Law of Evidence

By Nizam Azeez Sait,

MODULE No. 4

RELEVANCY UNDER SECTIONS 4, 5 and 6 OF THE BHARATIYA SAKSHYA ADHINIYAM –  “Res Gestae”

Introduction

This is the 4th Module of the subject ‘Law of Evidence’, which deals with Sections 4 to 6, in Chapter II in Part II titled “Of the Relevancy of Facts”.

Sections 4 to 14 in chapter II are grouped together and titled as ‘Closely connected facts. Here, in this module we shall take you through Sections 4, 5 and 6 in chapter II, dealing with the relevancy of facts connected with the facts in issue in different ways as enumerated therein.

Sections 4 to 14 (Sections 6 to 16 in the Evidence Act) deal with the following:

(a)Facts which are forming part of same transaction in other words “Res Gestae” (section 4),

(b) facts which are occasion, cause or effect of relevant facts (section 5),

(c) Facts showing Motive, preparation and previous and subsequent conduct (Section 6),

(d) Facts which are explanatory or introductory of the other relevant facts (Section 7),

(e)Things said or done by conspirators in reference to their common design (Section 8),

(f) Facts which are inconsistent / consistent with other relevant facts, (Section 9),

(g) Enabling facts to determine damages (Section 10)

(h) Facts relating to the existence of a right or custom in dispute (Section 11)

(I) Facts showing existence of state of mind, or body or bodily feeling (Section 12)

(J)Facts bearing on question whether act was accidental or intentional (Section 13)

(k) When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. (Section 14)

In this module we will cover sections 4, 5 and 6 relating to:

(a) Facts which are forming part of same transaction in other words “Res Gestae” – section 4, (Section 6 of the Indian Evidence Act).

(b) facts which are occasion, cause or effect of relevant facts – section 5, (Section 7 of the Indian Evidence Act) and

(c) Facts showing Motive, preparation and previous and subsequent conduct – Section 6 (Section 8 of the Indian Evidence Act).

Provisions in sections 7 to 14 in chapter II will be covered in the subsequent modules.

MODULE INDEX

  1. Res Gestae Under Section 4
  1. Res Gestae a Rule of English Law of Evidence and an Exception to Exclusion of Hearsay Evidence
  1. Spontaneity and contemporaneousness are cardinal to constitute res gestae.
  1. Supreme Court on Res Gestae
  1. Essential Elements of Res Gestae
  1. Facts Which are the Occasion, Cause or Effect of relevant facts – Section 5:
  1. Last seen theory
  1. Admissibility of Audio and Video Tape – Records
  1. Section 6: Motive, preparation and previous or subsequent conduct.
  1. Facts Showing Motive
  1. Facts Showing Preparation
  1. “Conduct” – Previous and Subsequent
  1. ‘Mere Statement’ and ‘Complaint’- Difference

1. Res Gestae Under Section 4

Now we will start with Res Gestae under Section 4. The English doctrine of Res Gestae is embodied in Section 4 of the Bharatiya Sakshya Adhiniyam.

Section 4, along with illustrations reads as follows:

Facts which, though not in issue, are so connected with a fact in issue or a relevant fact as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

 Illustrations.
  • A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
  • A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and jails are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
  • A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact

2. Res Gestae a Rule of English Law of Evidence and an Exception to Exclusion of Hearsay Evidence

The Doctrine of Res gestae is a Rule of English law of evidence, the essence of which is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. It is generally regarded as an exception to the exclusion of hearsay evidence. The said rule is embodied in the earlier referred Section 4 of the Bharatiya Sakshya Adhiniyam.

According to Stephen “transaction” is actually a “group of facts” that is inter connected in such a way that they can be under a “single legal name”

As per Halsbury’s Laws of England:

“Facts which form part of res gestae , and are consequently provable as acts relevant to the issue , include acts, declarations and incidents which themselves constitute, or accompany and explain the facts or transactions in issue”

Black’s Law Dictionary defines Res Gestae as follows:

(Latin: ‘things done’) The events at issue, or other events contemporaneous with them In evidence law, words and statements about the res gestae are usually admissible under a hearsay exception (such as present sense impression or excited utterance).

