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Dept. of Law, AMU

Study Material Law of Evidence- I

B.A.LL. B (HONS) V SEMESTER Unit-2

RELEVANCY OF FACTS

Section 8; Motive, preparation and previous or subsequent conduct: Any fact is relevant which shows or constitutes a motive or preparation for any 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, conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1:

The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2:

When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations:

(a) A is tried for the murder of B.

The facts that A murdered C, that В knew that A had murdered C, and that В had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues В upon a bond for the payment of money. В denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, В required money for a particular purpose is relevant.

(c) A is tried for the murder of В by poison.

The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the Will of A.

The facts that, not long before the date of the alleged Will, A made inquiry into matters to which the provisions of the alleged Will relate, that he consulted vakils in reference to making the Will, and that he caused drafts or other Wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime.

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The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B.

The facts that, after В was robbed, С said in A’s presence—“the police are coming to look for the man who robbed B,” and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes В rupees 10,000.

The facts that A asked С to lend him money, and that D said to С in A’s presence and hearing—

“I advise you not to trust A, for he owes В 10,000 Rupees,” and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime.

The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that he said he had been robbed, without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

Principle:

Section 8 deals with the relevancy of three principal facts, namely, motive, preparation and conduct. According to this section the presence or absence of motive, evidence of preparation and previous or subsequent conduct of the parties are relevant and are very important elements in Civil and Criminal proceedings. Whereas Section 7 concerns with occasion, cause or effect of opportunity, Section 8 has wider application. It lays down:

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1. Fact which shows the motive or constitute motive.

2. Fact which shows preparation.

3. Fact which shows the previous or subsequent conduct of any party provided it is influenced by the fact in issue or relevant fact.

4. Statements accompanying and explaining act are relevant (Explanation 1).

5. Statements made in the presence and hearing of a person whose conduct is in issue, are relevant provided the statement affects such conduct (Explanation 2).

1. Motive:

A motive is that which moves a man to do a particular act. It is an inducement to do an act.

Motive is the reason or ground of an action. By motive is meant anything that can contribute to, give birth to, or even to prevent, any kind of action. Motive in correct sense is the emotion supposed to have led to the act.’ It is the emotion which impels a man to do particular act. In other words, it is the feeling which prompts anyone to translate his will into an action. It is a psychological fact that can be proved by conduct of a person.

There is hardly any act done without motive and, again adequacy of motive is not in all cases necessary in doing an Act. The evidence of injured witnesses is to be accepted, presence of motive is hardly relevant, where the evidence is found truthful, motive assume a secondary role. Motive by itself is not a crime, but when crime is committed it becomes important. Feature to mention motive in FIR cannot be the ground to acquit the accused.

Motive is relevant in all criminal cases whether based on testimony of eyewitness or circumstantial evidence. It provides fundamental material. Absent of motive is not of much consequences when chain of proved circumstances is complete. In respect of land dispute murder was committed. Prosecution witnesses stated that Panchayati was held in the village where the accused appellant and his brother did not attend, rather, they had given threat to kill the deceased. No infirmity was pointed out in the evidence. Motive for communication of murder stands proven. In Swarup Singh v State of Punjab the evidence proved the participation of accused. In view of the aforesaid evidence it would not be necessary to prove motive on part of the appellant. It was held that the connection of the accused was proper.

Hence, “motive is the emotion which impels to do particular Act, such impelling cause need not necessarily be proportionately grave to do grave crimes, the mere fact that prosecution failed to translate that mental disposition of accused into evidence does not mean that no such mental condition existed in the mind of assailants.”

Difference between motive and intention:

In ordinary sense the motive and intention are used interchangeably. In law they have different meanings and the motive should not be confused with intention. Motive is the reason of an action whereas intention is the volition or active desire to do an act. Intention is an operation of the will directing a man to do an overt act, but motive is an emotion prompting the operation of the will. For instance, if A kills B, the intention is the state of mind which causes death, the motive is the object which a person had in view viz. satisfaction, vengeance and the like.

Motive is not the basis of criminality.

