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EVIDENCE SUMMARIES....................................................................................................................1

Unit III: Scope of the IEA...............................................................................................................4

UOI v. T.R. Varma, 1957 SC 5 judges.........................................................................................4

Unit IV-Relevance...........................................................................................................................5

Munshi Prasad v. State of Bihar, SC 2001...................................................................................5

Sec. 6............................................................................................................................................5

Rattan Singh v. State of H.P.........................................................................................................5

Sukhar v. State of UP, 1999 SC 3 judges.....................................................................................7

Yusuf Esmail Nagree v. State of Maharashtra 1968 SC..............................................................9

Sec. 7..........................................................................................................................................12

Balram Prasad Agrawal v. State of Bihar, 1996 SC...................................................................12

Sec. 8..........................................................................................................................................15

R v. Lillyman-QB 1896.............................................................................................................15

R v. Blastland.............................................................................................................................16

Sec. 9..........................................................................................................................................21

Bibhabati Devi v. Ramendra Narain 1947 PC...........................................................................21

Sec. 15........................................................................................................................................22

Makin v. DPP.............................................................................................................................22

Boardman v. DPP-8 judges, House of Lords 1974....................................................................24

DPP v. P-1991 House of Lords 5 judges....................................................................................29

R v. George Joseph Smith-Ct of Crim Appeal, 1915.................................................................30

Laxmandas Chaganlal Bhatia v. State, Bom HC, 1966.............................................................32

Unit V: Rule against Hearsay.........................................................................................................34

Res Gestae.................................................................................................................................34

R v. Bedingfield-Crown Court 1879..........................................................................................34

R v. Andrews House of Lords 1987...........................................................................................36

Gentela Vijayardhan Rao v. State of A.P., 1996 SC...................................................................39

Dying Declarations....................................................................................................................40

Queen Empress v. Abdullah Allahabad HC 1885......................................................................40

State v. Ram Singh.....................................................................................................................44

Pakalanarayanswami v. King Emperor-1939 Privy Council.....................................................52

Unit VI: Types of Evidence...........................................................................................................55

State of U.P. v. Rajesh Talwar....................................................................................................55

Unit VII: Evidence in Conspiracies...............................................................................................64

Sec. 10........................................................................................................................................64

Mirza Akbar v. King Emperor, 1940 PC....................................................................................64

Badri Rai v. State of Bihar 1958 SC..........................................................................................65

Sec. 30........................................................................................................................................67

Sardul Singh Caveeshar v. State of Bombay, SC 1957..............................................................67

Bhagwan Swarup v. State of Maharashtra-1963 SC..................................................................68

Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, 3 judges...............................68

State v. Nalini.............................................................................................................................72

Unit VIII: Confessions...................................................................................................................73

State of Maharashtra v. Damu....................................................................................................73

Unit IX: Admissibility of Evidence...............................................................................................76

Pulukuri Kottaya v. King-Emperor, 1946 Bom HC...................................................................76

State of Bombay v. Kathi Kolu Oghad-11 judge bench, SC 1958.............................................78

State of Uttar Pradesh v. Deoman Upadhyaya-1960 SC...........................................................84

Prabhu v. State of U.P. 1962 SC-3 judges..................................................................................89

Illegally procured evidence........................................................................................................91

R.M. Malkani v. State of Maharashtra.......................................................................................91

Unit X: Scientific and Expert Evidence.........................................................................................97

Frye v. United States 1923.........................................................................................................97

Selvi v. State of Karnataka.........................................................................................................98

Unit III: Scope of the IEA

UOI v. T.R. Varma, 1957 SC 5 judges

Respondent was charged with aiding and abetting in bribing an assistant in the Ministry
of Commerce-enquiry proceedings against him-complained that the enquiry was vitiated
by the fact that i) the respondent and his witnesses were not allowed to give their
evidence by way of examination-in-chief but were only cross examined and ii) the
respondent was not allowed to put questions to the defense witnesses himself but their
answers were confined to questions put by the Inquiry Officer-filed writ petition under
Art. 226 in P and H HC to quash the order of dismissal
Court held: The Evidence Act has no application to enquiries conducted by tribunals,
even though they may be judicial in character. The law requires that such tribunals
should observe rules of natural justice in the conduct of the enquiry, and if they do
so, their decision is not liable to be impeached on the ground that the procedure followed
was not in accordance with that, which obtains in a court of law. The rules of natural
justice require that a party should have the opportunity of adducing all relevant
evidence on which he relies, that the evidence of the opponent should be taken in his
presence, and that he should be given the opportunity of cross-examining the
witnesses examined by that party, and that no materials should be relied on against
him without his being given an opportunity of explaining them. If these rules are
satisfied, the enquiry is not open to attack on the ground that the procedure laid
down in the Evidence Act for taking evidence was not strictly followed.
There had been no violation of the principles of natural justice. The witnesses were
examined at great length, had spoken to all relevant facts bearing on the question, and
there was no other matter on which they could have spoken-court found on facts that the
allegation of not being allowed to put questions to the witness was incorrect-writ was

Unit IV-Relevance

Munshi Prasad v. State of Bihar, SC 2001

Dudh Nath v. State of U.P.- The plea of alibi postulates the physical impossibility of the
presence of the accused at the scene of offence by reason of his presence at other place.
The plea can succeed only if it is shown that the accused was so far away at the
relevant time that he could not be present at the place where the crime was
Distance is a material factor for proving alibi
Place of occurrence of crime was 400-500 yards away from Panchayat where accused
were meeting-Court held it cannot be presence elsewhere-possible for accused to be
present at both places at the same time.
Differences between inquest and post-mortem report-PM Report by itself is not a
substantive evidence but it is the doctor's statement in Court, which has the
credibility of a substantive evidence and not the report-only to be used for
corroboration or contradiction of the doctors statement.
The inquest report also cannot be termed as substantive evidence being prepared by
the police personnel being a non-medical man and at the earliest stage of the proceeding.
Mere omission or addition of an injury cannot invalidate the prosecution case-
discrepancy in inquest or PM report can neither be termed to be fatal nor even a
suspicious circumstance, which would warrant a benefit to the accused and the resultant
dismissal of the prosecution case.
Delay in filing FIR not fatal to prosecution case.

Sec. 6

Rattan Singh v. State of H.P.

Accused charged with murdering housewife Kanta Devi-she had complained against him
earlier-his gun was seized through security proceedings-however he secured it back by
making an application through his advocate.
At about 11.00 p.m. Kanta Devi's mother-in-law woke up sensing that somebody would
have intruded into their privacy and asked others whether anyone was there-Kanta Devi
cried out that the appellant was standing there with a gun. This was followed by the
sound of a gunshot and pellets delved into her body. Kanta Devi's brother-in-law PW 3

Prakram Chand and his sister PW 10 Sheela Devi pounced upon the accused and in a
bout Sheela Devi succeeded in wresting the gun from him but he escaped, leaving his
torch-light and chappals at the place of incident.
The appellant owned the gun produced in this case but he said that police had seized that
gun from his house-fact of Sheela Devi seizing gun not mentioned in FIR
Court: Quite often the Police Officer, who takes down the FIR, would record what the
informant conveys to him without resorting to any elucidatory exercise. It is a voluntary
narrative of the informant without interrogation which usually goes into such statement.
So any omission therein has to be considered along with the other evidence to
determine whether the fact so omitted never happened at all-mere omission will not
There was overwhelming evidence that the gun was lying near the dead body-The two
neighbours who reached the spot on hearing the cry were Piar Singh (PW 4) and Sahib
Singh (PW 5). Both of them said that when they reached the place they saw Kanta Devi
lying dead and a gun, a torchlight and a pair of slippers were lying on the same site.
PW6, PW7 and PW 8 who were present when the Sub-Inspector (PW 23) prepared the
inquest have unequivocally said that the gun was lying on the courtyard where the dead
body of Kanta Devi remained.
Under what section can Kanta Devis statement be made relevant?- Court: When Kanta
Devi (deceased) made the statement that appellant was standing with a gun she might or
might not have been under the expectation of death. But that does not matter. The fact
spoken by the deceased has subsequently turned out to be a circumstance which
intimately related to the transaction which resulted in her death. The collocation of the
words in Section 32(1) "circumstances of the transaction which resulted in his
death" is apparently of wider amplitude than saying "circumstances which cause his
death". There need not necessarily be a direct nexus between "circumstances" and
death. It is enough if the words spoken by the deceased have reference to any
circumstance which has connection with any of the transactions which ended up in
the death of the deceased.
It is not necessary that such circumstance should be proximate-distant
circumstances can also become admissible under the sub-section, provided it has
nexus with the transaction which resulted in the death

Even apart from Section 32(1) of the Evidence Act, the statement of Kanta Devi can be
admitted under Section 6 of the Evidence Act on account of its proximity of time to
the act of murder. Illustration 'A' to Section 6- Here the act of the assailant intruding
into the courtyard during dead of the night, victim's identification of the assailant, her
pronouncement that appellant was standing with a gun and his firing the gun at her, are
all circumstances so intertwined with each other by proximity of time and space that
the statement of the deceased became part of the same transaction.
But then the court must be assured of the remaining two aspects i.e. reliability of the
evidence and accuracy of the contents of the pronouncement. Court held: No
difficulty in believing Kanta made the statement- BIL mentioned about it even at the
earliest opportunity when he gave First Information Statement. It was contended that it
was then dark and there was shadow of a mango tree and hence she could not have
identified the appellant correctly. The evidence shows that it was a moonlit night and
it happened on the open courtyard. The gunning down was followed by a bout between
the assailant on the one side and PW 3 and PW 10 on the other during which these
witnesses also had occasion to identify the assailant at very close range. Further again,
the gun which PW 10 Sheela Devi succeeded in wresting from the appellant is admittedly
the gun of the appellant.
When asked about production of gun under Sec. 313, appellant said I do not know-
Court confirmed conviction of HC

Sukhar v. State of UP, 1999 SC 3 judges

The appellant was convicted under Section 307 IPC for causing injury to Nakkal-
Prosecution case was that Nakkal appeared at the police station on the date of occurrence
at 9.40 a.m. and narrated the incident as to how he was injured by the accused. The police
then treated the said statement as First Information Report and started investigation.
As per the FIR, the accused Sukhar was the nephew of Nakkal and had cultivated the
land of Nakkal forcibly. When Nakkal demanded batai, Sukhar abused Nakkal and
refused to give any batai, thus there was enmity between them. On the fateful day during
the morning hours, while Nakkal was going on the road, Sukhar caught hold of his back
and fired a pistol shot towards him. Nakkal raised an alarm on account of which Ram

Kala and Pitam reached the scene of occurrence and at that point of time, Nakkal fell
down and the accused made his escape.
During trial, the prosecution witnesses, according to PW 2, the injured had told him
that the assailant, Sukhar had fired upon him. While the trial was pending Nakkal
died but the prosecution did not make any attempt to establish how he died or his
death was in any way connected with the injury sustained by him on the relevant
date of occurrence.
Defence: What the injured told the witness when the witness reached the scene of
occurrence and the factum of alleged shooting by the accused at the injured cannot be
said to have formed part of the same transaction. The evidence of PW 2 being categorical
that by the time he reached the scene of occurrence, several people had gathered, it
cannot be said that what the injured stated to him in fact formed part of the same
Witness had heard the sound of firing but did not see him getting hit by the bullet
SC: for bringing such hearsay evidence within the provisions of Section 6, what is
required to be established is that it 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.
Wigmore on Evidence Act: The declaration may be admissible even though
subsequent to the occurrence, provided it is near enough in time to allow the
assumption that the exciting influence continued.
Applied Gentela Vijayardhan Rao and Rattan Singh v. State of HP-Statement would be
admissible under Sec. 6.
Whether the evidence was reliable?- PW 2 in the cross-examination admitted that
Sukhar, the present appellant and he are inimical to each other since long before. It
was also elicited in the cross-examination of the said witness that by the time he reached
the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet
none of them were examined by the prosecution to corroborate PW 2 as to what was
told to him by the injured.
The witness being inimical to the accused and on account of what has been elicited
in his cross-examination, his evidence requires corroboration before being accepted.
There was no corroboration either from any oral evidence or from any other

circumstance-hence conviction was set aside as being based on unreliable and shaky

Yusuf Esmail Nagree v. State of Maharashtra 1968 SC

Appellants wife was prosecuted under Sec. 471 of the Bombay Municipal Corporation
Act- One Munir Ahmed Shaikh a notice clerk was entrusted with the duty of serving the
warrant. The charge against the appellant was that he offered to Shaikh on July 18,
1960, a sum of Rs. 25 and on August 2, 1960 a sum of Rs. 100 as a bribe for not
executing the warrant.
On August 2, 1960 appellant fixed a appointment at Shaikh's residence. Shaikh lodged a
complaint with the anti-corruption Bureau reporting the offer of a bribe of Rs. 25
on July 18 and the appointment at his residence in the evening. Of August 2, after
the complaint was recorded. S. G. S. I. Mahajan obtained the necessary permission
from the Chief Presidency magistrate to investigate into the offence. Mahajan
decided to lay a trap.
On a sofa in the outer room of Shaikh's residence he set up a microphone which was
connected to a tape recorder in the inner room. The microphone was concealed behind
books. Mahajan, a radio mechanic and other members of his party remained in the inner
room. Shaikh stayed in the outer room. The outer room and the person of Shaikh
were searched and no cash was found. At the appointed hour, the appellant came to
Shaikh's residence and was received by Shaikh in the outer room. Shaikh and the
appellant had an intimate conversation. The appellant offered a bribe to Shaikh
produced ten currency notes of Rs. 10 each and gave them to Shaikh. When Shaikh
gave the pre-arranged signal "Salim pan lao" Mahajan and other member of his party
entered the outer room and found the currency notes in Shaikh's short pocket. The tape
recorder was switched on as soon as the appellant arrived and was switched off after
the signal was given. The conversation between Shaikh and the appellant was
recorded in the tape recorder. The tape remained in the custody of Mahajan.
From, the shorthand notes made after the tape was replayed one Yakub prepared a
transcription of the conversation. The accuracy of the transcription was admitted.
At the trial of the case the tape recorder was played in court.
Shaikh was the only eye-witness to the offer of the bribe on August 2, 1960.
Mahajan, the radio mechanic and other persons who kept themselves concealed in
the inner room of the Shaikh's residence did not witness the offer of the bribe, nor
did they hear the conversation between Shaikh and the appellant. The High Court
found that his evidence was sufficiently corroborated by the tape recorder.
The appellant handed over Rs. 100 to Shaikh on August 2, 1960. The contemporaneous
dialogue between them formed part of the res gestae and is relevant and admissible
under s. 6 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape
record of the dialogue corroborates his testimony. The process of tape recording offers
an accurate method of storing and later reproducing sounds. The imprint on the magnetic
tape is the direct effect of the relevant sounds. Like a photograph of a relevant
incident, a contemporaneous tape record of a relevant conversation is a relevant fact
and is admissible under s. 7 of the Indian Evidence Act.
6. In S. Pratap Singh v. The State of Punjab MANU/SC/0272/1963 the tape record of a
conversation was admitted in evidence to corroborate the evidence of witness who had
stated that such a conversation had taken place. In R. v. Maqsud Ali (1965) 2 All E.R. 464
a tape record of a conversation was admitted in evidence though the only witness who
overheard it was not conversant with the language and could not make out that was said.
If a statement is relevant an accurate tape record of the statement is also relevant
and admissible. The time and place and accuracy of the recording must be proved
by the competent witness and the voices must be properly identified. One of the
features of magnetic tape recording is the ability to erase and re-use the recording
medium. Because of this facility of erasure and re-use, the evidence must be received
with caution. The court must be satisfied beyond reasonable doubt that the record
has not been tampered with.
7. The radio mechanic did not hear the conversation but proved that the tape
recorded all the sounds produced in the room where only Shaikh and the appellant
were present. The voices of the appellant and Shaikh were properly identified. The
tape was not sealed and was kept in the custody of Mahajan. The absence of sealing
naturally gives rise to the argument that the recording medium might have been
tampered with before it was replayed. However, it was not suggested either in the
cross examination of the prosecution witness or in the answers under Sec. 342 CrPC
that any tampering had taken place with the recording.

The fact that the defence did not suggest any tampering lends assurance to the
credibility of the other evidence. The courts below rightly held that the tape
recorder faithfully recorded and reproduced the actual conversation.
The appellant was not making a statement to Mahajan or to any other police officer.
He was not even aware that any police officer was listening to him. He was talking to
Shaikh. No doubt Shaikh was a police decoy assisting the police in their
investigation, but the statement of the appellant to Shaikh while making another
offer of a bribe cannot be regarded as a statement by him to the police . Nor can the
words uttered by Shaikh be regarded as a statement to the police. Shaikh was talking to
the appellant. He knew that what he said was being recorded for subsequent use by the
police officers. But he was not speaking to any police officer.
In the present case, the police officers set the stage for the drama in which the actors
were Shaikh and the appellant. The officer hid themselves in the inner room and
took no part of the drama. Neither of them can be regarded as having made a
statement to a police officer as contemplated by s. 162.
9. Art. 20(3) argument-Defence counsel argued that by the active deception of the police
the appellant was compelled to be a witness against himself. Had the appellant known
that the police had arranged a trap, he would not have talked as he did.
Compulsion may take many forms. A person accused of an offence may be subject to the
physical or mental torture. He may be starved or beaten and a confession may be extorted
from him. By deceitful means he may be induced to believe that his son is being tortured
in an adjoining room and by such inducement he may be compelled to make in
incriminating statement. However, the appellant was free to talk or not to talk. His
conversation with the Shaikh was voluntary. There was no element of duress,
coercion or compulsion-His statements were not extracted from him in an
oppressive manner or by force or against his wishes. Therefore he cannot claim the
protection of Art. 20(3). The fact that the tape recording was done without his
knowledge is not of itself an objection to its admissibility in evidence. However, the
Court observed that it is not lending approval to the police practice of tapping telephone
wires and setting up hidden microphones for the purpose of tape recording
Kunal: Statement of giving bribe is a declaratory act-directly FII-the conversation is
relevant as part of the same transaction in which bribe is being offered.

Sec. 7

Balram Prasad Agrawal v. State of Bihar, 1996 SC

On 30th and 31st October 1988 at about 2.00 a.m. the deceased Kiran Devi fell in the well
situated in the backyard of the house of her in-laws which was occupied by all the three
accused along with her. On 31st October 1988 at about 10.00 a.m. her husband respondent
No. 2 informed the appellant (her father) that his daughter Kiran Devi had died after
falling in the well. Thereupon the appellant went to the house of her in-laws where he
found the dead body of his daughter lying near the well. Thereafter he visited the house
of the accused 12th November 1988 in order to meet his grandson. At that time he was
informed by the neighbours that on the previous night of the date of the occurrence
there was quarrel in the house of the accused and they had heard the crying and
weeping of Kiran Devi and she was being assaulted by her in-laws-she had
previously tried to commit suicide by jumping in the same well-was constantly
tortured by in-laws
Charge under Secs. 498-A, 302 and 34 IPC
Counsel for respondent contended that what the complainant had heard from the
neighbours was hearsay and there was nothing to show that the accused were responsible
for her suicide.
Court held-no case made out under sec. 302-no evidence to show that on that fateful night
the accused or anyone of them had pushed or thrown Kiran Devi in the well-but charge
under Sec. 498-A made out.
Deceased father testified that his neighbours told him that on previous night of the
incident Kiran Devi was beaten by her mother-in-law Jhalo Devi, husband Paran
Prasad and Paran Prasads BIL and Kiran Devi was shouting 'Bachao Bachao' 'save
save' and they also told that the mother-in-law, husband and elder brother of the
husband of Kiran Devi, Girbar Prasad were telling that they would perform the
second marriage of Paran Prasad after killing her and were threatening to kill her
He had also deposed about the suffering undergone by his daughter at the hands of
the accused in past after her marriage. That his daughter Kiran Devi had informed
him that her husband used to ask her to bring money from him and on this he
replied that he had already given Rs. 10,000. She also used to say that her husband
Paran Prasad, Girbar Prasad and mother-in-law Jhalo Devi used to beat her. The marriage

of his daughter was solemnised in the year 1977. For 5-6 years there was no issue from
her and hence her in-law started abusing her and wanted to make a second marriage of
Paran Prasad. About four years prior to this incident his daughter Kiran Devi due to
the atrocities of her in-laws had jumped into the same well. However the neighbours
had saved her.
He also proved two post cards which he had received when his daughter was pregnant
and in these post cards he was informed that his son-in-law was trying to get married to
one Lalo Devi.
Court: His evidence about what his deceased daughter told him earlier about her
sufferings at the hands of the accused was admissible under Section 32 of the
Evidence Act.
On that fateful night apart from the victim only the accused were present in the
house. Thus what happened on that night and what led to the deceased falling in the
well would be wholly within the personal and special knowledge of the accused. But
they kept mum on this aspect. Burden is on the prosecution to prove the case beyond
reasonable doubt. But once the prosecution is found to have shown that the accused
were guilty of persistent conduct of cruelty qua the deceased, spread over years as is
well established from the unshaken testimony of P.W. 9, father of the deceased girl,
the facts which were in the personal knowledge of the accused who were present in
the house on that fateful night could have been revealed by them to disprove the
prosecution case. This burden under Section 106 of the Indian Evidence Act is not
discharged by them.
However, the informants turned hostile-counsel for the appellant submitted that what was
deposed to by the complainant would not remain in the realm of hearsay evidence as
these informants have been examined as witnesses
Sec. 60 of IEA-oral evidence has to be direct-The evidence before the court can be
divided into original and unoriginal. The original is that which a witness reports himself
to have seen or heard through the medium of his own senses. Unoriginal, also called
derivative, transmitted, secondhand or hearsay, is that which a witness is merely
reporting not what he himself saw or heard, not what has come under the immediate
observation of his own bodily senses, but what he had learnt respecting the fact

through the medium of a third person. Hearsay, therefore, properly speaking is
secondary evidence of any oral statement.
Court held even assuming the statements were hearsay, there was clinching evidence-
evidence of hostile witnesses can be relied upon to the extent of corroboration of the
prosecution case-Even if the nature of information alleged to be conveyed to the
father of the deceased by the neighbours about what was actually heard by them on
that fateful night may be ruled out as hearsay, the fact that some information was
conveyed to him by the neighbours on 12th November 1988 which prompted him to
rush to police as he entertained grave doubt on the basis of what was conveyed to
him by neighbours about the conduct of the accused on that night would remain
admissible in evidence-That part of his evidence was not shaken in cross examination.
Not only that but even the hostile witnesses P.W. 3 and 4 who are alleged to have given
some information to the witness P.W. 6 on 12th November 1988 had not even whispered
either in their chief examination or cross examination about their not having conveyed
any information or not having met P.W. 6 on 12th November 1988 as deposed to by P.W,
6 in his evidence. This part of the evidence of P.W.6 would not be hit by the rule of
exclusion of hearsay evidence.
Court held that under Sec. 114 of the IEA the cruel conduct of the accused could be
presumed to have continued till the death of the deceased-If a thing or a state of
things is shown to exist, an inference of its continuity within a reasonably proximate
time both forwards and backwards may sometimes be drawn-court convicted under s.
KA: Fact that she had been harassed-state of things, crying out for help relevant-

Sec. 8

R v. Lillyman-QB 1896
The prisoner was tried upon an indictment containing three counts. The first charged him
with an attempt to have carnal knowledge of a girl above the age of thirteen and under the
age of sixteen the second with an assault on the same girl with intent to ravish her the
third with an indecent assault, also upon the same girl. The girl was examined as a
witness in support of these charges, and deposed to the acts she complained of having

been committed without her consent. For the Crown, evidence was tendered in chief of
a complaint made by the girl to her mistress, in the absence of the prisoner, very
shortly after the commission of the acts charged, and it was proposed to ask the
witness called for that purpose to state the details of the complaint in the language used
by the girl.
Evidence of such a complaint, not on oath, nor made in the presence of the prisoner,
nor forming part of the res gest, is not admissible as evidence of the facts
complained of: those facts must therefore be established, if at all, upon oath by the
prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be
given before evidence of the complaint is admitted. The complaint can only be used as
evidence of the consistency of the conduct of the prosecutrix with the story told by
her in the witnessbox, and as being inconsistent with her consent to that of which
she complains.
Whether the contents of the complaint can be admitted, or is it only proof that a
complaint was made-yes they can-but the evidence is admissible only upon the ground
that it was a complaint of that which is charged against the prisoner, and can be
legitimately used only for the purpose of enabling the jury to judge for themselves
whether the conduct of the woman was consistent with her testimony on oath given
in the witnessbox negativing her consent, and affirming that the acts complained of
were against her will, and in accordance with the conduct they would expect in a
truthful woman under the circumstances detailed by her.
It is the duty of the judge to impress upon the jury in every case that they are not entitled
to make use of the complaint as any evidence whatever of those facts, or for any other
purpose-The whole statement of a woman containing her alleged complaint should,
so far as it relates to the charge against the accused, be submitted to the jury as a
part of the case for the prosecution.

