Evidence

20
Jul

PCS (J) Notes: Law of Evidence, Sec 26, Confession by accused while an custody of police not to be proved against him

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Section 26 provides that a confession to any person which is made in the custody of a police officer cannot  be proved against him, unless it is made before a magistrate. Magistrate records confession of accused who is in police custody in accordance with section 164 CrPC.

Meaning of “Police Custody”

Police Custody is taken in a wide sense. A policeman may lay his hand on person, handcuff him or tie his waist with a rope and take with him. Again a police officer may not even touch a person bbut may keep such control over him that the person so controlled cannot go any way he likes. A police officer who  has  taken some persons may leave him away from him for a short time.

The police officer in the real sense commences from the time where the movements of the accused are restricted or controlled and may be direct or indirect under police surveillance. The crucial test is whether at  the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them. In a case, a woman was taken into custody of the police, a  friend of the woman also accompanied her. The policeman left the woman with her friend for some time. In the mean times she confessed her guilt to her friend. The confession was held to be inadmissible because the woman was regarded to be in custody of the police inspite of the fact that the policeman was absent for short time.

In the case of Union of India v. Munna, (2004) 7 Sec 178, accused made a confession before custom authorities  the SC said that the admission of accused before custom authorities is not hit bby either section 25 or section 26 of the Indian Evidence Act, 1872. The effect of such admission before aforesaid authorities is a relevant factor.

12
Jul

PCS (J) Notes: Law of Evidence, Sec 25, Confession to police officer not to be proved

The principle behind it is to avoid the danger of admitting a false confession. A police officer on receiving information of the occurrence of a dacoity or other offence of a serious character, failing to discover the real culprits often implicate an innocent person lest they be accused of neglect. The police often put the person to severe torture and makes him to confess a guilt without having committed it and when such steps are taken there is impunity for real offender and encouragement to crime. A police officer is generally armed with large powers and is capable of exciting terror and extort false and involuntary confession. The section makes no distinction between a confession made before investigation and a confession made after investigation.

Person Accused of any offence

This expression used in the section means the person against whom evidence is sought to be in criminal proceeding, whether or not he was charged when he made the statement. A murder is committed in a locality. The sub-inspector investigates. During investigation B makes a confession to the police that it is he who murdered. Later on he is arrested and charged. Though the confession was made by B to the police officer when he was not an accused, his confession will be admissible at the trial because at the time of proving the case in the Court he was an accused.

Only Confession is excluded

All statements made to a police officer are not excluded. The statements that do not amount to confession are not excluded by section 25 and can be brought on record and proved against any accused. There was fight between two parties in which death was caused. Several persons of one party drove several cattle belonging to the deceased to the cattle-pound. Two of them made a statement to the police that the cattle of the deceased damaged their crops. While they were bringing cattle to the pound, the deceased interfered with the carrying of the cattle and so  there was a fight. They were charged with murder. It was held that  since the statement to the police did not amount to confession, in as much as it was only an exculpatory statement of the circumstances under which the cattle had been seized and was not an admission of guilt but  rather in the nature of a complaint against the deceased and therefore not admissible.

Made to Police Officer

                 A confession which is not made to police officer will not be excluded. The statement tobe excluded must be made to the police officer. The mere presence of the police officer will not make the statement irrelevant if it was made to some other person. In the case of Sitaram v. State of UP, AIR 1966 SC 1906; the accused wrote a letter as follows “My dear Darogaji, I have myself committed the murder of my wife Smt. Sindora Rani. Nobody, else perpetuated this crime. I would appear myself after 20 or 25 days and then will state everything. One day the law will extend its hand and will get me arrested. I would surrender myself.” The letter was kept near the dead body of Sindora and found by the S.I. it was held admissible.”

Who are police officers

                The important quantity of a police officer is that he must not only have the power to prosecute the criminal but to file a report against a criminal and to have the power to prosecute the criminal. Unless and until a person has power to make investigation and frame charge against the accused under section 173 of CrPC he cannot be called a Police officer within the meaning of section 25. In case of an officer not belonging to Police Force, the test is whether he has been conferred with all the powers of investigating offences including the power to initiate prosecution by submitting charge sheet. The prohibition of section applies only to confessions which are to be proved against the accused that is in support of prosecution case, and does not apply to statement on which the accused himself wishes to rely for his defence.

