12 Jan 2022

When the term consolidated is used in the preamble of the act it means that all the rules for
evidence are in this act. But this does not mention exclusivity means that is not the only the
act which contains rules for evidence.

If the act is silent on something and a particular other act contains that provision related to
that thing, then such act will apply.

SECTION 1

Now the act applies to whole of India including Jammu and Kashmir.

It applies to judicial proceedings. A disciplinary committee will not have evidence act
provisions as it is not a judicial proceeding. Simple disciplinary proceedings do not have the
need to formulate a proper judgement and are not courts.

It also applies to court martials held by army. It does not apply to affidavits or arbitration
proceedings because if this act is applied in arbitration then the whole purpose of ADR gets
lost. Speedy disposal will go away if evidence act is applied.

Affidavits are not taken as evidences because a person make themselves in their own favour.
But there are exceptions where it can be taken as evidence.

The act is a consolidatory enactment repealing all rules of evidences expect those exempted
by the act. If there is any omission in evidence act, then other act which contains provision
can apply there. For example- Stamp Act, Transfer of Property Act etc.

SECTION 3

This is an interpretation/definition clause.

“Court”.––“Court” includes all Judges and Magistrates , and all persons, except arbitrators,
legally authorised to take evidence.

Courts: Judges and magistrates (except arbitrators) Legally authorised to take evidence and,
Income tax authorities, industrial tribunal, administrative tribunal are not courts- this does not
mean that they will not settle disputes but the procedure of taking oath in court doesn’t
happen here.

“Fact”.––“Fact” means and includes––(1) anything, state of things, or relation of things,

capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.

Mental conditions mean jealousy, intention etc. The person having them will be aware of it
but not the others.

Facts include both-

1. Physical facts- These facts can be perceived by senses.

2. Phycological facts- These facts are mental acts which only the person knows.

The moment you tell others the thing in your mind it becomes physical fact from
physiological fact.

The Section mentions-

Things- It can be smell, sound, sight.

State of things- It means describing the things at a particular time. For example- Pitch report
before the match, questions like how the Place was when you entered the room etc.

Relation of things- A birth certificate proves relationship between a parent and children.

All the above three things are perceived by senses which in turn become fact.

ILLUSTRATIONS-

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified time
conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

Relevant

One fact is said to be relevant to another when the one is connected with the other in any of
the ways referred to in the provisions of this Act relating to the relevancy of facts.

There should be legal relevancy of the facts which means that if a fact is provided in section
6-55, then it becomes relevant fact.
Example- Mohd. Amir bowled a big no- ball. The previous day he got a huge amount of
money from unknown sources. Both these facts are relevant to each other which in turn will
help in proving his fault finally.

Facts in Issue

The expression “facts in issue” means and includes––

any fact from which, either by itself or in connection with other facts, the existence, non-
existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.
Explanation.––Whenever, under the provisions of the law for the time being in force relating
to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue.
(Use of ‘means’ and ‘means and includes’ shows that the definition is exhaustive- already
discussed)- these are the facts that one party asserts and other denies. In every case there will
be a fact in issue and some other facts. Answer to these facts in issue determines rights and
liabilities.
The thing which you are claiming and the other party is denying is facts in issue. The issue
for which court is deciding is facts in issue.
In civil law, usually the court formulates things in question and answer format and the answer
to the question will be facts in issue.
For example- The police came and the murderer ran away. This is a relevant fact and not fact
in issue because it will help the court to determine guilt but not alone will determine the guilt.

13 Jan 2022
Sir James Fitzjames Stephen who formed the act in his Introduction defined facts in issue as
they may by themselves or in connection with other facts, constitute such a state of things
that the existence of the disputed right or liability would be a legal inference from them.
The answer to what is fact in issue in a particular case depends on the rule of the substantive
law which is applicable to the case and on that rule of procedure which with framing of issues
of fact. E.g., person dies intestate- now for determining the heir substantive law of Hindu
succession act has to be seen. Procedural law will determine what questions have to be
answered to find out that heir as given in substantive law.
- In criminal cases all the ingredients of the offence which is charged against the accused are
facts in issue.
- as far as substantive law is concerned, it is not codified in one single statute in civil law
while for criminal law it is all in IPC.
Party has to prove necessary constituents to get verdict in favour. These necessary
constituents of a right or liability are called facts in issue.
When an incident happens there will always be some surrounding facts which are-
Either before or
After or
Contemporaneous to that fact
If a fact is found to be connected to the fact in issue or any other relevant fact in one of the
manners provided in the sections then that fact will be called a legally relevant fact.
Technically all logical relevant fact would be legally relevant.
IEA says that facts are only relevant if they are mentioned in section 6-55. However, in
reality, section 6-55 makes sure that every logically relevant fact is also legally relevant. In
other words, these sections cover any fact that would be said to be logically relevant.
IEA does not talk about logical relevancy, rather it focuses on legal relevancy. This means, if
a fact is found to be connected to the fact in issue or any other relevant fact in one of the
manners provided in the sections then that fact will be called a legally relevant fact and that
characteristic will be called legal relevancy. This means not every logically relevant fact will
be legally relevant.
E.g., fact in issue: Murder, relevant facts: Threat, procurement of weapon, writing of a letter
making motive clear, running from crime scene, running away from home knowing about
police. These facts become all the more important when eye witnesses are not there. These
facts if will be connected to facts in issue in a way given in IEA, then they will be relevant
facts. Had the focus been kept on logical relevancy, both the parties would have bombarded
the court with facts- this is what IEA tries to avoid. Logically relevant is a bigger set, within
it is a subset i.e., legally relevant- and this subset is important for us.
In reality there is nothing logical that has been kept out of the ambit of section 6 to 55. So,
every logically relevant thing automatically has become legally relevant.
What is circumstantial evidence? – means the evidence of circumstances.
e.g., Let say A is charged with murder of B- at trial a witness C, on behalf of the prosecution
gives evidence that he saw A stab B. This is known as Direct evidence. This is because the
statement is made about the very question which the court has to decide- fact in issue. Now
suppose that instead of saying the above statement C says that he saw A running away from
the place where B’s body was found, with blood stained knife in his hand. This statement is
relevant because it can convince the court about the guilt of the accused. This statement is
given about the circumstance/ relevant fact and thus is called circumstantial evidence.
By allowing evidence for relevant facts, IEA allows circumstantial evidence. Allowing
circumstantial evidence does not mean any circumstantial evidence can be enough to convict
the accused. E.g., In Aarushi Talwar case she was last seen with her Parents. Now this CE is
not enough to convict the parents until prosecution can create an entire picture by connecting
all facts.
PRESUMPTIONS
Certain inferences which we draw every now and through common sense. Presumption is an
inference of fact drawn from other known and proved facts. It mean a rule of law that courts
shall draw a particular inference from a particular fact or from a evidence, unless and until it
is disapproved.
SECTION 4
4. “May presume”.––Whenever it is provided by this Act that the Court may presume a fact,
it may either regard such fact as proved, unless and until it is disproved, or may call for proof
of it.
“Shall presume”.––Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
“Conclusive proof”.––When one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it.
Two types of presumptions are-
Note- all these may presume, shall presume and conclusive proof are mentioned in
section 4.
1. Presumption of facts
It includes “may presume”
May presume simply means it is the discretion of the court to accept a particular fact. If court
wants it can, otherwise it also may not.
Example- Let’s say Mohak slept late because he was watching some marvel movie. On next
day, he entered class late of a particular teacher and he made some excuse that he got caught
up in some work. Now, it is the discretion of the teacher to accept the excuse made by the
Mohak.
Sec 114- The court may presume (a) that a man who is in possession of stolen goods soon
after the theft is either the thief or has received the goods knowing them to be stolen unless he
can account for his possession (b) that evidence which could be and is not produced, would,
if produced, be unfavourable to the person who withholds it (c) That is a man refuses to
answer a question which he is not compelled to answer by law, the answer, if given, would be
unfavourable to him.
(2) Section 113A- Presumption as to abetment of suicide by a married woman- facts to be
proved: Suicide has happened within the period of 7 years and secondly that husband or
relative of husband subjected her to cruelty- having regard to this the court shall presume that
suicide has been abetted by the husband or such relative of the husband.
14 JAN 2022
2. Presumption of Law
It Includes Shall presume and conclusive proof.
Shall Presume- No discretion. Court is bound to presume existence of another fact. This is
rebuttable.
For example- In cricket, if a catch does not seems so clear, the decision is sent to third umpire
but the on-field umpire gives its soft signal which means that he gives his decision too. So,
the third umpire is bound by that decision means that unless some other conclusive proof is
there regarding catch, the soft signal will stay. A best instance of this is the India tour of
England in 2018, where during one of the test matches in Southampton, Joe Root got caught
in the slips by KL Rahul on the first bowl of first spell of Hardik Pandya and the catch looked
unsure. But the on-field umpire gave out as soft signal. Even in the video footages the catch
looked unsure, but the third umpire stayed with the Soft Signal because it is a case of shall
presume. Kl Rahul did the celebration of Dele Ali and Hardik Pandya got five wickets in that
innings.
Conclusive Proof
It is also presumption of law. It is non-rebuttable.
When the facts are not rebuttable, they are called irrebuttable presumptions of law or
conclusive proof. These instances of such presumptions are mentioned in section 41, 112 and
113.
Where one fact is declared by law to be conclusive proof of another, the court cannot allow
evidence to be given in rebuttal.
Section 112- Birth during Marriage, conclusive proof of legitimacy (read)- the word access in
the provision does not mean sexual intercourse only- the fact that they were in proximity
making it possible to have sexual intercourse if this is shown by mother’s lawyer and man has
nothing to show, then he will be considered the father. In today’s time since we have the
technology, we should use DNA test to determine the truth rather than relying on this
provision.
Presumption of fact merely affects the burden of going forward with the evidence but
presumption of law shifts the legal burden of proof so that in the absence of evidence
sufficient rebut it on a balance of probability, a verdict must be directed.

17 Jan 2022
SECTION 3
Proved- A fact is said to be proved when, after considering the matters before it, the court
either believes it to exist, or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved- A fact is said to be disproved when, after considering the matters before it, the
Court either believes that it does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition
that it does not exist.
Not- Proved- A fact is said not to be proved when it is neither proved nor disproved.
This is the situation where there is possibility that both parties have tried proving and
disproving and court has not accepted either of the side’s stance and court is not convinced
with what either of the side said.
The approach of prudent man is used in all these definitions.
Probative force- The extent to which a particular evidence aids in proving fact in
controversy. This force must be sufficient to induce the court either to believe in the existence
of the fact sought to be proved, or to consider its existence so probable that a prudent man
ought to act upon the supposition that it exists.
Now this aspect is developed through experience of the judge, and depends on fact to fact.
Not in all cases conviction of judge would be primary for e.g.in certain cases witnesses evade
certain cases and don’t answer. In short, the judge has to be convinced- this convincing is
influenced by his experience, judicial precedents etc.
100% rigid proof is not required. Prosecution has to prove beyond reasonable doubt and it
seems an impossible job to do so but the terms itself mentions court has to be believe which
shows discretion of court.
EVIDENCE (SECTION 3)
“Evidence” means and includes ––
(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.
Evidence should not be confused with proof. Evidence is means and proof is the end. Oral
evidence means what you say in the court.
Example- A will is produced in the court, it becomes evidence which once proved can be
acted upon by the court.
Evidence is not the only medium of proof, there are other matters too which can be
considered by the court. Statement of accused under section 313 of CrPC is not evidence, still
court can consider it.
SECTION 5
Evidence may be given in any suit or proceeding of the existence of non-existence of every
fact in issue and of such other facts as are hereinafter declared to be relevant, and of no
others.
Explanation.––This section shall not enable any person to give evidence of a fact which he is
disentitled to prove by any provision of the law for the time being in force relating to Civil
Procedure.
Illustrations-
(a) A is tried for the murder of B by beating him with a club with the intention of causing his
death.
At A’s trial the following facts are in issue:––
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing
of the case, a bond on which he relies. This section does not enable him to produce the bond
or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance
with the conditions prescribed by the Code of Civil Procedure.
“AND OF NO OTHER” excludes everything which is not relevant under section 6-55.
Evidence can be only given of fact in issue and relevant issue ( exceptions will be dealt later).
18 Jan 2022
Section 5 has to be read along with some other provisions of IEA and sometimes CPC.
Evidence can only be given of relevant fact and fact in issue. Sometimes the fact cannot be
admissible even after being relevant. Admissibility is provided under section 56 onwards.
Question of relevancy comes first and evidence comes afterwards. The first thing to see is
whether a fact is relevant and after that we have to see that the court is going to allow it or
not.
There are sections in the act where its mentioned that sometimes even relevant facts cannot
be admissible.
Like, Section 126 (Lawyer Client relationship)
Example- Let’s say there is a lawyer in Gulmohar Park in Delhi. He now has cases related to
tenders and all. He cannot share the details of these cases with his son-in law who is also a
famous lawyer who recently got bail to a celebrity son, even on a trip to a city in Britain. This
is client attorney communication.
Section 122 (Communication during marriage)
Example- Let’s say David Warner told his wife Candice warner that he was the one who told
Cameron Bancroft to shine the ball using sand paper and other players like steven smith too
supported him. Now, this communication by warner to his wife will not be valid in the court
of match referee and warner cannot be incriminated on basis of this no matter how much this
is relevant.
Section 124 (Official Communications)
No public officer shall be compelled to disclose communications made to him in official
confidence, when he considers that the public interests would suffer by the disclosure.
Section 25
No confession made to a police-officer, shall be proved as against a person accused of any
offence.
Section 26
No confession made by any person whilst he is in the custody of a police-officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.
Example- I say in police custody that I murdered someone and weapon is hidden at roof of
victim house. Only the last part of the statement can be admissible and not the former part.
The police cannot say in the court that he confessed murder. The court will only admit the
murder weapon part that the person knew about the murder weapon.
19 Jan 2022
There are some situation wherein the fact is not relevant and still the evidence will be allowed
for that fact.
Example- To prove that prosecution witness saw a crime being committed, the prosecution
produces PW in court. The defence on the other hand wants to give evidence of the fact that
the PW in fact took bribe to appear before the court and lie. The basis of such argument by
defence can be that the same witness has appeared in other prosecution cases too. This bribe
thing is irrelevant per se i.e., it doesn’t directly has anything to do with the crime itself and
isn’t part of chain of events but can be allowed by the court to understand things better. The
evidence of taking bribe is related to trustworthiness of the witness but as such it is not
relevant fact (per say not relevant in case), still section 155 of the act allows evidence to be
given for the same.

Section 5 tells what is relevant fact that parties have to show and section 136 tells court to
check whether some fact is relevant or not, when party proposes to show evidence on some
fact. Under the section the court asks party to show how this would be relevant. Under
section 165, judge has power to ask for evidence from the parties.
SECTION 136
When either party proposes to give evidence of any fact, the Judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,
and not otherwise.
However, there are provisions where the court itself has to take judicial notice of the fact.
(section 56 to 68). These sections mention that party need not prove facts which are judicially
noticeable.

Example- The Australian team from 1990-2005 was the best team ever to play cricket,
Haryana has lowest boy-girl ration. These facts are not to be proved in the court.

SECTION 6

Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred at the same time and place or at
different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or
the by-standers at the beating, or so shortly before or after it as to form part of the transaction,
is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed
insurrection in which property is destroyed, troops are attacked and gaols are broken open.
The occurrence of these facts is relevant, as forming part of the general transaction, though A
may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the subject out of which the libel arose, and forming part of the
correspondence in which it is contained, are relevant facts, though they do not contain the
libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods
were delivered to several intermediate persons successively. Each delivery is a relevant fact.

Hearsay Evidence- Evidence from any witness which consists of what another person stated
(whether verbally, in writing or any other method) on any prior occasion is inadmissible. But
sometimes these evidences become important because in many cases an event is ambiguous
or incomplete without evidence of a contemporaneous statement made by a participant in or
an observer of the event. E.g., A crying for help, heard by C- The issue is if B killed A or not,
but this hearing him cry is also important.
Rationale of making it inadmissible is recognition of great difficult, even more acute for a
juror than for a trained judicial mind of assessing what, if any, weight can properly be given
to a statement by a person whom the jury have not seen or heard and which has been subject
to any test of reliability by cross examination. The judges realised a need for exceptions for
this- Exceptions in UK- Witness himself is dead, crime committed is confusing, without any
explanation provided by statements by those who performed them.
20 Jan 2022
These facts involved in the determination of the issue are known as res gestae. The statement
of law in sec 6 is usually known as the rule of res gestae.
There are certain facts which are not in issue but are very closely connected with issue and
thus form part of the same transaction. Accused commits a crime- sees witness seeing him-
goes on to kill him- but witness doesn’t die- accused ran away-this witness started to cry for
help- he mentioned entire incident to people who came there hearing cry for help- this
statement that witness gives is not a statement per se made by those who are witness, it will
be hearsay- but if he dies, they will become important- because they explain the event and
they are contemporaneous and spontaneous. – This depends on crime committed and
circumstances of case- It is determined by judge whether this is relevant under section 6 or
not. - They help judge understand the fact in issue better- these statements are included in
rule of res gestae
Transaction is a group of facts connected together as to be referred to by a single legal name
as a crime, a contract, a wrong etc.
Ground of admission of such statement is the spontaneity and immediacy of the act or
declaration in question. The facts deposed must form the part of the transaction. The
statement sought must have been made contemporaneously with the act or immediately after
it and not at such interval as to allow fabrication or to reduce the statement to a mere
narrative of past events. Ordinarily such statements are hearsay, but in proper cases they
become relevant by the rule of res gestae as an exception to hearsay rule.
e.g., There is a case of dowry- woman is being harassed by in laws mentally and physically-
one day husband got angry and burned her alive- The lady who is burning cries for help-
neighbours came and husband said” I have ended all my problems with this woman”- Now
this statement is not fact in issue per se, this is a mere declaration made, but this was made
spontaneously by the accused- so this statement become part of res gestae as heard by others-
They form the missing link for the court.
There can be another situation- there is a crime being committed-a person came running to
the place of incident and saw accused running away and victim crying for help- they didn’t
observe the crime itself- they heard some statements of victim- they went back home and
then in evening they go and make statements- now in such situation spontaneity is gone as lot
of time has passed in between.
There are crimes that forms part of series of transaction that spreads over a period of time like
conspiracy or kidnapping- that is why the latter part of section 6 talks about such crimes.
Usually, in court immediacy place a very important role. In such crimes instead a of
spontaneity and immediacy, the judge rather determines are they part of same transaction,
i.e., connected to the fact in issue in a significant way. It should be determined that whether
fabrication is possible or not. In such cases spontaneity is not seen per se, it is seen can it be
said to be forming part of same transaction. E.g., when conspiracy was being discussed on tea
shop, somebody would have heard it.
• Summary of law as to the admissibility of declarations accompanying acts-
(1) The declarations (oral or written) must relate to the act which is in issue or relevant;
they are not admissible merely because they accompany an act. Moreover, the declarations
must relate to and explain the fact they accompany, and not independent facts previous or
subsequent thereto unless such facts are part of a transaction which is continuous.
(2) The declarations must be substantially contemporaneous with the fact and not merely
the narrative of past. (because passage of time brings the possibility of fabrication as it gives
time to think it out)
(3) The declaration and the act may be by the same person, or they may be by different
persons. E.g., the declarations of the victim, assailant and by- standers.
(4) Though admissible to explain or corroborate, or to understand the significance pf act,
declarations are not evidence of the truth of the matters stated.
Sexual assault- she runs to her mother within 3-4 minutes- this can be considered as part of
same transaction if mother gives this declaration- but if she does this after a few days it can’t
be treated as being part of same transaction. Court will consider that the statement given was
contemporaneous or not. Because of stigma attached, FIR may be filed very late but that
doesn’t mean it isn’t res gestae- if the statement made by daughter was contemporaneous,
then the fact that FIR was filed late doesn’t matter. The cry for help/ reaction of daughter of
telling mother, this is what will be examined whether it is contemporaneous, not filing of
FIR. When there is large gap between the incident and statement made, it cannot be
considered under section 6- doesn’t mean that other evidence won’t be used, but this res
gestae under section 6 won’t be considered. This judgement of spontaneity and
contemporaneousness is based on Judges’ discretion.
Suppose A tried for the murder of B by beating him with a club. Here the transaction is the
crime of murder. That A beat B with a club, that A caused b’s death, that A had an intention
of causing B’s death are all in issue and form parts of the same transaction and evidence can
always be given for such facts in issue. But the words uttered by A at or about the time of
beating, or words uttered by B or by persons standing by, at or about the time of beating, are
not in issue.
Illustrations- A is accused of the murder of B by beating him. Whatever was said or done by
A or B or the by-standers at the beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact.