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The criminal law only takes into account man’s intention. Motive is something which prompts a man to form an intention. In criminal trial, in absence of direct evidence, the evidence of Motive becomes important when there is only circumstantial evidence, whereas burden lies upon the prosecution to prove guilty intention where the intention is expressly stated.

Consistent statements of prosecution witnesses proved that land dispute was going on between appellant and deceased. They further stated that Panchayati was also held in the village which was not attended by appellant and his brother rather they had given out threats to kill the deceased ‘No infirmity was pointed out in their evidence. Motive for communication of murder stands proven. There was clear and convincing ocular evidence and the role of the accused persons in the crime was clearly established; failure to offer proof of motive was immaterial.

Relevancy of motive:

Under section 8 of the Evidence Act motive may be relevant when a case depends upon the circumstantial evidence. In a case based on circumstantial evidence motive assumes a great significance as its existence is an enlightening factor in the process of presumptive reasoning.

Evidence of incidents took place sometime ago are relevant. Evidence of injured witnesses is to be accepted presence of motive is hardly relevant.

Illustration:

A sues В upon a bond for the payment of money. В denied the making of the Bond. The fact is that at the time when the bond was alleged to be made, В required money for particular purpose is relevant

Adequacy of motive:

It is very difficult to prove motive. There are crimes which are committed with a slightest motive. It is not essential to prove motive when any heinous crime is committed. When offences are committed by habitual criminal or immoral person adequacy of motive is of little importance. Sometimes, the pleasure and adventure might be the reasons of motive. It can be said that there cannot be one rule for every case as regards adequacy of motive. The adequacy of motive to commit a crime depends upon the character of a man. However, if the prosecution case is proved by cogent evidence the motive is immaterial. Evidence of motive is important when ocular evidence is suspect.

Proof of motive:

As stated earlier the motive by itself is no crime, but evidence of motive is always relevant.

Proof of motive is not essential when direct evidence establishes crime. Evidence of motive helps the court to find out the guilt of the accused, particularly in view of circumstantial evidences the question of motive has been vital. This proof of motive leads support when the positive evidence is “clear, cogent and reliable.” Proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a person has committed an offence. Similarly, where an eye-witness account of the happening of a fact is so clear and truthful that it establishes the connection of the person accused as the perpetration of that fact, the evidence of motive puts into insignificance. When a new story was introduced which was averse to the prosecution case, it created doubt about motive for the crime. Benefit of doubt was given to the accused. Thus, a motive may not always prove the guilt of the accused.

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Police constables allegedly committed offences of house-breaking by night and murdered of deceased. Evidence of eye-witnesses including injured witness proved participation of accused.

In view of aforesaid evidence, it would not be necessary to prove motive on part of appellant.

Conviction of accused is proper.

2. Preparation:

Preparation is an inchoate Act. It means an arrangement, measures or design necessary for commission of a crime or certain thing. Preparation by itself is not a crime except preparation to wage war against the Government of India, preparation to commit dacoity and sedition.

Section 8 of the Evidence Act provides that the acts of preparation are relevant. Any fact that shows that the preparation was being made for fact in issue or for any relevant fact, is relevant.

Once an offence has been committed, evidence in support of preparation produced becomes very important. However, preparation and attempt are different. An attempt is direct active towards the commission open act after preparation.

Where the question is whether A has committed an offence, the fact of his having procured instruments used in its commission, is relevant. For example, A was indicted for murdering В by poisoning him. It appears that shortly before murder A purchased poison. Thus, purchasing poison being a preparation is relevant. Illustrations (c) and (d) refer to preparation. Preparation includes to accomplish crime, to help in escaping, to prevent discovery etc. Evidence tending to show that the accused made preparation to commit a crime is relevant and admissible.

Premeditated crime must necessarily be preceded by preparation. Absence of evidence of any preliminary measure leads to presumption of innocence.

3. Conduct:

Conduct is the expression in outward behaviour of the quality or condition operating to produce those effect. It is conscious attitude adjusted for doing an Act or series of Acts. The second paragraph of the Section 8 makes the conduct of a person relevant when such person is a party to a suit or proceeding or such conduct is referred to the facts in issue. A man’s conduct includes what he does and what he omits to do. The conduct of the accused on being questioned immediately after taking bribe is relevant.

