1 Res Gestae Sec. 6 . Relevancy of facts forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. (a) A is accused of the murder of B by beating him. Whatever was said or done by A Or B or the by-standers at the beating or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) a is accused of waging war against the Government of India by taking part in an armed insurrection which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. Facts which are not themselves in issue may affect the probability of the existence of facts in issue and be used as the foundation of inference respecting them ; such facts are described in Act as relevant facts. Every fact is a part of other facts. Sec. 6 lays down that the facts which are so connected with the facts in issue that they form part of the same transaction are relevant facts. A definition of the word 'same transaction' is given by Stephen who says, “ a transaction is a group of facts, connected together to be referred to by a single legal name, a crime, a contract, a wrong or any other subject of enquiry which may be in issue. The rule of efficient test for determining whether a fact forms part of the same transaction or another “depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as probable and subsidiary act as to constitute one continuous action.” Doctrine of res gestae or parts of transaction Apparently the phrase is well established in Law of Evidence. It has been used in two senses. In the wider sense it covers all the probative facts by which res gestae are reproduced to the tribunal where the direct evidence of witness or perception by the court are unattainable. In restricted meaning res gestae imports the conception of action by action. To be clear, in the restricted sense “facts which constitute the res gestae must be such as so connected with the very transaction or fact under investigation as to constitute a part of it.” They are the acts talking for themselves not what people say when talking about the acts. The section is quite apparently based upon the English doctrine of res gestae. This Latin phrase means “things done” and when translated into English means “things said and done in the course of a transaction”. Every case that comes before a court of law has a fact story behind it. Every fact story is made of certain acts, omissions and statements. Every such act, omission or statement as throws some light upon the nature of the transaction or reveals its true quality or character should be held as a part of the transaction and the evidence of it should be received. “To state a fact or event in isolation without reference to its antecedents in time, place or surrounding circumstances, may render the fact, difficult or even impossible to comprehend. Other facts or circumstances may be so closely connected with the fact in issue as to be, in reality, part and parcel of the same transaction. Such ancillary facts are described as forming part of the res gestae of the fact in issue, and may be proved.
2 The expression res gestae as applied to a crime means the complete transaction from its starting point in the act of the accused until the end is reached. What in any case constitutes a transaction depends wholly on the character of the act and the circumstances of the case. It frequently happens that, as evidence of circumstances may be resorted to for the purpose of proving the commission of a particular offence charged, the proof of those circumstances involves the proof of other acts either criminal or apparently innocent. In such cases it is proper that the chain of evidence should be unbroken. The words spoken by the person doing the act, or by the person to whom they were done or by the bystanders are relevant as a part of the same transaction, but it should be borne in mind that such statements or declarations, as they are called, in order that they might be admissible as res gestae should be contemporaneous with the transaction in issue, that is, the interval should not be made as to give time and opportunity for fabrication and connection and they should not amount a mere narrative of a past occurance. If the statement is answer to a query after lapse of some time it cannot be treated as res gestae. At the time of murder the cry of deceased 'save me' and that of the children that their mother was being killed are relevant as res gestae. In Ratten v The Queen A man was prosecuted for the murder of his wife. His defence was that the shot went off accidently. There was evidence to the effect that the deceased telephoned say : “Get me the police please”. Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call suddenly ended. Thereafter the police came to the house and found the body of a dead woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death. Her call in distress showed that the shooting in question was intentional and not accidental. For no victim of an accident could have thought of getting the police before the happening. This then is the utility of the doctrine of res gestae. It enables the court to take into account all the essential details of a transaction. A transaction can be truly understood only when all its integral parts are known and not in isolation from each other. The Court of Appeal held in another case that a statement made to a police officer by the victim of an assault identifying the assailant while moving with the police in his car was relevant as showing that he had seen the victim of an assault and who committed it. Acts or Omissions as Res Gestae So far as acts and omissions accompanying a transaction are concerned, much difficulty does not arise. Nature of the transaction itself indicates what should be its essential parts. In case of Milne v Leisler a question was whether a contract had been made with a person in his personal capacity or as an agent of another. The fact that the contractor wrote a letter to his broker asking him to make inquiries was held to be relevant. Statements as Res gestae Statements may also accompany Physical happenings. In the application of this principle the courts have been very strict and cautious. For statements can be easily concocted. Hence the principle that the statement should have been made so soon before or after or along with the incident that there was hardly any time to deliberate and thereby to fabricate a false story. In case of R v. Bedingfield a woman, with a throat cut, came suddenly out of a room, in which she had been injured and shortly before she died, said : “Oh dear Aunt, see what Bedingfield has done to me.” It was held that the statement was not admissible. Anything uttered by the deceased at the time the act was being done would be admissible, as, for instance if she has been heard to say something, as “don't Harry”. But here it was something, stated by her after it was
3 all over. The statement was also held to be not relevant as dying declaration because she did not have the time to reflect that she was dying. In case of R v. Christie an indecent assault was made upon a young boy. Shortly after the incident the boy made certain statements to his mother by which he described the offence and the man who assaulted him. The evidence of the statement was excluded. Remarked that the boy's statement was so separated by time and circumstances from the actual commission of the crime that it was not admissible as part of the res gestae. The emphasis of the courts seem to be that “the words should be at least de recenti and not after an interval which should allow time for reflection and concocting a story.” The statement should be an exclamation “forced out of a witness by the emotion generated by an event” rather than a subsequent narrative. The courts have stressing the necessity for close association in time,place and circumstances between he statement and the crucial events. It has been held by the Supreme Court in R. M. Malkani v State of Maharashtra, that “a contemporaneous tape-record of a relevant conversation is a relevant fact. It is res gestae”. 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, 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. Hence it is admissible under Section 6 of the Evidence Act. In Rattan Singh v. State of H. P. it was held that where shortly before the incidence in which a woman dies of gun shot, she exclaimed that a man was standing near her with a gun in his hand, the statement was held to be sufficiently proximate in time to the happening as to be a part of the same transaction. Res Gestae and Hearsay Hearsay evidence means the statement of a person who has not sent he happening of the transaction, but has heard of it from others. But such evidence can be given if it is a part of the transaction. In Sukhar v. State of U.P., One morning while deceased was going on the road, Accused caught hold of his back and fired a pistol shot towards him, deceased raised an alarm on account of which PW 1 and PW 2 reached the scene of occurrence and that point of time, deceased fell down and the accused made his escape. The two witnesses, brought deceased tot he police station whereupon the police recorded of the statement of deceased and started investigation. During trial the prosecution witnesses PWs 1& 2merely stated as to what they heard from the injured at the relevant point of time and according to PW 2, the injured had told him that the assailant had fired upon him. While the trial was pending the injured died. The High Court heavily relied upon the statement of PW 2. Counsel for the appellant strenuously contended that the evidence of the Evidence of PW 2 cannot be held to be admissible under Section 6 of Evidence Act inasmuch as what the injured told the witness when 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 Supreme Court said that Section 6 of the evidence act is an exception to the general rule hereunder the hearsay evidence become admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which allow fabrication. The statement sought to be admitted, therefore as forming part of res gestae must have been made contemporaneously with the acts or immediately thereafter.