3. Spontaneity and contemporaneousness are cardinal to constitute res gestae.

It is essential that the words sought to be proved should be, if not absolutely contemporaneous with the actual event, at least so clearly associated with it in time, place and circumstances, that they are part of the thing being done.

R v. Bedingfield

In the famous English case R. v. Bedingfield, (1879) 14 Cox CC 341, a woman came out of her room with a cut on her throat and remarked to her aunt, “ O, dear aunt, see what Bedingfield has done to me”. It was held that the said statement was not covered under the rule of Res Gestae as it was not contemporaneous. It can be seen that the English courts have laid stress for close association in time, place and circumstances between making of the statement and the crucial incident.

In Ratten v, The Queen (1971) 3 All E.R 801, A lady was killed by a gun shot. The accused husband contended that it was an accident. Immediately before her death the wife contacted the telephone operator and asked, “Get me the Police Please”. The lady gave her address and the call ended. Police went there and found the dead body. The court held that “The act of the deceased of calling the telephone operator and the words said by her on the call are relevant facts here as they form part of the same transaction which is in issue before the court.” The Court held that her call in distress clearly showed that the shooting was intentional rather than accidental.  The accused was convicted for murder.

Phipson, Evidence , 8th Edition , at p. 82, states thus:

“The declaratory words must explain the act and must be uttered during or immediately before or after the occurrence, but not at such an interval from it as to allow of fabrication or reduce them to a mere narrative of a past event.”

The following could be examples of res gestae:

Utterances while killing, immediate statements of the victim, spontaneous outburst of by-standers, immediate confession of accused, contemporaneous dialogue between the accused and the injured etc.

4. Supreme Court on Res Gestae

To understand the concept better we will refer some Indian judgments/case laws relating to res gestae:

In Sheikh Zakir v, State of Bihar, reported in AIR (1983) 4 SCC p. 10, the Supreme Court accepted the statement of a rape victim soon after the rape as res gestae under Section 6 of the Evidence Act (corresponding to Section 4 of the Bharatiya Sakshya Adhiniyam).

In Chandra kala v. Ram Krishna, reported in AIR 1985 SC p.  1268, it was held that a statement by the victim made the next day to her husband and co-workers, is not relevant under section 6, but is covered by section 157 of the Evidence Act as corroborative evidence.

Section 157 of the Evidence Act (corresponding to Section 160 of the Bharatiya Sakshya Adhiniyam) reads as follows:

“In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

In Gentela Vijayavardhan Rao v. State of A.P AIR 1996 SC 2791, a bus was set on fire which resulted in the death of 23 passengers. Statements of two seriously injured fellow passengers were recorded by the Magistrate as it was thought that they might succumb to their injuries, in which event their statements could be pressed into service under S.32 of the Evidence Act (corresponding to Section 26 of the Bharatiya Sakshya Adhiniyam). Fortunately, they survived. But while answering the question whether those statements could now be relied upon under S.6, the Supreme Court found that there was appreciable interval between the criminal act and the recording of their statements by the Magistrate and as such the statements could not be relied upon with the aid of S.6 of the Evidence Act. (corresponding to Section 4 of the Bharatiya Sakshya Adhiniyam)

The Supreme Court referred to English decisions and explained the scope and ambit of the rule of Res Gestae embodied in Section 4 of the Bharatiya Sakshya Adhiniyam, as follows:

“The principle of law embodied in S.6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement on fact admissible under S.6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman (1896 (2) QB 167) a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between making the statement and the act of rape. Privy council while considering the extent upto which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. Reoinam, (1952 (2) All ER 447), thus :

 “The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done and so an item or part of the real evidence and not merely a reported statement.”

In Sukhar v. State of U.P., 1999 (9)SCC 507, the Supreme Court has explained the provisions of S.6 of the Evidence Act, 1872 (Section 4 of the Bharatiya Sakshya Adhiniyam) observing that, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself.

In State of Maharashtra v. Kamal Ahamed, AIR 2013 SC 1441, the Supreme Court analysed S.6 in view of its illustration (a), the Court held:

“In our considered view, the test to determine admissibility under the rule of “res gestae” is embodied in words “are so connected with a fact in issue as to form a part of the same transaction”. It is therefore, that for describing the concept of “res gestae”, one would need to examine, whether the fact is such as can be described by use of words / phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration (a) under S.6 of the Evidence Act, especially in conjunction with the words “are so connected with a fact in issue as to form a part of the same transaction”, in a manner differently from the approach characterized above.”