The evidence of conduct of the party is to relevant: (i) in reference to the fact in issue or relevant facts; (ii) that the conduct is such as influences or is influenced by the facts in issue or the relevant facts.

(i) When evidence of conduct itself is fact in issue the Supreme Court held that his conduct would be relevant to support or rebut his case. In this case the wife was pregnant at the time of her marriage and the husband alleged that she had concealed it from him. The conduct of a man is admissible only against him. The conduct of one accused is not relevant against a co accused.

When the conduct of a person is in question, the statements, oral or written, made to him or in his presence or hearing which affect such conduct are relevant. Example – Illustrations (f), (g), (h).

(ii) Secondly, conduct influences or is influenced by the fact in issue. In Queen Empress v Abdullah, the question was whether the signs made by the deceased could be admitted as the conduct and a dying declaration. It was decided that the signs made by the deceased can be taken into consideration along with the questions put to her. The signs alone cannot be admitted

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by way of conduct under sections 8 and 9 of the Act. Thus, conduct of the injured person is not always relevant. According to Wig more a man’s conduct is always influenced by what he has been doing before or after the act. The accused is charged with strangulating the victim; his conduct is producing a watch of the victim before the police from his house is admissible.

Previous and subsequent conduct Previous conduct:

A conduct to be relevant need not be only previous or subsequent. Both are relevant. Under section 8 previous declaration of intention, threat or attempts to commit an offence are instances of previous or antecedent Conduct and are relevant. In antecedent conduct there is declaration of intention or threat. Such type of conduct may influence or is likely to influence the fact in issue or any relevant fact.

A woman and her paramour were accused of murdering her husband. She had been heard to say of her husband. “I live a most unhappy life with him. I wish his death. If he cannot die, I will kill myself.” It is relevant.

Subsequent conduct:

Subsequent conduct of a party or person or his agent is relevant under the section. Sudden change of life, silence on part of the accused, false statement, suppression of evidence, running away after occurrence are instances of subsequent conduct. Illustrations (f), (h) and (i) explain the same. Presence of accused at a place where ransom demanded was to be fulfilled and then action of fleeing on spotting the police party is a relevant circumstance and is admissible under this section.

Subsequent conduct in civil cases:

The following are instances of subsequent conduct in civil cases: (i) Failure to produce evidence, (ii) Party’s failing to appear, (iii) destruction or non-production of document (iv) conduct regarding document (v) sale or mortgage (vi) family settlement, (vii) partition and (viii) adoption.

Current conduct:

Besides previous and subsequent conduct, the current or contemporaneous conduct is also relevant under section 8. The conduct of a party interested in a proceeding at the time when the facts occurred, out of which the proceeding arises is relevant. In terrorist attack in parliament the accused has purchased ingredients from a shop used IEDS and found in possession of deceased terrorists. The name of the shop and address were already known to the police as name and address of the shop was already mentioned on packets seized. It was held that the conduct of accused in pointing shop and its properties was relevant under this section.

Statement explaining conduct:

Mere statement is not admissible according to Explanation 1 to Section 8. It lays down that the conduct does not include statements. But the explanation is an exception to this rule. “The statement and the Act which are explained and accompanied by such a statement both are relevant as a composite whole.” Those statements which accompany and explain acts, other than statements can be regarded as conduct.

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For example, a girl was raped and she made a complaint about it to her mother. The circumstances under which and the terms in which the complaint was made, is relevant. It is not necessary that a complaint to be relevant should have been made only to police station.

But false explanation of the accused is also conduct and relevant.

Similarly, the accused was charged with gross indecency with a boy of fifteen. Shortly after the offence a complaint was made by the boy to his parents. The particulars of the complaint were held to be relevant.

A distinction can be drawn between complaint and a statement. The evidence of complaint is always allowed, but a statement is allowed in special circumstances, particularly when it is part of res gestae.

First information report:

If the first information report is non-confessional statement, then the contents of it is relevant.

The fact of giving information by the accused is relevant against him as his conduct under section 8 of the Act. Confessional Part of the F.I.R. of the accused is not admissible except to the extent permissible under section 27 of the Evidence Act. But non-confessional part of the F.I.R. can be used against the accused as evidence of conduct under section 8 of the Act.