4 With reference to above explanation and referring to the case of Rattan Singh v. State of H.P., the court held that the statement indicating that the injured thold that the accused has fired at him, would become admissible under Section 6 of the Evidence Act. Proved , Disproved and Not Proved When is a fact said to be proved. Section 3 says : Proved : A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The degree of certainty which must be arrived at before a fact is said to be proved is that described in this section. The section also states as to when a fact is said to be disproved. Disproved : A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. The section concludes with this set of provisions by defining a fact which is said to be “not proved”. It says : Not Proved : A fact is said to be not proved when it is neither proved not disproved. These provisions of the Act deal with the degree or standard of proof. What and how much proof is necessary to convince the judge of existence of a fact in issue? The answer depends upon many circumstances as different standards of proof are demanded in civil and criminal cases. In civil cases, for example, a matter is taken to be proved when the balance of probability suggests it, nut in criminal cases the court requires a proof beyond reasonable doubt. Proof means such evidence as would induce a reasonable man to come to the conclusion. Suspicion cannot take the place of proof, nor moral belief of the judge in the guilt of the accused. Supreme Court held that in Criminal cases there has to be a proof which leaves behind no reasonable doubt about the prosecution version. The victim's dying declaration which left many uncovered points and also narrated an unnatural story. Because of these doubts the evidence was rejected. The court has to proceed on the basis of the “matters before it”, which may be in the shape of evidence or any other shape. “Proved” :- “Proof does not mean proof to rigid mathematical demonstration, because that is impossible. It means such evidence as would induce a reasonable man to come to conclusion”. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. In the ordinary affairs of life courts do not require demonstrative evidence. Absolute certainty amounting to demonstration is seldom to be had in the affairs of life and we are frequently obliged to act on degrees of probabilities which fall very short of it indeed. In M. Narsingha Rao v. State of Andhra Pradesh, the Supreme Court held that a fact is said to be proved when after considering the matter before it the Court either believe it to exist or considers its existence so probable that a prudent man ought, under circumstances of particular case, to act upon supposition that it exists. This is the definition of the word 'proved' in Evidence Act. What is required is production of such materials on which the Court reasonably act to reach the supposition that the fact exist. Proof of facts depends upon degree of possibility of having existed. The standard required for reaching the supposition is that of a prudent man acting in any
5 important matter concerning him. The extent to which a particular evidence aids in proving the fact in controversy is called as probative force. This probative force must be sufficient to induce the court either (a) to believe in the existence of the fact sought to be proved, or (b) to consider its existence so probable that a prudent man ought to act upon the supposition that it exists. The test is of probability upon which a prudent man may base his opinion. In other words, it is the estimate which a prudent man makes of the probabilities having regard to what must be his duty as a result of his estimate. Proof and suspicion :- It must be borne in mind that suspicion and conjecture cannot take the place of legal proof. Matter before it :- In order to decide as to whether a particular fact is proved, the court has to consider the 'matter' before it. The expression, “matters before it” in this definition includes materials which do not fall within the definition of 'evidence' as given in Sec. 3. The result of local enquiry by a court, material objects brought before the court, material objects brought before the court, the demeanor of witnesses, admission by parties, confessions by the accused, statement of the accused, Commissioner's reports, are not evidence according to the definition given in Sec. 3. But they are all matters before the court to be considered while coming to conclusion. “Disproved and not Proved” :- The definition of the word 'disproved' is a converse of the definition of the word 'proved'. The expression 'not proved' indicates a state of mind in between the two, that is, when one cannot say whether a fact is proved or disproved. Not Proved is something different from being “false”. An inability to prove a claim does not mean in all cases that it is false. It negatives both proof and disproof. Sec. 3 of Evidence Act, while explaining the meaning of proved, disproved and not proved provides, the standard of proof. This standard should be of ordinary prudence in person, who will judge its existence or non-existence from the standard of circumstances before him. In Naval Kishor Somani v. Poonam Somani, Andhra Pradesh High Court said that a fact which is proved does not necessarily mean that it is false one. The expression 'Proved' is followed by expression disproved. This is followed by difinition of 'not proved'. The fact is said to be not proved when it is neither proved not disproved. On the other hand the fact is said to be disproved when after considering the matters before it the court either believes that it does not exist or considers its bib-existence. The word 'disproved' is akin to the word 'false'. What is disproved is normally taken to be false thing. It will be thus seen that a fact proved is not necessarily a fact disproved. A fact which is 'not proved' may be false or true. A doubt lingers about its truth merely because it is not proved or may not jump to the conclusion that it is disproved. A fact is disproved normally by the person who claims that alleged that the fact is not true. A fact is said to be disproved when the Court believes that the fact in question does not exist and that the Court believes the non-existence of that fact from the standard of man of ordinary prudence. Not Proved where the fact is deemed to be not proved from the standard of a person of ordinary prudence. The phrase NOT PROVED means neither the fact is proved with certainty nor the fact is believed to exist. The phrase NOT PROVED is between the phrase proved and disproved. And the phrase not proved is the result of careful scrutiny of the person of ordinary-prudence that the fact either exists with certainty nor its non-existence is proved with certainty. It is provision between existence and non-existence of the fact in the mind of a man of ordinary prudence.
6 CONSPIRACY S. 10 Things said or done by conspirator in reference to common design. - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. Illustration :- Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Eurpoe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. The leading English is R v. Blake and Tye. Blake was working as a landing waiter at the Customs House. Tye worked at the same place as an agent for the importers. They were charged with conspiracy to dodge the customs by passing goods without paying full duty. Tye made certain entries in two books. One of them was used for carrying out the fraud and the entries were necessary for that purpose. But the other was for his private record, or convenience, such as, the counterfoil of his cheque book. It was held that the entries in the former book were admissible against Blake, but the latter were not. The essence of the decision was that evidence of an act of a conspirator is relevant against other only it the act was done to carry out the conspiracy. The act should “relate to the furtherance of the common object.” THE basic principle which is underlined under Sec. 10 is the theory of agency and hence every conspirator is agent of this association in carrying out the object of conspiracy. Sec. 10 renders anything said or done or written by any one of the conspirators in reference to their common intention as relevant fact not only as (i) against each of the Conspirators but (ii) proving the conspiracy itself. The only condition for application of the rule of Sec. 10 is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence. Conspiracy is a crime as well as a tort. In State of Maharashtra v. Damu Gopinath Shinde, there was no doubt that there was reasonable ground to believe that four of accused conspirators have conspired to commit the offence of abduction and murder of children involved in this case. So when these accused had spoken to each other in reference to common intention as could be gathered from conspirators can be regarded as relevant facts falling within the preview of Sec.10. A dialogue between them could be proved through any permitted legal mode. When the confession is legally proved and found admissible in evidence the same can be used to ascertain what was said and done or written between the conspirators. The term 'conspiracy is the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful either as a means or as an end'. Sec 120-A of the Indian Penal Code
7 lays down : “ When two or more persons agree to do or cause to be done (1) an illegal act, or (2) an act which is not illegal but illegal by means, such agreement is designated as criminal conspiracy; provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides an agreement is done by one or more parties to such agreement in pursuance thereof.” Thus it is clear that when two or more persons agree together to do some illegal act or some act by illegal means they are said to have conspired. It is enough if the acts agreed to be done although not criminal are wrongful, i.e., amount to civil wrong civil wrong.” “A conspiracy consists of unlawful combination of two or more persons to do that which is contrary of law, or to do that which is wrongful towards other persons. It may be punished criminally, or civilly by action.” In case of Mohd. Khalid v. State of WB the court said that In case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore the essential of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstances evidence or by both, and it is a matter of common experience that direct evidence to proved conspiracy is rarely available. Therefore the circumstance proved before during and after the occurance have to be considered to be decided about the complicity of the accused. Privacy and secrecy are more characteristics of conspiracy than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of the conspiracy can be proved by either direct or ciarcumstance evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the object which the objectors set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to be carried out, all this is a mater of inference. Where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co-accused as to conspiracy even without corroboration evidence can be taken into consideration. It can in some cases be inferred from the acts and conduct of the parties. It must be remembered that mere knowledge on the part of a man about a conspiracy will not make him a conspiracy. Under Sec.10, a statement of act of one person is evidence against another. The Section puts certain limitations to the general rule of admissibility stated above. Under Sec.10 a thing done, said or written after the time when such intention was first entertained by any one of them is relevant. Anything done, said or written before such intention of conspiracy was entertained by any one of them is not relevant under this section. Against each and everything said, done or written by a conspirator even after such intention was entertained by a member of the conspiracy will not be relevant under this section. The only thing said, done or written in reference to the common intention of the conspirators will be admissible. There is more limitation to the relevancy of evidence under Sec.10. Before any evidence is entertained under this section there should be a reasonable ground for the court to believe that two or more persons have conspired together to commit, an offence or actionable wrong. Any statement made by accused after his arrest cannot fall within the ambit of Sec.10. Confessional statement of accused who is not alive would not be of any evidentiary use. Analysis of Section 10. - Sec.10 can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled,
