Chapter 6 COURT IN SESSION: ADJUDICATION

Transcription

1 Chapter 6 COURT IN SESSION: ADJUDICATION 6.1 Formation of Points for Determination It would be most appealing if the evaluation of evidence in a criminal case could lead to a decision through a strictly logical process of consecutive steps. Such a process would require that the facts presented as evidence to the court or jury can be established in some objective manner. Then some inferential process almost automatically and inescapably would lead to the conclusion on guilt or innocence of the defendant. 1 Not only are the individual steps to be taken in such a logical process impossible; also the structure of the process as a whole poses problems. Any process of logical inference is a bottom-up process: one starts with the facts-the evidence- and infers conclusions from these facts. But how do we know which facts are relevant for the decision and which not? We only know which facts are relevant if we anticipate the decision. But, at the same time, we only know which decision is anticipated, if we know the facts of the case. This circular problem can only be solved by taking a decision first and working back to the facts. Such a decision need not be final but can take the shape of a working hypothesis. This working hypothesis is splendidly provided for by the prosecution. 2 In criminal cases, the burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt. The formation of points for determination in a 1 Peter J. Venkoppen, Judges' decision - making, in Hand Book of psychology in legal contexts Edited by R. Bull and D. Carson, John Wiley & Sons Ltd, 1995, p ibid, p

2 criminal case, even though not exactly as such, is almost like the hypothesis mentioned above. In fact, the points formation has close nexus with the charge framed by the court. The prosecution adduces evidence in order to bring home the charge against the accused. So, the evidence adduced in the case will be with respect to the allegations levelled in the charge. Thus, the points formation, which is in the nature of a working hypothesis, has its foundation from the charge and the evidence. This is why it is said that the points formation will be clear and correct when the charge is framed correctly. Separate points should be raised for separate offences. Where the court did not formulate the points for decision properly and did not marshal the evidence on record and particularly the evidence of the eyewitnesses and did not come to specific finding on each of the points for determination by recording specific reasons for arriving at the decision, it could not be said that the judgment of the court was in accordance with the mandatory requirements as laid down in Sec. 354 Cr.P.C. 3 In view of Sections 354 and 387 of the Code, it is a statutory requirement that the judgment, be it of the trial court or of the appellate court shall contain points for determination and reasons for the decisions on each point 4. Interference with the judgment will become inevitable when the manner in which the charge was framed, questioning was done, points for determination were raised and evidence was recorded was not proper. 5 Section 354 lays down that a judgment should contain the point or points for determination, the decision therein and reasons for the decision. Whenever a relevant matter is in controversy, the court should formulate point for determination in regard to the controversy, express its decision thereon and state the reasons for the decision. This applies to all matters in controversy. 6 The trial court shall formulate separate points for determination in strict compliance with 3 State of A.P. v. Gowthu Ranghunayakulu, AIR 1987 SC 40 4 Samul Philipose v. Koshy Thomas, 2010 CRI. L. J Ramesan v. State of Kerala, 2007 CRI. L. J Kismati Bai v. Ganpati Vanaspati, 2002 CRI. L. J

3 Sec. 354(b) Cr. P.C. rather than considering all these aspects under the heading what if any are the offences committed by the accused Appreciation of Evidence The adjudication of facts, the application of law and the conclusion of the judge culminating into the judgment in a criminal case is mainly based on appreciation of evidence. Appreciation of evidence can be mentioned as the heart of adjudication process. Adjudication requires the establishment of facts in issue 8 by proper legal means to the satisfaction of the court. This is done by production of evidence, the law relating to which is to legal practice what logic is to reasoning. 9 In R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple 10, the Hon ble Supreme Court observed that there is a strong and marked difference as to effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision: but in the latter, a much higher degree of assurance is required. 11 The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 12 This view has been reiterated by the Supreme Court in a series of decisions thereafter. State of Goa v. Pandurang Mohite 13, Murugan v. State 14 and Perla Somasekhara Reddy v. State of A. P 15 are a few among them. 7 Puthenthara Mohanan v. State of Kerala, 1990 CRI. L. J The expression fact 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(sec. 3, Indian Evidence Act) 9 U.L Bhat, Appreciation of Evidence in Criminal Cases, NJA Occasional paper Series No.6, National Judicial Academy, Bopal, India P.1 10 R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, AIR 2003 SC ibid 12 State of Rajasthan v. Abdul Zabbar, AIR 2011 SC AIR 2009 SC AIR 2009 SC AIR 2009 SC (Supp)

