Evidence

16
Jun

PCS (J) Notes: CrPC, Sec 125, MAINTENANCE OF WIFE AND CHILDREN

Ch.3. Maintenance of Wife, Children and Parents:

Sn.125 Cr.P.C. deals with the provisions relating to maintenance of wife, children and parents. One essential duty of the husband is to maintain his wife and children if they are not in a position to maintain themselves. The Cr.P.C. provides for a speedy remedy. The details are provided for in Sn.125 Cr.P.C.

Changes made in the Cr.P.C.1973:

The Joint Committee appointed by the Parliament had made certain observations. On the basis of these, some changes have been introduced in Sn.125 Cr.P.C.

(i) The Magistrate may make an order if the wife is unable to maintain herself.

(ii) The benefit is available to the parents also.

(iii) The benefit is available to a divorced wife so long as she does not remarry. This secures social justice to women.

(iv) In respect of children, maintenance benefit is available up to 18 years. After that there is maintenance, only if the child is under a physical or mental abnormality or injury unable to maintain itself.

A husband having sufficient means, may neglect to maintain his wife and children and parents. The Children may be legitimate or illegitimate. The wife and children and father and mother if they are unable to maintain themselves may move an application before the concerned Magistrate. If the Magistrate is satisfied about negligence or refusal of the husband to maintain his wife, children or parents he may make an order against the husband for payment of a monthly allowance. Such amount shall not exceed Rs.500/- per month. The Magistrate may order the payment to the applicant.

The amount becomes payable from the date of the order or from the date of the application by the wife. This is decided by the Magistrate.

 Who can claim maintenance under section 125?

(a) Wife – Sec 125 (1) (a)

(b) Child – Sec 125 (1) (b) and 125 (1) (c)

(c) Father/mother – Sec 125 (1) (d)

Enforcement of the Order:

The Magistrate, if he finds that the husband though he had sufficient means has failed to comply with the order, without any reason, may for every such breach, issue a warrant and may sentence the person to imprisonment for a month or until the amount is paid. The husband may offer to maintain his wife, if she is willing to live with him. But if the wife refuses on the ground that the husband has married another wife or has kept a mistress then it is a valid ground for her to refuse to live with him and to live separately.

Limitations:

  1. i) The amount should be claimed by the wife within a year from the date of the order of the Magistrate.

ii)The wife is not entitled to receive maintenance if she is living in adultery.

iii) She cannot get maintenance if, without proper reason, she refuses to live with the husband.

  1. iv) She cannot get maintenance if she is living separately with mutual consent.

If the above grounds are shown, the Magistrate may cancel the order of the maintenance.

Recording of Evidence:

The Magistrate shall record the evidence in the presence of the husband or his advocate. He shall follow the procedure of a summons case trial. He can also proceed Ex-parte (absence of the husband) if the husband wilfully neglects to attend the court. The ex-parte order can be cancelled within three months if there is a strong reason.

Muslim Women’s Right to Claim Maintenance

The Criminal Procedure Code being a uniform code applies to all sections of the society which includes the muslim community as well. The Supreme Court in Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, has held that section 125 CrPC being a Uniform Code applies to all irrespective of their religion and declared that clause  (b) of Explanation to section 125 contains no word of limitation which can justify exclusion of muslim woman. There had been a lot of

hue and cry by Muslim fundamentalists after this revolutionary judgment. Consequently, the Central Government was compelled to bring legislation nullifying the judgment of the Supreme Court. The parliament enacted the Muslim Woman (Protection & Divorce) Act, 1986 according to which the divorced muslim’s wife’s claim will now be determined by this Act.  According to the Act the Muslim divorced woman can claim maintenance only during the period of iddat (which is in consonance with personal law). 1986 Act took one retrograde step in the form that it said that husband’s liability to provide for maintenance is for iddat period only. The judicial innovation has been killed by 1986 Act. Therefore, many High Court have decision that even after this Act muslim’s woman right to maintenance is intact. Section 4 of 1986 Act provides that Muslim woman is not entitled to claim maintenance after the iddat period. So this Act makes the decision of the Shah Bano case nugatory. Afer iddat period the Act abrogates any other law (including CrPC) meaning thereby that section 125 of the Code will not be available after iddat period as per section 4 of 1986 Act. This section therefore stops application of section 125 CrPC and permits only muslim personal law that after divorce she is entitled to maintenance only during period of iddat.