8 anything said, done or written by any one of them in reference to their common intention will be evidence against the others; (3) any thing said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would be relevant for the said purpose against another who entered the conspiracy, whether it was said, done or written before he entered the conspiracy or after he left; (5) and it can be used only against a conspirator and not in his favour. Before bringing on record anything said, done or written by an alleged conspirator the court has to bring on record some evidence which prima facie proves the existence of the conspiracy. Once a reasonable ground to believe that several persons have conspired to commit an offence exists the acts and declarations of a particular person in reference to the common intention are relevant facts although that person may not so much as even know of the existence of many other engaged in the conspiracy. And if the evidence is taken after a prima facie proof of conspiracy but at a later stage of the trial that reasonable ground of belief or prima facie proof is displaced by further evidence, the court must reject the evidence previously taken. In C B I v. V.C. Shukla (Hawala Case), entries in the accounts book alleged to be showing conspiracy among all the accused. Evidence of prosecution witness only indicating that one of the accused in question was known to the other accused person and had gone to their residence on formal occasion, witness not speaking a word about other accused in question. It was held that Sec.10 cannot be pressed into holding that conspiracy amongst all the accused was proved. The word 'intention' implies that the act intended is in the future and the section makes relevant statements by a conspirator with reference to the future. The words “in reference to their common intention” mean in reference to what at the time of statement was intended in the future. Narratives coming from the conspirators as to their past act cannot be said to have a reference to their commo intention. In the case of Badri Rai v. State of Bihar the Supreme Court referred to the state of English Law as expounded in R vs. Blake, and said that “ section 10 of the Evidence Act is on the same lines” : Ramji and Badri were prosecuted for conspiracy under S.120- and for bribing a police officer under S.165-A. An inspector of police was on his way to the police station. Both Ramni and Badri approached him and requested that they would duly reward him if he could hush up the case relating to stolen ornaments and molten silver recovered from Ramji's house and which was under investigation. The inspector told them he could not talk to them on the road and that they should come to the police station. The inspector reported the matter to his senior officer. Badri alone came to the police station and offered him a packed wrapped in a piece of old newspaper containing Rs. 500 in currency notes. He told the inspector that Ramji had sent the money as a consideration for hushing up the case against him. In the presence of other persons, who became witnesses, the inspector seized the money and drew up the first information report. The only question before the Supreme Court was whether the offer was whether the offer of money and the accompanying statement made by Badri were relevant against Ramji. The court said that when both the accused approached the inspector and requested him to hush up the case, that clearly showed that they had conspired to bribe a public servant. That being so, anything said or done by any of them in reference of their conspiracy to bribe was relevant against the other also. The statement and the offer of bribe had clear reference to their common intention and were, therefore, relevant against both. The Supreme Court further said, Sec.10 of the Evidence Act has been deliberately enacted in order to make such acts and statements of a co-conspirator admissible against the whole body of
9 conspirators, because of the nature of crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts of statements of the others, unless there is a common bond linking all of them together. In Mirza Akbar v. Emperor, Mirza Akbar, Mst Mehr Teja and Umar Sher were convicted for the murder of Ali Askar, the husband of Mst. Mehar Teja. The prosecution case was that Mst. Mehar Teja and Mirza Akbar desired to get rid of Askar so that they should marry each other. Umar Sher was hired for the purpose. Umar Sher shot Ali Askar dead. After the murder was committed, Mst Mehr Teja was arrested on the charge of conspiracy. She was examined before a magistrate and there she made certain statement implicating Mirza Akbar. This statement was admitted in evidence both by the trial Judge and Judicial Commissioner as relevant against the appellant under Sec.10, Evidence Act. It was held that the words of Sec.10 are 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. Appellant Mirza Akbar and Mst Teja were tried for conspiracy to commit the murder of Ali Askar, husband of Mst. Mehar Teja. After the murder was committed Mst. Mehar Teja was arrested. She made the statement to the effect that there was conspiracy for murdering Ali Askar. It was held that the statement was made with reference to past act 'common intention' in the section signify common intention existing at the time when the thing was done, written or said. Things said, written or done while the conspiracy is at foot are relevant. The statement was held to be not admissible. ADMISSION S. 17. Admission defined - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under circumstances hereinafter mentioned. The section points three things it First defines “admission”, in terms of a statement which may be oral or documentary or in electronic form. Secondly, the section says that an admission will be relevant only if it is made by any of the person specified in the Act. The list is to be found in S. 18. Thirdly, the section says that it will be relevant only in the circumstances mentioned in the Act. Such circumstances are mentioned in section 18-30. The Supreme Court has given some guidance in this respect. Before the right of a party can be taken to be defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity. It would be necessary to read all of his statements together. Applying this approach to the facts of a case before it. Reasons for admissibility of admissions An admission is a relevant evidence. Several reasons have been suggested for receiving admissions in evidence some of them are as follows : 1. Admissions as waiver of Proof The section confines this effect only to formal admissions made at the time of the trial or as part of pleadings or in reference to the litigation. Sec.58 qualifies the principle by saying in the proviso that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission. Thus the Court may reject an admission either wholly or in part or may
10 require further proof. “Waiver of proof” therefore, cannot be an exclusive reason for the relevancy of an admission. 2. Admissions as statement against interest The Second suggested reason is that an admission, being a statement against the interest of the maker, should be supposed to be true, for it is highly improbable that a person will voluntarily make a false statement against his own interest. But this also does not squarely account for the relevancy of admissions. For one thing Section 17 does not require that an admission should be a statement suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in favour of the declarant. The act does not seem to require that an admission should be self-harming statement. 3. Admissions as Evidence of Contradictory Statements Still another reason that partly accounts for the relevancy of an admission is that there is a contradiction between the party's statement and his case. This kind of contradiction discredits his case. If, for example, A sues B upon a loan. His account books show that the loan was given to C. The statement in his accounts is an admission on his part as it contradicts his case against B. But his is only partly true, for the principle is that a party can prove all his opponent's statements about the facts of the case and it is not necessary that they should be inconsistent with his case. 4. Admissions as Evidence of Truth The last and most plausible and perhaps widely accepted reason that accounts for relevancy of admissions is that whatever statements a party makes about the facts of the case, whether they be for or against his interest, should be relevant as representing or reflecting the truth as against him. Forms of admission and to whom an admission may be made It is generally immaterial as to whom an admission is made. It may occur in reference to the proceedings or outside the court. Formal or Judicial Admissions An admission which is made as part of the proceedings so that it is recorded in the file of the court, that is called a formal or judicial admission. “Admissions expressly made in the proceedings prior to the trial are sometimes called formal or express admissions. Statements made by a person in his pleadings or in his evidence in a case have also been held by the Supreme Court to be admissions and, therefore, relevant. The case before the court was Bishwanath Prasad v. Dwarka Prasad : The question was whether certain properties belonged to the defendant and certain others were liable to partition. The opposite party had made statement in dispositions in an earlier suit that they belonged to the defendant. Similar admissions occurred in the written statement filed by the plaintiff and his father in that suit. Treating this as a relevant evidence against the plaintiff, Court remarked that Admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out. The attention of the learned Judge was drawn to section 145 of the Evidence Act which provides that if a witness is to be contradicted by his own earlier statement, the statement must be put to him so that he may have an opportunity to explain it and this was not done in the present case Dealing with this argument Court said : There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by the use of his prior statement. In the
11 former case in admission by a party is a substantive evidence if it fulfills the requirements of Sec21; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the Court cannot be invited to be disbelieve a witness on the strength of the prior contradictory statement unless it has been put to him, as required by sec 145. The court then pointed out that this distinction was clearly made out in Bharat Singh's Case, Where the court disposed of a similar argument with the following observation : Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Act, though they are not conclusive proof of the matters admitted. We are of opinion that admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the case he made a statement contrary to these admissions. An admission is a substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. Referring to the distinction between the relevancy of an admission and its weight the Court pointed out in the Bharat Singh's Case that the “the weight to be attached to an admission made by a party is a mater different from its use as an admissible evidence. Informal or casual Admissions Such admissions may occur in the ordinary course of life, or in the course of business, or in casual or informal conversation. The admission may be in writing or oral. Written admissions may occur in the course of correspondence , in letters, business dairies or account book or other records. If there is a document against a party, any statement made by him about the contents of the document is an admission against him even if the document itself is not provable on account of want of stamp. Admission and Hearsay An oral admission can be proved either by the party to whom it was made or by someone who heard it being made. To this extent the evidence of an informal admission is an evidence of hearsay. Sec.60 requires that oral evidence must in all cases be direct, that is to say, the witness must have personal and direct knowledge of the fact to which he testifies. If, for example, the question is how a fire started. A person who witnessed the fire being started by an explosion can give evidence of this fact, for he has personal knowledge of the fact. If on his way home he told someone of the fact of explosion, that other cannot give evidence of the explosion for his knowledge is nothing but a hearsay. Persons whose admissions are relevant Section 18 lays down the list of persons whose admissions constitute evidence against a party. The effects of Sec.18,19 and 20, when put together, is that the admissions of following parties become relevant : 1. Parties of the Suit, 2. Agents of Parties, 3. Persons occupying representative character, 4. Statement will include the statements of the following parties : This category will include the statements of the following parties : (a) Persons having pecuniary or proprietary interest. (b) Persons from whom the parties derived their interest. (c) Persons whose position is in issue or is relevant.