1
Jul

PCS (J) Notes: Law of Evidence, Section 19 & 20, Right and Liability of a party depends on the proof of the position or liability of another person

Section 19 & 20, Right and Liability of a party depends on the proof of the position or liability of another person

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According to section 19, where the right or liability of a party depends on the proof of the position or liability of another person, any admission made by such person would be relevant as against party to the suit.

A files a suit against B for possession of a house alleging that it belongs to him. B contends that the house belongs to him. A can lead evidence to the effect that B admitted his title the house in dispute out of the Court prior to the suit. Similarly B can prove admission made by A. The statement of tenant C is also relevant prove that to whom he has given rent. The position of tenant C is in issue regarding the collection of rent only.

Person Expressly referred to by party to suit- Section 20

Section 20 refers to admissions by those persons to whom the party has referred for some information on the matter in dispute. On reference, the party is bound by the declaration of person expressly referred to because it is deemed to have been said or done by himself. Section 20 will not apply to the mediator or arbitrator. Reference under section 20 may be by words or by conduct, but in any case there must be a clear admission to refer and such admissions are generally conclusive. By virtue of sec. 20 the statement of nominees of the parties would be treated as an admission of the parties. Essential conditions for the statement by reference:

  1. The party against whom admission is to be proved must have referred the matter.
  2. Will be admissible only when it relates strictly to the subject matter in relation to which            reference is made.
  3. Reference must be only for information and not for final adjudication or arbitrations.
  4. Reference must not be on a question of law.
  5. Reference should have been withdrawn before admission.

 ILLUSTRATION- A says to B “I will pay you the sum of rs. 20, if C says I owe it to you”, on reference C says “A owes Rs.200 to B”. This statement of C will be proved against A as his admission under sec.20

SILENCE:

               A party by his silence may admit the truth of the matter stated. A party’s  silence will render the statement made in his presence or hearing, evidence against him of their truth provided he keeps silent when he is reasonably called on to reply thereto. The law will not oblige a man who received as absurd or vexations notice to reply to it, and will not conclude from the mere fact of non-reply on the same an admission of the truth of allegation.

        ILLUSTRATION – A lady went to the school for the registration of her child but she did not fill the name and profession of the father. On being asked, she kept silent, her silence may mean that she does not know the name of the father or does not want to disclose it. It may mean admission of the illegitimacy of the child.

       ILLUSTRATION – The girl said to the boy “you always promised to marry me, and now you do not keep your words” The boy did not deny the allegations but offered her some money. The court can draw the inference of an admission of the promise by the silence and conduct of the boy.

Admission only of facts and not of law

              Admission of law, i.e., judicial admission are not admissible. Only those admissions that relate to facts are admissible. Reason being that no questions of law can be decided on the basis of an admission. Admission on point of law has no force against the party. However, under the English law admission of law is relevant. Even a mixed admission vis-à-vis question of fact and law is not binding.

Admission must be clear, precise and not vague or ambiguous. If an admission is open to different meanings, it cannot be taken into consideration.

Necessity  of an admission

         An admission reduces the work of the courts and other parties and saves their valuable time. Sec.58 of the act says that admissions need not be proved. However, if the Court desires, it may reject the admission wholly or partly or may ask for further proof.

Admission to be taken as a whole

The general rule is that admission cannot be split up and then used against the maker. But the Court in its discretion can believe one part of the statement and reject the  rest. Where an admission is made subject to conditions or qualifications, then conditions or qualifying part must also be tekn into consideration.

Circumstances and form of an Admission

Circumstances under which the admission are made are always of importance because it adds to the weight of the admission. As far as form of admission is concerned, there is no particular form, admission could be in any form (words, sign, silence or through conduct) or under any circumstances for e.g, overhearing an statement being made to his wife can be adduced as admission murmuring something to oneself may also be put forward as evidence.

