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INSTITUTE OF LAW NIRMA UNIVERSITY, AHMEDABAD

ACADEMIC YEAR (2010-11)

Semester – V (B.A.LL.B.) Hons.

EVIDENCE LAW

Paper presented on the topic

“CONDUCT under Sec 8 of Indian Evidence Act”

Submitted By: Kristy Baptist (08BAL005)

CONTENT • Introduction • Person whose CONDUCT is RELEVANT • Explanation I – Statements and CONDUCT • Explanation II – Statements affecting CONDUCT • Statement and Complaint as CONDUCT • DIFFERENCE BETWEEN COMPLAINT AND STATEMENT • STATEMENTS not included in CONDUCT

ACKNOWLEDGEMENT

DECLARATION

I do hereby declare that this Project work entitled “CONDUCT, under Sec 8 of Indian Evidence Act” has been prepared by me as a partial fulfillment of the requirement of B.A.LL.B.(Hons.). I also declare that I have acknowledged the sources/authorities in my Project work accordingly.

Date:-_____________

Roll No. __________________

____________________________ Signature of the student

CERTIFICATE

This is to certify that the project entitled:

Evidence Act”

“CONDUCT, under Sec 8 of Indian

has been carried out by Ms.Kristy Baptist under my supervision

and guidance. The project is completed after careful research and analysis of the data,

research

material

available

in

previous

works

and

various

judicial

pronouncements. The project is of the standard expected of a candidate for project submission in the course of Evidence Law of V semester of B. A.L.L B. (Hons.) Programme and commend that it be sent for evaluation

Date:

______________________________ Name & Signature of Course

Coordinator

AIMS & OBJECTS •

The main aim and object of this research is to understand the meaning of the term ‘CONDUCT’ in the light of Section 8 of Indian Evidence Act

•

To study the judicial trend of the term ‘Conduct’ i.e to be study as to how the courts have weighed the term ‘Conduct’ under the Section 8 of Indian Evidence Act

•

To understand the trend of difference between Statement and Complaint. As it is very important to important to clarify the doubts relating to their admissibility.

HYPOTHESIS

The paper is an attempt to understand the term ‘Conduct’ in the light of Section 8 of Indian Evidence Act. It is also necessary to acknowledge the view of the jurists on the same. Hence, it is important to understand as to how the courts have weighed the term ‘Conduct’.

LIST OF ABBREVIATIONS

•

AIR

All India Reporter

•

Ed.

Edition

•

Govt.

Government

•

Hon’ble

Honourable

•

SC

Supreme Court

•

SCC

Supreme Court Cases

•

SCR

Supreme Court Reports

•

Sec.

•

v.

Versus

•

Vol.

Volume

•

Pp

Page Number

•

IEA

Indian Evidence Act

Section

Section 8 of INDIAN EVIDENCE ACT

“Motive preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1. - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.” The section makes the conduct of certain persons relevant. Conduct means external behavior. A man’s conduct is not only what he does, but also what he refrains from doing, and latter is offence the more significant.1 Conduct may, in certain circumstances, include statements as well as exp I to the

1

Ram Narain V. Chota Nagpur Banking Association AIR 1917 Cal 746

section shows.2 Evidence of character and state of mind is admissible under Sec 8, 14, 54.3 When the person gives a statement before the magistrate and subsequently becomes an accused there is no legal hurdle in using the same, if it is otherwise a relevant fact. Sec 8 of IEA 1872, makes the conduct of an accused a relevant fact, if such conduct was influenced by the fact in issue or relevant fact, whether it was previous or subsequent thereto. 4

Under this

Section, conduct is admissible, irrespective of the fact whether the conduct was or was not the result of inducement offered by the police.5

Person whose CONDUCT is RELEVANT The second clause applies to the party’s agents as well as the party himself. ‘party’ includes not only the plaintiff and the defendant in a civil suit but parties in a criminal prosecution i.e the complainant and the accused. The section provides that the term ‘party’ is to include any one against whom an offence is the subject of any proceeding, and the reason why the legislature said this was, probably the fact that, by a pure legal technicality, the state occupies, in criminal matters, a position analogous to that of the plaintiff in a civil suit6. In a murder case, a complaint made by the deceased to the sub-divisional officer about a week before the alleged murder, stating that he seriously apprehended danger to his life at the hands of certain persons, was held to be admissible under this section as evidence of the conduct of the deceased, an offence against whom was the subject of trial, such conduct being influenced by his fear of injury7. The statement of deceased victim, shortly 2