12 (d) Persons expressly referred to. Parties to suit or proceeding The statement of a party in his written statement in an earlier proceeding was held to be relevant against him in a subsequent proceeding. It seemed to the court to be evidence of telling nature and heavily loaded against the party. Where there are more than one plaintiffs oar defendants to a suit, the Act does not make it clear whether the statement of a party will be relevant against his co-plaintiffs or co-defendants. On principle as well as policy the statement of a defendant should not bind his co-defendants, for otherwise the plaintiff can defeat the case of the other defendants through the mouth of one of them. That would be unfair to the co-defendants. So a defendant is bound by his statement only to the extent of his own interest. An admission is the best evidence only against the party who has made it. Even if it were relevant under one category or the other, it appears from decision of the Supreme Court in Kashmira Singh v. State of M. P., that not much weight can be attached to it against the co-parties and it cannot by itself be the basis of legal rights or liabilities. Agents of Parties The statement of an agent to a party are relevant as admission against the party provided the court regards, under the circumstances of the case, the agents to be expressly or impliedly authorised by the party to make the statement. According to the law of agency, a statement by agent in the ordinary course of the business of agency is an admission against his principal. Statements in representative character A person who sues or is sued in a representative character, any statement made by him during the time that he holds such character is an admission against the party whose representative he is. Representative character is occupied, for example, by trustees, receivers, the assignee of an insolvent's estate, executors, administrators etc. Persons having pecuniary or proprietary Interest in subject-matter Statement of persons who, though not parties to the proceeding, have a pecuniary or proprietary interest in the subject-matter of the proceeding, are relevant provided that the statement is made by any such person in the character of his interest. Predecessor-in-title Statements made by a persons from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissions provided they are made during the continuance of the interest of the persons making the statements. A person of this kind is called a “predecessor-intitle”. Any statement made by him about the property while he was holding the title is relevant against the parties who acquired the title from him. This category will include statements made by a former owner of a property and such statements will be relevant against present owners. A statement made by any such person after he ceased to have any interest in the property in question shall not be an admission against the present owner of the property. Persons whose position is in issue Sec.19 deals with statements of persons whose position is in issue, though they are not parties to the case. The section is based upon the principle that where the right or liability of a party to a suit depends upon the liability of a third person, any statement by that third person about his liability is an admission against the parties. Statements by referees Sec.20 deals with the principle that when a party makes a reference to a third person for information, any statement by that person about the subject-matter of the reference is an admission against the party making the reference.
13 The Supreme Court in K.M. Singh v. Secretary, Association of Indian Universities. Here the issue was whether the resignation tendered by the plaintiff was an involuntary one. He named two officials of the respondent association that if they would take special oath at a specified religious place and affirm that his resignation was not involuntary, he would accept the same. When the official did so it amounted to an admission on his part and he became bound by the same. S. 21. Proof of admissions against persons making them, and by or on their behalf. Admission are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases : (1)An admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons u/s 32. (2)An admission maybe proved by or on behalf of the person making it; when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3)An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. Illustrations (a) The question between A and B is, whether certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a Statement by himself that the deed is genuine, nor can be proved a statement by himself that the deed is forged. (b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements because they would be admissible between third parties if he were dead, under Sec.32. Who can prove admissions The section lays down the principles as to proof of admissions. The section is based upon the principle that an admission is an evidence against the party who has made the admission and, therefore, it can be proved against him. He himself cannot prove his own statements, “otherwise every man, if he were in a difficulty, or in view of one, might make declarations to suit his own case”, and then lodge them in proof of his case. The general rule is that “the statements of a living person cannot be received unless they are against his interest.” No man should be at liberty to make evidence for himself through his own statements. Granted this facility, every litigant would construct a favourable case by his own statement. The principle is, however, subject to important exceptions. In these exceptional cases a party is permitted to prove his own statements. Some of them may be mentioned here. 1. When the statement should have been relevant as Dying Declaration or as that of a deceased person under S. 32.
14 Sec. 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favour or against the person making the statement. In circumstances stated in Sec. 32 such a statement can be proved by the maker himself if he is still alive. The exception is thus stated in S. 21(1). An admission may be proved by or behalf of the person making it, when it is of such a nature that if the person making it were dead, it would be relevant as between third persons under Sec. 32. Illustration (b) is on the point. 2. Statements as to bodily feeling or state of mind The second exception is contained in S.21(2). It deals with statements as to body, bodily feeling or state of mind. The subsection enables a person to prove his statements as to his state of body or of mind. If, for example a person is injured and the question is whether the injury was intentional or accidental, his statement at that time as to the way he was injured can be proved by himself. The conditions for the admissibility of such statements are, Firstly, that the statement should have been made at about the time when the state of mind of of body which is described by the statement still existed. The statement should be contemporaneous with the existence of the condition of mind or of body. This rules our chances of fabrication. A person is the least likely to fabricate a statement when he is still reeling under the pain of the injury. And Secondly, the statement should be accompanied by conduct which renders the falsehood of the statement improbable. Thus to reassure that the statement is really true, the Legislature insist that the statement should be accompanied by such conduct as shows that the condition of mind or of body described by the statement is really true and not feigned. The conduct of a person under real pain is different from that of a person who is only acting as such. The accompanying conduct is a greater guarantee of truth than the statements. 3. When otherwise relevant The last exception is that a person may prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. A statement may be relevant either as an admission of relevant fact or as a proof of the existence of a fact. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his ownstatements. Statement when Relevant The act provides for the relevancy of statement in several cases. Firstly, a party may prove his own statement under S.6 if it is a part of the same transaction. The doctrine of res gestae covers such statements. Secondly, a statement may be proved by or on behalf of the person making it under Section 8 if it accompanies or explains acts other than statements or if it influenced the conduct of a person whose conduct is relevant. Thirdly, a statement may be proved by or on behalf of the person making it under Section 14 if the statement explains his state of mind or body or bodily feeling when any such thing is relevant or is in issue. Fourthly, a statement may be proved on behalf of the person making it if it is relevant under any of the clauses of Section 32. The Supreme Court has also laid down in some cases that where there is an admission, it is not necessary to confront the person concerned with the previous statement. This is so because an
15 admission is a substantive and an independent piece of evidence. Presumption of genuineness of electronic records. Electronic records are presumed to be true. No further evidence is necessary in proof of a fact appearing in such record. It is only when the genuineness of the record is in question that other evidence would be receivable. In that case, an oral account of the contents of such record would also become receivable in evidence. In K. Chinnaswamy Reddy v. State of Andhra Pradesh, to hold that the statement relating to concealment is admissible in evidence by virtue of section 27. In that case, the question was formulate by the court, as follows: Let us then turn to the question whether the statement of the appellant to the effect that 'he had hidden them (the ornaments)' and would point out the place' where they were, is wholly admissible in evidence under S.27 or only that of it is admissible where he stated that he would point out the place but not the part where he stated that he had hidden the ornaments. In Pulukuri Kotayya v. King Emperor, the above question was answered as : If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S.27. It is only that part which distinctly relates to the discovery which is admissible; if any part of the statement distinctly relates to the discovery it will be admissible wholly and the Court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. It is however urged that in a case where the offence consists of possession even the words where he had hidden them' would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S.27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may prove the offence, for after the articles have been recovered are connected with crime. i.e. In this case the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant would be admissible evidence In the light of this decision, we must hold that the accused must be deemed to be in exclusive possession of the articles concealed under the earth though the spots at which they were concealed may be accessible to public. CONFESSION The term “confession” is nowhere defined in the Evidence Act. All provisions relating to confessions occur under the heading of “admission”. If a statement is made by a party to a Civil proceeding it will be called an “admission” and if it is made by a party charged with a crime it will be called a “confession”. A confession is a statement made by a person charged with a crime suggesting an inference as to any facts in issue or as to relevant facts. The inference that the statement should suggest should be that he is guilty of the crime. Stephen defined “Confession” as : A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. A confession is a direct acknowledgment of guilt, on the part of the accused, and by the very force of the definition excluded an admission which of itself as applied in Criminal Law, is
16 statement by the accused direct or implied, of facts pertinent to the issue, and tending in connection with a proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction. The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to authorise a conviction, then it is an admission. An other test is that if the prosecution relies on the statement as being true it is confession and if the statement is relied on because it is false it is admission. In criminal cases a statement by accused, not amounting to confession but giving rise to inference that the accused might have committed the crime is his admission. Only voluntary and direct acknowledgment of guilt is confession. In a statement recorded by the Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact of assault on the deceased by mistake. The Supreme Court held that such statement could not be used against the accused as a Confession. A statement which may not amount to a confession may still be relevant as an admission. The definition attempted by the Privy Council has found favour with the Supreme Court in Pakala Narayan Swami v. Emperor over two scores. Firstly, that the definition is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence, and secondly, that a mixed up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession. The confession comprised of two elements : (a) an account of how the accused killed the woman and (b) an account of his reasons for doing so. The former elements being inculpatory and latter exculpatory. In Aghnoo Nagesia v. State of Bihar when a statement in FIR given by an accused contains incriminating materials and it is difficult to sift the exculpatory portion therefrom, the whole of it must be excluded from evidence. Forms of Confession A confession may occur in any form. It may be made to the court itself, when it will be known as judicial confession or to anybody outside the court, in which case it is called an extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. Judicial Confession Judicial confessions are those which are made before a magistrate or in court in the due course of legal proceedings. A is accused of having killed G. He may, before the trial begins confess the guilt before some magistratae who may record it in accordance with the provisions of Section 164, Cr.P.C. At the committal proceedings before the magistrate or at the trial before Session Judge, A may confess his guilt. All these are Judicial confessions. A judicial confession has been defined to mean “plea or guilty on arrangement (before a tribunal) if made freely by a person in a fit state of mind.” Extra Judicial Confession Extra Judicial confessions are those which are made by the accused elsewhere than before a magistrate or in court. An 'extra Judicial Confession' can be made to any person or to a body of persons. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. An extra judicial confession has been defined to mean “ a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself.” An unambiguous extra judicial confession has got value of high probability because this type of
