As per section 11, facts not otherwise relevant are relevant in the following two situations.
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.
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.
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.
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.
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.
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.
Every Criminal Law is either substantive law, or procedural law. The substantive law determines the rights and liabilities, whereas procedural law defines the remedies. The Indian Penal Code is substantive law, as it lays down what acts amount to various offences and prescribes the corresponding punishment. The Criminal Procedural Code, on the other hand, is procedural law, for it furnishes the detailed machinery for trying offenders. This procedure is to be followed for trying all criminal offences under the Indian Penal Code. The same procedure is also applied to offences under any other law, unless any enactment prescribes a special form of procedure to such offences. The Criminal Procedure Code does not affect the special or local laws in force in India.
The function of procedural law is four fold.
The Criminal Procedure Code is not entirely procedural in nature. There are several provisions in the Code, which also confer substantive rights. For Example, Sec. 125 of the Code confers the right of maintenance on wife, children and parents. The Code also grants the right of Hebeas Corpus. Likewise, right of appeal is also available under the Code.
Procedural Laws not in any way less important than substantive law. In fact, the two are equally important and complement to each other. In a given case, the substantive penal law may be the perfection of reason and wisdom, and yet the worst criminal may escape through the flaws and loopholes of the procedure. It is therefore, imperative that the procedural law should be as effectual as possible.
In the olden days, there was no uniform law relating to criminal procedure for the whole of India. There were separate Acts, mostly rudimentary in their character, for the Courts within and outside the Presidency-towns. Later on, the Acts in force in the Presidency-towns were consolidated into the Criminal Procedure Supreme Court QAct, 1852 which was subsequently replaced by the High Court Criminal Procedure Act, 1865. The numerous Acts prevailing in the mofussils were all absorbed in the Criminal Procedure Code, 1861, which was subsequently replaced by the Code of 1871. The Criminal Procedure Code, 1882, gave a uniform law of procedure for the whole of India, both in the Presidency Towns and the mofussils, and it was supplemented by the Code of 1898. The last mentioned Code was amended several times, with major amendments in 1923 and 1955.
The Law Commission, set up in 1955, studied the old Code extensively, and made various recommendations and suggestion in its detailed report submitted in 1969. These suggestions were incorporated in the Criminal Procedure Co, 1973, which came into force on 1st April 1974, which has since been amended 1978, 1980, 1983, 1990, 1991, 1993 and 2001.
While drafting the Code, the following three basic considerations have been kept in mind.
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.|