R v. Blastland
Appellant was convicted of buggery and murder of a 12 year old boy-The appellant's own
evidence, shortly stated, was that he admitted meeting the deceased boy at some time
between 6 and 7 p.m. on the Thursday not far from where the body was later found. He
engaged in homosexual activity with him, to which, according to the appellant, the boy

consented in return for a money payment. He first attempted to bugger the boy but, when
the boy complained of pain, desisted before achieving penetration. He then had oral
intercourse with the boy. Very shortly after this the appellant said he saw another man
nearby (Mark) who, inferentially, could have seen what had happened between the boy
and the appellant. Fearing that he had been observed committing a serious offence, the
appellant panicked, ran away, and returned to his home.
There was a formal admission by the prosecution in the following terms: "Mark was fully
investigated by the police after the death of Karl Fletcher, including medical examination
and submission of his clothing for forensic examination." The medical examination
revealed an injury to Mark's penis, the significance of which was canvassed with the
medical experts who gave evidence. The forensic examination disclosed nothing to
connect Mark with Karl. In addition there were formal admissions by the
prosecution showing Mark to have been known to engage in the past in homosexual
activities with adults but not with children. There were also both formal admissions
and evidence relating to Mark's movements on the evening of Karl's murder.
In a series of interviews with police officers, Mark had successively made and
withdrawn admissions of his own guilt of the offences with which the appellant
stood charged-At the trial counsel for the appellant sought to put the material in these
interviews before the jury, first by an application to call a police officer and elicit from
him directly what was said, secondly by an application to call Mark, treat him as a hostile
witness, and cross-examine him about what he had said at the interviews-applications
were rejected
The prosecution had made available to the defence the statements of a number of
witnesses to the effect that Mark had said to them that a little boy had been
murdered. A woman named June, with whom Mark was living, was alleged by
another woman to have told her that Mark came home about 8 p.m. on the
Thursday evening of the murder, that at the time Mark was shaking like a leaf,
covered in mud, and wet from his knees downwards, and that he then told her that a
young boy had been murdered. Other witnesses said they had been told by Mark on the
Friday morning before the finding of Karl Fletcher's body that a boy had been murdered,
and according to one witness that the murdered boy lived at an address which, though not
in fact the address of the Fletcher family, was only a short distance from it in an adjoining

street. The defence wished to call the woman, June, and the other witnesses
mentioned in order to elicit from them what Mark had said about the boy's murder.
The judge ruled that this evidence, like the evidence of what Mark had said to the
police, would be hearsay and therefore inadmissible.
Appeal allowed on the issue: Whether evidence of words spoken by a third party who
is not called as a witness is hearsay evidence if it is advanced as evidence of the fact
that the words were spoken and so as to indicate the state of knowledge of the
person speaking the words if the inference to be drawn from such words is that the
person speaking them is or may be guilty of the offence with which the defendant is
Court refused to allow statements made by Mark to the police-To admit in criminal
trials statements confessing to the crime for which the defendant is being tried made
by third parties not called as witnesses would be to create a very significant and a
dangerous new exception to the rule of hearsay.
Argument of defense: The authorities relating to the application of the hearsay rule
contrast two distinct situations. In the first situation evidence is sought to be adduced of a
statement made to a witness in order to prove the truth of the facts stated. This is hearsay
evidence and must be excluded, unless it can be brought within one of the recognised
exceptions to the hearsay rule. In the second situation evidence is sought to be
adduced of a statement made to a witness in order to prove, not the truth of any
facts stated, but the state of mind either of the person who made the statement or of
the person to whom it was made. This evidence is not within the hearsay rule at all
it is direct and primary evidence of the state of mind of the maker or recipient of the
Knowledge is a state of mind. What Mark said to the witnesses on the Thursday evening
when Karl was murdered and on the following morning was direct and primary evidence
of his knowledge of the murder before the body had been found. Accordingly the
evidence was direct and primary evidence of that which it was called to prove. It was not
excluded by the hearsay rule and should have been left to the jury, together with all the
other evidence, for them to draw such inferences from it as they saw fit.
HL: If it is right, the argument does appear to lead to the very odd result that the
inference that Mark may have himself committed the murder may be supported indirectly

by what Mark said, though if he had directly acknowledged guilt this would have been
Statements made to a witness by a third party are not excluded by the hearsay rule
when they are put in evidence solely to prove the state of mind either of the maker of
the statement or of the person to whom it was made. What a person said or heard said
may well be the best and most direct evidence of that person's state of mind. This
principle can only apply, however, when the state of mind evidenced by the
statement is either itself directly in issue at the trial or of direct and immediate
relevance to an issue which arises at the trial.
The issue at the trial of the appellant was whether it was proved that the appellant
had buggered and murdered Karl Fletcher. Mark's knowledge that Karl had been
murdered was neither itself in issue, nor was it, per se, of any relevance to the issue.
What was relevant was not the fact of Mark's knowledge but how he had come by
that knowledge. He might have done so in a number of ways, but the two most obvious
possibilities were either that he had witnessed the commission of the murder by the
appellant or that he had committed it himself. The statements which it was sought to
prove that Mark made, indicating his knowledge of the murder, provided no
rational basis whatever on which the jury could be invited to draw an inference as to
the source of that knowledge. To do so would have been mere speculation. Thus, to
allow this evidence of what Mark said to be put before the jury as supporting the
conclusion that he, rather than the appellant, may have been the murderer in the
light of the principles on which the exclusion of hearsay depends, to be open to still
graver objection than allowing evidence that he had directly admitted the crime. If the
latter is excluded as evidence to which no probative value can safely be attributed, the
same objection applies a fortiori to the admission of the former.
The classic illustration of a statement admissible to prove the state of mind, again directly
in issue, of the person to whom the statement was made is Subramaniam v. Public
Prosecutor [1956] 1 W.L.R. 965. The appellant had been captured in the Federation of
Malaya by security forces operating against terrorists. He was tried and convicted of
unlawful possession of ammunition, which was at that time a capital offence in the
Federation of Malaya. His defence was that he acted under duress. At his trial he sought

to give evidence of threats made to him by terrorists, but this was ruled inadmissible as
His appeal against conviction to the Privy Council was allowed on the ground that, if the
threats were made to him and he believed them, the excluded evidence went directly to
support his defence of duress. Held: "In the case before their Lordships statements
could have been made to the appellant by the terrorists, which, whether true or not,
if they had been believed by the appellant, might reasonably have induced in him an
apprehension of instant death if he failed to conform to their wishes."
The authority on which the defence relied is the decision of the Privy Council in Ratten
v. The Queen [1972] A.C. 378-The appellant's wife had been killed by a cartridge
discharged from a shotgun held in the hands of the appellant. The evidence established
the time of the shooting as between 1.12 and 1.20 p.m. The appellant's defence was that
the shooting occurred accidentally while he was in course of cleaning the gun. The
evidence of the appellant was that after the shooting he immediately telephoned for an
ambulance and that shortly afterwards the police telephoned him upon which he asked
them to come immediately. He denied that any telephone call had been made by his wife,
and also denied that he had telephoned for the police. To rebut the appellant's account,
the prosecution called the evidence of a telephonist at the telephone exchange of a
call from the appellant's number received at about 1.15 p.m. from a woman saying:
"Get me the police please." According to the telephonist, the woman was hysterical
and sobbing.
The Board, in a judgment delivered by Lord Wilberforce, held this evidence admissible
on the grounds both that it was directly relevant to the issue and that it was part of the res
It (telephone call) can be analysed into the following elements.
(1) At about 1.15 p.m. the number Echuca 1494 rang. I plugged into that number.
(2) I opened the speak key and said 'Number please.'
(3) A female voice answered.
(4) The voice was hysterical and sobbed.
(5) The voice said 'Get me the police please.'
The factual items numbered (1)-(3) were relevant in order to show that, contrary to
the evidence of the appellant, a call was made, only some 35 minutes before the fatal
shooting, by a woman. It not being suggested that there was anybody in the house other
than the appellant, his wife and small children, this woman, the caller, could only have

been the deceased. Items (4) and (5) were relevant as possibly showing (if the jury
thought fit to draw the inference) that the deceased woman was at this time in a
state of emotion or fear. They were relevant and necessary, evidence in order to
explain and complete the fact of the call being made.
A telephone call is a composite act, made up of manual operations together with the
utterance of words. To confine the evidence to the first would be to deprive the act of
most of its significance. The act had content when it was known that the call was made in
a state of emotion. The knowledge that the caller desired the police to be called helped to
indicate the nature of the emotion anxiety or fear at an existing or impending emergency.
It was a matter for the jury to decide what light (if any) this evidence, in the absence of
any explanation from the appellant, who was in the house, threw upon what situation was
occurring, or developing at the time.
The defence emphasized the last sentence-Argued that it establishes, the proposition that
evidence of A's state of mind (the wife's fear in Ratten's case and Mark's knowledge in
the instant case) should be left to the jury to decide what inference they draw from it with
respect to B's action (whether the appellant in Ratten's case fired deliberately or
accidentally and whether, in the instant case, the appellant murdered Karl Fletcher).
HL: Ratten's case is clearly distinguishable. First, the telephone call in Ratten's case was,
although it could be analysed into component elements, nevertheless, as Lord
Wilberforce said, "a composite act, made up of manual operations together with the
utterance of words." The implication is that its admissibility had to be considered as a
whole. The very fact that the call had been made contradicted a critically important part
of the appellant's evidence. Secondly, the appellant's denial that the call had been
made precluded him from either offering any explanation of it or suggesting that it
was made in some other room out of his hearing. This led to a powerful inference that
what the wife said on the telephone was said in his presence. Thirdly, in these
circumstances, both the making of the call and the wife's state of fear manifested by
it were directly relevant to the critical issue in the trial as rebutting the appellant's
defence of an accidental shooting. There are no analogous considerations applicable in
the present case. (Marks statement was of no relevance to the issue)
The admissibility of a statement tendered in evidence as proof of the maker's
knowledge or other state of mind must always depend on the degree of relevance of

the state of mind sought to be proved to the issue in relation to which the evidence is
tendered-Held, evidence was rightly excluded.

Sec. 9

Bibhabati Devi v. Ramendra Narain 1947 PC

Bhowal Raja case-contracted syphilis-went to Darjeeling-supposedly cremated-years
later a sadhu emerged claiming to be the Second Kumar of Bhowal
The eyes of the Second Kumar were kata eyes, that is, of a shade lighter than the normal
dark brown eyes of a Bengalee eyes of the plaintiff also were of a light brownish colour-
Respondents contention rested upon the view that the entry of their colour as "grey" in
Dr. Caddy's report to the Insurance Company in 1905 in connection with the proposal of
the Second Kumar for life insurance could only mean that they were grey as
distinguished from brown, and that the report must be accepted as conclusive of the
matter. However there was conflicting evidence on the point-affidavit given to the
insurance company by Kali Prasanna Vidyasagar, who had long been familiar with the
Second Kumar, stated that the latter's eyes were rather brownish, but the witness Girish
Chandra Sen stated that Dr. Caddy had asked him to look for any identification marks,
and that he told the doctor "grey eyes", thereby meaning kata eyes.
When the Second Kumar went to Darjeeling he had gummatous ulcers on both arms
about the elbows, and about both legs, representing the tertiary stage of syphilis, which
he had contracted on some dale subsequent to Dr. Caddy's examination of him in 1905.
On the evidence it was also found that the plaintiff is "an old syphilitic individual". The
plaintiff had one scar on the left arm and two on the right arm, in each ease about the
elbow these were a small proportion of the number of ulcers from which the Second
Kumar was suffering in 1909, however court found that these three scars were the
remains of some of the Second Kumar's ulcers. There was no definite evidence as to the
permanency, or otherwise, of scars left by gummatous ulcers.
The plaintiff stated in his evidence that while with the Sanyasis he had no treatment. But
the court held that the doctor's evidence is a calculation of chances of recovery, which no
doctor would maintain to be without exception, and that he later stated that there is no
normality in syphilis. Therefore contention that the Kumar had permanent scars due to
syphilis and hence identity did not match also failed.

Sec. 15

Makin v. DPP
On the 9th of November some constables found the remains of four infants in the
back yard of 109, George Street, among which was the body of a male child, from two
to nine weeks old. It was clothed with a long white baby's gown and underneath a baby's
small white shirt, both of which were identified as being the gown and shirt in which
Murray's baby had been dressed. A minute portion of the infant's hair resembled the hair
of Murray's child. Previous to the finding of the four infants in George Street,
Redfern (on the 9th of November), two bodies of infants had been discovered, one on
the 11th and the other on the 12th of October, on the premises in Burren Street
where the prisoners had previously resided.
During the adjournment of an inquest on one of those bodies held in October, the prisoner
Sarah came to her former residence in George Street, Redfern, and said to witness, then
residing there, that she had called to see about those people that had lived there before
her, that she was a great friend of theirs, and asked if the police had dug the yard up, and
further asked if any bodies had been found in the yard. At this inquest both prisoners
were examined, no charge at that time having been made against them. They both swore
that the only child that they had ever received to nurse was the one which they had in
Burren Street, and which was given them after they arrived there. The prisoner Sarah
swore that none but her own family had removed from George Street, to Burren Street.
On the 2nd of November one, and on the 3 rd four more bodies were discovered
buried in Burren Street, and on the 3rd of November the prisoners were arrested.
On the night of that day prisoner John was placed in a cell with a witness, who deposed
that prisoner said to him that he (Makin) was there for babyfarming, that there were seven
found and there was another to be found, and when that was found he would never see
daylight any more that is what a man gets for obliging people, and that he could do
nothing outside as they were watching the ground too close that there was no doctor
could prove that he ever gave them anything, that he did not care for himself, but that his
children were innocent. On the 12th of November the bodies of two infants, bones
only, were found on the premises of Levy Street, Chippendale, where prisoners had

resided some time previous to their residence in Kettle Street. The prisoners had
moved from Kettle Street to George Street, and thence to Burren Street.
The prisoners alleged that they had received only one child to nurse that they had
received 10s. a week whilst it was under their care, and that after a few weeks it was
given back to the parents. When the infant with whose murder the appellants were
charged was received from the mother she stated that she had a child for them to adopt.
Mrs. Makin said that she would take the child, and Makin said that they would bring it up
as their own and educate it, and that he would take it because Mrs. Makin had lost a child
of her own two years old. Makin said that he did not want any clothing they had plenty
of their own. The mother said that she did not mind his getting3 premium so long as he
took care of the child. The representation was that the prisoners were willing to take the
child on payment of the small sum of 3, inasmuch as they desired to adopt it as their
Appellants convicted of the murder of Murrays child-issue was admissibility of the
evidence relating to the finding of other bodies, and to the fact that other children
had been entrusted to the appellants.
Held: The mere fact that the evidence adduced tends to show the commission of
other crimes does not render it inadmissible if it be relevant to an issue before the
jury, and it may be so relevant if it bears upon the question whether the acts alleged
to constitute the crime were designed or accidental, or to rebut a defence which
would otherwise be open to the accused.
Hence it was relevant to the issue to be tried by the jury that several other infants
had been received from their mothers on like representations, and upon payment of
a sum inadequate for the support of the child for more than a very limited period, or
that the bodies of infants had been found buried in a similar manner in the gardens
of several houses occupied by the prisoners.

Boardman v. DPP-8 judges, House of Lords 1974

Appellant was headmaster of school at Cambridge- was charged with having unlawfully
committed buggery with S and unlawfully inciting 2 boys H and A to commit buggery
with him- Each boy gave evidence. In addition to giving evidence as to the occasion
which was the subject of the charge, S gave evidence as to several incidents which took
place on various occasions prior to the mid-November occasion which was the subject of
the charge. The evidence showed the course of the appellant's conduct towards S. In a
similar way H gave evidence in regard to an occasion prior to January 14, 1973, in
addition to giving evidence in regard to what happened on that date
S spoke of a number of incidents. The first occurred at Tehran before the autumn
term of 1972 began. S had gone home for his holidays. The appellant was staying in
Tehran in a hotel. According to S there was an indecent assault. As to that the
appellant said that he had merely put his arm round S but had not put his hand on S's
private parts. The second incident was at Cambridge when S said that the appellant
had tried to touch him in the private parts but was repulsed. That incident the
appellant denied. The third incident (which was at the end of September or
beginning of October) occurred at about four or five in the morning when S was
asleep and was awakened and felt something touch his face. S's evidence was that
the appellant was there and said: "I love you, I love you, can you come to the sitting
room for five minutes ... five minutes of your time, ... "
As to this the appellant said that he was doing the rounds in the dormitory and saw that S
was not in his own top bunk but was in the bunk of another boy that, kneeling down, and
speaking quietly so as not to awaken other boys, he told both to go to the sitting room
saying that he would only keep them for a short time that possibly he said five minutes
that the other boy pretended to be asleep and that S refused to come that he tried
unsuccessfully three times to get S (who was very angry) to come. The appellant then left
them. There was an interview next day. The next incident according to S was when the
appellant asked him to go alone with him, offered him money "if you will be a very
good friend of mine," knelt in front of him and made the specific request not only
that buggery should take place but furthermore that S should play the active and
the appellant the passive part. That incident the appellant denied.
The next occasion was when the appellant said to S that he would tell the seniors not to
go to the sitting room that night and that S should come by himself. That was denied by
the appellant. Then came the occasion when according to S the actual act of buggery took
place. Sometime after 10.45 p.m. the appellant had asked S to go to him and had
threatened him with expulsion "if tonight you don't do it on me." S later went to the
appellant and in his evidence he described in some detail what took place. The appellant
wholly denied the occasion.

There was evidence given by a police officer and also by the appellant as to what was
said during an interview between them in January 1973. This was material in regard to
corroboration of S's evidence.
H gave evidence of two incidents. The first of these began when one night the
appellant, at some time between midnight and 2.00 a.m., woke H who was asleep in
a dormitory and told him to get dressed. Together they then went by taxi to a club
called the Taboo Disco Club. After some drinks there they returned to the school and then
sat drinking and talking in the sitting room. Then, while seated close together, the
appellant according to H started to touch his (H's) private parts through his
trousers he asked H to sleep with him and made the specific suggestion that H
should play the active part and he (the appellant) the passive part.
As to all this the appellant's evidence was that he had taken H to the club but that that
was in the hope of confronting H with a woman with whom he understood H had been
associating and who was regarded by the appellant as being undesirable as an associate.
The appellant denied that on their return to the school he had made any indecent
suggestion or invitation. The second incident spoken to by H was that which was the
basis of count 2. It occurred on or about January 14, 1973. After an earlier
discussion as to whether H should not return to the school after the Christmas
holidays as a boarder rather than as a day boy H said that while they were in the
sitting room the appellant again asked H to sleep with him and then touched his
(H's) private parts. The evidence of the appellant was that after the Christmas holidays
H had not returned to the school as a boarder but on his own initiative had become a day
boy and was associating with an undesirable woman. The January interview related to
that matter but the appellant said that there was no
Issue: Whether, on a charge involving an allegation of homosexual conduct there is
evidence that the accused person is a man whose homosexual proclivities take a
particular form, that evidence is thereby admissible although it tends to show that
the accused has been guilty of criminal acts other than those charged.
Held 5: 3 appeal should be dismissed-evidence would be admissible
Lord Morris: There may be cases where a judge, Makin v. Attorney General in mind,
considers that the interests of justice (of which the interests of fairness form so
fundamental a component) make it proper that he should permit a jury when

considering the evidence on a charge concerning one fact or set of facts also to
consider the evidence concerning another fact or set of facts if between the two there
is such a close or striking similarity or such an underlying unity that probative force
could fairly be yielded.
Held that the judge acted correctly in saying that the kind of criminal behaviour alleged
against the appellant in the two counts was in each case of a particular, unusual kind: that
it was not merely a straight case of a schoolmaster taking advantage of a pupil and
indecently assaulting a pupil but that there was the "unusual feature" that a grown
man attempted to get an adolescent boy to take the male part to the master's passive
part in acts of buggery and in pointing out that it was unlikely that two people would
tell the same untruth
Another feature of rather striking similarity lay in the evidence concerning the
nocturnal dormitory visits of the appellant. The waking up of S during the night and
all that was said during the "five minute incident" could legitimately be compared
with the early morning waking up of H and of all that followed. The matter could
perhaps also have been considered on a wider basis. The appellant stated that the S "five
minute incident" only came about because he (the appellant) "was doing the rounds in the
dormitory." The question is raised whether the visits at night merely marked the innocent
activity of a zealous schoolmaster whose association with those in his charge and under
his care made him solicitous for their welfare or whether the evidence negatived any such
innocent explanation.
Lord Wilberforce: In each case it is necessary to estimate (i) whether, and if so how
strongly, the evidence as to other facts tends to support, i.e., to make more credible,
the evidence given as to the fact in question, (ii) whether such evidence, if given, is
likely to be prejudicial to the accused. Both these elements involve questions of
degree (KA: probative and prejudicial value)
The judge is to allow the evidence only if the answer to the first question is clearly
positive, and, on the assumption, which is likely, that the second question must be
similarly answered, that on a combination of the two the interests of justice clearly
require that the evidence be admitted-The general rule is that such evidence cannot
be allowed, it requires exceptional circumstances to justify the admission.