21 Jan 2022
Section 6 Case Laws
1. Rattan Singh v. State of HP
Appellant- an ex-army man- was charged by police for the murder of a housewife Kanta
Devi- sessions court acquitted him but division bench of the HC of HP convicted him under
section 302 IPC and sentenced him to imprisonment for life- He filed this appeal under
section 2 of the supreme court (enlargement of criminal appellate jurisdiction) act 1970 and
also under section 379 of CrPC.
Kanta Devi was married to Puran chand and she was living with her in-laws- her husband
was working in public works dept and most often he was living away- her sister in law was
also residing(though she was married)- Appellant had some infatuation for Kanta Devi but
she didn’t reciprocate- this negative response angered him- he started harassing her- his
bitterness towards her kept on increasing
On the fateful night all the inmates of her house were sleeping- she was sleeping- mother in
law woke up sensing some intrusion and asked others also- Kanta realised a person was
standing there- night of full moon- recognised accused face- accused shot Kanta- brother and
sister in law tried to take gun from accused and they succeeded but accused escaped leaving
his slippers and torch behind- Kanta succumbed to her injuries.
The brother in law accompanied by two neighbours and went to police station- but on the
way they came across the police- FIR registered- Appellant denied his involvement-
however, he owned the gun produced in case- but he said the police seized the gun from my
house not from crime scene- he denied infatuation
Sessions court acquitted him because the judge felt prosecution couldn’t prove the case
beyond reasonable doubt- omission in first info statement that Sheela snatched the gun from
appellant- on this score he disbelieved Sheela’s testimony. HC didn’t take omission in FIR
seriously as it did not cause any dent on the otherwise sturdy prosecution nutshell. The HC
treated the reasoning of sessions judge for side-lining the evidence of two important
witnesses as exceedingly unreasonable.
When matter went to the SC- counsel for the appellant made an endeavour to persuade SC to
concur with sessions judge’s view that the omission regarding wrestling of the gun from
appellant is enough to conclude that the said part of the story is a later improvement- SC
accepted that there was an omission in the said FIR – but SC said criminal courts should not
be fastidious with mere omissions in FIR since such statements can’t be expected to be
chronicle of every detail of what happened, nor to contain an exhaustive catalogue of the
events which took place. The person who furnishes FIR to authorities might be fresh with the
facts but may not have the skill or ability to reproduced details of the entire story without
anything being missed. Quite often the police officer who takes down the FIR would record
what the informant conveys him. It is involuntary narrative of the informant without
interrogation which usually goes into such statement. So, any omission therein has to be
considered along with other evidence to determine whether the fact so omitted never
happened at all.
But in this case, there were other evidences to corroborate the fact of wrestling of gun.
Evidences before court-(1) gun was lying near the dead body, even apart from the evidence
of brother-in-law and sister in law (2) Neighbours who reached to the spot hearing the cry,
both of them said they reached and saw Kanta Devi lying dead and a gun, torchlight and a
pair of slippers were lying on same site.
Court concluded nothing is proved by defence to show that gun wasn’t there. So, since it has
been proved that gun was there, we will accept that. PW6, PW7, PW8 who were present
when sub inspector prepared the inquest said that gun was lying in the courtyard where dead
body was.
Court therefore, had no difficulty in believing that the gun had been wrestled from assailant at
the spot itself.
Had it been shown that gun was planted later, and would have got evidence thrown out,
defence could have made their case. Even in cross-examination defence wasn’t able to show
anything.
Apart from section 6, there is another section important here- Dying Declaration: She said
appellant was standing there. DD- section 32(1) of IEA 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 two conditions: (i) either such statement should relate to
the cause of this death (ii) it should relate to any of the circumstances of transaction which
resulted in his death. - In UK second requirement isn’t there.
Reasons for accepting DD as evidence: old assumption in common law that a person does not
meet his/her maker with lie on his lips- this is first reason- second reason: necessity
Here the act of the assailant intruding, victim identifying assailant, her pronouncement that A
was standing with a gun and his firing the gun at her, are all intertwined with each other by
proximity of time and space that statement on the deceased can be said to be for same
transaction- so admissible under section 6- and since she died so also part of DD. So,
something relevant under one section can be relevant under some other section too.
Court must be assured of the two aspects: reliability of the evidence and accuracy of the
contents of the pronouncements.
As to the question whether KD would have correctly identified appellant, it was contended
that it was then dark and there was shadow of mango tree and hence she couldn’t have
identified properly. The evidence that it was moonlit night and it happened in open courtyard
shows possibility that she could have identified, also the struggle with gun shows others had
opportunity to identify. Gun also belonged to appellant. From all these circumstances court
came to the conclusion that KD had correctly identified the A when she said that it was A
was standing with a gun.
Points against prosecution- if struggle with gun happened where are the finger prints of sister-
in-law? – No clarity on this- court didn’t find any consequence on account of it in this case.
In fact, A did not seriously dispute when the trial judge put the question on him regarding that
circumstance during his examination under section 313 of CrPC. – under this section court
can ask Any question without any warning- this is used by judge to get more clarity before
taking final decision, to clear if there is even an Iota of doubt.
SC therefore confirmed the conviction and sentence passed on and dismissed the appeal.
24 Jan 2022
Bhairon Singh v. State of MP
In a case where accused has been acquitted of the offence, punishable under section 304-B
and 306 IPC, and the death of wife is neither homicidal nor suicidal but accidental, whether
the oral evidence of witnesses about what the deceased had told them against the accused
about the treatment meted out to her is admissible under section 32(1) of the evidence act to
sustain conviction under section 498A
Difference between SLP and other appeal is in appeals there is a hierarchical procedure. In
SLP you can directly go to SC in certain situations- SC has discretionary power- (issues like
if there is matter of rights of lot of people)- court has to be convinced to accept the SLP.
304B: dowry death. 306: Abetment of suicide, 498A: cruelty, 32 IEA: Dying declaration
On oct 9, 1990, the body of Ranjana Rani was found in a well. Autopsy of the dead body was
done. The cause of the death was asphyxia due to drowning. The deceased had married the
appellant, Bhairon Singh, about 10 years before her death.
Gauna ceremony is said to have been held after three years of marriage. The prosecution case
is that after one year of Gauna, the accused subjected his wife to torture and harassment. The
accused would ask his wife to ask her brother to arrange a job for him or get the registry of a
house made in his name or that she should bring Rs. 1 lac to enable him to start business.
Deceased is said to have told the incidence of torture and harassment to her brothers
Brindavan (PW-4) and Krishan Murari (PW-5).
The trial court held that it was possible to conclude that accused committed the murder of
Ranjana Rani; that there was no evidence to prove that RR had committed suicide and that
RR had fallen into the well accidentally and she died. Since the marriage of deceased with the
accused was held to have taken place more than 7 years before the date of her death, the trial
court held that the presumption under section 113A and 113B of IEA was not attracted.
When he appealed to HC, they set aside conviction of dowry prohibition act but upheld 498,
replying on statements of PWs. Apart from these statements she gave to her brothers there
was no other person who corroborated the same.
SC:
What has been deposed by PWs has no connection with any circumstances of transaction
which resulted in her death. The death of deceased was neither homicidal nor suicidal.
Since the offence under 498 is simpliciter, the Q of death is not and cannot be an issue for
consideration, court held that the evidence of PWs is hardly an evidence to establish killing
No stretch of imagination can connect statement of deceased with transaction. Even that apart
when dealing with 498A separate from 306, question of death is not an issue in consideration
and on that premise section 32 of IEA doesn’t apply.
But for bringing such hearsay evidence within section 6 what is required is to establish that it
must be almost contemporaneous with the acts and there should not be an interval which
would allow fabrication. Section 6 of IEA in the facts of the case insofar as inadmissibility of
statement of PWs is concerned, is not attracted because the transaction happened way later
but the statement was made way before by the deceased. Court held that there is not an iota of
evidence which can be admitted in law to be used against the appellant for the offence
punishable under section 498A IPC. Conviction passed under 498A was set aside, so accused
was acquitted by the SC.
Had 113A, B had been used then the burden would have shifted to accused to prove.
(Section 6 ka ek case law baad me krwaenge sir)
25 Jan 2022
SECTION 7
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or
facts in issue, or which constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with money in his possession, and
that he showed it, or mentioned the fact that he had it, to third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder was
committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A,
which afforded an opportunity for the administration of poison, are relevant facts.
The important aspect of section 6 was that statement should be contemporaneous,
spontaneous to be relevant. Section 7 has a wider ambit compared to that.
‘State of thing’ e.g.- you go from place A to place B, there is a turn in between, this turn has
no lighting and no mark of turn, all these are state of things that can cause accident in the
area.
‘Afforded an opportunity’ e.g.- There are certain facts that cause the fact in issue, give
chance to fact in issue to happen.
Section 7 is expressed in much wider terms as compared to section 6 which makes relevant
facts forming part of the same transaction. It is by no means easy to say always what facts do
or not form part of same transaction. The chain of events which makes up the transaction may
be sometimes difficult of discrimination. Again, facts though not strictly forming part of the
transaction may be so closely connected with it that they tend to prove or disprove or explain
the transaction under enquiry. So, section 7 makes them relevant by embracing large area of
facts.
Investigators usually try to find out the motive, like what someone can gain from the
transaction, this explains things, helps us eliminate people suspected, so it may not be per se
part of transaction, or a strong piece of evidence, but it helps in making things clear and
narrow down the case. So, section 7 keeps such large area of facts, to help us give a roadmap
to follow for solving down the problem. In short, all facts and events leading up to,
accompanying and following the transaction in issue which are so inseparably connected with
each other as to throw light on the matter in issue and help its proper understanding are
relevant.
Particular modes of connection (facts) as specified in the section are: (i) as being the occasion
of relevant facts in issue; (ii) as being their cause (iii) effect (e.g., blood marks, foot prints)
(iv) as constituting the state of things under which the fact happened (e.g., panchnama, ) (v)
as affording an opportunity for their occurrence (E.g. – old couple- only know the domestic
help that comes- if a thief looks at this, he might find an opportunity in this- knows the
routine etc,)
Occasion- set of circumstances creating opportunity. It may be natural or created.
Opportunity- is carved out of the wrong doer from set of circumstances.
Cause- The immediate factor or the incident which may have resulted in doing of a particular
act by a person. motive is the larger purpose/ goal- a benefit which the person will obtain by
doing of the act. Motive attracts/pulls. Cause pushes finally to do something. E.g., A
borrowed some money from B now person A isn’t able to return, B comes to house to seek
money but A doesn’t have- quarrel- in this quarrel B used certain words that angered A- this
anger is immediate reason (cause) if A does something- so motive just attracts but does not
push you to do something. It is the cause that pushes. Motive comes out when police
investigates.
Illustrations:
(a) The question is whether A robbed B? – the fact that, shortly, before the robbery, B went
to fair with money in his possession, and that he showed it. Or mentioned the fact that he had
it, to third person, are relevant.
‘shortly before’- is significant.
This thing can’t be relevant in section 6 because the transaction has not happened.
This has reference to occasion or opportunity; it shows that it is not necessary that A should
have seen or heard of the money in order to admit the evidence against him that B had shown
the money or mentioned it to third persons. (because you do not have to show that something
is part of a transaction) (even if money is shown to any third party, it can be considered as an
opportunity for B to see or know about the money). Prosecution will try to bring evidence to
show that B was nearby to A, but per se an opportunity is enough.
This illustration has a wider range of facts than Illustration A of section 6.
(b) the question is whether A murdered B? - Marks on the ground produced by the struggle at
or near the place where the murder was committed, are relevant facts. – these are effects. A
struggle is relevant to show that the murder was result of violence which the victim resisted.
Evidence that there were foot prints at or near a scene- THIS IS ADMISSIBLE.
(c) whether A poisoned C? – The state of B’s health before the symptoms ascribed to poison,
and habits of B, known to A, which afforded an opportunity for the administration of poison,
are relevant facts. (habits e.g.- you know what dose he takes and over dose of which can
cause death- so you give overdose to make police think that it might be an accident because it
is a medicine taken daily; or maybe reducing dilution instead of overdose) – it is an
opportunity.
LAST SEEN TOGETHER THEORY
The opportunity to commit the offence is an imp piece of evidence. This is usually
established before the court on the basis of ‘last seen together theory’. Opportunity can be
with a lot of people, so how it helps to find accused? – it helps in lessening the suspects,
helps in narrowing down.
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 found in dead is so small
that probability of any other than the accused being the author of the crime becomes
impossible.- this theory is used when not much evidence is present against the accused. This
isn’t a very strong piece of evidence, so court takes other things into consideration.
Where the witnesses have only stated that the accused was seen near the place of occurrence
with spade does not constitute last seen.
Last seen circumstances is highly incriminating circumstances, when corroborated by
medical evidence by fixing time of death and other circumstances proved in the case, are
explainable only on the basis of the hypothesis that the appellant was guilty of killing the
deceased. (E.g., accused and B saw together at 11 pm, B found dead, post mortem report
says he died around 11 pm- so medical evidence corroborates the theory)
However, in the absence of proper identification of the accused the last seen theory cannot be
accepted. Similarly, where it seems to be improbable to have identified the accused by
witness in the night from long distance, this theory can’t be believed.
The theory is kind of evidence by itself to found conviction upon the same singularly. But
when it is couples with other circumstances such as the time when the deceased was last seen
with the accused, and the recovery of the corpse being in very close proximity of time, the
accused owes explanation under section 106 IEA with regard to the circumstances under
which death may have taken place. Section 106 says anything that is specially only in your
knowledge, then you have the burden to prove it, explain it. (e.g., you are found travelling in
railway w/o ticket- now this fact that you took ticket is in your knowledge only, so you have
to prove it, explain it).
If the accused offers no explanation, or furnishes a wrong explanation, absconds, then motive
is established and there is corroborative evidence available forming the chain of
circumstances leading to the only inference for guilt of the accused. If there be any doubt or
break in the link of chain of circumstances, the benefit of doubt must go to the accused. Thus,
each case will therefore have to be examined on its own facts for invoking this doctrine.
E.g., of last seen theory- Aarushi Talwar case
Example- Let’s say for example an Indian Businessman fascinated some Zimbabwe Cricket
Player with the proposal of starting a Cricket league and he invited him to discuss the
proposal in India. The cricket went there. Both met in a hotel and discussed the proposal. 2-3
more people were along with the Businessman. Now, the cricketer got suspicious of the
proposal and thought that it might be a hoax. Due to some unforeseen circumstances, a
scuffle happened and the 2-3 people along with the businessman killed the cricketer by
choking him and left. Just after 5 minutes the room service came with the dinner and entered
the room and seen cricketer lying on the floor. He called the manager. Now here the last seen
together theory can be effective because just after 5 minutes, the waiter entered the room and
no one had entered the room after the businessman and those 2-3 persons left the room. ( ye
real story nhi hai, real story ke lie Brendon Taylor ki twitter post dekhe)
27 Jan 2022
SK YUSUF V. STATE OF WEST BENGAL (2011)
Facts:
• Additional sessions judge- Convicted the Appellant under Sections 302 and 201 of the
IPC. Given rigorous life imprisonment.
• Appeal to the Calcutta HC- Dismissed
• Now appeal goes to SC.
• On 31.08.1991, Sahanara Khatun (deceased), daughter of Abdul Rajak, resident of
aged 13, had to pluck jhinga at about 09:30 am from her jhinga field.
• She did not return till 10:30 a.m., her father Abdul Rajak along with Habibur
Rahaman and Sirajul Islam went to search her, however, could not trace her in the jhinga
field.
• However, they looked for her in bamboo grove in nearby graveyard and found a
freshly dug earth. When they removed the soil and found the dead body of Sahanara Khatun.
• Imad Ali (PW 1) lodged the FIR on the same day at 12:05 hours under Section 302
and 201 IPC, wherein the Appellant was named as accused on the suspicion that Appellant
was seen by Abdul Rashide (PW 5) and Swapan Murmu near the same place catching the fish
in the canal adjoin the jhinga field and was also seen talking with the deceased.
• It was also mentioned that the appellant was having a spade in his hand. When it is
inquired from the Appellant, he replied that he had gone to catch the fish near railway tracks.
• Subsequently, the Appellant absconded.
• In the FIR, it was mentioned before committing the murder, Yusuf, the Appellant
tried to commit rape and on being resisted by the deceased, the Appellant assaulted her on the
head with spade and murdered and buried her in the graveyard.[this statement was given in
the Fir , but no one had seen this particular fact. it was only told in the FIR].
• Thus, investigation ensued. The appellant was arrested on 7.9.1991 by the villagers in
a paddy field and handed over to the police. It was on his disclosure when he was caught that
an old spade, etc. were recovered.
• [This disclosure statement means in the custody of the police the accused is giving a
statement and as a result of this statement the police is able to find or discover certain articles
that can prove involvement of the accused- then this per say is not prohibited; since
confession per say is inadmissible unless there is a magistrate involved. Now the police with
help of surrounding evidences only will be able to prove the crime. Here only discovery by
statement can be used, but you cannot use my statement to say that I HAVE committed the
crime.].
• After completing the investigation, charge sheet was filed against the Appellant under
S. 173 of the CrPC. He denied his involvement in the crime pleading not guilty. Thus, he was
put to trial. The prosecution examined 19 witnesses to prove its case.
• When the trial was completed, he was convicted under S. 302 and S. 201 of the IPC
and given rigorous imprisonment.
• Being aggrieved from the aforesaid judgment, the Appellant preferred appeal in the
HC of Calcutta, which has been dismissed vide judgment and order dates 28.6.2006.
Amicus Curiae
In this case, the amicus curia was appointed. If the charge is against accused involving any
case of life imprisonment or death sentence, and court feels the accused is under-represented
then an amicus curie is appointed.
The Amicus Curie pointed out several loopholes in the Prosecution’s Case:
1. It is a case of circumstantial evidence. There is no evidence on record that the
deceased was seen with the Appellant at the place of occurrence.
2. The spade recovered by the investigating Officer during investigation had not been
sent for chemical analysis. If you have not sent this for chemical analysis, and if the girl has
dies due to trauma, then how will you prove? What is the value of this recovery?
3. The trial court as well as the High Court placed a very heavy reliance upon extra-
judicial confession allegedly made by the Appellant before Nurul Islam (PW 11) and Ali
Hossain (PW 13) and others though there was no such confession. Nurul Islam is the brother-
in-law of Abdul Rajak (PW 2), father of the deceased.
Ali Hossain (PW 13) is a resident of the village of Nurul Islam (PW 11). He did not support
the version of extra-judicial confession put forward by Nurul Islam (PW11).
Counsel for State
Counsel appearing for the state opposed the appeal contending that there are concurrent
findings of fact which do not require any interference.
The case is based on circumstantial evidence but chain is complete and the circumstantial
evidence is so strong that it unmistakably points to be guilt of the Appellant and that
circumstances are incapable of explanation upon any other reasonable hypothesis that of the
guilt of the Appellant.
SO,
In any case where circumstantial evidence is talked about- yes conviction can be there when
there is no direct eye-witness, but it should be such that any kind of evidence more or less
will point in the direction of the accuse.
Trial Court’s Findings
It appears from the evidence of Nurul Islam (PW 11) and Ali Hossain (PW 13) that the
accused made an extra-judicial confession before them and also before other villagers when
he was caught by them about 7 days after his leaving away from his village after the date of
occurrence.
The court further held that there was no direct evidence and it was a case of circumstantial
evidence and there was enough evidence on record (Trial Court mentioned 7 witnesses here)
that accused was present near the place of occurrence at the relevant time when Sahanara
Khatun, deceased went to jhinga field and the accused was carrying at that time one spade.
So, there may be a reasonable inference that the accused, who had one spade in his hand and
who was engaged in catching fish near the place of occurrence, suddenly attacked the victim-
Sahanara when she came to the jhinga field and thereafter attempted to rape her and when he
was resisted by her he became violent and murdered Sahanara with the help of his spade.
The medical evidence given by the doctor (PW 18) will corroborate that Sahanara was
murdered by Yusuf with a sharp-cutting weapon, which may be a spade and also by
suffocation.
The accused only had the opportunity to assault Sahanara in such a way he carried the spade
with him at that time and there is no evidence from any side that except the accused such a
spade was carried at that time by anybody else.
Moreover, the accused himself had admitted in his extra-judicial confession before Nurul
Islam (PW 11) and Ali Hossain (PW 13) and others that he murdered Sahanara at the relevant
time when he was resisted by her from committing rape upon her at the relevant time.
Therefore, his evidence to the extent of extra-judicial confession would be legally and validly
taken into consideration.
The trial Court basically found the incriminating circumstance against the Appellant as he is
absconding and ultimately it found that there was cogent evidence against the Appellant.
High Court’s Findings:
The High Court has accepted the judgment of the Trail Court in to observing that depositions
of the witnesses, remained unshaken to the extent that at the, a terail time they found the
accused near the place of graveyard with spade in his hand.
Another circumstance which swayed with the High Court had been that just after the incident
the Appellant ran away.
The High Court has accepted non-examination of some material witnesses, accepting the
explanation furnished another witness that at the relevant point of leading evidence, none of
these persons was available in that area.
The extra-judicial confession made by the Appellant-accused before Nurul Islam (PW 11)
and Ali Hossain (PW 13) in presence of others has also been accepted.
Further, the High Court had accepted the explanation furnished by the prosecution that in
case there has been some laches on the part of the Investigating Officer in sending the spade
etc., for chemical analysis, no adverse presumption can be drawn against the prosecution.
The motive had been found as to possibility of the accused trying to commit sexual assault.
All these factors had been found by the High Court of the conclusive nature as to exclude
every other possibility except the accused being guilty of the offence.
SC had top now decide on 3 facts on the basis of which the accused was convicted:
1. Last Seen Together- PW 5 – Saw accused in the field. PW 4 went to the house of
Accused, 3 other allegedly saw the accused in field- NOT EXAMINED.
2. Extra Judicial Confession- PW 11 and PW- 13
3. Absconding
Last Seen Together Theory:
Statement of witness: PW 5
When I was returning from my field at 09:00 a.m., I saw Yusuf, Appellant, catch fish near the
jhinga field adjacent to the graveyard. I talked with him there and thereafter returned home. I
did not see anybody else near that place. At about 10:45 a.m., I heard that the dead body of
the Sahanara Khatun was recovered from the graveyard as she had been murdered b
someone. I went to graveyard along with others. When the police officer asked me as to who
was the person, I told him that I saw Yusuf, Appellant, catching fish in a nala near the
graveyard. he told what he say (about Yusuf)(problem is that accused and the deceased
weren’t seen “together” as is required under this theory)
Another Statement of different witness PW 4: - He went with Rizwan Ali to Yusuf’s house-
saw Yusuf was going to his house with a spade- Yusuf reported to them that he went to catch
fish beside the nala- Rashid and Swapan firmly stated that they saw Yusuf, near jhinga field-
PW 4 again went to Yusuf’s house and saw he fled away- he said therefore they couldn’t
apprehend him in their village. (Rizwan Ali wasn’t examined)
Another statement: PW 4- heard from Rashid (PW 5) and Swapan (not examined) that they
had seen the accused near the place of occurrence.
PW 4 statement is of no use because his statement cannot be used in last seen theory anyway.
Imad Ali (PW1) (who filed the FIR), - informant had deposed that Abdul Rashid (PW 5) and
Swapan Murmy (not examined) saw that Yusuf was talking with the deceased. (Gave a
different statement)
Abdul Rajak (PW 2), father of the deceased, deposed- I came to know that Yusuf murdered
my daughter, I cannot say what was the reason for murder of my daughter (In FIR he said
motive was sexual assault and now he says he does not know the reason behind the killing).
SC mentions- The persons particularly Rizwan and Sirajul who had told these witnesses that
they had seen the A near the jhinga field at the relevant time had not been examined. More
so, it has not been stated by any of the witnesses or persons not examined that deceased was
also seen along with Yusuf. It has not been deposed by any of the witnesses that deceased
was seen talking with the Appellant at all.
SC’s observation on Last seen: the last seen theory comes into play where the time gap
between the point of the 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.
From the above, it is evident that neither Abdul Majid (PW 4) nor Abdul Rashid (PW 5) had
started that either of them had seen deceased along with Yusuf, near the place of occurrence
in close proximity of time.
All the witnesses deposed that the appellant alone was seen near the place of occurrence with
the spade as he had gone there for catching fish. Thus, there is no evidence to the extent that
the deceased and Appellant were seen together at the place of occurrence or nearby the same
in close proximity of time.
While the accused was examined by the TC under section 313 CRPC he was asked the
question that during that time Rashid and Swapan had seen him talking with the deceased,
and they were not examined. The appellant replied that he was innocent. (answers under 313
can be considered but can’t be used solely for conviction, isn’t of strong value per se, can be
used by court for clarification- accused does not answer on oath under this section- if accused
does not answer properly then court can’t rely on this heavily)- So last seen theory was not
proved.
Extra Judicial confession:
Nurul Islam deposed that he was the person who chased and apprehended the A after about 7
days of the incident. (suffocation not even mentioned) (since Nurul is the maternal uncle of
deceased, lies are possible)
Ali Hossain and Nurul deposed that they saw the accused on the roof of a bus- Nurul asked
the accused to come down and he came down and requested them to not assault him and to
take him at the police station- and thereafter Nurul took him towards the PS. In cross
examination he deposed that he did not state to I.O that after crossing the river the accused
ran towards Jamalpur. Ali said he did not chase the accused by crying “catch-catch”- and did
not state to I.O that some persons of Jamalpur caught the accused. He said he alone went to
Shyam sundar Bazar, and then he purchased goats from there and thus he cannot say anything
about the occurrence. (couldn’t sustain lies in cross examination)
By comparison of the statements of Nurul and Ali it is evident that Nurul did not state
anywhere in his statement that at the time of apprehending the accused, Ali was also with
him. It is only Ali who stated that his friend Nurul was with him. (Material Contradiction in
respect of how accused was apprehended)
Nurul deposed about the EJC made by the accused in presence of others, though he was not
able to explain wo were the other persons as no other person had been examined in this
respect. Digambar Mondal (I.O) had deposed that Nurul had told him about the confession by
the accused in presence of the other persons and police personnel.
The accused had told him also that dead body was buried in the courtyard, thus, the theory of
EJC revealed by Nurul does not get corroboration from the statement of Ali Hossain or any
other independent witness or police personnel. Nor the body of the deceased was recovered
from the courtyard. While considering the material contradictions in the statement of Nurul
and Ali we do not consider that it would be safe to accept his version in this respect.
Doctor’s opinion- In the opinion of the doctor, death was due to combine effect of injuries
and suffocation. The incised wound could be caused by a hit of sharp edge of the spade. The
haematoma on the victim could be caused by a hit of heavy blunt weapon. He did not speak
of any sign of sexual assault on the deceased before or after her death.
Absconding:
Both the courts below have considered the circumstances of absconding of the appellant as a
circumstance on the basis of which an adverse inference could be drawn against him. It is a
settled legal proposition that in case a person is absconding after commission of offence of
which he may not even be the author, such a circumstance alone may not be enough to draw
an adverse inference against him as it would go against the doctrine of innocence. It is quite
possible that he may be running away merely being suspected out of fear of police arrest and
harassment. (in absence of any other evidence, if you are relying on absconding alone, then
that is not enough for his conviction.)
Conviction on circumstantial evidence? SC Observed:
Conviction can be based solely on circumstantial evidence. However, the court must bear in
mind that while deciding the case involving the commission of serious offence based on CE
that the prosecution case must stand or fall on its own legs and cannot derive strength from
the weakness of the defence case.
The circumstances should be of a conclusive nature and tendency. 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.
No presumption could be drawn on the issue of last seen together merely on the fact that
Abdul Rajak, father of deceased had stated that deceased had gone to pluck the jhinga and her
dead body was recovered from there. The witnesses merely stated that the accused was
present in the close proximity of that area. That does not itself establish the last seen theory
because none of the witnesses said that the accused and deceased were seen together.
Section 27- The nature of the admissibility of the facts discovered pursuant to the statement
of the accused under sec 27 is very limited. If an accused deposes to the police officer the fact
as a result of which the weapon with which the crime is committed is discovered, and as a
result of such disclosure, recovery of the weapon is made, no inference can be drawn against
the accused, if there is no evidence connecting weapon with the crime alleged to have been
committed by the accused.
The spade had not been sent for chemical analysis as admitted by Digambar Mondal, I.O
himself and there was no explanation furnished as for what reason it was not sent. In case of
circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal
for the reason that the CE may not lead to the only irresistible conclusion that the appellant
was the perpetrator of the crime and none else and that in the absence of any report of
serologist as to the presence of human blood on the weapon may wake the conviction of the
accused unsustainable.
This incident had occurred in a broad day light at 9:30 am in the month of August in the
agricultural field surrounded by agricultural field of others. Therefore, the presence of a large
no. of persons in the close vicinity of the place of occurrence can be presumed and it is
apparent also from the statement of Aliful Rahmal (PW 6). Thus, had the deceased been with
the A, somebody could have seen her at the place of occurrence.
It cannot be a positive evidence as concluded by the courts below that none other than the
appellant could commit her murder because no one else had been there at the place of
occurrence. In fact, nobody had ever seen the deceased at the place of occurrence.
Digging the earth by a single person to the extent that a dead body be covered by earth
requires a considerable time and there was a possibility that during such period somebody
could have seen the person indulging in any of these activities, though no evidence is there to
that extent. The circumstances from which the conclusion of guilt is to be drawn in such a
case should be fully established. The circumstances concerned “must or should” and “not and
maybe” established. In the instant case, the circumstances have not been established.
SC finally held that courts below appellant was convicted by the courts below on a mere
superfluous approach without in depth analysis of the relevant facts. Appeal was allowed and
accused, acquitted.
31 Jan 2022
MUNAWWAR V. STATE OF U.P (2019)
The A, Munawwar along with 3 other persons was conducted for murder and kidnapping of a
7-year old boy, ‘X’ under section 302 and 365 read with section 34 IPC and also causing
disappearance of evidence of offence under section 201 and 34 IPC.
X was last seen in the company of the accused person on April 1st 1988. Two ransom notes
were received by Mohd. Khurshid, the father of X on 3rd and 7th of April. FIR registered on
the night of 7th April. X’s dead body was exhumed on April 18th 1988.
Conviction was upheld by Allahabad HC.
Co-accused and convicts Noor and Shamim did not filed an appeal and one Tahir died. It is
only appellant, Munawwar, was has filed the appeal.
Arguments of A: (i) Last seen wrongly applied (ii) delay in lodging FIR. (it has to be
explained because in some places like tribal areas PS is far away)
X was kidnapped on 1st April and his body exhumed on the basis of disclosure statement of
Noor on 18th.
X had gone to a shop because his mother asked him to get something around 4 o’ clock. He
didn’t return- when father returned from work- looked for him- couldn’t find him- enquired
about it from people and learned that victim was last seen with Noor Mohammad at the shop
of Ashraf. This fact was also confirmed by Ashraf.
Khurshid (PW1 ) had also spoken to Sayeed (PW 2 ), who was standing a few feet away from
the shop of Ashraf and had seen X with the A, Noor, Tahir and Shamim who had taken X
with them on foot towards Sultan Industries.
This Narration was affirmed by Sayyed in court. He further mentioned that accused were
maternal uncle of X and usually they used to take child for walk and that was the reason I
didn’t suspect kidnapping and I didn’t intervene. He also confirmed interaction with
Khurshid in evening and that he made enquiries. (here witnesses are themselves telling
everything and that is getting corroborated by other witnesses too)
Another witness Mushtaq (PW 7) stated that he knew X who was residing in the same
Mohalla. On April 1st at about 5 he saw X with the A, Noor, Tahir and Shamim, they were
taking him towards the hill. (witnesses are even giving names- increasing credibility). He had
not objected because he knew that these 4 were relatives of X and had thought that they were
possibly taking him for a walk. (chain of circumstances continuing- 4 o clock victim left, at 5
he left with 4 accused)
On 3rd April he had received ransom letter for payment of Rs. 21000 for safe release of X-
Money was to be paid at the railway bridge- Thereupon, Khurshid proceeded to the house of
the A, Munawwar and his brothers and had met Tahir and had informed him about the
ransom note and enquired if he could tell about his son’s whereabouts.
Tahir asked Khurshid to arrange the money and write a letter seeking 2-3 day-time for
payment. Several other persons were present with Khurshid at that time. On the request of
Tahir, PW-w, Khurshid, wrote a letter and gave it to Tahir asking for more days.
PW 5, among others, confirmed this meeting with Tahir.
On April 5th Tahir had informed that the letter had reached the persons and they had given
PW 1 time to arrange money.
The father, Khurshid, testified about second letter for payment of 22000 which was thrown in
his house by Shamim- this throwing was seen by Islam (PW4) and Sayeed (PW5)- they tried
to catch him- he fled.
After receipt on second letter, he proceeded to lodge an FIR.
Reasons for delay of FIR- PW1 had elucidated that he was arranging the money and
perceived danger to his son’s life and therefore didn’t file FIR. Further, till second letter was
thrown he was uncertain that whether or not Tahir was misleading him and whether A and his
brothers were involved or not.
Discovery statement- There was recovery of the dead body of X- DS given by Noor upon his
arrest on 18th- He was taken by police along with witnesses like father of X and others to a
jungle- he showed the place where the dead body, his clothes, the knife by which he was
killed had been buried in a ditch.
After digging body was recovered- PW 1 identified his son- Discovery affirmed by two
witnesses.
Court held that this was not just a case of last seen. X was kidnapped, identity of accused was
established by eye witness, X’s disappearance and kidnapping were simultaneous, throwing
of 2nd letter, discovery of body (court didn’t give letter for handwriting expert’s check, knife
not being talked about- maybe because SC had no doubt- it is TC that checks every tiny
thing- SC just checks what things seem relevant, what weight should be given to what) SC
therefore dismissed the appeal.
1 Feb 2022
SECTION 8
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference
to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is the subject of any proceeding, is
relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto.
Explanation 1.––The word “conduct” in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this explanation is not to
affect the relevancy of statements under any other section of this Act.
Explanation 2.––When the conduct of any person is relevant, any statement made to him or
in his presence and hearing, which affects such conduct, is relevant.