Principle of Self Harming Interest

It is generally expected that a person would make a statement that favours him. And if these favourable statements were to be allowed to be used, it would be quite an easy task for everyone to speak something in one’s own favour and then bring it as evidence. But, supposing somebody says something that is detrimental to him or her, it is quite natural to suppose that s/he would be speaking the truth, for e.g, suppose, a shopkeeper makes an entry in his book to the effect that he owes a certain sum of money to a supplier of goods. This entry is against the interest of the shopkeeper and may be presumed to be correct. In a nutshell, this principle says nobody would declare anything against himself unless it were true. But there are certain exceptions to this general principle which have been laid down in section 21.

29
Jun

PCS (J) Notes: Law of Evidence, Sec 18, Persons whose admissions are relevant

Sec 18, Persons whose admissions are relevant

Admission by party to proceeding or his agent by suit or in representative character, by party interested in subject matter, by person from whom interest derived.

The section 18 dealing with the persons whose admissions are relevant, provides that admission can be made by the following persons.

  1. Parties to the suit or proceeding.
  2. Agents of the parties expressly or impliedly authorised.
  3. Parties to the suit suing or being sued in a representative character.
  4. Persons having any proprietary or pecuniary interest in the subject matter of the proceedings.
  5. Person from whom parties to the suit or proceeding derived their interest in the subject matter of the suit.

 

  1. Parties to the suit/Proceeding

Admission is the best evidence only against the party who has made it. “Parties” include not only those who appear on the record in that capacity, but also persons who are interested in the subject matter of the suit are considered as parties in interest and accordingly their admissions have the same weight as though they were parties on record. Conversely, a party on record who has no beneficial interest in the issues of the litigation will not be permitte4d to effect by his admission the substantive right of one for whom he is acting. In other words, in all these relations, substantive interest rather than form of record is regarded as determining factor. For Example, in a suit brought by a guardian for a minor the statement of the guardian will not be an admission against minor. Where there are several persons jointly interested in a suit, the rule is that admissions of anny one of them are receivable against himself and his fellows, whether jointly suing or sued or whether an action is brought in favour of or against any one of them separately. Reason being that if it were allowed, the plantiff might make one of his friends a defendant and thus may gain an unfair advantage.

 

  1. Agents of the parties

Three things are to be kept in mind before receiving an agent’s statements. Firstly, that the factum of agency must be proved before the admissions of agents can be received. Secondly, the agent should have either an express or implied authority to make the statement in question. And lastly, statements of agents must be made during the continuance of agency. By termination of agency, his authority to make admissions ceases.

 

  1. Parties to the suits suing or being sued in a representative character

 a. Admission by legal Counsel: A legal counsel has implied authority to make an admission on behalf of his client. Such an admission made by him shall be binding on his client whom he represents, only on matters of fact.

A statement of admission made by a legal Counsel, although he makes it without Consulting his client, is binding on the client, provided it is related to the subject matter of the suit and made under a misapprehension.

However, admission made by counsel on matter of law or on an issue of mixed question of law and facts are not binding on the party who he represents.

b. Admission by Agent: Admission made by an agent in the Course of business and within the scope of his employment shall be binding on the principal on the principle of vicarious liability. This is also in accordance with the maxim: “Qui Per Alium Facit Seipsum Fecere Videtur” (He who does an act through another is deemed in law to do it himself)

c. Admission by wife or husband: Admission made by the wife or husband shall not be binding on the other spouse unless the statement of admission is made by one spouse deriving interest in the property of the other spouse. However, admission made either by the wife or husband can be taken into consideration against the husband or wife as the case may be provided such statements of admissions are expressly or implicitly authorized.

d. Statements in a representative character:

A statement of admission made by a person suing or being sued in a representative character, shall be admission provided such statements were made while the party making them held that representative character.

Statement made by a person in representative character is relevant in a suit, if it was made during a time that he hold such character. Statement made by a person occupying the character or made in his personal capacity are not admissible.

