, which was at that time a capital offence in the Federation of Malaya. His defence was that he acted under duress. At his trial he sought to give evidence of threats made to him by terrorists, but this was ruled inadmissible as hearsay.



His appeal against conviction to the Privy Council was allowed on the ground that, if the threats were made to him and he believed them, the excluded evidence went directly to support his defence of duress. Held: "In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes."



The authority on which the defence relied is the decision of the Privy Council in Ratten v. The Queen [1972] A.C. 378-The appellant's wife had been killed by a cartridge discharged from a shotgun held in the hands of the appellant. The evidence established the time of the shooting as between 1.12 and 1.20 p.m. The appellant's defence was that the shooting occurred accidentally while he was in course of cleaning the gun. The evidence of the appellant was that after the shooting he immediately telephoned for an ambulance and that shortly afterwards the police telephoned him upon which he asked them to come immediately. He denied that any telephone call had been made by his wife, 19

and also denied that he had telephoned for the police. To rebut the appellant's account, the prosecution called the evidence of a telephonist at the telephone exchange of a call from the appellant's number received at about 1.15 p.m. from a woman saying: "Get me the police please." According to the telephonist, the woman was hysterical and sobbing. 

The Board, in a judgment delivered by Lord Wilberforce, held this evidence admissible on the grounds both that it was directly relevant to the issue and that it was part of the res gestae.



“It (telephone call) can be analysed into the following elements. (1) At about 1.15 p.m. the number Echuca 1494 rang. I plugged into that number. (2) I opened the speak key and said 'Number please.' (3) A female voice answered. (4) The voice was hysterical and sobbed. (5) The voice said 'Get me the police please.'



The factual items numbered (1)-(3) were relevant in order to show that, contrary to the evidence of the appellant, a call was made, only some 35 minutes before the fatal shooting, by a woman. It not being suggested that there was anybody in the house other than the appellant, his wife and small children, this woman, the caller, could only have been the deceased. Items (4) and (5) were relevant as possibly showing (if the jury thought fit to draw the inference) that the deceased woman was at this time in a state of emotion or fear. They were relevant and necessary, evidence in order to explain and complete the fact of the call being made.



A telephone call is a composite act, made up of manual operations together with the utterance of words. To confine the evidence to the first would be to deprive the act of most of its significance. The act had content when it was known that the call was made in a state of emotion. The knowledge that the caller desired the police to be called helped to indicate the nature of the emotion anxiety or fear at an existing or impending emergency. It was a matter for the jury to decide what light (if any) this evidence, in the absence of any explanation from the appellant, who was in the house, threw upon what situation was occurring, or developing at the time.”

20



The defence emphasized the last sentence-Argued that it establishes, the proposition that evidence of A's state of mind (the wife's fear in Ratten's case and Mark's knowledge in the instant case) should be left to the jury to decide what inference they draw from it with respect to B's action (whether the appellant in Ratten's case fired deliberately or accidentally and whether, in the instant case, the appellant murdered Karl Fletcher).



HL: Ratten's case is clearly distinguishable. First, the telephone call in Ratten's case was, although it could be analysed into component elements, nevertheless, as Lord Wilberforce said, "a composite act, made up of manual operations together with the utterance of words." The implication is that its admissibility had to be considered as a whole. The very fact that the call had been made contradicted a critically important part of the appellant's evidence. Secondly, the appellant's denial that the call had been made precluded him from either offering any explanation of it or suggesting that it was made in some other room out of his hearing. This led to a powerful inference that what the wife said on the telephone was said in his presence. Thirdly, in these circumstances, both the making of the call and the wife's state of fear manifested by it were directly relevant to the critical issue in the trial as rebutting the appellant's defence of an accidental shooting. There are no analogous considerations applicable in the present case. (Mark’s statement was of no relevance to the issue)



The admissibility of a statement tendered in evidence as proof of the maker's knowledge or other state of mind must always depend on the degree of relevance of the state of mind sought to be proved to the issue in relation to which the evidence is tendered-Held, evidence was rightly excluded.

Sec. 9 Bibhabati Devi v. Ramendra Narain 1947 PC 

Bhowal Raja case-contracted syphilis-went to Darjeeling-supposedly cremated-years later a sadhu emerged claiming to be the Second Kumar of Bhowal



The eyes of the Second Kumar were kata eyes, that is, of a shade lighter than the normal dark brown eyes of a Bengalee; eyes of the plaintiff also were of a light brownish colourRespondent’s contention rested upon the view that the entry of their colour as "grey" in Dr. Caddy's report to the Insurance Company in 1905 in connection with the proposal of 21

the Second Kumar for life insurance could only mean that they were grey as distinguished from brown, and that the report must be accepted as conclusive of the matter. However there was conflicting evidence on the point-affidavit given to the insurance company by Kali Prasanna Vidyasagar, who had long been familiar with the Second Kumar, stated that the latter's eyes were rather brownish, but the witness Girish Chandra Sen stated that Dr. Caddy had asked him to look for any identification marks, and that he told the doctor "grey eyes", thereby meaning kata eyes. 

When the Second Kumar went to Darjeeling he had gummatous ulcers on both arms about the elbows, and about both legs, representing the tertiary stage of syphilis, which he had contracted on some dale subsequent to Dr. Caddy's examination of him in 1905. On the evidence it was also found that the plaintiff is "an old syphilitic individual". The plaintiff had one scar on the left arm and two on the right arm, in each ease about the elbow; these were a small proportion of the number of ulcers from which the Second Kumar was suffering in 1909, however court found that these three scars were the remains of some of the Second Kumar's ulcers. There was no definite evidence as to the permanency, or otherwise, of scars left by gummatous ulcers.



The plaintiff stated in his evidence that while with the Sanyasis he had no treatment. But the court held that the doctor's evidence is a calculation of chances of recovery, which no doctor would maintain to be without exception, and that he later stated that there is no normality in syphilis. Therefore contention that the Kumar had permanent scars due to syphilis and hence identity did not match also failed.

Sec. 15 Makin v. DPP 

On the 9th of November some constables found the remains of four infants in the back yard of 109, George Street, among which was the body of a male child, from two to nine weeks old. It was clothed with a long white baby's gown and underneath a baby's small white shirt, both of which were identified as being the gown and shirt in which Murray's baby had been dressed. A minute portion of the infant's hair resembled the hair of Murray's child. Previous to the finding of the four infants in George Street, Redfern (on the 9th of November), two bodies of infants had been discovered, one 22

on the 11th and the other on the 12th of October, on the premises in Burren Street where the prisoners had previously resided. 

During the adjournment of an inquest on one of those bodies held in October, the prisoner Sarah came to her former residence in George Street, Redfern, and said to witness, then residing there, that she had called to see about those people that had lived there before her, that she was a great friend of theirs, and asked if the police had dug the yard up, and further asked if any bodies had been found in the yard. At this inquest both prisoners were examined, no charge at that time having been made against them. They both swore that the only child that they had ever received to nurse was the one which they had in Burren Street, and which was given them after they arrived there. The prisoner Sarah swore that none but her own family had removed from George Street, to Burren Street.



On the 2nd of November one, and on the 3 rd four more bodies were discovered buried in Burren Street, and on the 3rd of November the prisoners were arrested. On the night of that day prisoner John was placed in a cell with a witness, who deposed that prisoner said to him that he (Makin) was there for babyfarming, that there were seven found and there was another to be found, and when that was found he would never see daylight any more; that is what a man gets for obliging people, and that he could do nothing outside as they were watching the ground too close; that there was no doctor could prove that he ever gave them anything, that he did not care for himself, but that his children were innocent. On the 12th of November the bodies of two infants, bones only, were found on the premises of Levy Street, Chippendale, where prisoners had resided some time previous to their residence in Kettle Street.” The prisoners had moved from Kettle Street to George Street, and thence to Burren Street.



The prisoners alleged that they had received only one child to nurse; that they had received 10s. a week whilst it was under their care, and that after a few weeks it was given back to the parents. When the infant with whose murder the appellants were charged was received from the mother she stated that she had a child for them to adopt. Mrs. Makin said that she would take the child, and Makin said that they would bring it up as their own and educate it, and that he would take it because Mrs. Makin had lost a child of her own two years old. Makin said that he did not want any clothing; they had plenty of their own. The mother said that she did not mind his getting£3 premium so long as he 23

took care of the child. The representation was that the prisoners were willing to take the child on payment of the small sum of £3, inasmuch as they desired to adopt it as their own. 

Appellants convicted of the murder of Murray’s child-issue was admissibility of the evidence relating to the finding of other bodies, and to the fact that other children had been entrusted to the appellants.



Held: The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime were designed or accidental, or to rebut a defence which would otherwise be open to the accused.



Hence it was relevant to the issue to be tried by the jury that several other infants had been received from their mothers on like representations, and upon payment of a sum inadequate for the support of the child for more than a very limited period, or that the bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners.

Boardman v. DPP-8 judges, House of Lords 1974 

Appellant was headmaster of school at Cambridge- was charged with having unlawfully committed buggery with S and unlawfully inciting 2 boys H and A to commit buggery with him- Each boy gave evidence. In addition to giving evidence as to the occasion which was the subject of the charge, S gave evidence as to several incidents which took place on various occasions prior to the mid-November occasion which was the subject of the charge. The evidence showed the course of the appellant's conduct towards S. In a similar way H gave evidence in regard to an occasion prior to January 14, 1973, in addition to giving evidence in regard to what happened on that date



S spoke of a number of incidents. The first occurred at Tehran before the autumn term of 1972 began. S had gone home for his holidays. The appellant was staying in Tehran in a hotel. According to S there was an indecent assault. As to that the appellant said that he had merely put his arm round S but had not put his hand on S's private parts. The second incident was at Cambridge when S said that the appellant 24

had tried to touch him in the private parts but was repulsed. That incident the appellant denied. The third incident (which was at the end of September or beginning of October) occurred at about four or five in the morning when S was asleep and was awakened and felt something touch his face. S's evidence was that the appellant was there and said: "I love you, I love you, can you come to the sitting room for five minutes ... five minutes of your time, ... " 

As to this the appellant said that he was doing the rounds in the dormitory and saw that S was not in his own top bunk but was in the bunk of another boy; that, kneeling down, and speaking quietly so as not to awaken other boys, he told both to go to the sitting room saying that he would only keep them for a short time; that possibly he said five minutes; that the other boy pretended to be asleep and that S refused to come; that he tried unsuccessfully three times to get S (who was very angry) to come. The appellant then left them. There was an interview next day. The next incident according to S was when the appellant asked him to go alone with him, offered him money "if you will be a very good friend of mine," knelt in front of him and made the specific request not only that buggery should take place but furthermore that S should play the active and the appellant the passive part. That incident the appellant denied.



The next occasion was when the appellant said to S that he would tell the seniors not to go to the sitting room that night and that S should come by himself. That was denied by the appellant. Then came the occasion when according to S the actual act of buggery took place. Sometime after 10.45 p.m. the appellant had asked S to go to him and had threatened him with expulsion "if tonight you don't do it on me." S later went to the appellant and in his evidence he described in some detail what took place. The appellant wholly denied the occasion.



There was evidence given by a police officer and also by the appellant as to what was said during an interview between them in January 1973. This was material in regard to corroboration of S's evidence.



H gave evidence of two incidents. The first of these began when one night the appellant, at some time between midnight and 2.00 a.m., woke H who was asleep in a dormitory and told him to get dressed. Together they then went by taxi to a club called the Taboo Disco Club. After some drinks there they returned to the school and then 25

sat drinking and talking in the sitting room. Then, while seated close together, the appellant according to H started to touch his (H's) private parts through his trousers; he asked H to sleep with him and made the specific suggestion that H should play the active part and he (the appellant) the passive part. 

As to all this the appellant's evidence was that he had taken H to the club but that that was in the hope of confronting H with a woman with whom he understood H had been associating and who was regarded by the appellant as being undesirable as an associate. The appellant denied that on their return to the school he had made any indecent suggestion or invitation. The second incident spoken to by H was that which was the basis of count 2. It occurred on or about January 14, 1973. After an earlier discussion as to whether H should not return to the school after the Christmas holidays as a boarder rather than as a day boy H said that while they were in the sitting room the appellant again asked H to sleep with him and then touched his (H's) private parts. The evidence of the appellant was that after the Christmas holidays H had not returned to the school as a boarder but on his own initiative had become a day boy and was associating with an undesirable woman. The January interview related to that matter but the appellant said that there was no



Issue: Whether, on a charge involving an allegation of homosexual conduct there is evidence that the accused person is a man whose homosexual proclivities take a particular form, that evidence is thereby admissible although it tends to show that the accused has been guilty of criminal acts other than those charged.



Held 5: 3 appeal should be dismissed-evidence would be admissible



Lord Morris: There may be cases where a judge, Makin v. Attorney General in mind, considers that the interests of justice (of which the interests of fairness form so fundamental a component) make it proper that he should permit a jury when considering the evidence on a charge concerning one fact or set of facts also to consider the evidence concerning another fact or set of facts if between the two there is such a close or striking similarity or such an underlying unity that probative force could fairly be yielded.



Held that the judge acted correctly in saying that the kind of criminal behaviour alleged against the appellant in the two counts was in each case of a particular, unusual kind: that 26

it was not merely a straight case of a schoolmaster taking advantage of a pupil and indecently assaulting a pupil but that there was the "unusual feature" that a grown man attempted to get an adolescent boy to take the male part to the master's passive part in acts of buggery and in pointing out that it was unlikely that two people would tell the same untruth 

Another feature of rather striking similarity lay in the evidence concerning the nocturnal dormitory visits of the appellant. The waking up of S during the night and all that was said during the "five minute incident" could legitimately be compared with the early morning waking up of H and of all that followed. The matter could perhaps also have been considered on a wider basis. The appellant stated that the S "five minute incident" only came about because he (the appellant) "was doing the rounds in the dormitory." The question is raised whether the visits at night merely marked the innocent activity of a zealous schoolmaster whose association with those in his charge and under his care made him solicitous for their welfare or whether the evidence negatived any such innocent explanation.