Basically, it says that the fact should show or constitute motive. Motive basically means why
the crime was committed.
Example.- India tour of Australia, top players like Sachin, Sehwag, Ganguly have gone to
pavilion without crossing single digit number runs. Dravid has made a good score and it
looks like the team will take a first innings lead and wickets are not falling. Players like Steve
Waugh, Hayden and Ponting starts sledging badly and say some bad words. The situation
goes to match referee. Now, the act of Australians clearly shows the motive why they were
sledging the Dravid because match was going out of their hand. (aisa kuch hua nhi tha,
fictional example hai).
Any fact relating to motive or preparation becomes relevant. Something that finally leads to
motive becomes relevant.
Meaning of ‘constitutes motive’: The victim humiliated the accused in front of everyone. The
accused at that time declared now, you will see what I am going to do. Finally, the accused
murders the victim. During murder, he will not be repeating all this. Earlier statement would
be connected here. That fight or altercation in which the accused was humiliated – that
particular incident is going to constitute the motive. It will give rise to the motive.
Motive – Why was the crime committed?
Explanation of explanation 1- If the statement is accompanied by acts such as running
away, panicking, etc., then that statement becomes relevant.
If the statement is not relevant here, it might be relevant in any other Section. But under this
Section, the conduct is relevant. The statement is generally not relevant unless there are acts
other than statements that are accompanied by the statement.
This Section talks about the conduct about the parties to the proceeding and not witness.
Section 8 essentially talks about motive, preparation and conduct.
Example of Explanation 2- A person is sitting quietly in theatre. Someone came and said
police is coming, be seated. Suddenly, this person stood up and started running.
Something that affected such conduct is relevant. So, the statement “police is coming, be
seated” becomes relevant here.
Illustrations-
(A) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C, and that B had tried to
extort money from A by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for the payment of money, B denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, B required money for a
particular purpose, is relevant.
(c) A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was
administered to B, is relevant.
2 Feb 2022
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
Simply put, conduct does not include statement normally. In normal circumstances, conduct
is your behaviour it should not be mere statement. But some particular statement are relevant
under Section 8. It is when with that statement there is some behaviour accompanying,
explaining something other than the statement itself.
According to Vepa Sarathi, statements which accompany and explain acts other than
statements are:-
1. Complaints
2. Accused pointing out to the police during investigation various places connected with
the crime.
Here, in 2 the conduct is also telling that he has knowledge of something else along with the
pointing out. Him telling I have hidden XYZ thing here and then person pointing out where is
a situation where statement becomes relevant.

According to section 8, the relevant fact is conduct; and a statement is relevant in so far as it
explains or accompanies conduct which itself is relevant.
If a person against whom an offence has been committed, shortly after the occurrence makes
a complaint, the relevant conduct is the act of making the complaint; and the terms of the
complaint; become relevant, because they accompany and explain the act of making the
complaint. This behaviour and statement will explain each other and hence this will be
relevant.
If, therefore, the aggrieved person does not make a complaint; but makes only a statement,
the statement is not relevant under section 8, as it does not explain or accompany any
conduct.
The distinction between a complaint and a mere statement is therefore, of fundamental
importance from the point of view of section 8.
The conduct of a person complaining not only shows something is done, but it shows
behaviour accompanying in those statements, or statements explaining that person’s
behaviour. Hence, in exceptional circumstances, statements become relevant.
Complaint does not necessarily mean in narrow sense made to police or magistrate. It just
means any kind of statement made to a person in the expectation that such person will try to
redress the situation.
A complaint, unlike a bare statement, is made with a view to redress or punishment, and is
made to someone in authority, the police, for instance, or a parent, or guardian or some other
person to whom the complainant is justly entitled to look for assistance and protection.
The distinction between a complaint and a mere statement is that the former is expressive of
feeling, the latter, of knowledge; the former evidences conduct, but the latter has no such
tendency. Feeling is said to be weightier here.
The section wants to take aspect of complaint in a common sense way.
Thus, it is not necessary that a complaint should be made to a police officer. If a girl on
whom rape has been committed goes to her relatives straight, after the occurrence and
complaints on her own initiative her statement will be a complaint for purposes of section 8.
Maybe the person to whom complain was made will go file FIR, but even if they don’t it will
be relevant that she complained to someone.
If a girl immediately after the rape, is seen by the witnesses crying and, on being asked by
them, says that she has been ravished the statement will be admissible under this section as
explaining her act of crying. This is exactly what explanation 1 is saying since the statement
explains your conduct.
Similarly, if a person is robbed and sitting silently and if someone asks them what happened,
and he very causally mentions about the incident- so the court may not consider it relevant
because the conduct is not explained by the statement. A person should be in a state that is
contemporaneous, because at the end of the day, section 8 is also a part of res gestae only.
The complaint, in order to be relevant, should have been made shortly after the occurrence.
Time gap is relevant but decided on a case to case basis.
The relevant fact in section 8 is conduct; and, a statement becomes admissible only if, and to
the extent that, it explains or accompanies conduct.
The complaint must be voluntary and spontaneous, and not elicited by leading, inducing or
intimidating questions. If the circumstances indicate that but for the questioning there
probably would have been no voluntary complaint, the answers are inadmissible; but if the
questions merely anticipated a statement, which the complainant was about to make, the fact
that the questions spoke first is immaterial, and the statement in reply to the questions will be
a "complaint" for purposes of section 8.
Illustration (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.
If person dies such statement can be used as a dying declaration under Sec. 32. If the
statement is an FIR or given to a magistrate it can be used for corroboration under Sec. 157.
Illustration (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.
In English law a complaint is admissible only in cases of rape and kindred offences, but
illustration (k) to section 8 clearly shows that in India the rule is not limited to sexual and
kindred offences.
Section 8 makes FIR relevant. FIR is relevant because after FIR, investigation starts. During
the investigation, if a statement is made, then it is hit by Section 162. But FIR precedes
Section 162, so, FIR is relevant even though it is a statement made to the police.

Use of Statements given to police during investigation-

To contradict prosecution witness- Section 145- By defence

To contradict prosecution witness- section 145- By prosecution itself- With Court permission.

As DD- section 32

As Discovery statement- Section 27

3 Feb 2022

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

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

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

The facts that A asked C to lend him money, and that D said to C in A’s presence and
hearing–– “I advise you not to trust A, for he owes B 10,000 rupees,” and that A went away
without making any answer, are relevant facts.

TAPE RECORDED CONVERSATIONS

It is admitted under section 6, 7 and 8. In USA, fruit of poisonous tree doctrine is applicable
which means that any illegally obtained evidence is rejected directly. In India, this is not
applicable. Court will decide on case to case basis whether it can be admitted. The whole is
not rejected in India.
RM MALKANI V STATE OF MH (1972)
The appellant was the Coroner of Bombay.

The prosecution case –in 1964 there was a patient admitted to the nursing home of a Dr.
Adatia. Dr. Adatia diagnosed the case as acute appendicitis. He kept the patient under
observation. After 24 hours the condition of the patient became serious. He called another
doctor- Dr. Shantilal J. Mehta. He said that the situation was aggravating and his diagnosis
was acute appendicitis with "generalised peritonitis" and he advised immediate operation.

Dr. Adatia performed the operation. The appendix, according to Dr. Adatia had become
gangrenous (meaning blood is not flowing in your tissue and intestine not functioning
properly). The patient developed paralysis of the ilium. He was removed to Bombay Hospital
to be under the treatment of Dr. Motwani. The patient died on 13 May, 1964. The Hospital
issued a Death Intimation Card stating reason as "paralytic ileus and peritonitis following an
operation, for acute appendicitis. This cause of death was written in a way it hinted at some
negligence on behalf of the doctors.

The appellant (the coroner) allowed the disposal of the dead body without ordering post-
mortem. There was however a request for an inquest from the Police Station, since it was a
sort of unnatural death and warranted for an explanation. The cause for the inquest (for
knowing the cause of death) was that his was a case of post operation death in a hospital.

It was the practice of the Coroner's Court to send letters to professional people concerned in
inquest to get the explanation of the Doctor who treated or operated upon the patient.

The appellant on 3 October, 1964 made an order that Mr. Adatia be called. It is alleged that
the appellant had told Dr. Adatia a, few days earlier that though he might have operated
satisfactorily the cause of death given by the hospital would give rise to a presumption of
negligence on his part.
The coroner is trying to divert saying there were chances that the doctor who did operation
that may be indicating negligent. He is portraying himself that something is “given” to me I
will give favorable evidence whenever needed. Basically indicating for bribe ]

Dr. Adatia was asked by the appellant to meet Dr. Motwani, so that the latter could get in
touch with the appellant to resolve the technical difficulties. [The motwani was middleman
between the appellant/coroner and the defendant/Dr Adatia]

The appellant told Dr. Motwani that Dr. Adatia was at fault but he might be cleared of the
charge in the inquest. The appellant asked for a sum of Rs. 20,000. He conveyed the proposal
to Dr. Adatia. The latter refused to pay any illegal gratification. The appellant then reduced
the demand to Rs. 10,000. Dr. Adatia also refused to pay the same. Dr. Motwani told Dr.
Jadhav (superindtendent of the Bombay hospital) on the same day that incorrect cause of
death was shown and great injustice was done to Dr. Adatia. Dr. Jadhav said that he Would
send an amended deposition to the Coroner, the appellant.

Dr. Motwani and Dr Adatia then decided to lodge a complaint with the Anti Corruption
Bureau.

Dr. Adatia's Nursing home got messages on the telephone to get in touch with the Appellant.
Dr. Motwani rang up the Appellant. The Appellant asked Dr. Motwani to intimate by 10 a.m.
on 7th October whether Dr. Adatia was willing to pay Rs. 10,000.

Dr. Motwani rang up Mugwe, Director of the Anti-corruption Branch and complained that a
higher Government official was demanding a heavy bribe from a Doctor.

Mugwe then arranged for his staff to be present near Dr. Motwani's residence on the morning
of 7th October with the tape recording equipment to record on the tape the telephonic
conversation.

On 7th October 1964 Mugwe and the Assistant Commissioner of Police went to Dr.
Motwani's residence. They met Dr. Motwani and Dr Adatia. When they commenced
recording the First Information Report of Dr. Motwani, Dr. Adatia left for his Nursing Home.

Mugwe then arranged for the tape recording equipment to be attached to the telephone of Dr.
Motwani.
Dr. Motwani was asked by Mugwe to ring up the Appellant in the presence of Mugwe and
other Police Officers about the Appellant's demand for the money. Dr. Motwani rang up the
Appellant and spoke to him. Dr. Motwani reported the gist of talk to Mugwe.

Mugwe then asked Dr. Motwani to ring up Dr. Adatia to speak on certain special points.
After the talk with Dr Adatia, Dr. Motwani was asked by Mugwe to ring up the Appellant
and ask for an appointment to discuss the matter further. Dr. Motwani Rang up the Appellant
and an appointment was made to meet the Appellant at 12 noon the same day.

The conversation between Dr. Motwani and the Appellant and the conversation between Dr.
Motwani and Dr. Adatia are all recorded on the tape.