 

  1. Persons having pecuniary or Proprietary Interest in the Subject Matter- Sec 18 (1)

The statement of person who, though not parties on record, have monetary or proprietary interest in the subject matter are relevant. But statements should be made in the chapter of their interest, for instance, the auction purchaser of the property has interest in the dispute of the property. Similarly, when certain goods were consigned for carriage, then consigner as well as consignee have interest in the goods. In a case certain goods are consigned for carriage, the consignor as well as consignee have an interest in the goods, so that if the goods are lost and the consignee sues the carrier, a statement by the consignor that the goods were properly stored shall be receivable against the consignee also.

  1. Persons from whom parties derive their interest- Section 18 (2)

The statement of persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissible. Such a person is called as “Predecessor in Title”. But, it is essential that the statement must have been made by the predecessor in title during the continuance of his interest in the subject matter, that is, while he was vested with the title. Predecessor in title may be:-

  1. By blood: An heir, an ancestor, or coparcenary
  2. By Law: An executor, testator, an administrator, receiver, trustee etc.
  3. By Voluntary Act: Lessor and lessee, doner and donee, seller and buyer, mortgager and mortgagee and so on.
26
Jun

PCS (J) Notes: Law of Evidence, Admission by Silence

Admission by Silence

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Where a statement substantially affecting a person’s material interest is made in his presence, and the circumstances are such that he would have certainly objected had it been incorrect, the silence on the part of such person can be deemed as admission provided the person has an obligation to speak and holds his tongue in breach of that obligation. In a case a suit was filed for breach of promise of marriage. It was proved that the plantiff said to the defendant, “you always promise to marry me, and you do not keep your word”. The defendant at that time did not deny the promise alleged by the plantiff in her statement. The Court of appeal held that from the silence and other conduct of the defendant the Jury might draw an inference of admission on the part of the plantiff, of the alleged promise.

Admission are also classified into two categories;

  • Formal admission, and
  • Informal Admission.

Formal admission are made deliberately with a view to dispense with the other proof.

Formal Admission also known as Judicial Admission are allowed to be proved under section 58 of the Evidence Act.

Section 58 refers to the following admission of facts and which facts need to be proved:

  1. Admission made in any judicial proceeding.
  2. Admission made by the parties in writing.
  3. Admission deemed by any rule of pleading in force.

Informal admission are usually made in the course of casual conversation in ignorance of the possibility of their being used in the future litigation.

26
Jun

PCS (J) Notes: Evidence Law, Nature and Form of Admission

Nature and Form of Admission

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Definition of Admission

To gather the definition of “admission”, Section17 along with section 118,19 and 20 have to be studied together. Section 17 lays down that statement oral or documentary or in electronic form which suggest any inference to any fact in issue or relevant fact made by persons and under the circumstances mentioned in section 18,19 and 20 are admission.

Nature of Admission

In the Course of Judicial proceeding several statements are made by the parties as to the suit and all these statements are known as self-regarding statements.

Seft regarding statements are classified into two categories.

  • Self Serving Statements
  • Self Harming Statements

 

Self-Serving statements are those which serve, promote or advance the interest of the person who makes them.

Self-harming statements are those which harm or prejudice or injure the interest of the person who makes them.

For Example- A files a suit against B alleging that B has borrowed Rs 1000/- from him and that B has defaulted. B denies the fact that he has borrowed the money. Prior to the filing of the suit A makes a statement made by him to C that he has borrowed Rs 1000/- and he has not paid it. A want to prove this statement made by him to C. A’s statement is a silf-serving statement as it serves only his own interest. It is a matter of common knowledge that person are always in the habit of making statements which favour themselves in order to promote their own interests. On the other hand, where A alleges that B has borrowed Rs 1000/- which B denies. A wants to prove the statement made by B to C that he borrowed Rs. 1000/- from A and he could not repay it. The nature of this statement by B is a self harming statement.

Form of Admission

Although section 17 refers to admissions by oral or written statements but in certain situations statements may also be inferred from the conduct of a person. Statements by conduct are also relevant under section 8 and section 14 of the Evidence Act.

  1. Admission need not be addressed to any particular person.
  2. Admission made in a state of Soliloquy are also provable.
  3. Further, admission can also be made by means of sign and gesture.

 

Admission as Waiver of Proof

When parties make an admission of fact it amounts to waiver of proof of such as fact.