Statements of third person affecting the conduct of a party to a proceeding. Explanation 2 states that the statement of third person made to the accused, whose conduct is relevant, in his presence and before the court is admissible if it affects his conduct. Illustrations (f), (g) and (h) appended to Section 8 are relevant to Explanation. The statement of the investigating officer revealed that the accused had been taken to ‘G’ who pointed out the accused. The statement of G’ to that extent was relevant.

Facts reflecting upon common Intention (Sec.10)

Section 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 В procured arms in Europe for the purpose of the conspiracy, С 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 С 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.

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Conspiracy:

Section 10 deals with the admissibility of evidence in a conspiracy case. It is based on the

“theory of implied agency.” The special feature of the section is that anything said or done or written by any member of conspiracy is evidence and admissible against the other if it relates to the conspiracy. This section has to be read with Section 120A of the Indian Penal Code.

When any conspirator has assumed to do any act of conspiracy in furtherance of common design, it is a part of res gestae. All conspirators must have “common intention” at the time when the thing was said, done or written. Confessions by accused made after the object of the conspiracy is carried out are not relevant as the common intention was not then existing.

The first condition for applying Section 10 is that the conspirators have conspired together.

The conspiracy is, therefore, an unlawful combination of two or more persons to do an unlawful act or a lawful act by unlawful means. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. However, a conspiracy is not actionable act giving rise to cause of action.

Ingredients:

(1) There must be an agreement between two or more persons who are alleged to conspire, and

(2) The agreement should be to do or cause to be done:

(i) An illegal act, or

(ii) An act which is not illegal but by illegal means.

Test of conspiracy:

The conspiracy is an inchoate crime. The gist of it is bare engagement and association of persons to break the law in furtherance of common object. The conspiracy itself is not an ingredient of an offence that all parties have agreed to do a single act, rather, in course of carrying out the conspiracy, the commission of a number of illegal acts is done to that effect.

The law does not take notice of the intention or state of mind of the offender and there must be some overt act to give expression to the intention. The test is to establish: (i) there is reasonable ground to believe that a conspiracy existed, and (ii) such act was done and the statement made or writing exchanged between conspirators. Thus, “before bringing on record anything said, done or written by an alleged conspirator the court has to bring on record some evidence which prima facie proves the existence of the conspiracy.” All acts and statements of a conspirator can only be used for the purpose of proving the existence of the conspiracy or that a particular person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to conspiracy. The common concern and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.

Relevancy of conspiracy:

This has been the rule of conspiracy under section 10 that anything said, done or written by any one of the conspirators against each other is believed to be cons-pirating and is relevant.

Once there was sufficient material to reasonably believe that there was concert and connection between persons charged with common design, it is immaterial as to whether they were

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strangers to each other, or ignorant of actual role of each of them, or that they did not perform any one or more such acts by joint efforts.

The question is whether the statements made or act done by others before the accused joined the conspiracy is relevant or not. According to the expression “in reference to their common intention” the statement made or act done by other is a relevant fact and is admissible. In Ghulam Din Bitch v State of J. & K. it was held that in a trial of government employees who were carriage contractors, when there is a finding that there was a close relationship between the carriage contractors and the government employees who had acted in consent, absence of a charge of conspiracy between the two was not material.

The statements by one conspirator to another during the period of conspiracy relating to the implementation of that conspiracy and the evidence as to the acts done by him disclosing participation of the other conspirator are relevant. Retracted confession of a co-accused unless corroborated by any evidence circumstantial or otherwise which can connect the accused with the crime, can be basis for conviction of the accused.

But any statement or act made or done after the conspiracy is a very different matter. Once it is shown that a person is out of conspiracy and statement made to the police officer during post-arrest period, whether such statement is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act. The burden of proving the commission of offence by the accused remains on the prosecution and would not be lessened by the mere fact that the accused had pleaded alibi.

In State of Gujarat v Mohammed Atik the Supreme Court held that any statement by an accused after arrest, whether a confession or otherwise, had not to fall within the ambit of this section.