The two Doctors, Motwani and Adatia met the Appellant in the Coroner's Chamber at 12
noon. The Appellant raised the demand to Rs. 15,000 and said that Rs. 5000 was to be paid to
Coroner's Surgeon for giving an opinion in favour of Dr. Adatia. The Appellant said that if
the amount was not paid, the Police Surgeon's opinion would be incorporated in the case. The
two Doctors went out of the Chamber for a while. Dr. Adatia then told the Appellant that he
would pay the Appellant Rs. 15,000 on 9th October 1964. [other people also getting
involved]

Dr. Adatia paid Rs. 15,000 to Dr. Motwani.The Appellant asked Dr. Motwani to keep it. The
Appellant also told Dr. Motwani to bring the money to the Appellant's house on 10th
October, 1964. On 10th October the Assistant Commissioner Sawant Came to Dr. Motwani's
residence and asked him to go to the Appellant's residence to fix up an appointment for
payment of money.

Dr. Motwani went to the Appellant's house on 19th October, 1964 at 10 a.m. The Appellant
was not in the house. The Appellant's wife was there. Dr. Motwani told her that he had come
to pay the money. The Appellant's wife said that he could pay her. Dr. Motwani said that he
had no instructions to pay. As Dr. Motwani was leaving the building, Sawant, the Assistant
Commissioner met him. Sawant asked Dr. Motwani to come to Dr. Adatia to ring up the
Appellant from there.

The Police Officers and Dr. Motwani met at the residence of Dr. Adatia at about 4. p.m. The
raiding party connected the tape recorder to the telephone mechanism of Dr. Motwani. Dr.
Motwani dialed the Appellant's residence and spoke with the Appellant in the presence of the
Police Officers.
The conversation was recorded on the tape. It was arranged at the talk that Dr. Motwani
would pay the amount to the Appellant's wife on 12th October 1964. Dr. Motwani was asked
to take a letter addressed to the Appellant stating that he was returning a loan of Rs. 15,000
which he had taken at the time of buying a flat[appellant was also very start and aksed to give
in writing return of money as loan for land- he got a little suspicious about denying to wife]

On 11th October, 1964 Dr. Motwani received a telephone call from the Appellant asking Dr.
Motwani to come to his residence to meet the person to whom the money was to paid. Dr.
Motwani declined to go then. On 12th October 1964 the Appellant told Dr. Motwani that the
appointment was cancelled, because he had not come to the Appellant's residence on 11th
October. Dr. Motwani conveyed the news to the Assistant Commissioner.

Mugwe then ordered an open investigation into the case.

Charge

Sec. 385- Putting person in fear of injury in order to commit extortion.

Sec. 420- Cheating and dishonestly inducing delivery of property.

Sec. 511-Punishment for attempting to commit offences punishable with imprisonment for
life or other imprisonment

He attempted to obtain from Dr. Adatia through Dr. Motwani a sum of Rs. 20,000 which was
later reduced to Rs. 10,000 and which was then raised to Rs. 15,000 as gratification for doing
or forbearing to do official acts. He put Dr. Adatia in fear of injury in body, mind, and
reputation and attempted dishonestly to induce Dr. Adatia and Dr. Motwani to pay the sum of
money.

The Appellant was also charged with cheating for having falsely represented to Dr. Adatia
and Dr. Motwani that Rs. 5,000 out of the amount of Rs. 10,000 was required to be paid to
the Police Surgeon for obtaining his favorable opinion.

The Appellant denied that he demanded any amount through Dr. Motwani. He also denied
that he threatened Dr. Adatia of the consequence of an inquest.

A person who has given statement for something can be examined and cross-examined. But
how will you check TRC? If it is tampered or not? Because a lot of times there is a special
chain of custody, and if that chain breaks then the court can reject the evidence- court sees
that after seizing and sealing evidence, to which places and through whom has it gone.
Investigation authorities have to make sure of zero tampering and no trimming of tape or
conversation, especially in the rea of technology where person’s voice can be taken from
different contexts and stitched together.

How contemporaneous evidence can be fitted in this section, where the court is not very
forthcoming?

There is a lot of discussion in a lot of judgments where courts have usually written that this is
a contemporaneous record, so can be fit in S.6 as part of transaction, or S.7 or S.8 if related to
be relevant. But the general view is that – since it is a contemporaneous record between 2
people therefore it is usually said to be a part of res gesate (no matter under which section).

Court now says: let us see conversation between Dr. Motwani and appellant relevant to FII?
Yes. There is no dispute a regards to identification of voices. SC says these have already been
proved. There is no conversation about any part of TRC being cut off. Court gives a chance
to the appellant that you bring you experts and see if this TRC is authentic or not.

For section 25, the Court found no merit in it. SC went one step ahead and said that there is a
word for proposition- even if evidence is illegally obtained, then it is admissible. Here, still
the person who was recorded was informed. Cited a century old English case [Jones v.
Owen]. This is even older than the Yusuf Ali case where bribe was offered. Just as a'
photograph taken without the knowledge of the person photographed can become relevant
and admissible, so does a tape record of a conversation unnoticed by the talkers.

The court will 1st determine if it is genuine or nor, and if this kind of evidence is admitted the
court will curate certain carefulness and use proper means.

The reason is that the Police Officer is more likely to behave properly, if improperly obtained
evidence is liable to be viewed with care and caution by the Judge.—Here, the court smartly
uses the word “improper” instead of “illegal”- so it can be improper but it is not illegal. So if
police also knows SC is admitting these evidences, so they will also be careful while
recording these kinds of conversations.

The SC cite another case R.V. Maqsud Ali (1965). The court had observed "that the method
of the informer and of the eavesdropper is commonly used in the detection of crime. The only
difference here was that a mechanical device was the eavesdropper". Confidential informers
and all have been admitted for so long- now it is just that a tap recording is doing this for
detection of crime, BUT this is as long as there is no kind of alteration.
Somewhere, later in our case, the court also said it does not even matter if it is illegal- and
here it is not even illegal as doctor himself allowed it.

Coming to article 20(3), SC said it is applied when you are compelled or forced to be a
witness against themselves. However, here nobody is being forced. So no violation of Art.
20(3). Court went to the extent of quoting a statement that said we do not acre how you got
the evidence. It stated that –In R. v. Leatham(1) it was said "It matters not how you get it if
you steal it even, it would be admissible in evidence".. As long as it is not tainted by an
inadmissible confession of guilt evidence even if it is illegally obtained is admissible. Court
is still saying it will differ from case and case and we will be careful and it is not a blanket
acceptance statement, but yes the police should not be said that this evidence is per say not
admissible. At least an opportunity should be given to the evidence. We have to apply our
own mind for detection of crime.

Right to privacy (Art. 21) issue: In 1970s, the right to privacy was not recognized and there
was no judicial activism. All the court said- these rights are protection for innocent people,
but for detection of crime by offenders, we will not let this be misused. Hypothetically
though, if RTP was recognized before this, maybe situation would be different with RTP as a
recognized FR.

Section 162 issue: the contention as that the entire conservation was hit by S. 162 of CRPC-
which is v important for purpose of evidence cases. Separating evidence and crpc is very
tough and not the proper way to go. S. 161 and 162 relate to statements given during
investigation- if any statement is given to police then it is not usually signed and the
statement given to police has limited role in evidence (as seen in S. 27 and S. 32 and for
contradiction purposes). There can be no substantive use of the provision normally. It was
argued that under Mugwe’s advice and instruction Dr. Motwani starting talking with the
appellant and Dr. Adatia. Therefore, it was said that the tape recording was in the course of
investigation.

There is a very basic counter to this argument, that the Court gave- Sections 161 and 162 of
the Criminal Procedure Code bars that the statement is given to the Police Officer who orally
examines a person. The telephonic conversation was between Dr. Motwani and the appellant.
There was not statement being given. Each spoke to the other. Neither made a statement to
the Police Officer. Even when you go file FIR, it is not usually hit by S. 162 because only
after that can the police investigate- hence FIR can be used for corroboration.
Hence, all arguments are more or less rejected.

9 Feb 2022

SECTION 9

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity
of any thing or person whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by whom any such fact
was transacted, are relevant in so far as they are necessary for that purpose.

If we break this section down, we get mainly 5 instances:

1. Facts necessary to explain or introduce a fact in issue or relevant fact.

2. Facts which support or rebut an inference suggested by a fact in issue or relevant fact.

3. Facts which establish the identity of anything or person whose identity is relevant.

4. Facts which fix the time or place at which any fact in issue or relevant fact happened.

5. Facts which show the relation of parties by whom any such fact was transacted.

For exp.: a crime happens at a place, a victim is inured and shouting “he is running that way!
That way!” and a person was seen running towards the bus stop where he boarded the bus
and went away. An inference suggested by this was that he was the accused. Any fact that
supports or rebuts the inference which is suggested by a relevant fact. When the person was
caught, it was found ha “he was only running late for office-. He has had several warnings
from his boss. It was a matter of my livelihood.” Now this fact is of no relevance to the case,
but because this person was made the accused, which is why this fact will become relevant-
because it rebuts the inference.

Section 7 and 8 are based on concept of ‘causation’ as a criteria for relevancy.

Causation- relationship of cause and effect between one event or action and the result.
(Motive, preparation, conduct, opportunity, etc.). [Like there was some anger or humiliation
that gave rise to his action/offense].

Sec. 9 on the other hand (based on simple logic that some instances may not be include in
Sec. 6, 7, or 8) deals with the facts which are necessary to explain or introduce relevant facts.
These facts though relevant do not form part of the same transaction- they do not accompany
the FII (FACT IN ISSUE). Still these facts are relevant for understanding the nature of
‘transaction’- supply the missing links, or establishing connection/throwing light on the main
issue.

Sec. 9 makes all of these facts relevant. Most common use of this Section is making Test
Identification Parade relevant/ TIP (as it establishes the identity of a person). Mainly in
section 9, reference will be test identification parade. It is related to the part- “facts which
establish the identity of anything or person whose identity is relevant”, even though there are
other thongs in Section 9.

ILLUSTRATIONS TO SECTION 9:

(a) The question is, whether a given document is the Will of A. The state of A's property and
of his family at the date of the alleged Will may be relevant facts.

The question is whether the given document is actually the will of A or not? This is FII and
facts like what property did A have, who was in A’s family, basically state of A’s land is
Relevant Facts.

For exp: A’s will states that the land I have in XYZ area is given along with 1 lakh rupees to
son. But on research is found he has no land in XYZ but in ABC. This is rebutting the fact
that the will belongs to A.

• Facts which support the terms of will given the state of A’s property/family is
relevant- there is no forgery.

• Facts which contradict the terms of will given the state of A’s property is relevant-
indication of forgery.

(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged
to be libelous is true.

• FII is if B has defamed A or not.

• The position and relations of the parties at the time when the libel was published may
be relevant facts as introductory to the facts in issue.
• The particulars of a dispute between A and B about a matter unconnected with the
alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it
affected the relations between A and B.

• Position and relation of parties- exp. a quarrel between them may also show that B
had some ill will towards A.

Here, it does not really matter why the dispute was there, but just the fact that there was
indeed a dispute there. If there is an indication that relations between A and B were not good,
then there is an indication that he might be lying but this alone is not sufficient. So relations
per say are not relevant, but here they may be relevant.

(c) A is accused of a crime. The fact that, soon after the commission of the crime, A
absconded from his house, is relevant, under section 8, as conduct subsequent to and affected
by facts in issue.

• The fact that, at the time when he left home, he had sudden and urgent business at the
place to which he went, is relevant, as tending to explain the fact that he left home suddenly.

• The details of the business on which he left are not relevant, except in so far as they
are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A.

• C, on leaving A's service, says to A— "I am leaving you because B has made me a
better offer”.

• This statement is a relevant fact as explanatory of C's conduct, which is relevant as a

fact in issue. This is because B has induced C to break his contract with A.

• If we notice here, then C’s statement, along with conduct, is made relevant. But why
is this statement not relevant in S. 8? Because C is not a party and S.8 covers conduct of the
parties only.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's
wife.

• B says, as he delivers it— “A says you are to hide this”.

• B's statement is relevant as explanatory of a fact which is part of the transaction.

• Here, the property did not arrive to A in good faith. A was aware of this since he told
B to tell his wife to hide the property. The court will draw an inference that A was fully
aware and committed theft. Remember again, that this is circumstantial evidence to complete
link, this statement alone will never be the basis of conviction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the
mob or what they were shouting during the riot, are all relevant as explanatory of the nature
of the transaction.

Illustration (f) is founded on the well-known case of R.v. Lord George Gorden, and illustrates
the principle that in cases of riot, conspiracy, etc., the declarations of all concerned in the
common object, although not defendants, are admissible as explanatory of the common
object. The people in riot themselves may not be co-accused, but their statement would be
relevant too.

TEST IDENTIFICATION PARADE [TIP]

What is Test Identification Parade?

Identification means proving or finding before the court that a person etc. is the very same
that he or it alleged, charged to be.

Test identification is a process by which the identity of the persons etc. concerned in the
offence under investigation or trial is established, through a test parade.

The test is used in the actual meaning of an examination in which the witness is to find out
the person, thing or animal in a test identification parade.

Here, witness identifies the accused out of X number of people.

Reason for conducting TIP?

They are merely tests to determine the memory of the witnesses based on the first impression
of the accused involved in the crime, to truly testify that the accused was the one who is
actually involved in the commission· of the offence, to which the witness figures as an eye-
witness.

Further, it is also aimed at, to aid the prosecution and bring confidence to the investigating
party to ensure that the investigation of the case is proceeding in the right direction.
Exp: a crime is committed in 2015 and the accused has been seen by 2 witnesses. Unless and
until, it is a high profile case it is highly unlikely the trial will commence instantaneously.
Here, court may get suspicious that whether even after 15-20 years also how does a witness
have such sharp memory to remember the accused?

The fact that the witness has identified the accused in TIP is not a substantive piece of
evidence. Real identification happens only when it is proved in court, until that anything prior
is not given much importance. Hence, TIP has a corroborative value.

When does TIP become important?

In each and every case the crime is not disputed, but the person who committed the crime is
disputed. Therefore, the identity of accused becomes relevant.

In cases where there is an undisputed evidence the suspect was caught red handed while
committing crime or in cases where accused was well acquainted with the witnesses or
victims, the question of identity becomes rather irrelevant and TIP loses its value. Exp.: if a
relative of the victim commits the crime, obviously they will be able to identify them.

However, TIP holds utmost importance in cases where the accused is not known to the victim
or witnesses and his name is not mentioned in the FIR. Naturally, when someone’s’ is
unknown, a victim can identify only by seeing the accused.

Is TIP self-incrimination or not?

Compelling an accused to stand up and present his face for the purpose of identification does
not breach Article 20(3) of the Indian Constitution. It is not the same as testifying as to the
final facts. He may also be needed to reveal any wounds or markings on his body in order to
be recognized.

Why is it not self-incrimination?

The purpose also focusses on to avoid custodial violence. Usually, self-incrimination is those
things which are known to the accused in his mind, in his knowledge. Showing a scar on
thumb is not something personal to the accused, others may also know. No personal
information is being divulged that will lead to your conviction. In any case, you are not being
asked to do anything. It is the other person who has to do an active act and identify. An
ancillary reason is that, only those facts are considered self-incriminatory when on their sole
basis there can be conviction.
 10 Feb 2022

Evidentiary value:-

The result of the identification parade conducted at the stage of investigation is not a
substantive piece of evidence and cannot be the basis of a conviction by itself. The evidence
against the accused must be the evidence given by the identifying witness in the witness box.

Without this substantive evidence of identification by the witness in Court the evidence of
identification of the accused or property is a previous test of identification parade even by the
self same witnesses cannot really be taken into consideration against the accused, what to
speak of basing a conviction of the accused on such evidence.

What if TIP is not held?

The non-holding of a test of identification parade, per say is not to be of a very serious
consequence so as to be a ground to vitiate the trial. Nevertheless, it is undoubtedly a very
essential feature in considering the credibility of the witness on the point of identification.
This is in cases where court might get suspicious about the witness, or on the prosecution, or
on the investigating authorities where accused is not known to witness and still there has not
been a TIP. If very solid evidences are not presented, it may lead to acquittal of the accused.

Can accused demand TIP as a matter of right?

Accused as a matter of right cannot be claimed that TIP be conducted. But generally as a
matter of prudence, to be on safer side, when the accused asks TIP to be conducted, it should
not be turned down. If the prosecution turns down the request of the accused for
identification, it runs the risk of the veracity of the eye witnesses being challenged on that
ground. It’s a rule of general caution.

Do’s. and Don'ts of TIP

Do’s

1. The Test of Identification Parade should be held soon after the arrest. There is no
specific time limit of this ‘soon after’ and has to be left on the court’s wisdom. It is not a
ground for rejection of bail.
2. The police should take steps to arrange Test of Identification Parade by Magistrate
only (not by the police itself). This is because it would be a burden under S. 162 of CRPC
and would be rendered of no value.

3. It is desirable, not necessary, to get identifiers' statements recorded u/s. 164 Cr.P.C.,
before the investigation. So under 164 the magistrate record the statement of confession, but
under 164 he can also record statement of witness. Many times during the investigation will
give certain statements and police feels they will be the ‘star-witness’ if they hold on to their
nerve to ensure conviction. So just to be conscious and expand limited value of this statement
under S. 162, to assign it substantive corroborative value it is recorded by the magistrate.

4. Identifier should also identify accused or property in Court, as Identification

proceedings are not substantive evidence,

5. Identification of persons differs from identification of property.

Don’ts:

1. There should not be any delay in arranging of TIP, after arrest of accused since delay
may lead to grant of bail to accused. Even if accused is released on bail, he has to attend the
TIP but its sanctity will be lost. After the crime, as far as possible, the witness should come
face to face with the accused at the time of TIP.

2. The TIP should not be held by police.

3. There is no bar that private person should not conduct TIP but it is not advisable.

4. Do not show the suspects to the witnesses. This statement is not about the parade
itself, but before the parade.

5. Do not show the photographs of the suspects to the witnesses. The TIP happens in a
mix fashion.

6. The police officer should see that as far as possible, the photographs of the accused is
not published in the newspapers.

7. Do not allow the presence of police officer during the TIP.

Precautions for Magistrate

• After making all arrangements, police should completely leave the place to conduct
actual identification proceedings.
• The accused, as far as possible, be mingled with persons of similar description, status,
build and age in the proportion of minimum of 1 : 5 and maximum of 1 : 10 and they must be
made to take their positions around with the persons with whom they are mingled or in the
line. Rule of prudence also says, that 2 accused should not be present in the same one TIP.

• The suspects should not be made to stand together. Further details which took place at
the time of identification should be recorded in the proceedings.

• After the identification of one witness is over, care should be taken to see that the
witness does not mingle or communicate with other witness for whom identification parade is
yet to be conducted.

• If the identification by one witness is over, the whole parade will be re- shuffled and
the accused can take different positions.

• If the accused is willing to change their dress, they should be allowed to do so. For a
simple logic, if witness or police finds a way to use clothes as a mark of identification.

• If any accused makes any objection, it should be recorded. Ultimately, court will
decided if TIP was conducted properly.

• If there is any visible marks available on the accused, which are likely to facilitate his
identification, then it is the duty of the personnel conducting the investigation either to cover
up such marks or mix that accused with several other persons having similar marks, failure to
take this precaution is sufficient to take away the value of the identification. Exp: if witness is
6 ft. 5 inch, then the other people standing next to the accused in the TIP if are of 5 feet- this
will take away the value of TIP as it gives an indication to the witness that this is the person.

• After the completion of TIP and drawing up all the proceedings, a certificate must be
appended duly signed by the Magistrate or the panchayathdars (who see as to everything was
in order), as the case may be.

• The accused generally will not demand for Test of Identification Parade, but if any
such demand is made by the accused, the police should arrange the same.

11 Jan 2022

MUNSHI SINGH GAUTAM V. STATE OF MP, 2004.

• This case is imp to know the consequences of not conducting a TIP.

• TIP was not conducted in this case.

• It is a case of custodial torture and the person dying subsequently.

• In these cases, evidences of torture become really difficult to gauge, bc there is no one
but the police officers. There are no eye witnesses to the torture and all police officers will
side with the police only.

• In relation to a scoter theft, Mahesh Sharma and Rajkumar Sharma were brought to
the police station. When the name of the deceased was given the accuse people (police
officers) went to the house of the deceased. The police arrested the suspect and tortured him
to death. They tried to conceal their crime by recording in their diary that they received the
info that the person was already intoxicated and he was taken to hospital and there he died.
The SP wrote a letter to DM and independent inquiry was requested. There was much hue
and cry amongst the people. CID was involved because the accused were the police only.
Statements were recorded and, medical reports seized, panchnamas were prepared. And on
completion of evidence, the chargesheet was filed in the court under section 173 of CrPC.
Each of the accused denied the charges. The trial was conducted by Additional Sessions
Judge. After recording the evidence and hearing the parties found each of the party guilty and
convicted them for the offence under section 304, 330 and 201 of IPC.

• The accused appealed in the HC which dismissed the appeal and confirmed the
conviction. During the pendency of the appeal under the HC, the accused no. 1 i.e. Munshi
died.

• The SC has to take the decision regarding other accused only.

• On the night intervening 19th and 20th June 1984, to extort a confession from one
Shambhu Tyagi (deceased), was brought to the police station where he was beaten as a result
of which he died and thereafter to remove the traces of the crime and conceal the acts, the
dead body was thrown near a Nala.

• Senior counsel for appellants submitted that the prosecution version as unfolded is not
supported by any cogent and credible evidence.

• The prosecution version mainly rests on the evidence of PW 12 and 14.

• While the latter’s version has been relied upon by the prosecution to contend that he
had witnessed being taken away by the police station, PW 12 one the other hand claimed to
have witnessed beatings given by the accused persons to the deceased.

• It is pointed out that the medical evidence tendered by Dr DK Satpathy (PW 16)
clearly rules out time of beatings as claimed to have been witnessed by Rajkumar. His
evidence is clearly to the effect that the…

• His evidence is also to the effect that all the injuries were not of the same time; some
were 4 hours old, others 12 hours old and some were one or two days old. Raj Kumar (PW-
12) has lied and the same is evident from his testimony. He has given different version as to
when he was arrested.

• Though he claimed that he was also beaten along with one Mahesh who was not
examined, he did not make any grievance before the Magistrate when he was produced after
his arrest. He gave varying dates so far his date of arrest is concerned.