17 confession is made by that person who had committed the crime and it will be taken into consideration if it is free from doubt and its untruthfulness is free from any doubt. But for confession made about charge in question the court has to satisfy itself that the confession voluntary and the confessions should not have been caused by inducement, threat or promise of the confession should not have been taken under the circumstances which came under perview of Sec.25 or 26. Before accepting the extra judicial confession, it should be seen that it is not made under unfair or colleteral notions. For this the court has to enquire all the relevant facts, such as to whom the confession was made, the time and place of making confession and the phraseology used by the accused. Section 24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. -- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court th have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by m aking it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him. Principle underlying Section 24. The ground upon which confessions are received in evidence is the presumption that no person will voluntarily make a statement which is against his interest unless it be true. But the force of the confession depends upon its voluntary character. There is always a danger that the accused may be led to incriminate himself falsely. Voluntary and non-voluntary confession The confession of an accused may be classified as voluntary and non-voluntary. A confession to the police officer is the confession made by the accused while in custody of a police officer and never relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some Magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supposing that by making ti he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be proved against the person making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are made non-voluntarily. Confession irrelevant.-- If a confession comes within the four corners of Section 24 it is irrelevant and cannot be used against the maker. The ingredients of Section 24.-- To attract the prohibition enacted in Section 24 the following facts must be established : (1)That the statement in question is a confession, (2)that such confession has been made by the accused, (3)that it has been made to a person in authority, (4)that the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority,
18 (5)such inducement, threat or promise must have reference to the charge againt the accused, and (6)the inducement, threat or promise must in the opinion of the court be sufficient to give the accused ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. (A)Confession caused by inducement, threat or promise. -- The term of inducement involves a threat of prosecution if the guilt is not confessed and a promise of forgiveness if it is so done. It is very difficult, to lay down any hard and fast rule as to what constitutes inducement. It is for the Judge to decide in every case. Before a confession can be received as such, it must be shown that it was freely and voluntarily made. Thus it is clear that if threat or promise from a person in authority is used in getting a confession it will not be taken into evidence. (B)Threat, inducement and promise from a person in authority. -- The threat, inducement and promise on account of which, the accused admits the guilt must come from a person who has got some authority over the matter. It appears that a person in authority within the meaning of Section 24 should be one who by virtue of his position wields some kind of influence over the accused. (C)Inducement must have reference to the charge.-- The inducement must have reference to the charge against the accused person, that is the charge of offence in the criminal courts and inferencing the mind of the accused with respect to the escape from the charge. The inducement must have reference to escape from the charge. Mere exhortation to speak the truth in name of God cannot in itself amount to an inducement. (D)Sufficiency of the inducement, threat or promise. -- Before a confession is excluded, inducement, threat or promise would in the opinion of the court be sufficient to give the accused person ground which would appear to the accused (and not the court) reasonable for supposing that by making the confession he would gain an advantage or avoid an evil of the nature of contemplated in the section. Consequently the mentality of the accused has to be judged and not that of the person in authority. Section 25.-- Confession to Police officer not to be proved. -- No confession made to a police officer, shall be proved as against a person accused of any offence. The principle upon which the rejection of confession made by an accused to a police officer or while in the custody of such officer is found is that a confession thus made or obtained is untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession. The police officer in order to secure conviction in a case very often puts the person so arrested to severe torture and makes him to confess a guilt without having committed it and when such steps are taken there is impunity for the real offender and great encouragement to crime. Section 25 lays down that no confession made to a police officer shall be proved as against person accused of an offence. It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. All statements that do not amount to confessions are not excluded by Section 25 of the Evidence Act and can be brought on record and proved against any accused. Section 26.-- Confession by accused while in custody of police not to be proved against him. -- No confession made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The object of Section 26 of the Evidence Act is to prevent the abuse of their power by the police, and hence confessions made by accused persons while in custody of police cannot be proved against them unless made in presence of Magistrate.
19 Section 27.-- How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This section of the Act is founded on the principle that if the confession of the accused is supported by the discovery of a fact then it may be presumed to be true and not to have been extracted. This section 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. Section 26 and 27 compared Though the section is in the form of a proviso to Sec.26, these two sections do not deal with evidence of the same character. Section 26 bans confession to police altogether, but S. 27 lets in a statement which leads to a crucial discovery whether it amounts to confession or not. Under Section 26 a confession made in the presence of a Magistrate is wholly provable, whereas Section 27 permits only the part of the statement which leads to the discovery of fact. The scope of the section was explained by the Privy Council in Pulukari Kotaya v. Emperor. A number of accused persons were prosecuted for rioting and murder. Some of them were sentenced to death and some to transportation for life. They appealed to the Privy Council on grounds, among others, that the statements of some of them were admitted in violation of Section 26 and 27. The statement of one of them was : “About 14 days ago I, Kottaya, and people of my party lay in waitfor Sivayya and others.... We all beat Sivayya and Subayya to death. 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 my village. I will show if you come. We did all this at the instance of Pulukuri Kottya”. Another accused said : “I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place”. The relevant articles were produced from their respective places of hiding. The High Court admitted the whole of the above statement. High Court held that unless the whole of the statement is admitted, it would be difficult to connect the articles produced with the offence, the only connecting link being the confession statement. The Privy Council pointed out that the case was wrongly decided. The result of the decision was to read in Section 27 something which is not there and admit in evidence a confession barred by Section 26. Explaining the relationship between Section 26 and 27 and the bar imposed by Section 26, their Lordship said : 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, the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26 added by Section 27, should not be held to nullify the substance of the section. In their Lordship's view it is fallacious to treat the “fact discovered” as equivalent to the object produced; the fact discovered embraces the place from which the object is produced ant the knowledge of accused as to this, and the information given must relate distinctly to this fact. Information as to the past use of the object produced is not related to its
20 discovery. 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 knief. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is concealed in the house of the informant to his knowledge, and if the knief 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 are added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knief in the house of the informant. Explaining the scope of the section in general terms, their Lordships observed : “Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. 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.” Referring to the facts of the case their Lordship held that the whole of statement except the passage, “I hid it(a spear) and my stick in the rick in the village. I will show if you come” is inadmissible. Referring to the statement of the other accused, that “I stabbed Sivayya with a spear. I hid the spear in a yard of my village. I will show you the place,” their Lordships held that the first sentence must be omitted. In Bodh Raj v. State of J & K. it was held that only the information that definitely relates to the facts discovered is admissible. But the information should not be truncated in such manner as to make it insensible. The information must be recorded. Where it is not recorded, the exact information must be adduced through evidence. In State of Karnataka v. David Razario, it was held that the articles proved to have been stolen by the accused were of very small value, articles of higher value remained untouched in the house of the deceased, whether this could be exculpatory circumstance in a charge of murder with robbery, or whether such evidence could be sole basis of conviction, question left unanswered. In Pandurang Kalu Patil v. State of Maharashtra, it was held that where the accused disclosed : “I have kept the firearm concerned behind the old house under a heap of wood”. The same was recovered from the place. The court said that the fact discovered was not the gun but the fact that the accused had concealed it at the place from where it was found according to his disclosure. Section 28 provides that if there is inducement, threat or promise given to the accused in order to obtain confession of guilt from him but the confession is made after the impression caused by rany such inducement, threat or promise has, in the opinion of the court, been fully removed, the confession will be relevant because it becomes pre and voluntary. It must be borne in mind that there must be strong and cogent evidence that the influence of the inducement has really ceased. Section 29 lays down that if a confession is relevant, that is if it is not excluded from being proved by any other provisions of Indian Evidence Act, it cannot be irrelevant if it was taken from the accused by (1) giving him promise of secrecy, or (2) by deceiving him, or (3) when he
21 was drunk, or (4) because it was made clear in answer to question which he need not have answered, or because no warning was given that he was not bound to say anything and that whatever he will be used against him. Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it will not be excluded on the ground of the promise of secrecy or of deception or of being drunk, or for being made in answer to question or without that it will be used against him in evidence. DYING DECLARATION Section 32. Cases in which statements of relevant fact by person who is dead or cannot be found etc. is relevant.-- Statement written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstance of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. -- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Illustration (a) The question is whether A was murdered by B; or A dies of injuries received n a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit wold lie against B by A's widow. Statements made by A as to cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts. Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsay evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no evidence in eye of law and it should be discarded as general rule because the evidence in all cases must be direct. Requirements of Section 32. The section is one of those3 provisions that provide exceptions to the principle of excluding hearsay evidence. The principle of the section is that a person who has the first-hand knowledge of the facts of a case, but who, for reasons stated in the section, such as death or disability, is not able to appear before the court, then his knowledge should be transmitted to the court through some other persons. Dying Declaration or statements relating to cause of death Such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement will be relevant in every case or proceeding in which the cause of that person's death comes into question. The clause further goes on to say that such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of death comes into question.