4 The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused. 16 Strictly speaking, the test of legal proof is not the absence of reasonable doubt, though that is often a convenient way of expressing what is meant by proof. The test is really the estimate which a prudent man makes of the probabilities, having regard to what must be his duty as a result of his estimate. In each case, whether proof of the case for the prosecution or proof of the defence set up by the accused, it is the estimate of probabilities arrived at from this practical standpoint by a prudent man. 17 The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him Evidence Definition As per the Indian Evidence Act, evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence) and all documents including electronic records produced for the inspection of the Court (documentary evidence). 19 Proof is the effect or result of evidence, while evidence is the medium of proof. 20 Bentham defines evidence as any matter of fact, the effect, tendency or design of which, is to produce in the mind, a persuasion concerning the existence or non existence of some other matter of fact. Of the two facts so connected, the latter may be distinguished as the principal fact and the former as evidentiary fact. 21 According to Greenleaf, the word evidence is legal acceptation which includes all the means by which any alleged matter of fact, the truth of which it is 16 Bahadur Singh v. State of U.P., AIR 2000 SC Sir John Woodroffe & Syed Amir Ali, Law of Evidence, (ed. Gopi Nath),16 th edition, Vol.1, The Law Book Company(P) Ltd., Allahabad, 1996, p M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC Section 3, Indian Evidence Act, Wharton, C.D. Field s Commentary on Law of Evidence, (Reprint 2010, ed. Gopal S. Chaturvedi) 12 th edn., Volume 1, Delhi Law House, Delhi 2003, p Bentham, Judicial Evidence, 17 quoted in Wharton, C.D. Field s Commentary on Law of Evidence, (reprint 2010, ed. Gopal S. Chaturvedi) Vol. 1,12 th edn., Delhi Law House, Delhi, 2003, p

5 submitted to investigation, is established or disproved. 22 Best defines judicial evidence as the evidence received by courts of justice in proof or disproof of facts the existence of which comes into question before them. 23 Evidence broadly defined is the means from which an inference may logically be drawn as to the existence of a fact, that which makes evident or plain. Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other. In legal acceptance, the term evidence includes all the means by which any alleged matter of fact truth of which is submitted to investigation is established or disproved. 24 As per the draft report of the Select Committee headed by Sir J.F. Stephen to which the Evidence Bill was referred for consideration, if the distinction is that direct evidence establishes a fact in issue, whereas circumstantial evidence establishes a collateral fact, evidence is classified, not with reference to its essential qualities, but with reference to the use to which it is put. The mode in which a fact must be proved depends on its nature and not on the use to be made of it. Evidence, therefore, should be defined, not with reference to the nature of the fact, which it has to prove, but with reference to its own nature Evidence Classification The word 'evidence' is used in common parlance in three different senses : (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word evidence given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as : best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, 22 Peter Tillers, Wigmore on Evidence First Indian reprint, Vol.1, Wolters Kluver Delhi, 2008,p Woodroffe & Amir Ali, Law of Evidence (ed. S.V. Jograo) Vol.1, 117 th edn., Butterworths India, New Delhi, 2001, p Sir John Woodroffe & Syed Amir Ali, Law of Evidence, Corpus Juris Secundum Vol-31 p.505 quoted in (ed.gopi Nath), Vol.1, 16 th edition, The Law Book Company(P) Ltd.,Allahabad, 1996, p.5 25 Draft Report of the Select Committee presented to the Governor General of India for making Laws and Regulations on 31 st march (Published in The Gazette of India 1 st July 1871) 194

6 documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. 26 Evidence can be broadly classified as follows: Oral evidence Direct Evidence Hearsay Evidence Documentary Evidence Primary Evidence Secondary Evidence Substantive Evidence Circumstantial Evidence Corroborative and Contradictory Evidence Material Evidence Oral evidence Oral Evidence can be further classified into (i) Direct evidence and (ii) Hearsay evidence. Oral evidence can be acted upon only when it is direct. Oral Evidence must, in all cases whatever, be direct Direct Evidence Direct evidence means evidence, if believed, proves the the existence of the fact in issue without any inference or presumption. The idea of best evidence is implicit in the Evidence Act. Evidence consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else Kalyan Kumar Gogoi v. Ashutosh Agnihotri, AIR 2011 SC See section 60 of Indian Evidence Act 28 supra note