• At one place it was stated to be 20.6.1984 whereas on another place it was stated to be
23.6.1984. Though he claimed that he was aware of the names of the accused persons, he did
not mention it in his statement given during investigation. No explanation has been offered
for it.

• Similarly, Jawahar (PW-14) claimed to have seen the accused persons. He identified
them for the first time in Court. In his cross- examination he had accepted that he did not give
the physical description of the accused persons. He clearly admitted that he could not have
given the description because he had not seen them on the date of alleged date of occurrence.
Therefore, the Courts below in the absence of any test identification parade should not have
placed reliance on their evidence. (if appellant is saying he saw the accused you should have
conducted TIP. But you didn’t. this creates suspicion in court. So, this evidence cannot be
relied upon.)

• In any event, when Jawahar (PW-14) accepted that he had not seen the accused
persons the test identification parade would not have also improved the situation. He had
categorically stated that the deceased was wearing a under-garments when he was taken by
the police.
• Doctor (PW-16) who conducted the post-mortem found that the deceased was fully
dressed with pant and shirt. Therefore, it was submitted that the conviction as recorded by the
Trial Court and affirmed by the High Court is unsustainable.

• The counsel appearing for the respondent-State submitted that as is well-known, in

case of custodial death, it is very difficult to have flawless evidence. The evidence of
Rajkumar (PW-12) is cogent and credible as found by the Courts below. Even though there
are some minor flaws here and there, they do not affect credibility of the prosecution version.

• Evidence of Jawahar has been corroborated by the evidence of other witnesses. The
medical evidence which is hypothetical in nature should not be given undue importance by-
passing eye-witness’s version. (this is generally true but not in this case because here
statements of eye-witnesses is contradictory and this contradiction is not minute) (there can
be minute mistakes by the witnesses because of maybe nervousness, it is the job of the court
to analyse if any mistake done is fatal to the case or not)

• It is pointed out that in order to hide actual state of affairs a thoroughly misconceived
plea that police received information about somebody lying injured near Nala was made out.
This plea is also falsified when the evidence of doctor is noted. Dr. K.N. Agarwalla (PW-11)
has categorically stated that the body of the deceased was brought to the hospital around 8.15
a.m. by one police constable Shiv Prasad No. 238 of Shahjahanabad Police Station and
accused Gulab Singh Chaudhary.

• They told him that the deceased had come to the police station in a very bad stage and
with much difficulty he had told his name and thereafter fallen down unconscious. It was
further stated that they took him to the emergency ward, where he was declared dead.

• In the examination under 313 of the code the accused-appellant Gulab Singh
Chaudhary has taken the similar stand. This is clearly falsified by the defence version and
evidence that police officers had gone to the spot-on hearing that somebody was lying injured
there. Therefore, it was submitted that the Trial Court and the High Court were justified in
finding the accused-appellants guilty.

• SC observed that it’s true that TIP is not conducted. Question arises as to the value of
TIP and the consequence of not conducting TIP.

• By citing various authorities, the court then opined on TIP: The facts, which establish
the identity of the accused persons, are relevant under section 9 IEA. As a general rule, the
substantive evidence of a witness is the statement made in Court. 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 prior TIP, is to test and strengthen the trustworthiness of the 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.

• 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. The identification parades belong to the stage of investigation, and there
is no provision in the Code which obliges the investigating agency to hold or confers a right
upon the accused to claim, a test identification parade.

• They do not constitute substantive evidence and these parades are essentially
governed by section 162 of CrPC.

• Failure to hold a test identification parade would not make inadmissible the evidence
of identification in Court.

• The court agrees to the fact that the absence of TIP in all case is not fatal and if the
accused person is well-known by sight it would be waste of time to put him up for
identification. Of course if the prosecution fails to hold an identification on the plea that the
witnesses already knew the accused well and it transpires in the course of the trial that the
witnesses did not know the accused previously, the prosecution would run the risk of losing
its case

• Court then observed: It is no doubt true that much evidentiary value cannot be
attached to the identification of the accused in Court where identifying witness is a total
stranger who had just a fleeting glimpse of the person identified or who had no particular
reason to remember the person concerned, if the identification is made for the first time in
Court

• The court cited another case wherein and observed: In the peculiar case of Ram Nath
Mahto v. State of Bihar (1996) this Court upheld the conviction of the appellant even when
the witness while deposing in Court did not identify the accused out of fear, though he had
identified him in the test identification parade. [What if you identify him in TIP, but are not
able to identify him in the Court? The court even then convicted the accused because it
believed the evidence of the witness- they thought when the witness identified accused in TIP
then she was truthful. On trial, court has to independently find out which version is correct].
This Court noticed the observations of the trial Judge who had recorded his remarks about the
demeanour that the witness perhaps was afraid of the accused as he was trembling at the stare
of Ram Nath -accused.

• The court also relied upon the evidence of the Magistrate, who had conducted the test
identification parade in which the witness had identified the appellant. This Court found, that
in the circumstances if the Courts below had convicted the appellant, there was no reason to
interfere.

• Coming to the case, the court observed: Test identification parade would be of no
consequence in view of Jawahar's (PW- 14) evidence that he did not know physical
description of the accused-appellants as he had not seen them on the date of occurrence.
When you have not seen someone, how will you identify them? What remains is the evidence
of Rajkumar (PW-12).

• It was contended that the police station had assaulted the witness (PW 12) for a pretty
long time and physical appearance and special features had been imprinted in the mind of the
witness and merely because no TIP was held that is of no consequence. This plea has to be
examined in the light of evidence of Rajkumar (PW-12).

• Court, however, observed, evidence is full of unexplained contradictions. The witness

was also not reliable, even if we do not take TIP was not held. At one place he says he was
arrested on 20th June, 1984, at another place he says he was arrested on 23rd June, 1984. He
claimed that from 20th June till 22nd June, 1984 he was in police custody. In cross-
examination it was accepted that it was not so because he was taken to U.P. on 21st and 22nd
June, 1984. In another vital improvement in his statement, he claimed that he knew the names
of all the accused persons by 20th June, 1984 itself.

• Significantly, the names of accused persons are not stated by him when he was
examined by the police. No explanation has been offered as to why he did not tell the names.
This witness claimed that he had suffered injuries. He admitted that he had not made any
grievance to the Magistrate before whom he was produced after his arrest. He also accepted
that the alleged injuries were not bleeding. But his statement was that the blood on the floor
was cleaned by the accused persons.
• Therefore, the evidence of PW-12 and PW-14 are not sufficient to fasten guilt on the
accused persons. But one significant aspect cannot be lost sight of. That is the role of accused
G.S. Chaudhury. His definite plea was that the deceased was lying injured near the Nala and
information to that effect was received at the police station. But his statement before Dr. K.N.
Agarwal (PW-1), the doctor, was entirely different.

• The plea that the deceased had come to the police station in a severe condition and
after telling his name has collapsed gets falsified by the categorical statement made by the
accused in his statement under Section 313 of the Code to the effect that information was
received where the deceased was lying unconscious in injured state.

• In this view of the matter, the case being one of custodial torture, accusations have
been established so far as accused-appellant G.S. Chaudhury is concerned.

• The last question to consider was that of the offence committed by him. The evidence
of Dr. D.K. Satpathy (PW-16) is very relevant to decide the question. He found that the
injuries were confined to the skin and upper level of the body. Grievous injuries were not
found on vital parts of the body like head, liver, spleen, heart, lungs etc. The duration of the
injuries was widely variant. The right lung of the deceased was TB affected. The combined
effect of alcohol and the injuries shortened the period of death and resulted in a quicker
death. That being so, the conviction in terms of Section 304 Part II IPC cannot be faulted- he
had knowledge person will die if he kept on torturing.

• So ultimately the appeal of GS Chaudhary (accuse) failed. The other three accused
were acquitted as their offence could be proved by prosecution. This appeal was allowed.

CASE: MULLA V. STATE OF UP (2010) 3 SCC 508

• Appeal against judgment of High court of UP which confirmed the death sentence and
dismissed the appeal.

• Charges- Sec. 365, Sec. 148, Sec. 149 read with 302.

• Death sentence.

• This case basically revolves around why there was a delay in TIP, and in case
prosecution’s version is accepted, then is death sentence appropriate here?

• We focus more on the Defense, as TC and HC have already accepted the

prosecution’s version.
Amicus Curiae- For appellants Contentions:-

a) No eye-witness to the alleged incident;

b) Accused persons are not named in the FIR. In other words, FIR was lodged against
unknown persons;

c) Delay in conducting the Test Identification Parade (TIP);

d) Prosecution failed to establish motive for the incident;

e) ebven if the abpove ragumenst fail, and Court accepts the prosecution’s side, even then the
imposition of death sentence is not warranted.

Counsel for State of UP Argument:-

a) Though the FIR was registered against unknown persons, by proper investigation and
examining the persons who witnessed the occurrence, the prosecution proved its charge. It is
not uncommon to file FIR against people not known.

b) PWs 1, 2 and 3 were present at the place of occurrence and in the absence of any
contradiction in their statements, the Courts below (TC and HC) have rightly relied on and
accepted their version.

c) PWs 2 and 3 identified the main 2 accused, that is Mulla and Guddu, in the test
identification parade which was conducted in accordance with the procedure.

d) The evidence of PW 4, another witness, is more probable and acceptable in view of the
fact that she being a victim at the hands of the miscreants including the appellants, the Courts
below have rightly relied on her statement.

e) All the miscreants were armed with illegal guns in their hands and came to the spot along
with a boy and two girls demanding ransom.

f) In as much as the appellants- accused killed five persons including a woman, all between
the ages of 25-50 mercilessly, the award of capital punishment is justified and no interference
called for by this Supreme Court.

The prosecution mainly relied on the evidence of PW 1 – Rajesh Kumar Tripathi, PW 2 -

Sushil, PW 3 -Harnam, independent eye witness - PW 4 - Kiran, PW 5 - Dr. A.K. Verma-
Post Mortem Doctor, PW 7 - Dr. Sudarshan, who treated the injured witness, PW 8 - S.I. -
Ram Kripal Bharati, PW 9 - Sub-inspector of Police, PW 11 Vijay Kumar Verma, an officer
who accompanied and assisted the Magistrate in conducting the TIP and one Rajni Kant
Mishra, the then Reader, as a court witness (CW 1). No one was examined on the side of the
accused as defense witness.

Facts

• On the fateful night of 21.12.1995 when 4 farmers were irrigating their fields of the
village, at about 8.30 p.m., 8 miscreants armed with guns reached the spot. A boy and two
girls were also with them. [Night is important as to how were they identified in the dark].

• All the miscreants caught hold of the four persons who were irrigating their fields and
enquired about their properties and made a demand of Rs. 10,000/- each and threatened that
otherwise they would be killed.

• At the very moment, 4 more farmers (one woman) who were returning home after
irrigating their fields were also stopped by the miscreants demanding Rs. 10,000/- each from
them.

• SO the accused had got hold of 8 villagers.

• When all of them expressed their inability to pay the amount, the miscreants assaulted
3 of them (Sushil, Shiv Ratan and Harnam) by the back of the gun and took away the rest 5,
directing the 3 to bring money otherwise they would be killed.

• These three persons returned to the village and informed the villagers about the
incident and by the time the villagers reached near the field, the miscreants had taken away
all the five abducted persons along with them.

• Due to the night and being afraid of the miscreants, the villagers could not lodge a
complaint immediately. On the very next day i.e. 22.12.1995 at 6.10 a.m., a complaint was
lodged and a case was registered and the investigation was commenced for searching the
abducted persons.

• The bodies of the 5 abducted villagers was found in the sugarcane field.

• After recovery of the dead bodies, they were sent for post-mortem. After recording
the statements, police Ram Shankar Singh arrested Mulla and Guddu on 01.01.1996 and Tula
on 08.01.1996 and recovered a country made gun, two cartridges and one knife.
• Later charge-sheet was filed, under S. 173 of the CrPC, against the three plus one
Asha Ram. When your investigation is complete, charge-sheet is filed and you then tell the
magistrate with documents about the offense.

• Trial for Guddu and Mulla was joined.

• We are concerned here with the appeals filed by these two only.

FIR?

• It was alleged that the FIR did not have names of anyone, so where did these 4 people
appear from?

• SC observed that it is true that the accused persons are not named in the FIR and it
merely mentions 'unknown persons’. However, prosecution through their witnesses
particularly, PWs 1 to 4, established that it was the appellants, who along with few more
persons committed the offence by killing five persons mercilessly for non-payment of ransom
amount which they demanded for the release of five persons caught hold by them.

• In view of the same, though none was named in the FIR, subsequently, the name of
the appellants came into light during investigation. This is not something unheard of.

Evidence of Prosecution Witnesses

PW 1-

• He is the one who went to the police to inform about the incident- FIR was filed.

• He observed the incident from 10 meters.

• Narrated the entire incident in court, and said he saw 8 people along with girls and 1
boy [this fact being repeated because the indication is that these 3 were also abducted by
them].

• He had seen all the accused persons in torchlight, which one of the victims was using
and was even flashed at the accused person at one point of time.

• Could not go for TIP as he was ill.

• He was also one of the people who discovered the bodies.

PW 2-
• One of the three injured victims, apart from PW1, who was asked to go and get the
ransom amount.

• He also saw the faces in torchlight.

• Since he had sustained injuries at the hands of the miscreants, he along with others
went to hospital for treatment.

• He also saw the dead bodies of the victims.

• He observed that there was cut on their throat.

• He also deposed about his visit to District jail, Sitapur for TIP of miscreants. He
informed the Court that he had identified three miscreants, namely, Guddu, Mulla and Tulla,
who were present in the Court.

• He mentioned these persons had also been identified in the Jail. He further explained
that these accused had been seen for the first time by him at the time of incident and
thereafter, he saw them in the test identification parade.

• He also recapped that before the incident, these miscreants were neither known nor
seen by him. In his cross-examination, he reiterated that in the TIP which was conducted in
the district jail, Sitapur, he recognized the accused.

• He explained that all three miscreants were not in one line and there were no specific
marks of identification on the faces of accused persons. The face of all the accused were not
similar. He also reiterated that when miscreants were beating him they were flashing torches.

• Through these statements, he is trying to say that all guidelines of TIP have been
fulfilled.

• Court observed that PW 2 corroborated the evidence of PW 1. It is further seen from

his evidence that he also sustained injuries by one of the miscreants and this is also clear from
his assertion and statement as well as the evidence of PW 7 - Dr. Sudarshan.

• According to the doctor, this injury was of simple nature, one week old and it was
inflicted by any blunt object. Dr Sudarshan (PW 7) has also asserted that this injury could
have been caused by the butt of a gun.

PW 3-

• The other reliable witness examined on the side of the prosecution is PW 3- Harnam.
• He asserted that on the date and time of the incident, he witnessed the occurrence
along with PW 2.

• He was also injured by the accused.

• PW 3 also asserted before the court that none of the accused was known to him
earlier. He also explained that he had gone to jail for identification of the accused. Before the
Court, PW 3 identified, by putting his hand on the accused Guddu, Tulla and Mulla who were
standing in the dock and said that these miscreants were involved in the incident and for the
first time he had seen these persons at the time of occurrence and second time in jail at the
time of test identification parade.

Court- Though he was cross-examined at length, his evidence about the incident, the
involvement of the accused, threat to kill the persons in custody, recovery of dead bodies,
identifying the accused in the test identification parade, could not be shattered in any way. He
being an injured eye witness, corroborated the evidence of PW 2 and identified the accused
persons in the properly constituted test identification parade. They could not shake the
veracity of this witness.

PW 4-

• She was abducted from her house, which was set on fire, before the incident.

• She and other girl and boy who were brought from somewhere were with the accused
persons on the date of incident on the field.

• So, she also had witnessed the entire incident.

• She deposed that after waiting for some time, since nobody came from village with
money the miscreants took away the said four men and one woman towards north. Nearly
after crossing 2-3 agricultural fields they killed one person by slitting his throat.

• Thereafter, about 1 km in the southern side of the village near a pond they took the
remaining four persons, that is, three men and one woman and killed them by cutting their
throat and left the dead bodies near a pond.

• She, however, managed to escape from the custody of the said criminals after 10-12
days. Among the eight persons who committed the crime at the tube-well one was Asha Ram,
Ram Sebak, Guddu, Mulla and Tulla whose names she came to know since she was with
them for 10-12 days.
• She asserted that Mulla had killed three persons and Guddu had killed two persons.
She pointed out that she can recognize the accused Guddu, Mulla and Tulla by face and by
name and she also identified them when Mulla and Guddu were present in the Court.

• Court’s answer to amicus curiae’s claim that she earlier did not take names- (a) In the
present case, when she was examined, she explained that due to threat and fear she made a
statement in the earlier case disowning these accused. Considering her explanation,
particularly, because of the threat and fear she was forced to make such statement and in view
of the clear-cut statement about the present occurrence implicating the miscreants including
the present appellants Mulla and Guddu, stating all details about keeping 3 youngsters in their
hands and 5 villagers demanding ransom for their release, identifying the 5 dead bodies at
different places, there is no reason to disbelieve her version.

• The statement of PW-4 also corroborates with the evidence of injured eye witnesses
PWs 2 and 3. Further she was held by the accused for a period of 10-12 days and because of
her familiarity of their faces, in categorical terms, she informed the Court that it was Mulla,
who killed three persons and Guddu, who killed two persons by slitting their neck.

PW 5- Doctor who conducted the autopsy on 5 victims

• In all the reports, he mentioned cut in the nerves and muscles of neck and blood
vessels apart from other injuries. He also opined that death was cased due to shock and
hemorrhage due to anti mortem injuries and approx. one day before the post mortem.

Court- Though the police could not produce the knife used for killing the five persons, one of
the accused had admitted about possession of knife apart from unlicensed gun at the time of
the occurrence. There is no reason to disbelieve the assertion of PWs 1 to 4 as well as the
evidence of PW 7 who treated the injured witnesses PWs 2 and 3 and the medical opinion of
PW 5 about the cause of death of five persons.

Issue of delay of TIP

• Court observed: - The question whether a witness has or has not identified the accused
during the investigation is not one which is in itself relevant at the trial. The actual evidence
regarding identification is that which is given by witnesses in court. [TIP is something which
belongs in the stage of investigation, and not trial stage- only has corroborative value].
• There is no provision in CrPC entitling the accused to demand that an identification
parade should be held at or before the inquiry of the trial. The fact that a particular witness
has been able to identify the accused at an identification parade is only a circumstance
corroborative of the identification in Court.

• Failure to hold TIP does not make the evidence of identification in court inadmissible,
rather the same is very much admissible in law.

• The whole idea of TIP is that witnesses who claim to have seen the culprits at the time
of occurrence are to identify them from the midst of other persons without any aid or any
other source.

• The test is done to check upon their veracity. In other words, the main object of
holding TIP, during the investigation stage, is to test the memory of the witnesses based upon
first impression and also to enable the prosecution to decide whether all or any of them could
be cited as eyewitnesses of the crime. To ensure if investigation is going in the correct
direction and does not ruin the prosecution’s case.

• It is desirable that a TIP should be conducted as soon as possible after the arrest of the
accused. This becomes necessary to eliminate the possibility of the accused being shown to
the witnesses prior to the test identification parade.

• This is a very common plea of the accused and, therefore the prosecution has to be
cautious to ensure that there is no scope for making such allegation. If, however,
circumstances are beyond control and there is some delay, it cannot be said to be fatal to the
prosecution.

• Court cited various authorities for the above and further mentioned in one case (where
TIP was done after 3 months). It was held that no time limit could be fixed for holding a test
identification parade. It was held that sometimes the crime itself is such that it would create a
deep impression on the minds of the witnesses who had an occasion to see the culprits. It was
held that this impression would include the facial impression of the culprits. It was held that
such a deep impression would not be erased within a period of three months.

• In another case it was held: it will thus be seen that the evidence of identification has
to be considered in the peculiar facts and circumstances of each case. Though it is desirable
to hold the test identification parade at the earliest possible opportunity, no hard and fast rule
can be laid down in this regard.
• If the delay is inordinate and there is evidence probablising the possibility of the
accused having been shown to the witnesses, the Court may not act on the basis of such
evidence. Moreover, cases where the conviction is based not solely on the basis of
identification in court, but on the basis of other corroborative evidence, such as recovery of
looted articles, stand on a different footing and the court has to consider the evidence in its
entirety.

• In another case SC observed that it is neither possible nor prudent to lay down any
invariable rule as to the period within which a Test Identification Parade must be held, or the
number of witnesses who must correctly identify the accused, to sustain his conviction.

• These matters must be left to the courts of fact to decide in the facts and
circumstances of each case. If a rule is laid down prescribing a period within which the Test
Identification Parade must be held, it would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear clue about their identity, they being
persons unknown to the victims. They therefore, have only to avoid their arrest for the
prescribed period to avoid conviction.

CASE LAW: BUDHASEN V. STATE OF UP (1970)

About procedural issues while TIP being conducted + even if TIP is conducted properly it is
not a substantive piece of evidence on which conviction can be based.

- Murder of one Hazarilal, 2 accused persons (jagdish and sgriv) wanted to take
revenge from deceased as he had filed case against them.

- On September 11, 1967 Ghaziuddin (P.W. 2) is stated to have gone to the house of
Jagdish and saw Jagdish and Sugriv in the company of four unknown persons and over-heard
Jagdish saying that the said four persons had left the job unfinished though they had visited
the village often and telling them that the balance would be paid to them only after the job
was accomplished.

- The following day at about 10 a.m. when it was drizzling Hazarilal was sitting in his
house on a cot and his brother Inderjit (P.W. 1) and Kanwar Sen (P.W. 3) were squatting on a
heap of fodder nearby.

- Suddenly four unknown persons entered the House through the Duari. Two of them
caught hold of Inderjit and Kanwar Sen, one of them sat on the cot of Hazarilal and pressed
his legs and the fourth who was carrying a red jhola in his hand, took out a pistol from the
jhola and fired at Hazarilal from point blank range.

- Hazarilal fell down. The fourth man re-loaded his pistol and fired another shot which
hit Hazarilal on the chest killing him instantaneously. Inderjit and Kanwar Sen raised alarm.

