Conspiracy is an agreement to do an unlawful act or lawful act by unlawful means. It is a crime as well as a tort. The section applies to both kinds of conspiracy. (i.e, crime & tort)
The special feature of this rule is that anything said, written or done by any member of the conspiracy is an evidence against the other members even if they are done in their absence and without their knowledge. The basis of this rule is agency. Just as partnership is to do something legal, conspiracy is to do something illegal, and just as in a partnership, one partner is deemed to be the agent of another, so also, one conspirator is deemed to be the agent of another and anything said, done, or written by the agent, i.e, one conspirator is deemed to be done by the principal, i.e, by another conspirator.
The very first requirement of this section is that there should be a prima facie evidence affording reasonable ground for the court to believe that two or more persons have entered into conspiracy. On this aspect is the decision of Kehar Sinngh v. State (Delhi Admn.) AIR 1988 SC 1883. In this case the two accused, one of whom actually caused death, were often seen together before the event isolating themselves on a roof top and making every possible effort to conceal their conversation from the family members. It was held to be sufficient prime facie proof of conspiracy so as to punish one for the action of the other.
Once prima facie ground is established, the second condition that is required to be established is that the things said, done, or written by one of the conspirators will be relevant against the others only if and if it was so done during the time the common intention was afoot. That is, things said, done, or written before the common intention was formed and after the common intention was over are irrelevant and inadmissible.
Section 120 A of IPC lays down “when two or more persons agree to do or cause to be done
Such agreement is designated as criminal conspiracy; provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Therefore as per the definition it is not necessary in order to constitute a conspiracy, that the acts agreed to be done should be necessarily criminal. It is enough if the acts, agreed to be done although not criminal wrongful not criminal are wrongful, i.e, “amount to civil wrong”.
Scope of the section:
Under section 10 anything said, done, or written by any one of the conspirator in respect of their common intention is admissible against all the conspirator for proving that
It must be borne in mind that everything said or done or written by one of the conspirators at any time will not be relevant under section 10. Under section 10, a thing done, said, or written after the time when such intention was first entertained by any one of them is not relevant. Again anything done, said, or written before such intention was first entertained by any one of them is not relevant under this section. However, even during the time the conspiracy was afoot, only those things that are said, done or written in reference to the common intention will be admissible.
The evidence of test identification parade is received under section 9 of Indian Evidence act.
Identification parade have been in common use for a very long time for the object of placing suspect in a line-up with other persons for identification. The purpose is to find out whether he is the operator of the crime.
This is necessary where the name of the offender is not mentioned by those who claim to be eye witnesses of the incident, but they claim that although they did not know him earlier, they could recall his features in sufficient details and would also be able to identify him it and when they happen to see him again.
There was no specific provision in the Evidence Act or Code of Criminal Procedure regarding identification parade of the accused till 2005. By the amendment of CrPC in 2005, a new Section 54A was inserted for identification of person arrested.
This provision enable the police to seek permission of the Court for identification of the accused and the Court may determine the manner of identification. The manner of identification includes ‘identification parade’. The police is not bound to hold identification parade.
In Pargan Singh v. State of Punjab, AIR 2014 SC 3790, under the given circumstances, 90 seconds was too long a period which could enable the eye-witness to watch the accused persons and such a horrible experience would not be easily forgotten. Death of a friend and near death experience by the witness himself would be etched in the memory for a long. In such a traumatic experience, faces of accused persons would not have been forgotten even for a life time.
In Raju Choubey v. State of Chhattisgarh, AIR 2014 SC 3741, where two persons accused of murdering a woman were arrested on 29/11/2003 and the third accused on 22/12/2003 and their identification parade was held on 13/12/2003 and 26/12/2003 respectively and they were identified bby a child witness of 13 years of age before whom the incident took place in the house of the deceased where he worked as a domestic servant, the contention of delay in holding test identification parade were not acceptable. There was no evidence on record that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification.