Confession was made by the accused after common intention of parties was no longer in existence, Section 10 cannot be invoked against co-accused.

Principles of Conspiracy:

The essence of Section 10 lies within the expression “common intention.” The words “common intention” signify a common intention existing at the time when the thing said, was or written by one of them.2 Any narrative, or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party. Therefore, the statement of woman to the Magistrate was not admissible, as the conspiracy was already completed.” This principle was approved by the Supreme Court in Sardul Singh v State of Bombay where it held that “principle underlying the reception of evidence under section 10 of the Evidence Act, the statements, Acts, and writing of one co-conspirator as against the other is on the theory of agency.” The ‘theory of agency’

has also been referred to by the Supreme Court in Badri Rai v State of Bihar where it stated that the offering of bribe along with the statement was admissible not only against the first appellant but also against the second appellant on the basis of “theory of agency” in pursuance of the object of the conspiracy. It is a principle of common sense that one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire. The House of Lords in the famous case of Mulcahy v R. made the following observation:

“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 by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself

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and the act of each of the parties promise against promise actus contra actum capable of being enforced it lawful, punishable if for a criminal object or for the use of criminal means.”

The application of the doctrine laid down in Section 10 is strictly based on “reasonable ground”

that two or more persons have conspired together to commit an offence. “Once reasonable ground, to believe that several persons have conspired to commit an offence, exists, the acts and declarations of a particular person in reference to the common intention are relevant facts although that person may not so much as even to know of the existence of many others engaged in the conspiracy or where utter strangers to him.” Regard must also be had to the limits within which this class of evidence can be used. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. When confession was made by the accused after common intention of the parties was no longer in existence Section 10 cannot be invoked against co-accused.

Facts not otherwise relevant when become relevant (Sec.11)

Section 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 circumstance is such that the crime must have been committed either by А, В, С or D, every fact which shows that the crime could have been committed by either В, С or D, is relevant.

Scope:

Section 11 of the Evidence Act is very wide in its application and it does not impose any restriction on facts that can be admitted even these facts are highly inconsistent or improbable with fact in issue or relevant fact. The facts which ordinarily tend to render the existence of fact in issue or relevant fact probable or improbable are relevant. But, under this section there are collateral facts which by way of contraction, inconsistent with the fact in issue or relevant fact are also relevant. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The section is described as

“residuary section” dealing with relevancy of facts which are logically admissible.

Example:

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A has written a defamatory statement against B. This is a fact.

A is illiterate, this is another fact. Both the facts are inconsistent but both facts are relevant and admissible.

Nature of facts:

The Section 11 consists of two clauses, viz.,

1. Facts in consistent with fact in issue or relevant fact, and 2. Facts highly probable or improbable.

1. Facts inconsistent with fact in issue or relevant fact:

One fact is inconsistent with the other when it cannot co-exist with the other. Under this clause facts are relevant only because they cannot co-exist with fact in issue or relevant fact. Above example shows that A is illiterate. A cannot write a defamatory letter to B. These two facts cannot co-exist. “The usual theory of essential inconsistency is that a certain fact cannot co- exist with the doing of the act in question, and, therefore, that if that fact is true of a person of whom the fact is alleged, it is impossible that he should have done the act.”

Under the clause there are at least six classes of cases which show inconsistency, viz.;

(a) Alibi:

Alibi is a Latin word, which means elsewhere. It is used when the accused takes the plea that when the occurrence took place he was elsewhere. In such a situation the prosecution has to discharge the burden satisfactorily. Once the prosecution is successful in discharging the burden it is incumbent on the accused who takes the place of alibi to prove it with absolute certainly. An alibi is not an exception envisaged in the IPC or any other law. It is a rule of evidence recognized by Section 11 of the Evidence Act that facts inconsistent with fact in issue are relevant [Illustration (a)]. However, it cannot be the sole link or sole circumstance to bare conviction. When one fact is necessary to the hypothesis of the guilt of the accused, but strikingly absent in the chain of circumstantial evidence, the prosecution case certainly will fail. Because, an alibi the relevancy of which is totally inconsistence with hypothesis that the accused had committed an offence.