But admissions can operate as waiver of proof in the course of judicial proceedings, only in the case of formal admissions but not in the case of informal admissions which are made casually.

Conditions for the Admissibility of Admissions

The following conditions have to be fulfilled in order to make admissions to be proved:

  1. Admissions of which evidence is sought to be given, must relate to the subject matter in issue.
  2. Admission must be in nature of self-harming form, that is, it must go against the interest of the market.
  3. Admission must be made by persons and in the circumstances mentioned under section 18-20 of the Evidence Act.

According to the case of Gaur Satyarajulu v. T.C. Panighrahi, ILR 1964 Cuttak 274; The right of a party cannot be defeated on the basis of his admission unless it is in clear and unambiguous term.

Ram Dayawala and Sons LTD v. Invested Impart AIR 1981 SC 2085. In a Civil Case, the admission made by party is  best evidence.

Ram Sahai v. Jai Prakash AIR 1993 MP 147; According to Justice R. C. Lahoti, when the litigant suggests or consents to a particular procedure, he cannot be permitted to change its validity. In a suit for eviction, a tenant holding a power of attorney for other tenants, admitted liability for arrears of rent. The admission was held to be binding on other tenants also.

 

 

25
Jun

PCS (J) Notes: Evidence, HEARSAY & DYING DECLARATION

CHAPTER 4

HEARSAY & DYING DECLARATION

 

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Ch.4.1 Persons who are not called witnesses: Sn.32 (Exceptions to Hearsay Evidence Rule)

The general rule of Evidence Act is that any oral evidence must be direct i.e, Hearsay evidence is not admissible. It must be given on oath and must be subject to cross-examination by the opposite party. Otherwise, the evidence is not admissible.

There is, however one exception to this rule. Under Sections. 32 & 33, there are four types of persons who are neither called before the court as witnesses, nor, are they subject to cross-examination. They are:

  1. i) those who are dead
  2. ii) those who cannot be found

iii) those who have become incapable of giving evidence

  1. iv) those whose presence cannot be procured except after reasonable delay or expense.

 

The reason for allowing such an evidence is one of necessity and it may be impossible, to apply the test of cross-examination to them. But the circumstances show that their statements are true and trustworthy.

  1. i) Dying Declaration: Statements made by a person as to the cause of his death or circumstances leading to his death, are relevant.
  2. ii) Business or Professional duty: The statements made by the above four classes of persons, in the course of business or professional duty are admissible. Eg. entries in books kept by them or in documents used by them, are relevant and admissible.

Entries made by a Surgeon in her dairy, regularly kept, stating the birth of A on a particular day is relevant fact.

iii) Pecuniary or other interests: Statements made by any of against the pecuniary interest or title, ii) exposing a person to criminal prosecution or damages in torts, are relevant and admissible.

The question is about the payment of rent to A. Letter by A’s deceased agent that the rents were received and were kept under A’s order are relevant

The question is about the legality of the wedding between A and B. The statements made by the clergy man (or officiating person) that the circumstances of that wedding were such that, it would be a crime, are relevant.

  1. iv) Custom or matters of general interest:

Opinion of such persons as to the existence of a public right of way, or a custom or a matter of general interest are relevant. But such an opinion must have been made before the controversy arose.

The question is whether there was a public right of way over a road. The opinion of the deceased village Headman that it was a public road is relevant.

  1. v) Relationship, Pedigree etc:

Statements made by such persons as to the relationship by blood, marriage or adoption, are relevant if they had some-special knowledge and if the statement was made before the controversy arose.

Similarly, when such statements of relationship are made in any will, or family pedigree or tombstone etc., they are relevant, if they had been made before the controversy arose.

The question is whether S is the adopted son of F. A statement by F, in his will that S is his adopted son is relevant.

  1. vi) Evidence tendered in earlier proceedings:

Evidence given by any such person in a judicial proceedings is relevant and admissible-in a subsequent proceeding if

  1. i) the proceedings were between the same parties, or their legalrepresentatives. ii) there was cross-examination

iii) the questions were substantially the same as in the second proceeding. Conclusions:

In all the above circumstances, the statements by the four classes persons are relevant and admissible. Though the rule is that Hearsay evidence is not admissible, in the above circumstances, the statements are admissible and hence, are exceptions to that rule.