According to Musheer Khan v. State of M.P., (2010) 2 SCC 748 , Test Identification Parade is not substantive evidence; it only assures that the investigatory process is progressing on right lines. Test Identification Parade is a part of the investigatory process under Section 162 of the Criminal Procedure Code, 1973. Test Identification Parade has been in common use for a very long time; the object is to place the suspect of crime in a line with other individuals for identification. The purpose is to find out whether or not the suspect/accused is the perpetrator of the crime. This is all the more essential where the name and details of the accused, although, are not known to the eyewitnesses of the incident, but, still by recalling the scene of crime and the physical features (face, eyes, complexion, height and/or physique) of the accused/suspect the eyewitnesses are able to identify the accused/suspect. The rationale of Test Identification Parade is to confirm the identity of the accused and to help the police in their investigation. In the case of, State of A.P. v. V.K. Venkata Reddy (1976) 1 SCC 463, the Hon’ble Supreme Court of India categorically held that, the evidence given by a witness in the court of law is substantive testimony while the identification made by the witness in the Test Identification Parade is only confirmatory of the testimony made before the court of law.
Principle- There is hardly any act without a motive. Motive is the moving power, which impels one to do an act.it is the inducement for doing the act. The absence or presence of a motive and evidence of preparation, previous attempt, previous or subsequent conduct of the parties are relevant, as they help in proving or disproving a fact in controversy. It may sometimes be important to know, whether a man charged with an offence, has any interest, or motive to commit it. In determining the fact, whether a man charged with an offence, committed it or not, it is important to know whether previous to the act, he made certain preparation to do the act. Again the conduct – antecedent or subsequent – of a person committing an offence, or of a person against whom an offence has been committed, may be helpful in deciding as to whether the man has committed an offence.
Motive by itself is no crime, howsoever heinous it may be but once a crime has been committed, the evidence of motive becomes important. Evidence of motive helped the Court to connect the accused with the deed. In R v. Richardson, the accused was the father of the child of which the deceased was pregnant at the time. It was held to be relevant, as he might have killed the girl to save his character. In R. v. Palmer (1865), the accused Palmer was financially embarrassed and to overcome his difficulties, he borrowed large sums of money from one of his friends. They used to go to race together.one night after attending the races together; his friend came back to his hotel and died soon after midnight under circumstances, which raised a suspicion that he had been poisoned. The fact that Palmer had a strong “motive” to eliminate his creditor friend was held to be relevant.in a case, certain lands were inherited by the deceased along with his brother, but the accused got them transferred into their names. At the time of the incident, criminal & revenue cases were pending between the accused and the deceased. The Supreme Court held that these facts constituted a sufficient evidence of motive. (Awadesh v. State of U.P. AIR 1995 SC 375)
Section 8 further provides that acts of “preparation” are relevant. It says that facts, which show or constitute preparation for any fact in issue or relevant facts are relevant. Preparation by itself is no crime. Illustration (d) & € refer to acts of preparation. The act of purchasing a pistol for the purpose of shooting down a man, or a matchbox burning a house, it itself no offence. But, once an offence has been committed, the evidence of preparation becomes most important, for the crime must have been committed by the man who was preparing for it. Thus, for example, the sharpening of a knife before an affray in which the knife was used is relevant as an act of preparation.
The last part of section 8 deals with the relevancy of the evidence of conduct. The conduct of an accused is p[articularly important to the law of evidence, for his guilt or state of mind is often reflected by his conduct. Section 8 accordingly provides that the conduct of the following parties is relevant.
The evidence of the conduct of such parties is allowed if two conditions are fulfilled, namely, the conduct must be in reference to the facts in issue or the facts relevant to them and, secondly, the conduct is such as influences or is influenced by the facts in issue or relevant facts. Subject to these conditions, the evidence of conduct is relevant whether it is previous to the happening of the facts in or subsequent to them. It need not be contemporaneous. A conduct is relevant if it influences or is influenced by an fact.