Evidence that an offence of a sexual character was committed by A against B cannot
be supported by evidence that an offence of a sexual character was committed by A
against C, or against C, D and E. The question certified suggests that the contrary may
be true if the offences take a "particular form." All sexual activity has some form or
other and the varieties are not unlimited: how particular must it be for a special rule
to apply? The general salutary rule of exclusion must not be eroded through so
vague an epithet. The danger of it being so is indeed well shown in the present case for
the judge excluded the (similar fact) evidence of one boy because it showed "normal"
homosexual acts while admitting the (similar fact) evidence of another boy because the
homosexual acts assumed a different, and, in his view, "abnormal," pattern.
If the evidence was to be received, then, it must be on some general principle not
confined to sexual offences. The basic principle must be that the admission of
similar fact evidence) is exceptional and requires a strong degree of probative force.
This probative force is derived, if at all, from the circumstance that the facts
testified to by the several witnesses bear to each other such a striking similarity that
they must, when judged by experience and common sense, either all be true, or have
arisen from a cause common to the witnesses or from pure coincidence. The jury
may, therefore, properly be asked to judge whether the right conclusion is that all are true,
so that each story is supported by the other(s).
The words "a cause common to the witnesses" include not only the possibility that the
witnesses may have invented a story in concert but also the possibility that a similar story
may have arisen by a process of infection from media of publicity or simply from
fashion. In the sexual field, and in others, this may be a real possibility: something much
more than mere similarity and absence of proved conspiracy is needed if this
evidence is to be allowed.
The present case is right on the borderline. There were only two relevant witnesses, S
and H. The striking similarity as presented to the jury was and was only the active
character of the sexual performance to which the accused was said to have invited
the complainants. In relation to the incident which was the subject of the second
charge, the language used by the boy was not specific: the "similarity" was derived
from an earlier incident in connection with which the boy used a verb connoting an

active role. This one striking element, common to two boys only, is, if sufficient, only
just sufficient.
Concurred with majority-but observed that the case may set the standard for striking
similarity too low.

DPP v. P-1991 House of Lords 5 judges

Appeal from decision of Court of Appeal- Defendant was convicted on two counts of
rape and eight counts of incest, the victims being his daughters, B. and S. The CoA held
that the evidence of B was inadmissible on the counts relating to S., and vice versa, and
accordingly, there should have been an order for separate trials.
Issues: 1. Where a father or stepfather is charged with sexually abusing a young
daughter of the family, is evidence that he also similarly abused other young
children of the family admissible (assuming there to be no collusion) in support of
such charge in the absence of any other 'striking similarities?' 2. Where a defendant is
charged with sexual offences against more than one child or young person, is it necessary
in the absence of 'striking similarities' for the charges to be tried separately?'
It is not appropriate to single out 'striking similarity' as an essential element in
every case in allowing evidence of an offence against one victim to be heard in
connection with an allegation against another. Obviously, in cases where the identity of
the offender is in issue, evidence of a character sufficiently special reasonably to identify
the perpetrator is required
The essential feature of evidence which is to be admitted is that its probative force in
support of the allegation that an accused person committed a crime is sufficiently
great to make it just to admit the evidence, notwithstanding that it is prejudicial to
the accused in tending to show that he was guilty of another crime. (Probative value
>prejudicial value) Such probative force may be derived from striking similarities in
the evidence about the manner in which the crime was committed-but it should not
be limited to striking similarity-Whether the evidence has sufficient probative value
to outweigh its prejudicial effect must in each case be a question of degree
In the present case the evidence of both girls describes a prolonged course of conduct in
relation to each of them. In relation to each of them force was used. There was a general
domination of the girls with threats against them unless they observed silence and a
domination of the wife which inhibited her intervention. The defendant seemed to have

an obsession for keeping the girls to himself, for himself. The younger took on the role of
the elder daughter when the elder daughter left home. There was also evidence that the
defendant was involved in regard to payment for the abortions in respect of both girls.
These circumstances taken together gave strong probative force to the evidence of each
of the girls in relation to the incidents involving the other, and was certainly sufficient to
make it just to admit that evidence, notwithstanding its prejudicial effect
The judge must first decide whether there is material upon which the jury would be
entitled to conclude that the evidence of one victim, about what occurred to that
victim, is so related to the evidence given by another victim, about what happened to
that other victim, that the evidence of the first victim provides strong enough
support for the evidence of the second victim to make it just to admit it
notwithstanding the prejudicial effect of admitting the evidence. This relationship,
from which support is derived, may take many forms and while these forms may include
'striking similarity' in the manner in which the crime is committed, consisting of unusual
characteristics in its executionhowever relationships in time and circumstances other
than these may well be important relationships in this connection.
Where the identity of the perpetrator is in issue, and evidence of this kind is
important in that connection, a signature or other special feature will be necessary.
To transpose this requirement to other situations where the question is whether a crime
has been committed, rather than who did commit it, is to impose an unnecessary and
improper restriction upon the application of the principle.
Answer to First issue-The evidence referred to is admissible if the similarity is
sufficiently strong, or there is other sufficient relationship between the events
described in the evidence of the other young children of the family, and the abuse
charged, that the evidence if accepted, would so strongly support the truth of that
charge that it is fair to admit it notwithstanding its prejudicial effect. Answer to the
second question is no, provided there is a relationship between the offences of this kind.

R v. George Joseph Smith-Ct of Crim Appeal, 1915

The appellant was charged with the murder of Bessie Munday evidence was admitted to
show that he murdered two other women at a later date. The first question raised is that

the judge was wrong in admitting evidence of the deaths on the ground that it tended to
show that the act charged had been committed, that is, had been designed
Held: If there is prim facie evidence that the appellant committed the act charged-
which there was in this case-evidence of similar acts became admissible.
What was prima facie evidence in this case?- The appellant, although married to someone
else, went through a form of marriage with Munday. He appropriated all her money and
deserted her. Eighteen months later they met accidentally, and a letter was written to her
relations, in which she acquiesced, giving his reasons for leaving her, and having
reference to her money, which she was said to have lent to him. A few months later they
were at Herne Bay, living in a house alone together. Mutual wills were made, but as
Munday had all the money and the appellant none, this was a mere blind. He then got
counsel's opinion as to the effect of Munday's settlements on the 2nd July he learnt that,
with the exception of 8 a month paid her by her uncle, he could secure none of her
money except by her death.
On the 6th July he selected a bath, although they had got on without one for five or
six weeks, and the particular bath chosen was of a most inconvenient size, and was
put in a most inconvenient room far from the water supply the door of the room
had no lock. It had never been suggested that Munday suffered from any illness
until after the bath was delivered, but then he took Munday to Dr. French, and
described her symptoms in such a way as to induce Dr. French to think that she had
had an epileptic fit. Evidence was given that it was very unusual for a woman of that
age to have a succession of epileptic fits.
On the day before her death Dr. French found Munday in perfect health though rather
tired, this being caused by the very hot weather. According to the appellant's statement
before the coroner, the couple got up together at 7.30 a.m. it was 8.10 before the doctor
was at the house, he having been sent for by the appellant. He found her dead in the
bath, with her legs straight out with her soles up against the side of the bath. In no
other position could a woman of that height be placed in that bath so that her mouth
and nose should be under the water. According to the medical evidence the position
of the legs was inconsistent with an epileptic fit.
No communication as to the time of the funeral was made to her relatives, and after it he
disappeared, instructing the solicitor and the bank not to let anyone know where he was.

He had passed as Williams at Herne Bay, but the money was transferred to him in the
name of Smith. On arrest he denied having had anything to do with Herne Bay. There
was clearly Prim facie evidence that he caused Munday's death by drowning he had a
motive for causing her death, and the evidence excludes any reasonable possibility of
the death having been accidental. No one else had the motive and the opportunity
for causing her death, and it was the appellant who laid the foundation for the
doctor's suggestion of epilepsy.
The second point taken is that even assuming that evidence of the death of the other two
women was admissible, the prosecution ought only to have been allowed to prove that the
women were found dead in their baths-Held: to cut short the evidence there would have
been of no assistance to the case. The judge was right in admitting evidence of the facts
surrounding the deaths of the two women.
The judge in the course of his summing up put forward a new theory which had not been
discussed by counsel, and which was mentioned for the first time in the summing up. He
said it was possible, according to a demonstration given when summing up, that the body
had been lifted into the bath in a manner which he illustrated. It is contended no such
suggestion had been made in the course of the proceedings. He also made suggestions as
to the headaches before the deaths which have been criticised. During the case theories
had been put forward by the prosecution (that the legs of the deceased had been lifted up
and kept up so as to submerge the head), one as the main theory, and a possible second,
how the death had occurred, and the defence had also put forward a theory.
Held: The judge stated the principle correctly he said, It is not necessary for you to be
clear in your mind as to the exact mode, if you are satisfied that the prisoner killed
the woman. The woman's death was caused by drowning, the exact method was not
proved, but that was not necessary as long as the jury were satisfied that the death by
drowning was caused by the prisoner.

Laxmandas Chaganlal Bhatia v. State, Bom HC, 1966

Prosecution against appellants and some others for offences of conspiracy under Section
120-B of the Indian Penal Code for importing and bringing into India gold in
contravention of the Sea Customs Act 1878.
Prosecution-Evidence regarding conspiracy is that accused No. 6 after he agreed to
finance in some measure the bringing of gold into India and helped Yusuf Merchant
in its being received, he applied for registration of telegraphic address and acquired
it on November 19, 1956, the address being 'Subhat'. On some occasions, he
instructed accused No. 14 to make trips to recover gold from Delhi.
Argued that the evidence of part taken by both accused Nos. 6 and 14 as helpers of
Hamad Sultan along with Yusuf Merchant prior to the period of conspiracy is
necessary to be introduced to show that neither the acquisition of telegraphic address
'Subhat' nor the trips to Delhi were mere accident. In other words, this evidence is
relevant to show the intention of these accused both in the obtaining of the
telegraphic address and in the trips one or both made.
R. Jethmalani contended that S. 15 applies only to those cases where mens rea is a
constituent of the offence and the transactions to be proved must be transactions
exactly similar to those in question. He also contended that the acts sought to be proved
must be part of the same transaction-S. 54 which makes the character of an accused
person irrelevant in a criminal proceeding controls all the other sections in the
Evidence Act, and therefore, evidence of anything offered by the prosecution, if it
tends to show the bad character of the accused, cannot be admitted at all.
Court: No doubt, the illustrations suggest that the question of intention must arise in
reference to the act with which an accused is charged and not any act which may be a
relevant fact. However prima facie, S. 54 cannot be given overriding effect. If such a
strained meaning is given to the language of Section 54, it would prevent very often
relevant evidence being introduced and hamper the course of justice. True that the use of
such evidence of prior transactions which is given by the prosecution must be confined
within its proper and legitimate limits only. The Court cannot, merely because there
was evidence of similar actions on the part of the accused some time previous, infer
that the offence under inquiry must also necessarily have been committed by the
accused, and to that extent one may restrict the operation of Section 11-Facts which
are of merely probative force cannot be offered in evidence under the section-
therefore evidence of previous trips would not be relevant under s. 11.
In response to Jethmalanis argument about mens rea-cited previous case of SC-evidence
in rebuttal of a very likely and probable defence on the question of intention can be led
by the prosecution as part of its case. To anticipate a likely defence in such a case and to
give evidence in rebuttal of such defence is in substance nothing more than the letting in

of evidence by the prosecution of the requisite criminal intention beyond reasonable
If the evidence is relevant under S. 14 or Section 15, merely because it might show
previous misconduct of the accused, it is not inadmissible because of Section 54-held
evidence was admissible to show intention in carrying out the trips.
KA: another way of reaching same conclusion-s. 54 prohibits evidence of general
propensity-because they did that, more likely they did this not whether something was

Unit V: Rule against Hearsay

Res Gestae

R v. Bedingfield-Crown Court 1879

The prisoner apparently had relations with the deceased woman, and had conceived a
violent resentment against her on account of her refusing him something he very much
desired, and also as appearing to wish to put an end to these relations he had uttered
violent threats against her, and had distinctly threatened to kill her by cutting her throat-
The night before she died, she asked a policeman to keep an eye on her house because
she had apprehensions about the prisoner and near 10pm he heard the voice of a man in
great anger.
Early next morning, earlier than he had ever been there before, he came to her house, and
they were together in a room some time. He went out, and she was found by one of the
assistants lying senseless on the floor, her head resting on a footstool. He went to a spirit
shop and bought some spirits, which he took to the house, and went again into the room
where she was, both the assistants being at that time in the yard. In a minute or two the
deceased came suddenly out of the house towards the women with her throat cut,
and on meeting one of them she said something, pointing backwards to the house. In
a few minutes she was dead.
When the witness was called-one of the assistants who heard the statement-she was first
asked as to the circumstances, and stated that "the deceased came out of the house
bleeding very much at the throat, and seeming very much frightened," and then said

something, and died in ten minutes. The prosecution proposed to state what she said.
It was objected on the part of the prisoner that it was not admissible.
Whether it could be admissible (b) having been made in the absence of the prisoner,
as part of the res gestae? Held: It was not admissible, for it was not part of anything
done, or something said while something was being done, but something said after
something done. It was not as if, while being in the room, and while the act was being
done, she had said something which was heard.
Anything, he said, uttered by the deceased at the time the act was being done would be
admissible, as, for instance, if she had been heard to say something, as "Don't, Harry!"
But here it was something stated by her after it was all over, and after the act was
It was submitted, on the part of the prosecution, that the statement was admissible as a
dying declaration, the case to be proved being that the woman's throat was cut completely
and the artery severed, so that she was dying, and was actually dead in a few minutes but
COCKBURN, C.J. said the statement was not admissible as a dying declaration,
because it did not appear that the woman was aware that she was dying.
Though she might have known it if she had had time for reflection, here that was not
so, for at the time she made the statement she had no time to consider and reflect
that she was dying there is no evidence to show that she knew it, and this could not
be presumed. There is nothing to show that she was under the sense of impending death,
so the statement is not admissible as a dying declaration-The surgeon who testified was
not asked whether from the nature of the wound and the sense of approaching death the
woman must not have felt and known she was dying.
The defence of the prisoner was that the woman had first cut his throat and then her own
with a razor she had borrowed from him professedly for another purpose-However the
doubt of the prisoner's guilt was indeed removed by the fact that the deceased ran
out to make complaint or outcry, and the fact that the razor was found under his
body, and under his hand-almost in his hand-for the marks of his fingers were upon
it, and it was evident that he had held it in his hand, and that his hand had only just
relaxed its grasp with the weakness caused by loss of blood.
Cockburn, C.J., in summing up the case to the jury, pressed - both these facts upon their
attention, especially the first, pointing out that it was the deceased woman, not the
prisoner, who ran out, as though to make outcry or complaint

R v. Andrews House of Lords 1987
Issue: Where the victim of an attack tells a witness what has happened and does that in
circumstances which satisfy the trial judge that there was no opportunity for concoction,
is evidence of what the victim said admissible as to the truth of the facts recited as an
On 13 September 1983 Alexander Morrow was attacked and stabbed with two different
knives and robbed-died 2 months later-Both O'Neill and the appellant, Andrews, were
charged with murder. O'Neill pleaded guilty to manslaughter-The appellant pleaded not
guilty and O'Neill was the prosecution's main witness at the appellant's trial-testified as to
the details of the murder.
Two constables arrived-Worboys and Hanlon-The deceased replied that he had been
attacked by two men. He gave the names of his attackers, as being Peter O'Neill from flat
5, Rouple House, and the other, as a man he knew as Donald. He said he had gone to the
door of his flat, opened the door and was attacked by these two men. P.C. Worboys
noticed that P.C. Hanlon, who was making a note of this statement, had written down the
name "Donavon." P.C. Worboys was convinced that the name was Donald and he told
P.C. Hanlon that he was wrong. P.C. Hanlon was not as close to the deceased as P.C.
In his evidence P.C. Worboys confirmed that the deceased had said that he had been
attacked by two persons, one of whom he knew as O'Neill and a person, whom P.C.
Hanlon thought the deceased had referred to as "Donavon." P.C. Hanlon said that he
heard "Don" quite clearly but as he pronounced the rest of the word his voice "mellowed
and he got quieter." He said he did not notice that the deceased had any accent. The
evidence was that the deceased spoke with a Scottish accent.
Prosecution sought to introduce the statement of the deceased-Court observed that the
evidence merely of the fact that such an assertion was made would not have related to
any issue in the trial and therefore would not have been admissible. Had, for example, the
deceased's state of mind been in issue and had his exclamation been relevant to his state
of mind, then evidence of the fact that such an assertion was made, would not have been
hearsay evidence since it would have been tendered without reference to the truth of
anything alleged in the assertion. Such evidence is often classified as "original" evidence.

Prosecution argued it was res gestae-could not submit that the statement was a "dying
declaration" since there was no evidence to suggest that at the time when the deceased
made the statement (two months before his ultimate death), he was aware that he had
been mortally injured.
Referred to Ratten v. Queen(case facts in Blastland)-Lord Wilberforce at pg
391-"Hearsay evidence may be admitted if the statement providing it is made in
such conditions (always being those of approximate but not exact contemporaneity)
of involvement or pressure as to exclude the possibility of concoction or distortion to
the advantage of the maker or the disadvantage of the accused."The way in which
the statement came to be made (in a call for the police) and the tone of voice used,
showed intrinsically that the statement was being forced from the deceased by an
overwhelming pressure of contemporary event. It carried its own stamp of spontaneity
and this was endorsed by the proved time sequence and the proved proximity of the
deceased to the accused with his gun."
Reg. v. Boyle (unreported) involved the theft of a grandfather clock from an old lady to
whose home the appellant had obtained access by a false representation. When he took
away the clock she came out of the house with a piece of paper in her hand and when
asked by a neighbour, "what is happening?" she said "I am coming for his address." This
statement was admitted to support the victim's account that the removal of the clock was
against her will and to negative the defence that it was being taken away by the defendant
with her consent, to have it repaired. A clear issue in the case was the state of mind of the
victim in relation to the removal of her clock. Her statement in the circumstances, as the
car drove off, was evidence from which the jury could infer that she was not consenting
to the clock being taken away
How should the trial judge admit res gestae evidence?- 1. The primary question which
the judge must ask himself is-can the possibility of concoction or distortion be
2. To answer that question the judge must first consider the circumstances in which
the particular statement was made, in order to satisfy himself that the event was so
unusual or startling or dramatic as to dominate the thoughts of the victim, so that
his utterance was an instinctive reaction to that event, thus giving no real
opportunity for reasoned reflection. In such a situation the judge would be entitled to

conclude that the involvement or the pressure of the event would exclude the
possibility of concoction or distortion, providing that the statement was made in
conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently "spontaneous" it must be so closely
associated with the event which has excited the statement, that it can be fairly stated that
the mind of the declarant was still dominated by the event. Thus the judge must be
satisfied that the event, which provided the trigger mechanism for the statement, was
still operative. The fact that the statement was made in answer to a question is but one
factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate
to the possibility of concoction or distortion. In the instant appeal the defence relied upon
evidence to support the contention that the deceased had a motive of his own to fabricate
or concoct, namely, a malice which resided in him against O'Neill and the appellant
because, so he believed, O'Neill had attacked and damaged his house and was
accompanied by the appellant, who ran away on a previous occasion. The judge must be
satisfied that the circumstances were such that having regard to the special feature
of malice, there was no possibility of any concoction or distortion to the advantage of
the maker or the disadvantage of the accused.
5. There may be special features that may give rise to the possibility of error. In the
instant case there was evidence that the deceased had drunk to excess, well over
double the permitted limit for driving a motor car. Another example would be where
the identification was made in circumstances of particular difficulty or where the
declarant suffered from defective eyesight. In such circumstances the trial judge must
consider whether he can exclude the possibility of error.
HL upheld trial courts judgement-on the evidence-it was clear that the deceased only
sustained the injuries a few minutes before the police arrived and subsequently, the
ambulance took him to hospital. Even if the period were longer than a few minutes, there
was no possibility in the circumstances of any concoction or fabrication of
identification. The injuries which the deceased sustained were of such a nature that
it would drive out of his mind any possibility of him being activated by malice and as
far as the identification was concerned, he was right over Mr. O'Neill who was a former
co-defendant with the accused."

Res gestae applies to civil proceedings as well, even where the maker of the
statement is called as a witness-however in criminal proceedings, this would deprive
the defence of the opportunity of cross examination and should not be used where
the maker is available.

Gentela Vijayardhan Rao v. State of A.P., 1996 SC

Bus set on fire-statements of witnesses recorded as dying declarations in the hospital but
they did not die so could not be introduced under Sec. 32
15. The principle or law embodied in Section 6 of the Evidence Act is usually known
as the rule of res gestae recognised in English Law. This rule is, roughly speaking, an
exception to the general rule that hearsay evidence is not admissible. The rationale in
making certain statement or fact admissible under Section 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.
R v. Teper-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.
16. Here, there was some appreciable interval between the acts of incendiarism
indulged in by the miscreants and the judicial magistrate recording statements of
the victims. That interval, therefore, blocks the statement from acquiring legitimacy
under Section 6 of the Evidence Act.
17. Though the statement given to a magistrate by someone under expectation of death
ceases to have evidentiary value under Section 32 of the Evidence Act if the maker did
not die, such a statement can be used to corroborate this testimony in court under
Section 157 of the Evidence Act, being a statement made by the witness "before any
authority legally competent to investigate"-not a substantive but
corroborative/contradictory piece of evidence.

