CHAPTER I
EVIDENCE OF ONLY FACTS IN ISSUE & RELEVANT FACTS
Indian Evidence Act does not give any specific definition of ‘relevancy’ or ‘relevant fact’. It simply describes when one fact becomes relevant to another fact. The second chapter in the law of evidence is ‘relevancy of facts’ which is considered as a tool to identify facts and appropriate to the case. As per Section 2 of Indian Evidence Act, One fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of Indian Evidence Act. Section 5 to Section 55 of Indian Evidence Act provides several ways in which one fact may be connected with the other fact. One fact is relevant to another fact if they are connected with each other in any of the ways as described in Section 5 to Section 55. If a fact is not so connected, it is not a relevant fact.
SECTION 5 OF EVIDENCE ACT "EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE AND RELEVANT FACTS"
Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.
RELEVANT FACT -
The word “relevant‟ has two meanings. In one sense, it means, “Connected” and in another sense “admissible”. One fact is said to be relevant to another, when the one is connected is said to be relevant to another, when the one is connected with the other, in any of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts.
In simple words, fact is said to be relevant to another, if it is connected therewith under the provision of the Evidence Act. The expression “relevancy‟ means “connection between one fact and another”. Where in a case direct evidence is not available to prove a fact in issue then it may be proved by any circumstantial evidence and in such a case every piece of circumstantial evidence would be an instance of a "relevant fact".
LOGICAL RELEVANCY AND LEGAL RELEVANCY
A fact not so connected is not a relevant fact. The scheme of the Act seems to make all relevant facts admissible. The main problem in this regard is deciding which fact is legally relevant as well as logical in nature. A fact may be logically relevant to a particular case but there is no guarantee that it will be legally admissible in the courts. So all the evidences that are to be produced in the courts have to pass two hurdles it has to be both:
1. Logically relevant and
2. Legally admissible at the same time.,br>
When a fact is connected with another fact, it is logically relevant but it is legally relevant if the law declares it to be relevant. If it is not declared by the law to be relevant, it is not admissible in evidence. "Every fact that is legally relevant is also logically relevant but every logically relevant fact may not be necessarily legally relevant." Under the Evidence Act, a fact is said to be relevant to another when it is relevant under the provisions of Sections 6 to 55 of Evidence Act.
"Ram Bihari Yadav v. State of Bihar1998 4 SCC 517 is a very important case which helps us to understand the concept of clearing the two hurdles and the distinction between relevancy and admissibility. Relevancy is actually the test of admissibility. The Supreme Court in this case said that in most cases the two words admissibility and relevancy are used interchangeably with each other but their legal implication are very different because often relevant facts such as communication between the spouses in marriage is important but not legally admissible.
LEGAL RELEVANCY AND ADMISSIBILITY
Relevancy and admissibility are not co-extensive or interchangeable terms. A fact may be legally relevant, yet its reception in evidence may be prohibited on the grounds of public policy, or on some other ground. Similarly every admissible fact is not necessarily relevant. The tenth Chapter of the Act makes a number of facts receivable in evidence, but these facts are not “relevant” under the second Chapter which alone defines relevancy.
DIFFERENCE BETWEEN RELEVANCY ADMISSIBILITY
1. When facts are so related as to render the existence or non-existence of other facts probable according to common course of events or human conduct, they are called relevant. | 1. When facts have been declared to be legally relevant under Indian Evidence Act they become admissible. |
2. It is founded on logic and human experience | 2. It is founded on law not on logic. |
3. The question regarding relevancy has been enunciated in Section 5 to Section 55 of Indian Evidence Act. | 3. The question of admissibility is provided in Section 56 and the following sections. |
4. It signifies as to what facts are necessary to prove or disprove a fact in issue. | 4. It is a decisive factor between relevancy and proof. |
5. It merely implies the relevant facts. | 5. It implies what facts are admissible and what are not admissible. |
6. It is the cause. | 6. It is the effect. |
7. The court may apply its discretion. | 7. There is no scope for the court to apply discretion. |
8. All admissible facts are relevant. | 8. All relevant facts are not admissible. Only legally relevant facts are admissible. |
SECTION 6- RELEVANCY OF FACTS FORMING PART OF SAME
Facts which, though not in issue, are so connected with a fact in issue as to for, part of the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by- standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant as forming part of the general transaction though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of whom 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.
RES GESTAE UNDER INDIAN EVIDENCE ACT:
These are facts surrounding or accompanying a transaction. Sections 6,7,8,9 and 14 give the various ways in which the facts are so related to each other to form component of the principal facts. The word same transaction has not been defined in the evidence act. This has a reference to the circumstances which are the automatic the incidents. Section 6 of the Indian evidence Act explains the principle of res gestae. Hearsay evidence is not admissible in court of law. But, res gestae is exception to hearsay rule. The rationale behind this is the spontaneity and immediacy of such statement that there is hardly any time for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.