- On hearing their alarm and the sound of pistol fire, Ram Singh, Imam Khan and
Ranchor (P.W. 4) came to the scene of occurrence and saw the four assailants running away
from the Nohra. According to the prosecution, the four unknown assailants murdered
Hazarilal at the instigation of Jagdish and Sugriv.

- First information report was lodged by Inderjit, about ten miles away from the place
of occurrence at 2.35 p.m. the same day (September 12. 1967) On his return from the police
station Inderjit met Ghaziuddin (P.W. 2) from whom he learnt, what he (Ghaziuddin) had
seen and heard a day previous, at the house of Jagdish

- Sub-Inspector with whom the F.I.R, was lodged reached the scene of the occurrence
at 6.15 p.m. the same day. He found one discharged cartridge and two wads at the place of
the occurrence. He recorded the statements of some witnesses, including Ghaziuddin on the
following day.

- Jagdish and Sugriv on whom suspicion had fallen were not traceable with the result
that warrants for their arrest were made over to Sub-Inspector Yadav. Proceedings under
Sections. 87 and 88, Cr. P.C. were started against them but soon thereafter they surrendered
themselves in court on September 29, 1967.

- During investigation the Investigating Officer learnt about the complicity of the
present appellants and Naubat was arrested on October 9, 1967. Budhsen, however, was
arrested in connection with some other case on October 14, 1967 by police. The magistrate
(P.W. 20) held identification parade of Naubat on October 21, 1967 and of Budhsen on
October 28, 1967.

- The trial court came to the conclusion that Jagdish and Sugriv had abetted the murder
of Hazarilal and appellants Naubat and Budhsen has committed the murder. Naubat and
Budhsen were, therefore, sentenced to death and Jagdish and Sugriv to life imprisonment.

- After considering the entire evidence the High Court acquitted Jagdish and Sugriv but
maintained the conviction and sentence of Budhsen and Naubat, appellants.
- The statement made by Ghaziuddin, (P.W. 2) was not believed by the High Court and
his version was described as unnatural and improbable. That court also ignored the evidence
of Chandrapal (P.W. 5), Girendra Pal Singh (P.W. 7) and Lakhanpal (P.W. 8) on the ground
of their being either irrelevant or unreliable.

- The existence of inimical relations between Jagdish and Sugriv on one side and
Hazarilal on the other was not considered to be a sufficiently strong circumstance against
Jagdish and Sugriv so as to hold them guilty of instigating Hazari-lal's murder.

- As against Naubat and Budhsen, appellants in the opinion of the High Court primary
evidence consists of their identification by some of the witnesses. The court took into
consideration the identification parade for Naubat held by Magistrate on October 21, 1967
and that for Budhsen on October 28, 1967.

- It was principally the evidence of Identification on which reliance was placed for
holding the present appellants to be responsible for the murder of Hazarilal. The three
witnesses on whose evidence in regard to the identification the High Court relied are Inderjit,
Kanwar Sen and Ranchor. The additional evidence recorded by the High Court consisted of
the statement of Lakhan Singh. That court also inspected the original entries in the general
diary of the police as well as their carbon copies.

- Lakhan Singh stated in the" additional evidence that he had made entry in the general
diary of the original report under Section 307, I.P.C. and Section 25 Arms Act made by
Pannalal against Budhsen. He denied that blank space had been left in the general diary for
entering the particulars of the pistol (tamancha) and cartridges etc.

- In regard to this denial in Lakhan Singh's statement the High Court observed that the
weapon of offence with which the offence under Section 307, I.P.C. was said to have been
committed by Budhsen was probably a later addition though the court did not consider it
proper to record a firm finding to that effect.

- A major part of the judgment of the High Court is confined to the evidence in regard
to the identification parade and to the question whether the identifying witnesses had an
opportunity of seeing the appellants before their identification. Holding that there was no
opportunity for those witnesses to see the appellants before their identifications the court
confirmed their conviction and sentence as already observed.
- In Supreme Court- Appellants – According to their submission the evidence in
regard to the identification parades is of an extremely weak character and is wholly
uninspiring. According to them it does not bring home to the appellants the offence of murder
beyond reasonable doubt. It was also urged that according to the prosecution evidence four
unidentified persons haying participated in the unfortunate murder of Hazarilal there is no
reliable evidence showing that any one of the present appellants actually fired the fatal shot.
Evidence regarding any specific part played by the appellants, they contended, is also not
forthcoming on the record. On this ground it was emphasised that in any event the extreme
penalty of death is uncalled for.

- Since according to the High Court the primary evidence against the appellants is that
of their identification by the witnesses the crucial point in the SC was the admissibility and
value of the evidence regarding the identification of the appellants.

- The High Court, as already observed by us, has ignored the evidence of (P W. 5)
(P.W. 7) and (P.W. 8) as either irrelevant or unreliable. The identification of the appellants is
thus confined to the testimony of Inderjit (P.W. 1), Kanwar Sen (P.W. 3) and Ranchor (P.W.
4).

PW 1- Brother, Eyewitness

- Narrated the incident did not specify who played what part in murder. He further
mentions our alarm Imam Khan, Ranchor Jatav and Ram Singh tailor of my village also came
up and then the accused persons having come out and ran away. These persons have also seen
the four accused persons while coming out of the gher and running away. Jagdish and Sugriv
having called, these four Badmashes have got committed the murder of my brother. We all
can recognise these Badmashes on being confronted.

- SC observed: - This description of the assailants could hardly provide the

investigating authorities with any firm starting point from which they could proceed to take
the necessary measures for the discovery and arrest of the alleged offenders as required by
Section 157, Cr. P.C.

- It is unfortunate that the Sub-Inspector (P.W. 19) did not care to get more information
about the description of the alleged assailants by questioning the informant. Of course,
Jagdish and Sugriv were mentioned in the F.I.R. as the persons who had employed the four
assailants for murdering the deceased but having been acquited they were not the concern of
SC.

- The evidence as to identification deserves, the SC observed, to be subjected to a close

and careful scrutiny by the Court. Shri Pratap Singh, Magistrate, who conducted the
identification, has appeared at the trial as P.W. 20. The identification memo in respect of
Naubat, appellant, is Ex. Ka 20 dated October 21, 1967 and in respect of Budhsen is Ex. Ka
21, dated October 28, 1967.

- Identification Memo of Naubaat- In Ex. Ka 20 SC found a note that Naubat had stated
that he had been shown to the witnesses and had also been photographed. Column 7 of the
memo requires to be inserted therein the name of description of the person the witness came
to identify and this is to be recorded in the words of the witness. In Ex. Ka 20, Inderjit said: I
saw the accused while committing the murder. I did not know him before. As against the
other five witnesses namely Kanwar Sen, Ghaziuddin, Imam Baksh, Chandrapal and Rancher
we only find the word "Do".

- In this connection there was a note at the foot of the printed form containing the
following direction:- N.B.--It is very useful to note whether the witness knew the name of the
person he had come to identify or he only described him in some such way as the man who
was standing at the door at the time of the dacoity. The witness is not to be asked in a general
way, identify whomsoever you know.

- SC observed that it was obvious that scant attention was paid to the letter and spirit of
this note. Shri Pratap Singh (P.W. 20) when cross-examined on behalf of Naubat said : I
asked the witnesses who had come to identify accused Naubat as to what they had seen
Naubat doing. Whatever they told me was recorded by me in col. 7 of the memo. Whatever
the first witness Inderjit told was recorded word for word by me and since the other witnesses
repeated the same thing I noted down the word 'as above' (uparyukt).

- The remarks of the Magistrate were also required against the enquiry on point no. 2 at
the bottom of the first sheet of Ex. Ka 20 which relates to the step taken by the jail authorities
to ensure the proper conduct of the proceedings. We do not find any remarks by the
Magistrate on this point in Ex. Ka 20. His remarks would certainly have provided helpful
information on an important point without which the court is left only to guess.
- Identification Memo of Budhsen- In the identification memo in respect of Budhsen
(Ex. Ka 21) in column 7, against the name of Inderjit, witness, SC found the following entry:
I came to identify the person who committed the murder of my brother.

- Against the name of Imam Baksh SC found the following entry: - (1) Came to
identify the person who committed the murder. (2) Against the names of the remaining four
witnesses, who were the same as mentioned in Ex. Ka 20, we find the word "Do". This means
that their answer is the same as that of Imam Baksh. (3) In this form also there are no remarks
by the Magistrate in respect of the steps taken by the jail authorities to ensure proper conduct
of proceedings.

- The memos of the identification parades do not show that the parades were held by
the Magistrate with the degree of vigilance, care and anxiety their importance demanded. The
casual manner of filling the identification memos is further apparent from the fact that
Budhsen, appellant's admission into the jail is shown therein as October 15, 1967 instead of
October 14, 1967. This mistake was admitted by P.W. 20 in cross-examination without
offering any explanation for the mistake.

- SC pointed out that Shri Pratap Singh (P.W. 20) was called upon as a Magistrate only
to conduct the identification proceedings and it was beyond his duty to interrogate the
witnesses for eliciting other facts or to require them to make any statement beyond mere
identification.

- This Imam Baksh was not produced at the trial. The other witnesses except three,
were not relied upon by the High Court. SC, therefore, focused on those three witnesses only.

PW 1

- Inderjit (P.W. 1) brother of Hazarilal, deceased, deposed at the trial that on September
12, 1967 at 10 a.m. he, Kanwar Sen and Razarilal were sitting in the house. Hazarilal was
sitting on a cot and Kanwar Sen and the witness were sitting on a heap of fodder nearby in
the Duari because that was the only place affording shelter against rain. The cot on which
Hazarilal was sitting was in the middle of the Duari.

- He says: - Four unknown persons entered the Duari from outside. One of them sat
down by the headside of my brother and another proceeded towards the charpoy of my
brother. Of the remaining two, one caught hold of me, while the other caught hold of Kunwar
Sen. Kunwar Sen and I immediately raised an alarm. The person, who proceeded towards the
charpoy of my brother, took out a country made pistol from the bag and shot at my brother. It
was he who was holding the bag in his hand. The shot hit my brother and he jumped from the
charpoy and fell down. The person who was sitting by the head side of my brother pressed
my brother's legs with his legs. The person, armed with the pistol, again loaded the pistol and
shot at my brother's chest. My brother died immediately.

- On hearing my shouts and the sound of pistol firing Ram Singh, Imam Khan and
Ranchor arrived. The Badmashes escaped through the Duari and ran away towards the east.

Problem with the statement was that: -

- The witness has not specifically stated that Naubat, appellant, had fired the pistol shot.
It is only by reference to the person holding a bag from which the pistol was taken out that it
is sought to be implied that Naubat had fired the shot. In court Naubat was not specifically
identified as the person firing the shot or even as a person holding the bag. The witness has
also not stated as to what part the other appellant played in the occurrence.

- A little lower down the witness proceeds: I never saw before the four persons who
had come to my brother's gher on the day of occurrence. I had come to the District Jail,
Aligarh to identify them. (The witness, having touched the accused Naubat and Budhsen,
stated) I identified them in jail. I saw them for the first time on the day of occurrence and
thereafter I saw them in jail at the time of identification. I did not see them anywhere in the
intervening period.

- The question naturally arises if on this state of his testimony the identification made
by Inderjit can be held to be a reliable piece of evidence on which the conviction of the
appellants can be sustained. In evaluating his testimony, we may appropriately consider how
far his description of the actual occurrence inspires confidence.

- We are asked to believe that one of the four assailants sat down near the head of
Hazarilal and pressed the legs of the latter with his own legs and he and the deceased were in
this position when one of the assailants fired at Hazarilal, who thereupon jumped down from
the cot.

- When we picture to ourselves the occurrence as narrated, we find it to be unrealistic

and, therefore, untrustworthy, if not fantastic. There is undoubtedly considerable
embellishment in the court version as compared to what was stated by the witness in the
F.I.R.
- This embellishment does not add to the credibility of the story but it certainly suggests
that the witness has a highly imaginative mind and is capable of playing on his imagination.
We, therefore, do not consider it to be safe to hold on his evidence that the two appellants
were among the assailants and that Naubat had fired the fatal shots.

PW 3:

- "Four unknown persons came, one of whom had a red jhola. One of them sat down on
head side of Hazarilal and another proceeded ahead. The remaining two caught hold of me
and Inderjit. Inderjit and I raised an alarm. The person having the red Jhola took out a pistol
from the Jhola and fired at Hazarilal. On being hit with the shot, Hazarilal fell down. The
badmash, who was sitting on the head side of Hazarilal, pressed his legs with his legs. Having
loaded the pistol, the person armed with pistol, fired a shot at Hazarilal. Hazarilal died. Ram
Singh Ranchor and Imam Khan arrived at the spot. The badmashes went away through the
eastern side.

- I did not know all the four badmashes from before. (Having touched Budhsen and
Naubat, the witness stated) I Identified them in jail. I saw these two accused at the spot for
the first time and thereafter in jail. I did not see them anywhere in the intervening period."

- In cross-examination the witness admitted that the assailants had been seen by him
only for about three or four minutes. He had gone to the jail for identification on three
occasions.

- On two occasions he identified the accused persons in separate parades but did not
identify anyone on his third visit.

SC observed: - "The third visit deposed by him seems to us to be a somewhat suspicious

circumstance and the prosecution has not cared even to attempt to explain this statement. The
witness was also unable to state as to which accused had been identified by him in the first
parade and which in the second. He was further unable to tell the dates on which he had gone
to the jail for identification. According to him he had gone to the jail at about 11 or 12
O'clock during the day time.

Their glimpses of the assailants would of course be somewhat fleeting but the different parts
played by the four assailants would certainly have left on their minds a fairly firm impression
as to what part the two appellants had played in that sordid drama.
The power to identify undoubtedly varies according to the power of observation and memory
of the identifier and an observation may be based upon small minutiae which a witness,
especially a rustic, uneducated villager may not be able to describe or explain.

PW 4:

- In this case P.W. 4 Ranchor did not know the difference between a minute and a
second. An illiterate villager may also at times be found to be more observant than an
educated man and his identification in a given case may impress the court without the witness
being able to formulate his reasons for the identification.

- But on the peculiar facts and circumstances of this case one would expect these two
witnesses to state what particular part these two appellants played in the course of the
occurrence. Without some clear indication to that effect it would be difficult for a judicial
mind to rely for conviction on the general assertion of these witnesses that the appellants
were among the assailants who murdered the deceased.

- His statement: - I heard the sound of a fire. Ram Singh and I rushed towards the
Nohra. When both of us were at a distance of 15 paces from the Nohra, I heard the sound of
another fire. I saw four unknown badmashes come out of the Nohra of Hazarilal. They ran
away towards the east. There badmashes were empty handed and one of the bad-mashes had
a Katta in his right hand and a red jhola in his left hand. I went to the Nohra and saw that
Hazarilal was lying dead and Inderjit and Kanwar Sen were present there. I had gone to the
District Jail in order to identify the badmashes (Having touched the accused Naubat and
Budhsen, the witness stated) I identified them in the District Jail. At first, I saw them running
away from the Nohra. Thereafter, I identified them in the District Jail. I never saw them in the
intervening per. (Having touched Naubat, accused, the witness stated. He had a Katta in his
right hand and a jhola in his left hand.

- In cross-examination he stated that he had gone to the District Jail, Aligarh twice for
identification In the first identification he identified the person who had a jhola in his hand
and at the second identification he recognised the other, Budhsen. He also stated that before
identification proceedings, the Deputy Sahib had enquired from him as to whom he had come
to identify to which he had replied that he had come to identify the persons who had
committed the murder of Hazarilal.
- This witness only saw the assailants when they were running away after the alleged
murder. Normally speaking, therefore, his would be a still more fleeting glimpse of the
assailants as compared to that of the two earlier witnesses. To sustain the conviction on his
evidence as to identification one would certainly expect a more firm and positive reference to
the appellant, who was holding a jhola and a Pistol (katta), during the identification parade.
Without such corroborative evidence the statement in court identifying Naubat, appellant,
would be of little value.

- This is not all. The statements of these three witnesses are otherwise also
unimpressive and coupled with the fact that the possibility of these persons having seen at
least Budhsen on October 21, 1967 outside the jail gates whom they are supposed to have
identified a week later the test identification parades cannot be considered to provide safe and
trustworthy evidence on which the appellants' conviction has been sustained by the high
Court.

- Counsel on behalf of the State very strongly argued that under Article 136 of the
Constitution this Court does not interfere with the conclusions of facts arrived at on
appreciation of evidence and in this case on consideration of the evidence relating to the test
identification parades two courts below have come to a positive conclusion that the appellants
were two out of the four unknown assailants of Hazarilal, deceased. This Court, so argued the
counsel, should affirm that conclusion in the absence of any proved legal infirmity.

- In regard to the sentence the counsel contended that this is a matter which rests in the
discretion of the trial court and when the sentence of death is confirmed by the High Court
this Court should not interfere on appeal under Article 136.

- It is undoubtedly true that under Article 136 this Court does not ordinarily interfere
with conclusions of fact properly arrived at by the High Court on appreciation of evidence on
the record, except where there is legal error or some disregard of the forms of legal process or
a violation of the principles of natural justice resulting in grave or substantial injustice

SC HELD:

- Before us the entire case depends on the identification of them appellants and this
identification is founded solely on test identification parades. The High Court does not seem
to have correctly appreciated the evidentiary value of these parades though they were
considered to be the primary evidence in support of the prosecution case.
- It seems to have proceeded on the erroneous legal assumption that it is a substantive
piece of evidence and that on the basis of that evidence alone the conviction can be sustained.
And then that court also ignored important evidence on the record in regard to the manner in
which the test identification parades were held, and other connected circumstances suggesting
that they were held more or less in a mechanical way without the necessary precautions being
taken to eliminate unfairness.

- This is clearly an erroneous way of dealing with the test identification parades and has
caused failure of justice. The counsel laid great emphasis on the fact that there is no enmity
shown between the witnesses and the appellants. In our opinion, though this factor is relevant
it cannot serve as a substitute for reliable admissible evidence required to establish the guilt
of the accused beyond reasonable doubt.

- The evidence in regard to identification having been discarded by us as legally infirm

and which does not connect the appellants with the alleged offence it cannot by itself sustain
the conviction of the appellants. Non-disclosure on the record as to how and when the
Investigating officer learned about the appellant’s complicity further adds to the lacuna in the
prosecution case.

- The accused were hence acquitted by the SC.

21 Feb 2022

SECTION 10

Where there is reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the persons believed
to be so conspiring, as well 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.

Thus, conspiracy consists in a combination or an agreement. Three essential elements:

(a) Two or more persons

(b) Agreement

(c) Unlawful purpose or criminal object

In civil cases, the principal is bound by the acts of his agent. In criminal cases, a person
cannot ordinarily be held responsible for the acts of others unless they have been instigated
by him or done with his consent. In other words, ordinarily there cannot be vicarious criminal
liability. So, we can say section 10 is an exception to this understanding of vicarious liability
in criminal cases.

This section provides that in prosecutions for conspiracy when consent and connections
between conspirators is reasonably believed to exist, whatever is said, done or written by
each conspirator in reference to their common intention is admissible as evidence against
others.

Section 10 is thus based on the principle of agency. When consent has once been proved, the
doctrine applies that each party is an agent for all others and acts done by on pursuance of the
common design are admissible against the fellow conspirators

The provisions of section 10 are wider than those of the English Law in two respects:

(a) Under the English Law, a act must have been done or declaration made in execution or in
furtherance of the common intention objects while under section 10, to establish the
admissibility of the act or declaration it is sufficient to show that it as in reference to the
common intention as the section 10 uses the words ‘in reference to’.

(b) under the English law the act of conspirator must have been done or declaration made
before the persons against whom it is sought to be given in evidence, ceased to be a member
of the conspiracy; in Indian law the act or declaration would be admitted even though it was
made after the person against whom it is sought to be given in evidence, terminated his
connection with the conspiracy.

Conditions: (1) There shall be a prima facie evidence affording a reasonable ground for a
court to believe that two or more persons, are members of a conspiracy (like a telephone call
or something); e.g. people will think only if A and B have agreed then it will be conspiracy. I
decided I will be committing murder, and I started searching on history regarding how to kill,
so this history or searching can be used by police. Now in evening I called B for help, I told
him I have planned murder and I won’t be able to do alone and said will you help me. Now in
evening there are two people. People will think my statement will be relevant only after
evening, but no! anything that I am doing from morning itself is relevant as soon as any one
of us is caught- because of the phase “after the time when such intention was first entertained
by any one of them” in the provision. Logic behind this- When B agreed to do the crime with
him, isn’t B sharing my intention? He knew I am wrong, but still agrees, so he adopted my
action.

(1) If the said condition is fulfilled, anything said, done or written by any one of them in
reference to their common intention will be evidence against the other;

(2) Anything said, done or written by him should have been said, done or written by him
after the intention was formed by any one of them; (A and B planned a bombing entire
February, buying items for bombing- in March a person C joined- now C joined after one
month but he will be liable for everything that happened in February too, because he adopted
their actions as soon as he agreed)

(3) It would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the conspiracy or after he
left it;

Image of flow chart- in PPT

A person will be liable even if on joining he did not have entire knowledge of previous acts,
as long as he has adopted the wrong, they are wanting to commit. (also, even if he says I
won’t do bombing with you guys, I will just drop you guys at location and pick up, he will be
liable under conspiracy for others’ acts)

It makes no difference at what time the party accused is proved to have entered into a
conspiracy or combination; because everyone who agrees with others to effect a common
illegal purpose, is generally considered in law as party to every act which either had before
been done, or may afterwards be done, by the confederates, in furtherance of the common
design. One or two individuals may have concocted the scheme, but all who afterwards join
in carrying it out are equally guilty with the originators.

Neither does it matter whether the acts were done, or the declarations made, in the presence
or in the absence of the accused, but everything said or done by any one of the conspirators or
accomplices in furtherance of the common object is evidence against each and all of the
parties concerned, whether they are present or absent, and whether or not they were
individually aware of what was taking place. (plan made in January, act done in December,
the time in between is conspiracy bracket and is relevant) (even if someone leaves
conspiracy, others who are part of conspiracy, their act is attributable to the one who left)
EXAMPLE for when the conspiracy ends?