The position of law has been made reasonable in the Supreme Court’s decision in Daniel Latif’s v. Union of India, (2001) 7 SCC 740, and it was held that muslim husband is liable to make reasonable and fair provison for the future of divorced wife which obviously includes her maintenance as well but such a reasonable and fair provision extending beyond iddat period must be made by husband within iddat period (as per provision of section 3 (1) (a)), according to which a reasonable and fair provision is to be made and paid to her within the iddat period by her former husband.

Scope of the Order:

The monthly allowance may be increased if there are sufficient reasons. However the maximum is Rs.500/- per month. The Magistrate shall give a copy of the order to the wife and such an order may be enforced by any Magistrate in any place in India where the husband may live. Such Magistrate has the same powers to enforce the order, as the Magistrate who made the order for maintenance.

14
Jun

PCS (J) Notes: Indian Evidence Act, Ch.1.10. Expert Witness (Sn. 45)

Ch.1.10. Expert Witness (Sn. 45)

 

An expert witness is one who has devoted his time and study to a special branch of learning and so is skilled specially on the points on which he gives the opinion. His evidence is admissible, doctors surgeons, engineers, fingerprint and Handwriting experts, Chemical examiners etc, are Expert witnesses.

 

The principle of the Evidence Act is that the “opinion evidence” should not be entertained. Expert opinion is an exception to this rule.

Opinion of experts on points of i) Foreign Law ii) Art iii) Identity of handwriting or fingerprints or other impressions, are admissible as facts in evidence.

 

Eg.: i) The question is whether ‘A’ died of poison. The opinion of an expert relating to the symptoms of such poison is relevant.

 

  1. ii) The question is whether a signature is that of ‘A’. Handwriting experts opinion is relevan In the Meerut Conspiracy case, the Supreme Court laid down that after hearing experts

opinion the court’may come to its own conclusions and it is not bound by experts opinion.

 

The experts opinion is rebuttable. Facts which support or are inconsistent with experts opinions are relevant to rebut or affirm such opinions. Eg. : A was poisoned by B. The fact other persons showed similar symptoms with that poison, is relevant.

In Aziz Banu Vs M.Ibrahim, witness W was examined as an expert in Muslim law. The High Court, rejected this and held that the evidence was inadmissible. The Court must decide the law, not the witness. But experts may be witnesses to prove foreign law.

14
Jun

PCS (J) Notes: Indian Evidence Act: Ch.1.6. Judgment in Rem and Judgment in Personam (Sn.41)

Ch.1.6. Judgment in Rem (Sn.41):

 

(i) A judgment in rem, is conclusive not only against the parties, but also against all the world (Norton). The judgment must been given upon the status of some particular subject matter and it must be by a competent court. Any person who is affected by the decision may appear and assert his own rights by becoming an actual party to the proceedings.

 

The leading case in Kanhya Vs. Radha, where Peacock J. laiddown this rule.

A judgment in rem of a Competent Court which is exercising its jurisdiction in probate, Martimonial, Admiralty or Insolvency is binding on all persons, whether parties or privies or strangers. It is a conclusive proof of the legal character.

(ii) The legal character is the one that the judgment in rem confers, takes away or declares, in it’s judgment. It may declare the property rights of any person. It is conclusive in regard to the martial status of parties, insolvency, probate and admiralty. Eg. Decree of divorce, of granting probate of status in insolvency etc.

Testator T dies leaving a will, with E as his executor. A,B,C & D dispute the will. The probate court decides that the will is genuine, it grants probate to E. This is binding on A,B,C, & D, and, also on all persons in the world. It is conclusive.