Lord Wilberforce: In each case it is necessary to estimate (i) whether, and if so how strongly, the evidence as to other facts tends to support, i.e., to make more credible, the evidence given as to the fact in question, (ii) whether such evidence, if given, is likely to be prejudicial to the accused. Both these elements involve questions of degree (KA: probative and prejudicial value)



The judge is to allow the evidence only if the answer to the first question is clearly positive, and, on the assumption, which is likely, that the second question must be similarly answered, that on a combination of the two the interests of justice clearly require that the evidence be admitted-The general rule is that such evidence cannot be allowed, it requires exceptional circumstances to justify the admission.



Evidence that an offence of a sexual character was committed by A against B cannot be supported by evidence that an offence of a sexual character was committed by A against C, or against C, D and E. The question certified suggests that the contrary may be true if the offences take a "particular form." All sexual activity has some form or other and the varieties are not unlimited: how particular must it be for a special rule to apply? The general salutary rule of exclusion must not be eroded through so 27

vague an epithet. The danger of it being so is indeed well shown in the present case for the judge excluded the (similar fact) evidence of one boy because it showed "normal" homosexual acts while admitting the (similar fact) evidence of another boy because the homosexual acts assumed a different, and, in his view, "abnormal," pattern. 

If the evidence was to be received, then, it must be on some general principle not confined to sexual offences. The basic principle must be that the admission of similar fact evidence) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).



The words "a cause common to the witnesses" include not only the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed.



The present case is right on the borderline. There were only two relevant witnesses, S and H. The striking similarity as presented to the jury was and was only the active character of the sexual performance to which the accused was said to have invited the complainants. In relation to the incident which was the subject of the second charge, the language used by the boy was not specific: the "similarity" was derived from an earlier incident in connection with which the boy used a verb connoting an active role. This one striking element, common to two boys only, is, if sufficient, only just sufficient.



Concurred with majority-but observed that the case may set the standard for ‘striking similarity’ too low.

28

DPP v. P-1991 House of Lords 5 judges 

Appeal from decision of Court of Appeal- Defendant was convicted on two counts of rape and eight counts of incest, the victims being his daughters, B. and S. The CoA held that the evidence of B was inadmissible on the counts relating to S., and vice versa, and accordingly, there should have been an order for separate trials.



Issues: 1. Where a father or stepfather is charged with sexually abusing a young daughter of the family, is evidence that he also similarly abused other young children of the family admissible (assuming there to be no collusion) in support of such charge in the absence of any other 'striking similarities?' 2. Where a defendant is charged with sexual offences against more than one child or young person, is it necessary in the absence of 'striking similarities' for the charges to be tried separately?'



It is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is in issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required



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. (Probative value >prejudicial value) Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed-but it should not be limited to striking similarity-Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree



In the present case the evidence of both girls describes a prolonged course of conduct in relation to each of them. In relation to each of them force was used. There was a general domination of the girls with threats against them unless they observed silence and a domination of the wife which inhibited her intervention. The defendant seemed to have an obsession for keeping the girls to himself, for himself. The younger took on the role of the elder daughter when the elder daughter left home. There was also evidence that the defendant was involved in regard to payment for the abortions in respect of both girls. 29

These circumstances taken together gave strong probative force to the evidence of each of the girls in relation to the incidents involving the other, and was certainly sufficient to make it just to admit that evidence, notwithstanding its prejudicial effect 

The judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution–however relationships in time and circumstances other than these may well be important relationships in this connection.



Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.



Answer to First issue-The evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect. Answer to the second question is no, provided there is a relationship between the offences of this kind.

R v. George Joseph Smith-Ct of Crim Appeal, 1915 

The appellant was charged with the murder of Bessie Munday; evidence was admitted to show that he murdered two other women at a later date. The first question raised is that the judge was wrong in admitting evidence of the deaths on the ground that it tended to show that the act charged had been committed, that is, had been designed

30



Held: If there is primâ facie evidence that the appellant committed the act chargedwhich there was in this case-evidence of similar acts became admissible.



What was prima facie evidence in this case?- The appellant, although married to someone else, went through a form of marriage with Munday. He appropriated all her money and deserted her. Eighteen months later they met accidentally, and a letter was written to her relations, in which she acquiesced, giving his reasons for leaving her, and having reference to her money, which she was said to have lent to him. A few months later they were at Herne Bay, living in a house alone together. Mutual wills were made, but as Munday had all the money and the appellant none, this was a mere blind. He then got counsel's opinion as to the effect of Munday's settlements; on the 2nd July he learnt that, with the exception of £8 a month paid her by her uncle, he could secure none of her money except by her death.



On the 6th July he selected a bath, although they had got on without one for five or six weeks, and the particular bath chosen was of a most inconvenient size, and was put in a most inconvenient room far from the water supply; the door of the room had no lock. It had never been suggested that Munday suffered from any illness until after the bath was delivered, but then he took Munday to Dr. French, and described her symptoms in such a way as to induce Dr. French to think that she had had an epileptic fit. Evidence was given that it was very unusual for a woman of that age to have a succession of epileptic fits.



On the day before her death Dr. French found Munday in perfect health though rather tired, this being caused by the very hot weather. According to the appellant's statement before the coroner, the couple got up together at 7.30 a.m.; it was 8.10 before the doctor was at the house, he having been sent for by the appellant. He found her dead in the bath, with her legs straight out with her soles up against the side of the bath. In no other position could a woman of that height be placed in that bath so that her mouth and nose should be under the water. According to the medical evidence the position of the legs was inconsistent with an epileptic fit.



No communication as to the time of the funeral was made to her relatives, and after it he disappeared, instructing the solicitor and the bank not to let anyone know where he was. He had passed as Williams at Herne Bay, but the money was transferred to him in the 31

name of Smith. On arrest he denied having had anything to do with Herne Bay. There was clearly Primâ facie evidence that he caused Munday's death by drowning; he had a motive for causing her death, and the evidence excludes any reasonable possibility of the death having been accidental. No one else had the motive and the opportunity for causing her death, and it was the appellant who laid the foundation for the doctor's suggestion of epilepsy. 

The second point taken is that even assuming that evidence of the death of the other two women was admissible, the prosecution ought only to have been allowed to prove that the women were found dead in their baths-Held: to cut short the evidence there would have been of no assistance to the case. The judge was right in admitting evidence of the facts surrounding the deaths of the two women.



The judge in the course of his summing up put forward a new theory which had not been discussed by counsel, and which was mentioned for the first time in the summing up. He said it was possible, according to a demonstration given when summing up, that the body had been lifted into the bath in a manner which he illustrated. It is contended no such suggestion had been made in the course of the proceedings. He also made suggestions as to the headaches before the deaths which have been criticised. During the case theories had been put forward by the prosecution (that the legs of the deceased had been lifted up and kept up so as to submerge the head), one as the main theory, and a possible second, how the death had occurred, and the defence had also put forward a theory.



Held: The judge stated the principle correctly; he said, “It is not necessary for you to be clear in your mind as to the exact mode, if you are satisfied that the prisoner killed the woman.” The woman's death was caused by drowning, the exact method was not proved, but that was not necessary as long as the jury were satisfied that the death by drowning was caused by the prisoner.

Laxmandas Chaganlal Bhatia v. State, Bom HC, 1966 

Prosecution against appellants and some others for offences of conspiracy under Section 120-B of the Indian Penal Code for importing and bringing into India gold in contravention of the Sea Customs Act 1878.

32



Prosecution-Evidence regarding conspiracy is that accused No. 6 after he agreed to finance in some measure the bringing of gold into India and helped Yusuf Merchant in its being received, he applied for registration of telegraphic address and acquired it on November 19, 1956, the address being 'Subhat'. On some occasions, he instructed accused No. 14 to make trips to recover gold from Delhi.



Argued that the evidence of part taken by both accused Nos. 6 and 14 as helpers of Hamad Sultan along with Yusuf Merchant prior to the period of conspiracy is necessary to be introduced to show that neither the acquisition of telegraphic address 'Subhat' nor the trips to Delhi were mere accident. In other words, this evidence is relevant to show the intention of these accused both in the obtaining of the telegraphic address and in the trips one or both made.



R. Jethmalani contended that S. 15 applies only to those cases where mens rea is a constituent of the offence and the transactions to be proved must be transactions exactly similar to those in question. He also contended that the acts sought to be proved must be part of the same transaction-S. 54 which makes the character of an accused person irrelevant in a criminal proceeding controls all the other sections in the Evidence Act, and therefore, evidence of anything offered by the prosecution, if it tends to show the bad character of the accused, cannot be admitted at all.



Court: No doubt, the illustrations suggest that the question of intention must arise in reference to the act with which an accused is charged and not any act which may be a relevant fact. However prima facie, S. 54 cannot be given overriding effect. If such a strained meaning is given to the language of Section 54, it would prevent very often relevant evidence being introduced and hamper the course of justice. True that the use of such evidence of prior transactions which is given by the prosecution must be confined within its proper and legitimate limits only. The Court cannot, merely because there was evidence of similar actions on the part of the accused some time previous, infer that the offence under inquiry must also necessarily have been committed by the accused, and to that extent one may restrict the operation of Section 11-Facts which are of merely probative force cannot be offered in evidence under the sectiontherefore evidence of previous trips would not be relevant under s. 11.

33



In response to Jethmalani’s argument about mens rea-cited previous case of SC-evidence in rebuttal of a very likely and probable defence on the question of intention can be led by the prosecution as part of its case. To anticipate a likely defence in such a case and to give evidence in rebuttal of such defence is in substance nothing more than the letting in of evidence by the prosecution of the requisite criminal intention beyond reasonable doubt.



If the evidence is relevant under S. 14 or Section 15, merely because it might show previous misconduct of the accused, it is not inadmissible because of Section 54-held evidence was admissible to show intention in carrying out the trips.



KA: another way of reaching same conclusion-s. 54 prohibits evidence of general propensity-because they did that, more likely they did this not whether something was intentional/accidental

Unit V: Rule against Hearsay Res Gestae R v. Bedingfield-Crown Court 1879 

The prisoner apparently had relations with the deceased woman, and had conceived a violent resentment against her on account of her refusing him something he very much desired, and also as appearing to wish to put an end to these relations; he had uttered violent threats against her, and had distinctly threatened to kill her by cutting her throatThe night before she died, she asked a policeman to keep an eye on her house because she had apprehensions about the prisoner and near 10pm he heard the voice of a man in great anger.



Early next morning, earlier than he had ever been there before, he came to her house, and they were together in a room some time. He went out, and she was found by one of the assistants lying senseless on the floor, her head resting on a footstool. He went to a spirit shop and bought some spirits, which he took to the house, and went again into the room where she was, both the assistants being at that time in the yard. In a minute or two the deceased came suddenly out of the house towards the women with her throat cut,

34

and on meeting one of them she said something, pointing backwards to the house. In a few minutes she was dead. 

When the witness was called-one of the assistants who heard the statement-she was first asked as to the circumstances, and stated that "the deceased came out of the house bleeding very much at the throat, and seeming very much frightened," and then said something, and died in ten minutes. The prosecution proposed to state what she said. It was objected on the part of the prisoner that it was not admissible.



Whether it could be admissible (b) having been made in the absence of the prisoner, as part of the res gestae? Held: It was not admissible, for it was not part of anything done, or something said while something was being done, but something said after something done. It was not as if, while being in the room, and while the act was being done, she had said something which was heard.



Anything, he said, 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, and after the act was completed.



It was submitted, on the part of the prosecution, that the statement was admissible as a dying declaration, the case to be proved being that the woman's throat was cut completely and the artery severed, so that she was dying, and was actually dead in a few minutes; but COCKBURN, C.J. said the statement was not admissible as a dying declaration, because it did not appear that the woman was aware that she was dying.



Though she might have known it if she had had time for reflection, here that was not so, for at the time she made the statement she had no time to consider and reflect that she was dying; there is no evidence to show that she knew it, and this could not be presumed. There is nothing to show that she was under the sense of impending death, so the statement is not admissible as a dying declaration-The surgeon who testified was not asked whether from the nature of the wound and the sense of approaching death the woman must not have felt and known she was dying.



The defence of the prisoner was that the woman had first cut his throat and then her own with a razor she had borrowed from him professedly for another purpose-However the doubt of the prisoner's guilt was indeed removed by the fact that the deceased ran 35

out to make complaint or outcry, and the fact that the razor was found under his body, and under his hand-almost in his hand-for the marks of his fingers were upon it, and it was evident that he had held it in his hand, and that his hand had only just relaxed its grasp with the weakness caused by loss of blood. 

Cockburn, C.J., in summing up the case to the jury, pressed - both these facts upon their attention, especially the first, pointing out that it was the deceased woman, not the prisoner, who ran out, as though to make outcry or complaint

R v. Andrews House of Lords 1987 

Issue: Where the victim of an attack tells a witness what has happened and does that in circumstances which satisfy the trial judge that there was no opportunity for concoction, is evidence of what the victim said admissible as to the truth of the facts recited as an exception



On 13 September 1983 Alexander Morrow was attacked and stabbed with two different knives and robbed-died 2 months later-Both O'Neill and the appellant, Andrews, were charged with murder. O'Neill pleaded guilty to manslaughter-The appellant pleaded not guilty and O'Neill was the prosecution's main witness at the appellant's trial-testified as to the details of the murder.



Two constables arrived-Worboys and Hanlon-The deceased replied that he had been attacked by two men. He gave the names of his attackers, as being Peter O'Neill from flat 5, Rouple House, and the other, as a man he knew as Donald. He said he had gone to the door of his flat, opened the door and was attacked by these two men. P.C. Worboys noticed that P.C. Hanlon, who was making a note of this statement, had written down the name "Donavon." P.C. Worboys was convinced that the name was Donald and he told P.C. Hanlon that he was wrong. P.C. Hanlon was not as close to the deceased as P.C. Worboys.