Krishan Kumar Malik v State of Haryana 2011 (7) SCC 130: AIR 2011 SC 2877, In this case the prosecutrix met her mother and sister at the bus stop immediately after the alleged rape. But they were not examined as witnesses. The Court observed:

As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under S.6 of the Indian Evidence Act, 1872 (for short ‘The Act’) as they would have been Res Gestae witnesses. The purpose of incorporating S.6 in the Act is to complete the missing links in the chain of evidence of the solitary witness. ……….

This lacuna has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond shadow of doubt, that it was Appellant who had committed the said offences.

See also, Gagan Kanojia and Anr v State of Punjab (2006) 13 SCC 316 ,Govindaswamy v. State of Kerala (2016) 16 SCC 304 Dhal Singh Dewangan v. State of Chhattisgarh AIR 2016 SC 4745, Balaram Prasad Agrawal vs State of Bihar (1997) 9 SCC 388,

5. Essential Elements of Res Gestae

Imbayi v. State, 1989 (1) KLT 956, Justice Padmanabhan of the High Court of Kerala quite elaborately and neatly laid down the law as to res gestae as follows:

“The term res gestae may be defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. It is a term of protean significance. The rule has been declared to be incapable of any precise definition. The collection of primary facts constituting the necessary and immediate field of judicial enquiry may be designated as the res gestae. Within this field of immediate enquiry the court will receive evidence of all the facts. In a general way res gestae could be defined as meaning and including the circumstances, facts and declarations which grow out of the main fact and serve to illustrate its character and which are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabrication, and it has been made to embrace all facts which are relevant to the principal fact in any degree as tending to establish the existence of a claim or a liability in dispute between the parties which directly arises, if at all, from the primary fact. It includes things left undone and things done.”

After analysing various judgments the court laid down the essential elements of res gestae as under:

  • The statement or declaration must relate to the main event and must explain, elucidate or in some manner characterise that event;
  • (ii) It must be a natural declaration or statement growing out of the event, and not a mere narrative of a past completed affair;
  • It must be a statement of fact and not the mere expression of an opinion;
  • It must be a spontaneous and instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not a product of pre-meditation, reflection or design;
  • Though the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation;
  • It must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.
  • The real test is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event which it characterises as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony. Unsworn declaration as part of res gestae depends not on the credibility of the declarant, but derives their probative force from the close connection with the occurrence which they accompany and tend to explain and are admissible as original evidence, although it is frequently stated that they are received under an exception to the hearsay rule.”

Sarkar on Evidence summaries the law relating to applicability of S.6 of the Evidence Act (corresponding to Section 4 of the Bharatiya Sakshya Adhiniyam) thus:

“1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany the act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent to unless such facts are part of a transaction which is continuous.

  1. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past
  2. The declaration and the act may be by the same person, or they may be different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot & c. the declarations of all concerned in the common object are admissible
  3. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.”

6. Facts Which are the Occasion, Cause or Effect of relevant facts – Section 5:

Now we will move on to relevant facts under Section 5 of the Bharatiya Sakshya Adhiniyam, (Section 7 of Evidence Act). Section 5 reads as follows:

“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, which afforded an opportunity for their occurrence or transaction, are relevant.”

The Section deals with instances of causal connection. This section renders relevant a large category of facts though not forming part of the disputed transaction but connected with it in particular modes as provided in the section such as:

(1) A fact being the Occasion of a relevant fact or fact in issue.

(2) A fact being the Cause of a relevant fact or fact in issue.

(3) A fact being the Effect of a relevant fact or fact in issue.

(4) A fact which afforded an Opportunity for the occurrence of a relevant fact or fact in issue.

(5) A fact which constitutes the state of things under which a relevant fact or fact in issue happened.

Illustration (a) to the Section reads as:

The question is, whether A robbed B.

The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

This illustration relates to – fact being the Occasion of fact in issue.

Illustration (b) to the Section reads as:

The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

This illustration relates to -fact being the Effect of fact in issue.