 

Ch.4.2.Dying Declaration:

The general rule of evidence is that Hearsay evidence is not admissible. In other words, in the interest of justice, it is desirable that the person himself should give evidence (direct evidence) in a court, under a oath. Under Sn.32, Dying declaration is an exception to this rule. This is based on necessity and also on the fact that there is no better evidence available. Statement made by the deceased is relevant when it is in respect of

  1. i) cause of death and
  2. ii) circumstances which resulted in his death. Such a person must be under expectations of death at the .time of making it. The statement is admissible in Civil and Criminal proceedings, if the person dies thereafter.

Eg. a) The question is whether A was murdered by B. A dies of injuries received in a transaction in which she was ravished Statements by Aas to her cause of death are relevant.

 

The tongue of W, the wife was  cut off by her husband, H, He threw the tongue from the window and escaped from the hinder-door of his house. W yelled. Police arrived within seconds. The Sub-Inspector put certain question to W. W made gestures and then died. Held: the gestures recorded were admissible.

Statements by deceased D, about the rape committed by A the accused on her, are relevant.

Patient in hospital made certain statements which were recorded. She was discharged from hospital. After a few days she died. Held, declaration not admissible. Hence, declaration becomes admissible, when the person making it dies soon after making the statement.

Corroboration is not necessary. The Supreme Court in Khushal Rao Vs. State of Bombay, held that dying declaration was not a weak evidence.

 

 

16
Jun

PCS (J) Notes: Sec 164, CrPC, CONFESSION

CHAPTER 4, Sec.164 Cr.P.C., Confession:

Confession means admission by the accused of his guilt. The Magistrate may record a statement of confession made:

  1. i) In the course of investigation OR
  2. ii) At any time before the commencement of the trial. No confession can be recorded by the Police Officer. If recorded it is not admissible.

The Magistrate records the confession in the same manner as he records evidence.

In the Evidence Act Sn.27 and 28 deal with confession. Accordingly, confession must be recorded by the Magistrate only. Accused ‘A’ makes a statement. ‘I have thrown the dagger in a well. I have killed ‘D’ with it” Here, if in pursuance of the statement, the Police Officer discovers, the dagger, the fact that it was discovered is admissible in evidence. But the statement I have killed ‘D’ with it, is not allowed.

Confession is not to be used as substantive evidence. Procedure:

Before recording the confession, the Magistrate explains to the person making it that he is not bound to make it and that it may be used as evidence against him. The Magistrate records only if the statement is made by the person voluntarily. He must be fully convinced about the truth or the veracity of the statement. Even if there is an iota of suspicion about the truth, the Magistrate may refuse to record the confession.

Recording:

When recording, he makes a memorandum, explains to the accused that:

The accused is not bound to make a Confession, that if. made, his statement may be used against him as evidence. He must certify that the statement was voluntary, that it was done in his presence and hearing, that it was read over to him and admitted by him to be correct and that it contained a full and true account of the statement made by him.

At the foot of the memorandum, the Magistrate shall sign, seal and put the date.

Contents of the Memorandum:

The contents should be to the following effect:

“I have explained to the accused Sri………………………that he is not bound to make a confession; If he does so, same may be sued against him I further certify that the confession was voluntary, it was taken in his presence and hearing, that I read it over to him, that he admitted as correct that is was a full and true account of the confession made”

 

 

Signature of Magistrate with Seal and Date. Evidentary Value:

In Ram Kishan V. Harmit Kaur, the Supreme Court has held that the confession statement is not ‘substantive evidence’. It can be used to corroborate the evidence of a witness or to contradict him.

A Magistrate who has no jurisdiction is also empowered to record the confession but then the records are to be sent to the Magistrate who conducts the trial. (Brij Bhushan V.King).

In order to ensure that the confession is voluntary, it prohibits the detention of the accused in police custody, (when he is unwilling to make a confession before the Magistrate).