In his evidence P.C. Worboys confirmed that the deceased had said that he had been attacked by two persons, one of whom he knew as O'Neill and a person, whom P.C. Hanlon thought the deceased had referred to as "Donavon." P.C. Hanlon said that he heard "Don" quite clearly but as he pronounced the rest of the word his voice "mellowed

36

and he got quieter." He said he did not notice that the deceased had any accent. The evidence was that the deceased spoke with a Scottish accent. 

Prosecution sought to introduce the statement of the deceased-Court observed that the evidence merely of the fact that such an assertion was made would not have related to any issue in the trial and therefore would not have been admissible. Had, for example, the deceased's state of mind been in issue and had his exclamation been relevant to his state of mind, then evidence of the fact that such an assertion was made, would not have been hearsay evidence since it would have been tendered without reference to the truth of anything alleged in the assertion. Such evidence is often classified as "original" evidence.



Prosecution argued it was res gestae-could not submit that the statement was a "dying declaration" since there was no evidence to suggest that at the time when the deceased made the statement (two months before his ultimate death), he was aware that he had been mortally injured.



Referred to Ratten v. Queen(case facts in Blastland)-Lord Wilberforce at pg 391-"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 the disadvantage of the accused…."The way in which the statement came to be made (in a call for the police) and the tone of voice used, showed intrinsically that the statement was being forced from the deceased by an overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the proved proximity of the deceased to the accused with his gun."



Reg. v. Boyle (unreported) involved the theft of a grandfather clock from an old lady to whose home the appellant had obtained access by a false representation. When he took away the clock she came out of the house with a piece of paper in her hand and when asked by a neighbour, "what is happening?" she said "I am coming for his address." This statement was admitted to support the victim's account that the removal of the clock was against her will and to negative the defence that it was being taken away by the defendant with her consent, to have it repaired. A clear issue in the case was the state of mind of the victim in relation to the removal of her clock. Her statement in the circumstances, as the 37

car drove off, was evidence from which the jury could infer that she was not consenting to the clock being taken away 

How should the trial judge admit res gestae evidence?- 1. The primary question which the judge must ask himself is-can the possibility of concoction or distortion be disregarded?



2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.



3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.



4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.



5. There may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be 38

where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error. 

HL upheld trial court’s judgement-on the evidence-it was clear that the deceased only sustained the injuries a few minutes before the police arrived and subsequently, the ambulance took him to hospital. Even if the period were longer than a few minutes, there was no possibility in the circumstances of any concoction or fabrication of identification. The injuries which the deceased sustained were of such a nature that it would drive out of his mind any possibility of him being activated by malice and as far as the identification was concerned, he was right over Mr. O'Neill who was a former co-defendant with the accused."



Res gestae applies to civil proceedings as well, even where the maker of the statement is called as a witness-however in criminal proceedings, this would deprive the defence of the opportunity of cross examination and should not be used where the maker is available.

Gentela Vijayardhan Rao v. State of A.P., 1996 SC 

Bus set on fire-statements of witnesses recorded as dying declarations in the hospital but they did not die so could not be introduced under Sec. 32



15. The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. 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 part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast 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.



R v. Teper-It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it 39

that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement. 

16. Here, there was some appreciable interval between the acts of incendiarism indulged in by the miscreants and the judicial magistrate recording statements of the victims. That interval, therefore, blocks the statement from acquiring legitimacy under Section 6 of the Evidence Act.



17. Though the statement given to a magistrate by someone under expectation of death ceases to have evidentiary value under Section 32 of the Evidence Act if the maker did not die, such a statement can be used to corroborate this testimony in court under Section 157 of the Evidence Act, being a statement made by the witness "before any authority

legally

competent

to

investigate"-not

a

substantive

but

corroborative/contradictory piece of evidence. Dying Declarations Queen Empress v. Abdullah Allahabad HC 1885 

Issue: When a witness is called who deposes to having put certain questions to a person, the cause of whose death is the subject-matter of the trial, which questions have been responded to by certain signs, can such questions and signs, taken together, be properly regarded as "verbal statements" under Section 32 of the Evidence Act, or are they admissible under any other sections of the same Act?



William Petheram CJ: It is contended that the questions which were put to the deceased, and the responses which she made to those questions, are "facts" within the purview of Sections 3 and 9. This is not true-A fact must be proved to be relevant before another fact can be proved to explain its meaning; and since, without words being used, the signs could not be proved to be relevant, the words themselves are also not relevant.



The next question is, whether mere signs can be regarded as "conduct" within the meaning of Section 8. Upon this point it must be remembered that the 2nd paragraph of that section makes relevant the conduct of any person who is a 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." The conduct of a party interested in any proceeding at the time when the facts occurred out of which the proceeding arises, is extremely relevant, 40

and therefore any conduct on the part of the deceased in this case, which had any bearing on the circumstances in which she met her death, would be relevant. But the state of things is this. She, being in a dying state at the hospital, made, in the presence of certain persons, the signs which have been referred to. It is clear that, taking these signs alone, there is nothing to show that they are relevant, because there is nothing which connects them with the cause of death. 

Then it was argued that since conduct is relevant under certain circumstances, you may with reference to Explanation 2 of Section 8, prove any statements made to the person whose conduct is in question: the question here in issue is--Did Abdullah kill the deceased by cutting her throat'? The only conduct which is alleged on the part of the deceased is, that she moved her hand in answer to questions put to her by some of the persons at the hospital. There is nothing to show that her conduct in lifting her hand either influenced or was influenced by the fact in issue,--i.e., the cutting of her throat. Then Explanation 2 is brought in; but before you can let in the words of a third person, you must show that the conduct which they are alleged to affect is relevant. And in the present case it is clear that until you let in the words, the conduct is not relevant, and therefore the words cannot be let in because the condition precedent to their admissibility has not been satisfied, and that not having been done, their whole basis fails.



4. Explanation 1 of Section 8 points to a case in which a person whose conduct is in dispute mixes up together actions and statements; and in such a case those actions and statements may be proved as a whole. For instance, a person is seen running down a street in a wounded condition, and calling out the name of his assailant, and the circumstances under which the injuries were inflicted. Here what the injured person says and what he does may be taken together and proved as a whole. But the case would be very different if some passer-by stopped him and suggested some name, or asked some question regarding the transaction. If a person were found making such statements without any question first being asked, then his statements might be regarded as a part of his conduct. But where the statement is made merely in response to some question or suggestion, it shows a state of things introduced, not by

41

the fact in issue, but by the interposition of something else-hence Expln 1 would not apply 

"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. 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 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?-Yes she did-It is plain that evidence of this description requires strong safeguards before it can properly be accepted. But since the deceased might undoubtedly have adopted the words of the Deputy Magistrate by express words, such as "Yes," though even in that case the words in which the statement was actually made would not have been her own, she might equally adopt them by signs also.



Douglas Straight J: While statements by the witnesses as to their impressions of what those signs meant are judgment, inadmissible, and should be eliminated; but, assuming that the questions put to the deceased were responded to by her in such a manner as to leave no doubt in the mind of the Court as to her meaning, then it is not straining the construction to hold that the circumstances are covered by Section 32. 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); cannot adopt a purely technical distinction as to say that while questions adopted or negatived by a mere "Yes" or "No" constitute a "verbal statement," within Section 32, they become inadmissible when assent or dissent is expressed by a nod or a shake of the head. 42



Syed Mehmood J-minority opinion-Sec. 32 will not apply "verbal" cannot mean more than "by means of a word or words."-Nodding the head or waving the hand is not a word.



Referred to Illustration (f) of Section 8: 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. If the word "conduct," as used in Section 8, meant only conduct directly resulting from the circumstances in which the crime was committed and without any intervening cause, this Illustration was at variance with Sec.8. For although A's conduct is undoubtedly "influenced" by the fact in issue, it is only influenced through the intervention of a third person C.



Hence "conduct" does not mean only such conduct as is directly and immediately influenced by a fact in issue or relevant fact. The present case is the same in principle as that given in the Illustration. The deceased would not have acted as she did if it had not been for the action of those who questioned her. Nor is there any difference in principle between the act of A in running away when told that the police were coming, and the act of the deceased in moving her hand in answer to the questions . Both equally seem be me to be cases of conduct within the meaning of Section 8.



Whether the questions put her were admissible, and whether she can be considered to have adopted the statements which they implied? Explanation 2 to Section 8: "when" does not mean "before." The conduct of the person an offence against whom is being investigated is relevant. The question whether it is intelligible or not arises afterwards, and the only way of ascertaining its meaning is to admit what Explanation 2 says may be admitted, namely, statements made to, or in the presence and hearing of, the person and which affect his conduct. This can only be done by taking the questions word for word, so as to explain the meaning of the conduct which they affected.



Could also be made relevant under Sec. 9, in order to allow the explanation of the meaning of signs.

43

State v. Ram Singh 

Nirbhaya rape case-accused allegedly raped the prosecutrix; committed unnatural sex and also damaged her internal organs and genitals by inserting iron rods ; and caused injuries dangerous to her life-robbed the complainant and threw both of them out of a moving bus



The description of the bus was given by the complainant, as having a separate cabin for its driver; red colour seat covers, yellow curtains on its windows and it was a 3 X 2 sitter. The CCTV camera footage, installed at Hotel Delhi Airport, Mahipal Pur, New Delhi, just opposite to the spot where they were found, near the time of incident, was obtained and it showed the bus of similar description passing twice in front of said hotel, firstly at 9:34 PM and secondly at 9:53 PM i.e. close to the time when one Raj Kumar first noticed the victims, lying naked by the side of Mahipal Pur Flyover. The complainant identified the bus in the footage



Bus was found parked near RK Puram-Ram Singh, (deceased), was found sitting in it and he was interrogated and arrested. He led to recovery of his bloodstained clothes, bloodstained iron rods and the documents concerning the bus and also disclosed that he threw the SIM card of complainant's mobile in the morning of 17/12/2012 in the area of Noida, which was later seized from one Jishan, who found it in Sector-37, Noida, UP. He also produced a debit card Ex.P-74/3 of Indian Bank, in the name of Asha Devi, the mother of the prosecutrix, seized vide memo Ex.PW74/H.The bus was inspected by CFSL Team and exhibits were seized. Accused Ram Singh, since deceased, refused to participate in TIP. He led to the arrest of other accused person namely accused Vinay Sharma and accused Pawan @ Kalu.



Accused Vinay Sharma got recovered his bloodstained clothes, hush puppy leather shoes of the complainant, the mobile phone make Nokia Model 3110 of Black grey colour belonging to the prosecutrix. Similarly accused Pawan Kumar got recovered from his jhuggi his bloodstained clothes, shoes and also a wrist watch make Sonata and Rs. 1000/- robbed from the complainant-Both of them refused to participate in TIP.



On 18-12-2012, accused Mukesh was apprehended from his native village Karoli, Rajasthan and a Samsung Galaxy Trend DUOS Blue Black mobile belonging to the complainant was recovered from him. He was brought to Delhi and was arrested after 44

interrogation. Later on 23.12.12, he got prepared the route chart of the route where he drove the bus at the time of incident. Besides that, he got recovered his bloodstained clothes from the garage of his brother at Anupam Apartment, Saidulajab, Saket, New Delhi. He was identified by the complainant in the Test Identification Parade 

On 21.12.2012, the juvenile was apprehended from ISBT and an ATM debit card of the prosecutrix and a mobile phone, besides his SIM were seized. On 21.11.2012, accused Akshay was also arrested from Aurangabad, Bihar. He led to his brother's house in village, Naharpur, Gurgaon, Haryana and got recovered his bloodstained clothes. He was identified by the complainant in the TIP proceedings. He also got recovered a ring belonging to the complainant, Nokia phone with a Vodafone sim and two metro cards.



The prosecutrix on 16.12.12 gave a brief history of the incident to the doctor in her MLC. On 21.12.12, on being declared fit, she gave her statement under section 164 Cr.P.C to the SDM. Even on 25.12.12, her statement under section 164 Cr.P.C was recorded by Shri Pawan Kumar, Ld. MM by putting her multiple choice questions and through gestures. On 29.12.12, she expired due to sepsis with multiple organ failure with multiple injuries.



After examination of the witnesses, the statement under section 313 Cr.P.C of all the accused except accused Ram Singh, since deceased, was recorded wherein they all denied their involvement and even their presence at the time of the incident, except of accused Mukesh who admitted of being driving the bus Ex.P1 at the relevant time



PW1 (The complainant) identified accused Mukesh to be the driver of the bus and accused Ram Singh and accused Akshay to be the person sitting in the driver’s cabin and accused Pawan Kumar was sitting in front of him in two seat's row of the bus and whereas accused Vinay was sitting on three seat's row, just behind the driver’s seat. The conductor was the JCL.



PW72 Shri Raj Kumar, an employee of EGIS Infra Management India (P) Limited, K.M 24, Toll Plaza, Dundahera, Gurgaon, with Shri Surender Singh was on patroling duty in the said area from 9:30 PM to 7 AM. At about 10:02 PM he heard the voice of “bachao bachao” from the left side of the road near a milestone, opposite to Hotel 37. He saw the complainant and the prosecutrix sitting naked, having blood all around. Immediately 45

thereafter, at about 10:04 PM he informed PW70 Ram Pal Singh, sitting in the control room, requesting him to call PCR. PW70 Ram Phal of EGIS Infra Management India (P) Limited, then telephoned at no. 100 and even asked his other patrolling staff to reach the spot. 

PW 73-head constable Ram Chander Singh received information about the incident and reached the spot-He dispersed the crowd and brought a bottle of water and a bed sheet and tore it in two parts and gave it to both the victims to cover themselves. At about 11 PM, he brought the victim, to Safdarjung Hospital, New Delhi.



