Law of evidence revolves round the facts of the case. Therefore, a definition of the term 'facts', was felt to be necessary and is included
in section 3 of the Act.
In this Act, the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-
"Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.
"Fact" means and includes-
(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
The word 'facts' means some concrete or material fact to which the information directly relates; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446.
'Fact' means something actually exists, as aspects of reality, Black's Law Dictionary, 7th Edn., p. 610.
One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
"Relevant" means applying to a matter in question, affording something to the purpose; especially of evidence as meaning supporting the contention of a party to a suit.
Black's Law Dictionary, 7th Edn., P. 1293 defines as "Logically connected and tending to prove or disprove a matter in issue having appreceable probative value. That is, rationally tending to persuade people of probability or possibility of some alleged fact.
The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.-Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations
A is accused of the murder of B.
At his trial the following facts may be in issue:-
That A caused B's death;
That A intended to cause B's death;
That A had received grave and sudden provocation from B;
That A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
"Facts" may either "facts in issue" which are the principal matters in dispute or relevant facts which are evidentiary and which directly or by inference prove or disprove the facts in issue".
"Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
The meaning of document or of a particular part of it is to be sought for in the document itself. That is, undoubtedly, the primary rule of construction to which sections 90 to 94 of the Indian Evidence Act, give statutory recognition and effect, with certain exceptions contained in sections 95 to 98 of the said Act. Of course the document reads as a whole and not piecemeal; Delhi Development Authority v. Durga Chand Kaushish, MANU/SC/0329/1973 : AIR 1973 SC 2609: 1973 Ren CR 708: (1973) 2 SCC 825: (1973) 2 SCWR 642.
"Evidence" means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,
Somawanti v. State of Punjab, MANU/SC/0034/1962 : AIR 1963 SC 151: (1963) 1 SCA 548: 1963 (2) SCJ 85: (1963) 2 Mad LJ (SC) 18: (1963) 2 Andh WR (SC) 18: (1963) 33 Comp Cas 745: (1963) 2 SCR 774.
(2) all documents including electronic records produced for the inspection of the Court,
Somawanti v. State of Punjab, MANU/SC/0034/1962 : AIR 1963 SC 151: (1963) 1 SCA 548: 1963 (2) SCJ 85: (1963) 2 Mad LJ (SC) 18: (1963) 2 Andh WR (SC) 18: (1963) 33 Com Cas 745: (1963) 2 SCR 774.
Evidence means "any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objections, etc., for the purpose inducing belief in the minds of the Court or jury as to their contention; Victoria Xavier v. Greater Cochin Development Authority, AIR 1993 Ker 95: ILR 1992 (2) Ker 603: 1992 (1) Ker LJ 609: 1992 (1) Ker LT 613: 1994 LACC 347, Black's Law Dictionary 5th Edn., (quoted).
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.
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. Further what is required is production of such materials on which the Court can reasonably act to reach the supposition that a fact exists.
The proof of the fact depends upon degree of probability of its having existed. The standard required for reaching the separation is that of a prudent man acting in any important matter concerning him; Hawkins v. Powells, (1911) 1 KB 988.
Further the proof does not mean proof of rigid mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion; M. Narasimha Rao v. State of Andhra Pradesh, AIR 2001 SC 318.
In M. Narsingha Rao v. State of Andhra Pradesh, AIR 2001 SC 318; 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 the 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 important matter concerning him.
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.
What is required is material on which the Court can reasonably act for reaching the supposition that a certain fact exists. The proof of fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him; Lokeman Shah v. State of West Bengal, MANU/SC/0245/2001 : AIR 2001 SC 1760: 2001 Cr LJ 2196: 2001 AIR SCW 1646: 2001 (2) Crimes 212: JT 2001 (4) SC 520: (2001) 5 SCC 235: (2001) 3 SCALE 297: 2001 SCC (Cri) 829: 2001 (3) Supreme 305: 2001 (2) UC 33.
"Not Proved".-A fact is said not to be proved when it is neither proved nor disproved.
A fact which is not proved does not necessarily mean it is a false one. Section 3 of the Evidence Act gives definitions of various words and expressions. The expression "proved" is followed by definition "disproved".
A fact is said to be "not proved" when it is neither proved or disproved. This is followed by the definition of "disproved". A fact is said "non proved" when it is neither proved nor disproved.
A fact which is "not proved" may be true or false. A doubt lingers about its truth, merely because it is not proved, one may jump to conclusion that it is disproved. A fact is disproved normally by the person who claims that an alleged fact is not true.
A prime facie case is not the same thing as "proof" which is nothing but belief according to the conditions laid down in the Evidence Act. It is a fallacy to say that because a Magistrate has found a prima facie case to issue process, therefore, he believes the case to be true in the sense that the case is proved. But depends upon the credibility of witness, and their evidence, cannot be rejected.
There is no difference between the general rules of evidence in Civil and Criminal cases, and the definition "prooved" in section 3 of the Evidence Act, does not draw a distinction between Civil and Criminal Cases. Nor this definition insist on perfect proof because absolute certainly amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by definition is that of a person of prudence and practical good sense.
The same evidence, which may be sufficient to regard a fact, as proved in Civil suit, may be considered insufficient for a conviction in a criminal action. While in former, a mere prepondance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite phenomenon for conviction.
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 neither exists with certainty nor its non-existence is proved with certainty. It is the provisions between existence and non-existence of the fact in the mind of a man of ordinary prudence; Vijaya Singh v. State of Uttar Pradesh, AIR 1990 SC 1450.
"India" means the territory of India excluding the State of Jammu and Kashmir.]
the expressions "Certifying Authority", "electronic signature", "Electronic Signature Certificate", "electronic form", "electronic records", "information", "secure electronic record", "secure electronic signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000 [and also as per amendment made by the Information Technology (Amendment) Act, 2008 (10 of 2009)].
The evidence of any particular case has to be confined to the facts of the case. The first duty of any Court of law, therefore, is to ascertain the area of controversy between the parties. The 'facts' which are in dispute are 'facts in issue'. Section 3 of the Evidence Act, 1872, while defining "facts in issue" only adds that, in addition to being in controversy, the fact should be such that the question of liability should depend upon it.
The requirement that a fact in dispute will be regarded as a fact in issue only if the fact is such that by itself or in connection with other facts is disputed. Therefore, it can have two elements:
(i) the fact should be in dispute between the parties; and
(ii) the fact should touch the question of rights or liabilities.
In criminal matters, the allegations in the charge-sheet constitute the facts in issue.1 In civil matters the process of ascertaining 'facts in issue' is known as framing of issues.2
Facts in issue is nothing but the facts which are in dispute. Evidence becomes necessary only in reference to facts which are in controversy or dispute between the parties. Further, the fact should be such that the question of liability should depend upon it. The following illustration makes clear the point:-
X is accused of the murder of Y. At his trial the following facts may be in issue - that X caused Y's death; that X intended to cause Y's death; that X had received grave and sudden provocation from Y; that X at the time of doing that act which caused Y's death, was, by reason of unsoundness of mind incapable of knowing the nature of the act.
Therefore, facts in issue are those facts which a plaintiff must prove in order to get an adjudication in his favour on which a defendant may prove to defeat the suit. Facts in issue will depend upon the provisions of the substantive law applicable to the offence.
Whatever be the facts in issue, their existence has to be proved to the satisfaction of the Court before the Court can be called upon to pronounce a judgment on the basis of those facts.
The distinction between the facts in issue and relevant facts is of fundamental importance and must be thoroughly comprehended in order to understand and appreciate the Scheme of the Evidence Act.
A substantive law defines the rights and liabilities of parties in the form of certain abstract propositions or formulae and the object of every suit or other judicial proceedings is to ascertain whether the, rights claimed, or the Liabilities sought to be enforced by one person against another does or does not exist. A party to a litigation seeking to enforce a right or liabilities against his opponent, in order to obtain a verdict in his favour by a tribunal has to establish all such facts as to constitute the rights or liabilities. These "necessary constituents" are "facts-in-issue".3
Facts which are themselves not in issue may help in proving facts in issue. They are used as foundation for inferences respecting facts in issue. According to Stiphen the word 'relevant' means that, "Any two facts to which it is applied are so related that according to the common course of events one either taken by itself or in connection with some other facts proves or renders probable the past, present or future existence or non-existence of the other".