However, here is a note ought tio be taken of Explanation 1 which says that “conduct” does not include statements, unless those statements, accompany and explain acts other than statements. Therefore, only those statements which accompany and explain acts other than statements can be regarded as conduct.
Aghnoo Nagesia v. State of Bihhar, AIR 1966 SC 119- FIR was filed by the accused himself. The fact of his giving the information was held admissible against him as evidence of his conduct.
Sardul Singh v. State of Bombay, AIR 1957 SC 747 – the question was whether P was liable as partner of the firm of Dawn & Co in respect of contracts which were made between the plaintiff and the firm in 1922 written by him to the agent of Chartered bank of India, Australia and China. In that letter P said that he was writing to confirm that he had severed his connection with the firm Dawn and Co from first of May, 1922. It was held to be relevant.
In State of U.P. v. Babu Ram AIR 2000 – In this it was observed by SC that motive is relevant factor in all criminal cases whether based on the testimony of eyes witness or circumstantial evidence. It cannot be laid down that motive off offence may not be very important in cases depending upon the direct evidence.
Yunus v. Kavya, AIR 2003
It was held by the Supreme Court where ocular evidence (Eye Evidence) was clear and continuing, role of accused person in the time stood and established failure to prove motive for the crime was of no consequence.
Section 7 deals with a variety of facts such as those which constitute the occasion or cause of, or provide the opportunity for, the happening of the facts in issue or which show their effects.
The section thus provides for the relevancy of the following kinds of facts:
This section is based on induction. The relevancy of facts is required to be ddetermined by human experience. What has been the effects of particular cause and what has been the constant cause of a particular effect in the past will be the same in the future. For Example, if a living being is cut on the ground necessarily there shall be bleeding and blood can be found at the place of occurance. Whenever a large quantity of human blood is found at any place by human experience it can be reasonably inferred that a human being has been injured. Thus, the bleeding is the effect of injury caused, and injury is the cause of bleeding. Similarly, when large number of trees are found to have fallen it shows that there must have been a storm. When tanks are filled with full water and rivers are found to be in spate it shows that there must have been a heavy rainfall.
In Spencer Cooper’s Case the body of the deceased was found in a tank. The question before the Court was whether the deceased had committed a suicide by jumping and drowning in the tank, or had been killed and then her body; was thrown into the tank? The stomach of the deceased did not contain any water. The prosecution tried to prove that a person who dies in water necessarily takes water into the belly. Whereas the defence counsel tried top prove that it is not necessary in all cases that the person dying in water must necessarily take water into the belly. Here the prosecution tried to prove by the general happenings of the world that a man drowned must have the water in stomach, whereas the other p[arty tried to prove that this general happening need not be present in all cases and that a man may be drowned and still may not have water in the stomach. These facts show the general “effect” of drowning.
Evidence can always be given of set of circumstances which constitute the occasion for the happening of the principal fact. For Example, in R v. Richardson, the fact that the deceased girl was alone in her cottage at the time of the murder is relevant as it constituted the “occasion” for the murder. Illustration (a) to the section is also the same point. If a man claims that he was robbed of money on the occasion of a certain fair, he should be able to show that he had money with him, for otherwise, there would be no occasion to rob him. The fact that on the way he told one of his friends that he was going to the fair with the money would be relevant as this shows that he did have money with him.
“Cause” explains as to why a particular act was done. It helps the Court to connect a person with the act. The act in question must have been done by the person who had the cause for it. It, for example, a person is running short of money, that may “cause” him to take a loan. And if he denies the fact of the circumstances which became the cause of the loan. It has been held by the Calcutta High Court in Indian Airlines v. Madhuri Chowdhari, AIR 1965 Cal 252 that the report of an enquiry commission relating to an air crash is relevant under section 7 as establishment the “cause” of the accident.