Recording of dying declaration under S. 164



Dr. P.K Verma examined the prosecutrix and found her to be fit, conscious, oriented and meaningfully communicative for making the statement-PW27 Smt. Usha Chaturvedi, SDM, Vivek Vihar, Delhi, before recording of statement satisfied herself that the prosecutrix was fit and then she recorded statement Ex.PW27/A of the prosecutrix bearing the signatures of the prosecutrix on all pages. The prosecutrix even wrote the date and time.



In her statement Ex.PW27/A, the prosecutrix narrated the entire incident, specifying the role of each of accused person ; the gang rape / unnatural offence committed upon her, the injuries suffered by her and her friend in the incident including thrusting of iron rods and hands in her private parts ; the description of the bus and ultimately throwing them naked off the moving bus at the footfall of Mahipal Pur Flyover.



The prosecutrix was having endotracheal tube in place i.e in larynx and trachea and was on ventilator and she could not speak. In the opinion of PW52 Dr. P.K Verma the prosecutrix was though unable to speak, but per PW28 Dr. Rajesh Rastogi, at 12:40 PM,

the

prosecutrix

was

conscious,

oriented,

co-operative,

comfortable,

meaningfully communicative to make a statement through non-verbal means-Even in her statement Ex.PW30/D-1 the prosecutrix described the entire incident, through multiple choice questions and her gestures, as also the role of each of the accused person. Prosecutrix even wrote the names of accused person on a sheet Ex.PW30/E. The Ld. MM also gave a correctness certificate Ex.PW30/F of the proceedings. 

All the accused were got medically examined after they were arrested. The MLCs of all the accused person showed various injuries on their person-in the MLC Ex.PW2/A of 46

accused Ram Singh, PW2 Dr. Akhilesh Raj had opined that the injuries mentioned could be possible in a struggle. Similarly the opinion of PW7 Dr. Shashank Pooniya proved that the injuries present on the body of accused Akshay were a week old and were suggestive of struggle, per MLC Ex.PW7/A. Similarly the MLC Ex.PW7/B of accused Pawan show that he suffered injuries on his body which were simple in nature, though claimed to be self inflicted by accused Pawan. The MLC Ex.PW7/C of accused Vinay Sharma proved that he too suffered injuries, simple in nature, 2 to 3 days old, though injury no. 8 was claimed to be self-inflicted by accused himself. 

Defence counsel argued that PW1 had not disclosed the user of iron rods, the description of the bus or the name of the assailants in his complaint or medical examination-Court held: such omissions as not fatal as it is a settled law that FIR is not an encyclopedia of facts. The victim is not precluded from explaining the facts in his subsequent statements. It is not expected of a victim to disclose all the finer aspects of the incident in the FIR or in the brief history given to the doctor; as doctor(s) are more concerned with treatment of the victims-the victim who suffers from an incident, obviously, is in a state of shock and it is only when we moves in his comfort zone-he starts recollecting the events one by one and thus to stop the victim from elaborating the facts to describe the finer details, if left out earlier, would be too much-only material omissions are fatal



Contradictions which do not affect the core of the prosecution case or the omissions which are not put to the Investigating Officer in his evidence are not material and need be ignored-Pudhu Raja v. State, Jaswant Singh v. State of Rajasthan



Akhtar v. State of Uttaranchal-If the prosecution case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. Surender Singh v. State of Haryana This court has opined that: “the testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes.” The incident was aptly described by the PW1, the injured. The injuries on his person show that he was present in the bus at the time of

47

incident. His presence was further confirmed by the DNA analysis-Hence contradictions not material enough to destroy the prosecution case. 

Defence argued w.r.t dying declaration: (a) the dying declarations of the prosecutrix, since deceased, should not be relied upon since she was never in a position to make them and that such dying declarations, even otherwise, are tutored as the prosecutrix did not name any of the accused in her MLC Ex.PW49/A, prepared immediately after the incident and that (b) the dying declaration made by gestures, in itself, is illegal.



Court: The first dying declaration by the prosecutrix was made to PW49 Dr. Rashmi Ahuja recorded in Ex.PW49/A and in MLC Ex.PW49/B. It was at 11:30 PM of 16-122012. The prosecutrix due to her medical condition though broadly described the incident of gang rape / injuries caused to her & her friend but could not give the graphic details of the incident. The statement duly describes the circumstances of the transaction, hence is relevant for the purposes of Section 32(1) of the Indian Evidence Act.



While recording both the dying declarations, the ld. SDM and the Ld. MM had taken precautions to find if the prosecutrix was fit to make such statements. While recording of her first dying declaration Ex.PW27/A, Dr. P.K Verma PW52 had found her conscious, oriented and meaningfully communicative vide his endorsement at point A on the application Ex.PW27/DB. It was only thereafter PW27 Smt Usha Chaturvedi, the ld. SDM recorded the statement Ex.PW27/A of the prosecutrix. The prosecutrix not only signed it but even wrote the date and time in this statement. She narrated the entire incident specifying the role of each accused ; gang rape / unnatural sex committed upon her; the injuries caused in her vagina & rectum by use of iron rods & by inserting of hands by the accused; description of the bus, robbery and lastly throwing of both the victims out of the moving bus Ex.P1 in naked condition

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Yet again on 25-12-2012 on an application though Dr. P.K Verma PW52 opined that prosecutrix was unable to speak as she had an endotracheal tube i.e in larynx and trachea and was on ventilator, but PW28 Dr. Rajesh Rastogi declared her to be conscious, oriented and meaningfully communicative to make statement through non-verbal gestures. Shri Pawan Kumar, PW30, Ld. MM also satisfied himself qua 48

fitness and ability of the prosecutrix to give rational answers by gesture to his multiple choice questions. 

Court: This goes on to prove that the prosecutrix was mentally alert to give her statements on both the occasions. The said statements relate to the circumstances of the transaction which resulted in her death and hence are most relevant in this case as the cause of her death is in question.

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Prosecutrix was in state of shock when brought to the hospital-In her MLC her condition is described as drowsy, responding only to verbal commands, hence not completely alert due to the shock & excessive loss of blood, hence she gave brief account of the incident. In the hospital she was given first aid and then was operated thrice and when she found herself stable she gave statements hence it cannot be said such statements are a result of tutoring. Her dying declarations rather corroborate the deposition of PW1.

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Even otherwise, where there are more than one dying declarations, the court has to follow the law laid down in “Sudhakar v. State of M.P, (2012) 7 SCC 569, the case involving the multiple dying declarations, which are contradictory or are at variance with each other to a large extent, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence.

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Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters.” The Hon'ble Supreme Court in this case rather relied upon the second and third dying declarations to be authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence.

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The declarations Ex. PW27/A and Ex PW30/DA do corroborate the deposition of PW1 qua the incident; the number of the assailants ; the manner in which the incident occurred ; the user of hands and iron rods to cause injuries to her private parts ; throwing the victims out of the moving bus etc. Further the dying declarations also get corroboration from the medical evidence viz., her medical history, treatment paper etc.,

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

Even the brief history recorded in MLC Ex. PW49/B do corroborate the incident and the manner in which the offence was committed. The names of accused at that stage were even not relevant as firstly the assailants were not known to the victims; secondly for the shock she has suffered due to incident and lastly the presence of accused, even otherwise, need to be, established by the prosecution



Whether dying declaration can be made by gestures?-“Meesala Ramakrishna v. State of Andhra Pradesh, (1994) 4 SCC 182, wherein it is observed that : “the dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement ; what is his educational attainment ; what gestures and nods were made, ; what were the questions asked were simple or complicated – and how effective or understandable the nods and gestures were.



“Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465, it was observed that: “the court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court, which on assessment of the circumstances and the evidence and material on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.”

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Therefore declarations can be by signs, gestures or by nods. The only caution the court ought to take is the person recording the dying declaration is able to notice correctly as to what the declarant means by answering by gestures or nods. Here the person who recorded her dying declarations were SDM or the Ld. MM and that they both had satisfied themselves qua her mental alertness and only thereafter had recorded such declarations.

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The factum of spontaneity and immediacy of narration of facts by the victims to PW73 (Constable Ram Chander) would make such narration admissible even under section 6 of the Indian Evidence Act, as res-gestae, per “Gentela Vijayavardhan Rao v. State of A.P”, (1996) 6 SCC 241



Indian law does not require making of statement in anticipation of death

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The contention that the prosecutrix was never administered oath is also wholly irrelevant in view of “Laxman v. State of Maharashtra,” (2002) 6 SCC 710, wherein 50

it was held that: When a dying declaration is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind-A certification by a doctor is a rule of caution-voluntary and truthful nature of the statement can be established otherwise. 

The contention that the prosecutrix was administered Morphine and was not in a condition to make dying declaration dated 21.12.2012 has no force as PW52 Dr. P.K Verma, in his cross examination has deposed that Injection Morphine was not given to the prosecutrix on 21-12-2012 when her dying declaration was recorded and that such injection was given at 6 PM of 20-12-2012-effect would have lasted only for 3 to 4 hours. He denied that the prosecutrix was in drowsiness and had difficulty in breathing at the time of making statement.

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All 3 dying declarations held to be consistent and corroborative of the material aspects of the case-further argued that the Delhi High Court Rules, qua recording of the dying declaration, were violated by the SDM as also by the Ld. MM. The said rules envisage recording of the dying declarations by a Judicial Magistrate, if possible and secondly it is required to be recorded at once; whereas in the present case the first dying declaration was never recorded by the Judicial Magistrate and secondly, it was recorded on 21-122012 much after the prosecutrix was admitted in the hospital.

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Court: the Delhi High Court Rules are to be followed in letter and spirit but one cannot ignore the law laid down in Laxman's case (supra) wherein it has been held by the Hon'ble Supreme Court that there is no person/form prescribed for recoding dying declarations. Thus, if the dying declaration was recorded by the Ld. SDM it would not make it illegal or inadmissible.

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It was only when the prosecutrix was fit, dying declaration was recorded-hence there was no delay-It was also contended that the Ld. MM failed to record the mental fitness of the deceased in the dying declaration.-Court referred to “Goverdhan Raoji Ghyare v. State of Maharashtra,” 1993 Sup (4) Supreme Court Cases 316, wherein it was held that : “it will be wholly unjustified to hold that simply because the Magistrate did not put a direct question to the deceased as to whether she was in a fit state of mind to make the statement, the dying declaration was required to be discarded.”



The factual matrix of this case reveal that the doctors had certified the mental alertness of the prosecutrix on both the occasions and rather they were present with the prosecutrix during the recording of dying declarations and thus it cannot be said that the prosecutrix was not in a fit state of mind at the time of recording of her dying declarations



Corroboration with other facts- The prosecutrix and the complainant, in their statements have spoken about incident being inside the moving bus; a particular route it followed; use of iron rods; the dumping spot where victims were finally thrown by the accused person and lastly the presence of accused in the bus Ex.P1 at the relevant time. These aspects one-by-one can be correlated with the deposition of PW1 and with the dying declarations Ex.PW27/A and ExPW30/D1 to find the truthfulness of the claim of victims.

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KA: TIP on 23rd-how did she identify the accused on the 21st-defense did not raise this point-prosecution could have shown it is an omission not a contradiction-she knew the names because they were talking amongst themselves-was in trauma so missed names in the 1st DD and got time to recollect later.

Pakalanarayanswami v. King Emperor-1939 Privy Council 

Accused convicted of murder-During 1936 the accused's wife borrowed from the deceased man at various times and in relatively small sums an amount of Rs. 3000 at interest at the rate of 18 per cent, per annum. About 50 letters and notes proving these transactions signed by the accused's wife were found in the deceased man's house at Pithapur after his death.

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

On Saturday 20th March 1937, the deceased man received a letter the contents of which were not accurately proved but it was reasonably clear that it invited him to come that day or next day to Berhampur. It was unsigned. The widow said that on that day her husband showed her a letter and said that he was going to Berhampur as the appellant's wife had written to him and told him to go and receive payment of his dues. This evidence was objected to: it was admitted as falling under the provisions of Section 32(i), Evidence Act.

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The deceased left his house on Sunday 21st March in time to catch the train for Berhampur. On Tuesday 23rd March his body was found in a steel trunk in the train at Puri

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Police suspicion was not directed against the accused and his household until the police visited the house, examined the inhabitants and obtained a statement from the accused the admissibility of which is one of the principal grounds of the appeal. The alleged statement was that the deceased had come to his house on the evening of 21st March, slept in one of the outhouse rooms for the night and left on the evening of the 22nd by the passenger train.

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The prosecution also adduced the evidence of two employees in a shop at Berhampur where trunks were made and sold who gave evidence that a trunk was sold to the accused on the 22nd of March-The witnesses identified the trunk in which the body was found as being the trunk of their manufacture which was sold in the circumstances stated on the 22nd

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Whether the statement of the widow of the deceased was admissible as dying declaration?-Argued that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction-general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased 53

that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. 

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. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that the cause of (the declarant's) death comes into question.

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In the present case the cause of the deceased's death comes into-question. The transaction is one in which the deceased was murdered on 21st March or 22nd March: and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.

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Whether statement of the accused before arrest was protected by Sec. 162 of the CrPC?- Meaning of the word ‘any person’-whether includes the accused-held the statement is not admissible even when made by a person who thereafter becomes the accused.

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Observed-No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e. g. an admission that the accused is the owner of and was in

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recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. 

Confession cannot be a statement by the accused “suggesting the inference” that he committed the crime

Unit VI: Types of Evidence State of U.P. v. Rajesh Talwar 

Case is based on circumstantial evidence-Dr. Rajesh Talwar, Dr. Nupur Talwar, Ms. Aarushi and Hemraj were last seen in the house by Umesh Sharma, the driver of Dr. Rajesh Talwar and in the morning of 16.05.2008 Ms. Aarushi was found dead in her bedroom, which was adjacent to the bedroom of accused persons and in between these bedrooms there was a wooden partition wall. The dead body of the domestic servant Hemraj was found on the terrace of the house on 17.0.2008

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On 16.05.2008 at about 06:00 A.M. housemaid Smt. Bharti Mandal arrived as usual at Flat No. L-32, Jalvayu Vihar and rang the call-bell of the house but no response came from inside. Thereafter, she put her hand on the outer grill/mesh door but it did not open. Subsequent to that, she again pressed the call-bell and then Dr. Nupur Talwar after opening the wooden door came near the grill door/mesh door situated in the passage-and enquired about the whereabouts of Hemraj to which she replied that she had no idea of him and then Dr. Nupur Talwar told her that Hemraj might have gone to fetch milk from Mother-Dairy after locking the middle grill/mesh door from outside and she could wait until he returned.