(iii) It may be impeached by proving: That the court,had no jurisdiction.

That the judgment was obtained by fraud. That it was not given on merits.

That it was not final,

iv) Judgment in Personam:

This is the judgment of the court binding on the parties to the case only or their legal representatives, on the matters decided by the court. Judgments in Contracts, Torts, etc., fall to this category.

Such judgments are not a bar between strangers or between a party to the judgment and a stranger. There is one exception. When the judgment relates to a matterof Public nature, it may be relevant.

A sues B for trespass on his land. B alleges that there was a public right of way. A denies. In a previous suit between Aand C there was a decree in favor of C for public right of way on the same land. Such a decree, is relevant but not conclusive.

 

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14
Jun

PCS (J) Notes: Indian Evidence Act, Sec 15, Accidental or Intentional Acts

  • Accidental,
  • Intentional,
  • Done with a particular knowledge or intention,

The fact that such act formed part or a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

 

This previous section dealt with all cases in which mental state or bodily state is involved, whereas the present sections picks out only those cases where the question is whether a particular act is accidental or intentional. This section is a particular application of the general rule laid down in the previous section. Under this section, evidences of similar facts can be adduced in order to overthrow the defence that the act in question was a mere accident and not done with a particular intention.

A good illustration on this section is a Privy council case of Makin v. Attorney General for New South Wales, (1894) AC 57.in this case, the accused John and his wife Sarah Makin were prosecuted for the murder of a child whom they had earlier adopted from his parents. The body of the child was found buried in the yard of the house which they occupied for the time being. Their defence was that the child had died of natural causes. In order to overthrow this defence, evidence was offered to show that on earlier occasions also they had adopted babies and in each case the body of the baby was found buried in the respective house which they occupied from time to time.

This section would came into play only when it is doubtful as to whether the act was intentional or accidental, but where the act in question is apparaently intentional and there is no suggestion of accident, section 15 would not operate. This was pointed out by the C alcutta High Court in Emperor v. Panchu Das, (1920) ILR 47 Cal 671. In this case, the accused Panchu Das sometimes in 1914, introduced himself to a rich prostitute as a Raja’s or a Zamindar’s son. She agreed to become his mistress and allowed to visit her. In a day or two he introduced another man as his doorkeeper (darwan). Both of them regularly visited her and then suddenly disappeared and all the three women in succession lost their cash and ornaments.

In their trial for the murder and robbery of the first woman, the question of the admissibility of subsequent similar occurrences arose.  Majority held that such evidence was not relevant under any of the provisions of the act. It was not a question of the act being accidental or intentional. The woman was undoubtedly murdered in a brutal she possed both in her room or on her person had been stolen. There was no room for any doubt that the acts with which the accused were charged were intentional.

Thus where person was foolish enough to drown his three successive wives in the bath tub shortly after undergoing same form of marriage with them, the earlier two deaths were held to be relevant in his prosecutions for the third death showing that the death in each case was intentional or that he had the intention to cause death. Where the accused was prosecuted for causing the death of 2 women cyclist by driving his car against them, the fact that on two earlier occasional and one subsequent occasion he had driven at woman cyclists was held to be relevant as showing that in

Each case he was deliberate. [R. v. Mortimer, (1936) 25 Cr. App. R 150]

Such evidence is admissible, under section 15 itself, the restriction imposed by section 14 that facts must show the intention or knowledge towards the particular person or offences in question, should not be applicable. As long as they are similar occurrences, the evidence will be relevant even if other similar offences was against other persons and not towards the victim in question, for the evidence shows that in each case the man was intentional. From this point of view the judgment of the minority in Emperor v. Ranchudas, is to be preferred to that of the majority. The minority felt that the fact that the accused had committed similar offences towards other prostitutes showed that they intended to cause harm to each successive victim. It was not necessary for the relevancy of the evidence that the defence of accident should have been set up.