When the accused took the plea of alibi the burden of proof lies on him under section 103 of this Act. If a person is charged with murder, he is to prove that he was elsewhere. The plea of alibi has to be taken at the earliest opportunity and it has to be proved to the satisfaction of the court. When an accused was discharged from hospital situated 180 km. away from the place of occurrence.

11/2 hrs. earlier from time of occurrence the plea of alibi was established. Strict proof is required for establishing the plea of alibi. The plea of alibi must be proved with absolute certainty as said in Rajesh Kumar v Dharamin. Plea of alibi was rejected when no material showing that accused was present in jail for purpose of identification at point of time when occurrence took place.

The plea of alibi taken by the party on the basis of certificate issued by a hospital not filed at the stage of filing objections but during course of agreements in execution proceedings being

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an afterthought was found not tenable and rejected’ while weighing the prosecution case and defence case, if the prosecution case fails the accused would be entitled to benefit of the reasonable doubt which would emerge in the mind of the Court.

(b) Non access of husband to show illegitimacy of the child:

Since legitimacy of the child implies a cohabitation between husband and wife. For disproving the legitimacy, the husband has to prove that he had no cohabitation with his wife during the probable time of begetting as he was in abroad.

(c) Survival of the alleged deceased:

A is accused of murdering В on 10th August 1996 at Delhi. But A tried to prove and led evidence to show that В was alive on 25th December 2004. Both the facts are relevant under section 11 only because these are not consisting with each other.

(d) Commission of an offence by a third person:

A is charged with the murder of B. A leads evidence that В was murdered by C. This is admissible being inconsistent with fact in issue.

(e) Self-infliction of harm:

A is charged with the murder of B. A proves that В had committed suicide. The evidence is admissible.

(f) Non-execution of document:

A file a suit for recovery of possession against В alleging that he has purchased the land. В leads evidence that the deed of sale was not executed as yet. The fact is relevant.

2. Facts highly probable and improbable:

Under the second clause the fact which by itself or in combination with other facts make the existence and nonexistence of the fact in issue or relevant fact highly probable or improbable.

The words “highly probable” indicate that the court has to go by the prohibits of the circumstances as regards the existence or non-existence of fact in issue or relevant fact. It also indicates that the connection between the facts in issue and the collateral facts sought to be proved must be immediate as to render the co-existence of the two highly probable. The collateral facts can be admitted in evidence if they make the existence of the fact in issue highly probable or improbable.

It is well settled that it is not a mere reasonable probability but carries great weight in bringing the court to conclusion whether facts exist or non-exist. In order to make a collateral fact admissible, the collateral facts must be established by conclusive evidence and when established these must afford a reasonable presumption as to matter in dispute. When a person is charged with forging a particular document, evidence is afforded to prove that a number of documents apparently forged or held in readiness for the purpose of forgery were found in possession of the accused. It can be said as per Reg. v Prabhudas that in a charge of forgery, the evidence offered to prove that a number of documents apparently forged or held in readiness for the purpose of forgery found in possession of the accused is not admissible. This section

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renders inadmissible the evidence of one crime to prove the existence of another unconnected crime, even though it is cogent.

Facts showing state of mind, or of body or bodily feeling (Sec.14)

Section14. Facts showing existence of state of mind, or of body or bodily feeling.—Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

Explanation 1. —A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

Explanation 2. —But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.]

Illustrations:

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession, to be stolen. 2[(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.]

(c) A sues B for damage done by a dog of B’s, which B knew to be ferocious. The facts that the dog had previously bitten X, Y, and Z, and that they had made complaints to B, are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question. The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A’s defence is that B’s contract was with C. The fact that A paid C for

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the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A’s good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of A’s having previously shot at B may be proved.

(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

(l) The question is, whether A’s death was caused by poison. Statements made by A during his illness as to his symptoms, are relevant facts.

(m) The question is, what was the state of A’s health at the time when an assurance on his life was affected. Statements made by A as to the state of his health at or near the time in question are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. The fact that B’s attention was drawn on other occasions to the defect of that particular carriage, is relevant. The fact that B was habitually negligent about the carriages which he let to hire, is irrelevant.