Vasa Chandrasekhar Rao vs Ponna Satyanarayana & Anr. 2000 (2) ALD Cri 126,His wife and daughter were killed by the accused. Deposition of the deceased’s father that the father of the accused made a telephone call to him, saying his son had killed the deceased was not found admissible. The question before the court was that it was possible to admit the deposition of the accused father under Section 6 and is Res Gestae going to be a hearsay exception?
Failing to find out whether the information given by the accused father to the deceased’s father who killed his wife and daughter was refused to accept the evidence as relevant under Section 6 either at the time of the crime being committed or immediately thereafter to form part of the same transaction.
DOCTRINE OF RES GESTAE
The principle embodied in law in Section 6, is usually referred to as the res gestae doctrine. ‘Res Gestae’ is a Latin term which can be translated to ‘things done’. The concept of res gestae has emerged from the belief that certain acts or statements, which may otherwise be irrelevant and inadmissible, may be admitted as evidence due to the very situation in which they were committed or uttered. The doctrine of res gestae is generally used to admit a potentially inadmissible piece of evidence in order to provide context to an event. The most important principle of this doctrine is that all the facts must be described in the same transaction. Whereas transaction means a group of facts which are so connected to each other that they can be considered as a single fact.
In simple words, a transaction may be considered as a series of certain acts and when all the actions are carried in the same situations at the same point of time then such situation or condition be called as the act of the same transaction. Circumstantial or indirect facts are also considered under the doctrine of res gestae as they are also forming a part of the same
Illustrations:
- An injured or injured person’s cry.
- The witness’s cry to see a murder happen
- The sound of a shot of a bullet
- The person being attacked is crying for help.
- Gestures made by the person dying etc.
ESSENTIALS OF DOCTRINE OF RES GESTAE-
1. The statement made should not be an opinion and must be a statement.
2. The statements should be made by the participants of the transaction.
3. The statements should have enough information to explain or brief about the incident.
4. The statements made by the person or act of the person should be spontaneous and simultaneous to the main transaction.
CASE LAWS,
Ratten V. Queen 1971 3 All ER 801,
The victim (wife) had called the police for help but before operator could connect her to the police, her call was disconnected. Later the police found her dead body from her house from where the call was made and the time of death and the time of phone call was almost the same. The call made to the police came under the purview of section 6.
Sawal Das V. State of Bihar 1974 AIR 778, 1974 SCR (3)74
The cry of the children from the house when their mother was being killed by their father became a part of the same transaction and therefore fell under section 6 and became admissible as valid evidence.
Queen V. Abdullah. (1885) ILR 7 All 385
The gesture made by the victim who was dying, that the accused had killed her came under the purview of res gestae.
Arjun v State of U.P 2003 (46) ACC 233 ALL
In this case immediately after the incident the prosecution witness came to the sport on hearing cries and gained the knowledge through another person present there that it was the accused/appellant who had stabbed the victim. This evidence is held admissible under Section 6 of the Evidence Act as the same is corroboration of the eye-witness account.
Bhairo Singh v State of M.P AIR 2009 S.C 2603.
In this case it was held that to form particular statement as part of same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.
The rule against the admission of hearsay is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination. e.g. Statement by hotel owner that he had learnt from the waiter that both accused left the hotel asking waiter ‘to take care of their uncle who was in the room and they would be returning soon’ was held to be hearsay.
“Gentela Vijayvardhan Rao and anr. v. State of Andhra Pradesh, (1996) 6 SCC 241”
In this case, Hon’ble Supreme Court held that when the witnesses arrived at the place of occurrence immediately after the completion of the event and heard full account of what had happened. Their testimony was considered valid under section 6 of the Evidence Act. It is essential to note here that only a statement of fact can form part of Res gestae and not a statement of opinion.
SECTION 7- FACTS WHICH ARE THE OCCASION, CAUSE OR EFFECT OF FACTS IN ISSUE
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B.
The facts that shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it to third persons, are relevant.
(b) The question is, whether A murdered B.Marks on the ground, produced by a struggle at or near the place where the murder was committed are relevant facts.
(c) The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.
Facts though not strictly forming part of the transaction may be so closely connected with it and that they tend to prove or disprove or explain the transaction under enquiry. So, section 7 makes them relevant by embracing a large area of facts. The particular modes of connection as specified in the section are:-
1. Occasion
2. Cause
3. Effects
4. Opportunity
5. State of thing
1. OCCASION:-
Evidence can always be given of set of circumstances which constituted the occasion for the happening of principal fact.
In R V. Richardson, the deceased girl was alone in her cottage at the time of the murder is relevant as it constituted the occasion for the murder.