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1. Chapter XIX of Cr. P.C., 1973.
2. Order XIV, RR. 1-7 of C.P.C., 1908.
3. Sir James Fitzjames Stephen, Introduction to Framing of Evidence Act, p. 12, Fipson Evidence, 7th Edn., p. 110.
A 'Relevant fact' is also known by its Latin name 'factum probans' i.e., a fact that proves.
The "relevancy" and "admissibility" are often used as synonyms but their legal implication are distinct and different. The fact which are relevant may not be admissible, for example communication made by spouses during marriage or between an Advocate and his client though relevant, are not admissible, so also facts which are admissible may not be relevant for example, question permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses though not relevant are admissible; Ram Behari v. State of Bihar, MANU/SC/0302/1998 : AIR 1998 SC 1850.
"Relevant".-
One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
Therefore, relevancy under the Evidence Act, does not depend upon mere logic but it should be 'legally relevant' and should be fitted in any of the following provisions, viz.,
(i) facts logically connected with the facts in issue (sections 5-16),
(ii) admissions and confessions (sections 17-31),
(iii) statements by non-witnesses (sections 32-33),
(iv) statements under special circumstances (sections 34-37),
(v) judgment in other cases (sections 40-44),
(vi) opinions of third persons (sections 45-51),
(vii) evidence as to character (sections 52-55).
The word 'relevant' is not defined under the Evidence Act, rather, it provides for the relationship which indicates 'when one fact becomes relevant to another'. Normally, facts relevant to an issue are those facts which are necessary for proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those, which are capable of affording a reasonable presumption as to either the facts in issue or the principal matters in dispute. The word 'relevant' has been held to be 'admissible'; Lakhmi v. Haider, 3 CWN 268. Relevant facts are not themselves in issue, that are foundations of inferences regarding them. For example, "when X is accused of the murder of Y", the 'relevant facts' are - X had a motive and opportunity to kill Y, he had made preparations by buying a knife, etc., or after the murder he was seen running with blood-stained knife in hand.
Therefore, relevancy indicates such relationship with the facts in issue as convinces or has a tendency to convince the judge to the existence or otherwise of the facts in issue. The word 'relevant' means that any two facts to which it is applied are so related to each other that according to the common course of events one taken by itself or in connection with other facts proves or renders probable the existence or non-existence of the other. It should be noted that circumstantial evidence is evidence that relates to facts, other than those in issue, which by human experience, have been found to be so associated with the fact in issue that the latter may be reasonably inferred therefrom.
Though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant; Jesu Asir Singh v. State, MANU/SC/7830/2007 : AIR 2007 SC 3015: 2007 Cr LJ 4310: 2007 AIR SCW 5472: 2007 (57) All Ind Cas 12: 2007 (3) Chand Cr C 111: 2007 (3) Crimes 333: 2007 (4) JCC 2629: 2007 (4) Rec Cr R 38: (2007) 10 SCALE 110.
'Document' means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used for the purpose of recording that matter.1
It should be noted that the word 'document' includes photographs, tape recordings, letters, printings, books, inscriptions, carvings, outline maps, xeroxed materials, microfilms, carbon copies, cartoons, caricatures, murals, symbols, insignias or any other substance on which communications, words, thoughts, ideas, plans may be recorded. Thus, interpreted, the section would include even 'codes', tattoo marks' voice or sound patterns recorded in any form and on any material would form an evidence? Even tape-recordings of speeches and conservations are 'documents' and therefore admissible before the courts of law; In Pratap Singh v. State of Punjab, AIR 1964 SC 74; N. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162: 1970 Ker LT 390: 1970 SCD 646: 1970 UJ (SC) 604: (1971) 1 SCA 394: 1971 (1) SCJ 483: (1971) 1 SCR 399; Yusufalli v. State of Maharashtra, AIR 1967 SC 76; R.M. Malkani v. State of Maharashtra, MANU/SC/0204/1972 : AIR 1973 SC 157: 1973 Cr LJ 228: 1973 Mah LJ 92: 1973 MPLJ 224: MANU/SC/0204/1972 : (1973) 1 SCC 471: 1973 SCC (Cri) 389: (1973) 2 SCWR 776; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, MANU/SC/0277/1975 : AIR 1975 SC 1788: (1976) 2 SCC 17: 1975 Supp SCR 281 their Lordships of the Supreme Court held that tape-recording of speeches and conversations are 'documents' and therefore admissible.
"Document" means records, writtings, precepts, instructions or directions and means a document read as a whole and not peacemeal; Administrator of the Specified Undertaking of the Unit Trust of India v. Garware Polyster Ltd., MANU/SC/0375/2005 : AIR 2005 SC 2520: 2005 AIR SCW 2798: 2005 CLC 668: JT 2005 (5) SC 300: (2005) 10 SCC 682: 2005 (4) SCJ 258: 2005 (4) SLT 442: 2005 (6) SRJ 413: (2005) 5 SCALE 54: 2005 (4) Supreme 359.
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1. See section 3 of the Evidence Act.
Evidence Act, declares a fact as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is substance of section 4 which defines three kinds of presumption; Calcutta Municipal Corpr. v. Pawan Kamar, MANU/SC/0011/1999 : AIR 1999 SC 738.
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Presumption |
Presumption |
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of facts |
of law |
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or |
or |
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Natural |
Artificial |
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Presumption |
Presumption |
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__________________________________________ |
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Rebuttable |
Irrebutable |
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Presumption |
Presumption |
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of law |
of law |
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(shall Presume) |
(Conclusive proof) |
These presumptions are of three types:
'May presume'.-- 'shall presume' and 'conclusive proof', - 'may presume' leaves it to the discretion of the Court to make the presumption as per the circumstance of the case, "shall presume" leaves no option with the Court not to make the presumption. The Court is bound to take the fact as proved until evidence is given to disprove it. In this sense such presumption is also rebuttable. "Conclusive prove" gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to the combating that effect. In this sense, this is irrebutable presumption.
The presumption is a legal or factual assumption drawn from the existence of certain facts. The presumption raised under a statute has only on evidentiary value. The presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another; M. S. Narayana Menon alias Mani v. State of Kerala, MANU/SC/2881/2006 : (2006) 6 SCC 39: AIR 2006 SC 3366: 2006 Cr LJ 4607: 2006 AIR SCW 4652: 2006 (3) Crimes 117: 2006 (35) OCR 43: 2006 (8) SRJ 275: (2006) 6 SCALE 393: 2006 SCC (Cri) 30: 2006 (5) Supreme 547: 2006 (2) UC 1289.
Section 5 of the Act, provides that:
5. Evidence may be given of facts in issue and relevant facts.-Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation.-This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue:-
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.
This section declares that in a suit or proceeding evidence may be given of the existence or non-existence of:
(i) facts in issue; and
(ii) of such other facts as are declared to be relevant in sections 6 to 55.
The facts-in-issue are those facts which are necessary to prove or disprove, to establish or refute a case. The facts-in-issue are normally clear from the pleadings and are a matter for the judges to determine. The facts-in-issue must normally be proved by evidence.1
The facts-in-issue are distinguishable from collateral facts "which affects the proofs of facts in issue.2
A fact-in-issue is a necessary ingredient of materialism because from such fact, either by itself or in connection with other facts, the existence or non-existence of a right or liability necessarily follows.
A relevant fact on the other parlance, is not a necessary ingredient of a right or liability, but is one that merely renders probable the existence or non-existence of any ingredient fact of a right or Liability. A fact-in-issue is called the principal fact and the relevant fact is called the "evidentiary fact".
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1. Halsbury's Law of England, Vol. 17, 4th Edn., para 30.
2. Heydoris Evidence Cases and Materials.
Section 5 by using the expression 'and of no other' excludes everything which is not declared relevant under any of the sections 6 to 55; R. v. Poncho, ILR 7 Cal 671. All evidence tendered must be shown to be admissible under some of the following sections of the Chapter. A party trying to adduce a particular evidence has to show that the evidence desired to be adduced is relevant under one or more of the sections 6 to 55; Dwijesh v. Naresh, MANU/WB/0056/1945 : AIR 1945 Cal 492.
Sometimes in order to prove the existence or non-existence of the facts in issue, certain other facts may be given in evidence, called relevant or evidentiary facts.
