Law of Evidence

By Nizam Azeez Sait

MODULE No. 5

RELEVANCY OF FACTS WHICH ARE EXPLANATORY OR INTRODUCTORY OF THE OTHER RELEVANT FACTS, ETC UNDER SECTION 7 OF THE BHARATIYA SAKSHYA ADHINIYAM INCLUDING LAW RELATING TO IDENTIFICATION PARADE

This is the 5th Module of the subject ‘Law of Evidence’, which deals with Section 7, in Chapter II part II titled “Of the Relevancy of Facts” under the sub heading ‘Closely connected facts’ comprising Sections 4 to 14 of the Bharatiya Sakshya Adhiniyam.

Here, in this Module we shall take you through Section 7 (corresponding to Section 9 of the Evidence Act) dealing with relevancy of facts which are explanatory or introductory of the other relevant facts and a few other facts made relevant under Section 7.

Among others the law relating to Test Identification Parade (TIP), is dealt with in this Module.

MODULE INDEX

1. Relevant Facts Covered Under Section 7

2. Introductory and Explanatory facts

3. Facts which support or rebut an inference suggested by a fact in issue or relevant fact
4. Facts which establish the identity of anything or person whose identity is relevant

I. Identity of a thing

II. Identity of Persons

III. Foot Print and Track Evidence

IV. Test Identification Parade (TIP)

V. Test Identification Parade (TIP) is not Substantive Evidence – It is Corroborative Evidence

V1. Purpose and Significance of Test Identification Parade
V11. Non-Conduct of the Test Identification Parade

V111.Test Identification Parade –Summarising the Law

5. Facts which fix the time or place at any fact in issue or relevant fact happened.

6. Facts which show the relation of parties by whom any such fact was transacted

1. Relevant Facts Covered Under Section 7

Now we will start with relevant facts covered under Section 7 of the the Bharatiya Sakshya Adhiniyam (Section 9 of Evidence Act). Section 7 reads as follows:

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or a relevant fact, or which establish the identity of anything, or person whose identity, is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations.

  • The question is, whether a given document is the will of A. The state of A’s property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

(c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 6, as conduct subsequent to and affected by facts in issue. The fact that, at the time when he left home, A had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service, says to A—”I am leaving you because B has made me a better offer”. This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it—”A says you are to hide this”. B’s statement is relevant as explanatory of a fact which is part of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

We shall deal with these aspects one by one.

2. Introductory and Explanatory facts

Essential introductory facts help the courts in the better appreciation of the main facts or the facts in issue.

As we have seen in illustration (a) to section 7 the fact in issue therein is whether the subject document is the Will of “A”. The state of A’s property and details of his family at the date of the alleged Will, would be relevant as introductory facts.

In illustration (b) in a suit for libel the position and relation of the parties at the time of the publication of libel is relevant as introductory facts.

Section 7 of the the Bharatiya Sakshya Adhiniyam (Section 9 of Evidence Act).  also makes relevant, facts, which explain any fact in issue or relevant fact.

The illustrations (c) to (f) relates to relevant explanatory facts: Let us go through these illustrations once more.

(c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 6, as conduct subsequent to and affected by facts in issue. The fact that at the time when he left home he had sudden and urgent business at the place, to which he went, is relevant, as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s service, says to A- “I am leaving you because B has made me a better offer.” This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it-“A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

It is important to note that statements in illustrations (d) and (e) are made in the absence of the defendant/accused and can be considered as exception to the exclusion of hearsay rule.

3.Facts which support or rebut an inference suggested by a fact in issue or relevant fact

Now we will move on to Facts which support or rebut an inference suggested by a fact in issue or relevant fact

Illustration (c) which we have seen in the context of explanatory fact is also relevant as rebutting an inference suggested by a fact in issue or relevant fact.

Illustration (c) reads as:

A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 6, as conduct subsequent to and affected by facts in issue. The fact that at the time when he left home he had sudden and urgent business at the place, to which he went, is relevant, as tending to explain the fact that he left home suddenly.

The fact that at the time when A left home he had a sudden and urgent business at the place to which he went is also relevant as it rebuts the inference suggested by the fact in issue that he committed a crime.