22 The clause incorporates the principle of English law relating to what are popularly known as dying declarations but marks a remarkable departure from them. Dying declaration in English Law A 'dying declaration' means the statement of a person who has died explaining the circumstances of his death. According to English law the statement is relevant only when the charge is that of murder of manslaughter. The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock : explained the general principle : The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. While the principle stated in this case relating to the basis on which dying declarations are given credit has been approved, the subsequent cases quite clearly emphasise that declarations made without appreciation of impending death would not be admitted. The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in the following words : The principle on which a dying declaration is admitted in evidence is indicated in Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth. Explaining the word “immediate” which was inserted by his Lordship said : “Immediate death must be construed in the sense of death impending, not on that instant, but within a very, very short distance indeed. In other words, the test is whether all hope of life has been abandoned so that the person making the statement thinks that death must follow”. Applying this principle to the facts, his Lordship held that the words “I shall go” should not be taken alone ant the effect of the whole sentence was that she was under the hopeless expectation of death. An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude a declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clear in all respects. To wind up the statement the doctor asked the injured if he had anything else to say. He lapsed into unconsciousness without answering this question. The court held that the statement was not incomplete. It was rightly admitted. Dying declaration under clause (1) of s. 32 Anticipation of death not necessary One of the most important departures from English law that the Evidence Act marks is that here it is not necessary that the declarant should be under any expectation of death. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement. The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of the Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder and sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased, secondly, the statement of the deceased of his wife that he was going to the accused, thirdly, the steel trunk was purchased by a Dhobie (washerman) for and on behalf of the accused. Some other details about the arrival of the deceased at the accused's house, discovery of blood-stained clothes and transportation of the trunk of the station were also proved. The accused appealed to the Privy Council on the grounds that the statement of the deceased to his wife that he was going to the accused was wrongly admitted under S.32(1). The court said, A variety of questions has been mooted in the Indian Courts as to the effect of this
23 section. It has been suggested that the statement making it must be at any rate near death, that the “circumstances”can only include acts done when and where the death was caused.... Statements made by the deceased 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 to them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a Statement might indeed be exculpatory of the person accused. The Supreme Court has emphasised the need for effort by courts, as far as possible, to include a statement within the scope of the S.32(1). Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included. Statement of accused under S.162 Cr.P.C. But the statement of the accused to the police that the deceased arrived at his place was held to be not relevant by virtue of Sec.162 of Cr.P.C. This section provides that a statement made by any person to a police officer in the course of an investigation cannot be used against him in any inquiry or trial. Proximity of time between statement and death There has to be proximate relationship between the statement and the circumstances of death. In Rattan Singh v. H.P. the statement of a woman made before the occurrence in which she did that the accused was standing near her with a gun in his hand and this fact being one of the circumstances of the transaction was held to be admissible as a dying declaration being proximate in point of time and space to the happening. Acceptance of Pakala ruling by Supeme Court The principles thus laid down relating to the relevancy of a dying declaration were accepted by the Supreme Court in Kaushal Rao v. State of Bombay. There were two rival factions of workers in a millarea in Nagpur. Rival factions even attacked each other with violence. In one such violent attack one Baboo Lal was attacked each other with violence. In one such violent attack one Baboo Lal was inflicted a number of wounds in a street at about 9 p.m. He was taken to a hospital by his father and others reaching there at 9.25. On the way he told the party that he was attacked by four persons with swords and spears two of whom he identified as Kaushal and Tukaram. The doctor in attendance immediately questioned him and recorded his statement in which he repeated the above two names. A sub-Inspector also questioned him and noted his statement to the same effect. By 11.35 p.m. A magistrate also appeared and after the doctor had certified that the injured was in a fit condition to make the statement, the magistrate recorded the statement which was again to the same effect. He died the next morning. On the basis of these declarations recorded in quick succession by independent and responsible public servants and as corroborated by the fact that both the named persons were absconding before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life imprisonment. The High Court acquitted Tukaram altogether because of the confusion caused by the fact that in the dying declaration he was described as a teli, whereas Tukaram present before the court was a kohli and in the same locality there lived four persons bearing the same name some of whom were telis. But the conviction of Kaushal was maintained and on appeal, the Supreme Court also affirmed the conviction, did not consider it to be absolute rule of law that a dying declaration must be corroborated by other evidence before it can be acted upon. The learned judge had to face the following observation of the Supreme Court itself. It is settled law that it is not safe to convict an accused person on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and
24 is not subjected to cross examination and because the maker of it might be mentally and physically in a sate of confusion. Need for Corroboration The learned judge referred to the circumstances which may detract from the value of a dying declaration, such as the fact that it was not made at the earliest opportunity, or that the statement was put into the mouth of the witness by interested parties or was the result of leading questions, and added that subject to these qualifications “there is no absolute rule of law, or even a rule of prudence, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction. In P.V. Radhakrishna v. State of Karnataka, emphasing this point further still the Supreme Court observed that a dying declaration can be used as a sole basis of conviction. A person on death bed is in a position so solemn and serene that it is equal to the obligation under oath. For this reason the requirement of oath and cross-examination are dispensed with. The victim(declarant)being the only eye-witness, the exclusion of his declaration may defeat the ends of justice. The court has to be on its guard and see for itself that the declaration is voluntary and seems to reflect the truth. Where there are more than one dying declaration In Kishan Lal v. State of Rajasthan the oral dying declaration was made her(deceased) to her father, uncle and grandfather. Names of the accused mentioned therein. However she could not mention the name of accused in second dying declaration made before magistrate 5 days after on the ground that she could not recognise any accused because of fire darkness coming to her eyes. Second dying declaration not only giving to conflicting version but there was interse discrepancy in deposition of witness given in support of dying declaration; it was held by Supreme Court that the conviction based on such conflicting and discrepant dying declaration was liable to be set aside. Some General Propositions : Factors in reliability The Court laid down the following general propositions : 1. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. 2. Each case must go by its own facts. 3. A dying declaration is not a weaker kind of evidence than any other piece of evidence. 4. A dying declaration which has been properly recorded by a competent magistrate, that is to say, in for of questions and answers, and, as far as practicable in words of the maker of declaration of reliable. In State of Karnataka v. Shariff, where the dying declaration was not recorded in question-answer from, it was held that it could not be discarded for that reason alone. A statement recorded in he narrative may be more natural because it may give the version of the incident as perceived by the victim. 5. To test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man of observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement, that the statement has been consistent throughout; that the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties. The statement of the deceased in this case satisfied all these conditions and therefore, the Supreme Court held that it was rightly acted upon by the High court in convicting the appellant. Where for some unexplained reason the person who noted down (scribe) the statement was not produced, the declaration was not accepted as an evidence.