(o) A is tried for the murder of B by intentionally shooting him dead. The fact that A, on other occasions shot at B is relevant, as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them, is irrelevant.

(p) A is tried for a crime. The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.

Scope

This section is applicable in cases where the offence alleged to have been committed by the accused is culpable on the basis of the state of mind or feeling of the accused. This includes offences such as slander, false imprisonment, etc. in which malice is the primary requirement for culpability. However, the applicability of the section must not be extended to those cases which are supposed to be decided upon actual facts and not any state of mind or bodily feeling.

For instance, in order to prove that a man has committed an offence such as that of theft on one occasion, the fact that he committed similar offences on other occasions is not relevant.

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(Empress v. M.J. Vyapoory Moodeliar, (1881) 6 Cal 655, 659, 660; Gandhi v. The King, (1941) Ran 566.)

In Sardul Singh Caveeshar v. State of Bombay, the Supreme Court held that the acts, writings and statements of an individual co-conspirator may be used by the prosecution under this section to rebut a probable defence that the participation of the co-conspirator was innocent. Thus, the section may also be invoked when the state of mind has not become a fact in issue or relevant fact but there is high probability of it being such a fact in the course of the proceedings of the case.

Specific state of mind

Per Explanation 1 to the section, the evidence must be pertaining to the specific state of mind that pertains to the case at hand and not that of general reputation. Thus, anything that has a distinct and immediate connection to the case at hand is admissible. [ Emperor v. Debendra Prasad, (1909) 36 Cal 573.] In R v. B, [4] the accused was convicted of assaulting his grandsons on the basis of pornographic magazines found in his possession and his sexual proclivities. The subsequent appeal filed by him was allowed and the Court observed that the evidence of pornographic magazines and the subsequent cross-examination of the accused showed a mere tendency and had no probative value due to which it should not have been admitted as evidence in the first place.

Previous Convictions

Per Explanation 2 to the section, in a case where the previous commission of an offence is relevant, the fact that the accused was previously convicted for the said offence would be relevant under the section. However, the question of previous convictions being used in subsequent cases is often debated under various provisions of the Evidence Act. For instance, in Emperor v. Alloomiya Husan, the accused was arrested and convicted under the Bombay Prevention of Gambling Act for keeping a common gaming house. The conviction by the Magistrate was based upon the fact that the accused was previously convicted on multiple occasions under the Gambling Act. Upon appeal, the decision was upheld and the fact pertaining to previous convictions was held to be relevant and admissible under section 14 of the Evidence Act.

The legality of the decision is often doubted by many who argue that the previous conviction is simply evidence showing bad character and is therefore inadmissible under section 54 of the Evidence Act. Thus, the relevancy of previous convictions under section 14 might conflict, on certain occasions, with the rules of exclusion of evidence showing bad character under section 54.

The proof of the existence of a particular state of mind is of extreme importance in certain cases. The overall scope of the section extends beyond questions of previous convictions.

However, the section is mostly called for interpretation in cases where it is tendered that the previous conviction of the accused is relevant in deciding upon the case at hand. This might be because the other aspects of the section are already covered by the rest of the provisions of the Evidence Act.

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Facts having a bearing on the question whether an act was accidental or intentional (Sec.15)

Section 15, Facts bearing on question whether act was accidental or intentional: When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Illustrations:

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B.

It is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether this false entry was accidental or intentional.

The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to В a counterfeit rupee.

The question is, whether the delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B, was not accidental.

General Principle:

Section 15 lays down the rules of admissibility of evidence in cases, where the question is whether a particular act was accidental or done with particular intention or knowledge. The section raises two questions viz.,

(i) Whether the act with which a person is charged, is accidental or intentional, and (ii) whether the act was done with a particular knowledge or intention. It is important to note that in cases showing the existence of any state of mind which proves and disapproves of intention for doing an act being necessary are regulated by the Section 14 of the Act. Section 14 is a general section dealing with all cases in which state of mind is involved. Section 15, on the other hand, provides specifically for allowing evidence of similar occurrences. It is not an exception but an application of general rule laid down in Section 14. It picks out only those cases where the question is whether a particular act is accidental or intentional. In order to prove intention, the section is to apply to the act of similar nature, because Section 15 is particular application of the general rule laid down in the Section 14. An act is said to be similar to another when it is similar to a fact in issue only.