Illustration (c) to the Section reads as:

The question is, whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

This illustration relates to – fact affording opportunity for the occurrence of fact in issue and also fact which constitutes the state of things under which the fact in issue happened.

7. Last seen theory

Physical presence of accused within a specific time and place is relevant proof of “occasion”.

“Last seen alive in the company of accused” theory is an indication of “occasion” and “Opportunity” as contemplated in the Section.

With respect to the “last seen theory” In State of U.P. v. Satish, 2005 (3) SCC 114, the Supreme Court noted as follows:

“The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

In Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006 (10) SCC 172 the Supreme Court observed on the same line as follows, as follows:

“The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration“.

For similar views See also Bodhraj v. State of J&K, 2002 (8) SCC 45and Jaswant Gir v. State of Punjab 2005 (12) SCC 438.

In, Digamber Vaishnav and another v. State of Chhattisgarh , AIR 2019 SC 1367, a 3 judges bench of the Supreme Court reiterated the law relating to last seen theory and observed as under:

It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.

 In Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372, it has been held as under:

“Thus the evidence that the appellant had gone to Sitaram in the evening of 19/07/1985 and had stated in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

  In Kanhaiya Lal v. State of Rajasthan, 2014 (4) SCC 715 : 2014 CriLJ 1950, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus:

“The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non – explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.”

8. Admissibility of Audio and Video Tape – Records

In R. v. Maqsud Ali, reported in 1965 (2) All ER p. 464, English Court said that it would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

In India, the Courts have held that a contemporaneous tape record of a relevant conversation is relevant under section 7 of Evidence Act, (corresponding to Section 4 of the Bharatiya Sakshya Adhiniyam).

In Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 1967 (3) SCR 720, Supreme Court observed that since the tape – records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

In, Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Others, reported in 1976 (2) SCC 17, the Supreme Court , observed that tape – records of speeches are “documents” as defined in S.3 of the Evidence Act and stand on no different footing than photographs. The three judges bench in “Ziyauddin Burhanuddin” further held that the tape – records of speeches were admissible in evidence on satisfying the following conditions:

“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject – matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

Similar conditions for admissibility of a tape – recorded statement were reiterated in Ram Singh and Others v. Col. Ram Singh, reported in 1985 (Supp) SCC 611 and in R. K. Anand v. Registrar, Delhi High Court, 2009 (8) SCC 106.

In, Tukaram S. Dinghole v. Manikrao Shivaji kokate, 2010 (4) SCC 329: AIR 2010 SC 965, the Supreme Court considered the issue of admissibility of tape record and observed as follows:

“There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes / cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.”

In, Vikram Singh alias Vickey Walia and another v. State of Punjab and another, reported in AIR 2017 SC 3227, the Supreme Court observed as follows:

“The tape recorded conversation was not secondary evidence which required certificate under S.65B, since it was the original cassette by which ransom call was tape – recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by S.65B is a mandatory condition. In Anvar P.V., AIR 2015 SC 180 (supra) this Court had laid down the above proposition in paragraph 22. However, in the same judgment this Court has observed that the situation would have been different, had the primary evidence was produced. The conversation recorded by the complainant contains ransom calls was relevant under S.7 and was primary evidence which was relied on by the complainant. In paragraph 24 of the judgment of this Court in Anvar P.V. it is categorically held that if an electronic record is used as primary evidence the same is admissible in evidence, without compliance with the conditions in S.65 – B.”

We will deal with admissibility of electronic record separately in module No. 20.

9. Section 6: Motive, preparation and previous or subsequent conduct.

Now we will move on to relevant facts under Section 8 of the Evidence Act. Section 6 reads as follows:

(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

 (2) 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 Adhiniyam.

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.

Illustrations.

(a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant.

(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A. The facts that, not long before, the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate; that he consulted advocates in reference to making the will, and that he caused drafts of other wills to be prepared, of which he did not approve, are relevant.

(e) A is accused of a crime. The facts that, either before, or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A’s presence—”the police are coming to look for the person who robbed B”, and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes B ten thousand rupees. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing—”I advise you not to trust A, for he owes B ten thousand rupees”, and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime. The fact that A absconded, after receiving a letter, warning A that inquiry was being made for the criminal, and the contents of the letter, are relevant.