7 6.2.5 Hearsay Evidence The term 'hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears Documentary Evidence The contents of documents may be proved either by primary or by secondary evidence. 30 Except in the cases mentioned in the Evidence Act, documents must be proved by primary evidence Primary Evidence Primary evidence means the document itself produced for the inspection of the Court. In the case of documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature Secondary Evidence Secondary evidence means and includes (1) certified copies given under the provisions of the Evidence Act; 29 ibid 30 See section 61 of Indian Evidence Act 31 See section 64 of Indian Evidence Act 32 supra note

8 (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it Substantive Evidence Substantive evidence is evidence in proof of a fact in issue or of a relevant fact, which by itself or taken along with other proved relevant facts, leads to a conclusion regarding the proof of the fact in issue. 34 Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. 35 It is trite that an F.I.R. is not substantive evidence (unless of course it is admitted under Sec. 32(1) of the Evidence Act) and can be used to corroborate or contradict the maker thereof Identification The facts, which establish the identity of the accused persons, are relevant under Sec. 9 of the Evidence Act. 37 It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, in so far as they are necessary for the purpose, are relevant. So, the evidence of identification is a relevant piece of evidence under Sec. 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. 38 The substantive evidence of a witness is the statement made in court. 39 Prosecution has to examine the witness in the court and he has to identify the accused in the court. Then alone 33 See section 63 of Indian Evidence Act 34 Daya Singh v. State of Haryana, AIR 2001 SC Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, AIR 2010 SC (Supp) George v. State of Kerala, AIR 1998 SC Malkhansingh v. State of M.P, AIR 2003 SC Ronny v. State of Maharashtra, AIR 1998 SC supra note

9 it would become substantive evidence. 40 The evidence of mere identification of the accused person at the trial for the first time is, from its very nature, inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. 41 Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. 42 This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. 43 The identification parades do not constitute substantive evidence and these parades are essentially governed by Sec.162 of the Code. 44 It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence, the dock identification alone cannot be treated as substantial evidence, though it is permissible Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC Manu Sharma v. State (NCT of Delhi),(2010) 6 SCC 1 42 Jana Yadav v. State of Bihar, (2002) 7 SC C 295, para supra note Rabindra Kumar Pal v. Republic of India, AIR 2011 SC supra note

10 The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such piece of evidence. But, if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony. 46 Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration Dying Declaration Section 32 (1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions : Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death. 48 Dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased Ronny v. State of Maharashtra, AIR 1998 SC Rabindra Kumar Pal v. Republic of India, AIR 2011 SC Rattan Singh v. State of H.P, AIR 1997 SC Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A. P., AIR 2008 SC

11 The collocation of the words in Sec.32 (1) circumstances of the transaction which resulted in his death is apparently of wider amplitude than saying circumstances which caused his death. There need not necessarily be a direct nexus between circumstances and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Sec.32 (1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death Deceased in a fit state of mind For relying upon the dying declaration, the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all, the maker was in a fit condition - mentally and physically - to make such statement. 51 The Court must be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. 52 Normally, the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But, where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. 53 Nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. 54 A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a 50 supra note supra note Paniben v. State of Gujarat, (1992) 2 SCC Nanahau Ram and Anr. v. State of M.P., 1988 Supp. SCC supra note

12 magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case Certification by doctor not mandatory There is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. 56 What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise Can be acted upon without corroboration There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. 58 Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 59 It cannot be laid down as an absolute rule of law that 55 Laxman v. State of Maharashtra,(2002) 6 SCC 710) 56 supra note supra note Munnu Raja v. State of M.P., (1976) 3 SCC State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC

13 the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 60 Court shall scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. 61 Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. 62 Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. 63 Where dying declaration, is suspicious, it should not be acted upon without corroborative evidence. 64 Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. 65 A dying declaration which suffers from infirmity cannot form the basis of conviction. 66 Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon Confession Section 24 of the Evidence Act provides, though in the negative form, that Confession can be treated as relevant against the person making the confession unless it appears to the Court that it is rendered irrelevant on account of any of the factors, namely, threat, inducements, promises etc. mentioned therein. 68 Confession has to be affirmatively proved to be free and voluntary. 69 Confessions may be divided into two classes i.e., judicial and extrajudicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra- 60 supra note K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp. SCC Surajdeo Oza v. State of Bihar, 1980 Supp. SCC Rasheed Beg v. State of M.P., (1974) 4 SCC Kake Singh v. State of M.P., 1981 Supp. SCC Ram Manorath v. State of U.P. (1981) 2 SCC State of U.P. v. Madan Mohan, (1989) 3 SCC Sahib Singh vs. State of Haryana, AIR 1997 SC Hem Rah Devilal v. State of Ajmer, AIR 1954 SC