A fact is said to be logically relevant to another when it contains such a casual relation with the other as to render probable the existence or non-existence of the latter. All facts which are logically relevant are not necessarily legally relevant. One fact is said to be legally relevant to another only when the one is connected with the other in any of the ways referred to in sections 6 to 55 of the Act. Whatever is legally relevant is normally logically relevant. However, only legally relevant facts are considered as relevant facts. A confession made to a police officer may appear to be logically relevant but it is not legally relevant, for section 25 declares that it cannot be used as evidence against the person making it; E. v. Bhagwandas Tulsidas, 47 Bom LR 997.
The terms relevancy and admissibility are not identical. They have different meanings. Relevancy refers to facts which are logically probative i.e., which afford material for the conclusion that a particular fact in issue exists or does not exist. Admissibility, on the other hand refers to facts which the Court will permit to be given in evidence. Under the English Law, the former is called logical relevancy and the later is called legal relevancy. All facts which are logically relevant need not be legally relevant or admissible but all facts which are admissible must necessarily be logically relevant. Under the Indian Evidence Act, the question of relevancy has been dealt with under sections 5 to 55 and that of admissibility under section 56 onwards.
The practice which can be a better substitute is whenever an objection is raised during evidence taking stage regarding admissibility of any material or item of oral evidence, the Trial Court can make a note of such obligations subject to such objections being decided at the last stage in the final judgment; Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158: 2001 Cr LJ 1254: 2001 AIR SCW 841: 2001 (1) Crimes 288: JT 2001 (3) SC 120: (2001) 3 SCC 1: 2001 (1) SCJ 460: 2001 (3) SRJ 437: (2001) 2 SCALE 167: 2001 SCC (Cri) 417: 2001 (2) Supreme 65: 2001 (1) UJ (SC) 573.
The rules of relevancy declares certain facts relevant, rule admissibility lay down as to whether a certain form of evidence about relevant fact, may be allowed or excluded under the circumstances of a case. What is the material (fact) which may be produced before a court in a case is a first question. Relevancy means what facts may be proved before any court of law. Thus under the Evidence Act, the terms "Relevant" or "the facts that may be proved" are synonyms.
The admissibility is means and the method of proving the relevant facts.
In Ram Bihar Yadav v. State of Bihar, MANU/SC/0302/1998 : AIR 1998 SC 1850: 1998 Cr LJ 2515: 1998 AIR SCW 1647: 1998 (2) Crimes 254: JT 1998 (3) SC 290: (1998) 4 SCC 517: 1998 (2) SCJ 253: (1998) 2 SCR 1097: (1998) 3 SCALE 200: 1998 SCC (Cri) 1085: 1998 (4) Supreme 178; the Supreme Court speaking through Mohd. Quadari J., said that, more than often the expression relevancy and admissibility are used as synonyms but their legal implications are different because more often than not facts which are relevant may not be admissible for example the communication made by spouse during marriage, the communication between an advocate and his client, though for example, questions permitted to be cross-examined to test the veracity or to impeach credit of witness though not relevant are admissible.
Q. Distinguish between `relevancy' and `admissibility'?
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Admissibility |
Relevancy |
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1. Admissibility is not based on logic |
1. Relevancy is based on logic and |
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but on strict rules of law. |
probability. |
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2. The rules of admissibility is described |
2. The rules of relevancy is described |
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after section 56 of the Evidence Act, 1872. |
from sections 5 to 55. |
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3. The rule of admissibility declares |
3. The rules of relevancy declares what |
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whether certain type of relevant is relevant. |
evidence are admissible or are to be excluded. |
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4. Admissibility is means and of modes |
4. Under the Evidence Act, the rules of |
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for admissibility of relevant evidence. |
relevancy means where evidence are admissible. |
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5. The facts which are admissible are |
5. The facts which are relevant and not |
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necessarily relevant. |
necessarily admissible. |
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6. In admissibility court has no discretion. |
6. In relevancy, the Court has discretionary power. |
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7. Statements are not admissible in |
7. However, statements are relevant in |
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evidence. |
evidence. |
The Latin word 'res' means 'thing' 'gestae' means alone or over and the expression 'res gestae' literally means "thing done, transaction or essential circumstances surrounding the subject is complete". Under Indian Evidence Act, 1872, section 6 is based on this doctrine, wherein, it has been mentioned that, wherever a 'transaction' such as a contract as a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. It reads as under:
6. Relevancy of facts forming part of same transaction.-
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India] by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
The items of evidence are sometimes said to be part of the Res gestae, owing to the nature and strength of the their connection with, the matter is issue and as such are admissible, Res Gestae is an expression mainly of utility in the criminal law concerning the contemporary of statements to residents but, insofar as contemporaneous statements are relevant and accompany and explain matters in issue, they will be admissible.1
The term 'same transaction' has not been defined in the Evidence Act. It signifies that a series of activities are linked together to present a continuous story. A definition of the word 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." From its very nature the word 'transaction' is difficult to define. It should be interpreted neither in any strict nor in technical way but in its ordinary etymological meaning of "an affair" or "a carrying through."
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 acts as to constitute one continuous action." Proximity of time is not so essential for the continuity of action and purpose. On the one hand, the mere proximity of time between several acts will not necessarily constitute them parts of the same transaction, on the other hand, the mere fact that there are intervals of time between the various acts will not necessarily import want of continuity. To ascertain whether a series of acts are parts of the same transaction, it is essential to see whether they are linked together to present a continuous whole. Section 6 lays down that facts, which form part of the same transaction are relevant.
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1. Halsbury's Laws of England, Vol. 17, 4th Edn., p. 8.
Res Gestae has come to be a rule of exception to the hearsay evidence. A fact or a statement of fact or opinion, which is so closely associated in time, place and circumstances with some act or event, which is in issue, that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. The justification given for the reception of such evidence is that the light that it sheds upon the act or event in issue is such that in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable or unintelligible; Kapoor Singh Rana v. State of Delhi, 1 (2006) CCR 558 (DB).
Res Gestae of any case properly consists of that portion of actual world's happenings out of the right or liability, complained or asserted in the proceeding, necessarily arises. That has been used in two senses. In the restricted sense it means world's happening out of which the right or liability in question arises. In the wider sense, it covers all the probative facts by which re gestae are reproduced to the tribunal where the direct evidence of witness or perception of court are unattainable.
Statements may also accompany physical happenings e.g., an accident, happened in a public place, a number of by-standers will make mutual conversation about the incident. The question is to what extent such statements can be regarded as parts of the transaction. Some important guidelines in this regard are:-
(i) Spontaneous and simultaneous utterance is a part of the transaction, e.g., what a person states during an occurrence in respect of the occurrence itself.
(ii) Statement must be contemporaneous with the fact, i.e., statement made either "during or immediately before or after its occurrence", and of such a nature that the events speak for themselves (and not what the people say when talking about the event). The words must be at least de recenti.
(iii) If the statement is made after the act is over for reflection and deliberation (fabrication); and/or it is mere narration of past events, then it is not relevant.
(iv) The statement must be a statement of fact and not an opinion.
The following illustrations/cases, will help clear the point:-
(i) X, while running in the street, crying that Y has stabbed him, is a relevant fact. Similarly, the statement of a raped woman 'crying for help', is a relevant fact.
(ii) Statements made during the investigations of a crime are not relevant facts.
(iii) Where shortly after a murder, the person suspected of it explained the absence of the deceased by saying that he had left the village, the Court held the statement to be a part of the transaction and thus relevant; Basanti v. State of Himachal Pradesh, MANU/SC/0285/1987 : (1987) 3 SCC 227: AIR 1987 SC 1572: 1987 Cr LJ 1869: 1987 (1) Supreme 542: JT 1987 (2) SC 281: 1987 SCC (Cri) 483: 1987 Cr LR (SC) 302: 1987 All Cr C 442.
(iv) A man was prosecuted for the murder of his wife. His defence was that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to 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; Rattan v. The Queen, (1971) 3 WLR 9301.
(v) Newspaper Reporting
Whether or not a newspaper report can be relied upon by the High Court would obviously depend upon the nature of jurisdiction being exercised by the High Court.