Dying Declarations

Queen Empress v. Abdullah Allahabad HC 1885

Issue: When a witness is called who deposes to having put certain questions to a person,
the cause of whose death is the subject-matter of the trial, which questions have been
responded to by certain signs, can such questions and signs, taken together, be
properly regarded as "verbal statements" under Section 32 of the Evidence Act, or
are they admissible under any other sections of the same Act?
William Petheram CJ: It is contended that the questions which were put to the deceased,
and the responses which she made to those questions, are "facts" within the purview of
Sections 3 and 9. This is not true-A fact must be proved to be relevant before another
fact can be proved to explain its meaning and since, without words being used, the
signs could not be proved to be relevant, the words themselves are also not relevant.
The next question is, whether mere signs can be regarded as "conduct" within the
meaning of Section 8. Upon this point it must be remembered that the 2nd paragraph of
that section makes relevant the conduct of any person who is a 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." The conduct of a party interested in any proceeding at the
time when the facts occurred out of which the proceeding arises, is extremely relevant,
and therefore any conduct on the part of the deceased in this case, which had any bearing
on the circumstances in which she met her death, would be relevant. But the state of
things is this. She, being in a dying state at the hospital, made, in the presence of
certain persons, the signs which have been referred to. It is clear that, taking these
signs alone, there is nothing to show that they are relevant, because there is nothing
which connects them with the cause of death.
Then it was argued that since conduct is relevant under certain circumstances, you may
with reference to Explanation 2 of Section 8, prove any statements made to the person
whose conduct is in question: the question here in issue is--Did Abdullah kill the
deceased by cutting her throat'? The only conduct which is alleged on the part of the
deceased is, that she moved her hand in answer to questions put to her by some of the
persons at the hospital. There is nothing to show that her conduct in lifting her hand
either influenced or was influenced by the fact in issue,--i.e., the cutting of her

throat. Then Explanation 2 is brought in but before you can let in the words of a
third person, you must show that the conduct which they are alleged to affect is
relevant. And in the present case it is clear that until you let in the words, the
conduct is not relevant, and therefore the words cannot be let in because the
condition precedent to their admissibility has not been satisfied, and that not having
been done, their whole basis fails.
4. Explanation 1 of Section 8 points to a case in which a person whose conduct is in
dispute mixes up together actions and statements and in such a case those actions and
statements may be proved as a whole. For instance, a person is seen running down a
street in a wounded condition, and calling out the name of his assailant, and the
circumstances under which the injuries were inflicted. Here what the injured person
says and what he does may be taken together and proved as a whole. But the case
would be very different if some passer-by stopped him and suggested some name, or
asked some question regarding the transaction. If a person were found making such
statements without any question first being asked, then his statements might be
regarded as a part of his conduct. But where the statement is made merely in
response to some question or suggestion, it shows a state of things introduced, not by
the fact in issue, but by the interposition of something else-hence Expln 1 would not
"Verbal" means by words. It is not necessary that the words should be spoken. If the
term used in the section were "oral," it might be that the statement must be
confined to words spoken by the mouth. But the meaning of "verbal" is something
wider. From the earliest times it has been held that the words of another person may be
so adopted by a witness as to be properly treated as the words of the witness himself.
The same objection which is now made to the admission in evidence of these signs might
equally be made to the assent given by a witness in an action to leading questions put by
counsel. If, for example, counsel were to ask--"Is this place a thousand miles from
Calcutta?" and the witness replied "Yes," it might be said that the witness made no
statement as to the distance referred to. The objection to leading questions is not that they
are absolutely illegal, but only that they are unfair.
The only question here is whether the deceased, by the signs of assent which she
made, adopted the verbal statements employed by the questions?-Yes she did-It is

plain that evidence of this description requires strong safeguards before it can properly be
accepted. But since the deceased might undoubtedly have adopted the words of the
Deputy Magistrate by express words, such as "Yes," though even in that case the words in
which the statement was actually made would not have been her own, she might equally
adopt them by signs also.
Douglas Straight J: While statements by the witnesses as to their impressions of what
those signs meant are judgment, inadmissible, and should be eliminated but, assuming
that the questions put to the deceased were responded to by her in such a manner as to
leave no doubt in the mind of the Court as to her meaning, then it is not straining the
construction to hold that the circumstances are covered by Section 32. It has been held
more than once in England that it is no objection to the admissibility of a dying
declaration that it was made "in answer to leading questions or obtained by earnest
and pressing solicitations."--(Russell On Crimes, vol. 3, p. 269) cannot adopt a purely
technical distinction as to say that while questions adopted or negatived by a mere "Yes"
or "No" constitute a "verbal statement," within Section 32, they become inadmissible
when assent or dissent is expressed by a nod or a shake of the head.
Syed Mehmood J-minority opinion-Sec. 32 will not apply "verbal" cannot mean more
than "by means of a word or words."-Nodding the head or waving the hand is not a word.
Referred to Illustration (f) of Section 8: 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. If the
word "conduct," as used in Section 8, meant only conduct directly resulting from the
circumstances in which the crime was committed and without any intervening cause, this
Illustration was at variance with Sec.8. For although A's conduct is undoubtedly
"influenced" by the fact in issue, it is only influenced through the intervention of a third
person C.
Hence "conduct" does not mean only such conduct as is directly and immediately
influenced by a fact in issue or relevant fact. The present case is the same in principle
as that given in the Illustration. The deceased would not have acted as she did if it had
not been for the action of those who questioned her. Nor is there any difference in
principle between the act of A in running away when told that the police were

coming, and the act of the deceased in moving her hand in answer to the questions.
Both equally seem be me to be cases of conduct within the meaning of Section 8.
Whether the questions put her were admissible, and whether she can be considered
to have adopted the statements which they implied? Explanation 2 to Section 8:
"when" does not mean "before." The conduct of the person an offence against whom is
being investigated is relevant. The question whether it is intelligible or not arises
afterwards, and the only way of ascertaining its meaning is to admit what Explanation 2
says may be admitted, namely, statements made to, or in the presence and hearing of, the
person and which affect his conduct. This can only be done by taking the questions word
for word, so as to explain the meaning of the conduct which they affected.
Could also be made relevant under Sec. 9, in order to allow the explanation of the
meaning of signs.

State v. Ram Singh

Nirbhaya rape case-accused allegedly raped the prosecutrix committed unnatural sex and
also damaged her internal organs and genitals by inserting iron rods and caused injuries
dangerous to her life-robbed the complainant and threw both of them out of a moving bus
The description of the bus was given by the complainant, as having a separate cabin for
its driver red colour seat covers, yellow curtains on its windows and it was a 3 X 2 sitter.
The CCTV camera footage, installed at Hotel Delhi Airport, Mahipal Pur, New Delhi,
just opposite to the spot where they were found, near the time of incident, was obtained
and it showed the bus of similar description passing twice in front of said hotel, firstly at
9:34 PM and secondly at 9:53 PM i.e. close to the time when one Raj Kumar first noticed
the victims, lying naked by the side of Mahipal Pur Flyover. The complainant identified
the bus in the footage
Bus was found parked near RK Puram-Ram Singh, (deceased), was found sitting in it and
he was interrogated and arrested. He led to recovery of his bloodstained clothes, blood-
stained iron rods and the documents concerning the bus and also disclosed that he
threw the SIM card of complainant's mobile in the morning of 17/12/2012 in the
area of Noida, which was later seized from one Jishan, who found it in Sector-37,
Noida, UP. He also produced a debit card Ex.P-74/3 of Indian Bank, in the name of
Asha Devi, the mother of the prosecutrix, seized vide memo Ex.PW74/H.The bus was
inspected by CFSL Team and exhibits were seized. Accused Ram Singh, since
deceased, refused to participate in TIP. He led to the arrest of other accused person
namely accused Vinay Sharma and accused Pawan @ Kalu.
Accused Vinay Sharma got recovered his bloodstained clothes, hush puppy leather
shoes of the complainant, the mobile phone make Nokia Model 3110 of Black grey
colour belonging to the prosecutrix. Similarly accused Pawan Kumar got recovered
from his jhuggi his bloodstained clothes, shoes and also a wrist watch make Sonata
and Rs. 1000/- robbed from the complainant-Both of them refused to participate in
On 18-12-2012, accused Mukesh was apprehended from his native village Karoli,
Rajasthan and a Samsung Galaxy Trend DUOS Blue Black mobile belonging to the
complainant was recovered from him. He was brought to Delhi and was arrested after
interrogation. Later on 23.12.12, he got prepared the route chart of the route where he
drove the bus at the time of incident. Besides that, he got recovered his bloodstained
clothes from the garage of his brother at Anupam Apartment, Saidulajab, Saket,
New Delhi. He was identified by the complainant in the Test Identification Parade
On 21.12.2012, the juvenile was apprehended from ISBT and an ATM debit card of
the prosecutrix and a mobile phone, besides his SIM were seized. On 21.11.2012,
accused Akshay was also arrested from Aurangabad, Bihar. He led to his brother's
house in village, Naharpur, Gurgaon, Haryana and got recovered his bloodstained
clothes. He was identified by the complainant in the TIP proceedings. He also got
recovered a ring belonging to the complainant, Nokia phone with a Vodafone sim
and two metro cards.
The prosecutrix on 16.12.12 gave a brief history of the incident to the doctor in her MLC.
On 21.12.12, on being declared fit, she gave her statement under section 164 Cr.P.C
to the SDM. Even on 25.12.12, her statement under section 164 Cr.P.C was recorded
by Shri Pawan Kumar, Ld. MM by putting her multiple choice questions and
through gestures. On 29.12.12, she expired due to sepsis with multiple organ failure
with multiple injuries.
After examination of the witnesses, the statement under section 313 Cr.P.C of all the
accused except accused Ram Singh, since deceased, was recorded wherein they all
denied their involvement and even their presence at the time of the incident, except
of accused Mukesh who admitted of being driving the bus Ex.P1 at the relevant time

PW1 (The complainant) identified accused Mukesh to be the driver of the bus and
accused Ram Singh and accused Akshay to be the person sitting in the drivers
cabin and accused Pawan Kumar was sitting in front of him in two seat's row of the
bus and whereas accused Vinay was sitting on three seat's row, just behind the
drivers seat. The conductor was the JCL.
PW72 Shri Raj Kumar, an employee of EGIS Infra Management India (P) Limited, K.M
24, Toll Plaza, Dundahera, Gurgaon, with Shri Surender Singh was on patroling duty in
the said area from 9:30 PM to 7 AM. At about 10:02 PM he heard the voice of bachao
bachao from the left side of the road near a milestone, opposite to Hotel 37. He saw the
complainant and the prosecutrix sitting naked, having blood all around. Immediately
thereafter, at about 10:04 PM he informed PW70 Ram Pal Singh, sitting in the control
room, requesting him to call PCR. PW70 Ram Phal of EGIS Infra Management India (P)
Limited, then telephoned at no. 100 and even asked his other patrolling staff to reach the
PW 73-head constable Ram Chander Singh received information about the incident and
reached the spot-He dispersed the crowd and brought a bottle of water and a bed sheet
and tore it in two parts and gave it to both the victims to cover themselves. At about 11
PM, he brought the victim, to Safdarjung Hospital, New Delhi.
Recording of dying declaration under S. 164
Dr. P.K Verma examined the prosecutrix and found her to be fit, conscious, oriented
and meaningfully communicative for making the statement-PW27 Smt. Usha
Chaturvedi, SDM, Vivek Vihar, Delhi, before recording of statement satisfied herself
that the prosecutrix was fit and then she recorded statement Ex.PW27/A of the
prosecutrix bearing the signatures of the prosecutrix on all pages. The prosecutrix
even wrote the date and time.
In her statement Ex.PW27/A, the prosecutrix narrated the entire incident, specifying the
role of each of accused person the gang rape / unnatural offence committed upon her,
the injuries suffered by her and her friend in the incident including thrusting of iron rods
and hands in her private parts the description of the bus and ultimately throwing them
naked off the moving bus at the footfall of Mahipal Pur Flyover.
The prosecutrix was having endotracheal tube in place i.e in larynx and trachea and was
on ventilator and she could not speak. In the opinion of PW52 Dr. P.K Verma the
prosecutrix was though unable to speak, but per PW28 Dr. Rajesh Rastogi, at 12:40
PM, the prosecutrix was conscious, oriented, co-operative, comfortable,
meaningfully communicative to make a statement through non-verbal means-Even
in her statement Ex.PW30/D-1 the prosecutrix described the entire incident, through
multiple choice questions and her gestures, as also the role of each of the accused
person. Prosecutrix even wrote the names of accused person on a sheet Ex.PW30/E.
The Ld. MM also gave a correctness certificate Ex.PW30/F of the proceedings.
All the accused were got medically examined after they were arrested. The MLCs of all
the accused person showed various injuries on their person-in the MLC Ex.PW2/A of
accused Ram Singh, PW2 Dr. Akhilesh Raj had opined that the injuries mentioned
could be possible in a struggle. Similarly the opinion of PW7 Dr. Shashank Pooniya
proved that the injuries present on the body of accused Akshay were a week old and
were suggestive of struggle, per MLC Ex.PW7/A. Similarly the MLC Ex.PW7/B of
accused Pawan show that he suffered injuries on his body which were simple in
nature, though claimed to be self inflicted by accused Pawan. The MLC Ex.PW7/C
of accused Vinay Sharma proved that he too suffered injuries, simple in nature, 2 to
3 days old, though injury no. 8 was claimed to be self-inflicted by accused himself.
Defence counsel argued that PW1 had not disclosed the user of iron rods, the description
of the bus or the name of the assailants in his complaint or medical examination-Court
held: such omissions as not fatal as it is a settled law that FIR is not an encyclopedia
of facts. The victim is not precluded from explaining the facts in his subsequent
statements. It is not expected of a victim to disclose all the finer aspects of the incident
in the FIR or in the brief history given to the doctor as doctor(s) are more concerned with
treatment of the victims-the victim who suffers from an incident, obviously, is in a state
of shock and it is only when we moves in his comfort zone-he starts recollecting the
events one by one and thus to stop the victim from elaborating the facts to describe the
finer details, if left out earlier, would be too much-only material omissions are fatal
Contradictions which do not affect the core of the prosecution case or the omissions
which are not put to the Investigating Officer in his evidence are not material and need be
ignored-Pudhu Raja v. State, Jaswant Singh v. State of Rajasthan
Akhtar v. State of Uttaranchal-If the prosecution case is supported by two injured
eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the
police and the court and corroborated by the medical evidence, their testimony

cannot be discarded. Surender Singh v. State of Haryana This court has opined that:
the testimony of an injured witness has its own relevancy and efficacy. The fact that
the witness is injured at the time and in the same occurrence, lends support to the
testimony that the witness was present during occurrence and he saw the happening
with his own eyes. The incident was aptly described by the PW1, the injured. The
injuries on his person show that he was present in the bus at the time of incident. His
presence was further confirmed by the DNA analysis-Hence contradictions not material
enough to destroy the prosecution case.
Defence argued w.r.t dying declaration: (a) the dying declarations of the prosecutrix,
since deceased, should not be relied upon since she was never in a position to make
them and that such dying declarations, even otherwise, are tutored as the
prosecutrix did not name any of the accused in her MLC Ex.PW49/A, prepared
immediately after the incident and that (b) the dying declaration made by gestures, in
itself, is illegal.
Court: The first dying declaration by the prosecutrix was made to PW49 Dr. Rashmi
Ahuja recorded in Ex.PW49/A and in MLC Ex.PW49/B. It was at 11:30 PM of 16-12-
2012. The prosecutrix due to her medical condition though broadly described the
incident of gang rape / injuries caused to her & her friend but could not give the
graphic details of the incident. The statement duly describes the circumstances of
the transaction, hence is relevant for the purposes of Section 32(1) of the Indian
Evidence Act.
While recording both the dying declarations, the ld. SDM and the Ld. MM had taken
precautions to find if the prosecutrix was fit to make such statements. While
recording of her first dying declaration Ex.PW27/A, Dr. P.K Verma PW52 had
found her conscious, oriented and meaningfully communicative vide his
endorsement at point A on the application Ex.PW27/DB. It was only thereafter PW27
Smt Usha Chaturvedi, the ld. SDM recorded the statement Ex.PW27/A of the
prosecutrix. The prosecutrix not only signed it but even wrote the date and time in
this statement. She narrated the entire incident specifying the role of each accused gang
rape / unnatural sex committed upon her the injuries caused in her vagina & rectum by
use of iron rods & by inserting of hands by the accused description of the bus, robbery
and lastly throwing of both the victims out of the moving bus Ex.P1 in naked condition

Yet again on 25-12-2012 on an application though Dr. P.K Verma PW52 opined that
prosecutrix was unable to speak as she had an endotracheal tube i.e in larynx and
trachea and was on ventilator, but PW28 Dr. Rajesh Rastogi declared her to be
conscious, oriented and meaningfully communicative to make statement through
non-verbal gestures. Shri Pawan Kumar, PW30, Ld. MM also satisfied himself qua
fitness and ability of the prosecutrix to give rational answers by gesture to his
multiple choice questions.
Court: This goes on to prove that the prosecutrix was mentally alert to give her statements
on both the occasions. The said statements relate to the circumstances of the transaction
which resulted in her death and hence are most relevant in this case as the cause of her
death is in question.
Prosecutrix was in state of shock when brought to the hospital-In her MLC her
condition is described as drowsy, responding only to verbal commands, hence not
completely alert due to the shock & excessive loss of blood, hence she gave brief
account of the incident. In the hospital she was given first aid and then was operated
thrice and when she found herself stable she gave statements hence it cannot be said
such statements are a result of tutoring. Her dying declarations rather corroborate
the deposition of PW1.
Even otherwise, where there are more than one dying declarations, the court has to
follow the law laid down in Sudhakar v. State of M.P, (2012) 7 SCC 569, the case
involving the multiple dying declarations, which are contradictory or are at variance with
each other to a large extent, the test of common prudence would be to first examine
which of the dying declarations is corroborated by other prosecution evidence.
Further, the attendant circumstances, the condition of the deceased at the relevant
time, the medical evidence, the voluntariness and genuineness of the statement made
by the deceased, physical and mental fitness of the deceased and possibility of the
deceased being tutored are some of the factors which would guide the exercise of
judicial discretion by the court in such matters. The Hon'ble Supreme Court in this
case rather relied upon the second and third dying declarations to be authentic, voluntary
and duly corroborated by other prosecution witnesses including the medical evidence.
The declarations Ex. PW27/A and Ex PW30/DA do corroborate the deposition of PW1
qua the incident the number of the assailants the manner in which the incident

occurred the user of hands and iron rods to cause injuries to her private parts throwing
the victims out of the moving bus etc. Further the dying declarations also get
corroboration from the medical evidence viz., her medical history, treatment paper etc.,
Even the brief history recorded in MLC Ex. PW49/B do corroborate the incident and the
manner in which the offence was committed. The names of accused at that stage were
even not relevant as firstly the assailants were not known to the victims secondly
for the shock she has suffered due to incident and lastly the presence of accused,
even otherwise, need to be, established by the prosecution
Whether dying declaration can be made by gestures?-Meesala Ramakrishna v. State of
Andhra Pradesh, (1994) 4 SCC 182, wherein it is observed that : the dying declaration
recorded on the basis of nods and gestures is not only admissible but possesses
evidentiary value, the extent of which shall depend upon who recorded the
statement what is his educational attainment what gestures and nods were
made, what were the questions asked were simple or complicated and how
effective or understandable the nods and gestures were.
Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC
465, it was observed that: the court has to consider each case in the circumstances of the
case. What value should be given to a dying declaration is left to the court, which on
assessment of the circumstances and the evidence and material on record, will come to a
conclusion about the truth or otherwise of the version, be it written, oral, verbal or by
sign or by gestures.
Therefore declarations can be by signs, gestures or by nods. The only caution the
court ought to take is the person recording the dying declaration is able to notice
correctly as to what the declarant means by answering by gestures or nods. Here the
person who recorded her dying declarations were SDM or the Ld. MM and that they both
had satisfied themselves qua her mental alertness and only thereafter had recorded such
The factum of spontaneity and immediacy of narration of facts by the victims to
PW73 (Constable Ram Chander) would make such narration admissible even under
section 6 of the Indian Evidence Act, as res-gestae, per Gentela Vijayavardhan Rao
v. State of A.P, (1996) 6 SCC 241
Indian law does not require making of statement in anticipation of death

The contention that the prosecutrix was never administered oath is also wholly
irrelevant in view of Laxman v. State of Maharashtra, (2002) 6 SCC 710, wherein it
was held that: When a dying declaration is recorded, no oath is necessary nor is the
presence of a Magistrate absolutely necessary, although to assure authenticity it is
usual to call a Magistrate, if available for recording the statement of a man about to
die. There is no requirement of law that a dying declaration must necessarily be
made to a Magistrate and when such statement is recorded by a Magistrate there is
no specified statutory form for such recording. Consequently, what evidential value or
weight has to be attached to such statement necessarily depends on the facts and
circumstances of each particular case. What is essentially required is that the person
who records a dying declaration must be satisfied that the deceased was in a fit state
of mind-A certification by a doctor is a rule of caution-voluntary and truthful nature
of the statement can be established otherwise.
The contention that the prosecutrix was administered Morphine and was not in a
condition to make dying declaration dated 21.12.2012 has no force as PW52 Dr. P.K
Verma, in his cross examination has deposed that Injection Morphine was not given to the
prosecutrix on 21-12-2012 when her dying declaration was recorded and that such
injection was given at 6 PM of 20-12-2012-effect would have lasted only for 3 to 4 hours.
He denied that the prosecutrix was in drowsiness and had difficulty in breathing at the
time of making statement.
All 3 dying declarations held to be consistent and corroborative of the material aspects of
the case-further argued that the Delhi High Court Rules, qua recording of the dying
declaration, were violated by the SDM as also by the Ld. MM. The said rules envisage
recording of the dying declarations by a Judicial Magistrate, if possible and secondly it is
required to be recorded at once whereas in the present case the first dying declaration
was never recorded by the Judicial Magistrate and secondly, it was recorded on 21-12-
2012 much after the prosecutrix was admitted in the hospital.
Court: the Delhi High Court Rules are to be followed in letter and spirit but one cannot
ignore the law laid down in Laxman's case (supra) wherein it has been held by the
Hon'ble Supreme Court that there is no person/form prescribed for recoding dying
declarations. Thus, if the dying declaration was recorded by the Ld. SDM it would not
make it illegal or inadmissible.

It was only when the prosecutrix was fit, dying declaration was recorded-hence there was
no delay-It was also contended that the Ld. MM failed to record the mental fitness of the
deceased in the dying declaration.-Court referred to Goverdhan Raoji Ghyare v. State of
Maharashtra, 1993 Sup (4) Supreme Court Cases 316, wherein it was held that : it will
be wholly unjustified to hold that simply because the Magistrate did not put a direct
question to the deceased as to whether she was in a fit state of mind to make the
statement, the dying declaration was required to be discarded.
The factual matrix of this case reveal that the doctors had certified the mental
alertness of the prosecutrix on both the occasions and rather they were present with
the prosecutrix during the recording of dying declarations and thus it cannot be said
that the prosecutrix was not in a fit state of mind at the time of recording of her
dying declarations
Corroboration with other facts- The prosecutrix and the complainant, in their
statements have spoken about incident being inside the moving bus a particular route it
followed use of iron rods the dumping spot where victims were finally thrown by the
accused person and lastly the presence of accused in the bus Ex.P1 at the relevant time.
These aspects one-by-one can be correlated with the deposition of PW1 and with the
dying declarations Ex.PW27/A and ExPW30/D1 to find the truthfulness of the claim
of victims.
KA: TIP on 23rd-how did she identify the accused on the 21st-defense did not raise this
point-prosecution could have shown it is an omission not a contradiction-she knew the
names because they were talking amongst themselves-was in trauma so missed names in
the 1st DD and got time to recollect later.