For example, if a person is prosecuted for theft, a similar act had to be committed by him on other occasion. Since the general principle laid down in Section 14 is to exclude the evidence

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of similar facts, this principle devised by the Section 15 will apply only when there is a striking similarity between the fact on which the case is based and the fact of which evidence is offered.

The two facts possess a common characteristic.

Section 15 has also laid down another principle that “all the acts should form parts of a series of similar occasion,” Under the section the similar occurrences must be many. One single instance cannot constitute a series of similar occurrence and it is not admissible. Where the question was whether the accused had forged signature upon a bill of exchange, the fact that he had forged signatures upon other bills were hold to be inadmissible. A solitary act is not relevant.

Essence of the section:

It is necessary that all acts should form part of a series of similar occurrence. The reason is that if the act was not accidental, it must have been done intentionally or with knowledge.

The accused Panchu Das introduced himself to a rich prostitute as a Maharaja and another man as his darwan (doorkeeper). Both of them regularly visited the house of the prostitute and suddenly they disappeared. The woman was found dead in her room and her valuables had gone. No trace of the man could be found and police closed the file. After two years the two men were arrested in another city when they were playing similar trick with another rich prostitute. It was held by a majority that evidence of murder and robbery of the first woman was not relevant under any of the provisions of the Act. Referring to Section 15 it was also held that they were likely persons who had committed the crime because their modus operandi was similar and “there was no room for any doubt that the acts with which the accused were charged were identical.” Similarly, the same principle was followed in Noor Mohammed v The King. In this case the accused was tried for the murder of a woman named Ayesha by poisoning her. Evidence was given to show that the accused had previously murdered another woman by similar trick.

The evidence was held inadmissible as there was no direct evidence. If the accused was proved to have administered poison to Ayesha in circumstances consistence with accident, the proof that he had previously administered poison to any other in similar circumstances might well have been admissible. It has been regarded that “the relevancy of similar fact not as a rule of law but of practice.

Section 15 applies to such type of act which was only particular in nature and the modus operandi was also the same. Secondly, the similar act formed parts of a series of occurrence and the act was done with the state of mind (intention, knowledge etc.). It is not accident but intentional. The words of the section make if quite clear that it is not necessary that all acts should form parts of one transaction. But it is similar acuteness.

“The question under this section will always be for the discretion of the judge, to determine whether there is sufficient and reasonable connection between the factum probans (fact to be proved) offered and the factum probandum (evidentiary fact) or whether they are too remote from each other for the factum probans to be received. If there is no common link, they cannot form a series, and this is the gist of the section.”

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Cases on Similar Nature:

Arson:

In a case the accused was tried for arson with intent to defraud an insurance company. The evidence that the accused had made claim on two other insurance companies in respect of fires which had occurred in two other houses and which he had occupied previously and in succession was admitted to show that the fire which was the subject of trial was result of design and not accident.

Abortion:

The accused was charged with using an instrument for procuring abortion. Evidence that the accused did the same thing to cause abortion, was held admissible.

Breach of Trust:

On charge of misappropriation of money under section 408, 1.P.C. where the defence has inability to credit an account of pressure of work, another subsequent instance of omission to enter a payment was held inadmissible.

Fraud:

On charge of fraudulent evasion of purchase tax containing six accounts, evidence of similar transaction in which the accused took part, although it was not the subject of charge was admissible.

Murder:

Where a woman was charged with murder of her child by poison, and where the defence was that the death was the result of accident, evidence to prove that two other children of hers and lodger in her house had died previously to the present charge from the same poison, was held admissible.

Suggested Readings:

1. Indian Evidence Act, 1872 (Relevant Statutory Provisions) 2. Monir: Law of Evidence

3. Batuk Lal: Law of Evidence

4. Ratan Lal & Dhiraj Lal: Law of Evidence 5. Avtar Singh: Principles of Law of Evidence 6. Tandon: Indian Evidence Act

7. R. Dayal: Indian Evidence Act

8. Dr. Satish Chandra: Indian Evidence Act

References

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