4. Facts which establish the identity of anything or person whose identity is relevant

Now we will see Facts which establish the identity of anything or person whose identity is relevant

Identity is synonymous to uniqueness or distinctness.

i. Identity of a thing

In cases of theft when stolen property is recovered the identity of the property becomes significant in the case. Likewise, identity of weapon used in a crime is also significant. Such material objects are produced by the court for inspection and during the trial witnesses identify the same. Facts which show such identity is relevant under section 7 of the the Bharatiya Sakshya Adhiniyam (Section 9 of Evidence Act).

It is pertinent to note that Proviso to Section 55 of the the Bharatiya Sakshya Adhiniyam (Proviso to Section 60 of the Evidence Act) refers to the inspection of material things by the court. The proviso reads as:

“Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.”

In Earabhadrappa v. State of Karnataka, reported in AIR 1983 SC 446, the Supreme Court observed:

“It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.”

ii. Identity of Persons

When a person’s identity is in issue, it may be proved or disproved by direct evidence of an eyewitness as well as by scientific evidence such as DNA test, Superimposition, Expert Evidence as to the identity of foot prints or finger prints of accused found at the crime scene etc.

Identification by gait and voice by a person who knew accused is relevant. (See, Kripal Singh v State of UP, AIR 1965 SC 712). Gait means – manner of walking, posture, style etc.

iii. Foot Print and Track Evidence

In Pritam Singh and Another v State of Punjab AIR 1956 SC 415:1956 CriLJ 805. A 3 judges bench of the Supreme Court laid down that the track evidence can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court. In the facts and circumstances of the case the Court observed as under:

“The science of identification of foot prints is no doubt a rudimentary science and not much reliance can be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court. The shoes had been recovered in the search of the house of the accused and the result of the search was proved by calling the search witnesses whose evidence was believed by both the Courts with the result that these shoes, having been recovered from his house, the ownership of the shoes was prima facie established to be his even though the accused had alleged that he was not staying in the house but had rented the house for some acquaintance of his. There was evidence to show that he and his wife were staying there right up to 10 A. M. on 9-6-1953 on which day the search was made and if this evidence was believed it would go to establish his ownership of the shoes. If he was the owner of these shoes, it was quite legitimate to compare the impressions made by these shoes with the moulds prepared from the foot prints on the spot. The learned Additional Sessions Judge, however, in order to derive further assurance attempted in the examination of the accused under S.342, Criminal P. C. to see if these shoes which had been recovered from the house of the accused fitted his feet. If the accused had refused to accede to his suggestion of the learned Additional Sessions Judge he would have been justified in doing so and there is no provision in law by which this demonstration could have been made. The accused, however, agreed to do so and on the shoes being tried on his feet it appeared that they fitted his feet. Realising, however, that the result of this demonstration would be adverse to his defence he complained that the shoes were too tight for his feet. The learned Additional Sessions Judge, however, thought otherwise and recorded his impression accordingly. This type of evidence was very strongly criticised by the learned counsel for the appellants as real evidence which was not justified at all by the provisions of S.539B, Criminal P. C. or otherwise and it was urged that it was a matter which prejudiced the defence of the accused. The learned Additional Sessions Judge was certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his could not be tested by cross examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. The whole thing appears to have been done with the consent of the accused and the only criticism which could be legitimately levelled was against the observation recorded by the learned Additional Sessions Judge that “to all appearance they quite fitted the feet of the accused even though he complained that the shoes were too tight for his feet”. This observation could not carry the matter and further for the prosecution and the only fact which could be relied upon by the prosecution was that the shoes apparently fitted the feet of the accused and the learned Additional Sessions Judge and the assessors were entitled only to take into account the fact that the shoes apparently fitted the feet of the accused though he complained that they were too tight for his feet. This was ocular demonstration and the result of such ocular demonstration could certainly be taken into account by the learned Additional Sessions Judge and the assessors and they were entitled to come to their own conclusions taking into account the further fact that the accused did complain at the time that the shoes were too tight for his feet. The evidence of the trackers and also the fact that shoes were found in the house of the accused and the impressions made thereby tallied with the moulds prepared form the foot prints on the spot were even otherwise enough to establish the identity of the foot prints and point to Pritam Singh Fatehpuri as one of the culprits.  the accused under S.342, Criminal P. C. to see if these shoes which had been recovered from the house of the accused fitted his feet. If the accused had refused to accede to his suggestion of the learned Additional Sessions Judge he would have been justified in doing so and there is no provision in law by which this demonstration could have been made. The accused, however, agreed to do so and on the shoes being tried on his feet it appeared that they fitted his feet. Realising, however, that the result of this demonstration would be adverse to his defence he complained that the shoes were too tight for his feet. The learned Additional Sessions Judge, however, thought otherwise and recorded his impression accordingly. This type of evidence was very strongly criticised by the learned counsel for the appellants as real evidence which was not justified at all by the provisions of S.539B, Criminal P. C. or otherwise and it was urged that it was a matter which prejudiced the defence of the accused. The learned Additional Sessions Judge was certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his could not be tested by cross examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. The whole thing appears to have been done with the consent of the accused and the only criticism which could be legitimately levelled was against the observation recorded by the learned Additional Sessions Judge that “to all appearance they quite fitted the feet of the accused even though he complained that the shoes were too tight for his feet”. This observation could not carry the matter and further for the prosecution and the only fact which could be relied upon by the prosecution was that the shoes apparently fitted the feet of the accused and the learned Additional Sessions Judge and the assessors were entitled only to take into account the fact that the shoes apparently fitted the feet of the accused though he complained that they were too tight for his feet. This was ocular demonstration and the result of such ocular demonstration could certainly be taken into account by the learned Additional Sessions Judge and the assessors and they were entitled to come to their own conclusions taking into account the further fact that the accused did complain at the time that the shoes were too tight for his feet. The evidence of the trackers and also the fact that shoes were found in the house of the accused and the impressions made thereby tallied with the moulds prepared form the foot prints on the spot were even otherwise enough to establish the identity of the foot prints and point to Pritam Singh Fatehpuri as one of the culprits.”