Pakalanarayanswami v. King Emperor-1939 Privy Council

Accused convicted of murder-During 1936 the accused's wife borrowed from the
deceased man at various times and in relatively small sums an amount of Rs. 3000 at
interest at the rate of 18 per cent, per annum. About 50 letters and notes proving these
transactions signed by the accused's wife were found in the deceased man's house at
Pithapur after his death.
On Saturday 20th March 1937, the deceased man received a letter the contents of
which were not accurately proved but it was reasonably clear that it invited him to

come that day or next day to Berhampur. It was unsigned. The widow said that on
that day her husband showed her a letter and said that he was going to Berhampur
as the appellant's wife had written to him and told him to go and receive payment of
his dues. This evidence was objected to: it was admitted as falling under the
provisions of Section 32(i), Evidence Act.
The deceased left his house on Sunday 21st March in time to catch the train for
Berhampur. On Tuesday 23rd March his body was found in a steel trunk in the train at
Police suspicion was not directed against the accused and his household until the police
visited the house, examined the inhabitants and obtained a statement from the accused the
admissibility of which is one of the principal grounds of the appeal. The alleged
statement was that the deceased had come to his house on the evening of 21st
March, slept in one of the outhouse rooms for the night and left on the evening of
the 22nd by the passenger train.
The prosecution also adduced the evidence of two employees in a shop at Berhampur
where trunks were made and sold who gave evidence that a trunk was sold to the accused
on the 22nd of March-The witnesses identified the trunk in which the body was found as
being the trunk of their manufacture which was sold in the circumstances stated on the
Whether the statement of the widow of the deceased was admissible as dying
declaration?-Argued that the statement must be made after the transaction has
taken place, that the person making it must be at any rate near death, that the
"circumstances" can only include the acts done when and where the death was
The statement may be made before the cause of death has arisen, or before the
deceased has any reason to anticipate being killed. The circumstances must be
circumstances of the transaction-general expressions indicating fear or suspicion
whether of a particular individual or otherwise and not directly related to the
occasion of the death will not be admissible. But statements made by the deceased
that he was proceeding to the spot where he was in fact killed, or as to his reasons
for so proceeding, or that he was going to meet a particular person, or that he had
been invited by such person to meet him would each of them be circumstances of the

transaction, and would be so whether the person was unknown, or was not the
person accused.
Circumstances must have some proximate relation to the actual occurrence: though,
as for instance, in a case of prolonged poisoning they may be related to dates at a
considerable distance from the date of the actual fatal dose. It will be observed that
"the circumstances" are of the transaction which resulted in the death of the
declarant. It is not necessary that there should be a known transaction other than
that the death of the declarant has ultimately been caused, for the condition of the
admissibility of the evidence is that the cause of (the declarant's) death comes into
In the present case the cause of the deceased's death comes into-question. The transaction
is one in which the deceased was murdered on 21st March or 22nd March: and his body
was found in a trunk proved to be bought on behalf of the accused. The statement made
by the deceased on 20th or 21st March that he was setting out to the place where the
accused lived, and to meet a person, the wife of the accused, who lived in the
accused's house, appears clearly to be a statement as to some of the circumstances of
the transaction which resulted in his death. The statement was rightly admitted.
Whether statement of the accused before arrest was protected by Sec. 162 of the
CrPC?- Meaning of the word any person-whether includes the accused-held the
statement is not admissible even when made by a person who thereafter becomes the
Observed-No statement that contains self-exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true would negative the
offence alleged to be confessed. Moreover, a confession must either admit in terms the
offence, or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact is
not of itself a confession, e. g. an admission that the accused is the owner of and was in
recent possession of the knife or revolver which caused a death with no explanation of
any other man's possession.
Confession cannot be a statement by the accused suggesting the inference that he
committed the crime

Unit VI: Types of Evidence

State of U.P. v. Rajesh Talwar

Case is based on circumstantial evidence-Dr. Rajesh Talwar, Dr. Nupur Talwar, Ms.
Aarushi and Hemraj were last seen in the house by Umesh Sharma, the driver of Dr.
Rajesh Talwar and in the morning of 16.05.2008 Ms. Aarushi was found dead in her
bedroom, which was adjacent to the bedroom of accused persons and in between these
bedrooms there was a wooden partition wall. The dead body of the domestic servant
Hemraj was found on the terrace of the house on 17.0.2008
On 16.05.2008 at about 06:00 A.M. housemaid Smt. Bharti Mandal arrived as usual at
Flat No. L-32, Jalvayu Vihar and rang the call-bell of the house but no response came
from inside. Thereafter, she put her hand on the outer grill/mesh door but it did not
open. Subsequent to that, she again pressed the call-bell and then Dr. Nupur Talwar
after opening the wooden door came near the grill door/mesh door situated in the
passage-and enquired about the whereabouts of Hemraj to which she replied that she had
no idea of him and then Dr. Nupur Talwar told her that Hemraj might have gone to fetch
milk from Mother-Dairy after locking the middle grill/mesh door from outside and she
could wait until he returned.
Thereupon, Smt. Bharti Mandal asked Dr. Nupur Talwar to give her keys so that she may
come inside the house after unlocking the same and then Dr. Nupur Talwar told her to
go to the ground level and she would be throwing keys to her from the balcony.
Meanwhile, Dr. Nupur Talwar opened the latch of middle grill/mesh door and told
her from balcony that the door is not locked and only latched from outside and then
Smt. Bharti Mandal came back and opened the latch of the door and came inside
the house and then thereafter, Dr. Nupur Talwar told Smt. Bharti Dekho Hemraj Kya
karke gaya hai (Look here, what has been done by Hemraj). (KA: Relevant as
subsequent conduct under Sec. 8) When maid Smt. Bharti went in Aarushis room she
saw that dead body of Aarushi was lying on the bed and covered with a white bed sheet
and her throat was slit. Thereafter, she went down the stairs and informed the inmate of
the house situated in first floor.
On inspection of bedroom of Ms. Aarushi it was found that the dead body of the deceased
was lying in the bed, her throat was slit by a sharp-edged weapon, her head was on pillow

and bed sheet and mattress were soaked with blood, her T-Shirt (Upper garment) was
above the waist, trouser was just below her waist and twine of trouser untied but the
articles of the room were found properly arranged and placed in order. The blood splatters
were there on the wall behind the head-rest of Aarushi's bed.
Constable Chunni Lal Gautam took the photographs of room of Aarushi and lobby. He
also took finger prints on bottle of whisky, plate, glasses, room of Hemraj, two bottle of
liquor, one bottle of sprite and main door.
According to post mortem (conducted at 12 noon), Aarushi had died about 12-18 hours
before due to hypovolemia-The room of Hemraj was searched and a bottle containing
Sula wine, one empty bottle of Kingfisher beer, a plastic bottle of green colour were
recovered and taken into possession. One Ballentine Scotch bottle containing some
liquor was recovered from the table of the dining hall.
IO tried to go to the roof of the house but the door of the roof was found locked and
the lock was having blood stains. He asked Dr. Rajesh Talwar to give the keys of the
lock of the door of the terrace to him but Dr. Rajesh Talwar told him that he was not
having the keys and he should not waste his time in breaking open the lock, else
Hemraj will manage to flee away. On 17.05.2008 Dr. Dinesh Talwar was asked to
provide the key of the lock of the door of the terrace but he also told that he had no key
with him and therefore, the IO Ram Naunaria broke open the lock of the door of the
terrace-Hemrajs dead body also had blunt wound on the head and his throat had been
Rajesh Talwar arrested-Investigation transferred to CBI-Krishna, Raj Kumar and Vijay
Mandal (Hemrajs friends) were arrested-Blood stained palm print on wall of the terrace
was taken-Brain-mapping, Narco-analysis and Polygraph tests of Krishna were conducted
at Forensic Science Laboratory, Bangalore-CBI filed report under Sec. 169 and Dr.
Rajesh Talwar was released from custody- Dr. Rajesh Talwar was directed to produce
golf sticks. Prior to that Dr. Rajesh Talwar was enquired about one missing golf stick but
he had not given satisfactory explanation thereof. The golf sticks were sent to C.F.S.L. for
When SP asked Dr. Rajesh Talwar that when one golf stick was missing then how he had
produced the complete set, then on behalf of Dr. Rajesh Talwar one Ajay Chaddha had
sent an e-mail from his e-mail ID to Mr. Kaul intimating therein

that one golf stick was found in the attic opposite to the room of Aarushi during cleaning
of the flat. On examination of golf sticks, it was found that two golf sticks were
cleaner than others. Umesh Sharma identified the golf sticks as the ones kept by him in
the room of Hemraj. (KA: Bloodstains could have been detected even if they were
cleaned-by itself does not establish anything).
CBI filed closure report-however Magistrate took cognizance of the offence-Talwars
charged under s. 302 and s. 210 of IPC-Rajesh Talwar also charged under Sec. 203
Rajesh Talwars 313 statement: On 15.05.2008 at about 9.30 P.M. his driver Umesh
Sharma had dropped him in his residence and at that time he, Dr. Nupur Talwar, Baby
Aarushi and servant Hemraj were present. Gate No. 2 of Jalvayu Vihar is closed in the
night but Gate No. 1 and 3-remain opened. He and his wife had gone to sleep at about
11.30 P.M. and the air conditioner of their room was on. He has no idea as to whether the
supply of electricity was disrupted or not that night. At about 6.00 am on 16.05.2008 Smt.
Bharti Mandal had rung the call-bell, he was asleep. His wife Dr. Nupur Talwar had not
told Smt. Bharti Mandal that the grill door is latched from outside but Nupur
Talwar had thrown the keys from the balcony.
When he and his wife had seen the dead body of Aarushi it was covered with a flannel
blanket but her upper garment was not above the waist and lower garment not below the
waist. They were not in position to talk to anyone as they were lugubrious. He has
admitted that the lock of the room of Aarushi was like that of a hotel which if locked
from the outside, could be opened from inside without key but could not be opened
from outside without key.
The door of the room of Hemraj opening towards main door remained closed. He also
admitted that in the dining table one bottle of Ballentine Scotch Whisky was found but
there was no tumbler and except in the room of Aarushi, no blood stains were found at
the remaining part of the house and even upstairs there were no blood stains. Nobody had
asked him to give the key of door of the terrace. He had not filed a report at the police
station but it was dictated to him by police personnel.
It is incorrect to say that their (Talwars) clothes were not stained with blood. Presence of
white discharge in the vaginal cavity of Aarushi is matter of record but the statement of
Dr. Sunil Kumar Dohre that opening of vaginal cavity was prominent is incorrect in
as much as this fact has not been mentioned in the postmortem examination report

and in the first three statements given to the investigating officer. The evidence that
hymen was old, healed and torn is nothing but an act of calumny and character
assassination of his daughter.
He had no knowledge as to where the golf sticks and other items lying in the car were
kept by the driver Umesh Sharma. About 8-10 days before the occurrence painting of
cluster had started and the navvies used to take water from water tank placed on the
terrace of his house and then Hemraj had started locking the door of the terrace and
the key of that lock remained with him.
It is incorrect to say that S.I. Data Ram Naunaria had enquired of him about the identity
of the dead body lying in the terrace rather he had identified the dead body of Hemraj by
his hairs in the presence of other police officers-on 15.05.2008 at about 11.00 P.M. his
wife had gone to Aarushis room to switch on the internet router and he and his wife
went to sleep around 11.30-11.35 P.M. and the same activity was seen from 6.00 A.M.
to 1.00 P.M. on 16.05.2008, although computers were shut down.
Claimed that case property was tampered with, hence a complaint was sent by him to
Department of Bio-Technology that report has been changed. Since the house was in
damaged condition and was to be let out and therefore, it was got washed/painted. It
is incorrect to say that partition wall was of wood. It was made of bricks over which
wooden paneling was done and same was got painted on the suggestion of painter as its
polish had faded away.
Mr. Ajay Chaddha had never sent an e-mail to Mr. Neelabh Kishore, S.P., C.B.I.,
Dehradun on his behalf. He has no knowledge as to whether main door was bolted from
outside or not at the time of incident-no knowledge of whether Aarushis room was
cleaned as he was away performing funeral rites.
Nupur Talwars S. 313 statement-The three gates of Jalvayu Vihar remain opened
round the clock but in the night one of the gates is closed. On 16.05.2008 at about 6.00
A.M. Smt. Bharti Mandal had rung call-bell but she did not go to open the door assuming
that Hemraj would open the door. Smt. Bharti Mandal has falsely deposed that she
had pushed the grill door but it could not be opened in view of the fact that this
statement was not given to the investigating officer. It is correct that she had told Smt.
Bharti Mandal that Hemraj may have gone to bring milk. It is also correct that wooden
door and mesh door are in the same frame. It is also correct that she had told Smt. Bharti

Mandal that door will be opened when Hemraj came back and until then she should wait.
Smt. Bharti Mandal had enquired of her as to whether she is having the key of the door
and she had replied in the affirmative. Thereupon Smt. Bharti Mandal asked her to give
the key so that she may come inside the house after unlocking the door and then she had
told Smt. Bharti Mandal to go to ground level and she would be giving key to her. But it
is incorrect to say that when Smt. Bharti Mandal reached at ground level, she might
have told her from balcony that she should come up and see that door has not been
locked and only latched. She had thrown duplicate key on the ground level. She has
stated that when Smt. Bharti Mandal came inside the house, she and her husband were
Lock of the door of Aarushis room was like that of hotel which if locked from outside
could be opened from inside but could not be opened from outside without key-except in
the room of Aarushi blood stains were not found at the remaining part of the house. She
has also stated that in the stairs no blood stains were found. Mahesh Kumar Mishra had
not asked Dr. Rajesh Talwar to provide key of the door of the terrace. S.I. Bachchu Singh
had never tried to talk to her and her husband. Dr. Rajesh Talwar had never gone to the
police station to lodge a report and rather complaint was dictated to Dr. Rajesh Talwar by
police personnel in the house-their clothes had been stained with blood.
Admitted that in the postmortem examination report white discharge was shown in the
vaginal cavity of Aarushi-Dr. Sunil Kumar Dohre falsely deposed that the vaginal
cavity was open and vaginal canal was visible, that opening of cavity was prominent
in as much as this fact has not been mentioned in the post-mortem examination
report and in the first four statements given to the investigating officer-evidence that
hymen was old, torn and healed is false.
Incorrect to say that injuries no. 1 and 3 of Aarushi were caused by golf stick and injuries
no. 2 and 4 were caused by sharp-edged surgical weapon as this fact was not stated before
the investigating officer in his four-five statements given earlierNo knowledge as to
whether the room of Aarushi was cleaned and as at that time she was at the place of
cremation to-3-4 months before the occurrence Dr. Rajesh Talwar had sent his Santro Car
for servicing but she has no knowledge as to where the golf sticks and other items lying
in the car were kept by the driver Umesh Sharma-key of terrace lock was with Hemraj.

On 15.05.2008 at about 11.30 P.M. she and her husband had gone to sleep after switching
off laptop. The start and stop activity of internet may be due to myriad reasons-CBI had
tampered with case property-partition wall not made of wood but brick over which
wooden paneling was done-Since the house was to be given on lease and therefore, it was
got painted/washed and there was no instruction for abstaining from painting/washing
Defence: No blood of Hemraj was found on the bed-sheet and pillow of Aarushi and that
there is no evidence to suggest that Hemraj was killed in room of Aarushi. No blood,
biological fluid, sputum, sperm, body hair, pubic hair, skin/flesh or any biological
material belonging to Hemraj was found in Aarushi's room anywhere.
The exact sequence of events in the intervening night of 15/16.05.2008 to 6.00 A.M.
in the morning is not clear, the offence has taken place in an enclosed flat, hence, no
eyewitnesses are available and the circumstantial evidence collected during the
course of investigation have critical and substantial gaps and there is absence of
clear-cut motive and non-recovery of any weapon of offence and their link either to
the servants or to the parents.
Dr. Urmil Sharma had categorically stated in her evidence that in a girl of about 13-14
years of age, due to hormonal change between two menstrual cycles, there is normal
physical and biological discharge which is of white colour and appears at the cervix if
there is more discharge, then the same can flow out of the vaginal canal and through the
vaginal opening
If the dead body of 13-14 years old girl is examined for the purposes of her vaginal
examination, then the vaginal orifice shall not be found open and the vaginal canal cannot
be seen in case of a girl who has a torn hymen (old torn) and is used to sexual
intercourse, if after her death and during the course of rigor mortis, her vagina is cleaned,
then in that situation, the mouth of the vagina shall not remain open-D.W.-4 Dr. R.K.
Sharma who too has deposed that in a case where the rigor mortis has just started or has
developed and if someone tries to interfere with the vaginal cavity or genital organs, then
in that area, perimortem injuries will be caused
If during the course of postmortem, the postmortem doctor while conducting vaginal
examination finds that the vaginal orifice is opened and vaginal cavity is visible, then in
this situation 'no abnormality detected' cannot be written in the postmortem examination

Prosecution counter-argued: Whitish discharge found in the vagina of Ms. Aarushi at
the time of postmortem examination of her dead body which conclusively demonstrates
that both the accused were indulged in sexual intercourse and the bedsheet below the
pelvic region of the deceased Ms. Aarushi was found wet and no biological fluid was
detected during the examination of bed-sheet the string of trouser of Ms. Aarushi was
found untied Tshirt of Ms. Aarushi was just above the waist and trouser was just below
the waist as is evident from the perusal of photographs-deceased were killed because they
were seen by the accused while having sex
The accused were knowing this fact and hence apprehensive that in the postmortem
examination report of Ms. Aarushi the evidence of coitus may surface and therefore, Dr.
Sushil Chaudhary of Eye Care Hospital, Sector-26, N.O.I.D.A. made a telephone call to
previously acquainted P.W.-7 K.K. Gautam, a retired police officer to see that no
observation regarding evidence of sexual intercourse should come in the postmortem
examination report-this is proved from call records of Dinesh Talwar, KK Gautam and
Sushil Chaudhary
It is established that the murders were committed inside the flat no. L-32 and both the
accused were present there in the night and therefore, when prima facie the prosecution
has proved the presence of the accused persons inside the flat-nothing to suggest
that in the fateful night any intruder(s) came inside the house and committed the
murders and hence under section 106 of the Evidence Act it was obligatory on the
part of the accused persons to rule out the theory of grave and sudden provocation
as also to establish that somebody else other than the accused persons has
committed the murders which they could not establish
Court-on circumstantial evidence-In the case based on circumstantial evidence the
circumstances must unerringly lead to one conclusion consistent only with the
hypothesis of the guilt of the accused and every incriminating circumstance must be
clearly established by reliable and clinching evidence. Circumstances so proved must
form a chain of events from which the only irresistible conclusion that could be
drawn is the guilt of the accused
Govinda Reddy v. State of Mysore-1960 SC Constitution Bench-There must be a chain of
evidence so complete as not to leave any reasonable doubt for a conclusion

consistent with that innocence of the accused and it must be shown that within all
human probability the act must have been committed by the accused.
Five golden principles of standard of proof are required
1) The circumstances from which the conclusion of guilt is to be drawn must be fully
2) The facts so established should be consistent only with the hypothesis of the guilt of
the accused
3) The circumstances should be of a conclusive nature and tendency
4) They should exclude every possible hypothesis except the one to be proved
5) There must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in all
human probability the act must have been done by the accused.
These five golden principles constitute the Panch Sheel of the proof of a case based on
circumstantial evidence.
Radhey Lal and others Vs. Emperor AIR 1938 All. 252, it was held by the Honble
Justice Allsop that an accused person is required to explain the circumstances which
appear against him in the evidence and if he cannot or will not do so, he must take the
Sec. 106 of the Evidence Act-Babu v. State of TN, 2013 SC-this would not relieve the
prosecution of its burden of proving its case. But, it would apply to the case where the
prosecution has succeeded in proving facts from which a reasonable inference can
be drawn regarding the existence of certain other facts, unless, the accused by virtue
of special knowledge regarding such facts, has offered an explanation which might
drive the court to draw a different inference.
Trimukh Maruti Kirkan v. State of Maha, 2007 SC-If an offence takes place in the
privacy of the house and in such circumstances where the assailants have all the
opportunities to plan and commit the offence at the time and in circumstances of
their choice, it will be extremely difficult for the prosecution to lead evidence to
establish the guilt of accused if strict principle of circumstantial evidences is insisted
upon by the Courts-When death had occurred in the custody of the accused, he is
under an obligation to give a plausible explanation for the cause of death of the
deceased in his statement under section 313 Cr.P.C. and mere denial of the prosecution
case coupled with absence of any explanation will be inconsistent with the innocence of

the accused but consistent with the hypothesis that the accused is a prime accused in the
commission of murder.
Where an offence like murder is committed in secrecy inside a house, the initial
burden to establish the case would, undoubtedly, be upon the prosecution, but the
nature and amount of evidence to be led by it to establish the charge cannot be of the
same degree as is required in other cases of circumstantial evidence. The burden would
be of a comparatively lighter character. In view of section 106 of the Evidence Act,
there will be a corresponding burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The inmates of the house cannot get
away by simply keeping quiet and offering no explanation on the supposed premise that
the burden to establish its case lies entirely upon the prosecution and there is no duty at
all on an accused to offer any explanation.
Umar Mohmmad Vs. State of Rajasthan 2008 (60) ACC 295 (SC) -non recovery of
incriminating material/weapons of offence from the accused cannot be a ground to
exonerate them when the eye witnesses examined by the prosecution are found to be
trustworthy. Baba Deen @ Babai Vs. State of U.P. 2012 (78) ACC 660 (DB ALL) that
non recovery of weapon of offence is not a ground for acquittal of the accused when
there is a clinching and reliable evidence
Does not appear that injuries were caused by hammer and knife, golf sticks produced by
Rajesh Talwar himself-size of a scalpel similar to a pen, easy to conceal and destroy-
accused had sufficient time to destroy incriminating evidence.
Pg 191 of the judgment-Facts leading to conclusion of guilt against Talwars.