(i) A is accused of a crime. The facts that, after the commission of the alleged crime, A absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is, whether A was raped. The fact that, shortly after the alleged rape, A 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, A said that A had been raped is not relevant as conduct under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as corroborative evidence under section 160.

 (k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, A 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 A said he had been robbed, without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as corroborative evidence under section 160

10. Facts Showing Motive

The first part of Section 6 makes relevant any facts which show motive or preparation for any fact in issue or relevant fact.

Motive is that which moves or induces the mind to act in a certain way.

A poor father steals a loaf of bread from a bakery to feed his starving child. Here the motive for the theft is the desire to feed the starving child.

Animosity developing from a boundary dispute between neighbours may lead to offences against human body and life, such animosity is the motive for the crime.

Illustrations (a) and (b) spells out instances of motive for crime which read as follows:

Illustrations (a) A is tried for the murder of B.

 The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

 (b) A sues B upon a bond for the payment of money. B denies the making of the bond.The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose is relevant.

In some cases, motive may be latent/hidden and may not be easy to prove, since one cannot always look/delve into the mind of a human being.

In Subedar Tewari v. State of U.P. & Ors., reported in AIR 1989 SC p. 733, the Supreme Court observed as under:

“The evidence regarding existence of motive which operates in the mind of an assassin is very often not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin.”

In the matter of appreciation of evidence Courts have held that:

Mere fact that the prosecution failed to lead conclusive evidence with respect to motive would not mean that no such mental condition existed in the mind of the accused. The motive assumes importance in the cases based on circumstantial evidence, however, it becomes meaningless when direct evidence of the crime is available and led by the prosecution to bring home the guilt to accused persons.

In Sunil Clifford Daniel v. State of Punjab, reported in 2012 (11) SCC p. 205, the Supreme Court held as follows:

In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture does not take the place of proof.”

Though it is very much natural that every criminal act is done with some sort of motive, but it would be unsafe to hold that no such criminal act can be presumed unless motive is proved. Motive is locked in the mind of the accused and sometimes it becomes difficult for the prosecution to unlock the motive, which is primarily known to the accused and sometimes to the deceased as well.

It is settled legal position that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance.

The following judgments have dealt with the above aspects relating to motive:

Hari Shankar Vs. State of U.P., 1996 (9) SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, 2003 (12) SCC 616; Abu Thakir & Ors. Vs. State of Tamil Nadu, 2010 (5) SCC 91; State of U.P. Vs. Kishanpal & Ors., 2008 (16) SCC 73; and Bipin Kumar Mondal Vs. State of West Bengal, 2010 (12) SCC 91.

There can be no action without a motive. Proof of presence of motive, preparation, opportunity or the previous attempts would be relevant as they go to show not only the mens rea in committing a crime, but also provide sufficient information in establishing the commission of the offence.

Motive may create a very strong suspicion but it cannot take the place of proof. Mere possibility of the existence of motive cannot make the accused guilty. It was so observed by the Supreme Court in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637.)

“Where the prosecution case depends on circumstantial evidence, motive assumes importance and goes a long way to prove the case of the prosecution, But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established, the evidence of an eyewitness is rendered untrustworthy (Shivaji v. State, AIR 1973 SC 55. )

Proof of motive lends additional support to the prosecution and absence of motive does not automatically warrant an acquittal. (Sardul Singh v. State of Haryana AIR 2002 SC 3462)

We may sum up as follows:

Mere existence of motive by itself is not an incriminating circumstance and it cannot give rise to an inference of guilt nor can it form by itself the basis for conviction. Motive for the crime even if adequate, cannot by itself sustain a criminal charge unless there are other clinching evidences to prove the guilt.

At the same time, if the evidence against the accused is clear and clinching, failure on the part of the prosecution to establish motive will be of no consequence.

11. Facts Showing Preparation

Now we will move on to facts showing Preparation

Preparation consists in arranging or devising the means necessary for the commission of a crime. Whereas an attempt is the direct movement towards commission after preparation is made.

As we have already seen any fact is relevant which shows preparation for any fact in issue or relevant fact. Normally a criminal will make preparations before he actually commits the crime. For instance Purchase of weapon to commit a crime.

Illustrations (c) and (d) to section 6 relate to preparations.  Let us go through the said illustrations:

Illustration (c) A is tried for the murder of B by poison.