iv. Test Identification Parade (TIP)

Now we will deal with the law relating to Test Identification Parade (TIP). When the accused are strangers to the eyewitnesses the police usually conduct Test Identification Parade through a Magistrate to ascertain the identity of the accused in custody. There could be Test Identification with respect to property also.

In a Test Identification Parade the accused will be put along with similar other persons and the eye witness will be asked to identify and point out the person whom he has seen committing the offence.

When the accused have previous acquaintance with the witness there is no point in conducting Test Identification Parade.

v. Test Identification Parade (TIP) is not Substantive Evidence – It is Corroborative Evidence

The Evidence of Test Identification parades is not substantive evidence. It is in the nature of corroborative evidence under Section 160 (Section 157 of the Evidence Act). The Identification before the Court is the Substantive evidence and the evidence of test identification parade lends corroborative credentials to such identification before the court.

The Supreme Court in Matru v. State of U.P. (1971 (2) SCC 75) observed:

“Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See also Santokh Singh v. Izhar Hussain (1973 (2) SCC 406).”

vi. Purpose and Significance of Test Identification Parade

The evidence of mere identification of the accused person in the dock at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior duly conducted test identification, therefore, is to test and strengthen the trustworthiness of that evidence by way of credible corroboration.

The purpose of prior Test Identification has been explained by the Supreme Court in various Judgments…Lets glance through some of the observations of the Supreme Court:

In Md Kalam @ Abdul Kalam v State of Rajastan, AIR 2008 SC 1813, after a survey of many relevant decisions the Supreme Court observed as follows:

“The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.”

The Court further observed:

“It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of S.9 of the Indian Evidence Act, 1872 (Section 7 of the Bharatiya Sakshya Adhiniyam) the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under S. 9 of the Evidence Act1872 (Section 7 of the Bharatiya Sakshya Adhiniyam).

As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.”

“The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See  Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102).”

In Khan alias Waheed v. State of A. P., reported in 2002 (7) SCC 175: AIR 2002 SC 2961, the Supreme Court enunciated the law as follows:

“Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. The necessity for holding an identification parade can arise only when the accused are not perviously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye – witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond their control and there is some delay, it cannot be said to be fatal to the prosecution.”