If the question is of admissibility of newspaper report in any appeal, obviously the Evidence Act, being applicable, the High Court is required to go by the provisions of the Evidence Act; All India Anna Dravida Munnetra Khazagam v. State Election Commissioner, AIR 2007 (NOC) Mad 1801; S.P. Anand v. Registrar General, Madhya Pradesh High Court, MANU/MP/0405/2008 : AIR 2009 MP 1: 2008 (3) Jab LJ 361: 2008 (4) MPHT 279: 2008 (3) MPLJ 596: 2008 (4) Rec Civ R 780: 2008 (4) SCT 352.
(vi) Inference of guilty
In order to justify the inference of guilty, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of accused; Vasa Chandrasekhar Rao v. Ponna Satyanarayana, AIR 2000 SC 2138: 2000 Cr LJ 3175: 2000 AIR SCW 2200: 2000 (2) Crimes 328: JT 2000 (6) SC 465: (2000) 6 SCC 286: 2000 (6) SRJ 314: (2000) 4 SCALE 635: 2000 SCC (Cri) 1104: 2000 (4) Supreme 173.
Hearsay evidence means the statement of a person who has not seen the happening of the transaction, but has heard of it from outside. But such evidence can be given if it is a part of the transaction. For example, in R. v. Foster, 172 ER 1261: (1834) 6 C&C 325; the witness has only seen a speeding vehicle, but not the accident. He was allowed to give evidence of what the deceased said, although it was only a derived knowledge, it being a part of res gestae. Thus, the doctrine of res gestae constitutes an exception to the principle of hearsay; Kashmira Singh v. State, AIR 1965 J&K 37: 1964 Kash LJ 267: (1965) 1 Cr LJ 554.
Section 6 of the Act, is an exception to the hearsay evidence rule and admits of certain carefully safeguarded and limited exceptions and makes the statement Admissible when such statements are proved to form a part of the res gestae; Javed Alam v. State, (2009) 8 SCALE 68.
The doctrine of res gestae is applicable to 'hearsay' evidence also, which is not considered a good piece of evidence. Similarly, collateral facts are res inter alios actae, (i.e., transactions between others, for example, statements made behind the accused's back and to be used as evidence against him. According to Professor Stone, "no evidential problem is so shrouded in doubt and confusion". The rule is not only useless but also harmful. It is useless because every part of it is covered by some other rule, for example, declarations as to the state or mind or health. It is harmful because it caused confusion about the limitations of other rules. The precise limits of res gestae are not themselves not easy to define. Facts differ so greatly that no fixed principle can be laid down as to the matters that will form parts of a transaction. Because of its confusing nature, the phrase res gestae has not been included in the Indian Evidence Act. And it is left to the judges to find the necessary and treat a fact as relevant.
Q. Discuss the law laid down in Sukhar case?
In Sukhar v. State of Uttar Pradesh, VIII (1999) SLT 270; the brief facts of the case was, the appellant was charged for the offence under section 307, IPC for causing injury to Nakkal on 17-4-1978 at 7.30 a.m. near the Chak in village Tejalhera in the district of Muzaffarnagar. On the basis of material available on record through the prosecution witness, the Additional Sessions Judge convicted him for the offence under section 307 and sentenced him to rigorous imprisonment of five years. On an appeal the High Court of Allahabad upheld the conviction and sentence of the appellant and dismissed the appeal. This Court having granted leave, the present appeal is before the Apex Court. This entire case inter alia revolved round the scope of section 6 of the Evidence Act.
The Supreme Court observed 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 would allow fabrication. The statements sought to be admitted, therefore as forming part of res gestate must have been made contemporaneously with the acts or immediately thereafter.
The Supreme Court referred the observations of Gentela Vijayavardhan Rao v. State of Andhra Pradesh, MANU/SC/0719/1996 : AIR 1996 SC 2791: 1996 Cr LJ 4151: 1996 AIR SCW 3555: 1996 (3) Crimes 197: JT 1996 (7) SC 491: (1996) 6 SCC 241: 1996 (3) SCJ 247: 1996 SCC (Cri) 1290; where considering the law embodied in section 6 of the Evidence Act, it was observed:
"This principle of law embodied in section 6 of the Evidence Act, is usually known as the rule of res gestate recognised in English Law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" it becomes relevant by itself. This rule is roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement of fact admissible under section 6 of the Evidence Act, is on account of the spontaneity and immediacy of such statement or fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."
The Supreme Court also referred to the ratio of Rattan Singh v. State of Himachal Pradesh, MANU/SC/0177/1997 : AIR 1997 SC 768: 1997 Cr LJ 833: 1997 AIR SCW 587: 1996 (4) Crimes 282: 1997 (13) OCR 57: MANU/SC/0177/1997 : (1997) 4 SCC 161: 1996 (4) SCJ 628: 1997 SCC (Cri) 525; and came to the conclusion that the statement of the witness evicting that the injured told him that his nephew has fired at him, would become admissible under section 6 of the Evidence Act. Thus, the Supreme Court rejected the contention of the appellant. The appeal was allowed by the Supreme Court.
The evidence on personal knowledge cannot be framed and cannot be hearsay; S.R. Ramaraj v. Special Court, MANU/SC/0600/2003 : AIR 2003 SC 3039: 2003 Cr LJ 3863: 2003 AIR SCW 3962: 2003 (4) Crimes 83: MANU/SC/0600/2003 : (2003) 7 SCC 175: 2003 (5) SLT 52: 2003 (9) SRJ 333: (2003) 6 SCALE 508: 2003 (6) Supreme 508: 2004 (1) UJ (SC) 207.
Q. Discuss the facts which are the occasion, cause or effect of fact in issue?
Section 7 of the Evidence Act, deals with the facts which are the occasion, cause or effect of facts in issue. This section reads as under:
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.
Under section 7 the relevancy of facts is to be determined by human experience. What has been the effect of a particular cause and what has been a constant cause of a particular effect in the past will be the same in future.
Evidence can always be given of the set of circumstances which constituted the occasion for the happening of the principal fact.1 The fact that the deceased girl was alone in her cottage at the time of murder is relevant as it constituted the occasion for the murder.
"Cause" often explains the reason why a particular act was done. It helps the court to connect the person with the act. The act in question must have been done by the person who had the cause for it e.g., the fact that accused was in love with deceased's wife. The word "cause" is broader than the word "motive". Where, for example, soon after an election the winning candidate is murdered, the election and somebody's defeat at it is the cause of the murder and beyond that cause there may be no motive in it. When an act is done and particular person is alleged to have done it, his physical presence is required.2
Every act leaves behind certain effects which not only record the happening of the act, but also throw light upon the nature of the act. One of the important facts which connects a person with the act in question is the footprints on the scene of the crime and the finger impressions.3 Similarly, where a person is poisoned the symptoms produced by the poison are relevant, being the effects of the facts in issue. Possession of stolen articles by a person, immediately after theft, is also an effect. Unexplained scratches on the face or the person of the accused are also the effects of the facts in issue.
Often a person has to carve out for himself an opportunity to do the act in question. This may involve a break from the normal routine of his life. 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. For example, the fact that accused 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.4 No need can be done without an opportunity.5
The fact which constitute the state of things under which or in the background of which the principal facts happened are relevant e.g. the state of relations between the parties, the state of the health of the deceased and his habits. For example, where the accused was prosecuted for shooting down his wife and he took the defense of accident, the fact that the accused was unhappy with his wife was carrying an affair with another man was held to be relevant
________________
1. See illustration (a).
2. Wagmore Evidence, section 131.
3. See illustration (b).
4. See illustration (c) also gives an instance of opportunity.
5. Russel on Crime, 11th Edn., p. 4282.
as it constituted the state of things in which the principal fact, namely, the shooting down, happened. It is necessary to know the state of things in which it occured.1
Section 8 of the Indian Evidence Act, provides that:
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.
Section 8 makes those facts relevant which are connected in any of the following ways:
(i) if they show or constitute motive.
(ii) if they show or constitute preparation of any fact in issue or relevant fact.
(iii) if they constitute the conduct of any party to suit or proceedings or of an agent of any such party.
Under the Evidence Act, any fact is relevant which shows or constitutes a motive.2
Motive implies an emotion or desire operating on the will and causing it to act.3 It signifies the reason for the conduct.4 Motive is an emotion, a State of mind, but it is often confused with events tending to excite, to emotion, the outward facts, which may be the stimulus and the causes of the emotion. Motive, in the correct sense is the emotion supposed to have led to the act. It is generally proved by two sorts of circumstantial evidence, namely: (1) conduct of the person, and (2) by events about that person which could excite that emotion. Conduct is effect and expression of that inward emotion.