In considering this section a doubt may arise with respect to illustration (o) to section 14. Why should not the fact that A was in the habit of shooting at other people be relevant as forming “system” evidence under this section. It would not be because the question that arises in the illustration is whether A shot at B and not whether the killing of B was accidental or intentional. The matter depends on the unsoundness of the occurrence, the number of times it was repeated, each additional case increasing the improbability of accident.

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13
Jun

PCS (J) Notes: Evidence Act, Sec 14, State of mind, body or bodily feeling

Facts showing- (a) The existence of any state of mind, such as intention [illus. 9i) & (j)], knowledge [illus. (a), (b), (c) & (d)], good faith [illus. (f), (g) & (h)], negligence [illus. (n)], rashness [illus. (k)], ill-will [iilus. (e)], or goodwill towards any particular person; or

(b) the existence of any state of body or bodily feeling, [illus. (i) & (m)]-

Are relevant when the existence of any such state of mind, or body, or bodily feeling is in issue or is relevant.

This section declares the facts, which show the existence of any state of mind, such as, intention, knowledge, negligence, good faith, ill-will, rashness, goodwill or  body, or bodily feeling are relevant when such state of mind or body or bodily feeling is in issue or relevant. What has to be kept inmind is that this section admits of evidence only to the extent of proving state of mind, body or bodily feeling and not to prove the existence of the fact in issue, for eg. In murder case this section would only admit as regards the state of mind of the accused and not as regards whether the murder was actually committed.

State of mind:

In most crimes as well as civil wrongs, the state of mind of the accused or of the defendant is an important of the offence. For eg. A person is liable for receiving stolen property (Sec 411 IPC) only if and if he had the  “knowledge” of the fact that the property in question was stolen. As per section 3, facts are either physical or psychological. The fact of his receiving stolen property can be seen through eyes by anybody present on the scene of the occurrence. But, whether he had the “knowledge” that the property was stolen is not possible for others to gauge. Psychological facts are the subject of consciousness and mind of a man is their seat. This mental state cannot be perceived y others. They themselves know it and can state them. If they themselves are allowed to state their state of mind, then most of the criminals would go unpunished. Even then, a man’s state mind is a matter of fact capable of proof. The state of mind cannot be established through direct proof, for example, through the testimony of witness: their existence can only be ascertained either by the confession of the person whose mind is their seat, or by presumptive inferences from physical facts.

This section does not seem to lay down any principle. It rather leaves the whole thing at the discretion of the court. The section says that in essence that when a state of mind has to be proved every fact from which it can be inferred is relevant. Thus evidence can be given to prove the mental state that the stolen property was received with knowledge that it was stolen, it may be shown that he was in possession of many other stolen articles or he was hiding them or was willing to sell the same away at a throw away price. The accused may show that he refused to sell below its natural price, as this would show his bonafide possession.

Intention- Illustration (i) & (j) deal with intention.

Knowledge- Illustration (a), (b), (c), (d)

Good faith/Bad Faith- Illustration (f), (g), (h)

Negligence- Illustration (n)

Rashness- Illustration (k)

Ill-will- Illustation (e)

Explanation 1: Illustration (o) & (p)

This explanation lays an important restriction upon this scope of the section as regards the state of mind. The explanation is to the effect that in order to prove a state of mind, evidence can be given of only such facts as will prove the state of mind not in general, but in reference to the particular matter in question. For example, where A is prosecuted for intentionally shooting down B, it may be shown that he previously attempted to shoot down the B in order to p[rove his guilty state of mind, but not of the fact that he is in the habit of intentionally shooting at people.

In case of R v. Prabhudas, (1874) 11 Bom 90, the accused was found in possession of a number of documents apparently forged or being prepared for the purpose. It was held not relevant in a prosecution for forging a promissory note as it would only show a tendency to commit crimes of a class and not an intention to commit the particular crime.