2. CAUSE:-
Cause often explains why a particular act was done. It helps the court to connect a person with the act. The word “cause” is broader than the word motive.
In Indian Airlines v. Madhuri Chowdhary that the report of an enquiry commission relating to an air crash is relevant under section 7 as establishing the cause of the accident.
3. EFFECTS:-
Every act leaves behind certain effects which not only records the happening of the act, but also throw light upon the nature of the act. For example: - foot prints, finger impressions etc.
54. OPPORTUNITY:-
The Circumstances which provided an opportunity for the happening of a fact in issue are relevant. Evidence of opportunity thus becomes important as it shows that the act must have been done by the person who had the opportunity to do it.
In R V. Richardson, the fact that Richardson left his fellow workers at about the time of the murder under the pretence of going to a smith’s shop was relevant as this gave the accused his opportunity.
5. STATE OF THINGS:-
This category of facts, would allow evidence of the state of relations between the parties, the state of health of the deceased and his habits, etc.
In Ratten V. Reginam, where the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact that the accused was unhappy with his wife and was carrying an affair with another woman was held to be relevant as it constituted the state of things in which principal facts, namely, the shooting down, happened.
SECTION 8- MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1.The word ‘conduct’ in this section does not include statements, unless those statements accompany and explain Acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2.When the conduct of ant person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Illustrations
(a) A is tried for the murder of B.The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public are relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the bond.The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose is relevant.
(c) A is tried for the murder of B by poison. The fact that before the death of B, A procured poison similar to that which was administered to B, is relevant.
(d) The question is, whether a certain document is the will of A.The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate that he consulted [Vakils] in reference to making the will and that he caused drafts of other wills to be prepared, of which he did not approve, are relevant.
(e) A is accused of a crime.The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case as appearance favorable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons so might have been witnesses, or suborned persons to give false evidence respecting it are relevant.(f) The question is, whether A robbed B.The facts that, after B was robbed, C said in A’s presence – “the police are coming to look for the man who robbed B”, and that immediately after wards A ran away, are relevant.
(g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend him money, and that D said to CIA presence and hearing- “I advise you not to trust A, for he owes B 10,000 rupees,” and that A went away without making any answer are relevant facts.
(h) The question is, whether A committed a crime.The fact that a absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter are relevant.
(i) A is accused of a crime.The fact that after the commission of the alleged crime, he absconded, or was n possession of property or the proceeds of property acquired by the crime, or attempted to conceal things were or might have been used in committing it, are relevant.
(j) The question is, whether A was ravished.The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.The fact that, without making complaint, she said that she had been ravished is not relevant as con duct under this section. Though it may be relevant— As a dying declaration under section 32 [clause] (1), or As corroborative evidence under section 157.
(k) The question is, whether A was robbed.The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant.The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant- as a dying declaration under section 32 (clause) (1), or as corroborative evidence under section 157.
Section 8 of the Indian Evidence Act talks about the importance and motive, preparation and conduct (previous & subsequent) in various cases. And it is a well- known fact that Motive and Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there is no direct evidence and the facts are proven on the basis of circumstantial. Section 8 provides for the relevancy of three principal facts which are very important in connection with every kind of criminal case. They are:-
1. Motive
2. Preparation
3. Conduct
MOTIVE –
The term ‘Motive’ simple means a purpose or objective to obtain something. Motive refers to the internal motivation that tempts a man to do a particular act. As a general rule, there can be no act without a motive. The voluntary actions of sane persons are always guided by a motive. The conduct of the person is regarded as the proof for the motive.
The Supreme Court of India defined motive is something which induces or activates a person to make an intention and knowledge, with respect to awareness of consequences of the act. Motive assumes an important role in cases relying solely on circumstantial evidence because, in such cases, motive itself is seen as a circumstance. Motive cannot always be shown directly. It has to be inferred from the facts and circumstances in evidence.
MORTIVE AND INTENTION
Although motive and intention are the same there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented. Motive is the moving power which impels one to do an act. It is the inducement for doing the act. Motive itself is no crime but once a crime has been committed, the evidence of motive becomes relevant.
In R.V Richardson, (1758) 97 ER 426 the fact that the accused was the father of the child of which the deceased was pregnant at the time was held to be relevant, as he might have killed deceased to save his character.
In Natha Singh v. emperor, the Privy Council held that proof of motive is not necessary where there is clear evidence that a person has committed an offence. If prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive.
Gurmej Singh v. State of Punjab, AIR 1992 SC 214”
The deceased has won the election against the accused. It is also seen that they don’t have good relations between and they have always had a quarrel with each other. The reason behind frequent quarrels was that the accused diverted dirty water stream towards the house of the deceased. The court observed that there were pending litigation between them and dirty water stream induced the frustration between them. After the death of the deceased, the Court concluded that dispute related to the passage of dirty water could be the motive of the murder.