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Thereupon, Smt. Bharti Mandal asked Dr. Nupur Talwar to give her keys so that she may come inside the house after unlocking the same and then Dr. Nupur Talwar told her to go to the ground level and she would be throwing keys to her from the balcony. Meanwhile, Dr. Nupur Talwar opened the latch of middle grill/mesh door and told her from balcony that the door is not locked and only latched from outside and then Smt. Bharti Mandal came back and opened the latch of the door and came inside the house and then thereafter, Dr. Nupur Talwar told Smt. Bharti “Dekho Hemraj Kya karke gaya hai” (Look here, what has been done by Hemraj). (KA: Relevant as 55

subsequent conduct under Sec. 8) When maid Smt. Bharti went in Aarushi’s room she saw that dead body of Aarushi was lying on the bed and covered with a white bed sheet and her throat was slit. Thereafter, she went down the stairs and informed the inmate of the house situated in first floor. 

On inspection of bedroom of Ms. Aarushi it was found that the dead body of the deceased was lying in the bed, her throat was slit by a sharp-edged weapon, her head was on pillow and bed sheet and mattress were soaked with blood, her T-Shirt (Upper garment) was above the waist, trouser was just below her waist and twine of trouser untied but the articles of the room were found properly arranged and placed in order. The blood splatters were there on the wall behind the head-rest of Aarushi's bed.

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Constable Chunni Lal Gautam took the photographs of room of Aarushi and lobby. He also took finger prints on bottle of whisky, plate, glasses, room of Hemraj, two bottle of liquor, one bottle of sprite and main door.

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According to post mortem (conducted at 12 noon), Aarushi had died about 12-18 hours before due to hypovolemia-The room of Hemraj was searched and a bottle containing Sula wine, one empty bottle of Kingfisher beer, a plastic bottle of green colour were recovered and taken into possession. One Ballentine Scotch bottle containing some liquor was recovered from the table of the dining hall.



IO tried to go to the roof of the house but the door of the roof was found locked and the lock was having blood stains. He asked Dr. Rajesh Talwar to give the keys of the lock of the door of the terrace to him but Dr. Rajesh Talwar told him that he was not having the keys and he should not waste his time in breaking open the lock, else Hemraj will manage to flee away. On 17.05.2008 Dr. Dinesh Talwar was asked to provide the key of the lock of the door of the terrace but he also told that he had no key with him and therefore, the IO Ram Naunaria broke open the lock of the door of the terrace-Hemraj’s dead body also had blunt wound on the head and his throat had been slit.

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Rajesh Talwar arrested-Investigation transferred to CBI-Krishna, Raj Kumar and Vijay Mandal (Hemraj’s friends) were arrested-Blood stained palm print on wall of the terrace was taken-Brain-mapping, Narco-analysis and Polygraph tests of Krishna were conducted at Forensic Science Laboratory, Bangalore-CBI filed report under Sec. 169 and Dr. 56

Rajesh Talwar was released from custody- Dr. Rajesh Talwar was directed to produce golf sticks. Prior to that Dr. Rajesh Talwar was enquired about one missing golf stick but he had not given satisfactory explanation thereof. The golf sticks were sent to C.F.S.L. for examination. 

When SP asked Dr. Rajesh Talwar that when one golf stick was missing then how he had produced the complete set, then on behalf of Dr. Rajesh Talwar one Ajay Chaddha had sent an e-mail from his e-mail ID [email protected] to Mr. Kaul intimating therein that one golf stick was found in the attic opposite to the room of Aarushi during cleaning of the flat. On examination of golf sticks, it was found that two golf sticks were cleaner than others. Umesh Sharma identified the golf sticks as the ones kept by him in the room of Hemraj. (KA: Bloodstains could have been detected even if they were cleaned-by itself does not establish anything).

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CBI filed closure report-however Magistrate took cognizance of the offence-Talwars charged under s. 302 and s. 210 of IPC-Rajesh Talwar also charged under Sec. 203

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Rajesh Talwar’s 313 statement: On 15.05.2008 at about 9.30 P.M. his driver Umesh Sharma had dropped him in his residence and at that time he, Dr. Nupur Talwar, Baby Aarushi and servant Hemraj were present. Gate No. 2 of Jalvayu Vihar is closed in the night but Gate No. 1 and 3-remain opened. He and his wife had gone to sleep at about 11.30 P.M. and the air conditioner of their room was on. He has no idea as to whether the supply of electricity was disrupted or not that night. At about 6.00 am on 16.05.2008 Smt. Bharti Mandal had rung the call-bell, he was asleep. His wife Dr. Nupur Talwar had not told Smt. Bharti Mandal that the grill door is latched from outside but Nupur Talwar had thrown the keys from the balcony.



When he and his wife had seen the dead body of Aarushi it was covered with a flannel blanket but her upper garment was not above the waist and lower garment not below the waist. They were not in position to talk to anyone as they were lugubrious. He has admitted that the lock of the room of Aarushi was like that of a hotel which if locked from the outside, could be opened from inside without key but could not be opened from outside without key.



The door of the room of Hemraj opening towards main door remained closed. He also admitted that in the dining table one bottle of Ballentine Scotch Whisky was found but 57

there was no tumbler and except in the room of Aarushi, no blood stains were found at the remaining part of the house and even upstairs there were no blood stains. Nobody had asked him to give the key of door of the terrace. He had not filed a report at the police station but it was dictated to him by police personnel. 

It is incorrect to say that their (Talwar’s) clothes were not stained with blood. Presence of white discharge in the vaginal cavity of Aarushi is matter of record but the statement of Dr. Sunil Kumar Dohre that opening of vaginal cavity was prominent is incorrect in as much as this fact has not been mentioned in the postmortem examination report and in the first three statements given to the investigating officer. The evidence that hymen was old, healed and torn is nothing but an act of calumny and character assassination of his daughter.



He had no knowledge as to where the golf sticks and other items lying in the car were kept by the driver Umesh Sharma. About 8-10 days before the occurrence painting of cluster had started and the navvies used to take water from water tank placed on the terrace of his house and then Hemraj had started locking the door of the terrace and the key of that lock remained with him.



It is incorrect to say that S.I. Data Ram Naunaria had enquired of him about the identity of the dead body lying in the terrace rather he had identified the dead body of Hemraj by his hairs in the presence of other police officers-on 15.05.2008 at about 11.00 P.M. his wife had gone to Aarushi’s room to switch on the internet router and he and his wife went to sleep around 11.30-11.35 P.M. and the same activity was seen from 6.00 A.M. to 1.00 P.M. on 16.05.2008, although computers were shut down.

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Claimed that case property was tampered with, hence a complaint was sent by him to Department of Bio-Technology that report has been changed. Since the house was in damaged condition and was to be let out and therefore, it was got washed/painted. It is incorrect to say that partition wall was of wood. It was made of bricks over which wooden paneling was done and same was got painted on the suggestion of painter as its polish had faded away.



Mr. Ajay Chaddha had never sent an e-mail to Mr. Neelabh Kishore, S.P., C.B.I., Dehradun on his behalf. He has no knowledge as to whether main door was bolted from

58

outside or not at the time of incident-no knowledge of whether Aarushi’s room was cleaned as he was away performing funeral rites. 

Nupur Talwar’s S. 313 statement-The three gates of Jalvayu Vihar remain opened round the clock but in the night one of the gates is closed. On 16.05.2008 at about 6.00 A.M. Smt. Bharti Mandal had rung call-bell but she did not go to open the door assuming that Hemraj would open the door. Smt. Bharti Mandal has falsely deposed that she had pushed the grill door but it could not be opened in view of the fact that this statement was not given to the investigating officer. It is correct that she had told Smt. Bharti Mandal that Hemraj may have gone to bring milk. It is also correct that wooden door and mesh door are in the same frame. It is also correct that she had told Smt. Bharti Mandal that door will be opened when Hemraj came back and until then she should wait. Smt. Bharti Mandal had enquired of her as to whether she is having the key of the door and she had replied in the affirmative. Thereupon Smt. Bharti Mandal asked her to give the key so that she may come inside the house after unlocking the door and then she had told Smt. Bharti Mandal to go to ground level and she would be giving key to her. But it is incorrect to say that when Smt. Bharti Mandal reached at ground level, she might have told her from balcony that she should come up and see that door has not been locked and only latched. She had thrown duplicate key on the ground level. She has stated that when Smt. Bharti Mandal came inside the house, she and her husband were weeping.



Lock of the door of Aarushi’s room was like that of hotel which if locked from outside could be opened from inside but could not be opened from outside without key-except in the room of Aarushi blood stains were not found at the remaining part of the house. She has also stated that in the stairs no blood stains were found. Mahesh Kumar Mishra had not asked Dr. Rajesh Talwar to provide key of the door of the terrace. S.I. Bachchu Singh had never tried to talk to her and her husband. Dr. Rajesh Talwar had never gone to the police station to lodge a report and rather complaint was dictated to Dr. Rajesh Talwar by police personnel in the house-their clothes had been stained with blood.



Admitted that in the postmortem examination report white discharge was shown in the vaginal cavity of Aarushi-Dr. Sunil Kumar Dohre falsely deposed that the vaginal cavity was open and vaginal canal was visible, that opening of cavity was prominent 59

in as much as this fact has not been mentioned in the post-mortem examination report and in the first four statements given to the investigating officer-evidence that hymen was old, torn and healed is false. 

Incorrect to say that injuries no. 1 and 3 of Aarushi were caused by golf stick and injuries no. 2 and 4 were caused by sharp-edged surgical weapon as this fact was not stated before the investigating officer in his four-five statements given earlier–No knowledge as to whether the room of Aarushi was cleaned and as at that time she was at the place of cremation to-3-4 months before the occurrence Dr. Rajesh Talwar had sent his Santro Car for servicing but she has no knowledge as to where the golf sticks and other items lying in the car were kept by the driver Umesh Sharma-key of terrace lock was with Hemraj.



On 15.05.2008 at about 11.30 P.M. she and her husband had gone to sleep after switching off laptop. The start and stop activity of internet may be due to myriad reasons-CBI had tampered with case property-partition wall not made of wood but brick over which wooden paneling was done-Since the house was to be given on lease and therefore, it was got painted/washed and there was no instruction for abstaining from painting/washing



Defence: No blood of Hemraj was found on the bed-sheet and pillow of Aarushi and that there is no evidence to suggest that Hemraj was killed in room of Aarushi. No blood, biological fluid, sputum, sperm, body hair, pubic hair, skin/flesh or any biological material belonging to Hemraj was found in Aarushi's room anywhere.



The exact sequence of events in the intervening night of 15/16.05.2008 to 6.00 A.M. in the morning is not clear, the offence has taken place in an enclosed flat, hence, no eyewitnesses are available and the circumstantial evidence collected during the course of investigation have critical and substantial gaps and there is absence of clear-cut motive and non-recovery of any weapon of offence and their link either to the servants or to the parents.



Dr. Urmil Sharma had categorically stated in her evidence that in a girl of about 13-14 years of age, due to hormonal change between two menstrual cycles, there is normal physical and biological discharge which is of white colour and appears at the cervix; if there is more discharge, then the same can flow out of the vaginal canal and through the vaginal opening

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

If the dead body of 13-14 years old girl is examined for the purposes of her vaginal examination, then the vaginal orifice shall not be found open and the vaginal canal cannot be seen; in case of a girl who has a torn hymen (old torn) and is used to sexual intercourse, if after her death and during the course of rigor mortis, her vagina is cleaned, then in that situation, the mouth of the vagina shall not remain open-D.W.-4 Dr. R.K. Sharma who too has deposed that in a case where the rigor mortis has just started or has developed and if someone tries to interfere with the vaginal cavity or genital organs, then in that area, perimortem injuries will be caused



If during the course of postmortem, the postmortem doctor while conducting vaginal examination finds that the vaginal orifice is opened and vaginal cavity is visible, then in this situation 'no abnormality detected' cannot be written in the postmortem examination report



Prosecution counter-argued: Whitish discharge found in the vagina of Ms. Aarushi at the time of postmortem examination of her dead body which conclusively demonstrates that both the accused were indulged in sexual intercourse and the bedsheet below the pelvic region of the deceased Ms. Aarushi was found wet and no biological fluid was detected during the examination of bed-sheet; the string of trouser of Ms. Aarushi was found untied; Tshirt of Ms. Aarushi was just above the waist and trouser was just below the waist as is evident from the perusal of photographs-deceased were killed because they were seen by the accused while having sex



The accused were knowing this fact and hence apprehensive that in the postmortem examination report of Ms. Aarushi the evidence of coitus may surface and therefore, Dr. Sushil Chaudhary of Eye Care Hospital, Sector-26, N.O.I.D.A. made a telephone call to previously acquainted P.W.-7 K.K. Gautam, a retired police officer to see that no observation regarding evidence of sexual intercourse should come in the postmortem examination report-this is proved from call records of Dinesh Talwar, KK Gautam and Sushil Chaudhary



It is established that the murders were committed inside the flat no. L-32 and both the accused were present there in the night and therefore, when prima facie the prosecution has proved the presence of the accused persons inside the flat-nothing to suggest that in the fateful night any intruder(s) came inside the house and committed the 61

murders and hence under section 106 of the Evidence Act it was obligatory on the part of the accused persons to rule out the theory of grave and sudden provocation as also to establish that somebody else other than the accused persons has committed the murders which they could not establish 

Court-on circumstantial evidence-In the case based on circumstantial evidence the circumstances must unerringly lead to one conclusion consistent only with the hypothesis of the guilt of the accused and every incriminating circumstance must be clearly established by reliable and clinching evidence. Circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused



Govinda Reddy v. State of Mysore-1960 SC Constitution Bench-There must be a chain of evidence so complete as not to leave any reasonable doubt for a conclusion consistent with that innocence of the accused and it must be shown that within all human probability the act must have been committed by the accused.