In Emperor v. Haji Sher Mohd. (1921) 52 Bom LR 214, the accused were charged under section 400, IPC for belonging to gang of habitual dacoits. The prosecution sought to prove that some of the accused had been previously convicted to theft or had been ordered to give security for good behaviour on the ground of being habitual thieves. It was held that the evidence was not admissible under section 14 because the offence of which the accused were being tried was particular one of belonging to a gang of dacioits and simple theft or bad livelihood would not show an intention to belong to a gang of dacoits. What has to be shown is a conduct of exact description and not of similar description.

The case that the court has to exercise is to see that when for the purpose of proving a particular state of mind, evidence is offered of other crimes in which the accused was  involved, they must be crimes of p[precisely the same kind with which the accused  is presently charged. Where the charge is that of intentional murder and robbery, instances of other dacoites by the same person would not be relevant, for they would not show an intention to cause the death of a particular person but where the charge is that of bogus transaction for imparting innocent looks to a shady deal, subsequent bogus transaction to cover up the earlier ones would be relevant as this would go to rebut the defence of a person mixed up in the transaction that his involvement was for an innocent purpose.

Evidence of previous convictions (Expn 2)

The second explanation says that where by virtue of the provisions in section 14 the previous commission of an offence by a person is relevant, the previous conviction of such person shall also be relevant to prove the particular state of mind or of body. Ordinarily previous convictions are not allowed to be brought before the judge for the year that they will unnecessarily prejudice his mind against the accused.  The record for previous conviction is  at best an evidence of bad character and section 54 excludes such evidence. Bad character proves neither the commission of offence nor the intention to commit it. In a case before the Supreme Court (Ram Lakhan Singh v. State of UP, AIR 1977 SC 1936) a witness told the trial court that the accused had been convicted for an earlier offence and that the belonged to a family of law breakers. Their lordship cautioned that such evidence should not have been admitted by the session Judge. But section 14 permits evidence of previous offences to be admitted whenever this is necessary to prove a particular state of mind or of body, and all that the second explanation says is that in such cases the previous conviction of the accused should also be relevant.

State of body or bodily feeling

Under this section, evidence can also be given of facts which state of a person’s body or bodily feeling can be inferred. In this regard, the statement of the affected person is a crucial, as he alone knows best of his body. The English case of Aveson v. Kinnaird, is a good illustration on the point as to show statements can give clue to bodily feelings. Illustration (m) is based on facts of this case. In this case there was an action upon a policy of life insurance on theof the plaintiff’s wife. She having died, the question was whether the statements, of the good health of the assured given at the time of affecting the policy were false. At about the time in question, she had received a visitor whom she had told in the course of casual conversation that she was in a bad state of health. The Court allowed the visitor to give evidence of this fact. The Court pointed out that statement wqas of her own account of the cause of action and of her bodily infirmity and she had made it unawares before she could contrive any statement for her own or her husband’s advantage and, therefore it was relevant.

Statement about one’s own bodily feeling are often of self-serving nature. Therefore, they should be taken into account with caution. And, section 21 provides that caution, according to which person is not permitted to prove his own statement as to the existence of any state mind or body unless the statement was made at about the time when such state of mind or body existed and it was accompanied by conduct rendering its falsehood improbable.

Similar facts, whether relevant

The Evidence Act does not make a mention of “similar facts”. However, there is nothing in the Act which prevents evidence of similar facts. But a note of caution has to be struck. Every case has to be tried on the basis of its own facts and not on the facts and decisions of other cases. A person charged with theft, the fact that he had been guilty of several thefts before, will not prove that he is guilty of present theft. Thus the evidence of similar facts, even if by the same person, is useless unless it has some probative value in reference to a fact in controversy.

As a general rule in order to prove that he accused is guilty of theft, the evidence of past or subsequent theft committed by him be are admissible, but with the following two limitations.

  1. Firstly, under the present section (section 14) similar occurrences are admissible only to the extent to show the state of mind of the accused and not to prove the existence of the fact in issue. Such similar facts can adduced in evidence only when the issue in question is the state of mind, that is, after the main fact in issue has been established (main issue is whether the theft was actually committed or not)
  2. And secondly, under the nest section 15 to overthrow the defence of the act ion question being a mere accident.