PREPARATION –
Preparation by itself is no crime. But section provides that the facts which show or constitute Preparation of any fact in issue or relevant fact are relevant. Preparation refers to the act of arranging for the means and methods required for the commission of the crime. Thus, where the A is being tried for the murder of B by poison, the fact that A had procured a similar poison prior to the murder is relevant. Thus preparation includes arranging the essentials objects for the commission of offence.
Evidence tending to show that the accused had prepared for the crime is always admissible. Preparation does not express the whole scenario of the case rather preparation is only subjected to the arrangements made in respect of committing any act. Further, there is no mandate that preparation is always carried out but it is more or less likely to be carried out. It is very difficult to prove preparation as there is no mandate that preparation is always carried out for the purpose of committing any crime. It is mostly observed that the Court draw inference with certain facts in establishing or ascertaining the preparation of crime committed.
APPU VS. STATE AIR 1971 Mad 194
This was a case of burglary. Here the 4 accused conducted a meeting to make arrangements for the crime. A bar made of iron and a pair of pincers was necessary and these were brought by the accused of the case. And these facts were admitted as they showed the preparation on the part of the accused. The preparation showed clearly that an intention to commit the offence of burglary was framed and that intention remained in the minds of the accused until they were grabbing any opportunity to put the preparation into the execution of the crime.
CONDUCT –
Section 8 of The Indian Evidence Act also defines ‘conduct’ which means an external behaviour of a person. Guilty mind begets guilty conduct. The conduct of a man is particularly important the Law of evidence, for his guilt or the state of mind is often reflected by his conduct.
M. MALKANI V. STATE OF MAHARASHTRA AIR 1973 SC 157
The recorded telephone conversation about the settling of the bribe-money was held to be evidence of conduct. Therefore Absconding of an accused is relevant conduct under the Indian Evidence Act, 1872. However, it must be noted that the act of absconding shows the guilt of the accused only to a certain extent because even innocent persons tend to escape due to the instinct of self-preservation.
EXPLANATION:
This section says that if there is any fact that shows or constitutes a motive or preparation for any fact in issue is a relevant fact in the case. The conduct of a party or agent to a party to a suit or reference to any proceeding is relevant whether it is subsequent or previous.
The word “CONDUCT” in this section does not include the statements unless those statements accompany and explain the acts other than statements, but this explanation is not to affect the relevancy of any statements under any other section of the Act. When the conduct of any person is relevant in the proceeding, any statement made to him or her in their presence and hearing, which affects such conduct is also relevant here.
NAGESHA V. STATE OF BIHAR AIR, 1996 SC119
Here, in this case, it was held by the Court of law that if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his good conduct.
It is very clear that conduct is one of the very important evidence explained under Section 8 and such importance is only considered when this conduct is in direct form, otherwise, if the conduct is recognised indirectly then it will lose its importance.
SECTION 9 - FACTS NECESSARY TO EXPLAIN OR INTRODUCE RELEVANT FACTS
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested but a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by ho, any such fact was transacted are relevant in so far as they are necessary for that purpose.
Section 9 is dealing with large number of facts which are either introductory or explanatory in nature, are relevant.
THE SECTION DECLARES THE FOLLOWING KIND OF FACT TO BE RELEVANT.
(i) Facts necessary to introduce or explain.,br>(ii) Facts which support or rebut an inference.
(iii) Fact which establish the identify of anything or person
(iv) Facts which fix time or place.
(v) Facts which show the relation of parties.
INTRODUCTORY OR EXPLANATORY FACTS:-
INTRODUCTORY FACTS:-
Evidence is always allowed of facts which are necessary to introduce the main facts or some relevant fact. Facts which are introductory of a relevant fact are of great importance in understanding real nature of transaction and being relevant. Thus, evidence is allowed of facts which are necessary to introduce fact in issue or relevant fact.
Illustrations
(a) The question is whether a given document is the will of A.The state of A’s property and his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A. B affirms that the matter alleged to be libelous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relation between A and B.
(c) A is accused of a crime.The fact that, soon after the commission of to crime, an absconded from his house, is relevant under section 8, as conduct subsequent to and affected by facts in issue.The fact that, at the time when he left home he had sudden and urgent business at the place, to which he went, is relevant, as tending to explain the fact that he left home suddenly.The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.
EXPLANATORY FACTS:-
Evidence of explanatory facts is allowed for the same reason. There are many pieces of evidence which have no meaning at all if considered separately, but become relevant when consider in connection with some other facts. Such facts explain the fact in issue or relevant fact.