________________
1. Cunningham p. 201.
2. The Principles of the Law in British India 1902 Edn., p. 176.
3. As per Webster's Dictionary.
4. Winfield: Law of Tort.
To establish liability whether civil or criminal, motive is generally irrelevant but an enquiry into motive is often of great importance, particularly in cases of circumstantial evidence; Queen v. Sorob Roy, 5 WR (Cr) 28; Queen v. Bahar Ali Khan, 15 WR (Cr) 46.
In case of Chunni Lal v. State of Uttar Pradesh, MANU/SC/0422/2010 : AIR 2010 SC 2467, Supreme Court held that motive of taking step to seek revenge and taking for property of deceased was sufficient to convict the accused.
In State of Madhya Pradesh v. Dhirendra Kumar, MANU/SC/1029/1997 : AIR 1997 SC 318: 1997 AIR SCW 74: 1996 (4) Crimes 195: JT 1996 (10) SC 93: 1997 (1) Jab LJ 215: 1997 (1) Raj LW 38: MANU/SC/1029/1997 : (1997) 1 SCC 93: 1997 SCC (Cri) 54; one Munnibai was killed. Respondent Dhirendra Kumar had an evil eye on her. Respondent was tenant in the house of father-in-law of deceased (Munnibai). Munnibai reported the matter to her mother-in-law who in turn told to her husband; who told Dhirendra to vacate the house. This may be taken as motive of murder.
The murder of an old widow possessed of wealth, the fact that the accused was to inherit her fortunes on her death was held to be relevant as it showed that the accused had a motive to dispose her of. Where certain lands were inherited by the deceased along with his brother but the accused got them transferred into their names and criminal and revenue cases were pending between them at the time when the deceased was killed, it was held that these facts constituted a sufficient evidence of motive; Awdesh v. State of Uttar Pradesh, MANU/SC/0077/1995 : AIR 1995 SC 375: JT 1994 (7) SC 694: (1995) 1 SCC 200: 1994 AIR SCW 4572: 1994 (3) Crimes 283: 1995 (2) Cur Cr R 16: 1994 SCC (Cri) 1676.
It may be noted that evidence of motive is not sufficient by itself to lead to conviction; nor absence of it to discredit other evidence. When there is a clear evidence that a person has committed an offence, the motive becomes irrelevant. In Yunis alias Kariya etc. v. State of Madhya Pradesh, MANU/SC/1116/2002 : AIR 2003 SC 539: 2003 Cr LJ 817: 2002 AIR SCW 5169: 2003 (2) Crimes 281: MANU/SC/1116/2002 : (2003) 1 SCC 425: 2002 (7) SLT 303: 2003 (2) SRJ 73: (2002) 9 SCALE 245: 2003 SCC (Cri) 341: 2003 (2) Supreme 899; it was held by the Supreme Court that ocular evidence (eye witness) is very clear and continuing. Role of accused person in time stands established. Failure to prove motive for the crime has no consequence.
By proving the 'motive' the prosecution can relay upon the conduct of accused; State of Madhya Pradesh v. Bhim Mohd., 2002 Cr LJ 1906.
Motive for doing a criminal act is difficult area of the prosecution; Ranganayaki v. State by Inspector of Police, MANU/SC/0889/2004 : AIR 2005 SC 418: 2004 AIR SCW 6613: 2004 (4) Crimes 179: 2004 (4) Cur Cr R 208: JT 2004 (9) SC 464: 2004 (29) OCR 804: (2004) 12 SCC 521: 2004 (6) SLT 417: (2004) 8 SCALE 734: 2004 (7) Supreme 350.
In criminal cases, preparation itself is no crime unless coupled with intention, attempt and completed act. Section 8 of the Act, provides that acts of preparation are relevant. It says that facts which show or constitute preparation for any fact in issue or relevant fact are relevant. Evidence tending to show that the accused made preparation to commit a crime, is always admissible. Preparation only evidences a design or plan to do a certain things as planned.
In a case based on circumstantial evidence, the motive assumes great significance in as much as its existence is an enlightening factor in a process of presumptive reasoning, Sukhram v. State of Maharashtra, MANU/SC/3346/2007 : (2007) 7 SCC 502: AIR 2007 SC 3050: 2007 Cr LJ 4327: 2007 AIR SCW 5520: 2007 (3) Crimes 354: (2007) 10 SCALE 60: 2007 (3) SCC (Cri) 426: 2007 (5) Supreme 926; State of Punjab v. Suda, MANU/SC/0103/2003 : AIR 2003 SC 1471.
It is always not carried out but it is more or less likely to be carried out. The existence of the plan is always used in daily life as the basis of inferences to the act planned. In a case of burglary, the four accused held a meeting to arrange for the crime; a bar of iron and pair of pincers were alone necessary; and these the accused brought; these facts were admitted to show preparation. The probative force, both of preparation and the previous attempts manifestly rests on the presumption that an intention to commit the offence was framed in the mind of accused which persisted until the power and opportunity were found to carry it into execution. The preparation on the part of the accused may be, to accomplish the crime, to prevent discovery of crime or it may be to aid the escape of the criminal and avert suspicion; Appu alias Ayyanar Padayachi v. State, MANU/TN/0177/1971 : AIR 1971 Mad 194: 1970 Mad LW (Cri) 239: (1971) 2 Mad LJ 53: 1971 Mad LJ (Cri) 432: 1971 Cr LJ 615.
In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reas of a criminal attempt; Malkiat Singh v. State of Punjab, 1970 Cr LJ 750: MANU/SC/0534/1969 : AIR 1970 SC 713: 1970 (1) SCJ 473: (1989) 2 SCR 663: 1970 MLJ (Cri) 246 (SC).
The second paragraph of section 8 makes relevant the conduct of the following persons relevant:
(i) Parties to the suit or proceedings.
(ii) Agents of such parties.
(iii) Any person against whom an offence is subject of inquiry.
Q. Whether conduct of parties is relevant?
The conduct of a man is particularly important to the law of evidence, for his guilt or the state of mind is often reflected by his conduct. Guilty mind begets guilty conduct. Under section 8, the conduct of the following parties is
relevant-parties to the suit/proceeding or of their agent (plaintiff and defendant in a civil suit, and accused in a criminal proceeding), any person an offence against whom is the subject of any proceeding (injured person).
It is important to note that, the conduct is admissible only if the following conditions are satisfied:
(i) it must be in reference to the suit or proceeding or in reference to any fact in issue therein or relevant thereto.
(ii) it must directly influence or be influenced by any fact in issue or relevant fact; Hadu v. State of Orissa, MANU/OR/0067/1950 : AIR 1951 Ori 53; R. v. Abdullah, (1885) ILR 7 All 385.
The close association of accused is very important piece of evidence. The evidence of phone calls made by various accused to one another is very relevant ad admissible piece of evidence; Shidharth Vashist @ Manu Sharma v. State (NCT of Delhi), MANU/SC/0268/2010 : AIR 2010 SC 2352.
Q. What was the law laid down in Abdullah case?
In Queen-Empress v. Abdullah, (1885) 7 All 385 (FB); one Abdullah was charged with murder of one Dulari, a prostitute, by cutting her throat with a razor. She was questioned by her mother, Kotwal, Deputy Magistrate and Surgeon, etc. about the incident. She was unable to speak. When Magistrate mentioned the name Abdullah after speaking great many names, she made an affirmative sign by nodding her head. It was held by a majority of three judges as against one that section 8 was not applicable, but that the evidence was relevant under section 32 as a dying declaration. Mahmood, J., held that the conduct in question was relevant under section 8, but not under section 32.
Petheram, Chief Justice, with whom two judges agreed, proceeded on the hypothesis that to attract section 8 the conduct must be influenced directly by the facts and not by the interposition of words spoken by third persons. In his view the "conduct" must be relevant first and then any statement influencing that conduct becomes relevant. In this case, the signs of head was a conduct which indicated nothing and were, therefore, irrelevant and any statement influencing an irrelevant conduct would be irrelevant.