Every act leaves behind certain effects, which not only record the happening of the act, but al;so throw light upon the nature of the act. For Example, whether the death of a particular person was caused bby suicide or by murder is often determined by looking at the effect of the event, for suicide and murder have different effects. One of the important facts which connect a person with the act in question is the footprints at the scene of the crime and the finger impression upon the objects that he might have touched, for example, in R. v. Richardson, where a young girl was killed in her cottage, the prints of the footsteps showed that they were those of a person who must have worn shoes, the soles of which had been newly mended and which had iron knobs or nail in them. This was one of the “effects” of facts in issue. The fact that the accused Richardon’s shoes corresponded exactly with the foot impression in dimension, shape of the foot, form of the sole and the number and position of the nails was relevant as it so surely established Richardon’s presence at the scene of the crime. Illustration (b) is on this point.
The circumstances which provide an opportunity for the happening of a fact in issue are relevant. Often a person has to crave out for himself an opportunity to do the act in question. This may involve a break from the normal routine of his life. Evidence of opportunity thus becomes important as it shows that the act must have been done by the person who had the opportunity to do it. In R. v. Richardson, for example, the fact that Richardson left his fellow workers or about the time of the murder under the pretence of going to a Smith’s shop was relevant as this gave the accused this “opportunity”.
Illustration © speaks of a death caused by poisoning. The fact that the accused knew that habits of the accused which facilitated the poisoning is relevant. The illustration is close to the facts of R. v. Conellan. In this case the deceased suffered from a trifling ailment, for which he occasionally took a laxative draught. The draught was usually served by his mother. The accused knew all this and also the time at which it was usually served. He accordingly replaced the bottled with a bottle containing the poison. The mother innocently administered poison to her son of which he died. The fact of the accused’s knowledge the deceased’s habit was held to be relevant as it afforded an “opportunity” to the accused.
State of things- The facts which constitute the state of things under which or in the background of which the principal facts happened are relevant. This category of facts, as enumerated in section 7 would allow evidence of the state of relations between the parties, and, in the case of murder, the state of the health of the deceased and his habits, etc. in the Ratten v. Regina, (1971) RLR 930, for example, where the accused was prosecuted for shooting down his wife and he took the defense of accident, the fact that the accused was unhappy with his wife and was carrying on an affair with another woman was held to be relevant as it constituted the state of things in which the principal fact, namely, the shooting down, happened.
The principle of the section 6 is that whenever a ‘transaction’ such as a contract or a crime is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. The section is based upon the English doctrine of res gestae through the use of the word has been avoided in the section. The phrase res gastae is of latin origin which means ‘things said and done in the course of a transaction’. Transaction is a group of facts so concerned together as to be referred by a single name i.e, a crime, a contract or a wrong or a wrong or any other subject of inquiry which may be in issue. Every case that comes before a Court of law has a certain fact story behind it.
Relevance of this rule: Every fact story is made of certain acts, omissions and statements. Every such act, omission or statement as throw some light upon the nature of the transaction or reveals its true quality or character should be held as a part of transaction and the evidence of it should be received. Doctrine of res gestae, enables the Court to take into account all the essential details of a transaction. A transactions a group of facts so connected together as to be referred to by a single name, as a crime, a contract a wrong or any other subject of inquiry which may be in issue. Roughly, a transaction may be described as any physical act, or series of connected physical acts, together with the words accompanying such act or acts. A transaction can be truly understood only when all its integral parts are known and not in isolation from each other. In the famous English case of Ratten v. The Queen, (1971) 3 W.L.R. 930, the accused was prosecuted for the murder of his wife. He claimed that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to say, “Get me the police, please”. Before the operator could connect to the police, the lady gave her address and the call suddenly ended. Thereafter, the police came to the house and found the body of a dead woman. Her words over the phone were held to be relevant as part of the same transaction which brought about death. Her call in distress showed that the shooting in question was not accidental. For no victim of an accident could have thought of getting the police before the happening. Thus in O’Leary v. Regem, (1946) 73 C.L.R. 566 evidence of assault prior to killing was taken into cognizance as part of same transaction.