Illustrations
(a) A, accused of theft, is seen to give the stolen property to B, who is seem to give it to A’s wife. B says as he deliver it—‘A says you are to hide this.’ B’s statement is relevant as explanatory of a fact which is part of the transaction.(b) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.
FACTS WHICH SUPPORT OR REBUT INFERENCE:-
Evidence can be given of facts which support or rebut an inference suggested by a fact in issue or relevant fact. There are facts which are neither relevant as facts in issue nor as relevant facts but they support the inference suggested by the facts in issue or relevant fact or contradict the facts in issue or relevant fact. There are facts, which can rebut or contradict the inferences suggested by the facts in issue or relevant fact.
The fact, that soon after the commission of the crime, the person absconded from his house is relevant under section 8 as a conduct affected by the fact. Such a conduct is relevant because it suggests the inference that he is guilty. Any fact which either supports this inference or rebuts, it will also become relevant.
For example
1. If after absconding, he was arrested in a railway train travelling without ticket or in a shabby dress, this will be relevant as these facts support the inference that he is guilty. It will be equally relevant for him to show that he left home because he had urgent and sudden business to attend.
2. A, after murder was seen running away from the village. Running away supports the inference that the murder might have been caused by him. It is relevant.Similarly, a group of men was charged of committing a dacoity. Prior to decoity the accused were associated with the approver being relevant as supporting the statement of approver. Facts contradictory to fact in issue or relevant facts are relevant under the section.
FACTS ESTABLISHING IDENTITY OF THING OR PERSON:
When the identity of thing is in question, every fact which will be helpful to identify the thing is relevant. Where the court has to know the identity of anything or any person any fact which establishes such identity is relevant. The identity of a person can be established by the evidence of persons who know him. Every fact which can help the court to establish the identity in question is relevant.
IDENTIFICATION OF
Identification of person has been dealt with under section 9 of the Evidence Act. When the identity of a person is in question, identification by parents, wife or other relatives is relevant. In any special case identification of a person can be made by bodily mark, sign or cut mark. There are other means of identification by medical examinations, namely, examination of skeleton, bones, age, voice, blood group etc. By experts the identification of any person may also be possible, such as handwriting, finger print, foot print, photograph etc. Thus, identification of person may be possible by various means and ways.
PRECAUTIONS TO BE TAKEN FOR CARRYING IDENTIFICATION PARADE:
Following precautions to be taken for carrying identification parade
1) It should be fair and seems to be fair and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification to through the witness.
2) The investigation officer concerned with the case against the suspect, if present, must not take part in conducting the parade.
3) The parade should be arranged by an officer who is not a police officer.
4) All unauthorized persons should be strictly excluded from the place of identification parade.
5) The witnesses should be prevented from sitting with the suspect before he is paraded with other persons, and witnesses who have previously seen a photograph or description of the suspect should not be led in identifying the suspect by reason of their collection of the photograph or description, as for instance by being shown the photograph or description before the parade.
6) The suspect should be placed among the persons who are as far as possible of the same age, height, general appearance (including standard or dress and grooming) and position in life. Two suspects of roughly of similar appearance should be paraded with at least twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different persons on each parade.
OBJECT OR PURPOSE OF TIP
The purpose of identification test is to test the memory and veracity of a witness, who claims to identify an accused person, who is said to have participated in a crime. Identification is as important process in the administration of justice.
Identification parades are held for the purpose of identifying the properties, which are subject matter on an offence or persons concerned in an offence.
Ramanathan v State of Tamil Nadu 1985 SCR (2)1028
It has explained: Parade enables the investigating officer to ascertain whether the witness had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit. The line-up of the accused in the test identification parade is therefore a workable way of testing the memory and veracity of the witness and has worked well in actual practice.” Thus the object of identification test parade is to enable the eye-witness of the incident to identify the accused before a Magistrate. The test identification was absolutely necessary. The purpose of TI parade is “to check memory of eye-witness and also for prosecution to decide as to who can be cited as eye-witness.
VALUE OF IDENTIFICATION:
The Supreme Court in number of cases has explained the value of evidence of identification. It is helpful both for the investigation agency and for the accused. Holding TI Parade is not compulsory. Even, when the witness is a stranger to the accused he may be able to identify the alleged culprit in case TI Parade is held at earliest possible time. “It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.” Where one of the witnesses failed to identify the accused at the TI Parade, identification by him of the accused in the court was useless. When TI Parade was conducted after long period after the arrest of the accused no reliance could be placed on identification made on test identification parade.
“The identification tests do not constitute substantive evidence. They can be used as corroborative of the statement in court.” Test identification parade is not a substantial’s evidence and has only corroborative value. Appreciation of such evidence would depend upon the strength and trustworthiness of witness. All necessary precautions should be taken to avoid any kind of influences.