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Five golden principles of standard of proof are required 1) The circumstances from which the conclusion of guilt is to be drawn must be fully established. 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused 3) The circumstances should be of a conclusive nature and tendency; 4) They should exclude every possible hypothesis except the one to be proved; 5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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These five golden principles constitute the ‘Panch Sheel’ of the proof of a case based on circumstantial evidence.



Radhey Lal and others Vs. Emperor AIR 1938 All. 252, it was held by the Hon’ble Justice Allsop that an accused person is required to explain the circumstances which appear against him in the evidence and if he cannot or will not do so, he must take the consequences.

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Sec. 106 of the Evidence Act-Babu v. State of TN, 2013 SC-this would not relieve the prosecution of its burden of proving its case. But, it would apply to the case where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless, the accused by virtue of special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference.

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Trimukh Maruti Kirkan v. State of Maha, 2007 SC-If an offence takes place in the privacy of the house and in such circumstances where the assailants have all the opportunities to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of accused if strict principle of circumstantial evidences is insisted upon by the Courts-When death had occurred in the custody of the accused, he is under an obligation to give a plausible explanation for the cause of death of the deceased in his statement under section 313 Cr.P.C. and mere denial of the prosecution case coupled with absence of any explanation will be inconsistent with the innocence of the accused but consistent with the hypothesis that the accused is a prime accused in the commission of murder.

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Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would, undoubtedly, be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

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Umar Mohmmad Vs. State of Rajasthan 2008 (60) ACC 295 (SC) -non recovery of incriminating material/weapons of offence from the accused cannot be a ground to exonerate them when the eye witnesses examined by the prosecution are found to be trustworthy. Baba Deen @ Babai Vs. State of U.P. 2012 (78) ACC 660 (DB ALL) that 63

non recovery of weapon of offence is not a ground for acquittal of the accused when there is a clinching and reliable evidence 

Does not ‘appear’ that injuries were caused by hammer and knife, golf sticks produced by Rajesh Talwar himself-size of a scalpel similar to a pen, easy to conceal and destroyaccused had sufficient time to destroy incriminating evidence.

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Pg 191 of the judgment-Facts leading to conclusion of guilt against Talwars.

Unit VII: Evidence in Conspiracies Sec. 10 Mirza Akbar v. King Emperor, 1940 PC 

Appellant was charged with conspiracy to murder-tried along with the actual murderer Umar Sher, and with Mt. Mehr Taja who had been the wife of the murdered man, Ali Askar. The murder was committed on 23rd August 1938, in the village of Taus Banda about four miles from Hoti. Umar Sher's main defence was absence of motive. This fact however was relied upon by the prosecution as showing that he was a hired assassin, bribed to commit the murder by the appellant and Mt. Mehr Taja who were coconspirators in that regard. The principal evidence of the conspiracy consisted of three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner.

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The letters showed that they wished to marry each other and get rid of Ali Aksar and find money for hiring an assassin for that purpose-appellant argued against admissibility of statement made by Mehr. Taja in his absence after she was arrested before the examining Magistrate- court relied on Reg. v. Blake (1844) 6 QB 126 -What in that case was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other. No doubt what was contained in it amounted to a statement evidencing what had been done and also the common intent with which at the time it had been done, but it had nothing to do with carrying the conspiracy into effect. 64



Lord Denman-mere statement made by one conspirator to a third party or any act not done in pursuance of the conspiracy is not evidence for or against another conspirator. 11. Patteson J. described it as "a statement made after the conspiracy was effected." 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." The words relied upon in Section 10, Evidence Act, are "in reference to their common intention." These words may have been chosen as having the same significance as the word 'related' used by Williams and Coleridge JJ. Where the evidence is admissible it is in their Lordships' judgment on the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy (per Patteson J. at p. 139). The words written or spoken may be a declaration accompanying an act (Badri Rai) and indicating the quality of the act as being an act in the course of the conspiracy: or the words written or spoken may in themselves be acts done in the course of the conspiracy.

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12. Section 10 is not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. The words "common intention" signify a 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, once reasonable ground has been shown to believe in its existence. Any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party.



Held Mehr Taja’s statement was not admissible-but convicted on the basis of other evidence.

Badri Rai v. State of Bihar 1958 SC 

2nd appellant Ramji accused of melting stolen property-on August 24 the Inspector was on his way from his residential quarters to the police station, when both the appellants accosted him on the road, and Ramji asked him to hush up the case for a valuable 65

consideration. The Inspector told them that he could not talk to them on the road, and that they should come to the police station. 

On August 31, the first appellant, Badri, came to the police station, saw the Inspector in the central room of the thana, and offered to him a packet wrapped in a piece of old newspaper, containing Rs. 500 in currency notes. He told the Inspector, (P. W. 1), that the second appellant, Ramji, had sent the money through him in pursuance of the talk that they had with him in the evening of August 24, as a consideration for hushing up the case that was pending against Ramji. At the time the offer was made, a number of police officers besides a local merchant, (P.W. 7), were present there. The Inspector at once drew up the first information report of the offer of the bribe on his own statement and prepared a seizure-list of the money, thus offered, and at once arrested Badri and put him in the thana lock-up.

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Whether statement made by Badri was admissible against Ramji?- The incident of August 24, when both the appellants approached the inspector with the proposal that he should hush up the case against the second appellant, for which he would be amply rewarded, is clear evidence of the two persons having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. Therefore the court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence under Sec. 10



The statement made by the first appellant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which was then under investigation, is admissible not only against the maker of the statement-the first appellant-but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy. That statement is admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself. The incident of August 24, is evidence that the intention to commit the crime had been entertained by both of them on or before that date.

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It was also suggested that the statement made by the first appellant on August 31, about the purpose of the payment, having been made after the payment, was not admissible in

66

evidence because the object of the conspiracy had been accomplished before the statement in question was made-Mirza Akbar 

Court: The payment was made, and the statement that it was being made with a view to hushing up the case against the second appellant is a part of the same transaction, that is to say, the statement accompanied the act of payment of the bribe. Hence, it cannot be said that the statement was made after the object of the conspiracy had already been accomplished.

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The object of the conspiracy was the hushing up of the criminal case against the second appellant by bribing the public servant who was in charge of the investigation of the case. The object of the conspiracy was yet far from being accomplished when the statement in question was made. The leading case on the subject is that of R. v. Blake (1).

It held that the documents actually used in

effectuating the objects of the conspiracy, were admissible, and that those documents which had been created by one of the conspirators after the object of the conspiracy had been achieved, were not admissible. Section 10 of the Indian Evidence Act is on the same lines. It is manifest that the statement in question in the present case was made by the first appellant in the course of the conspiracy, and accompanied the act of the payment of the money, and is clearly covered by the provisions of s. 10, quoted above. Sec. 30 Sardul Singh Caveeshar v. State of Bombay, SC 1957 

Charge against accused that they acquired control of Jupiter by acquiring controlling block of shares using the funds of Jupiter itself-charge of conspiracy to commit criminal breach of trust-defense argued that only acts relating to the acquisition of the controlling block of shares are relevant under s. 10-prosecution argued acts to screen such transactions and show them as legitimate would be relevant as well.

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Defense-The transactions of the year 1950 and the steps taken then are only for the purpose of screening the second set of transactions of the later part of 1949 and not the first set of transactions of January, 1949-the evidence relating thereto, which falls wholly outside the conspiracy period, is not admissible under s. 10 of the Evidence Act being too 67

remote and having no direct bearing on the original transactions which are the subject matter of the conspiracy-object of conspiracy was achieved when funds of Jupiter were paid to Khaitan (the original director) 

Held- The transactions were admissible to the extent they were integrally connected and relevant to show the bogus character of the earlier transactions and the criminal intention of individual accused-however they could not be made relevant against co-conspirators under Sec. 10-nor could they be made relevant as conduct under Sec. 8- Mirza Akbar's case1940 Indlaw PC 37 is a clear authority for the position that in criminal trials, on a charge of conspiracy evidence not admissible under s. 10 of the Evidence Act as proof of the two issues to which it relates, viz., of the existence of conspiracy and of the fact of any particular person being a party to that conspiracy, is not admissible under any other section of the Act.

Bhagwan Swarup v. State of Maharashtra-1963 SC 

Subba Rao J- The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it-Sec. 10 cannot be used in favour of the other party to show that they are not a party to the conspiracy.

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Double Jeopardy argument-motive is not an ingredient of an offence-Defendants committed fraud on Empire to hide Jupiter transactions-however they were 2 separate conspiracies.

Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, 3 judges 

Appellant was Assistant Food Procurement Inspector-Deceased’s father reported him for polishing of rice-his services were terminated-This embittered the appellant who on at least two occasions was heard to express a determination to be revenged. In pursuance of this determination he got into touch with the confessing accused Gurbachansingh and enlisted his services for murdering the boy Ramesh.

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On the 26th December, 1949, festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and 68

from there was enticed to the house of the appellant's brother Gurudayalsingh and was done to death in a shockingly revolting fashion by the appellant, with the active assistance of Gurubachansingh, in the middle of the day at about 12 or 12.30. The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal's house till about 7 p.m. 

At 7 p.m. the body wrapped as above was carried by Gurubachan on his head to a chowkidar's hut near the Sikh Gurudwara. The appellant accompanied him. The map, shows that the distance along the route indicated was about half a mile to three quarters of a mile. It was left there till about midnight. Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao. They took him to the chowkidar's but, recovered the bundle of bedding and went in the rickshaw to a well which appears from the map, to be about half a mile distant. There the body was thrown into the well.

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The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then 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 sufficient 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 evidence and thus believe what he would not be prepared to accept without the aid of the confession.

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A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no grater probative value.

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So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a 69

given case to disregard it. The testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. 

Weakness in prosecution case-as disclosed in the confession, Gurubachan was a stranger to Gondia. He had come there only six weeks before the murder and did not meet the appellant till there weeks later and then only casually. Their second meeting, equally casual, was on the 21st, that is, five days before the murder, and on that date the appellant is said to have disclosed his intention to this stranger whom he had only met once before

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At the murder itself, Gurbachan did not give any assistance which a grown man could not easily have accomplished himself on a small helpless victim, of five. The appellant could have accomplished all this as easily without the assistance of Gurubachan, and equally Gurubachan, a mere hired assassin, could have done it all himself without the appellant running the risk of drawing pointed attention to himself as having been last seen in the company of the boy. Therefore previous association of a type which would induce two persons to associate together for the purposes of a murder was not established



Court found that the appellant was away from the Gurudwara for a long enough time to commit the murder-had given a false statement that he was present-however save in exceptional circumstances one accomplice cannot be used to corroborate another, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one-have to seek corroboration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Gurubachan's confession for that purpose-examined reliability of Gurubachan’s confession against the appellant.

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First point: Confession was not made until 2 months after the murder-though Gurubachan was kept in the magisterial lock up the distinction between the magisterial lock up and police custody in Gondia was only theoretical. In practice, it was no better than police custody-SHO in Gondia deputes constables for duty to the lockup-Head Constable was in charge-Inspector admitted that he interrogated Gurubachan in the lock up twice within the ten days which succeeded the confession

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No explanation was given for why these directions, which were made for good reason, were disregarded in Gurubachan's case. The other prisoners were all 70

committed to jail custody in the usual way, so there was no difficulty about observing the rule. All this makes it unsafe to disregard the rule about using accomplice testimony as corroboration against a non-confessing accused. In the circumstances, the confession by itself could not be used to corroborate the rickshaw coolie Sannatrao, P. W., 14. 

The prosecution was criticised for not calling the magistrate who recorded the confession as a witness. Court referred to the judgement of the Privy Council in Nazir Ahmad v. King Emperor regarding the undesirability of such a practice. Held-the magistrate was rightly no called and it would have been improper and undesirable for the prosecution to have acted otherwise.

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Sari borders, Articles F, G, and T.- Articles F & G were two pieces of a sari border which were used for tying up the mouth of the gunny bag in which the body was placed. Article T was another piece of a sari border which was found in the appellant's house on the 30th December, 1949. It was seized on the same day that the body was discovered. There was strong proof that Articles F and G are a part of the same border as Article TThat therefore afforded corroboration of Sannatrao's evidence-court observed confession can be called in aid to lend assurance to the inference which arises from these facts, namely that the appellant did help to dispose of the body

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But the matter cannot be carried further because, not only are the sari borders not proved to have had any connection with the crime of murder but the confession shows that they did not. The only conclusion permissible on these facts is that the appellant, at some time which is unknown, subsequent to the murder assisted either actively or passively in tying up the gunny bag in which the corpse was placed and that he then accompanied Gurubachan in the rickshaw from the chowkidar's hut to the well in the middle of the night.

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In the appellant's favour were the facts that there is no proof of his having been last seen in the company of the deceased. The only evidence of the boy's movements was that of Krishna (alias Billa) P. W. 9, a boy of seven years, and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 A.M. The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute's house. Pritipal later returned without Ramesh. The Sessions Judge thought 71

this witness had been tutored on at least one point. Pritipal's so called confession has been rejected because, in the first place, it is not a confession at all, for it is exculpatory, and, in the next the High Court was not able to trust it. 

The next point in the appellant's favour was that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house. According to the prosecution, the murderer wore the coat, Article X, and the safa, Article Y.

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The Third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence. The fourth point was that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court, which made a spot inspection, describes as a crowded locality.