Unit VII: Evidence in Conspiracies

Sec. 10

Mirza Akbar v. King Emperor, 1940 PC

Appellant was charged with conspiracy to murder-tried along with the actual murderer
Umar Sher, and with Mt. Mehr Taja who had been the wife of the murdered man, Ali
Askar. The murder was committed on 23rd August 1938, in the village of Taus Banda
about four miles from Hoti. Umar Sher's main defence was absence of motive. This fact
however was relied upon by the prosecution as showing that he was a hired assassin,

bribed to commit the murder by the appellant and Mt. Mehr Taja who were co-
conspirators in that regard. The principal evidence of the conspiracy consisted of three
letters, two from the female prisoner to the appellant, and one from the appellant to the
female prisoner.
The letters showed that they wished to marry each other and get rid of Ali Aksar and find
money for hiring an assassin for that purpose-appellant argued against admissibility of
statement made by Mehr. Taja in his absence after she was arrested before the
examining Magistrate- court relied on Reg. v. Blake (1844) 6 QB 126 -What in that case
was held to be admissible against the conspirator was the evidence of entries made by his
fellow conspirator contained in various documents actually used for carrying out the
fraud. But a document not created in the course of carrying out the transaction, but
made by one of the conspirators after the fraud was completed, was held to be
inadmissible against the other. No doubt what was contained in it amounted to a
statement evidencing what had been done and also the common intent with which at the
time it had been done, but it had nothing to do with carrying the conspiracy into effect.
Lord Denman-mere statement made by one conspirator to a third party or any act
not done in pursuance of the conspiracy is not evidence for or against another
conspirator. 11. Patteson J. described it as "a statement made after the conspiracy was
effected." Williams J. said that it merely related "to a conspiracy at that time completed."
Coleridge J. said that it "did not relate to the furtherance of the common object."
The words relied upon in Section 10, Evidence Act, are "in reference to their
common intention." These words may have been chosen as having the same
significance as the word 'related' used by Williams and Coleridge JJ. Where the
evidence is admissible it is in their Lordships' judgment on the principle that the thing
done, written or spoken, was something done in carrying out the conspiracy and was
receivable as a step in the proof of the conspiracy (per Patteson J. at p. 139). The
words written or spoken may be a declaration accompanying an act (Badri Rai) and
indicating the quality of the act as being an act in the course of the conspiracy: or the
words written or spoken may in themselves be acts done in the course of the conspiracy.
12. Section 10 is not capable of being widely construed so as to include a statement
made by one conspirator in the absence of the other with reference to past acts done
in the actual course of carrying out the conspiracy, after it has been completed. The

common intention is in the past. The words "common intention" signify a common
intention existing at the time when the thing was said, done or written by the one of
them. Things said, done or written while the conspiracy was on foot are relevant as
evidence of the common intention, once reasonable ground has been shown to
believe in its existence. Any narrative or statement or confession made to a third
party after the common intention or conspiracy was no longer operating and had
ceased to exist is not admissible against the other party.
Held Mehr Tajas statement was not admissible-but convicted on the basis of other

Badri Rai v. State of Bihar 1958 SC

2nd appellant Ramji accused of melting stolen property-on August 24 the Inspector was on
his way from his residential quarters to the police station, when both the appellants
accosted him on the road, and Ramji asked him to hush up the case for a valuable
consideration. The Inspector told them that he could not talk to them on the road, and that
they should come to the police station.
On August 31, the first appellant, Badri, came to the police station, saw the Inspector in
the central room of the thana, and offered to him a packet wrapped in a piece of old
newspaper, containing Rs. 500 in currency notes. He told the Inspector, (P. W. 1), that
the second appellant, Ramji, had sent the money through him in pursuance of the
talk that they had with him in the evening of August 24, as a consideration for
hushing up the case that was pending against Ramji. At the time the offer was made, a
number of police officers besides a local merchant, (P.W. 7), were present there. The
Inspector at once drew up the first information report of the offer of the bribe on his own
statement and prepared a seizure-list of the money, thus offered, and at once arrested
Badri and put him in the thana lock-up.
Whether statement made by Badri was admissible against Ramji?- The incident of
August 24, when both the appellants approached the inspector with the proposal
that he should hush up the case against the second appellant, for which he would be
amply rewarded, is clear evidence of the two persons having conspired to commit
the offence of bribing a public servant in connection with the discharge of his public

duties. Therefore the court had reasonable grounds to believe that the appellants had
entered into a conspiracy to commit the offence under Sec. 10
The statement made by the first appellant on August 31, that he had been sent by the
second appellant to make the offer of the bribe in order to hush up the case which was
then under investigation, is admissible not only against the maker of the statement-the
first appellant-but also against the second appellant, whose agent the former was, in
pursuance of the object of the conspiracy. That statement is admissible not only to
prove that the second appellant had constituted the first appellant his agent in the
perpetration of the crime, as also to prove the existence of the conspiracy itself. The
incident of August 24, is evidence that the intention to commit the crime had been
entertained by both of them on or before that date.
It was also suggested that the statement made by the first appellant on August 31, about
the purpose of the payment, having been made after the payment, was not admissible in
evidence because the object of the conspiracy had been accomplished before the
statement in question was made-Mirza Akbar
Court: The payment was made, and the statement that it was being made with a view
to hushing up the case against the second appellant is a part of the same transaction,
that is to say, the statement accompanied the act of payment of the bribe. Hence, it
cannot be said that the statement was made after the object of the conspiracy had
already been accomplished.
The object of the conspiracy was the hushing up of the criminal case against the
second appellant by bribing the public servant who was in charge of the
investigation of the case. The object of the conspiracy was yet far from being
accomplished when the statement in question was made. The leading case on the
subject is that of R. v. Blake (1). It held that the documents actually used in
effectuating the objects of the conspiracy, were admissible, and that those
documents which had been created by one of the conspirators after the object of the
conspiracy had been achieved, were not admissible. Section 10 of the Indian Evidence
Act is on the same lines. It is manifest that the statement in question in the present case
was made by the first appellant in the course of the conspiracy, and accompanied the act
of the payment of the money, and is clearly covered by the provisions of s. 10, quoted

Sec. 30

Sardul Singh Caveeshar v. State of Bombay, SC 1957

Charge against accused that they acquired control of Jupiter by acquiring controlling
block of shares using the funds of Jupiter itself-charge of conspiracy to commit criminal
breach of trust-defense argued that only acts relating to the acquisition of the controlling
block of shares are relevant under s. 10-prosecution argued acts to screen such
transactions and show them as legitimate would be relevant as well.
Defense-The transactions of the year 1950 and the steps taken then are only for the
purpose of screening the second set of transactions of the later part of 1949 and not the
first set of transactions of January, 1949-the evidence relating thereto, which falls wholly
outside the conspiracy period, is not admissible under s. 10 of the Evidence Act being too
remote and having no direct bearing on the original transactions which are the subject
matter of the conspiracy-object of conspiracy was achieved when funds of Jupiter were
paid to Khaitan (the original director)
Held- The transactions were admissible to the extent they were integrally connected and
relevant to show the bogus character of the earlier transactions and the criminal intention
of individual accused-however they could not be made relevant against co-conspirators
under Sec. 10-nor could they be made relevant as conduct under Sec. 8- Mirza Akbar's
case1940 Indlaw PC 37 is a clear authority for the position that in criminal trials, on a
charge of conspiracy evidence not admissible under s. 10 of the Evidence Act as proof
of the two issues to which it relates, viz., of the existence of conspiracy and of the
fact of any particular person being a party to that conspiracy, is not admissible
under any other section of the Act.

Bhagwan Swarup v. State of Maharashtra-1963 SC

Subba Rao J- The expression "in reference to their common intention" is very
comprehensive and it appears to have been designedly used to give it a wider scope
than the words "in furtherance of" in the English law with the result, anything said,
done or written by a co-conspirator, after the conspiracy was formed, will be evidence
against the other before he entered the field of conspiracy or after he left it-Sec. 10 cannot
be used in favour of the other party to show that they are not a party to the conspiracy.

Double Jeopardy argument-motive is not an ingredient of an offence-Defendants
committed fraud on Empire to hide Jupiter transactions-however they were 2 separate

Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, 3 judges

Appellant was Assistant Food Procurement Inspector-Deceaseds father reported him for
polishing of rice-his services were terminated-This embittered the appellant who on at
least two occasions was heard to express a determination to be revenged. In pursuance of
this determination he got into touch with the confessing accused Gurbachansingh and
enlisted his services for murdering the boy Ramesh.
On the 26th December, 1949, festivities and religious ceremonies were in progress all day
in the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and from
there was enticed to the house of the appellant's brother Gurudayalsingh and was done to
death in a shockingly revolting fashion by the appellant, with the active assistance of
Gurubachansingh, in the middle of the day at about 12 or 12.30. The body was then tied
up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal's
house till about 7 p.m.
At 7 p.m. the body wrapped as above was carried by Gurubachan on his head to a
chowkidar's hut near the Sikh Gurudwara. The appellant accompanied him. The map,
shows that the distance along the route indicated was about half a mile to three quarters
of a mile. It was left there till about midnight. Shortly before midnight the appellant and
Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao. They
took him to the chowkidar's but, recovered the bundle of bedding and went in the
rickshaw to a well which appears from the map, to be about half a mile distant. There the
body was thrown into the well.
The proper way to approach a case of this kind is, first, to marshal the evidence against
the accused excluding the confession altogether from consideration and see whether,
if it is believed, a conviction could safely be based on it. If it is capable of belief
independently of the confession, then of course it is not necessary to call the confession
in aid. But cases may arise where the judge is not prepared to act on the other
evidence as it stands even though, if believed, it would be sufficient to sustain a
conviction. In such an event the judge may call in aid the confession and use it to lend

assurance to the other evidence and thus believe what he would not be prepared to
accept without the aid of the confession.
A co-accused who confesses is naturally an accomplice and the danger of using the
testimony of one accomplice to corroborate another has repeatedly been pointed out. The
danger is in no way lessened when the "evidence" is not on oath and cannot be tested
by cross-examination. Prudence will dictate the same rule of caution in the case of a
witness who though not an accomplice is regarded by the judge as having no grater
probative value.
So far as the law is concerned, a conviction can be based on the uncorroborated
testimony of an accomplice provided the judge has the rule of caution, which
experience dictates, in mind and gives reasons why he thinks it would be safe in a
given case to disregard it. The testimony of an accomplice can in law be used to
corroborate another though it ought not to be so used save in exceptional
circumstances and for reasons disclosed.
Weakness in prosecution case-as disclosed in the confession, Gurubachan was a stranger
to Gondia. He had come there only six weeks before the murder and did not meet the
appellant till there weeks later and then only casually. Their second meeting, equally
casual, was on the 21st, that is, five days before the murder, and on that date the appellant
is said to have disclosed his intention to this stranger whom he had only met once before
At the murder itself, Gurbachan did not give any assistance which a grown man could not
easily have accomplished himself on a small helpless victim, of five. The appellant could
have accomplished all this as easily without the assistance of Gurubachan, and equally
Gurubachan, a mere hired assassin, could have done it all himself without the appellant
running the risk of drawing pointed attention to himself as having been last seen in the
company of the boy. Therefore previous association of a type which would induce two
persons to associate together for the purposes of a murder was not established
Court found that the appellant was away from the Gurudwara for a long enough time to
commit the murder-had given a false statement that he was present-however save in
exceptional circumstances one accomplice cannot be used to corroborate another,
nor can he be used to corroborate a person who though not an accomplice is no
more reliable than one-have to seek corroboration of a kind which will implicate the
appellant apart from the confession or find strong reasons for using Gurubachan's

confession for that purpose-examined reliability of Gurubachans confession against the
First point: Confession was not made until 2 months after the murder-though Gurubachan
was kept in the magisterial lock up the distinction between the magisterial lock up and
police custody in Gondia was only theoretical. In practice, it was no better than
police custody-SHO in Gondia deputes constables for duty to the lockup-Head Constable
was in charge-Inspector admitted that he interrogated Gurubachan in the lock up
twice within the ten days which succeeded the confession
No explanation was given for why these directions, which were made for good
reason, were disregarded in Gurubachan's case. The other prisoners were all
committed to jail custody in the usual way, so there was no difficulty about observing the
rule. All this makes it unsafe to disregard the rule about using accomplice testimony
as corroboration against a non-confessing accused. In the circumstances, the
confession by itself could not be used to corroborate the rickshaw coolie Sannatrao,
P. W., 14.
The prosecution was criticised for not calling the magistrate who recorded the confession
as a witness. Court referred to the judgement of the Privy Council in Nazir Ahmad v.
King Emperor regarding the undesirability of such a practice. Held-the magistrate was
rightly no called and it would have been improper and undesirable for the prosecution to
have acted otherwise.
Sari borders, Articles F, G, and T.- Articles F & G were two pieces of a sari border
which were used for tying up the mouth of the gunny bag in which the body was placed.
Article T was another piece of a sari border which was found in the appellant's house on
the 30th December, 1949. It was seized on the same day that the body was discovered.
There was strong proof that Articles F and G are a part of the same border as Article T-
That therefore afforded corroboration of Sannatrao's evidence-court observed
confession can be called in aid to lend assurance to the inference which arises from
these facts, namely that the appellant did help to dispose of the body
But the matter cannot be carried further because, not only are the sari borders not proved
to have had any connection with the crime of murder but the confession shows that they
did not. The only conclusion permissible on these facts is that the appellant, at some time
which is unknown, subsequent to the murder assisted either actively or passively in tying

up the gunny bag in which the corpse was placed and that he then accompanied
Gurubachan in the rickshaw from the chowkidar's hut to the well in the middle of the
In the appellant's favour were the facts that there is no proof of his having been last seen
in the company of the deceased. The only evidence of the boy's movements was that of
Krishna (alias Billa) P. W. 9, a boy of seven years, and all he says is that Pritipal asked
him to bring Ramesh with him to the Gurudwara that morning about 9 A.M. The boys
played about and had some tea and then Pritipal took Ramesh away in the direction of the
prostitute's house. Pritipal later returned without Ramesh. The Sessions Judge thought
this witness had been tutored on at least one point. Pritipal's so called confession has been
rejected because, in the first place, it is not a confession at all, for it is exculpatory, and,
in the next the High Court was not able to trust it.
The next point in the appellant's favour was that he was seen without a coat shortly
before the murder and at a time when he was not in the vicinity of his own house.
According to the prosecution, the murderer wore the coat, Article X, and the safa, Article
The Third point is that the appellant was not seen by anyone in the vicinity of the place of
occurrence. The fourth point was that no one saw the appellant and the boy on a cycle
through nearly a mile of what the High Court, which made a spot inspection, describes as
a crowded locality.
The points against the appellant were (1) that he had a motive and that he said he would
be revenged, (2) that he was absent from the Gurudwara about the time of the murder
long enough to enable him to commit it, and denied the fact, (3) that some twelve hours
after the crime he assisted in removing the body from a place between half to three
quarters of a mile distant from the scene of the crime, and (4) that at some unknown point
of time he assisted in tying up the mouth of the gunny bag in which the body was
eventually placed. Unsafe to convict of murder on the basis of these facts.
In most of the cases cited by the prosecution the accused was associated with the disposal
of the body very soon after the occurrence and at the scene of the crime. Here, twelve
hours had elapsed and the first connection proved with the disposal is at a place over half
a mile distant from where the body is said to have been murdered-however appellant was
convicted u Sec. 201-7 years RI

State v. Nalini
Sec. 15 of TADA provided that confession of an accused would be admissible against a
co-accused-Court held this meant it could be treated as a substantive piece of evidence as
opposed to one under Sec. 30 IEA
A statement made by a conspirator before the commencement of the conspiracy is not
admissible against the co-conspirator under Section 10 of the Evidence Act. Similarly, a
statement made after the conspiracy has been terminated on achieving its object or it is
abandoned or it is frustrated or the conspirator leaves the conspiracy in between, is not
admissible against the co-conspirator. Fixing the period of conspiracy is, thus, important
as provisions of Section 10 would apply only during the existence of the conspiracy
570. It was submitted that once the conspirator is nabbed that would be an end to the
conspiracy and Section 10 would be inapplicable. That may be so in a given case but
is not of universal application. If the object of conspiracy has not been achieved and
there is still agreement to do the illegal act, the offence of criminal conspiracy is
there and Section 10 of the Evidence Act applies. Prosecution in the present case has
not led any evidence to show that any particular accused continued to be a member of the
conspiracy after his arrest.
As a rule of prudence, there should be corroboration while accepting the statement of a
conspirator against a co-conspirator.
Once the object of conspiracy has been achieved, any subsequent act, which may be
unlawful, would not make the accused a part of the conspiracy like giving shelter to
an absconder.
Conspirators may be enrolled in a chain - A enrolling B, B enrolling C, and so on and all
will be members of a single conspiracy if they so intend and agree, even though each
member knows only the person who enrolled him and the person whom he enrolls. There
may be a kind of umbrella-spoke enrollment, where a single person at the center doing
the enrolling and all the other members being unknown to each other, though they know
that there are to be other members. It may, however, even overlap. But then there has to
be present mutual interest. Persons may be members of single conspiracy even though
each is ignorant of the identity of many others who may have diverse role to play. It
is not a part of the crime of conspiracy that all the conspirators need to agree to play
the same or an active role.

Unit VIII: Confessions

State of Maharashtra v. Damu

Four persons accused of triple murder-confession recorded by the Judicial Magistrate-
challenged on the following grounds:
1. The fourth accused Balu Joshi remained in police custody for a considerably long
period and that circumstance is sufficient to view the confession with suspicion.
2. The Sub-Jail, Newasa (in which the accused was interred) was located adjacent to the
police station and hence the mere fact that he was locked up in the Sub-Jail is not enough
to dispel the fear in the mind of the confessor regarding police surveillance.
3. PW 10 (Mrs. Anjali Apte) was a Judicial Magistrate at Ahmednagar, whereas there was
a Judicial Magistrate First Class at Newasa itself. As the accused was locked up in the
Sub-Jail at Newasa, there is no explanation why a magistrate belonging to a distant place
was asked to record the confession, in preference to a magistrate at a near place.
4. The Investigating Officer (PW42) has not explained how he knew that Balu Joshi (A-
4) was willing to make a confession to him.
The High Court held that there was reasonable doubt that the confession was not
SC: A Magistrate who proposed to record the confession has to ensure that the confession
is free from police interference. Even if he was produced from police custody, the
Magistrate was not to record the confession until the lapse of such time, as he thinks
necessary to extricate his mind completely from fear of police to have the confession in
his own way by telling the magistrate the true facts.
A4 (Balu Joshi) remained in police custody only till 26.4.1995 and the confession was
recorded only om 25.5.1995, which means, there was an interval of almost a full month
after he was removed from police custody to judicial custody.
22. The geographical distance between the two buildings sub-jail and the police
station should not have been a consideration to decide the possibility of police
exerting control over a detenue. To keep a detenue in the police fear it is not necessary
that the location of the police station should be proximal to the building in which the
prisoner is detained in judicial custody. In many places judicial courts are situated very
near to police station houses, or the offices of higher police officers would be housed in
the same complex. It is not a contention to be countenanced that such nearness would
vitiate the independence of judicial function in any manner.

23. Newasa is a taluk located within the territorial limits of the district of. Ahmadnagar.
The Chief Judicial Magistrate, Ahmadnagar was approached for nominating a magistrate
within his jurisdiction for recording the confession. There could have been a variety of
reasons for the Chief Judicial Magistrate for choosing a particular magistrate to do the
work. When not even a question was put to PW 19 or PW 44 (the Investigating Officer)
as to why the CJM, Ahmadnagar did not assign the work to a magistrate at Newasa, it is
not proper for the High Court to have used that use a ground holding that voluntariness of
the confession was vitiated.
Similarly, it is a worthless exercise to ponder over how or from which source the
investigating officer would have come to know that the accused was desiring to confess.
An Investigating Officer can have different sources to know that fact and he is not
obliged to state in court the same, particularly in view of the ban contained in
Section 162 of the CrPC.
A3 told the IO that A2-Guruji-went on motorcycle and threw one body into the canal-
motorcycle found at Gurujis house-broken piece of tail lamp found at the spot which A3
pointed out-argued this was not admissible as the dead body was found prior to the
recovery of the tail lamp.
37. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on the principle that if any
fact is discovered in a search made on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-inculcatory in nature, but if it results
in discovery of a fact it becomes reliable information.
It is now well-settled that recovery of an object is not discovery of a fact as
envisaged in the section. The decision of Privy Council in Pullukuri Kottayya v.
Emperor AIR 1947 PC 67- "fact discovered" envisaged in the Section embraces the place
from which the object was produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect.
38. The information to get admissibility need not be so truncated as to make it insensible
or incomprehensible. The extent of information admitted should be consistent with
understandability. In, this case, the fact discovered by the IO is that A3 Mukinda
Thorat had carried the dead body of Dipak to the spot on the motor cycle.

39. How the particular information led to the discovery of the fact? No doubt, recovery of
dead body of Dipak from the same canal was antecedent to the information which PW 44
obtained. If nothing more was recovered pursuant to and subsequent to obtaining
the information from the accused, there would not have been any discovery of any
fact at all. But when the broken glass piece was recovered from that spot and that
piece was found to be part of the tail lamp of the motor cycle of A2 Guruji, it can
safely be held that the Investigating Officer discovered the fact that A2 Guruji had
carried the dead body on that particular motor cycle upto the spot-Therefore
statement of A3 was admissible.

Unit IX: Admissibility of Evidence

Pulukuri Kottaya v. King-Emperor, 1946 Bom HC

Statement made by accused: I Kotayya and people of my party lay in wait for Sivayya
and others at about sunset time at the corner of Pulipad tank. We, all beat Boddupati
China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and
Narayana ran away. Dondapati Ramayya who was in our party received blows on his
hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick
of Venkatanarasu in the village. I will show if you come. We did all this at the instigation
of Pulukuri Kotayya.
Sec. 27 is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence but clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which
such information is required to relate. Normally the section is brought into operation
when a person in police custody produces from some place of concealment some object,
such as a dead body, a weapon, or ornaments, said to be connected with the crime of
which the informant is accused
The Crown argued that in such a case the "fact discovered" is the physical object
produced, and that any information which relates distinctly to that object can be proved.
Upon this view information given by a person that the body produced is that of a person
murdered by him, that the weapon produced is the one used by him in the commission of

a murder, or that the ornaments produced were stolen in a dacoity would all be
admissible. If this be the effect of Section 27, little substance would remain in the ban
imposed by the two preceding sections on confessions made to the police, or by persons
in police custody. That ban was presumably inspired by the fear of the legislature that a
person under police influence might be induced to confess by the exercise of undue
But if all that is required to lift the ban be the inclusion in the confession of information
relating to an object subsequently produced, it seems reasonable to suppose that the
persuasive powers of the police will prove equal to the occasion, and that in practice the
ban will lose its effect. Therefore the proviso to Section 26, added by Section 27,
should not be held to nullify the substance of the section. It is fallacious to treat the
"fact discovered" within the section as equivalent to the object produced the fact
discovered embraces the place from which the object is produced and the knowledge
of the accused as to this and the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object produced is not related
to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that "I will produce a knife concealed in
the roof of my house" does not lead to the discovery of a knife knives were discovered
many years ago. It leads to the discovery of the fact that a knife is concealed in the
house of the informant to his knowledge and if the knife is proved to have been
used in the commission of the offence, the fact discovered is very relevant. But if to
the statement the words be added "with which I stabbed A", these words are
inadmissible since they do not relate to the discovery of the knife in the house of the
Except in cases in which the possession, or concealment, of an object constitutes the gist
of the offence charged, it can seldom happen that information relating to the discovery of
a fact forms the foundation of the prosecution case. It is only one link in the chain of
proof, and the other links must be forged in manner allowed by law.
13. Court held that the whole of the impugned statement except the passage "I hid it (a
spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come"
is inadmissible

14. A confession of accused 3 was deposed to by the police sub-inspector, who said that
accused 3 said to him:-I stabbed Sivayya with a spear I hid the spear in a yard in my
village. I will show you the place.-The first sentence must be omitted. Similarly
statement that it was with that spear that he had stabbed Boddapati Sivayya," must be