IDENTIFICATION IN COURT:
It is established rule that the identification of the accused is relevant under section 9. The identification of the accused in the court is the substantive evidence of the person identifying and the person identifying in TI Parade must corroborate the same.
PHOTO IDENTIFICATION:
As a matter of rule there is no statutory provision for identification of the accused by showing photographs to the witnesses. In practice the police is entitled to show photographs to witness in order to confirm proper identification of accused. If, in course of investigation by the police the witnesses identify the accused it may be allowed provided the photograph of the suspect is not shown first by the investigation officer.
If suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance. The photographs cannot be accepted as evidence without negative. Identification through photograph after nearly seven years is not safe to be relied upon.
Vijayan v. State of Kerala. (1999) 3 SCC 54: 1999 SCC (Cri) 378
In this case where the photograph of the accused was shown to the identifying witness and also the same was published in local newspapers, the identification parade was worthless. When the witness, identifying at a parade, failed to identify in court, the TI Parade identification lost its important.
FACTS WHICH FIX TIME AND PLACE
Whatever facts which help the court to fix the time or place of the happening of the relevant fact can be admitted in evidence.
For example- the report of an expert is relevant to fix the time of murder the marks of struggle on the ground are relevant to fix the place of crime.
RELATION OF PARTIES
Facts which show the relation of parties by whom a fact in issue or a relevant fact was transacted are relevant.
Example- In case of defamation the pre existing relationship of the parties is relevant.
SECTION 10- THINGS SAID OR DONE BE 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 relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
This section introduced the doctrine of agency, and if the conditions laid down in it are satisfied then the act done by one is admissible against the co-conspirators.
ESSENTIALS OF CRIMINAL CONSPIRACY U/S 10 OF THE INDIAN EVIDENCE LAWS:
1) There should be reasonable grounds to establish a conspiracy.
2) There should be at least two or more persons to form a conspiracy.
3) There should be a common intention of all the conspirators.
4) Acts or Statement of the conspirators.
5) The acts or statements of the conspirators must be in reference to common intention. However, the expression “in reference to their common intentions used in Section 10 of the Evidence Act is very comprehensive.
Bhagwan Swarup v State of Maharashtra AIR 1965 S.C 682 and Keher Singh v State (Delhi Administration) AIR 1988 S.C 1883
On the basis of observation given in the aforesaid case this section may be analysed as follows:
(i) There must be prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy to commit an offence or an actionable wrong;
(ii) Anything said, done or written by any one of them should have been said, done or written by him after the intention was formed by any one of them;
(iii) If the said conditions are fulfilled, anything said, done or written, by any one of them in reference to their common intention will be evidence against the others;(iv) It would be relevant for the purpose mentioned in the section against the others, whether it was said, done or written before he entered into the conspiracy or after he left it’ but
(v) It can be read against the co-conspirator and not in his favour.Before the provision of this section can be invoked, it has to be established from independent evidence that there is reasonable ground to believe that two or more person conspired together to commit an offence or an actionable wrong. When this is shown, anything said, anything done and written by any one of such person would be a relevant fact at against each of other conspirator, provided that it is in reference to their common intention.
Mirza Akbar v King Emperor AIR 1940 P.C 176.
Privy Council in Mirza Akbar’s case observed as follows:“The words of section 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 pasts acts done in the actual course of carrying out the conspiracy, after it has been completed. The words ‘common intention’ signify a common intention existing at the time when the thing as said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence.”
SECTION 11- WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT
Facts not otherwise relevant are relevant
(a) If they are inconsistent with any fact in issue or relevant fact;
(b) If by themselves or in connection with other facts they make the existence of non- existence of any fact in issue or relevant fact highly probable or improbableAs stated above, Section 11 comprises of two clauses. First clause provides that the facts, which are inconsistent with the facts in issue or relevant facts, are relevant. The second clause provides that the facts, which by themselves or in connection with other facts make the existence or non-existence of any facts in issue or relevant fact higly probable or improbable, are relevant. According to section 11 ‘facts not otherwise relevant’ (i.e. under section 6-10, 12 and subsequent sections) are relevant, if they fall within clause (1) or (2) of S 11.