Emperpr v. Nanua AIR 1941 All 145

3

Ashok Dubey v. State of Madhya Pradesh 1980 MPLJ 300

4

Chandrasekharan v State (1993) 3 Crimes 124 (Ker)

5

Jagadamba Prasad v State AIR 1957 MB 33

6

R v Abdullah ILR (1885) 7 All 385, 399, 400

7

Goloke Behari Takal v. Emperor AIR 1938 Cal 51

after assault, that he infact was assaulted by the accused, would also be admissible as his conduct under Sec 88.

Explanation I – Statements and CONDUCT The first explanation says that a mere statement is not relevant. This is in accordance with the rule of exclusion that statements made behind the back of a person should not be used against that person. But if the statement accompanies and explains acts other than statements, such statements would be relevant. Statements which accompany and explain acts other than statements are9: (i) complaints; (ii) the accused pointing out to the police during investigation various places connected with the crime.

Explanation II – Statements affecting CONDUCT “When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.” In the second explanation, ‘statement’ includes documents addressed to a person and shown to have come to his actual knowledge. 10 Statements to be relevant under this explanation, must be made to the person whose conduct is relevant, or though not in his possession, but within his hearing. Again the statements, whether oral or written, must affect the conduct; if they cannot be shown to have done so, they are inadmissible under this section.11 Is ‘conduct’ in this explanation, does not include statements unless those 8

Kulamant Sandha v. State 1991 Cr Lj 599

9

Vepa P Sarathi, ‘Law of Evidence’.(sixth edn, Lucknow: Eastern Book Company, 2006) pp 63. 10

Illustration (h), Wright v Tatham (1838) 5 Cl & Fin 670

11

Neile v Jakle (1849) 2 C & K 709

statements accompany and explain acts other than the statements. In Khatija v state12, the wife was accused of murdering her husband. In the morning after the murder, she had stated to the brothers of the deceased, when questioned by them, that she did not know the whereabouts of her husband. In the committal court, she stated that on the night in question she was sleeping with her husband and upon the other accused knocking at the door, she opened it and they murdered her husband. It was held that her statement to the brothers of the deceased was not admissible in evidence, as it did not accompany and explain an act other than the statement. Statements made in the presence of a party are admissible as the groundwork of his conduct. Thus, if a man accused of a crime is silent or flies or is guilty of his conduct coupled with the statements, is in the nature of an admission, and therefore evidence against himself. His act upon the statement and the statement are so blended together, that both form part of the Res Gestae, and on this ground again, the statement is as receivable as the act. In point of fact, it is the conduct of the party upon the statement being made at this material; the statements themselves are only material as leading up to the explaining that.13 The mere fact, that statements have been made in a party’s presence and documents found in his possession, though it may render them admissible against him as original evidence – eg, as showing knowledge or complicitywill afford no proof per se of the truth of their contents; the ground or reception for the latter purpose is that the party has, by his conduct or silence, admitted the accuracy of the assertions made.14 To render documents found in the possession of a prisoner admissible against him in proof of the contents, it must be shown that, by some act, speech or writing, he has manifested a knowledge of all or any of them; this would 12

AIR 1962 Guj 1, (1961) 2 Guj LR 582

13

R v Mallory (1884) 14 Cox 458, 13 QBD 33

14

Haller v Worman (1860) 3 LTNS 741

apply more strongly when, of the documents in question some had been received by him and others written by him.15 In the case of statements made to or in a party’s presence, he may either reply to them or keep silent, 16 or his conduct may be otherwise affected by them.17 When the statement in reply accompanies and explains an act other than statement, it may be relevant under this section or the section relating to oral or documentary admissions, when it is unaccompanied by an act, it may be relevant under the latter sections. Such statements made in a party’s presence and replied to, will be evidence against him of the facts stated to the extent that his answer directly or indirectly admits their truth.18

Statement and Complaint as CONDUCT Explanation I of sec 8 of IEA explains that the word ‘Conduct’ in Sec 8 does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of the act. This explanation states that the statements are not admissible as conduct unless they accompany and explain acts other than statements. The statements which accompany and explain acts other than statements are:19 I.