A agreed to supply B only 1 packet of explosive, enough to blow a railway bridge. B along
with C utilized the explosive for the purpose of blowing up the aforesaid bridge. But the
attempt proved unsuccessful. On the next day B sent a letter to A describing the unsuccessful
attempt to damage the bridge and asked A to say if he could supply some further explosive
substances.

It was held, that the letter was not admissible against A as the common intention had ceased
to exist after the attempt to blow up the bridge had failed and the letter was written at the time
when the conspiracy had come to an end.

When a conspirator is arrested the conspiracy qua him comes to an end, the statements by
other conspirators after his arrest are not admissible against the person arrested. Similarly,
what he says against others is not admissible under Sec. 10 (though it may be relevant under
other Section)

A document written by a deceased female conspirator in which she described her

conversations with another conspirator in which she said that he told her that among his
revolutionary friends was the accused, to whom he was accustomed for guidance, is
admissible, as the statement, if proved, is itself a relevant fact by virtue of section 10.

If, after the arrest of a conspirator, papers are found on the person or at the lodgings of a co-
conspirator, they will be admissible against the former if there is evidence that they

existed previously to the arrest of the former. If there happens to be no such evidence, they
will be rejected.

So, this further letter is not relevant because agreement was made for one packet, once that
was used and attempt was unsuccessful, and thus conspiracy as far as A is concerned, ceased
to exist because they carried out the intention but did not succeed. Therefore, the second
letter is not relevant. Now, if there is a modification- say A says okay I am giving one packet,
if it is not successful, then I will provide more- in this case the letter would have been
relevant.

Section 30

Consideration of proved confession affecting person making it and others jointly under trial
for same offence. — When more persons than one is being tried jointly for the same offence,
and a confession made by one of such persons affecting himself and some other of such
persons is proved, the Court may take into consideration such confession as against such
other person as well as against the person who makes such confession.

The word ‘shall’ is not used in place of ‘may’ because a person should not be necessarily
responsible for what someone else says. Confession of A can be used but generally guilt of B
and C has to be proved, individually.

Illustrations- (a) A and B are jointly tried for the murder of C. It is proved that A said—"B
and I murdered C”. The Court may consider the effect of this confession as against B.

b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A
and B, and that B said— “A and I murdered C”. This statement may not be taken into
consideration by the Court against A, as B is not being jointly tried. - because for section 30
being tried jointly is an indispensable condition.

The requirement of Section 30 of the Evidence Act is that before it is made to operate against
the co- accused the confession should be strictly established. In other words, what must be
before the Court should be a confession proper and not a mere circumstance or an
information which could be an incriminating one.

Secondly, it being the confession of the maker, it is not to be treated as evidence within the
meaning of Section 3 of the Evidence Act against the non-maker co-accused and lastly, its
use depends on finding other evidence so as to connect the co-accused with crime and that
too as a corroborative piece.

It is only when the other evidence tendered against the co-accused points to his guilt then the
confession duly proved could be used against such co-accused if it appears to affect him as
lending support or assurance to such other evidence.

To attract the provisions of Section 30, it should for all purposes be a confession, that is a
statement containing an admission of guilt and not merely a statement raising the inference
with regard to such a guilt.

The evidence of co-accused cannot be considered under Section 30 of the Evidence Act,
where he was not tried jointly with the accused and where he did not make a statement
incriminating himself along with the accused.
As noted above, the confession of co-accused does not come within the definition of evidence
contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the

presence of the accused, and it cannot be tested by cross-examination. It is only when a

person admits guilty to the fullest extent, and exposes himself to the pains and penalties
provided for his guilt, there is a guarantee for his truth.

The proper way to approach a case of this kind is, first to marshal the evidence against the
accused excluding the confession altogether from consideration and see whether if it is
believed, a conviction could safely be based on it. If it is capable of belief independently of
the confession, then of course it is not necessary to call the confession in aid.

But cases may arise where the Judge is not prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to sustain a conviction. In such an event the
Judge may call in aid the confession and use it to lend assurance to the other evidence.

SECTION 11- ALIBI

Provision- When facts not otherwise relevant becomes relevant- Facts not otherwise relevant
are relevant: (1) if they are inconsistent with any fact in issue or relevant fact (prosecution’s
trying to prove that A murdered B in Delhi and defence proves that A was in Mumbai rather,
so this is inconsistent with fact in issue) ; (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. (a murder committed at 9 am, person X is charged, person X shows
that at 9:05 he was 15 Kms away from place of occurrence, but this is highly improbably that
he killed and then in 5 mins he covered 15 kms)

Illustrations: (a) The question is, whether A committed 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, is relevant. –
former is related to first part and latter to second.

Burden of proof in case of proving alibi is very strict and defence has to properly prove an
alibi.

(b) The question is whether A committed a crime. The circumstances are such that the crime
must have been committed either by A, B, C or D, every fact which shows that the crime
could have been committed by no one else and that it was not committed by either B, C or D,
is relevant. – this will make the fact highly probable that A has committed the crime. This is
not just sole thing to show that A is guilty, prosecution will prove other things also.

Section 11 declares the relevancy of a class of facts which in themselves are not relevant, but
which acquire relevancy by reason of their connection with some relevant fact on which the
prosecution relies for the purpose of proving its case against the accused.

This class of facts is highly valuable to the accused in support of his defence, because they
tend, together with the explanation offered by the accused of the circumstances appearing in
the evidence against him, to expose the infirmity of the prosecution case and to demolish the
inferential structure on which that case rests.

The accused can bring such a fact on record either by suggesting the existence to the
prosecution witnesses in their cross-examination, or by proving it through his own witnesses.
Whenever any such fact is sought to be produced by the accused the first question is whether
it is relevant.

CASE LAW: Dudh Nath Pandey v. State of UP (1981)

- Vijay Bhan/Pappoo (deceased) was the son of an advocate who died in about 1967
leaving behind a widow, three daughters and Pappoo.

- One of the sisters, Ranjana Kishore was a teacher in a school.

- The appellant, Dudh Nath Pandey, who was a motor-car driver by occupation, used to
live as a tenant in an out- house of a bungalow belonging to the family of the deceased.

- The appellant developed a fancy for Ranjana who was about 20 years of age when he
came to live in the out-house. The overtures made by the appellant to Ranjana created
resentment in her family and its only surviving male member, her brother Pappoo, took upon
himself the task of preventing the appellant from pursuing his sister.

- As a first step, the appellant was turned out of the out-house. Soon thereafter, he filed
an application before the City Magistrate, Allahabad, asking for the custody of Ranjana,
alleging that she was his lawfully wedded wife.
- That application was dismissed by the learned Magistrate after recording the
statement of Ranjana, in which she denied that she was married to the appellant

- The appellant thereafter filed a habeas corpus petition in the Allahabad High Court
alleging that Ranjana was detained unlawfully by the members of her family, including her
uncle, and asking that she be released from their custody. Ranjana denied in that proceedings
too that she was married to the appellant or that she was unlawfully detained by the members
of her family. The habeas corpus petition was dismissed by the High Court on November 8,
1973.

- On August 1, 1975, the Principal of her school made a complaint to the police that the
appellant had made indecent overtures to Ranjana. The appellant was arrested as a result of
that complaint.

- On November 1, 1976, Ranjana was having an evening stroll with her brother, the
deceased Pappoo, in the compound of their house.

- The appellant came to the house, abused Pappoo and is alleged to have threatened to
kill him, if he dared oppose his, the appellant's marriage with Ranjana.

- As a result of these various incidents and the family's growing concern for Ranjana's
safety, Pappoo used to escort Ranjana every morning to the school where she was teaching.

- On the following day, i.e. on November 2, 1976, Pappoo took Ranjana to her school
on his scooter as usual. The classes used to begin at 9-30 A.M. but Ranjana used to go to the
school 30 to 40 minutes before time for correcting the students' home-work. After dropping
Ranjana at the school, Pappoo started back for home on his scooter.

- While he was passing by the Children's Park, known as the Hathi Park, the appellant
is alleged to have fired at him with a country- made pistol. Pappoo fell down from his scooter
and died almost instantaneously.

- The occurrence is said to have been witnessed by Harish Chandra, a domestic servant
of the family of the deceased and by Harish Chandra's friend Ashok Kumar.

- Harish Chandra used to live in the out-house of the deceased's bungalow, while
Ashok Kumar, who generally lived at Kanpur, is said to have come to Allahabad the previous
day in search of employment.
- Almost immediately after Pappoo and Ranjana left the house on the scooter, Ashok
Kumar and Harish Chandra too left the house as the former wanted to see the Hathi Park.

- They were near about the gate of the park, which is a few steps away from the scene
of occurrence, when the deceased Pappoo was passing along on his scooter, after dropping
Ranjana at the school.

- Ashok Kumar and Harish Chandra are alleged to have seen the appellant, who was
standing near the northern boundary of the park, firing a shot at Pappoo.

- The appellant re-loaded his pistol and is said to have run away towards the south-east.

- Ashok Kumar and Harish Chandra rushed to the school in a rickshaw and informed
Ranjana Kishore about the murder of her brother.

- Ranjana went to the scene of incident along with them and on finding that her brother
was dead, she went straight to the police station which was about 2 kms. away.

- She wrote out the report (Ex. Ka-1) in her own hand and submitted it to the officer-in-
charge of the police station at 9-45 A.M.

- In the meantime, information of the murder had reached the police station of Colonel
Ganj, within the 'jurisdiction' of which the murder had taken place.

- The sub inspector attached to Colonel Ganj police station, went within minutes to the
scene of offence and, believing that Pappoo was alive, sent him in a jeep to the hospital.

- A little later, P. S. I. Chandrapal Singh of the Cannington police station arrived on the
scene and started the investigation. He took charge of an empty cartridge-shell and the
bloodstained earth and later, he sent the dead body of Pappoo for post mortem examination.

- P. S. I. Srivastava arrested the appellant at about 2- 30 P.M. while he was standing

near a pan-shop in front of the Indian Telephone Industries, Naini, where he used to work.

- The appellant was taken to the scene of offence where he made a certain statement
and took out a loaded pistol from a heap of rubbish lying on the Kamla Nehru Road, being
the direction in which he had run away after killing Pappoo.

- The Ballistic expert opined that the empty cartridge-shell, which was lying at the
scene of offence, was fired from that particular pistol.
- The Ballistic expert, Budul Rai, opined that the empty cartridge-shell, which was
lying at the scene of offence, was fired from that particular pistol.

- Dr G. S. Saxena, who conducted the post-mortem examination found a single gun-

shot injury on the left side of the chest of the deceased, below the armpit.

- The injury had caused seven pellet wounds, each measuring 1/3 inch in diameter.
Seven pellets were recovered from the body. The injury, according to Dr. Saxena, was
sufficient in the ordinary course of nature to cause death.

- The appellant stated in his defence that he used to live in the house of the deceased as
the guest of the family and not as a tenant and that Ranjana got intimate with him during that
period. He left the house because she told him that there was danger to his life.

- The murder of Pappoo, according to the appellant, was engineered by the maternal
uncle of the deceased.

- The appellant denied his hand in the murder, saying that he had no reason to do so
since the deceased's mother and the other members of the family desired that he should marry
Ranjana.

- The appellant examined five witnesses to prove his alibi, his contention being that he
was on duty at the Indian Telephone Industries, right from 8-30 A.M. on the date of the
incident and that he was arrested from inside the factory at about 2-30 P.M. while on duty.

- The prosecution examined 13 witnesses in support of its case that the appellant had
committed the murder of Pappoo. Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3) were
examined as eyewitnesses to the incident. Ranjana Kishore (P.W. 2) was examined to prove
the motive for the murder as also for showing that the deceased Pappoo had taken her to the
school on his scooter and that, soon thereafter, she was informed by the two eye-witnesses of
the murder. Ram Kishore (P.W. 4) was examined to prove the arrest of the appellant and the
recovery of the loaded pistol.

- P. S. I. Srivastava (P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about the
various steps taken during the course of investigation. Dr G. S. Saxena (P.W. 11) was
examined in order to show the nature of the injuries suffered by the deceased while Budul Rai
(P.W. 12) stated that the empty cartridge-shell which was lying at the scene of offence was
fired from the particular pistol which is stated to have been recovered at the instance of the
appellant. The other prosecution witnesses were mostly of a formal nature.

Court opined:

- Were this a case of circumstantial evidence, different considerations would have prevailed
because the balance of evidence after excluding the testimony of the two eye witnesses is not
of the standard required in cases dependent wholly on circumstantial evidence.

- Evidence of recovery of the pistol at the instance of the appellant cannot by itself
prove that he who pointed out the weapon wielded it in offence.

- The statement accompanying the discovery was vague to identify the authorship of
concealment, with the result that the pointing out of the weapon may at best prove the
appellant's knowledge as to where the weapon was kept.

- The evidence of the Ballistic expert carries the proof of the charge a significant step
ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo
was fired from the pistol which was pointed out by the appellant.

- The evidence surrounding the discovery of the pistol may not be discarded as wholly
untrue but it leaves a few significant questions unanswered and creates a sense of uneasiness
in the mind of a Criminal Court, the Court of conscience that it has to be: How could the
appellant have an opportunity to conceal the pistol in broad-day light on a public
thoroughfare?

- If he re-loaded the pistol as a measure of self-protection, as suggested by the

prosecution, why did he get rid of it so quickly by throwing it near the Hathi Park itself? And
how come that the police hit upon none better that Ram Kishore (P.W. 4) to witness the
discovery of the pistol? Ram Kishore had already deposed in seven different cases in favour
of the prosecution and was evidently at the beck and call of the police.

Eye witness: -

- It is true that Harish Chandra, who was working as a domestic servant with the
deceased's family, should normally have been doing his daily morning chores. Few masters
would permit a household servant to go away on a sight-seeing spree right in the morning.
But there are at least two plausible reasons which lend assurance to the claim that Harish
Chandra left the house almost immediately after the deceased Pappoo drove away with his
sister Ranjana.

- Ashok Kumar had come to Allahabad the previous evening and he wanted to go to the
Hathi Park where, though it is called a children's park, adults too, find their merriment.

- There is nothing fundamentally improbable in Ashok Kumar coming to Allahabad in

search of employment and equally, nothing inherently strange in the two friends going out on
a frolic. And though a small consideration, it is relevant that the normal morning routine of
Harish Chandra was to help in the kitchen but the 2nd November, 1976 was an Ekadashi day
and therefore, there was not much to do for him.

- The evidence of Ranjana (P.W. 2) shows beyond the manner of doubt that Harish
Chandra and Ashok Kumar broke to her the news of her brother's murder, while she was in
the school.

- The events after the murder happened in such quick succession that there was no time
for anyone to contrive and confabulate.

- Within ten minutes of the occurrence, Ranjana was informed of the incident by the
two eyewitnesses and within a few moments thereafter she went to the scene of the tragedy.

- Her F.I.R. was recorded at the police station at 9-45 a.m. A fact of preponderating
importance is that the story which Ranjana disclosed in the F.I.R. is precisely the same as the
witnesses, including herself, narrated in the Court.

- The FIR gives following details: - (1) that the appellant wanted to marry Ranjana and
was harassing her towards that end;

(2) that there was a quarrel between the appellant and Pappoo the previous evening, in which
the former gave a threat of life to the latter

(3) that Ranjana left for the school on the day of occurrence at 8-45 A.M.; and

(4) that soon thereafter Harish Chandra and Ashok Kumar met her at the school and
conveyed to her that they had gone to see the Hathi Park when, while Pappoo was passing
along the road, the Appellant fired a shot at him

Could she have conspired to create false evidence against appellant?- SC disagreed because
according to it:-
1) After the murder of her brother she could be in the right frame of mind to create so many
false evidences in such a short period of time. (That is involving 2 other people in the
conspiracy, filing false FIR etc). – This is a logical explanation by court because any normal
person would not be in a right frame of mind after such incident, in such short frame of mind

2) With the death of her brother, her own house was left without a male member. At home
was an ailing mother and two other sisters, more or less of her own age. There was no one to
advise her upon the hatching of a conspiracy to involve the appellant. (Issue in this statement-
Court in this statement is trying to say women are not independent agent, they are to be
instructed by a man and also they are denoting women are not capable of hatching a
conspiracy, it is a man who does do- Latter gives leeway to women offenders- such
assumptions are not for court to make- this statement was uncalled for)

Minor infirmities in the evidence of eye witnesses one side and concurrence of lower court
and HC with the evidences on the other side?

SC opined: - concurrence is not an insurance against the charge of perversity though a strong
case has to be made out in order to support the charge that findings of fact recorded by more
than one court are perverse, that is to say, they are such that no reasonable tribunal could
have recorded them.

Normal rule: - Concurrent findings ought not to be reviewed by this Court consists in the
assumption that it is not likely that two or more tribunals would come to the same conclusion
unless it is a just and fair conclusion to come to.

ALIBI

- Evidence led by the appellant to show that, at the relevant time, he was on duty at his
usual place of work at Naini has a certain amount of plausibility but that is about all: -

- The appellant examined five witnesses to prove his alibi, his contention being that he
was on duty at the Indian Telephone Industries, right from 8-30 A.M. on the date of the
incident and that he was arrested from inside the factory at about 2-30 P.M. while on duty.

- The argument being that he was at his desk at or about the time when the murder took
place and further, that he was arrested from within the factory.

- Can motive be attributed to the witnesses to save their colleague- SC refused to

attribute motive to the witnesses for defence simply because they said in their favour.
- SC rightly observed that this general bias against the defence witness should be
avoided.

SC observed: -Quite often, they tell lies but so do the prosecution witnesses

- SC observed that even if it is believed that Defence Witnesses 1 to 5 are right, their
evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to
prove that the appellant could not have been present near the Hathi Park at about 9-00 A.M.
when the murder of Pappoo was committed.

- The plea of alibi postulates the physical impossibility of the presence of the accused at
the scene of offence by reason of his presence at another place.

- The plea can therefore succeed only if it is shown that the accused was so far away at
the relevant time that he could not be present at the place where the crime was committed.

- The evidence of the defence witnesses, accepting it at its face value, is consistent with
the appellant's presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00
A.M. So short is the distance between the two points. The workers punch their cards when
they enter the factory but when they leave the factory, they do not have to punch the time of
their exit.

- The appellant, in all probability, went to the factory at the appointed hour, left it
immediately and went in search of his prey. He knew when, precisely, Pappoo would return
after dropping Ranjana at the school. The appellant appears to have attempted to go back to
his work but that involved the risk of the time of his re-entry being punched again. That is
how he was arrested at about 2- 30 P.M. while he was loitering near the pan-shop in front of
the factory. There is no truth in the claim that he was arrested from inside the factory.

Was the sentence of death proper?

- SC observed: - the rule is that for the offence of murder, the normal sentence is the
sentence of life imprisonment and not of death. In this case HC had confirmed the death
sentence.

- Court did not consider the sentence proper for two reasons: - (1) Appellant was
humiliated by the deceased a day before wherein his social status, being a poor car driver,
was commented upon. That rich and poor do not belong together. The court considered the
mental turmoil and him being socially wronged.
2) Harish Chandra and Ashok Kumar do not appear to have revealed the whole truth to the
Court. If the appellant had fired a shot at Pappoo while the latter was driving along on his
scooter, and if Pappoo, as is alleged, dropped dead, his scooter would have dragged him
ahead and in that process, he would have received some injury. The scooter too would have
been damaged, howsoever slightly.

- But it is strange that apart from the gun-shot wound, Pappoo had no other injury on
his person except an abrasion on the left side of the chest which was evidently caused by the
gun-shot itself. The scooter was not dragged at all, except for the mark of pellets. And, most
importantly, the scooter was not lying on the road but was "standing".

- Pappoo seems to have stopped on seeing the appellant and quite clearly, there was an
exchange of hot words between them which culminated in Pappoo's murder.

- SC observed that since a part of the crucial event has been screened from the Court's
scrutiny and the possibility of an altercation between the appellant and the deceased cannot
reasonably be excluded, the extreme penalty of death cannot be given.

- Court therefore confirmed the conviction for murder but set aside the death penalty
and sentenced him to life imprisonment.

CASE LAW: Jayanti Bhai Bhenkarbhai v. State of Gujarat (2002)

CHRONOLOGY

- Case of Murder- In an incident which took place in village Singpur of Taluk Songadh,
Gujarat on 6.7.1989 at about 8.30 p.m.

- Victim died on account of injuries inflicted on him.

- Nine accused persons were charged with having committed offences punishable under
Sections 302/149 and 147/148/452 IPC.

- Four accused persons were directed to be acquitted by the Trial Court as the charges
against them were not proved and they were entitled to the benefit of doubt.

- Accused Nos. 1, 3, 6, 7 and 9 were held guilty of having committed the offence
punishable under Section 302/149 IPC. These five accused persons were sentenced to
undergo imprisonment for life and a fine. They were further sentenced to undergo rigorous
imprisonment for one year each for having committed offences under Sections 147/148 and
452 IPC and also to pay a fine of Rs. 125/- and in default of payment to undergo further
imprisonment of one month each.

- The sentences were directed to run concurrently.

- All the five convicted accused persons preferred appeal before the High Court which
has been dismissed.

- Four of the accused persons have accepted the judgment of the High Court and have
not pursued challenge to their conviction upto this Court.

- It is only the accused No. 9 Jayanti bhai Bhenkar bhai who has filed this appeal by
special leave.

Sec. 141- Unlawful assembly—An assembly of five or more persons is designated an

“unlawful assembly”, if the common object of the persons composing that assembly is:-
(First)….

(Second)….

(Third) — To commit any mischief or criminal trespass, or other offence; or

Sec. 149- Every member of unlawful assembly guilty of offence committed in prosecution of
common object—If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person who, at the time
of the committing of that offence, is a member of the same assembly, is guilty of that offence.

FACTS (According to prosecution)

- Date of Incident - 6th July 1989, At around 6 pm one of the accused came to the
house of one Lalji (when he was not in house) and demanded liquor from his minor son
which was objected by his wife, there was some altercation.

- At this point Victim/Deceased and his brother intervened and asked him to leave, the
accused left threatening that he could see him later.