Mahmood, J., however, did not agree with this reasoning and held that, nodding the head or waiving the hand is not a word. He, therefore, set aside section 32(1) which according to him, could only apply to "a statement written or verbal".
Statements as conduct.-
Conduct may in certain cases includes statements; Emperor v. Nanua, MANU/UP/0042/1940 : AIR 1941 All 145 (149). However, Explanation 1 to section 8 clearly state that statements will not be treated as conduct, unless they accompany and explain acts other than statements. The Explanation points to a case where actions and statements are mixed together in such a way that those actions and statements can be proved as a whole; Queen-Empress v. Abdullah, (1885) 7 All 385 (FB). In Prakash Chand v. State of Delhi, 1979 Cr LJ 329; the accused was charged with the offence of bribery. It was deposed by the witness. Evidence to the effect that at the time of raid by the police officer and trap witness, on the question "whether you have accepted bribe" the fact that the accused was stunned and did not reply, he was confused and began to apologise, or that he began to tremble were held relevant.
Presence of Motive.-
The Supreme Court in case of Balram Singh v. State of Punjab, MANU/SC/0393/2003 : AIR 2003 SC 2213: 2003 AIR SCW 2656: 2003 (3) Crimes 43: JT 2003 (4) SC 569: (2003) 11 SCC 286: 2003 (3) SLT 601: (2003) 4 SCALE 561: 2004 SCC (Cri) 149: 2003 (3) Supreme 749, by analysing the motive of accused held that the incident occurred because of alteration between two families few days before the incident. Two persons were seriously injured out of, one person succumbed to the injuries. If evidence of such is accepted, the question of the presence of motive does not arise.
Section 9 of the Act, provides for the facts necessary to explain or introduce relevant facts as under:
9. Facts necessary to explain or introduce relevant facts.-
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
Illustrations
(a) The question is, whether a given document is the Will of A.
The state of A's property and of his family at the date of the alleged Will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant, under section 8, as conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home, he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A.C., on leaving A's service, says to A-"I am leaving you because B has made me a better offer". This statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says, as he delivers it-"A says you are to hide this". B's statement is relevant as explanatory of a fact which is part of the transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.
Under section 9 the following facts are relevant:-
(1) Fact which are necessary to explain a fact in issue or relevant fact.
(2) Facts which are necessary to introduce a fact in issue or relevant fact.
(3) Facts which support an inference suggested by a fact in issue or relevant fact.
(4) Facts which rebut an inference suggested by a fact in issue or relevant fact.
(5) Facts which establish the identity of anything or person whose identity is relevant.
(6) Facts which fix the time or place at which the facts in issue or relevant fact happened.
(7) Facts which show the relation of parties by whom any such fact was transacted.
It should be borne in mind that these seven categories of facts are not admissible generally. They are relevant only in so far as they are necessary for the purpose indicated in each category.
Introductory facts.-
It would be practically impossible, in conducting suit or proceedings to jump directly on the main fact. A judge seeks for some introductory matter, just as one hearing the main incident of a story would like to know the circumstances leading up to it and the result that follow it. Facts which are introductory of a relevant fact are often of a great help in understanding the real nature of the transaction, and in supplying the missing link.
In Hunt v. Swyney, 33 PAC 854; an action was brought by one Hunt executor of the will of one ship, against defendant Swyney to compel him, to convey certain lands alleged to have been held in trust for plaintiff's testator and setting out the facts relied on Mrs. Sharp, the widow, intervened claiming that the defendant held that land in trust for her and claiming rent and profits, setting out that the defendant, who was her husband's law clerk, has bought the land referred to with her money and for her, Mrs. Sharp, when in witness's box was asked, "During the year 1881 from December 1st, down to and including the month October, 1882 was Mr. Swyney the defendant in this action, your agent in rents for you." Objection was raised that it was inadmissible. The objection was ruled out on the ground that it was introductory.
In Musheer Khan @ Badshah Khan v. State of Madhya Pradesh, MANU/SC/0065/2010 : AIR 2010 SC 762, the Supreme Court held that the identification test is not substantive evidence is meant for purpose of helping investigating agency with an assurance that their progress with investigation into offence is proceeding on right lines.
Thus, the identity of a thing or person is necessary to prove the presence of relevant facts.
This part of the section overlaps section 11 of the Act. The facts which are relevant as supporting inference under section 9 may be relevant as making existence or non-existence of facts in issue or relevant facts highly probable under clause (2) of section 11, and facts which are relevant under section 9 as rebutting an inference may be relevant as inconsistent facts under clause (1) of section 11. There are certain classes of the facts which are neither relevant as facts in issue nor as relevant facts. But they either support the inference suggested by the fact in issue or relevant fact or they contradict the facts in issue or relevant facts and for the purpose they are relevant. E.g., X is accused of committing robbery. Just after the committal of the offence, X runs away to Bombay. At the trial of X for robbery the fact that he ran away just after the occurrence is a fact giving inference that he had some concern with the offence. If X adduces evidence to prove that he had a very urgent piece of work at Bombay and in that connection he went there it will rebut the inference drawn from the fact that he ran away to Bombay.
Fact which establish the identity of a person.-"This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section." So when a party's identity with ascertained person is in issue, it may be proved or disproved not only by direct testimony or opinion but by similarly or dissimilarity of personal characteristics, (e.g., height, age, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, peculiarities, thumb-impression, footprints), as well as residence, occupation, family relationship, education, travel, religion, knowledge of particular people, place or facts and other details of personal history.
Facts showing relations of parties.-Facts showing relationship of parties by whom such facts was transacted are relevant. Where a document is alleged to have been made under undue influence the relationship between the marker of the document and the person alleged to have influenced is a relevant fact under this section; Boyse v. Roosbarough, 6 HLC 42.
Test Identification Parade.-The identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two fold:
1. It is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of crime.
2. It is to satisfy the investigating authorities that the suspect is the real person whom, the witnesses had seen in connection with the said occurrence; Mulla v. State of Uttar Pradesh, MANU/SC/0091/2010 : AIR 2010 SC 942.
The purpose of TIP is to test and strengthen trustworthiness of substantive evidence of witness in Court. The evidence with regard to test Identification parade is used for corroboration; Ram Baba v. State of Uttar Pradesh, AIR 2010 SC 2143.
Identification Test.-
The identification test is not substantive evidence. Such tests are meant for purpose of helping investigating agency with an assurance that their progress with investigation into offence is proceeding on right lines; Musheer Khan v. State of Madhya Pradesh, MANU/SC/0065/2010 : AIR 2010 SC 762.
Section 10 of the Evidence Act, relates to conspiracy which applies to both civil and criminal conspiracies. Section 10 reads as under:
10. Things said or done by conspirator in reference to common design.-Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
Illustration
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
In Mulcahy v. R. Willes, J., laid down a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.' So long as such a design rests in intention only it is no indictable. When two agree to carry in into effect, the very plot is an act in itself.'
Thus conspiracy consists in a combination or an agreement. It has three essential elements (a) two or more persons, (b) agreement, (c) unlawful purpose or criminal object.
In civil cases, the principal is bound by the acts of his agent. In criminal cases, a person cannot ordinarily be held responsible for the acts of others unless they have been instigated by him or done with his consent. In other words, ordinarily there cannot be vicarious criminal liability. This section provides that in prosecutions for conspiracy when consent and connections between conspirators is reasonably believed to exist, whatever is said, done or written by each conspirator in reference to their common intention is admissible as evidence against others. The rule is founded on the identity of interest and commonality of the purpose existing between the parties. Section 10 is thus based on the principle of agency. When consent has once been proved, the doctrine applies that each party is an agent for all others and acts done by on pursuance of the common design are admissible against the fellow conspirators.
Section 10 is an exception to rule that one cannot be criminally responsible for the acts and statements of others.
To prove conspiracy the following elements must be proved:
(A) In Criminal Conspiracy to commit an offence-
(i) there must be an agreement between two or more persons; and
(ii) that agreement must be to commit an offence under the Indian Penal Code or any special or local Act.
(B) In Criminal Conspiracy other than to Commit an offence-
(i) there must be an agreement between two or more persons;
(ii) the agreement must be to do some illegal act or legal act by illegal means; and
(iii) that some overt act1 was committed in pursuance of such agreement.