State of Bombay v. Kathi Kolu Oghad-11 judge bench, SC 1958

Issues: Whether a direction given by a Court to an accused person present in Court to
give his specimen writing and signature for the purpose of comparison under the
provisions of section 73 of the Indian Evidence Act infringes the fundamental right
enshrined in Article 20(3) of the Constitution.
(2) whether the mere fact that when those specimen handwritings had been given, the
accused person was in police custody could, by itself, amount to compulsion, apart from
any other circumstances which could be urged as vitiating the consent of the accused in
giving those specimen handwritings
Majority judgment: Agreed with M.P. Sharma v. Satish Chandra on the point the
guarantee against testimonial compulsion includes not only oral testimony given in court
or out of court, but also to Dagduas in writing which incriminated the maker when
figuring as an accused person.
11. However held that to be a witness is not the same thing as to furnish evidence-To
be a witness" may be equivalent to "furnishing evidence" in the sense of making
oral or written statements, but not in the larger sense of the expression so as to
include giving of thumb impression or impression of palm or foot or fingers or
specimen writing or exposing a part of the body by an accused person for purpose of
identification. "Furnishing evidence" in the latter sense could not have been within the
contemplation of the Constitution-makers for the simple reason that - though they may
have intended to protect an accused person from the hazards of self-incrimination, in the
light of the English Law on the subject - they could not have intended to put obstacles
in the way of efficient and effective investigation into crime and of bringing
criminals to justice.
12. The giving of finger impression or specimen signature or of handwriting, strictly
speaking, is not "to be a witness". "To be a witness" means imparting knowledge in

respect of relevant fact, by means of oral Dagduas or Dagduas in writing, by a
person who has personal knowledge of the facts to be communicated to a court or to
a person holding an enquiry or investigation. A person is said 'to be a witness' to a
certain state of facts which has to be determined by a court or authority authorised to
come to a decision, by testifying to what he has seen, or something he has heard which is
capable of being heard and is not hit by the rule excluding hearsay or giving his opinion,
as an expert, in respect of matters in controversy.
The accused may have documentary evidence in his possession which may throw some
light on the controversy. If it is a document which is not his statement conveying his
personal knowledge relating to the charge against him, he may be called upon by the
Court to produce that document in accordance with the provisions of section 139 of the
Evidence Act, which, in terms, provides that a person may be summoned to produce a
document in his possession or power and that he does not become a witness by the mere
fact that he has produced it and therefore, he cannot be cross-examined.
Self-incrimination must mean conveying information based upon the personal
knowledge of the person giving the information and cannot include merely the
mechanical process of producing documents in court which may throw a light on
any of the points in controversy, but which do not contain any statement of the
accused based on his personal knowledge. For example, the accused person may be in
possession of a document which is in his writing or which contains his signature or his
thumb impression. The production of such a document, with a view to comparison of the
writing or the signature or the impression, is not the statement of an accused person,
which can be said to be of the nature of a personal testimony. When an accused person
is called upon by the Court or any other authority holding an investigation to give
his finger impression or signature or a specimen of his handwriting, he is not giving
any testimony of the nature of a 'personal testimony'.
The giving of a 'personal testimony' must depend upon his volition. He can make
any kind of statement or may refuse to make any statement. But his finger
impressions or his handwriting, in spite of efforts at concealing the true nature of it
by dissimulation cannot change their intrinsic character. Thus, the giving of finger
impressions or of specimen writing or of signatures by an accused person, though it

may amount to furnishing evidence in the larger sense, is not included within the
expression 'to be a witness'.
13. What is self-incriminatory: In order that a testimony by an accused person may be
said to have been self-incriminatory for the purpose of Art. 20(3) it must be of such a
character that by itself it should have the tendency of incriminating the accused, if
not also of actually doing so. In other words, it should be a statement which makes
the case against the accused person at least probable, considered by itself. A
specimen handwriting or signature or finger impressions by themselves are no
testimony at all, being wholly innocuous because they are unchangeable except in
rare cases where the ridges of the fingers or the style of writing have been tampered
with. They are only materials for comparison in order to lend assurance to the
Court that its inference based on other pieces of evidence is reliable. They are neither
oral nor documentary evidence but belong to the third category of material evidence
which is outside the limit of 'testimony'.
14. Similarly, during the investigation of a crime by the police, if an accused person
were to point out the place where the corpus delicti was lying concealed and in
pursuance of such an information being given by an accused person, discovery is
made within the meaning of section 27 of the Evidence Act, such information and
the discovery made as a result of the information may be proved in evidence even
though it may tend to incriminate the person giving the information, while in police
custody. Unless it is held that the provisions of section 27 of the Evidence Act, in so far
as they make it admissible evidence which has the tendency to incriminate the giver of
the information, are unconstitutional as coming within the prohibition of clause (3) of
Article 20, such information would amount to furnishing evidence.
Whether Sec. 27 of IEA violates Art. 20(3)- If the self-incriminatory information has
been given by an accused person without any threat, that will be admissible in evidence
and that will not be hit by the provisions of clause (3) Article 20 of the Constitution for
the reason that there has been no compulsion. Sec. 27 will not violate 20(3) unless
compulsion has been used in obtaining the information.
Compulsion means duress-17. The compulsion in this sense is a physical objective
act and not the state of mind of the person making the statement, except where the
mind has been so conditioned by some extraneous process as to render the making

of the statement involuntary and, therefore, extorted. Hence, the mere asking by a
police officer investigating a crime against a certain individual to do a certain thing is not
compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused
person, when he made the statement in question was in police custody would not, by
itself, be the foundation for an inference of law that the accused was compelled to
make the statement. Of course, it is open to an accused person to show that while he
was in police custody at the relevant time, he was subjected to treatment which, in the
circumstances of the case, would lend itself to the inference that compulsion was, in fact,
exercised. It is a question of fact in each case to be determined by the Court on weighing
the facts and circumstances disclosed in the evidence before it.
(1) An accused person cannot be said to have been compelled to be a witness against
himself simply because he made a statement while in police custody, without anything
more though that fact, in conjunction with other circumstances disclosed in evidence in a
particular case, would be a relevant consideration in an enquiry whether or not the
accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a
voluntary statement, which may ultimately turn out to be incriminatory, is not
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance it
does not include the production of documents or giving materials which may be relevant
at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen
writings or showing parts of the body by way of identification are not included in
the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an
oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in
Court. Case law has gone beyond this strict literal interpretation of the expression which
may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a
person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person
accused must have stood in the character of an accused person at the time he made the

statement. It is not enough that he should become an accused, any time after the
statement has been made
Minority-S. K. Das, Sarkar and Das Gupta, JJ.
27. While on the one hand we should bear in mind that the Constitution makers could not
have intended to stifle legitimate modes of investigation we have to remember further
that quite clearly they thought that certain things should not be allowed to be done, during
the investigation, or trial, however helpful they might seem to be to the unfolding of truth
and an unnecessary apprehension of disaster to the police system and the administration
of justice, should not deter us from giving the words their proper meaning.
To limit the meaning of the words "to be a witness" in Article 20(3) in the manner
suggested would result in allowing compulsion to be used in procuring the production
from the accused of a large number of documents, which are of evidentiary value,
sometimes even more so than any oral statement of a witness might be. For example, an
accused person has in his possession, a letter written to him by an alleged co-
conspirator in reference to their common intention in connection with the
conspiracy for committing a particular offence. Under section 10 of the Evidence
Act this document is the relevant fact as against the accused himself for the purpose
of proving the existence of the conspiracy and also for the purpose of showing that
any such person was a party to it. By producing this, the accused will not be
imparting any personal knowledge of facts yet it would certainly be giving evidence
of a relevant fact. Again, the possession by an accused of the plan of a house where
burglary has taken place would be a relevant fact under section 8 of the Evidence
Act as showing preparation for committing theft. By producing this plan is he not
giving evidence against himself?
32. It is clear from the scheme of the various provisions, dealing with the matter that the
governing idea is that to be evidence, the oral statement or a statement contained in a
document, shall have a tendency to prove a fact-whether it be a fact in issue or a
relevant fact which is sought to be proved. The protection of Article 20(3) being
available even at the stage of investigation, at that stage also the purpose of having a
witness is to obtain evidence and the purpose of evidence is to prove a fact.
It is not only by imparting of his knowledge that an accused person assists the proving of
a fact he can do so even by others means, such as the production of documents which

though not containing his own knowledge would have a tendency to make probable the
existence of a fact in issue or a relevant fact.
Is an accused person furnishing evidence when he is giving his specimen
handwriting or impressions of his fingers, or palm or foot?-Yes-For, these are relevant
facts, within the meaning of section 9 and section 11 of the Evidence Act. Just as an
accused person is furnishing evidence and by doing so, is being a witness, when he
makes a statement that he did something, or saw something, so also he is giving evidence
and so is being a "witness", when he produces a letter the contents of which are relevant
under section 10, or is producing the plan of a house where a burglary has been
committed or is giving his specimen handwriting or impressions of his finger, palm or
foot. However 20(3) does not say that an accused person shall not be compelled to be
a witness. It says that such a person shall not be compelled to be a witness against
himself. Therefore an accused person is not furnishing evidence against himself,
when he gives his specimen handwriting, or impressions of his fingers, palm or foot
The evidence of specimen handwriting or the impressions of the accused person's
fingers, palm or foot, will incriminate him, only if on comparison of these with
certain other handwritings or certain other impressions, identity between the two set
is established. By themselves, these impressions or the handwritings do not
incriminate the accused person, or even tend to do so. That is why it must be held that
by giving these impressions or specimen handwriting, the accused person does not
furnish evidence against himself-Art. 20(3) will not be violated
By themselves they are of little or of no assistance to bring home the guilt of an accused.
Nor is there any chance of the accused to mislead the investigator into wrong channels by
furnishing false evidence. For, it is beyond his power to alter the ridges or other
characteristics of his hand, palm or finger or to alter the characteristics of his

State of Uttar Pradesh v. Deoman Upadhyaya-1960 SC

Deoman made a murderous assault with a gandasa (which was borrowed by him from
one Mahesh) upon one Sukhdei and killed her on the spot and thereafter, he threw the
gandasa into the village tank, washed himself and absconded from the village. He was
arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to

hand over the gandasa which he said, he had thrown in the village tank, and in the
presence of the investigating officer and certain witnesses, he waded into the tank and
took out a gandasa, which, on examination by the Serologist, was found to be stained
with human blood.
Deoman was convicted-appealed to Allahabad HC-it was contended that the evidence
that Deoman made a statement before the police and two witnesses was inadmissible in
evidence, because s. 27 of the Indian Evidence Act which rendered such a statement
admissible, discriminated between persons in custody and persons not in custody and was
therefore void as violative of Art. 14 of the Constitution
1. Whether s. 27 of the Indian Evidence Act is void because it offends against the
provisions of Art. 14 of the Constitution ? and
2. Whether sub-s. (2) of s. 162 of the Code of Criminal Procedure in so far as it
relates to s. 27 of the Indian Evidence Act is void?
The expression, "accused person" in s. 24 and the expression "a person accused of any
offence" have the same connotation, and describe the person against whom evidence is
sought to be led in a criminal proceeding. The adjectival clause "accused of any offence"
is therefore descriptive of the person against whom a confessional statement made by him
is declared not provable, and does not predicate a condition of that person at the time of
making the statement for the applicability of the ban.
The ban imposed by s. 26 is against the proof of confessional statements. Section 27 is
concerned with the proof of information whether it amounts to a confession or not, which
leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in
consequence of information received, only that much of the information is admissible as
distinctly relates to the fact discovered. By s. 26, a confession made in the presence of a
Magistrate is made provable in its entirety
Sections 25 and 26 were enacted not because the law presumed the statements to be
untrue, but having regard to the tainted nature of the source of the evidence, prohibited
them from being received in evidence. It is manifest that the class of persons who needed
protection most where those in the custody of the police and persons not in the custody of
police did not need the same degree of protection. But by the combined operation of s.
27 of the Evidence Act and s. 162 of the Code of Criminal Procedure, the
admissibility in evidence against a person in a criminal proceeding of a statement
made to a police officer leading to the discovery of a fact depends for its

determination on the question whether he was in custody at the time of making the
statement. It is provable if he was in custody at the time when he made it, otherwise
it is not. (because s. 27 only applies to statements made in custody)
12. There is nothing in the Evidence Act which precludes proof of information given by a
person not in custody, which relates to the facts thereby discovered it is by virtue of the
ban imposed by s. 162 of the Code of Criminal Procedure, that a statement made to a
police officer in course of the investigation of an offence under Ch. XIV by a person not
in police custody at the time it was made even if it leads to the discovery of a fact is not
provable against him at the trial for that offence.
But the distinction which it may be remembered does not proceed on the same lines as
under the Evidence Act, arising in the matter of admissibility of such statements made to
the police officer in the course of an investigation between persons in custody and
persons not in custody, has little practical significance. When a person not in custody
approaches a police officer investigating an offence and offers to give information
leading to the discovery of a fact, having a bearing on the charge which may be made
against him he may appropriately be deemed to have surrendered himself to the police.
Section 46 of the Code of Criminal Procedure does not contemplate any formality before
a person can be said to be taken in custody: submission to the custody by word or action
by a person in sufficient. A person directly giving to a police officer by word of mouth
information which may be used as evidence against him, may be deemed to have
submitted himself to the "custody" of the police officer within the meaning of s. 27
of the Indian Evidence Act : Legal Remembrancer v. Lalit Mohan Singh I.L.R. (1921)
Cal.167 Santokhi Beldar v. King Emperor I.L.R. (1933) Pat. 241
Exceptional cases may certainly be imagined in which a person may give information
without presenting himself before a police officer who is investigating an offence. For
instance, he may write a letter and give such information or may send a telephonic or
other message to the police officer. But in considering whether a statute is
unconstitutional on the ground that the law has given equal treatment to all persons
similarly circumstanced, it must be remembered that the legislature has to deal with
practical problems the question is not to be judged by merely enumerating other
theoretically possible situations to which the statute might have been but is not applied.
As has often been said in considering whether there has been a denial of the equal

protection of the laws, a doctrinaire approach is to be avoided. A person who has
committed an offence, but who is not in custody, normally would not without
surrendering himself to the police give information voluntarily to a police officer
investigating the commission of that offence leading to the discovery of material
evidence supporting a charge against him for the commission of the offence.
The fact that the principle is restricted to persons in custody will not by itself be a ground
for holding that there is an attempted hostile discrimination because the rule of
admissibility of evidence is not extended to a possible, but an uncommon or abnormal
class of cases
14th amendment cases in America-the law presumably hits the evil where it is most felt, it
is not to be overthrown because there are other instances to which it might have been
applied". There is no "doctrinaire requirement" that the legislation should be couched in
all embracing terms".
18. Counsel for the defence contended that in any event Deoman was not at the time
when he made the statement, attributed to him, accused of any offence and on that
account also apart from the constitutional plea the statement was not provable. This
contention is unsound. As we have already observed, the expression "accused of any
offence" is descriptive of the person against whom evidence relating to information
alleged to be given by him is made provable by s. 27 of the Evidence Act. It does not
predicate a formal accusation against him at the time of making the statement
sought to be proved, as a condition of its applicability.
SC held: The evidence that Deoman slapped Sukhdei and threatened her that he would
"smash her face" coupled with the circumstances that on the morning of the murder of
Sukhdei, Deoman absconded from the village after washing himself in the village tank
and after his arrest made a statement in the presence of witnesses that he had thrown the
gandasa in the village tank and produced the same, establishes a strong chain of
circumstances leading to the irresistible inference that Deoman killed Sukhdei
Subba Rao J-Dissenting judgement
The result brought about by the combined application of s. 27 of the Evidence Act and s.
162 of the Code of Criminal Procedure: A and B stabbed C with knives and hid them in a
specified place. The evidence against both of them is circumstantial. One of the pieces of
circumstantial evidence is that both of them gave information to the police that each of
them stabbed C with a knife and hid it in the said place. They showed to the police the

place where they had hidden the knives and brought them out and handed them over to
the police and both the knives were stained with human blood. Excluding this piece of
evidence, other pieces of circumstantial evidence do not form a complete chain. If it was
excluded, both the accused would be acquitted if included, both of them would be
convicted for murder.
But A, when he gave the information was in the custody of police, but B was not so. The
result is that on the same evidence A would be convicted for murder but B would be
acquitted: one would lose his life or liberty and the other would be set free. This
illustration establishes that prima facie the provisions of s. 27 of the Evidence Act accord
unequal and uneven treatment to persons under like circumstances.
There is no justification for the suggestion that the prosecution is in a better position in
the matter of establishing its case when the accused is out of custody than when he is in
The constitutional validity has to be tested on the facts existing at the time the section or
its predecessor was enacted but not on the consequences flowing from its operation.
When a statement made by accused not in the custody of police is statutorily made
inadmissible in evidence, how can it be expected that many such instances will fall within
the ken of Courts. If the ban be removed for a short time it will be realized how many
such instances will be pouring in the same way as confessions of admissible type have
become the common feature of almost every criminal case involving grave offence. That
apart, it is also not correct to state that such confessions are not brought to the notice of
39. Section 150 stated: "When any fact is deposed to by a police officer as discovered by
him in consequence of information received from a person accused of any offence, so
much of such information, whether it amounts to a confession or admission of guilt or
not, as relates distinctly to the fact discovered by it, may be received in evidence."
40. Section 150 of the Code of 1861 was amended by Act VIII of 1869 and the amended
section read as follows: "Provided that when any fact is deposed to in evidence as
discovered in consequence of information received from a person accused of any offence,
or in the custody of a police officer, so much of such information, whether it amounts to a
confession or admission of guilt, or not, as relates distinctly to the fact thereby
discovered, may be received in evidence."

Till the year 1872, the intention of the legislature was to provide for all confessions
made by persons to the police whether in custody of the police or not. Can it be said
that in 1872 the legislature excluded confessions or admissions made by a person not in
custody to a police-officer from the operation of s. 27 of the Evidence Act on the ground
that such cases would be rare? Nothing has been placed before us to indicate the reasons
for the omission of the word "or" in s. 27 of the Evidence Act. If that be the intention of
the legislature, why did it enact s. 25 of the Evidence Act imposing a general ban on the
admissibility of all confessions made by accused to a police officer? Section 27 alone
would have served its purpose.
On the other hand, s. 25 in express terms provides for the genus, i.e., accused in general,
and s. 27 provides for the species out of the genus, namely, accused who are in custody. A
general ban is imposed by one section and it is lifted only in favour of a section of
accused of the same class. The omission appears to be rather by accident than by
design. In the circumstances it is not right to speculate and hold that the legislature
consciously excluded from the operation of s. 27 of the Act accused not in custody on
the ground that they were a few in number.
It is not possible to state as a proposition of law what words or what kind of action bring
about submission to custody that can only be decided on the facts of each case. It may
depend upon the nature of the information, the circumstances under, the manner in, and
the object for, which it is made, the attitude of the police-officer concerned and such
other facts. It is not, therefore, possible to predicate that every confession of guilt or
statement made to a police-officer automatically brings him into his custody.
The classification is made between accused not in custody making a confession and
accused in custody making a confession to a police-officer: the former is inadmissible
and the latter is admissible subject to a condition. The point raised is why should there be
this discrimination between these two categories of accused? It is no answer to this
question to point out that in the case of an accused in custody a condition has been
imposed on the admissibility of his confession. The condition imposed may be to some
extent affording a guarantee for the truth of the statement, but it does not efface the clear
distinction made between the same class of confessions. The vice lies not in the condition
imposed, but in the distinction made between these two in the matter of admissibility of a

confession. The distinction can be wiped out only when confessions made by all accused
are made admissible subject to the protective condition imposed
There is no acceptable reason why a confession made by an accused in custody to a
police-officer is to be admitted when that made by an accused not in custody has to
be rejected. The condition imposed in the case of the former may, to some extent, soften
the rigour of the rule, but it is irrelevant in considering the question of reasonableness of
the classification.

Prabhu v. State of U.P. 1962 SC-3 judges

Appellant was convicted for murdering his uncle-The case of the prosecution was that the
appellant made certain statements and produced from his house a kulhari, a shirt and
dhoti. These were found to be blood stained and subsequent examination by the Chemical
Analyst and the Serologist disclosed that they were stained with human blood. This
recovery of the blood stained kulhari (axe) and the blood stained shirt and dhoti was
made, according to the prosecution case, on March 22, 1961, in the presence of two
witnesses, Lal Bahadur Singh and Wali Mohammad.
The case against the appellant rested on the evidence relating to motive furnished by what
happened about a month and half before the occurrence when the appellant and his father
asked for some land from the deceased, and the recovery of the blood stained axe and
blood stained shirt and dhoti from the house of the appellant
Lal Bahadur Singh gave evidence about the production of blood stained articles from his
house by the appellant. The witness said that the appellant produced the articles from a
tub on the eastern side of the house. The witness did not, however, say that the appellant
made any statements relating to the recovery. Wali Mohammad was not examined at all.
One other witness Dodi Baksh Singh was examined as prosecution witness. This witness
said that a little before the recovery the Sub-Inspector of Police took the appellant
into custody and interrogated him then the appellant gave out that the axe with
which the murder had been committed and his blood stained shirt and dhoti were in
the house and the appellant was prepared to produce them.
These statements to which Dobi Baksh (P.W. 3) deposed were not admissible in
evidence. They were incriminating statements made to a police officer and were hit
by Sections 25 and 26 of the Indian Evidence Act. The statement that the axe was
one with which the murder had been committed was not a statement which led to
any discovery within the meaning of s. 27 of the Evidence Act. Nor was the alleged
statement of the appellant that the blood stained shirt and dhoti belonged to him
was a statement which led to any discovery within meaning of s. 27-Relied on
Pullukari Kottayya
SC held: The courts below were wrong in admitting in evidence the alleged statement of
the appellant that the axe had been used to commit murder or the statement that the blood
stained shirt and dhoti were his. If these statements are excluded then the only
evidence which remains is that the appellant produced from the house a blood
stained axe and some blood stained axe and some blood stained clothes. The
prosecution gave no evidence to establish whether the axe belonged to the appellant or
the blood stained clothes were his.
Circumstantial evidence must be such as to lead to a conclusion which on any reasonable
hypothesis is consistent only with the guilt of the accused person and not with his
innocence. The motive alleged in this case would operate not only on the appellant but on
his father as well. From the mere production of the blood stained articles by the appellant
one cannot come to the conclusion that the appellant committed the murder. Even if
somebody else had committed the murder and the blood stained articles had been kept in
the house, the appellant might produce the blood stained articles when interrogated by the
Sub-Inspector of Police. As the chain of circumstantial evidence was not complete in this
case, appellant was acquitted.
Deoman Upadhyaya would not apply to the facts of this case-The circumstantial chain in
that case did not depend merely on the production of the gandasa, but on other
circumstances as well. The Court held in that case that the circumstantial chain was
complete and the decision did proceed merely on the production of a blood stained