- At about 8.00 p.m. on the same day, accused returned to the house of the deceased
accompanied by 8 others. The accused persons were severally armed with knife, pestle,
sticks.
- The incident was witnessed by two brothers of the deceased. The accused persons fled
away after assaulting the victim.

- The brother went to police station at 6.00 a.m. on 7.7.1989 and filed the FIR.

- A cognizable offence was registered and investigation commenced.

- Shortly after the incident of assault victim succumbed to the injuries. Post-mortem on
the dead body was performed by Dr Surendra, Medical Officer. The deceased was found to
have sustained 22 injuries out of which 3 were incised wounds and remaining were contused
lacerated wounds or abrasions.

- The injuries were ante-mortem. The incised wounds could have been caused by sharp
cutting weapon such as knife while other injuries could have been caused by blunt object
such as stick, pestle or back portion of dharia.

QUESTION BEFORE SC- Whether Jayanti bhai, the accused-appellant can be held to have
participated in the incident of assault and a member of unlawful assembly?

- The accused denied his participation in the incident of assault on the deceased.

- His defence is that a day before the incident he had left village Singpur and gone to
Ahmedabad in order to attend hearing in an election appeal filed by him before Additional
Development Commissioner which was scheduled to be heard on 6.7.1989 at Gandhinagar.

- According to the accused-appellant there was yet another criminal case under wherein
he was accused and pending for trial in the Court of Judicial Magistrate at Vyara.

- Therein, also the date of hearing was appointed as 6.7.1989 and his personal
appearance was required.

- The election appeal had come up for hearing on 14.6.1989 and was adjourned for
hearing on 6.7.1989. DW 3 was his counsel in election case.

- DW-3 had, on the hearing being adjourned on 14.6.1989, sent a postcard to the
accused-appellant informing him that the hearing would positively take place on 6.7.1989
which he must attend.

- In the criminal case at Vyara DW-4 was the counsel appointed by the accused-
appellant.
- As the accused appellant could not have attended both the cases, i.e., the criminal case
at Vyara and the election appeal at Gandhi Nagar, both fixed for 6.7.1989, he had through
counsel, DW-4 moved an application in the Court of Judicial Magistrate, in the criminal case,
seeking exemption from personal appearance and an adjournment.

- This application was rejected on 6.7.1989 and the learned Judicial Magistrate at Vyara
directed warrants to be issued against the accused.

- However, the accused-appellant did attend the hearing before the Addl. Development
Commissioner on 6.7.1989. The hearing commenced after 11.00 a.m. and continued upto
2.30 p.m.

- The version of the defence proceeds to say that the accused-appellant went to see and
was going around the zoo at Ahmedabad for about half an hour commencing at 4.00 p.m.

- Thereafter, he went to Gandhi Nagar to meet one Rahulbhai who is employed as a

clerk in the Secretariat at Gandhi Nagar. He secured pass for entry in the Secretariat and he
signed the entry register wherein his name is mentioned alone with his signatures.

- The accused then returned to Ahmedabad and went to stay with one Manekhbai.

- It was at about midnight that Manekhbai and Dineshbhai went to see off the accused
appellant at the bus station at Ahmedabad where the accused-appellant boarded a bus
originating from a station in Rajasthan and proceeding to Songadh and reached Singpur in the
morning of 7.7.1989.

- This register was summoned in evidence and the accused-appellant appearing as

defence witness has deposed on oath to the entry made in his presence by the concerned clerk
and the signatures put up by him on the register.

- He also examined Kantilal Shah, Advocate DW-3 and Ramanbhai DW-5 clerk in the
office of the Additional Development Commissioner, According to Ramanbhai DW-5 the
Additional Development Commissioner was regular in coming to the office at 10.30 a.m. and
his routine was to attend to miscellaneous work, including disposal of the mail received, for
about half an hour and commence hearing of cases at 11.00 a.m. The appellant’s case was at
item No. 4. The first three cases did not proceed and therefore the hearing of the appellant’s
case was taken up at about 11.30 a.m. and lasted upto 2.00 or 2.30 p.m.
- In the records maintained in the office of Addl. Development Commissioner, the
presence of the accused-appellant alongwith his counsel Kantilal Shah DW-3 is recorded and
both have signed in token of their having attended the office of Addl. Development
Commissioner and participated in the hearing. Ramanbhai DW-5 has further deposed that he
used to remain present during the course of hearings by the Additional Development
Commissioner and take notes of the submissions made which he did on 6.7.1989 also.

- In view of the involvement of the accused-appellant having been alleged in the

incident, he moved an application to the Addl. Development Commissioner to issue
certificate showing his presence in the office of the Addl. Development Commissioner on
6.7.1989. Certificate in that regard was issued though the time at which the accused-appellant
was present before the Addl. Development Commissioner was not mentioned in the
certificate; obviously because record of such time is not maintained.

- The fact remains that the accused-appellant was in attendance in the office of
Additional Development Commissioner at Gandhinagar sometime after 11.00 a.m. on that
day. The post-card dated 19.6.1989 written by Kantilal Shah. Advocate to the accused-
appellant and sent through post bearing postal stamps and seals was produced in evidence
wherein it has been communicated by the counsel to the appellant that his default in
appearance on 14.6.1989 was viewed seriously and his appearance on 6.7.1989 was a must.

- On this very ground the appellant had moved an application before the judicial
Magistrate Vyara seeking exemption from personal appearance on 6.7.1989. In support of the
said application the post-card sent by advocate Kantilal Shah was filed. The record of this
application accompanied by post-card was summoned in the Trial Court and proved by
Dhansukhbai, Advocate DW-4 appearing for the accused-appellant before the Magistrate’s
Court at Vyara.

- The accused-appellant also produced in evidence two tickets of zoo purchased by him
for himself and Dineshbhai on 6.7.1989. He also produced the bus tickets issued by the
conductor of the bus by which he travelled from Ahmedabad to Singpur. The appellant had
boarded the bus at about 1.00 a.m., that is, a little after the midnight of 6.7.1989 and reached
Singpur in the morning of 7.7.1989.

- Having learnt of the accusation against him the accused-appellant had moved an
application on 10.7.1989 seeking anticipatory bail from the Sessions Courts. The application
was rejected. He pursued his prayer for anticipatory bail by moving the High Court but
thereat also he failed- in both these applications he had taken the plea of alibi.

- The investigating officer admitted during his cross examination that if the road is
clear and there are no obstructions then ST bus can reach Ahmedabad from Songadh village
in 8 hours.

- However, he further admitted that if one has to travel by ST bus from Songadh to
Ahmedabad then all ST buses go to Ahmedabad from Songadh invariably via Surat which
would take a little longer time.

- The High Court took into consideration the plea of alibi taken by the accused-
appellant and formed an opinion that the plea was not strictly proved as required so as to
completely exclude the possibility of the accused having been present at the place and time of
the incident. Even trial court had observed the same.

REASONS FOR REJECTION OF ALIBI BY TC AND HC

1. The reasons assigned by the High Court are that through the prosecution evidence the
involvement of the accused in the incident is proved beyond reasonable doubt.

2. As against this, the conduct of the accused-appellant appears to be unnatural

inasmuch as he did not promptly (that is, on 7.7.1989 itself) approach the investigating
officer to tell him that he was being falsely implicated as he was in fact in Ahmedabad on the
date and at the time of the incident.

3. In the opinion of the High Court the plea of alibi was not also fully substantiated in
view of non-examination of Dineshbhai, who had accompanied the accused in Ahmedabad
while he boarded the bus for Songarh and Rahulbhai, the clerk in the Secretariat to whom the
accused claims to have gone to meet at about 5.15 p.m. on 6.7.1989.

4. In the application for anticipatory bail the accused has stated his presence in the office
of Addl. Development Commissioner upto 1.00 p.m. only while later on he tried to improve
upon his version by pleading that he had remained present there upto 2.30 p.m.

Point to ne noted- Even the High Court while appreciating the defence evidence, had arrived
at a positive finding that the accused appellant has been able to prove by his evidence his
presence at about 11.00 a.m. at Gandhi Nagar in the office of Addl. Development
Commissioner.
EVIDENCE IN FAVOUR OF THE ACCUSED

1. Statement of Kantilal Shah, advocate DW-3

2. Statement of Ramanbhai DW-5, clerk who had deposed that the hearing before the
Addl. Development Commissioner had taken place on that date and that the accused was
present at the time of hearing. The hearing must have lasted for a reasonable length of time
assuming without holding that it had not continued up to 2 or 2.30 p.m.

3. The Secretariat register wherein the name and particulars of the accused appellant are
mentioned as one of the visitors to the Secretariat on that date along with the signatures of the
accused-appellant against the entry. This shows that on 6.7.1989 the accused did visit Gandhi
Nagar.

Thereafter, he may have left Gandhi Nagar for Songadh.

According to the available modes of transport he would have taken a bus from Gandhi Nagar
for Ahmedabad and from Ahmedabad he would have boarded a bus for Songadh which
would proceed via Surat Only.

A public transport required to cover a distance of about 300 Kms., allowing a reasonable
margin for time lost in stoppages on way, would take about 8 to 10 hours to reach Songadh.

It does not appear probable that the accused appellant could have reached Singpur and
participated in the incident which is said to have taken place at about 8.00 p.m.

On the next day the accused-appellant learnt of the Judicial Magistrate Vyara having turned
down his prayer for exemption from personal appearance before the Court at Vyara on
6.7.1989 and consequently having issued a warrant of arrest for securing the presence of
accused before him.

The accused-appellant rushed to Vyara, appeared in the Court and moved an application for
recalling warrant of arrest stating the factum of his presence before the Additional
Development Commissioner at Gandinagar on 6.7.1989. This application was allowed and
the warrant of arrest was recalled. These relevant facts have been deposed to by reference to
the documents from the record of the Judicial Magistrate, Vyara by Dhansukh Bai, Advocate,
DW-4.

PROBLEMS WITH THE PROSECUTION VERSION

1. All the four eye witnesses are not specific about the overt act attributed to this
accused-appellant. While some witnesses attribute two specific injuries on the person of the
deceased having been caused by this accused appellant, others only make a generalised
statement of this accused appellant also having participated in the assault.

2. No recovery has been made from the accused-appellant.

3. The incident took place at about 8 p.m. while the first information report of the
incident was lodged at 6 a.m. at a police station situated at a distance of about 10 to 12 Kms.
from the village where the incident took place. The F.I.R. cannot be said to be belated. But,
the fact remains that the first informant was in the company of a political rival of the accused-
appellant, soon after the incident and before and at the time of lodging of F.I.R. A possibility
of some embellishment having crept into the F.I.R. in view of the political influence wielded
by such opponent of the accused-appellant cannot be completely ruled out.

4. This accused-appellant, from the very beginning, no sooner he learnt of accusation

against him, took the defence of alibi by informing the necessary facts to the investigating
officer on 8.7.1989 itself.

Thereafter, this plea of alibi has been consistent and reflected in several documents of
undoubted veracity as also substantiated by the testimony of such witnesses who do not have
any animus to falsely depose in favour of the accused. There is also supporting documentary
evidence of unimpeachable veracity adduced in support of the defence plea.

NON-EXAMINATION OF TWO WITNESSES- EFFECT?

- Court observed that in view of the overwhelming evidence adduced by the accused-
appellant, the non-examination of Dinesh Bhai and Rahulbhai would not matter much.

- Rahulbhai (clerk at secretariat) could have only supplied some more details of the
visit of accused-appellant to him in the secretariat which visit cannot be doubted on account
of entries made in the visitors register.

- Dinesh Bhai (friend) could have spoken of the accused-appellant's stay at Ahmedabad
up to the mid-night of 6th and 7th July. 1989.

- But his non-examination would not affect impact of finding that during the delay at
least up to after the mid-day the accused was undoubtedly present in Ahmedabad and
Gandhinagar leaving aside the exact time whether up to 1.00 p.m. or 2.00 p.m. or 2.30 p.m.
- His such presence at Gandhinagar and Ahmedabad renders it highly improbable that
he could have been in or reached at, Singpur by 8.00 p.m. the same day.

CONCEPT OF ALIBI

- The word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used
for the defence taken by an accused that when the occurrence took place, he was so far away
from the place of occurrence that it is highly improbable that he would have participated in
the crime.

- Alibi is not an exception (a special or general) envisaged in the Indian Penal Code or
any other law.

- It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts
which are inconsistent with the fact in issue are relevant.

- The burden of proving commission of offence by the accused so as to fasten the

liability of guilty on him remains on the prosecution and would not be lessened by the mere
fact that the accused had adopted the defence of alibi.

- The plead of alibi taken by the accused needs to be considered only when the burden
which lies on the prosecution has been discharged satisfactorily.

- If the prosecution has failed in discharging its burden of proving the commission of
crime by the accused beyond any reasonable doubt, it may not be necessary to go into the
question whether the accused has succeeded in proving the defence of alibi

- But once the prosecution succeeds in discharging its burden then it is incumbent on
the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of
his presence at the place and time of occurrence.

- An obligation is cast on the Court to weigh in scales the evidence adduced by the
prosecution in proving of the guilt of the accused and the evidence adduced by the accused in
proving his defence of alibi.

- If the evidence adduced by the accused is of such a quality and of such a standard that
the Court may entertain some reasonable doubt regarding his presence at the place and time
of occurrence, the Court would evaluate the prosecution evidence to the see if the evidence
adduced on behalf of the prosecution leaves any slot available to fit therein the defence of
alibi.
- The burden of the accused is undoubtedly heavy. This flows from Section 103 of the
Evidence Act which provides that the burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence. However, while weighing the
prosecution case and the defence case, pitted against each other, if the balance tilts in favour
of the accused, the prosecution would fail and the accused would be entitled to benefit of that
reasonable doubt which would emerge in the mind of the Court.

DECISION

- Court observed that because of overwhelming defence evidence adduced by the

accused-appellant in support of his plea of alibi, a reasonable doubt is created in the
prosecution case so far as the participation of this accused-appellant in the incident is
concerned. The High Court had itself had arrived at a finding in favour of the accused-
appellant that his presence at Gandhi Nagar up to 11.00 a.m. on the date of the incident
cannot be doubted

- That being so, it is rendered high improbable if the accused-appellant could have
reached back village Singpur by the time the incident happened.

- For the foregoing reasons, SC held that the accused-appellant was entitled to benefit
of doubt his appeal was allowed and he was acquitted.

- But High Court had held five accused persons guilty and convicted them with the aid
of Section 149 IPC.

- With the acquittal of Jayanti Bhai Bhenkarbhai, the accused-appellant before us, the
number of culprits who participated in the incident is reduced to less than five and the charge
with the aid of Section 149 IPC falls the ground.

- SC observed that it could in exercise of the jurisdiction under Article 136 of the
Constitution, enter into the legality and propriety of the conviction of the non-appealing
accused persons also. However, in the facts and circumstances of the case, SC declined to do
so.

PAKALA NARAYAN SWAMI v. KING EMPEROR (1939) PC

- The appeal was by special leave from a judgment of the High Court of Patna who
affirmed the decision of the Sessions Judge at Berhampur who had convicted the appellant of
the murder of the victim and sentenced him to death.
- The appeal is based upon admission of certain evidence said to be made inadmissible
by provisions of the Code of Criminal Procedure and the Evidence Act:

(1) On Tuesday 23rd March 1937, at about noon the body of the deceased man was found
in a steel trunk in a third-class compartment at Puri

(2) The body had been cut into seven portions, and the medical evidence left no doubt
that the man had been murdered. A few days elapsed before identification but eventually the
body of the deceased was identified by his widow. He was a man of about 40 and had been
married about 22 years.

(3) The fact however remains that the deceased was in possession of these four
documents purporting to be signed by the wife of the accused. About 1919 the accused and
his wife were married.

(4) They seem at that time to have been in need, of money: and during 1936 the accused's
wife borrowed from the deceased man at various times and in relatively small sums an
amount of Rs. 3000 at interest at the rate of 18 per cent, per annum.

(5) About 50 letters and notes proving these transactions signed by the accused's wife
were found in the deceased man's house at Pithapur after his death.

(6) On Saturday 20th March 1937, the deceased man received a letter the contents of
which were not accurately proved but it was reasonably clear that it invited him to come that
day or next day to Berhampur. It was unsigned. The widow said that on that day her husband
showed her a letter and said that he was going to Berhampur as the appellant's wife had
written to him and told him to go and receive payment of his dues.

(7) The deceased left his house on Sunday 21st March in time to catch the train for
Berhampur.

(8) On Tuesday 23rd March his body was found in the train at Puri

(9) Police suspicion does not appear to have been directed against the accused and his
household until 4th April on which date the police visited the house, examined the inhabitants
and obtained a statement from the accused.

Evidence of prosecution
- Two employees in a shop at Berhampur where trunks were made and sold who gave
evidence that on Monday, 22nd March, in the afternoon the dhobi or washerman of the
accused called at the shop and ordered a trunk; that a trunk was taken to the accused's house
and shown to him and his wife. It was rejected as being too large, and a smaller one of the
size of the trunk in question was then delivered to the dhobi at the shop and he took it away.

- The witnesses identified the trunk in which the body was found as being the trunk of
their manufacture which was sold in the circumstances stated on the Monday afternoon.

- The dhobi was called and proved the purchase of a trunk after the rejection by the
accused of the first one brought from the shop. He however placed the date as being on a
Saturday.

- The Judge thought his evidence was unreliable and said that he ignored it.

- The prosecution then sought to prove that the accused took the trunk to the train in
which it was found on Tuesday, March 23. Evidence was given by a jetka driver who lived
near the accused that early in the morning some four months before the trial the accused had
come to his house and said he wanted a jetka : that he drove to the accused's house, a trunk
which was like the trunk in question was loaded on the jetka and he drove the accused with
the trunk to the station where the trunk was unloaded and taken into the station.

- Another witness spoke to seeing the accused at the station on the morning of March
23, when the train on which the trunk was found arrived. He could not say that he saw the
accused enter the train

- When the accused was examined by the police at his house on April 4, it is alleged
that he made the statement (which the defence sought to have rejected)

- The alleged statement was that the deceased had come to his house on the evening of
March 21, slept in one of the outhouse rooms for the night and left on the evening of the 22nd
by the passenger train.

- That on the morning of March 23 the accused went to the station with the jetka driver
in his jetka, and went off by the passenger train to Chhatarpur on some private business with
one Chiranjivirao.
- Hearing at the Chhatarpur station that this man was away, he returned by passenger
train and went to meet another person he, too, was absent, so the accused returned to
Berhampur by jetka.

- The statement was obviously important for it admitted that the murdered man arrived
at the accused's house on the 21st. Both courts admitted it (Sessions court and HC)

- On the 7th, a further search of the premises was made by the police, and, a bundle of
rags which apparently had been washed but contained bloodstains was found buried at a
depth of about 18 inches in the compound.

- Some rags also bloodstained were found in a box in the bathroom

- The trial judge accepted this evidence: on appeal HC thought that the articles found
were not on the premises when the police searched on the 4th

- Manohar Lall J. (HC) thought that the discovery was made under highly suspicious
circumstances and that no inference should be drawn against the accused in respect of it.

- In this state of the case their Lordships (PC) think that it would be unsafe to rely upon
the discoveries on April 7

Statement of Accused

- Before the magistrate the accused's statement was that he was not guilty.

- He had come to Berhampore on March 17 in connection with a lawsuit of which

he gave some particulars.

- He neither purchased the trunk through the washerman nor did he take it to any

place in any jetka.

- The deceased never came to his house at any time in March last.

- He did not know the deceased. At the trial he said that the statement he had made in
the lower court was correct. When asked by the judge whether he could suggest any reason
why so many witnesses should come and give evidence against him he said “The witnesses
are mistaken and the police are suffering from excessive zeal

Main question for our purpose

- Whether the statement of the widow that on March 20 the deceased had told he that he
was going to Berhampur as the accused's wife had written and told him to go and receive
payment of his dues was admissible under s. 32, sub-s. 1.

- It was argued that the statement must be made after the transaction has taken place,
that the person making it must be at any rate near death, that the “circumstances” can only
include the acts done when and where the death was caused.

- PC observed that the natural meaning of the words used does not convey any of these
limitations.

- The statement may be made before the cause of death has arisen, or before the
deceased has any reason to anticipate being killed. The circumstances must be circumstances
of the transaction: general expressions indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the occasion of the death will not be
admissible.

- But statements made by the deceased that he was proceeding to the spot where he was
in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular
person, or that he had been invited by such person to meet him would each of them be
circumstances of the transaction, and would be so whether the person was unknown, or was
not the person accused. Such a statement might indeed be exculpatory of the person accused

- Circumstances must have some proximate relation to the actual occurrence: though, as
for instance in a case of prolonged poisoning, they may be related to dates at a considerable
distance from the date of the actual fatal dose.

- It will be observed that “the circumstances” are of the transaction which resulted in
the death of the declarant. It is not necessary that there should be a known transaction other
than that the death of the declarant has ultimately been caused, for the condition of the
admissibility of the evidence is that “the cause of [the declarant's] death comes into question.

- In the present case the cause of the deceased's death comes into question. The
transaction is one in which the deceased was murdered on March 21 or 22: and his body was
found in a trunk proved to be bought on behalf of the accused.

- The statement made by the deceased on March 20 or 21 that he was setting out to the
place where the accused lived, and to meet a person, the wife of the accused, who lived in the
accused's house, appears clearly to be a statement as to some of the circumstances of the
transaction which resulted in his death. The statement was rightly admitted

- PC further observed that the statements given to police office were not admissible
WHY? What effect should that have on the appeal?

- There is other evidence of overwhelming strength to the same effect. It must be taken
to have been proved that a trunk was bought by order of the accused and taken to his house
on the afternoon of 22nd March. At about 6 A. M. on 23rd March, that trunk containing the
body of the deceased was placed on the train at the station of Berhampur having been
conveyed there in a vehicle ordered by the accused in which he and the trunk travelled to the
station.

- The deceased had on the day before set out from his house for the express purpose of
visiting the accused's house. In these circumstances there is ample evidence of the presence
of the deceased at the accused's house; the fact which alone the statement sought to establish

- Appeal was accordingly dismissed.