Complaints.

II.

Pointing out to the police the various places connected with the commission

of

crime.

The

complaint

15

Lalit Chandra v R LIR (1911) 39 Cal 199

16

Sec 8 Illustration (g) ; Neile v Jakle (1849) 2 C & K 709

17

Sec 8 Illustration (f) (h)

18

Post Sec 17; Phipson, 13th edn, pp 407- 409

19

must

be

voluntary

and

Vepa P Sarathi, ‘Law of Evidence’.(sixth edn, Eastern Book Company, Lucknow, 2006) pp 63.

spontaneous and not elicited by leading, including or intimidating questions.

DIFFERENCE BETWEEN COMPLAINT AND STATEMENT A statement is only a bare statement of fact which provides information whereas a complaint is a statement which expresses grief and dissatisfaction and is made to a person in authority with a view to obtaining redress or punishment e.g to a police officer or a parent of some other person who is required for assistance and protection. For instance, a petition impugning the conduct of a police officer and begging that he may be put on trial, is a complaint within the meaning of Cr.P.C of 197320. The fact that after the occurrence was all over, the woman said that the accused had tried to rape her, cannot be taken to be proof that he tried to rape her. Nor is there any force in saying that the accused kept silent, when she was making some accusations21. The distinction of the importance is that while a complaint is always relevant, a statement not amounting to a complaint will only be relevant under particular circumstances, for eg if it amounts to a dying declaration, or can be used as corroborative evidence22. In State v Hiraman23, the raped girl who was four years old, cried and disclosed the name of the accused. Her private parts were swollen and did show that she had been raped, further the stains of the blood and semen on the clothing of the accused strongly suggested that he could be the offender. It was held, that all the circumstances put together, necessarily led to the only conclusion that it was the accused who committed the crime and that the girl’s and her mother’s conduct was relevant under this section. The

20

Gangadhar v R (1915) ILR 43 Cal 173

21

Nga Aye Maung v King AIR 1938 Rang 127, 175 IC 22

22

Norton, Evidence, p 114; Wills Circ, Principles of Circumstantial Evidence, sixth edn, p 11

23

AIR 1965 Bom 154, 67 Bom LR 16

previous statement of the complainant at about the time of occurrence is admissible and relevant as evidence of conduct under this section. The following illustrations

will further clarify the difference between

statement and complaint. Illustration (j) to Sec 8 of the IEA says: The question is, whether ‘A’ was ravished. The fact that shortly, after the alleged rape, she made a complaint relating to the crime, the circumstances under which and the terms in which, the complaint was made, are relevant. The fact that without making a complaint, she said that she had been ravished is not relevant as conduct under this section, thought it may be relevant as a dying declaration under Sec 32, clause (1), or as corroborative evidence under Sec 157. Suppose she only made a mere casual statement that she had been ravished, then it is not admissible as conduct. For eg, the girl who has been ravished, returns home and after a lapse of sometime she makes a statement to her parents about the offence committed on her. This situation is different from the one in which a girl who has been ravished, returns home. Seeing her in a bad condition, even before she opens her mouth to tell something the parents ask her as to what happened to her and then she narrates the statement. This point was considered in the case of Raman v. Emperor24. In this case, the accused Raman was tried for committing the offence of rape on a young widow by name Nandoo. It was said that the accused Nandoo was in the field, while she was returning and committed the offence of rape. Thereafter Nandoo returned home and she was weeping in the house, standing in one corner of the house. One of her relatives, who was passing that way heard her crying and entered the house and asked her as to why she was weeping. Then she narrated the incidence of rape. She also requested that person to 24