Case Laws on Res Gestae
FIR when res gestae- Shyam Nandan Singh v. State of Bihar, 1991 Cri LJ 3350. A witness is present at the scene of occurrence, sees the whole occurance from beginning to end, makes cry about the offence being committed when people from vicinity reach. He tells the story of occurance and thereafter, goes to police station and makes FIR. The making of the FIR was held to be part of the transaction and so it amounts to res gestae. The fact that sometime has elapsed between the occurance and report is immaterial.
Noor Mohd v. Imtiaz Ahmad, AIR 1942 Oudh 132- One R practised fraud upon one M and thus took Rs 8000/-. M lodged a report and filed a complaint. One S, a prosecution witness stated that M came to him and said that he had been deprived of about Rs 8000/- and that M again came to him and told him that he had neither filed a complaint against him not had made a report against R and that after having robbed him, R was still trying to rob him of what he still had. The prosecution witness further said that after he (the witness) once visited M, the latter told him that R was making his life miserable and he would take steps to have his money recovered and thereupon M said, “Let the matter go. I have forgiven him but that he should not touch what is left.” This statement was held inadmissible as it was mere narrative of past occurance.
Richard Gillie v. Posho Ltd., AIR 1939 PC 146- A dispute between A and B was whether A had agreed to make a purchase from B on a certain date. In support of B’s allegation that A had agreed to make the purchase, a letter, dated 23rd December, 1926 from him (B) to a solicitor was purchased. In this letter B had made a mentioned that A had agreed to make a purchase. The letter was held inadmissible as there was no evidence to show whether the statement in the letter was made with reference to some events which has just happened.
Nasiruddin v. Emperor, AIR 1945 Lah 46- One Fakiria was killed in broad daylight in one of the crowded bazars of Gujranwala. At the rial, one Mst. Aishan Bibi was examined as witness. She stated that when she reached the spot, she heard the people present saying that Rajja, Nasiria and Jagari has committed the crime. It was not stated that the people who informed her of the names of the murderers were present when the murder was being committed. It was held that the statement was not admissible.
Relevant means that which is logical probative. Admissibility is not based on logic but on law and strict rules. Many facts having no bearing on the facts to be proved are admissible. The proof of loss of original deed has no effect on the decision of the issue but, this is admissible evidence before secondary evidence about the content of the relevant document may be given. In the Indian Evidence Act, the question of relevancy has been dealt with under section 6 to 55 and that of admissibility from section 56 onwards. Rules of relevancy declare certain facts relevant. Rules of admissibility law down, as to whether a certain form of evidence about the relevant fact may be allowed or excluded. The facts that are allowed to be proved (Section 6 to 55) are3 called relevant facts. The admissibility is the means and the method of proving the relevant facts. In Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850, the Supreme Court speaking through Mohd. Quadari J. said that more often than not the expression ‘relevancy’ and ‘admissibility’ are sued as synonym but their implications are different because facts which are relevant may not be admissible, for example, the communication between spouse during marriage; communication between an advocate and his client, through relevant are not admissible.