14 judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity Extra judicial confession Evidentiary value Extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it can be used to punish an offender. This statement of law stands qualified to the extent that the Court should insist on some assuring material or circumstance to treat the same as piece of substantive evidence. 71 It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. 72 The evidence furnished by the extrajudicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required, it is only by way of abundant caution. 73 If the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. 74 The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. Thus, its evidentiary value depends on the reliability of the witness who gives the evidence. 75 It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words 70 Chattar Singh and Anr. v. State of Haryana, 2008 (8) SC State of Punjab v. Gurdeep Singh, 1999 AIR SCW supra note Maghar Singh v. State of Punjab, AIR 1975 SC Gura Singh v. State of Rajasthan, 2001 (2) SCC supra note

15 spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. 76 In Rao Shiv Bahadur Singh v. State of U.P. 77 the Hon ble Supreme Court rested the conviction of the accused on the extra-judicial confession made by him before two independent witnesses Confession by Co-Accused While a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a coaccused, but it can be used as a piece of corroborative material to support other substantive evidence. 78 The expression 'the court may take into consideration such confession' occurring in Sec.30 of the Evidence Act is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a coaccused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession. 79 Under Sec.30 of the Evidence Act, the extrajudicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence Disclosure Statement under Section 27 of Indian Evidence Act Section 27 of the Evidence Act reads as follows:- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. 76 ibid 77 AIR 1954 SC State of Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 SC Bishnu Prasad Sinha v. State of Assam, AIR 2007 SC M.P. through CBI and Ors. v. Paltan Mallah and Ors., (2005) 3 SCC

16 The expression Provided that together with the phase whether it amounts to a confession or not show that the section is in the nature of an exception to the preceding provisions, particularly Sections 25 and Reason behind lifting of the ban There is no ban as regards that part of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. There is no such guarantee or assurance to the rest of the statement which may be indirectly or remotely related to the fact discovered. 82 The scope and ambit of Sec. 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya v. Emperor 83 in the following words It is fallacious to treat the fact discovered within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to the fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce the concealed knife from the roof of my house does not lead to discovery of knife: knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which 81 Anter Singh v. State of Rajasthan, AIR 2004 SC Mohammed Inayuttillah vs. State of Maharashtra, AIR 1976 SC Pulukuri Kotayya v. Emperor, AIR 1947 PC

17 I stabbed A, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. 84 Although the interpretation and scope of Sec.27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty Pointing out material object - Not necessary Pointing out a material object by the accused furnishing the information is not necessary concomitant of Sec.27. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, it is not essential that there should be such pointing out in order to make the information admissible under Sec.27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Sec.27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Sec.27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence Conditions required for operation of Section 27 The first condition necessary for bringing Sec.27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information 84 ibid 85 supra note State (N. C. T. of Delhi) v. Navjot Sandhu, AIR 2005 SC

18 received from a person accused of an offence. The second is such that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly, indubitably, strictly, unmistakably. The word has been advisably used to limit and define the scope of the provable information. The phrase distinctly relates to the facts thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. 87 At one time it was held that the expression fact discovered in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact. Now it is fairly settled that the expression fact discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya s case 88 and in Udai Bhan s case. 89 The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused s own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. 87 supra note supra note Udai Bhan v. State of Uttar Pradesh, AIR 1962 SC

19 (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible Joint Disclosure Statement Joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. Such disclosures by two or more persons in police custody do not go out of the purview of Sec. 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, there is no good reason to eschew such evidence from the regime of Sec However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the Police Officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence supra note supra note ibid 208