In Dana Yadav alias Dahu v. State of Bihar, 2002 (7) SCC 295, it was held as follows: –

“Identification parade are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject – matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.”

In Jayawant Dattatraya Suryarao v. State of Maharashtra, 2001 (10) SCC 109 : 2002 CriLJ 226, the Supreme Court observed:

“Substantive evidence of a witness is his evidence in Court. Identification parade is not primarily meant for the Court but is meant for investigation purpose. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for satisfying the investigation authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imaging that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one’s capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses.”

vii. Non-Conduct of the Test Identification Parade

 Non-Conduct of the Test Identification Parade though not fatal always, but certainly must be weighed in by the Court while considering the facts and circumstances of each case. It could be a factor in favour of the accused in the evaluation of the evidence.

In Amar Nath Jha v. Nand Kishore Singh, AIR 2018 SC 3597: 2018 CriLJ 4351, regarding the non-conduct of the test identification parade, the Supreme Court observed as under:

“The first aspect, we need to consider is that the inadequacy of Test Identification Parade [hereinafter referred as ‘TIP’ for brevity] has been conducted herein. ……. It is borne out of the record that the accused – Nand Kishore Singh and Maheshwar Singh were not subjected to T.I.P. The only person who was subjected to T.I.P. was a minor (Mintu Singh). It may be of some relevance to note that aforesaid Mintu Singh who has identified during the T.I.P. was referred to Juvenile Justice Board, as he was found to be a Juvenile. In this context we may note that in cases like present one T.I.P. acquires significance and lack of conduction of the same cannot be ignored. It is well settled that non – conduction of T.I.P. may not itself be fatal to the prosecution case but certainly it must be weighed in by the Court while considering the facts and circumstances of each case. [See: Kanta Prashad V. Delhi Administration, 1958 CrilJ 698 and Vaikuntam Chandrappa & Ors. V. State of Andhra Pradesh, AIR 1960 SC 1340]”.

 

viii. Test Identification Parade – Summarising the Law

Principles deduced from the various pronouncements of the Supreme Court relating to Test Identification Parade were summarised by Rajasthan High Court in Mahesh v. State of Rajasthan, 2006 CriLJ 1657 as follows: –

(i) Identification tests do not constitute substantive evidence. They can only be used as corroborative of the statement in court.

(ii) The main object of holding an identification parade during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye – witnesses, of the crime.

(iii) In order to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade and it is desirable that a test identification parade should be conducted as soon as after the arrest of the accused.

(iv) Appreciation of such evidence would depend upon the strength and trustworthiness of witnesses.

5. Facts which fix the time or place at any fact in issue or relevant fact happened

Next, we will have a look at Facts which fix the time or place at any fact in issue or relevant fact happened

In many cases the precise time of occurrence assumes significance. For instance, in murder cases expert medical opinion are often sought to fix the time of death. Likewise, the place of occurrence also assumes significance and therefore facts relating thereof are specifically made relevant. For instance, in case of road accident the exact spot/place of a collision may be significant to determine which driver was driving on the wrong side and negligently.

6. Facts which show the relation of parties by whom any such fact was transacted

Now we will see Facts which show the relation of parties by whom any such fact was transacted

In some cases /disputes facts showing relationship between the parties assume significance. For instance, where the validity of a contract is disputed on the ground that the execution was caused by undue influence and hence there was no free consent for the contract, the facts showing that the relationship subsisting between the parties was of such a nature that one of them was in a position to dominate the will of another is relevant.

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.

Option for Payment

The Author has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

Bank Account:

Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. Discuss, relevancy of facts which are explanatory or introductory of the other relevant facts.
  2. Discuss, relevancy of Facts which support or rebut an inference suggested by a fact in issue or relevant fact.
  3. The Evidence of Test Identification parades is not substantive evidence. Elucidate
  4. What is the purpose of the Test Identification parade? Whether non-conduct of Test Identification Parade is fatal for the Prosecution? Discuss in the light of judgments.