|Not based on logic but strict rules.||Based on logic and probability.|
|Rules of admissibility is described from section 56 onwards of Indian Evidence Act.||Rules of relevancy is described from section 6 to 55.|
|Rules of admissibility declare whether certain type of relevant evidence are admissible or are to be excluded.||Rules of relevancy declare what is relevant.|
|Admissibility is means and modes of proving relevant evidence.||Relevancy means what facts may be proved before a Court.|
|The facts which are admissible are not necessarily relevant.||Facts which are relevant are not necessarily admissible.|
Irrebuttable presumption of law are those legal rules, which are not overcome by any evidence that the fact is otherwise. A well-known instance of an irrebuttable presumption of law can be found in section 82 of IPC wherein it is laid down that “Nothing is an offence which is done by a child under seven years of age”. If in a criminal case, it is shown that the accused is below seven years of age, he shall be presumed innocent. No evidence will be allowed to be adduced that the accused was guilty. They are indicated in the Indian Evidence Act by the expression “Conclusive Proof” 9Section 41, 112 & 113)
Rebuttable Presumption of Law
Rebuttable presumption of law arises when presumption of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may either be explained, or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Eg. A man is presumed innocent until proved guilty; a child born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it. They are indicated in the act by the expression “shall presume” (Section 70 to 85, 89 and 105)
These are inferences which the mind naturally and logically draws from given facts without the help of legal directions. Such inferences are drawn not by virtue of any rule of law but by the spontaneous operations of the reasoning faculty. All that the law does from them is to recognise the propriety of their being so drawn if the Judge thinks fit. The Court has discretion to draw them. They are rebuttable as their evidentiary effect may be negated by contrary proof. They are indicated in the Act by the expressions “may presume” and are mentioned in Sec 86 to 88, 90 and 114.
Mixed presumption of law and fact are chiefly confined to the English law of real property.
|Presumption of fact||Presumption of Law|
|Based on logic, law of nature and human experience||Based on provisions of law.|
|Always rebuttable and goes away when rebutted by establishment of positive proof.||Conclusive, unless rebutted as provided under rules giving rise to presumption.|
|Position of presumption of fact is uncertain and transitory.||Certain and uniform.|
|Court can ignore presumption of fact howsoever strong it is.||Court can’t ignore presumption of law.|
|Derived from law of nature, prevalent customs and human experience.||Derived on established judicial norms and they have become part of legal rules.|
|Court can exercise its discretion while drawing presumption of fact.||Presumption of law is mandatory, i.e, Court is bound to draw presumption of law.|
Every fact, on the basis of which a party to a proceeding wants to take judgment, must be proved. No Court can, while deciding a case, place reliance on a fact unless and until it has been proved according to the rules laid down in the Evidence Act. But, the law of evidence has provided that Court can take into consideration certain facts even without calling for proof of them, i.e, the Court may presume certain things.
In the law of evidence, the word ‘presumption’ is used to designate an inference affirmative or negative of the existence of some fact, drawn by court by a process of probable reasoning from some matter of fact either judicially noticed or admitted or established by legal evidence to the satisfaction of the Court.
May Presume: Whenever it is provided that the Court may presume a fact, the court may take notice of the fact without calling for its proof or may call upon a party to prove that fact. Here the court has discretion to presume a fact or not to presume it. Section 90 of the Evidence Act provides that when a document purporting to be thirty years old is produced from a proper custody, the court may presume that the document was signed and written by the person by whom it purported and is said to have been written and signed. Generally, when a document is filed in a case it is to be proved by adducing evidence as to who wrote the deed and who signed it. Unless and until it id done, the document cannot be read in evidence. If a document produced before the court is thirty years old, the court may dispense with the proof of it and read the document in evidence without calling for the proof of it. The court may also call for the proof of it and may order that the document will not be read in evidence without being proved. Section 88 of the Evidence Act lays down that when a telegram has been received the court may presume that the message forwarded from Telegraph Office to a person is the same which was delivered for transmission at the office from which the message was sent.
Shall Presume: Whenever there is a provision to the effect “that the court shall presume a fact” the court cannot exercise its discretion. It is compelled to take the fact as proved, i.e, it shall have to presume that fact. But in this case the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the court shall not presume the fact. In the Indian Evidence Act, the word “shall presume” indicate that presumption therein is unrebuttable. Section 89 of the Indian Evidence Act “provides after notice to produce, attested, stamped and executed in the manner required by law”.
Conclusive Proof: Whenever it is mentioned that a fact is a “conclusive proof” of another fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the Indian Evidence Act provides inter alia that a final judgment, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character.