20 Section 27 is not contingent on the recovery of physical object The application of the Section is not contingent on the recovery of a physical object. Section 27 embodies the doctrine of confirmation by subsequent events. The fact investigated and found by the police consequent to the information disclosed by the accused amounts to confirmation of that piece of information. Only that piece of information, which is distinctly supported by confirmation, is rendered relevant and admissible u/s 27. The physical object might have already been recovered, but the investigating agency may not have any clue as to the state of things that surrounded that physical object. In such an event, if upon the disclosure made such state of things or facts within his knowledge in relation to a physical object are discovered, then also, it can be said to be discovery of fact within the meaning of Sec Circumstantial Evidence Circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that men may tell lies, but circumstances do not. 94 In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from 93 ibid 94 G. Parshwanath v. State of Karnataka, AIR 2010 SC

21 them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact. 95 If that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. 96 The court has to consider the evidence and decide whether that evidence proves a particular fact or not and if that leads to the inference of guilt of the accused or not. In dealing with the latter question, the doctrine of benefit of doubt applies. Primary facts are proved or disproved as these expressions are defined in Sec. 3 of the Evidence Act Prosecution's case must stand or fall on its own legs Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. It is well settled as per the decision in Sharad Birdhichand Sarda s case. 98 that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 99 Onus is on the prosecution to prove that the chain is complete and false defence or plea cannot cure the infirmity or lacuna in the prosecution case. 100 The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely 95 ibid 96 ibid 97 Balu Sonba Shinde v. State of Maharashtra, AIR 2002 SC Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC Gamparai Hrudayaraju v. State of A.P. AIR 2009 SC Vithal Eknath Adlinge v. State of Maharashtra AIR 2009 SC

22 connected with the principal fact sought to be inferred from those circumstances Nature of proof The nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone are as follows: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 102 (6) It is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. 103 A false plea of alibi could be an important link; but it can not be the sole link or sole circumstance on which a conviction could be passed. 104 (7) Circumstances of strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence Krishna Ghosh v. State of West Bengal AIR 2009 SC Paramjeet Singh v. State of Uttarakhand AIR 2011 SC Pawan Kumar v. State of Haryana, 2001 (3) SCC Babudas v. State of M.P Cri.L.J supra note

23 (8) Where the circumstances are susceptible of two equally possible inferences, the Court should accept the inference, which favours the accused, rather than an inference, which goes in favour of the prosecution Last seen theory The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 107 There must be proximity of time and place Motive Sometimes motive plays and important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But, the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. 109 It is true that in a case relating to circumstantial evidence motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is 106 Sharad v. State of Maharashtra AIR 1984 SC 1622, p Sk. Yusuf v. State of West Bengal; Mohd. Azad alias Samin v. State of West Bengal, AIR 2011 SC 2283, (2008) 15 SC C Malleshappa v. State of Karnataka AIR 2008 SC Suresh Chandra Bahri v. State of Bihar AIR 1994 SC

24 not due and (to use the cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. 110 If motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. 111 The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. 112 If the evidence of the eye-witnesses is trustworthy and believable, the question of motive becomes totally irrelevant Appreciation of Oral Testimony The trial court is in a better position to evaluate the credibility of the witnesses. 114 The trial court which had the benefit of watching the demeanour of the witnesses is the best judge in this behalf. 115 Due weight must be given to the opinion of the trial Court as to the value of the oral evidence rendered by the oral witnesses because the trial court had the advantage of observing the demeanour of the witnesses appearing before it. 116 Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be 110 Ujjagar Singh v. State of Punjab, AIR 2008 SC (Supp) State of Gujarat v. Anirudhsing, AIR 1997 SC G.Parshwanath v. State of Karnataka, AIR 2010 SC Brahm Swaroop v. State of U. P., AIR 2011 SC Satyavir Singh v. State of U. P., AIR 2010 SC (Supp) Alamgir Sani v. State of Assam, AIR 2003 SC Bhagirath Singh v. State of Bihar, AIR 1976 SC

25 attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. 117 The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. 118 It has no application in India. 119 It is merely a rule of caution. 120 The court has to assess as to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded. 121 The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then the evidence cannot be relied on Child Witness The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent position or lack of intelligence. In order to ascertain this the Judge may conduct a voir dire examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if, from what is preserved in the records, it is clear that his conclusion was erroneous. This 117 Bhajan Singh v. State of Haryana, AIR 2011 SC Ugar Ahir and Ors. v. State of Bihar, AIR 1965 SC Ranjit Singh v. State of Madhya Pradesh, AIR 2011 SC Jakki alias Selvaraj v. State represented by the IP, Coimbatore, (2007) 9 SCC supra note Balaka Singh v. State of Punjab, AIR 1975 SC