 

Where a man is on his trial for a specific crime such as forging a note or coin or receiving a stolen property, the issue is whether he is guilty of that particular act. To admit, therefore, as evidence against him to the effect that her is guilty of that particular act. To admit, therefore, as evidence against him to the effect that he forged notes or received stolen articles in the pasty is to introduce collateral fact. This cannot be done with the object of inducing the court to infer that because has committed a crime of similar description on other occasions he is to be presumed to have done the present act, but this evidence can be relied upon to establish to prove the criminal intent.

Illustration: A is charged of receiving stolen property knowing it to stolen. This offence is constituted of two facts:

  • That he received a stolen property, and
  • That at the time he received the property he knew it to be stolen. The fact that A was in possession of the stolen property. It has to ber proved by direct evidence. To prove that he received it with the “knowledge” of it being stolen; evidence may be led to the effect that at the same time A was in possession of many other stolen properties. Similar acts may be proved under section 14 to prove the state of mind of the accused, such as, intention, knowledge etc but they cannot be admissible to prove the commission of the actual act.

 

 

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9
Jun

PCS (J) Notes. Indian Evidence Act, Sec 13, Rules for proving Customs & Rights

Section 13 lays down rules of evidence for the proof of customs and rights. The section applies to all kinds of rights, like full ownership, or rights like a right of easement or a right of way. Similarly it applies to all customs, ancient as well as to those of a comparatively recent origin. The latters are usually referred to as usages.

Customs is one of the chief sources of law. Customs is a particular rule which has existed from time immemorial and has obtained the force of law in a particular locality. It must be continued, unaltered, uniform and constant and should be reasonable. Customs often pose a problem as to its proof. To take an example Section 5 of Hindu Marriage Act, 1955 allows parties who fall under the degree of prohibited relationship to marry provided there is a custom prevailing to that effect in their community. Suppose now that a person has married his mother’s sister’s daughter. This being a prohibited degree of relationship, he is prosecuted for the violation of the Act. His defence is that there is a custom to that effect in his community. How will such a custom be proved? Can he show that many members of his family or community has solemnised similar marriage? But the fact that hundred of persons have violated an Act does not and cannot establish a custom. Often, therefore, the existence of custom becomes difficult to prove.

Similarly, in matters of rights, proof of it poses a problem. If, for example, a person is prosecuted for theft by fishing in a pond and he claims that he has a right to fish in that pond. The only evidence he may be able to show is that he has been doing so before. But previous thefts cannot give him a right.

Modes of proving a custom:

To facilitates the proof of rights and customs, section 13 lays down two important rules of relevancy of facts. The first principle admits facts, which show the origin or creation of the custom or right and its subsequent history. The second principle admits evidence of facts showing the practical instances in which the custom or right in question was followed.

  1. Transaction

A “transaction” is something already done and completed. Whatever may be done by one person, which affects another’s rights, and out of which a cause of action may arise is a transaction. Though, transaction means some business or dealing which was carried out or transacted between two or more persons, however, under section 12, a transaction is the wide term which also includes a contract. In all cases, it is necessary that a ‘transaction must be genuine and bonafide transaction. A benami transaction which is a fictitious one, it not a valid transaction in the eyes of law.

Thus, any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its  existence is relevant to prove the existence of a custom or a right. Example of a ‘transaction’ are: a gift deed, sale deed, an agreement, coronation, holding a office in a trust, temple, cases of res judicata, and so on. In a case before the Privy Council the question was whether the relationship between A and B was that of partners or of employee. In 1936, shortly after they started the business. A had executed and handed over to B’s lawyer a document in which A had stated that the relationship between the parties was that of employer and employee. The document was held to be admissible. (Hurbert P. James v. Gulam Hussain, AIR 1949 PC 1151)

  1. By Particular Instance:

It means an example, something which has already occurred. Section 13 (B) speaks of the following particular instances:

  1. In which the right was claimed; or
  2. In which its existence was asserted.

For this purpose, it is essential that the instance in which the right or custom was claimed, recognised, exercised etc must be instances prior to the present suit in question. For example, the method or way of property transfer, mortgage, gift etc could be proved by giving instances of previous documents on the subject. The judgment in support of a plea res judicata, lease, oral partition, entries in the maps are admissible for the purpose.