For instance, it may be said that A is not called as a witness who was heard to declare that he had seen B committing a crime. This makes his highly probable that B did commit that crime. Therefore, A’s declaration is a relevant fact under section 11 clause (2).Clause 1 of Section 11 contains five common instances/ cases of inconsistent facts as stated below:
1. Alibi;
2. Absence or non-access of husband;
3. Survival of the alleged deceased;
4. Commission of an offence by a third person; and
5. Self-infliction of harm alleged.Among the above, alibi is of great importance.
PLEA OF ALIBI:
The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’.Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. The simplest meaning of this section is a condition when the incident took place and the accused is charged for the incident then he may make defend him on explaining that at the time of the incident he was not present at the location. Although previously it was not relevant for the court to know that where he was as the investigation showed that he committed the crime but his explanation that he was not at the place of incident make the irrelevant facts a relevant fact. The important part of Section 11 of the Evidence Act is that this rule is only accepted in the course of admission of the evidence and no other statute provides such rule. The plea of alibi has to be taken on the very first stage of the trial and must be proved without any reasonable doubt as the burden of proof is on the person who is taking advantage of Section 10 i.e., Plea of Alibi.
Dudhnath Pandey v State of U.P AIR 1981 S.C 911.
The requisites of a satisfactory of a plea of alibi are that:
(1) It should be pleaded at the earliest opportunity and
(2) It should cover the time of allege offence.
Kateshwar v State (1998) ALJ 1451 (ALL) D.B.
The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that accused was so far away at the relevant time that he could not be present at the place when the crime was committed.
“Jitender Kumar v. State of Haryana, (2012) 6 SSC 2014”
The Court not believing the plea of alibi as the accused did not provide the sufficient supportive evidence for establishing the defence.
ABSENCE OR NON-ACCESS OF HUSBAND:
Where legitimacy of a child is in question the absence or non-access of husband is a relevant fact because legitimacy of the offspring implies a begetting by the husband under Section 112, Evidence Act.
SURVIVAL OF THE ALLEGED DECEASED:
Where A is alleged to have killed B on a particular date the fact that after that date B was seen alive is a relevant fact as being inconsistent with this being killed on that date under Section 107 and 108 of the Evidence Act./p>
COMMISSION OF AN OFFENCE BY A THIRD PERSON:
Where A is charged with a crime committed by him alone, any evidence which includes that B might have committed the crime may be received. Threats by a third person or motive of such third person are generally offered to prove that he and not the accused have committed the alleged crime.
SELF-INFLICTION OF HARM ALLEGED:
Where A is charged with murder of B, if it is proved that B has committed suicide A cannot be convicted for murder of B. Where a lover was charged with murder of a woman, whose body was found in a river the fact that during the week before her death she had actually attempted to down herself and had been prevented from doing so was held to be relevant to show that she might have made a second attempt.
SECTION 12- IN SUITS FOR DAMAGE FACTS TENDING TO ENABLE COURT TO DETERMINE AMOUNT ARE RELEVANT.
In suits in which damages are claimed, any facts which will enable the Court to determine the amount of damages which ought to be awarded is relevant. Section 12 states in general terms that in suit for damages facts tending to ‘determine’ the amount of damages are relevant. The damages awarded upon violation of a right are a remedy prescribed by the substantive law. The damages may be claimed either in an action on tort, or on a contract for its breach.
Section 73 of the Contract Act indicates the facts which are relevant in estimating the amount of compensation. For instance knowledge on the defendant’s part at the time when the contract was made, of the probable consequences of the breach is relevant, because on proof of that fact it depends on what principle the damages should be assist.
SECTION 13- FACTS RELEVANT WHEN RIGHTS OR CUSTOM IS IN QUESTION
Where the question is as to the existence of any right or custom, the following facts are relevant:-
a) Any transaction b which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence.
b) Particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputes, asserted or departed from.
This section does not contemplate evidence of any incident or right, in the sense of evidence of any grant creating these incidents or rights. It only contemplates certain transactions and instances as evidence of facts relevant to the facts in issue in any particular case, and it makes these transaction and instances relevant for the purpose of establishing any right or incident, thus making such transaction or instances evidence of the fact in issue.
CUSTOM:
Custom as used in the sense of a rule which, in particular district, class, or family, has, from long usage, obtained the force of law, must be
(a) ancient
(b) continued, unaltered uninterrupted, uniform, constant
(c) peaceable and acquiesed
(d) reasonable
(e) certain and definite
(f) compulsory and not optional to every person to follow or not
(g) must not be immoral.It must not be opposed to morality or public policy and it must not be expressly forbidden by the legislature. However a custom or a practice cannot be allowed to prevail over a statutory rule.
SECTION 14- FACTS SHOWING EXISTENCE OF STATE OF MIND, OR OF BODY, OR BODILY FEELING
facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue, or relevant.
Explanation 1.A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, not in reference to the particular matter in question.
Explanation 2
But where upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall be relevant fact.
Certain offences are culpable on the basis of the state of mind of the accused. In order to prove such offences, certain facts which show the existence of a particular state of mind are relevant and admissible as evidence. Evidence of similar facts can be given when it will go to establish a state of mind or mensrea, which is either a condition of liability or in otherwise relevant. Such evidence falls both under Section 14 & 15, Section 14, renders facts to be relevant if they will prove a particular state of mind which is essential to liability and S. 15 render similar occurrences relevant if they are necessary of show that the act in question was done with a particular knowledge or intention. It is not necessary for the purposes of this exception the defendant or the accused should have taken the defense of accident.