25 Statement made to or implicating relatives The Supreme Court laid down in a case that a dying declaration made to the relatives of the deceased, when properly proved can also be trusted. F.I.R. As dying declarations and statements recorded by police Where an injured person lodged the F.I.R. And then died, it was held to be relevant as a dying declaration. A declaration noted down by an Assistant Sub-Inspector even before any F.I.R. Was lodged was held by the Supreme Court to be acceptable. In the circumstances of the case, the court was not able to find any fault in the A.S.I. In not getting the statement recorded by a magistrate. There was also no reason to doubt the correctness and authenticity of the dying declaration. There is a clear provision in S. 162(2) of the Cr.P.C. Saving the validity of such statements. Thus technically, a dying declaration recorded by police alone is relevant both under S.32(1) and by virtue of the saving of such statement under S.162(2) of the Cr.P.C. but even so the Supreme Court had laid down that it is better to leave such a statement out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor. In State of Karnataka v. Shariff, the Supreme Court observed that a dying declaration recorded by police cannot be discarded on the ground alone. There is no requirement of law that a dying declaration must necessarily made to a magistrate. PRESUMPTION OF FACTS Sec 114. -- Court may presume existence of certain facts.-- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume. (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular care before it; as to illustration (a)- a shopkeeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically but is continually receiving rupee in the course of his business. Presumption, meaning of. -- A presumption is a rule of law that attaches definite probative value to specific facts or directs that a particular inference as to existence of one fact not actually known shall be drawn from a fact which is known and proved. It furnishes prima ficie evidence of the matter of which it relates and relieves the party of the duty of presenting evidence until his opponent has introduced evidence to rubut the presumption. It raises such a high degree of probability in its favour that it must prevail unless clearly met and explained. Presumptions hold the field in the absence of evidence unless clearly met and explained. Presumption hold the filed in the absence of evidence but when facts appear presumptions go back. Presumptions may be either of law or fact and when of law may be either conclusive or rebuttable but when of fact are always rebuttable. Mixed presumption are those which are partly of law and partly of fact. Court may presume the existence of certain facts.-- If a fact is likely to have happen in the common course of natural events according to general human conduct, according to public and private business, in their relation to the facts of the particular case, the court may presume the
26 existence of such fact. This section gives the courts very wide power. If a fact must happen in the ordinary course of events the court may presume it and the party denying its existence has to rebut it. In a criminal case the burden of proof always lies on the prosecution, for the accused is to be presumed to be innocent. The illustration (a) is an exception to this general rule. This illustration lays down that as soon as it it has been established that the prisoner was found in possession of stolen goods shortly after they were stolen, it may be presumed that he is, either a thief or has received the goods knowing them to be stolen, unless he can account for his possession. The presumption permitted by illustation (a) does not arise until the prosecution has established the following facts :-(1) The ownership of the article. -- Before a presumption may be raised under illustration (a) against an accused to the effect that he is a thief or has received an article knowing it to be stolen, it must be proved that the article which was recovered from his possession, belonged to somebody else and was in his possession sometimes back. (2) The commission of theft. -- The second ingredient to be proved by the prosecution in order to give rise to a presumption under illustration (a) is the proof of theft of the article recovered from the possession of the accused. The prosecution must prove that a theft was committed in respect of the property recovered from the possession of the accused. In the case of Union Territory of Goa v. B. D. D'Souza and others, the accused was unable to give any evidence about the stolen things. The presumption can be made under Section 114. The accused were guilty under Section 411, I.P.C. But from the fact that the stolen article was recovered from the accused after one month of theft, it shall not be presumed that the accused had committed murder. (3) Recent Possession. -- Mere recovery of stolen property from the possession of accused does not give rise to presumption under illustration (a). For presumption under illustration (a) the possession must be recent. The presumption permitted to be drawn under section 114, illustration (a) has to be read along with the important time factor. If article are found in the possession of a person soon after the theft, presumption of guilt may be permitted. But if a thing is recovered long after no presumption can be drawn. Whether the possession is recent or not must be determined by the nature of the articles stolen. If the article is of a nature likely to pass from hand to hand, the periods elapsed between the committing of theft and the recovery must be very short. If the period is not very short no presumption can be raised that the person in possession is a thief, or that he received the article knowing it to be stolen. But if the article is of such a nature that it cannot change hands easily a longer period may be taken to be recent. In such cases the prosecution has to prove that the accused stole away the article himself or he received it knowing it to be stolen. (4) Possession must be exclusive.-- In order to raise the presumption legitimately the possession of stolen property should be exclusive as well as recent. Finding of it on the person of the accused or in a locked up house in a room or in a box of which he kept and the key of which he was in exclusive possession would be a fair ground fro raising the presumption under this illustration; but if the articles stolen were only found in house or in a room in which he lived jointly with others or in an open box to which others have access, no definite presumption of his guilt could be made. In Trimbak v. State of M.P., court observed that, when the filed from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively
27 that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their hereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. Conviction for offences other than theft on recovery.-In Nagappa Dondiba v. State of Karnataka It was held that the recovery of ornaments of deceased which she was wearing before the murder, at the information of accused cannot connect the accused with murder unless some evidence to connect him with murder. No presumption of murder can be drawn under illustration (a) Presumption of murder by recovery of article of deceased.-- In Wasim Khan v. State of U.P., the question as to whether presumption should be drawn under section 114(a) is a matter which depends on the evidence and circumstances of each case. The nature of recovery, the matter of their acquisition by the owner , the manner in which the article were dealt with by the accused, the place of recovery, the length of period of recovery, the explanation of the accused or some of them. A recent and explained possession of stolen articles of deceased can be well be basis of presumption of murder. Accused's Explanation.-The following proposition regarding the burden of proof to criminal trial may be deduced from the decided cases. (1) That in a criminal trial the onus of proving the main issue is always on the prosecution, (2) that under illustration (a) to this section the Court may, but is not obliged to make the presumption therein mentioned, (3) that even if the Court makes the presumption under illustration (a) the onus of the general issue is still on the prosecution, (4) that it is not the law that if the accused fails to account for his possession of the goods alleged to be stolen, he must be convicted, if the other proved facts of the case do not prove his guilt, (5) that the accused is entitled to acquittal if he can give explanation which were reasonably true although the court may not be convinced of its truth. (6) that the accused is not required to prove his explanation by adducing evidence, (7) that the accused need not give any explanation unless he is asked to account for his possession. ACCOMPLICE EVIDENCE An accomplice means a person who has taken part in the commission of a crime. When an offence is committed by more than one person in concert, every one participating in its commission is an accomplice. Conspirators lay their plot in secret, they execute it ruthlessly and do not leave much evidence behind. Often, therefore, the police has to select one of them for the purpose of being converted into a witness. He is pardoned subject to the condition that he will give evidence against his former partners in the crime. He is then known as an accomplice, turned witness or an approver. He appears as a witness for the prosecution against the accused person with whom he acted together in the commission of the crime. The question is, to what extent his evidence or testimony can be relied upon to convict his former associates. What is the value of evidence of a former criminal turned witness? Two provisions in the Act touch this problem. Section 133 categorically declares that an accomplice is a competent witness and the Court may convict on the basis of such evidence and the conviction will not be illegal simply because it proceeds upon the uncorroborated testimony of an accomplice. The other dealing with the matter is in the illustration (b) to section 114,
28 which says that the court may presume that an accomplice is unworthy of credit unless corroborated in material particulars. These provisions should first be reproduced. S.133. Accomplice. -- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. S.114. Illustration (B).-- The court may presume that an accomplice is unowrthy of credit, unless he is corroborated in material particulars. The apparent contradiction between these two declarations should first be resolved. Section 133 is a clear authorisation to the courts to convict on the uncorroborated testimony of an accomplice, but since such a witness, being criminal himself, may not always be trustworthy, the court are guided by the illustration appended to Section 114 that, if it is necessary the court should presume that he is unreliable unless his statement are supported or verified by some independent evidence. Categories of Accomplices.-In order to be an accomplice, a person must participate in the commission of the same crime. This participation may be done in various ways. The modes of taking part with a crime are treated under the head of :(1) Principals in the first and second degree. -- A principal of the first degree is one who actually commits the crime. A principal of the second degree is a person who is present and assists in the perpetration of the crime. These persons are undoubtedly under all the circumstances accomplice. (2) Accessories before the facts. -- An accessory before the fact is one who counsels, incites, connives at, encourages or procures the commission of the crime. Of these persons, those who counsel, incite, encourage or procure the commission of the crime are certainly accomplices. (3) Accessories after the fact. -- Every person is an accessory after the fact to a felony, who knowing that a felony has been committed by another person receives, comforts or assists him in order to escape from punishment; or rescues him from arrest, or having him in custody for the felony, intentionally and voluntarily allows him to escape, or opposes his arrest. Three conditions must unite to render one an accessory after the fact: (1) the felony must be complete; (2) the accessory must have the knowledge that the felony has been committed; (3) the accessory must harbour or assist the principal felon. Corroboration as Rule of Caution Once it is determined that the person who has appeared as a witness in fact an accomplice, the question then arises as to what value is to be attached to his evidence, namely, whether it should be acted upon in itself or some independent verification should be thought of his statements. It has been observed from the earliest times as a rule of caution which has now become virtually a rule or law, that the evidence of an accomplice should stand the test of verification at least in main points. This is known as corroboration. The reasons why corroboration has been considered necessary are that :(1) he has been criminal himself, and, therefore, his testimony should not carry the same respect as that of a law-abiding citizen. (2) he has been faithless to his companions and may be faithless to the court because he has motive to shift the guilt from himself to his former companions, and (3) if he is an approver, he has been favoured by the State and is therefore, likely to favour the state. These reasons dictate the necessity for corroboration.