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The points against the appellant were (1) that he had a motive and that he said he would be revenged, (2) that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it, and denied the fact, (3) that some twelve hours after the crime he assisted in removing the body from a place between half to three quarters of a mile distant from the scene of the crime, and (4) that at some unknown point of time he assisted in tying up the mouth of the gunny bag in which the body was eventually placed. Unsafe to convict of murder on the basis of these facts.

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In most of the cases cited by the prosecution the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime. Here, twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the body is said to have been murdered-however appellant was convicted u Sec. 201-7 years’ RI

State v. Nalini 

Sec. 15 of TADA provided that confession of an accused would be ‘admissible’ against a co-accused-Court held this meant it could be treated as a substantive piece of evidence as opposed to one under Sec. 30 IEA

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A statement made by a conspirator before the commencement of the conspiracy is not admissible against the co-conspirator under Section 10 of the Evidence Act. Similarly, a statement made after the conspiracy has been terminated on achieving its object or it is 72

abandoned or it is frustrated or the conspirator leaves the conspiracy in between, is not admissible against the co-conspirator. Fixing the period of conspiracy is, thus, important as provisions of Section 10 would apply only during the existence of the conspiracy 

570. It was submitted that once the conspirator is nabbed that would be an end to the conspiracy and Section 10 would be inapplicable. That may be so in a given case but is not of universal application. If the object of conspiracy has not been achieved and there is still agreement to do the illegal act, the offence of criminal conspiracy is there and Section 10 of the Evidence Act applies. Prosecution in the present case has not led any evidence to show that any particular accused continued to be a member of the conspiracy after his arrest.

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As a rule of prudence, there should be corroboration while accepting the statement of a conspirator against a co-conspirator.

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Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

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Conspirators may be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

Unit VIII: Confessions State of Maharashtra v. Damu 

Four persons accused of triple murder-confession recorded by the Judicial Magistratechallenged on the following grounds: 73

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1. The fourth accused Balu Joshi remained in police custody for a considerably long period and that circumstance is sufficient to view the confession with suspicion. 2. The Sub-Jail, Newasa (in which the accused was interred) was located adjacent to the police station and hence the mere fact that he was locked up in the Sub-Jail is not enough to dispel the fear in the mind of the confessor regarding police surveillance. 3. PW 10 (Mrs. Anjali Apte) was a Judicial Magistrate at Ahmednagar, whereas there was a Judicial Magistrate First Class at Newasa itself. As the accused was locked up in the Sub-Jail at Newasa, there is no explanation why a magistrate belonging to a distant place was asked to record the confession, in preference to a magistrate at a near place. 4. The Investigating Officer (PW42) has not explained how he knew that Balu Joshi (A4) was willing to make a confession to him.

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The High Court held that there was reasonable doubt that the confession was not voluntary.

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SC: A Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of police to have the confession in his own way by telling the magistrate the true facts.

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A4 (Balu Joshi) remained in police custody only till 26.4.1995 and the confession was recorded only om 25.5.1995, which means, there was an interval of almost a full month after he was removed from police custody to judicial custody.

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22. The geographical distance between the two buildings sub-jail and the police station – should not have been a consideration to decide the possibility of police exerting control over a detenue. To keep a detenue in the police fear it is not necessary that the location of the police station should be proximal to the building in which the prisoner is detained in judicial custody. In many places judicial courts are situated very near to police station houses, or the offices of higher police officers would be housed in the same complex. It is not a contention to be countenanced that such nearness would vitiate the independence of judicial function in any manner.

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23. Newasa is a taluk located within the territorial limits of the district of. Ahmadnagar. The Chief Judicial Magistrate, Ahmadnagar was approached for nominating a magistrate 74

within his jurisdiction for recording the confession. There could have been a variety of reasons for the Chief Judicial Magistrate for choosing a particular magistrate to do the work. When not even a question was put to PW 19 or PW 44 (the Investigating Officer) as to why the CJM, Ahmadnagar did not assign the work to a magistrate at Newasa, it is not proper for the High Court to have used that use a ground holding that voluntariness of the confession was vitiated. 

Similarly, it is a worthless exercise to ponder over how or from which source the investigating officer would have come to know that the accused was desiring to confess. An Investigating Officer can have different sources to know that fact and he is not obliged to state in court the same, particularly in view of the ban contained in Section 162 of the CrPC.

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A3 told the IO that A2-Guruji-went on motorcycle and threw one body into the canalmotorcycle found at Guruji’s house-broken piece of tail lamp found at the spot which A3 pointed out-argued this was not admissible as the dead body was found prior to the recovery of the tail lamp.

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37. 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. The information might be confessional or non-inculcatory in nature, but if it results in discovery of a fact it becomes reliable information.

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It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of Privy Council in Pullukuri Kottayya v. Emperor AIR 1947 PC 67- "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.

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38. The information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In, this case, the fact discovered by the IO is that A3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motor cycle.

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39. How the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motor cycle of A2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A2 Guruji had carried the dead body on that particular motor cycle upto the spot-Therefore statement of A3 was admissible.

Unit IX: Admissibility of Evidence Pulukuri Kottaya v. King-Emperor, 1946 Bom HC 

Statement made by accused: I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Boddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.

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Sec. 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused

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The Crown argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person 76

murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure 

But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. Therefore the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered.

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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 if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

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Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.

77

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13. Court held that the whole of the impugned statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible

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14. A confession of accused 3 was deposed to by the police sub-inspector, who said that accused 3 said to him:-“I stabbed Sivayya with a spear; I hid the spear in a yard in my village. I will show you the place.”-The first sentence must be omitted. Similarly statement that ‘it was with that spear that he had stabbed Boddapati Sivayya," must be omitted.

State of Bombay v. Kathi Kolu Oghad-11 judge bench, SC 1958 

Issues: Whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.

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(2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings

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Majority judgment: Agreed with M.P. Sharma v. Satish Chandra on the point the guarantee against testimonial compulsion includes not only oral testimony given in court or out of court, but also to Dagduas in writing which incriminated the maker when figuring as an accused person.

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11. However held that ‘to be a witness’ is not the same thing as ‘to furnish evidence’-To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles 78

in the way of efficient and effective investigation into crime and of bringing criminals to justice. 

12. The giving of finger impression or specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral Dagduas or Dagduas in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy.

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The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined.

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Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'.

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The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.

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13. What is self-incriminatory: In order that a testimony by an accused person may be said to have been self-incriminatory for the purpose of Art. 20(3) it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.

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14. Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of section 27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of section 27 of the Evidence Act, in so far as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence.

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Whether Sec. 27 of IEA violates Art. 20(3)- If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence 80

and that will not be hit by the provisions of clause (3) Article 20 of the Constitution for the reason that there has been no compulsion. Sec. 27 will not violate 20(3) unless compulsion has been used in obtaining the information. 

‘Compulsion’ means duress-17. 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. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. It is a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.

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Conclusion

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(1) 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 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.

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(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

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(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; it does not include the production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

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(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'. 81

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(5) '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.

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(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

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(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made

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Minority-S. K. Das, Sarkar and Das Gupta, JJ.



27. While on the one hand we should bear in mind that the Constitution makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning.

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To limit the meaning of the words "to be a witness" in Article 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. For example, an accused person has in his possession, a letter written to him by an alleged coconspirator in reference to their common intention in connection with the conspiracy for committing a particular offence. Under section 10 of the Evidence Act this document is the relevant fact as against the accused himself for the purpose of proving the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact under section 8 of the Evidence

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Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself? 

32. It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact-whether it be a fact in issue or a relevant fact which is sought to be proved. The protection of Article 20(3) being available even at the stage of investigation, at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact.

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It is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by others means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact.

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Is an accused person furnishing evidence when he is giving his specimen handwriting or impressions of his fingers, or palm or foot?-Yes-For, these are relevant facts, within the meaning of section 9 and section 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under section 10, or is producing the plan of a house where a burglary has been committed or is giving his specimen handwriting or impressions of his finger, palm or foot. However 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. Therefore an accused person is not furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot

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The evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two set is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself-Art. 20(3) will not be violated 83

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By themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.

State of Uttar Pradesh v. Deoman Upadhyaya-1960 SC 

Deoman made a murderous assault with a gandasa (which was borrowed by him from one Mahesh) upon one Sukhdei and killed her on the spot and thereafter, he threw the gandasa into the village tank, washed himself and absconded from the village. He was arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by the Serologist, was found to be stained with human blood.



Deoman was convicted-appealed to Allahabad HC-it was contended that the evidence that Deoman made a statement before the police and two witnesses was inadmissible in evidence, because s. 27 of the Indian Evidence Act which rendered such a statement admissible, discriminated between persons in custody and persons not in custody and was therefore void as violative of Art. 14 of the Constitution

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Issues 1. Whether s. 27 of the Indian Evidence Act is void because it offends against the provisions of Art. 14 of the Constitution ? and 2. Whether sub-s. (2) of s. 162 of the Code of Criminal Procedure in so far as it relates to s. 27 of the Indian Evidence Act is void?

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The expression, "accused person" in s. 24 and the expression "a person accused of any offence" have the same connotation, 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. 84

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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. By s. 26, a confession made in the presence of a Magistrate is made provable in its entirety

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Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most where those in the custody of the police and persons not in the custody of police did not need the same degree of protection. But by the combined operation of s. 27 of the Evidence Act and s. 162 of the Code of Criminal Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time when he made it, otherwise it is not. (because s. 27 only applies to statements made in custody)

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12. There is nothing in the Evidence Act which precludes proof of information given by a person not in custody, which relates to the facts thereby discovered; it is by virtue of the ban imposed by s. 162 of the Code of Criminal Procedure, that a statement made to a police officer in course of the investigation of an offence under Ch. XIV by a person not in police custody at the time it was made even if it leads to the discovery of a fact is not provable against him at the trial for that offence.

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But the distinction which it may be remembered does not proceed on the same lines as under the Evidence Act, arising in the matter of admissibility of such statements made to the police officer in the course of an investigation between persons in custody and persons not in custody, has little practical significance. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police.

85

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Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of s. 27 of the Indian Evidence Act : Legal Remembrancer v. Lalit Mohan Singh I.L.R. (1921) Cal.167 Santokhi Beldar v. King Emperor I.L.R. (1933) Pat. 241

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Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer. But in considering whether a statute is unconstitutional on the ground that the law has given equal treatment to all persons similarly circumstanced, it must be remembered that the legislature has to deal with practical problems; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been but is not applied. As has often been said in considering whether there has been a denial of the equal protection of the laws, a doctrinaire approach is to be avoided. 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.

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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 or abnormal class of cases

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14th amendment cases in America-the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied". There is no "doctrinaire requirement" that the legislation should be couched in all embracing terms".

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18. Counsel for the defence contended that in any event Deoman was not at the time when he made the statement, attributed to him, accused of any offence and on that 86

account also apart from the constitutional plea the statement was not provable. This contention is unsound. As we have already observed, the expression "accused of any offence" is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by s. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. 

SC held: The evidence that Deoman slapped Sukhdei and threatened her that he would "smash her face" coupled with the circumstances that on the morning of the murder of Sukhdei, Deoman absconded from the village after washing himself in the village tank and after his arrest made a statement in the presence of witnesses that he had thrown the gandasa in the village tank and produced the same, establishes a strong chain of circumstances leading to the irresistible inference that Deoman killed Sukhdei

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Subba Rao J-Dissenting judgement

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The result brought about by the combined application of s. 27 of the Evidence Act and s. 162 of the Code of Criminal Procedure: 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.

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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.

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There is no justification for the suggestion that the prosecution is in a better position in the matter of establishing its case when the accused is out of custody than when he is in custody. 87

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The constitutional validity has to be tested on the facts existing at the time the section or its predecessor was enacted but not on the consequences flowing from its operation. When a statement made by accused not in the custody of police is statutorily made inadmissible in evidence, how can it be expected that many such instances will fall within the ken of Courts. If the ban be removed for a short time it will be realized how many such instances will be pouring in the same way as confessions of admissible type have become the common feature of almost every criminal case involving grave offence. That apart, it is also not correct to state that such confessions are not brought to the notice of Courts.

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39. Section 150 stated: "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."

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40. Section 150 of the Code of 1861 was amended by Act VIII of 1869 and the amended section read as follows: "Provided that when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt, or not, as relates distinctly to the fact thereby discovered, may be received in evidence."

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Till the year 1872, the intention of the legislature was to provide for all confessions made by persons to the police whether in custody of the police or not. Can it be said that in 1872 the legislature excluded confessions or admissions made by a person not in custody to a police-officer from the operation of s. 27 of the Evidence Act on the ground that such cases would be rare? Nothing has been placed before us to indicate the reasons for the omission of the word "or" in s. 27 of the Evidence Act. If that be the intention of the legislature, why did it enact s. 25 of the Evidence Act imposing a general ban on the admissibility of all confessions made by accused to a police officer? Section 27 alone would have served its purpose.

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On the other hand, s. 25 in express terms provides for the genus, i.e., accused in general, and s. 27 provides for the species out of the genus, namely, accused who are in custody. A general ban is imposed by one section and it is lifted only in favour of a section of 88

accused of the same class. The omission appears to be rather by accident than by design. In the circumstances it is not right to speculate and hold that the legislature consciously excluded from the operation of s. 27 of the Act accused not in custody on the ground that they were a few in number. 

It is not possible to state as a proposition of law what words or what kind of action bring about submission to custody; that can only be decided on the facts of each case. It may depend upon the nature of the information, the circumstances under, the manner in, and the object for, which it is made, the attitude of the police-officer concerned and such other facts. It is not, therefore, possible to predicate that every confession of guilt or statement made to a police-officer automatically brings him into his custody.