(C) In Civil Conspiracy-
(i) that there was an agreement between two or more persons;
(ii) that the agreement was to effect some unlawful purpose or a lawful purpose by unlawful means;
(iii) that some overt act1 was done in pursuance of the agreement; and
(iv) that the overt act resulted in damage to the plaintiff.
Thus 'damage' is essential condition for establishing civil conspiracy.
Proof of conspiracy.-
Conspiracy is generally hatched in secrecy and executed in darkness and hence section 10 is deliberately enacted so as to make the acts and words of a conspirator admissible against the whole body of conspirators. Direct evidence of conspiracy by its very nature being rare, it is proved more often than not by inferential or circumstantial evidence like the conduct of the parties including their acts, words and writings.
(1) Reasonable grounds to believe the existence of conspiracy:-
Before the section 10 can be applied it must be established by independent evidence that there is reasonable ground to believe that two or more persons conspired to commit an offence or an actionable wrong; Balmokand v. Emperor, AIR 1915 Lah 16; Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682: (1964) 2 SCR 378: 1964 (2) SCJ 771: (1965) 1 Cr LJ 608. Reasonable ground to believe mean that there must be prima facie evidence in support of the existence of conspiracy between two or more accused; Balmokand v. Emperor, AIR 1915 Lah 16; Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682: (1964) 2 SCR 378: 1964 (2) SCJ 771: (1965) 1 Cr LJ 608.
(2) There must be some act or statement of the conspiracy:-
Section 10 allows evidence to be given of anything said, done or written by any of the conspirators; S.H. Jhabwala v. Emperor, MANU/UP/0371/1933 : AIR 1933 All 690. Anything said means any statement, speech or declaration; S.H. Jhabwala v. Emperor, MANU/UP/0371/1933 : AIR 1933 All 690. Anything done means some act done and not merely intention or knowledge of the person; S.H. Jhabwala v. Emperor, MANU/UP/0371/1933 : AIR 1933 All 690. Anything written includes (i) manuscript whether signed or unsigned by the person, and (ii) matter transcribed by a typist on a typewriter or printed; Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682: (1964) 2 SCR 378: 1964 (2) SCJ 771: (1965) 1 Cr LJ 608.
(3) Things said, done or written in reference to common intention:-
it must be borne in mind that the thing said, done or written by one person will be admissible against him and others in a conspiracy case only when that thing is said, done or written in reference to the common intention of the conspiracy. Anything written by a conspirator will not be admissible against him or other if it is not done in reference to the common intention of the conspiracy; Tribhuvan Nath v. State of Maharashtra, AIR 1973 SC 450: 1972 Cr LJ 1277: 1972 SCD 571: (1972) 3 SCC 511: 1972 SCC (Cri) 604.
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1. The overt acts may be acts—
• signifying conspiratorial agreement, or
• acts preparatory to offence, or
• acts constituting the offence itself.
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. Narrative coming from the conspirators as to their past acts cannot be said to have a reference to their common intention.
The Supreme Court observed that the only condition for application of the rule in section 10 of the Evidence Act, is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence. State of Tamil Nadu v. Nalini, MANU/SC/0945/1999 : (1999) 5 SCC 253: 1999 SCC (Cri) 691: AIR 1999 SC 2640: 1999 Cr LJ 3124: 1999 AIR SCW 1889: 1999 (2) Crimes 59: JT 1999 (4) SC 106: 1999 (2) SCJ 451: 1999 (6) SRJ 25; Sardar Sardul Singh Caveeshar v. State of Maharashtra, AIR 1965 SC 682: (1965) 1 Cr LJ 608: (1964) 2 SCR 378: 1964 (2) SCJ 771. The basic principle which underlines section 10 is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy. State of Gujarat v. Mohammed Atik, MANU/SC/0267/1998 : (1998) 4 SCC 351: 1998 SCC (Cri) 936: AIR 1998 SC 1686: 1998 Cr LJ 2251: 1998 AIR SCW 1453: 1998 (2) Crimes 92: JT 1998 (3) SC 60: (1998) 2 SCR 664: (1998) 2 SCALE 633: 1998 (3) Supreme 488. Section 10 permits "anything said, done, or written by any one of such persons in reference of their common intention" to be recorded as a relevant fact against each of the persons believed to have so conspired.
The provisions of section 10 are wider than those of the English Law in two respects:
(a) Under the English Law, an act must have been done or declaration made in execution or in furtherance of the common objects while under section 10, to establish the admissibility of the act or declaration it is sufficient to show that it as reference to the common intention as the section 10 uses the words 'in reference to'.
(b) Under the English Law the act of conspirator must have been done or declaration made before the persons against whom it is sought to be given in evidence, ceased to be a member of the conspiracy; in Indian Law the act or declaration would be admitted even though it was made after the person against whom it is sought to be given in evidence, terminated his connection with the conspiracy.
In Badri Rai v. State of Bihar, MANU/SC/0047/1958 : AIR 1958 SC 953: 1958 Cr LJ 1434: 1959 Mad LJ (Cri) 25: 1958 All LJ 909: 1959 SCJ 117: 1959 SCA 315: MANU/SC/0047/1958 : 1959 SCR 1141; Ramji and Badri were prosecuted for conspiracy for bribing a police officer. An inspector of police was on his way to the police station. Both Ramji and Badri approached him and requested that they would duly reward him if he could hush up the case relating to stolen ornaments, etc. recovered from Ramji's house and which was under investigation. The inspector told them to come to the police station. The inspector reported the matter to his senior officer. Badri also came to the police station and offered him a packet of currency notes. He told the inspector that Ramji had sent the money as a consideration for hushing up the case against him. The inspector seized the money and drew up the F.I.R.
The only question before the Supreme Court was whether the offer of money and the accompanying statement made by Badri were relevant against Ramji? The Court held that when both accused approached the inspector and requested him to hush up the case, that clearly showed that they had conspired to bribe a police officer. That being so, anything said or done by any of them in reference to 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. Thus, a statement made along with the offence is part of the same transaction and is hence admissible.
In Mirza Akbar v. Emperor, MANU/PR/0037/1940 : AIR 1940 PC 176; the allegation of the Prosecution was that W, the wife of MR. X, and her paramour B, conspired to murder X. It is further alleged that W and B hired C for committing the murder of X. C was caught red-handed in murdering X. B, who reached the spot pleaded that C is innocent (absence of motive). W, B and C were prosecuted for murder and conspiracy to murder.
The principle evidence or the conspiracy between W and her lover B, consisted of certain letters, in which they expressed deep love towards each other and referred to 'money' and 'means' (most probably in connection with X's murder). W also made statements before the Magistrate after she had been arrested on the charge of conspiracy. Her letters and her statements were admitted in evidence against B as being the things said and written by a conspirator in reference to their common intention. B preferred an appeal to the Privy Council against the relevancy of this evidence.
It was held that the letters were relevant under section 10 as their terms were only consistent with a conspiracy between W and B to procure the death X, and they were written at a time when the conspiracy was going on and for the purpose of attaining their object. But the statement to the Magistrate was held to be not relevant under section 10 as it was made after the object of the conspiracy had already been attained and had come to an end.
The court observed: "The words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention. But it would be very different matter to hold that any narrative/statement/confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist, is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.
The facts which are not otherwise relevant, i.e., which do not fall within sections 6 to 10 and 12 to 16 may become relevant under section 11, if they are inconsistent with any fact in issue or relevant fact or by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. According to section 11:
11. When facts not otherwise relevant become relevant.-
Facts not otherwise relevant are relevant-
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.
Inconsistent facts:-
Section 11(1) is based on the principle of inconsistency, while section 11(2) is based on that of probability. In the first clause the inconsistency or contradiction is complete while in the second it is not so. Thus, Illustration (a) is an instance of perfect alibi.1 As A was present in Lahore, it is impossible that he could have committed the crime in Calcutta. While Illustration (b) is an instance of imperfect alibi, for that A was at some distance, it was not altogether impossible for him to have committed the offence. It affords a weak defense, base probability and hence it is not a conclusive alibi. The theory of alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged and therefore with personal participation in the act.
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1. Alibi is a latin word for `elsewhere'.