AIR 1921 Lah. 258

go inform her father-in-law about it. The question was whether this statement can be regarded as complaint, so that it can be brought under Sec 8. Nandoo had made a statement only on account of a question put to her. In response to that question she narrated the incident. The court held that whether the circumstances appear that the person could have made a complaint even without a question being asked, then it can be regarded as a complaint, and particularly in this case asking the person to inform her father-in-law converted the statement into a complaint. Similarly, in Queen v. Abdullah25, any statement can be made admissible as conduct provided it is directly influenced by the fact in issue. So naturally, a complaint must also be without any intervening cause. Under Sec 84 statement would be relevant only if it explains a conduct. It would not be relevant as evidence of a fact stated. The statements must amount to complaints to be admissible. Statement in the shape of complaint is only relevant. A complaint must be without any intervening clause. The complaints to be admissible must be volunteered and not in answer to question. But it must be borne in mind that the questions of a leading or suggestive character exclude the evidence. But the questions such as this put by mother or other persons “what is the matter?” or “why are you crying?” would not make the answer inadmissible. Illustration (k) to Sec 8 of the IEA says : “The question is whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a 25

(1885) 7 ILR All, 385

dying declaration under section 32, clause 1, or as corroborative evidence under section 157.” The illustration shows the scope of the explanation. The importance lies in this. If the person affected is available as a witness, it makes no difference whether the statement is a mere statement or a complaint, because it is the oral evidence given by the witness in court that would be the substantive evidence in the case on which the court acts, and the statement or complaint will be used merely to corroborate such substantive oral evidence. If however, the person affected is not available as a witness, then if his statement amounts to be relevant, unless it comes under Sec 32(1). The reason why a complaint is made relevant is that a person is not likely to complain unless there is some basis of truth. Even so, there is an important difference between Indian law and English Law. Under Indian law all complaints would be relevant, whereas, under English law only complaints with respect to sexual offences would be relevant. That is, under English law, illustration (k) is not appropriate illustration. In R v. Lillyman26, the accused was charged with an attempt to rape and kindred offences. The prostitution sought to give in evidence a complaint made by the girl to her mistress, in the absence of the accused but very shortly after the commission of the acts charged. It was held that the particulars of such complaint may so far as they relate to the charge against the prisoner, be given in evidence on the part of the prosecution, not as being evidence of the facts complained of, but as the evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as negative consent on her part.

STATEMENTS not included in CONDUCT [Explanation I]

26

(1896) 2 QB 167

•

In Queen Empress v Nana27 it has been held that statements made by an accused while in the custody of the police are not admissible in evidence as conduct or otherwise.

•

In Turab v. King Emperor28, it has been held that the evidence of police officers as the pointing out of various places by the accused cannot be treated as evidence of conduct because such evidence really amounts to confession of his guilt by the accused while he is in the custody of the police.

•

In Bhagwandas v State29, it has been held that the evidence relating to the truth of a statement which does not explain any accompanying conduct of the accused is not admissible under Sec 8 of IEA

Hearsay evidence relating to a statement of admission by one of the conspirators is not admissible under Sec 8 of IEA.

CONCLUSION 27

ILR (1889) 14 Bom, 260 (FB)

28

ILR (1934) 10 Luck 281

29

AIR 1974 SC 898

The expression ‘conduct’ is not defined in the IEA. It is not used with the reference to the character of the person. Conduct is the external behavior of the person, which states the thoughts of that person. A man’s conduct includes what he does and what he omits to do. Conduct may, in a certain circumstances, include statements. The second paragraph of the Sec 8 of IEA deals with the relevancy of conduct. The conduct of any party to a proceeding in order to be relevant must be (i) in reference to any fact in issue; (ii) to any suit or proceeding. The second explanation ‘statement’ includes documents addressed to a person and shown to have come to his actual knowledge. It must be made to a person whose conduct is relevant. Statements in the presence of a party are admissible as the groundwork of his conduct. Thus, if a man accused of a crime is silent or flies, his conduct coupled with the statements, is in the nature of an admission and therefore evidence against himself. After going through the cases mentioned above in detail, I have come to a conclusion that Sec 8 of IEA has explained the term ‘conduct’ very aptly as per the requirements of the growing crime and civil wrongs in our country. There is a difference between a mere statement and a complaint. A statement is only a bare statement of fact which provides information whereas a complaint is a statement which expresses grief and dissatisfaction and is made to a person in authority. Further the case laws discussed in the paper have made the difference even more clear.