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The classification is made between accused not in custody making a confession and accused in custody making a confession to a police-officer: the former is inadmissible and the latter is admissible subject to a condition. The point raised is why should there be this discrimination between these two categories of accused? It is no answer to this question to point out that in the case of an accused in custody a condition has been imposed on the admissibility of his confession. The condition imposed may be to some extent affording a guarantee for the truth of the statement, but it does not efface the clear distinction made between the same class of confessions. The vice lies not in the condition imposed, but in the distinction made between these two in the matter of admissibility of a confession. The distinction can be wiped out only when confessions made by all accused are made admissible subject to the protective condition imposed

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There is no acceptable reason why a confession made by an accused in custody to a police-officer is to be admitted when that made by an accused not in custody has to be rejected. The condition imposed in the case of the former may, to some extent, soften the rigour of the rule, but it is irrelevant in considering the question of reasonableness of the classification.

Prabhu v. State of U.P. 1962 SC-3 judges 

Appellant was convicted for murdering his uncle-The case of the prosecution was that the appellant made certain statements and produced from his house a kulhari, a shirt and dhoti. These were found to be blood stained and subsequent examination by the Chemical 89

Analyst and the Serologist disclosed that they were stained with human blood. This recovery of the blood stained kulhari (axe) and the blood stained shirt and dhoti was made, according to the prosecution case, on March 22, 1961, in the presence of two witnesses, Lal Bahadur Singh and Wali Mohammad. 

The case against the appellant rested on the evidence relating to motive furnished by what happened about a month and half before the occurrence when the appellant and his father asked for some land from the deceased, and the recovery of the blood stained axe and blood stained shirt and dhoti from the house of the appellant

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Lal Bahadur Singh gave evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them.

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These statements to which Dobi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Sections 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within meaning of s. 27-Relied on Pullukari Kottayya

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SC held: The courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained axe and some blood stained clothes. The

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prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his. 

Circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub-Inspector of Police. As the chain of circumstantial evidence was not complete in this case, appellant was acquitted.



Deoman Upadhyaya would not apply to the facts of this case-The circumstantial chain in that case did not depend merely on the production of the gandasa, but on other circumstances as well. The Court held in that case that the circumstantial chain was complete and the decision did proceed merely on the production of a blood stained weapon.

Illegally procured evidence R.M. Malkani v. State of Maharashtra 

Appellant was Coroner of Bombay. Patient admitted to nursing home of Dr. Adatia, a gynaecologist. Dr. Adatia, diagnosed the case as acute appendicitis and performed the operation. The patient developed paralysis of the ileum. He was removed to Bombay Hospital on 10 May 1964 to be under the treatment of Dr. Motwani, and subsequently died. Hospital issued a Death Intimation Card as "paralytic ileus and peritonitis following an operation for acute appendicitis".

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There was however a request for an inquest from the Police Station as his was a case of post operation death in a hospital. 4. The appellant made an order that Mr. Adatia be called. It is alleged that the appellant had told Dr. Adatia a few days earlier that though he might have operated satisfactorily the cause of death given by the hospital would give rise to a presumption of negligence on his part. Dr. Adatia was asked by the appellant to meet Dr. Motwani, so that the latter could get in touch with the appellant to resolve the 91

technical difficulties. The appellant told Dr. Motwani that Dr. Adatia was at fault but he might be cleared of the charge in the inquest. The appellant asked for a sum of Rs. 20,000 which he later reduced to Rs. 10,000 however Dr. Adatia refused to pay. 

Both the doctors decided to lodge a complaint with the Anti-Corruption Bureau. Dr. Adatia's Nursing Home got messages on the telephone to get in touch with the appellant. Dr. Adatia complained to Dr. Motwani of the harassment on the telephone. Dr. Motwani rang up the appellant. The appellant asked Dr. Motwani to intimate by 10 a.m. on 7 October whether Dr. Adatia was willing to pay Rs. 10,000. Dr. Motwani rang up Mugwe, Director of the Anti-Corruption Branch and complained that a higher Government official was demanding a heavy bribe from a Doctor. Mugwe then arranged for his staff to be present near Dr. Motwani's residence on the morning of 7 October with the tape recording equipment to record on the tape the telephonic conversation



On 7 October 1964 Mugwe and ACP Sawant went to Dr. Motwani's residence. They met Dr. Motwani and Dr. Adatia. When they commenced recording the First Information Report of Dr. Motwani. Mugwe’s men arranged for the tape recording equipment to be attached to the telephone of Dr. Motwani. Dr. Motwani was asked by Mugwe to ring up the appellant in the presence of Mugwe and other Police Officers about the appellant's demand for the money. Dr. Motwani rang up the appellant and spoke with him. Dr. Motwani reported the gist of the talk to Mugwe. Mugwe then asked Dr. Motwani to ring up Dr. Adatia to speak on certain special points. After the talk with Dr. Adatia, Dr. Motwani was asked by Mugwe to ring up the appellant and ask for an appointment to discuss the matter further. Dr. Motwani rang up the appellant and an appointment was made to meet the appellant at 12 noon the same day. The conversation between Dr. Motwani and the appellant and the conversation between Dr. Motwani and Dr. Adatia are all recorded on the tape.

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The two Doctors Motwani and Adatia met the appellant in the Coroner's Chamber at 12 noon. The appellant raised the demand to Rs. 15,000 and said that Rs. 5,000 was to be paid to Coroner's Surgeon for giving an opinion in favour of Dr. Adatia. The appellant said that if the amount was not paid the police Surgeon's opinion would be incorporated in the case. The two Doctors went out of the Chamber for a while. Dr. Adatia then told the appellant that he would pay the appellant Rs. 15, 000 on 9 October, 1964. 92



Dr. Adatia paid Rs. 15,000 to Dr. Motwani. Dr. Motwani took the amount to his house. Dr. Motwani informed the appellant on the telephone that he had received the money from Dr. Adatia. The appellant asked Dr. Motwani to keep it and to bring the money to the appellant's house on 10 October, 1964. On 10 October the Assistant Commissioner Sawant came to Dr. Motwani's residence and asked him to go to the appellant's residence to fix up an appointment for payment of money. Dr. Motwani went to the appellant's house on 10 October, 1964. at 10 a.m. The appellant was not in the house. The appellant's wife was there. Dr. Motwani told her that he had come to pay the money. The appellant's wife said that he could pay her. Dr. Motwani said that he had no instructions to pay.



The Police Officers and Dr. Motwani met at the residence of Dr. Adatia at about 4 p.m. The raiding party connected the tape recorder to the telephone mechanism of Dr. Motwani. Dr. Motwani dialed the appellant's residence and spoke with the appellant in the presence of the Police Officers. The conversation was also recorded on the tape. It was arranged at the talk that Dr. Motwani would pay the amount to the appellant's wife on 12 October 1964. Dr. Motwani was asked to take a letter addressed to the appellant stating that he was returning a loan of Rs. 15,000 which he had taken at the time of buying a flat.



Eventually Dr. Motwani did not go the appellant’s residence so the appointment was cancelled.



The appellant was charged Under Sections 161, 385 and 420 read with Section 511 of the Indian Penal Code. However, the appellant denied that he demanded any amount through Dr. Motwani. He also denied that he threatened Dr. Adatia of the consequence of an inquest.



Issues: Whether evidence was inadmissible as it was illegally obtained in contravention of Sec. 25 of the Telegraph Act and infringes Art. 20(3) and Art. 21 of the Constitution?



Whether the conversation between Dr. Motwani and the appellant which was recorded on the tape took place during investigation in as much as Mugwe asked Dr. Motwani to talk and therefore the conversation was not admissible under Section 162 of the CrPC?

93



Section 25 of the Indian Telegraph Act 1885 states that if any person intending (b) to intercept or to acquaint himself with the contents of any message damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.



Counsel for the appellant submitted that attaching the tape recording instrument to the telephone instrument, of Dr. Motwani was an offence Under Section 25 of the Indian Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with the contents of any message touched machinery or other thing whatever used in or about or telegraph or in the working thereof he was guilty of an offence under the Telegraph Act. Reliance was placed on Rule 149 of the Telegraph Rules which states that it shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone, for the purpose of verification of any violation of these rules or for the maintenance of the equipment. This Rule was referred to for establishing that only the Telegraph Authorities could intercept message under the Act and Rules and a police officer could not.



HC held phone tapping violated Sec. 25 but the evidence collected would still be admissible



SC- 20. The Police Officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr. Motwani. The Police Officer could not be said to intercept any message or damage or tamper or remove or touch any machinery within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the Police Officer instead of hearing directly the oral conversation between Dr. Motwani and the appellant recorded the conversation with the device of the tape recorder.



The substance of the offence under Section 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery battery line or post for interception or acquainting oneself with the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the 94

contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act. 

Yusuf Ismail v. State of Maha-Tape recorded convo was accepted as admissible in evidence



Under Section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under Section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded.



23. A tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice: and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act.



The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence.



23. There is warrant for proposition that even if evidence is illegally obtained it is admissible. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.



26. In Nagree's case the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The 95

Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. 

The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behavior on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances.



28. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.



29. In the present case the recording of the conversation between Dr. Motwani and the appellant cannot be said to be illegal because Dr. Motwani allowed the tape recording instrument to be attached to his instrument. In fact, Dr. Motwani permitted the police officers to hear the conversation. If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.



30. Violations of Art. 20(3) and 21- The appellant's conversation was voluntary. The fact that the attaching of the tape recording instrument was unknown to the appellant does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was 96

recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham [1861] 8 Cox. C.C. 498 it was said "It matters not how you get it if you steal it even, it would be admissible in evidence". As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible. 

At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.



Sections 161 and 162 of the Criminal Procedure Code indicate that there is investigation when the Police Officer orally examines a person. The telephonic conversation was between Dr. Motwani and the appellant. Each spoke to the other. Neither made a statement to the Police Officer. There is no mischief of Section 162.

Unit X: Scientific and Expert Evidence Frye v. United States 1923 

Defendant was convicted of 2nd degree murder-In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant-systolic blood pressure deception test-It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt or crime, accompanied 97

by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination-touches the vital points in respect of which he is attempting to deceive the examiner. 

The theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.



Defence argued-'The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.'



Court held: While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Selvi v. State of Karnataka 

Issue: Whether the involuntary administration of narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases is violative of Art. 20(3)



Scientific validity of techniques questionable-results not entirely reliable. The narcoanalysis technique involves the intravenous administration of sodium pentothal, a 98

drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug induced revelations need not necessarily be true. Polygraph examination and the BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject's familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods has been repeatedly questioned in empirical studies. 

10. The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course



11. There are three prominent polygraph examination techniques: i. The relevant-irrelevant (R-I) technique ii. The control question (CQ) technique iii. Directed Lie-Control (DLC) technique



Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception.



12. The control-question (CQ) technique is the most commonly used one- The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be 99

concerned with lying about the relevant facts as opposed to lying about other facts in general 

16. Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained.



The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from `memory-hardening', i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.



The biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such `countermeasures' are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished



41. Narcoanalysis-This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced 100

hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal 

Technique does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects' personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful.



While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage'. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis' technique



67. The third technique in question is the `Brain Electrical Activation Profile test', also known as the `P300 Waves test'. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring `event-related potentials' (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words.



An important objection is centred on the inherent difficulty of designing the appropriate `probes' (stimuli) for the test. Even if the `probes' are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the overall context of the investigation. For example, in the aftermath of crimes that receive considerable media-attention the subject can be exposed to the test 101

stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons. 

74. Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject's involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or `memory-hardening' on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the `P300 wave test' are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise



IA. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?



99. The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions:



Firstly, we should clarify the scope of the `right against self-incrimination' - i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage?



Secondly, we must examine the ambit of the words `accused of any offence' in Article 20(3) - i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated? 102



Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the `theory of confirmation by subsequent facts' incorporated in Section 27 of the Indian Evidence Act, 1872 we need to examine the compatibility between this section and Article 20 (3). Of special concern are situations when persons could be compelled to reveal information which leads to the discovery of independent materials. To answer this question, we must clarify what constitutes `incrimination' for the purpose of invoking Article 20(3).



Who is an accused within Art. 20(3)?



108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161 (2) read with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of the case' in the course of examination by the police.



Therefore the `right against self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated



110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence.



111. Since the extension of the `right against self- incrimination' to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal 103

proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. 

What constitutes incrimination?



114. We can now examine the various circumstances that could `expose a person to criminal charges'. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:



The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.



Another possibility is that of `derivative use', i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.



Yet another possibility is that of `transactional use', i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.



A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration.



84. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them.

104

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Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her 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 trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person's silence during the trial stage.



Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent facts' - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which `furnish a link in the chain of evidence' needed for a successful prosecution.



In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. 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)-Kathi Kolu Oghad case



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 self-incrimination' will be rendered meaningless. The law confers on `any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course 105



IB: Whether the tests amount to testimonial compulsion under Art. 20(3)?



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.



130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to `testimonial compulsion' and thereby triggers the protection of Article 20(3).



136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re- state the two main premises for understanding the scope of `testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such ‘personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators.

106



The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence' needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.



149. We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase `and such other tests' [which appears in the Explanation to Sections 53, 53A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant's contention about the applicability of the rule of `ejusdem generis'. It should also be noted that the Explanation to Sections 53, 53A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.



Hence, on an aggregate understanding of the materials produced before us we lean towards the view that the impugned tests, i.e. the narcoanalysis technique, polygraph examination and the BEAP test should not be read into the provisions for `medical examination' under the Code of Criminal Procedure, 1973



153. However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3).



Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of 107

Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. 

The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a `positive volitional act' on part of the test subject and hence their results should not be treated as testimony.



However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma's case (supra.), it was noted that "...evidence can be furnished through the lips or by production of a thing or of a document or in other modes" [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to `criminal charges or penalties' or furnish a link in the chain of evidence needed for prosecution.



160. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical 108

examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses are directly correlated to mental faculties. 

Through lie-detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of `personal knowledge' through such means.

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161. During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject's right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act' becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.

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223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered

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test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872-followed by guidelines.

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