Illustrations:
a) Fact in Issue: The question is whether A has been guilty of cruelty towards B, his wife.Relevant Facts: Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts.
b) Fact in Issue: The question is what was the state of A’s health at the time an assurance on his life was affected.Relevant Facts: Statements made by A as to the state of his health at or near the time in question are relevant facts.
STATE OF MIND:
Facts showing the state of mind constitute Intention, Knowledge, Good Faith, Negligence, Rashness, ill will or Good will. For the purpose of showing the existence of state of mind, it is not possible to provide direct evidence.
STATE OF BODY OR BODILY FEELING:
5. A contract of sale may be absolute or conditional.
5. A contract of sale may be absolute or conditional.
The condition of one’s body or his bodily felling may help a lot in finding the truth. Thus, where it is alleged that A was murdered by administering poison to him his statements regarding his condition and bodily felling may help in finding whether poison was given to him and which type of poison was administered.
As per Explanation 1 :- the evidence must be pertaining to the specific state of mind that pertains to the case at hand and not that of general reputation. Thus, anything that has a distinct and immediate connection to the case at hand is admissible.
In "R v. B (RA) [1997] 2 Cr App R 88" the accused was convicted of assaulting his grandsons on the basis of pornographic magazines found in his possession and his sexual proclivities. The subsequent appeal filed by him was allowed and the Court observed that the evidence of pornographic magazines and the subsequent cross-examination of the accused showed a mere tendency and had no probative value due to which it should not have been admitted as evidence in the first place.
Explanation-2 (Previous Conviction):As per Explanation 2 to the section, in a case where the previous commission of an offence is relevant, the fact that the accused was previously convicted for the said offence would be relevant under the section. However, the question of previous convictions being used in subsequent cases is often debated under various provisions of the Evidence Act.
For instance, in "Emperor v. Alloomiya Husan, (1903) 28 Bom 129: 5 Bom LR 805" the accused was arrested and convicted under the Bombay Prevention of Gambling Act for keeping a common gaming house. The conviction by the Magistrate was based upon the fact that the accused was previously convicted on multiple occasions under the Gambling Act. Upon appeal, the decision was upheld and the fact pertaining to previous convictions was held to be relevant and admissible under Section 14 of the Evidence Act.
THE EXISTENCE OF A PARTICULAR STATE OF MIND MAY BE PROVED IN THE FOLLOWING WAY:
(I) By evidence of person concerned
(II) By evidence of other persons
(III) Contemporaneous manifestations
(IV) Collateral facts
(V) Similar acts
SECTION 15- FACTS BEARING ON QUESTION WHETHER ACT WAS ACCIDENTAL
When there is a question whether an act was accidental or intentional, [or done with a particular knowledge or intention], the fact that such cannot formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.Section 15 is an application of the general rule laid down in Section 14. Section 15 is an exception to the general rule that the evidence of similar facts is not relevant. This exception became necessary to prove system or design or to overthrow the defence of accident in cases of “habitual crimes” by an offender.
For example-1. Where A falsely represented to B that he was the manager of a mercantile firm and obtained money for the purpose of deposit from B the fact that A had made similar representations to C and D and obtained sums from them, is relevant.
2. A is accused of burning down his house in order to obtain money for which it is insured. The facts the A lived in several houses successively, each of which he insured, in each of which afire occurred, and after each of which fires A received payment from a different insurance office are relevant, as tending to show that the fires were not accidental.
3. A is employed to receive money from the debtors of B. it is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is whether this false entry was accidental or intentional?The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.
4. A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the delivery of the rupee was accidental.The facts that, soon before or soon after the deliver y to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the deliver y to B was not accidental.
SECTION 16- EXISTENCE OF COURSE OF BUSINESS
The law attaches great evidentiary value to any general course of business or office. The effect of the provision is that if an act is shown to have been done in general course of business, the law draws a presumption that the act must have been done.
The presumption that arises in favour of the existence of things shown to have been done, in the earlier of the business is further fortified by illustration (f) to S. 114, which says that the court may presume that the common course of business has been followed in the particular cases.
REBUTTABLE PRESUMPTION:
The presumption is, of course, rebuttable the party against whom it is drawn may deny it.
Letter/Post office:
Illustration (b) to Section 16 of the Indian Evidence Act, 1872, is relied on for the purposes and it is urged that the combination of two facts is required to raise such a presumption. We are quite clear that illustration only means that each of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. The presumption applies to all kinds of post, whether registered, ordinary or under certificate of posting.