8
Jun

PCS (J) Notes: Sec 11, When facts not otherwise relevant becomes relevant

As per section 11, facts not otherwise relevant are relevant in the following two situations.

  1. If they are inconsistent with any fact in issue or relevant fact;
  2. If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Principle-

The object of a trial is to prove or disprove, by evidence, a particular claim charge, therefore any fact, which either proves or tends to disprove, that claim or charge is relevant. Section 11 attempts to state in popular language the general theory of relevancy and it is therefore described as the residuary section dealing with relevancy of facts. The words of section 11 are very wide. Collateral facts which by way of contradiction are inconsistent with a fact in issue or another relevant fact, that which make the existence of a fact in issue or relevant fact impossible or highly improbable or which by way of corroboration are consistent with the existence of the fact in issue or a relevant fact, i.e, tend to render the existence of a fact in issue or a relevant fact highly probable are themselves made relevant by the section.

Section 11 controlled by other section

The terms of section 11 are no doubt wide, but they must be read subject to the other sections of the Act and, therefore, the fact relied on must be proved in accordance with the provisions of the Act. If the fact is a statement made by a person who is not called or cannot be called the statement cannot be admitted unless it comes within the subsequent sections of the Act. (i.e, Section 32 and 33)

In Bela Rani and others v. Mahabir Singh and others, 19 ALJ 351, on Bani Ram, who died in 1866, owned the property in dispute. He was succeeded by his wife Mst. Mathuri who died in 1878 and was succeeded by her daughter Mst. Dasodari. Mst. Dasodari transferred the property in dispute to the ancestor of defendants. The Plantiffs purchased the property from the persons who would be entitled to the property on the death of Mst. Dasodari. The plantiff filed the suit for possession. The main defence wwas that Mst. Dasodari died more than 12 years prior to the filling of the suit which was accordingly barred by limitation. At the death of Mst. Dasodari applications were made for mutation of some of the property in possession of which she had been. These applications were supported by depositions of the reversioners. Copies of the applications were supported by depositions were filed by the plantiff in the present suit. In all these copies the date of the death of Mst. Dasodari was stated to be the 16th of March, 1898.it was argued that the depositions make it highly probable that Dasodari died on the 16th of March, 1898 and therefore were admissible under section 11 of the Indian Evidence Act.

It was held that the statements were simply the statements of persons who were dead and such statements are not relevant unless they come under one or more of sub-sections of section 32 of Indian Evidence Act. The statement bring not admissible under Section 32 of the Act were held inadmissible under Section 11 of the Act.

Inconsistent Facts-

Evidence can be given of facts which have no other connection with the main facts of a case except this that they are inconsistent with a fact in issue or a relevant fact. Their inconsistency with the main facts of the case is sufficient to warrant their relevancy.

The usual logic of the argument from essential inconsistency is that a certain fact cannot co-exist with the doing of the fact in question, and therefore if that fact is true off a person of whom the act is alleged, it is impossible that he should have done the act. Professor Wigmore cites five common cases falling under the line of this argument.

  1. The absence of the person charged, in another place. (Alibi)
  2. The absence of the husband when the child was begotten.
  3. Survival of an alleged deceased person after supposed time of death.
  4. The commission of a crime by a third person.
  5. Self- infliction of the harm alleged.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

 

7
Jun

PCS (J) Notes: Evidence relating to acts outside the period of conspiracy

Things said, done, or written by one of the conspirators will be relevant against the others only if it was so done during the time of the common intention was afoot. If the thing was said, done or written in the past, i.e, before the common intention was first formed, it would not be relevant under this section. Similarly, if the thing is said, done or written by one of the members after the conspiracy is over; it would not be relevant under this section. In the case of Mirza Akbar v. King Emperor, (1940) 67 IA 336, the appellant (Mirza Akbar), wife off the deceased (Mst. Mehr Laqa) and a hired assassin (Umar Sher) were charged with conspiracy and murder. One of the items to prove conspiracy was a statement made by the wife before the examining Magistrate after she had been arrested and the same was made in the appellant’s absence. The issue was whether this statement, made after the conspiracy was over, to the Magistrate by the wife was admissible under this section. The Privy Council while declaring it as inadmissible since the statement related to the period when the common intention no longer existed observed.