The usual theory of essential inconsistency is that a certain fact cannot co-exist with the doing of the act in question and therefore, if that fact is true of a person of whom the act is alleged, it is impossible that he should have done the act.1
Highly probable or improbable:-
These words point out that the connection between the facts and issue and collateral facts sought to be proved must be so mediate as to render the co-existence of the two highly probable; State of Rajasthan v. Mahavir alias Mahavir Prasad, MANU/SC/0475/1998 : (1999) 1 SCC 199: AIR 1998 SC 3041: 1998 Cr LJ 4064: 1998 AIR SCW 2900: JT 1998 (5) SC 274: 1998 (2) SCJ 664: (1998) 4 SCALE 365: 1998 SCC (Cri) 819: 1998 (6) Supreme 223.
Instance of Probability:-
Where the accused was charged for possession of arms and for conspiracy to commit a dacoity, the fact that one of the accused was seen showing a revolver to another with whom he was alleged to be conspiring is relevant under section 11; Saroj Kumar v. Emperor, MANU/WB/0011/1932 : AIR 1932 Cal 474.
Where the question was whether a certain lease was intended to be perpetual, the fact that a number of other leases granted at about the same time, under similar circumstances were intended to be perpetual was held admissible under this section to show that the lease in dispute was also perpetual.
Instances of improbability:-
In a murder case three eye-witnesses deposed that the accused shot the victim from 25 feet, while attempting to escape. The medical evidence showed that the circular wound of entry of the bullet on the back of the deceased had burnt inverted margins and that such an injury could be caused only from a distance of less than a yard. It was held that the medical evidence rendered the eye-witness account highly improbable and the accused was acquitted, as his guilt was not proved beyond reasonable doubt; Santa Singh v. State of Punjab, MANU/SC/0167/1976 : AIR 1956 SC 526: 1956 Cr LJ 930.
Burden of Proof:-
It is basic law in the criminal case in which the accused is alleged to have inflicted physical injury to another person, the burden is on prosecution to prove that the accused was present at the scene and has participated in the crime; Binay Kumar Singh v. State of Bihar, MANU/SC/0088/1997 : AIR 1997 SC 322: 1997 Cr LJ 362: 1997 AIR SCW 78: JT 1996 (10) SC 79: 1997 (12) OCR 374: MANU/SC/0088/1997 : (1997) 1 SCC 283: 1997 Scc (Cri) 333.
In Kalu Mirza v. Emperor, ILR 37 Cal 91 : 11 Cr LJ 23; Binay Kumar Singh v. State of Bihar, MANU/SC/0088/1997 : AIR 1997 SC 322: 1997 Cr LJ 362: 1997 AIR SCW 78: JT 1996 (10) SC 79: 1997 (12) OCR 374: MANU/SC/0088/1997 : (1997) 1 SCC 283: 1997 SCC (Cri) 333 where the question was whether a person was habitual cheat, the fact that he belonged to an organisation which was formed for the purpose of habitually cheating people was held to be relevant, and it was open to the prosecution to prove against each person that the members of the gang did cheat people.
Relevancy and admissibility:-
The tools of modern technology like tape records, makes the probability of truth highly certain. It is a general rule of evidence that all such evidence is admitted which helps the Court in arriving at the truth.
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1. Vide illustration (a) of section 11
Thus, tape-recordings can be used as evidence in court to corroborate the statements of a person who deposes that he had carried on a conversation with a particular person. A previous statement of a person which has been tape-recorded can also be used to test the veracity of a witness and to impeach his impartiality.
Tape-recorded conversation:-
Tape-recorded conversation is relevant under sections 6, 7 and 8 of the Evidence Act, it is res gestae. It is also comparable to a photograph of relevant incident. Tape-recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. The
tape-recorded conversation is relevant provided first the conversation is relevant to matter in issue, secondly, there is identification of voice and thirdly, the accuracy of tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorded. There should be no possibility of tampering of statement.
In Mahabir Prasad Verma v. Dr. Surinder Kaur, MANU/SC/0217/1982 : AIR 1982 SC 1043: (1982) 2 SCC 258: (1982) 1 Rent LR 591: 1982 UJ (SC) 394: (1982) 1 Ren CR 615: 1982 (1) SCJ 362: (1982) 2 Ren CJ 205: 1982 East LR 309; the Supreme Court held that tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation. In the absence of any such evidence, the tape cannot be used as evidence in itself.
In case of Tukaram S. Dhigole v. Manikrao Shivaji Kokate, MANU/SC/0086/2010 : AIR 2010 SC 965 Court held that tape record of speeches is document.
In R.M. Malkani v. State of Maharashtra, MANU/SC/0204/1972 : AIR 1973 SC 157: 1973 Cr LJ 228: 1973 Mah LJ 92: 1973 MPLJ 224: MANU/SC/0204/1972 : (1973) 1 SCC 471: 1973 SCC (Cri) 389: (1973) 2 SCWR 776; the prosecution case was based solely on the tape-recorded conversation, which clearly proved the appellant's intention to obtain a bribe. The appellant's contention was that such conversation cannot be admitted under the provisions of Indian Evidence Act, moreover as it was 'unlawful'. The Supreme Court held such conversation to be relevant.
The Supreme Court laid down the law relating to tape-recorded conversation as:-
(1) Tape-recorded conversation is admissible in evidence provided the conversation is relevant to the matter in issue, the voice can be properly identified, and the possibility of erasing parts of the tape is eliminated.
(2) When the tape-recording is a contemporaneous record of such conversation (i.e., made simultaneously with the facts in issue of relevant facts), it is a relevant fact under section 6. It is res gestae. Since it is like a photograph of a relevant incident, it is also admissible under section 7. Such recording is also a 'document' under section 3. The recording is also admissible under sections 8, 9, 10 or 11.
(3) As to evidentiary value the Court has said that such evidence must be received with caution. Thus, tape-recording must be genuine and free from tampering or mutilation; the Court should be otherwise satisfied of its accuracy.
(4) Even if the tape-recording is obtained unlawfully, it will be admissible in evidence, as "detection by deception" is a form of police procedure.
The Court relied upon the decision of this Court in Magraj Patodia v. R.K. Birla, (1970) 2 SCC 889: AIR 1971 SC 1295: 1970 UJ (SC) 905: (1971) 2 SCR 118; and held that even if a document is procured by improper or illegal means, there is no bar to its admissibility provided its relevance and genuineness are proved.
In other cases like, in R. Venkatesan v. State, 1980 Cr LJ 41; the Madras High Court considered the evidentiary value of a tape-recorded conversation. In that case, the conversation was not audible throughout, and was broken at a very crucial place. The accused alleged that the same has been tampered with. The accuracy of the recording was not proved and the voices were also not properly identified. In the circumstances, the Court concluded that it would not be safe to rely on the tape-recorded conversation as corroborating the evidence of the prosecution witness.
As regards admissibility of tape-recordings, the Bombay High Court in Chandrakant Ratilal Mehta v. State of Maharashtra, 1993 Cr LJ 2863: 1993 (3) Bom CR 99; has observed: "The law is quite clear the tape-recorded evidence if it is to be acceptable, must be sealed at the earliest point of time, and not opened except under orders of the Court".
In Ram Singh v. Col. Ram Singh, (1985) Supp SCC 611: MANU/SC/0176/1985 : AIR 1986 SC 3: 1985 Suppl (2) SCR 399; the Supreme Court has tightened the rule as to relevancy of tape of 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 tape recorded 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; Quammaral Islam v. S.K. Kanta, MANU/SC/0417/1994 : AIR 1994 SC 1733: 1994 AIR SCW 1598: 1994 Bom CJ 746: 1994 (2) Civ LJ 83: JT 1994 (1) SC 452: (1994) 1 SCR 210: 1994 (3) SCC (Supp) 5.
In Yusufalli Esmail Nagree v. State of Maharashtra, MANU/SC/0092/1967 : AIR 1968 SC 147: (1967) 70 Bom LR 76 (SC); the Supreme Court observed: "If a statement is relevant an accurate tape-record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and voice must be properly identified. One of the features of the magnetic tape-recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tempered with."
In case of Akbar Sheikh v. State of West Bengal, MANU/SC/0746/2009 : (2009) 7 SCC 415, the accused took a specific plea of alibi defence, the Court observed that the burden of proof of such alibi lied on accused. But in fact the plea of alibi had not been established. Hence the Supreme Court relying on the face of record of the whole case held that as the accused could not establish his plea of alibi no case had been made out to interfere with the judgment of the Trial Court and High Court.
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