29 Once corroboration in material particulars is found, the testimony of an accomplice can be the basis of conviction. The meaning and nature and extent of corroboration were explained by the court of Criminal Appeals in R v. Baskerville : The case involved an indecent assault upon two young boys with their consent at the residence of the accused. Thus both the boys were accomplices. The only way to corroborate the evidence of one was to refer to the statement of the other. Should the evidence of one accomplice be corroborated with the evidence of another accomplice. The court held that the general principle is against it. In Bhuboni Sahu v. The Emp., eight persons were prosecuted for a murder; four of them were acquitted. Of the remaining, one appealed to the Privy Council. The evidence against the appellant consisted of (a) evidence of an accomplice who had taken part in the murder and had become an approver, (b) the confession of another accused person implicating himself and the appellant, and © the recovery of a cloth which the deceased was wearing and a Khantibadi in circumstances which were taken to verify the evidence of the accomplice The appellant was acquitted by the court. The Court Observed : The combine effect of Section 133 and 114, Illustration (b) may be stated as follow: According to the former which is a rule of law an accomplice is competent to give evidence and according to the latter which is a rule of practice is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the court will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particular. The law may be stated in the words as in R v. Baskerville. There is no doubt that the uncorroborated evidence of an accomplice is admission in law. But it has been long a rule of practice at common law for the Judge to warn the jury of the danger of convicting and in the prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the Judge should point out to the jury that is within their legal province to convict upon such unconfirmed evidence. In Narayan Chetanram Chaudhary v. State of Maharashtra, accused committed offence of robbery and murder. All deaths, except of a child, were caused by the A1, child was killed by A2. Raju, PW 2 actively participated and facilitated the commission of the crime. The murders were apparently committed to wipe out all evidence of robbery and committed by the accused persons. Accused were arrested from different places. In the identification parades they were identified by various witnesses. After the commitment but before the commencement of the trial Raju expressed his wish to make a confessional statement. The trial court accepted the application. The accused Raju was tendered pardon on the condition that he shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. High Court also accepted the reference. The learned counsel for the appellants argued that as the statement of the approver was recorded after an unexplained prolonged delay, the same could not be made the basis for conviction of the accused. To this it was held that, Otherwise the words of the section “at any time after commitment of the case but before judgment is passed” are clearly indicative of the legal position which the legislature intended. No time limit is provided for recording such a statement and delay one of the circumstances to be keep in mind as a measure of caution for appreciating the evidence of the accomplice. Human mind cannot be expected to be reacting in a similar
30 manner under different situations. Any person accused of an offence, may, at any time before the judgment is pronounced, repent for his action and volunteer to disclose the truth in the court. Repentance is a condition of mind differing from person to person and from situation. Court, therefore, do not find any substance n the submissions of the learned defence counsel that as the statement of the approver was recorded after prolonged delay, no reliance could be placed upon it. Learned counsel further contended that conviction based upon the uncorroborated testimony of the approver is neither safe nor proper particularly in a case where extreme penalty of death is awarded. The Court said after making reference to Bhuboni Sahu v. R. ; R v. Basherville etc. the court said that We have minutely scrutinized the evidence of PW2 and the corroborative evidence noticed by both that trial court as well as High Court and find no substance in the submission of the learned counsel for the appellants that the testimony of PW 2 is vivid in explanation and inspires full confidence of the court to pass the conviction on the appellants for the offences with which they were charged. The corroborative evidence to the aforesaid statement leave no doubt in the mind of the court regarding the involvement of the appellants in the commission of the crime for which they have been convicted and sentenced. Nature and extent of corroborations As to the nature and extent of corroboration required, cited the opinion in R. v. Stubbs, namely, that the evidence of an accomplice must be confirmed not only as the circumstances of the crime, but also as to the identity of the prisoner. Corroboration in Rape Cases The case is not directly on the subject of “accomplice”, but is on the point of corroboration. Corroboration is a common point between the victim of rape and an accomplice because through the woman who has been raped is not an accomplice, but her evidence has been treated by the courts on somewhat similar line. Her evidence requires corroboration the same way as that of an accomplice. RELEVANCY OF THE TAPE RECORDED CONVERSATION Meaning of documentary evidence The expression “documentary evidence”, as it is defined in section 3, means : All documents produced for the inspection of the court; such documents are called documentary evidence. The expression “document” is defined in section 3 as follows” : “Document” means any mater expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Admissibility of Tape Recording. -- Tape recorded conversion is admissible. Tape recording is document as defined in Section 3 of Evidence Act which stood on no different footing than Photograph. They are relevant on satisfying the following condition : (i) The voice of the person alleged to be speaking must be identified by the maker of the record or by other who know it. (ii) Accuracy of what was actually recorded had to be proved by maker of the record, and satisfactory evidence, direct or circumstantial,had to be there so as to rule out the possibility of tampering with the record, (iii) The subject matter recorded had to be shown to be relevant according to the rules of
31 relevancy in the Evidence Act. Recorded Tapes With regard to the relevancy of a recorded tape, it has been said that there is “no reason in principle why the recording in some permanent or semi-permanent manner of human voice (or other sounds) which are relevant to the issue to be determined, provided that it furnishes information, cannot be a document.” They become media of communication as superior substitute for words. It has been observed in an Australian case : If it should be established by oral evidence that there was a mechanical electronic recorder in operation at a material time which was capable of and did record accurately sounds as they occurred, and other oral evidence of identification, and non-interference, it appears that the material containing such recording is properly admissible in evidence. There is no distinction in principle from the reception into evidence of a photograph of a street accident taken at the time of its occurrence which is sworn to by an eye-witness as being a true representation of the scene at the relevant time. In that case light waves, and in the case of a recording, sound waves, have been captured and preserved by scientific means. These principles have generally been followed by the Supreme Court of India. Tape -recorded conversations came before the Supreme court mostly in cases involving corruption by officials in receiving or attempting to receive bribes. One such case is R. M. Malkani v. State of Maharashtra. The accused, who appealed to the Supreme court against his conviction, was the coroner of Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwords died. It, being a post-operation death, became th subject of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favourable to him. The payment was arranged to be made through another doctor and the final meeting for this purpose was to be settled by telephone call from the house of the other doctor. The police commissioner was called with the tape-recording mechanism. This was connected to the doctor's telephone and thus the most incriminating conversation was recorded in the presence of the police officer. The Bombay High Court held that the testimony of the two doctors required corroboration and that the tape amply corroborated it. The decision was upheld by the Supreme Court. Looked into the previous authorities. This court in number of cases accepted conversation of dialogue recorded on tape-recording machine as admissible evidence. In Nagree's case, the conversation was between Nagree and Sheikh and Nagree was accused of offering bribe to Sheikh. In the Presidential Election case question were put to a witness that he had tried to dissuade the petitioner from filing an election petition. The petitioner had recorded on tape the conversation that took place between the petitioner and the witness. The court admitted the recording to contradict the witness. The tape itself becomes the primary and direct evidence or what has been said and recorded. Dealing with the relevancy of such evidence the learned judge said : “Tape-recorded conversation is admissible provided, first, the conversation is relevant to the matters in issue; secondly, there should be 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 relevant under section 8 of the Act. It is also res gestae (part of the same transaction) and, therefore, relevant under section6. It is also comparable to photograph of a relevant incident and is, therefore a
32 relevant fact under section7 of the Act.” Applying these principles to the facts of the case the learned judge had no doubt that the conversation in question was relevant. Still another case before the Supreme court involved the eviction of a tenant on the ground of subletting. The finding of the Rent Controller that there was subletting, was based upon a taperecorded conversation between the tenant and the husband of the landlady. The Court held that tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of parties to the conversation. In the absence of any such evidence, the tape cannot be used as an evidence in itself. In a subsequent decision the Supreme Court has tightened the rule as to relevancy of tape to this extent that it must be shown that after the recording the tape was kept in proper custody. In that case the Deputy Commissioner had left the tape with the stenographer. That was held to be sufficient to destroy the authenticity of the tape. The supreme Court has further suggested that how the cassette came into existence is an important consideration. The court rejected taperecorded evidence of an election speech because the tape was prepared by a police officer and he was not able to explain why he had done so. The candidate had denied that the tape was in his voice.