The words common intention signify common intention existing at the time when the thing was said, done, or written by the one of them. Things said, done or written while the conspiracy was afoot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But is would be a very different matter to hold that any narrative, or statement or confession made to a third party after the common intention or conspiracy was no longer operating, and had ceased to exist, it admissible against the other party. There is, then no common intention of the conspirators to which the statement can have reference. Section 10 embodies this principle.”

It must be borne in mind that the thing said, done or written by one person will be admissible against him and others in a conspiracy case only when that thing is said, done or written in reference to the common intention of the conspiracy. Anything said, done or written by a conspirator will not be admissible against him or others if it is not done in reference to the common intention of the conspiracy.

The word “intention” implies that the act intended is in the future and the section makes relevant statements by a conspirator with reference to the future. The words “in reference to their common intention” mean in reference to what at the time of statement was intended in the future. Narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. On this aspect of law is the case of Emperor v. Vaishampayan, (1931) ILR                                                                                 55 Bom 839. This is also known as the Limington Road Shooting Conspiracy. On October 9, 1930, a police officer and his wife were wounded by revolver shots near the police station at Lamington Road in Bombay. These shots were fired by some persons who were in motor car which was standing on the opposite side of the road.

Evidence was sought to be given of a statement of an absconding accused to the approver, that the conspirator had shot a police-officer, that a  pamphlet should be written and distributed to start a propaganda in furtherance of the objects of  the conspiracy. It was held:

“Reading Sec. 10 it appears that narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. The word “intention” implies that the act intended is in the future and the section makes relevant statements made by a conspirator with reference to the future. I interpret the word ‘in reference to their common intention’ to mean in reference to what at the time of statement was intended in the future.”

But the statement about publishing a pamphlet would be relevant, because the statement furthers the object of  the conspiracy. It says in effect. “Let us do this to achieve”

In R. v. Blake & Tye, (1844) 6 QB 126.

This was a case where Blake was an officer, employed in the customs house, and Tye, an agent of the importers. They made false entries in his daybook, to have some goods passed without paying full duty. These entries, and the counterfoil of his cheque book showing that money was paid to blake were tendered in evidence by the prosecution in a trial of the two accused for the offence of conspiracy to pass the goods without paying full duty. It was held that the (i) entries in the daybook were admissible against Blake, for they were necessary to exclude their common object; (ii) but the counterfoil was irrelevant, being a mere statement to show that the plunder had been shared after the object of the conspiracy had been achieved.

Badri Rai v. State of Bihar, 1959 SCJ 117

This was a case where the two accused met on the road a police inspector who was conducting an investigation against opne of them in a criminal case, and asked the inspector to hush up the case for valuable consideration. A few days later, the other accused met the inspector at the police station and offered a packet of Rs 500 saying that the accused, against whom investigation was pending, has sent the money for hushing up the case. The two accused were charged with the offence of conspiracy to bribe the police officer. The question that arose was whether the statement of one accused at the police station was relevant against the other. It was held that (i) the evidence of the conversation on the road showed that there were prima facie grounds for believing that the accused had entered into a conspiracy to commit the offence, and (ii) therefore, under section 10, the statement made by one of them, in execution of the conspiracy, would be relevant against the other.

  1. Hashim v. State of Tamil Nadu, 2005 SC

It was held that things said, done or written before the conspirator against whom the evidence is sought to be proved had entered the field of conspiracy or after he left it was clearly covered, inspite of the fact being related to the period prior to the commission of offence.