 The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

In this illustration, procurement of poison constitutes preparation and therefore the same is relevant under section 6.

Illustration (d) The question is, whether a certain document is the will of A.

The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate, that he consulted vakils in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant.

Illustrations (c) and (d) are instances of previous conduct also.

12. “Conduct” – Previous and Subsequent

Now we will move on to “Conduct” – Previous and Subsequent.

The second part of Section 6 the Bharatiya Sakshya Adhiniyam makes relevant previous and subsequent conduct of any party (including the victim) in relation to fact in issue or relevant fact.

Conduct is the external behaviour of a person.

Conduct made relevant by section 6 is conduct which is directly and immediately influenced by a fact in issue or relevant fact.

Let us see a few instances of relevant conduct:

  1. Preparation and previous attempts to commit the offence are instances of previous conduct,
  2. Creating false documents or evidence,
  3. Fabricating false evidence to support the plea of alibi,
  4. Pretending insanity before or after the crime,
  5. Exhibiting agitated demeanor to mislead,
  6. Destroying or concealing evidence,
  7. Absconding after the incident of a crime,
  8. Active Silence or evasive response, (it may be noted that a man’s conduct is not only what he does but also what he refrains from doing.)
  9. Filing false complaint or First information statement indicting innocent persons,
  10. Delay in filing suit or complaint,
  11. Failure to send reply to legal notice of demand
  12. Pointing out stolen articles or scene of occurrence or place of hiding weapon or stolen articles or evidence of crime etc is conduct. Even when there is no relevant statement under the proviso to Section 25 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act), such ‘pointing out’ can be relevant under section 6 ( Section as conduct of the accused.

In Prakesh Chand v. State, reported in AIR 1972 SC 975, Supreme Court observed as follows:

“There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under S.8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by S.162 Criminal Procedure Code. What is excluded by S.162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen Articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under S.8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of S.27 of the Evidence Act (vide Himachal Pradesh Administration v. Om Prakash (AIR 1972 SC 975).”

Illustrations (e) to (j) in the section demonstrate instances of relevant conduct. Now we shall go through these illustrations again:

Illustration (e) A is accused of a crime.

 The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

Illustration (f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A’s presence- “the police are coming to look for the man who robbed B,” and that immediately afterwards A ran away, are relevant.

Illustration (g) The question is, whether A owes B rupees 10,000.

The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing- “I advise you not to trust A, for he owes B 10,000 rupees,” and that A went away without making any answer, are relevant facts.

Illustration (h) The question is, whether A committed a crime.

 The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

Illustration (i) A is accused of a crime.

 The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

Illustration (j) The question is, whether A was raped. The fact that, shortly after the alleged rape, A 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, A said that A had been raped is not relevant as conduct under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as corroborative evidence under section 160

(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, A 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 A said he had been robbed, without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as corroborative evidence under section 160

13. Mere Statement and Complaint – Difference

Now we will see the difference between a mere statement and a complaint. The difference is that the person who makes a complaint expresses some grievance and hopes that some action will be taken against the person whom a complaint is made. Any statement that contains a grievance is regarded as conduct under Explanation 1 to section 6 which reads as:

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.

The earlier referred illustration (j) is relevant in this context which reads as:

Illustration (j) The question is, whether A was raped. The fact that, shortly after the alleged rape, A 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, A said that A had been raped is not relevant as conduct under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as corroborative evidence under section 160.

If she had made only a mere statement without expressing grievance hoping for any action against the culprit then it is not a conduct.

It may be noted that ‘Complaint’ need not be to a court or to police or someone in official authority; it can be to parents, elders, neighbours etc.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Define Res Gestae. Explain, in the light of decided cases the provision in the Bharatiya Sakshya Adhiniyam which makes Res Gestae relevant.
  2. Explain, Last Seen Together Theory and its relevancy.
  3. Explain Relevancy of “Motive” under the Bharatiya Sakshya Adhiniyam.
  4. Discuss, Relevancy of Previous and Subsequent Conduct under the Bharatiya Sakshya Adhiniyam.
  5. Distinguish ‘mere statement’ and conduct relevant under the Bharatiya Sakshya Adhiniyam.