Illegally procured evidence

R.M. Malkani v. State of Maharashtra

Appellant was Coroner of Bombay. Patient admitted to nursing home of Dr. Adatia, a
gynaecologist. Dr. Adatia, diagnosed the case as acute appendicitis and performed the
operation. The patient developed paralysis of the ileum. He was removed to Bombay
Hospital on 10 May 1964 to be under the treatment of Dr. Motwani, and subsequently

died. Hospital issued a Death Intimation Card as "paralytic ileus and peritonitis following
an operation for acute appendicitis".
There was however a request for an inquest from the Police Station as his was a case of
post operation death in a hospital. 4. The appellant made an order that Mr. Adatia be
called. It is alleged that the appellant had told Dr. Adatia a few days earlier that though he
might have operated satisfactorily the cause of death given by the hospital would give
rise to a presumption of negligence on his part. Dr. Adatia was asked by the appellant to
meet Dr. Motwani, so that the latter could get in touch with the appellant to resolve the
technical difficulties. The appellant told Dr. Motwani that Dr. Adatia was at fault but he
might be cleared of the charge in the inquest. The appellant asked for a sum of Rs. 20,000
which he later reduced to Rs. 10,000 however Dr. Adatia refused to pay.
Both the doctors decided to lodge a complaint with the Anti-Corruption Bureau. Dr.
Adatia's Nursing Home got messages on the telephone to get in touch with the appellant.
Dr. Adatia complained to Dr. Motwani of the harassment on the telephone. Dr. Motwani
rang up the appellant. The appellant asked Dr. Motwani to intimate by 10 a.m. on 7
October whether Dr. Adatia was willing to pay Rs. 10,000. Dr. Motwani rang up Mugwe,
Director of the Anti-Corruption Branch and complained that a higher Government official
was demanding a heavy bribe from a Doctor. Mugwe then arranged for his staff to be
present near Dr. Motwani's residence on the morning of 7 October with the tape recording
equipment to record on the tape the telephonic conversation
On 7 October 1964 Mugwe and ACP Sawant went to Dr. Motwani's residence. They met
Dr. Motwani and Dr. Adatia. When they commenced recording the First Information
Report of Dr. Motwani. Mugwes men arranged for the tape recording equipment to
be attached to the telephone of Dr. Motwani. Dr. Motwani was asked by Mugwe to
ring up the appellant in the presence of Mugwe and other Police Officers about the
appellant's demand for the money. Dr. Motwani rang up the appellant and spoke
with him. Dr. Motwani reported the gist of the talk to Mugwe. Mugwe then asked
Dr. Motwani to ring up Dr. Adatia to speak on certain special points. After the talk
with Dr. Adatia, Dr. Motwani was asked by Mugwe to ring up the appellant and ask
for an appointment to discuss the matter further. Dr. Motwani rang up the appellant
and an appointment was made to meet the appellant at 12 noon the same day. The

conversation between Dr. Motwani and the appellant and the conversation between
Dr. Motwani and Dr. Adatia are all recorded on the tape.
The two Doctors Motwani and Adatia met the appellant in the Coroner's Chamber at 12
noon. The appellant raised the demand to Rs. 15,000 and said that Rs. 5,000 was to be
paid to Coroner's Surgeon for giving an opinion in favour of Dr. Adatia. The appellant
said that if the amount was not paid the police Surgeon's opinion would be incorporated
in the case. The two Doctors went out of the Chamber for a while. Dr. Adatia then told
the appellant that he would pay the appellant Rs. 15, 000 on 9 October, 1964.
Dr. Adatia paid Rs. 15,000 to Dr. Motwani. Dr. Motwani took the amount to his house.
Dr. Motwani informed the appellant on the telephone that he had received the money
from Dr. Adatia. The appellant asked Dr. Motwani to keep it and to bring the money to
the appellant's house on 10 October, 1964. On 10 October the Assistant Commissioner
Sawant came to Dr. Motwani's residence and asked him to go to the appellant's residence
to fix up an appointment for payment of money. Dr. Motwani went to the appellant's
house on 10 October, 1964. at 10 a.m. The appellant was not in the house. The appellant's
wife was there. Dr. Motwani told her that he had come to pay the money. The appellant's
wife said that he could pay her. Dr. Motwani said that he had no instructions to pay.
The Police Officers and Dr. Motwani met at the residence of Dr. Adatia at about 4
p.m. The raiding party connected the tape recorder to the telephone mechanism of
Dr. Motwani. Dr. Motwani dialed the appellant's residence and spoke with the
appellant in the presence of the Police Officers. The conversation was also recorded
on the tape. It was arranged at the talk that Dr. Motwani would pay the amount to
the appellant's wife on 12 October 1964. Dr. Motwani was asked to take a letter
addressed to the appellant stating that he was returning a loan of Rs. 15,000 which
he had taken at the time of buying a flat.
Eventually Dr. Motwani did not go the appellants residence so the appointment was
The appellant was charged Under Sections 161, 385 and 420 read with Section 511 of the
Indian Penal Code. However, the appellant denied that he demanded any amount through
Dr. Motwani. He also denied that he threatened Dr. Adatia of the consequence of an

Issues: Whether evidence was inadmissible as it was illegally obtained in
contravention of Sec. 25 of the Telegraph Act and infringes Art. 20(3) and Art. 21 of
the Constitution?
Whether the conversation between Dr. Motwani and the appellant which was
recorded on the tape took place during investigation in as much as Mugwe asked Dr.
Motwani to talk and therefore the conversation was not admissible under Section
162 of the CrPC?
Section 25 of the Indian Telegraph Act 1885 states that if any person intending (b) to
intercept or to acquaint himself with the contents of any message damages, removes,
tampers with or touches any battery, machinery, telegraph line, post or other thing
whatever, being part of or used in or about any telegraph or in the working thereof he
shall be punished with imprisonment for a term which may extend to three years, or with
fine, or with both.
Counsel for the appellant submitted that attaching the tape recording instrument to the
telephone instrument, of Dr. Motwani was an offence Under Section 25 of the Indian
Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with
the contents of any message touched machinery or other thing whatever used in or about
or telegraph or in the working thereof he was guilty of an offence under the Telegraph
Act. Reliance was placed on Rule 149 of the Telegraph Rules which states that it shall be
lawful for the Telegraph Authority to monitor or intercept a message or messages
transmitted through telephone, for the purpose of verification of any violation of these
rules or for the maintenance of the equipment. This Rule was referred to for establishing
that only the Telegraph Authorities could intercept message under the Act and Rules and
a police officer could not.
HC held phone tapping violated Sec. 25 but the evidence collected would still be
SC- 20. The Police Officer in the present case fixed the tape recording instrument to the
telephone instrument with the authority of Dr. Motwani. The Police Officer could not be
said to intercept any message or damage or tamper or remove or touch any machinery
within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the
Police Officer instead of hearing directly the oral conversation between Dr. Motwani and
the appellant recorded the conversation with the device of the tape recorder.

The substance of the offence under Section 25 of the Indian Telegraph Act is damaging,
removing, tampering, touching machinery battery line or post for interception or
acquainting oneself with the contents of any message. Where a person talking on the
telephone allows another person to record it or to hear it can-not be said that the
other person who is allowed to do so is damaging, removing, tampering, touching
machinery battery line or post for intercepting or acquainting himself with the
contents of any message. There was no element of coercion or compulsion in
attaching the tape recorder to the telephone. There was no violation of the Indian
Telegraph Act.
Yusuf Ismail v. State of Maha-Tape recorded convo was accepted as admissible in
Under Section 146 of the Evidence Act questions might be put to the witness to test the
veracity of the witness. Again under Section 153 of the Evidence Act a witness might be
contradicted when he denied any question tending to impeach his impartiality. This is
because the previous statement is furnished by the tape recorded conversation. The tape
itself becomes the primary and direct evidence of what has been said and recorded.
23. A tape recorded conversation is admissible provided first the conversation is
relevant to the matters in issue secondly, there is identification of the voice: and,
thirdly, the accuracy of the tape recorded conversation is proved by eliminating the
possibility of erasing the tape record. A contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under Section 8 of the Evidence Act.
It is res gestae. It is also comparable to a photograph of a relevant incident. The tape
recorded conversation is therefore a relevant fact and is admissible under Section 7
of the Evidence Act.
The conversation between Dr. Motwani and the appellant in the present case is relevant to
the matter in issue. There is no dispute about the identification of the voices. There is no
controversy about any portion of the conversation being erased or mutilated. The
appellant was given full opportunity to test the genuineness of the tape recorded
conversation. The tape recorded conversation is admissible in evidence.
23. There is warrant for proposition that even if evidence is illegally obtained it is
admissible. The reason given was that if evidence was admissible it matters not how
it was obtained. There is of course always a word of caution. It is that the Judge has

discretion to disallow evidence in a criminal case if the strict rules of admissibility
would operate unfairly against the accused. That caution is the golden rule in criminal
26. In Nagree's case the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh
informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The
Police kept a tape recorder concealed in another room. The tape was kept in the custody
of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his
testimony. Just as a photograph taken without the knowledge of the person
photographed can become relevant and admissible so does a tape record of a
conversation unnoticed by the talkers.
The Court will take care in two directions in admitting such evidence. First, the
Court will find out that it is genuine and free from tampering or mutilation.
Secondly, the Court may also secure scrupulous conduct and behavior on behalf of
the Police. The reason is that the Police Officer is more likely to behave properly if
improperly obtained evidence is liable to be viewed with care and caution by the Judge.
In every case the position of the accused, the nature of the investigation and the gravity of
the offence must be judged in the light of the material facts and the surrounding
28. When a Court permits a tape recording to be played over it is acting on real
evidence if it treats the intonation of the words to be relevant and genuine. The fact
that tape recorded conversation can be altered is also borne in mind by the Court
while admitting it in evidence.
29. In the present case the recording of the conversation between Dr. Motwani and the
appellant cannot be said to be illegal because Dr. Motwani allowed the tape recording
instrument to be attached to his instrument. In fact, Dr. Motwani permitted the police
officers to hear the conversation. If the conversation were relayed on a microphone or an
amplifier from the telephone and the police officers heard the same they would be able to
give direct evidence of what they heard. Here the police officers gave direct evidence
of what they saw and what they did and what they recorded as a result of voluntary
permission granted by Dr. Motwani. The tape recorded conversation is
contemporaneous relevant evidence and therefore it is admissible. It is not tainted
by coercion or unfairness. There is no reason to exclude this evidence.

30. Violations of Art. 20(3) and 21- The appellant's conversation was voluntary. The
fact that the attaching of the tape recording instrument was unknown to the
appellant does not render the evidence of conversation inadmissible. The appellant's
conversation was not extracted under duress or compulsion. If the conversation was
recorded on the tape it was a mechanical contrivance to play the role of an
eavesdropper. In R. v. Leatham [1861] 8 Cox. C.C. 498 it was said "It matters not how
you get it if you steal it even, it would be admissible in evidence". As long as it is not
tainted by an inadmissible confession of guilt evidence even if it is illegally obtained
is admissible.
At the time of the conversation there was no case against the appellant. He was not
compelled to speak or confess. Article 21 was invoked by submitting that the privacy of
the appellant's conversation was invaded. The telephonic conversation of an innocent
citizen will be protected by Courts against wrongful or high handed interference by
tapping the conversation. The protection is not for the guilty citizen against the
efforts of the police to vindicate the law and prevent corruption of public servants. It
must not be understood that the Courts will tolerate safeguards for the protection of the
citizen to be imperiled by permitting the police to proceed by unlawful or irregular
methods. In the present case there is no unlawful or irregular method in obtaining the tape
recording of the conversation.
Sections 161 and 162 of the Criminal Procedure Code indicate that there is
investigation when the Police Officer orally examines a person. The telephonic
conversation was between Dr. Motwani and the appellant. Each spoke to the other.
Neither made a statement to the Police Officer. There is no mischief of Section 162.

Unit X: Scientific and Expert Evidence

Frye v. United States 1923

Defendant was convicted of 2nd degree murder-In the course of the trial counsel for
defendant offered an expert witness to testify to the result of a deception test made
upon defendant-systolic blood pressure deception test-It is asserted that blood pressure
is influenced by change in the emotions of the witness, and that the systolic blood
pressure rises are brought about by nervous impulses sent to the sympathetic branch of

the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated
that fear, rage, and pain always produce a rise of systolic blood pressure, and that
conscious deception or falsehood, concealment of facts, or guilt or crime, accompanied
by fear of detection when the person is under examination, raises the systolic blood
pressure in a curve, which corresponds exactly to the struggle going on in the subject's
mind, between fear and attempted control of that fear, as the examination-touches the
vital points in respect of which he is attempting to deceive the examiner.
The theory seems to be that truth is spontaneous, and comes without conscious effort,
while the utterance of a falsehood requires a conscious effort, which is reflected in the
blood pressure. The rise thus produced is easily detected and distinguished from the rise
produced by mere fear of the examination itself. In the former instance, the pressure rises
higher than in the latter, and is more pronounced as the examination proceeds, while in
the latter case, if the subject is telling the truth, the pressure registers highest at the
beginning of the examination, and gradually diminishes as the examination proceeds.
Defence argued-'The rule is that the opinions of experts or skilled witnesses are
admissible in evidence in those cases in which the matter of inquiry is such that
inexperienced persons are unlikely to prove capable of forming a correct judgment upon
it, for the reason that the subject matter so far partakes of a science, art, or trade as to
require a previous habit or experience or study in it, in order to acquire a knowledge of it.
When the question involved does not lie within the range of common experience or
common knowledge, but requires special experience or special knowledge, then the
opinions of witnesses skilled in that particular science, art, or trade to which the question
relates are admissible in evidence.'
Court held: While courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.

Selvi v. State of Karnataka

Issue: Whether the involuntary administration of narcoanalysis, polygraph
examination and the Brain Electrical Activation Profile (BEAP) test for the purpose
of improving investigation efforts in criminal cases is violative of Art. 20(3)

Scientific validity of techniques questionable-results not entirely reliable. The
narcoanalysis technique involves the intravenous administration of sodium pentothal, a
drug which lowers inhibitions on part of the subject and induces the person to talk freely.
However, empirical studies suggest that the drug induced revelations need not necessarily
be true. Polygraph examination and the BEAP test are methods which serve the
respective purposes of lie-detection and gauging the subject's familiarity with information
related to the crime. These techniques are essentially confirmatory in nature, wherein
inferences are drawn from the physiological responses of the subject. However, the
reliability of these methods has been repeatedly questioned in empirical studies.
10. The theory behind polygraph tests is that when a subject is lying in response to a
question, he/she will produce physiological responses that are different from those that
arise in the normal course
11. There are three prominent polygraph examination techniques:
i. The relevant-irrelevant (R-I) technique
ii. The control question (CQ) technique
iii. Directed Lie-Control (DLC) technique
Each of these techniques includes a pre-test interview during which the subject is
acquainted with the test procedure and the examiner gathers the information which is
needed to finalize the questions that are to be asked. An important objective of this
exercise is to mitigate the possibility of a feeling of surprise on part of the subject which
could be triggered by unexpected questions. This is significant because an expression of
surprise could be mistaken for physiological responses that are similar to those associated
with deception.
12. The control-question (CQ) technique is the most commonly used one- The test
consists of control questions and relevant questions. The control questions are irrelevant
to the facts being investigated but they are intended to provoke distinct physiological
responses, as well as false denials. These responses are compared with the responses
triggered by the relevant questions. Theoretically, a truthful subject will show greater
physiological responses to the control questions which he/she has reluctantly answered
falsely, than to the relevant questions, which the subject can easily answer truthfully.
Conversely, a deceptive subject will show greater physiological responses while giving
false answers to relevant questions in comparison to the responses triggered by false
answers to control questions. In other words, a guilty subject is more likely to be

concerned with lying about the relevant facts as opposed to lying about other facts in
16. Polygraph tests have several limitations and therefore a margin for errors. The
premise behind these tests is questionable because the measured changes in
physiological responses are not necessarily triggered by lying or deception. Instead,
they could be triggered by nervousness, anxiety, fear, confusion or other emotions.
Furthermore, the physical conditions in the polygraph examination room can also
create distortions in the recorded responses. The test is best administered in
comfortable surroundings where there are no potential distractions for the subject and
complete privacy is maintained.
The mental state of the subject is also vital since a person in a state of depression or
hyperactivity is likely to offer highly disparate physiological responses which could
mislead the examiner. In some cases the subject may have suffered from loss of memory
in the intervening time-period between the relevant act and the conduct of the test. When
the subject does not remember the facts in question, there will be no self-awareness of
truth or deception and hence the recording of the physiological responses will not be
helpful. Errors may also result from `memory-hardening', i.e. a process by which the
subject has created and consolidated false memories about a particular incident. This
commonly occurs in respect of recollections of traumatic events and the subject may not
be aware of the fact that he/she is lying.
The biggest concern about polygraph tests is that an examiner may not be able to
recognise deliberate attempts on part of the subject to manipulate the test results.
Such `countermeasures' are techniques which are deliberately used by the subject to
create certain physiological responses in order to deceive the examiner. The intention
is that by deliberately enhancing one's reaction to the control questions, the examiner will
incorrectly score the test in favour of truthfulness rather than deception. The most
commonly used `countermeasures' are those of creating a false sense of mental anxiety
and stress at the time of the interview, so that the responses triggered by lying cannot be
readily distinguished
41. Narcoanalysis-This test involves the intravenous administration of a drug that causes
the subject to enter into a hypnotic trance and become less inhibited. The drug-induced

hypnotic stage is useful for investigators since it makes the subject more likely to divulge
information. The drug used for this test is sodium pentothal
Technique does not have an absolute success rate and there is always the possibility that
the subject will not reveal any relevant information. Some studies have shown that most
of the drug-induced revelations are not related to the relevant facts and they are more
likely to be in the nature of inconsequential information about the subjects' personal lives.
It takes great skill on part of the interrogators to extract and identify information which
could eventually prove to be useful.
While some persons are able to retain their ability to deceive even in the hypnotic
state, others can become extremely suggestible to questioning. This is especially
worrying, since investigators who are under pressure to deliver results could frame
questions in a manner that prompts incriminatory responses. Subjects could also
concoct fanciful stories in the course of the `hypnotic stage'. Since the responses of
different individuals are bound to vary, there is no uniform criteria for evaluating the
efficacy of the `narcoanalysis' technique
67. The third technique in question is the `Brain Electrical Activation Profile test', also
known as the `P300 Waves test'. It is a process of detecting whether an individual is
familiar with certain information by way of measuring activity in the brain that is
triggered by exposure to selected stimuli. This test consists of examining and measuring
`event-related potentials' (ERP) i.e. electrical wave forms emitted by the brain after it has
absorbed an external event. An ERP measurement is the recognition of specific
patterns of electrical brain activity in a subject that are indicative of certain
cognitive mental activities that occur when a person is exposed to a stimulus in the
form of an image or a concept expressed in words.
An important objection is centred on the inherent difficulty of designing the appropriate
`probes' (stimuli) for the test. Even if the `probes' are prepared by an examiner who is
thoroughly familiar with all aspects of the facts being investigated, there is always a
chance that a subject may have had prior exposure to the material probes. In case of such
prior exposure, even if the subject is found to be familiar with the probes, the same will
be meaningless in the overall context of the investigation. For example, in the aftermath
of crimes that receive considerable media-attention the subject can be exposed to the test
stimuli in many ways. Such exposure could occur by way of reading about the crime in

newspapers or magazines, watching television, listening to the radio or by word of
mouth. A possibility of prior exposure to the stimuli may also arise if the investigators
unintentionally reveal crucial facts about the crime to the subject before conducting the
test. The subject could also be familiar with the content of the material probes for several
other reasons.
74. Another significant limitation is that even if the tests demonstrate familiarity with the
material probes, there is no conclusive guidance about the actual nature of the subject's
involvement in the crime being investigated. For instance a by- stander who witnessed a
murder or robbery could potentially be implicated as an accused if the test reveals that the
said person was familiar with the information related to the same. Furthermore, in cases
of amnesia or `memory-hardening' on part of the subject, the tests could be blatantly
misleading. Even if the inferences drawn from the `P300 wave test' are used for
corroborating other evidence, they could have a material bearing on a finding of guilt or
innocence despite being based on an uncertain premise
IA. Whether the investigative use of the impugned techniques creates a likelihood of
incrimination for the subject?
99. The respondents have submitted that the compulsory administration of the impugned
tests will only be sought to boost investigation efforts and that the test results by
themselves will not be admissible as evidence. The next prong of this position is that if
the test results enable the investigators to discover independent materials that are relevant
to the case, such subsequently discovered materials should be admissible during trial. In
order to evaluate this position, we must answer the following questions:
Firstly, we should clarify the scope of the `right against self-incrimination' - i.e. whether
it should be construed as a broad protection that extends to the investigation stage or
should it be viewed as a narrower right confined to the trial stage?
Secondly, we must examine the ambit of the words `accused of any offence' in Article
20(3) - i.e. whether the protection is available only to persons who are formally
accused in criminal cases, or does it extend to include suspects and witnesses as well
as those who apprehend incrimination in cases other than the one being
Thirdly, we must evaluate the evidentiary value of independent materials that are
subsequently discovered with the help of the test results. In light of the `theory of
confirmation by subsequent facts' incorporated in Section 27 of the Indian Evidence

Act, 1872 we need to examine the compatibility between this section and Article 20
(3). Of special concern are situations when persons could be compelled to reveal
information which leads to the discovery of independent materials. To answer this
question, we must clarify what constitutes `incrimination' for the purpose of invoking
Article 20(3).
Who is an accused within Art. 20(3)?
108. While there is a requirement of formal accusation for a person to invoke Article
20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider.
Section 161 (2) read with 161(1) protects `any person supposed to be acquainted with the
facts and circumstances of the case' in the course of examination by the police.
Therefore the `right against self-incrimination' protects persons who have been
formally accused as well as those who are examined as suspects in criminal cases. It
also extends to cover witnesses who apprehend that their answers could expose them
to criminal charges in the ongoing investigation or even in cases other than the one
being investigated
110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the
formally accused persons as well as suspects and witnesses during the investigative stage,
Section 132 of the Evidence Act limits the applicability of this protection to witnesses
during the trial stage. The latter provision provides that witnesses cannot refuse to
answer questions during a trial on the ground that the answers could incriminate them.
However, the proviso to this section stipulates that the content of such answers cannot
expose the witness to arrest or prosecution, except for a prosecution for giving false
111. Since the extension of the `right against self- incrimination' to suspects and
witnesses has its basis in Section 161(2), CrPC it is not readily available to persons
who are examined during proceedings that are not governed by the code. There is a
distinction between proceedings of a purely criminal nature and those proceedings which
can culminate in punitive remedies and yet cannot be characterised as criminal
proceedings. The consistent position has been that ordinarily Article 20(3) cannot be
invoked by witnesses during proceedings that cannot be characterised as criminal
proceedings. In administrative and quasi-criminal proceedings, the protection of

Article 20(3) becomes available only after a person has been formally accused of
committing an offence.
What constitutes incrimination?
114. We can now examine the various circumstances that could `expose a person to
criminal charges'. The scenario under consideration is one where a person in custody is
compelled to reveal information which aids the investigation efforts. The information so
revealed can prove to be incriminatory in the following ways:
The statements made in custody could be directly relied upon by the prosecution to
strengthen their case. However, if it is shown that such statements were made under
circumstances of compulsion, they will be excluded from the evidence.
Another possibility is that of `derivative use', i.e. when information revealed during
questioning leads to the discovery of independent materials, thereby furnishing a link in
the chain of evidence gathered by the investigators.
Yet another possibility is that of `transactional use', i.e. when the information revealed
can prove to be helpful for the investigation and prosecution in cases other than the one
being investigated.
A common practice is that of extracting materials or information, which are then
compared with materials that are already in the possession of the investigators. For
instance, handwriting samples and specimen signatures are routinely obtained for the
purpose of identification or corroboration.
84. Not only does an accused person have the right to refuse to answer any question that
may lead to incrimination, there is also a rule against adverse inferences being drawn
from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a
crucial limitation on the power of the court to put questions to the accused so that the
latter may explain any circumstances appearing in the evidence against him. It lays down
that the accused shall not render himself/herself liable to punishment by refusing to
answer such questions, or by giving false answers to them.
Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an
accused person can be a competent witness for the defence, his/her failure to give
evidence shall not be made the subject of any comment by any of the parties or the
court or give rise to any presumption against himself or any person charged
together with him at the trial. It is evident that Section 161(2), CrPC enables a
person to choose silence in response to questioning by a police officer during the

stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to
Section 315(1) of the same code, adverse inferences cannot be drawn on account of
the accused person's silence during the trial stage.
Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent
facts' - i.e. statements made in custody are admissible to the extent that they can be
proved by the subsequent discovery of facts. It is quite possible that the content of the
custodial statements could directly lead to the subsequent discovery of relevant facts
rather than their discovery through independent means. Hence such statements
could also be described as those which `furnish a link in the chain of evidence'
needed for a successful prosecution.
In Indian law, there is no automatic presumption that the custodial statements have
been extracted through compulsion. In short, there is no requirement of additional
diligence akin to the administration of Miranda warnings. However, in circumstances
where it is shown that a person was indeed compelled to make statements while in
custody, relying on such testimony as well as its derivative use will offend Article
20(3)-Kathi Kolu Oghad case
If we were to permit the admission of involuntary statement on the ground that at
the time of asking a question it is not known whether the answer will be inculpatory
or exculpatory, the `right against self-incrimination' will be rendered meaningless.
The law confers on `any person' who is examined during an investigation, an
effective choice between speaking and remaining silent. This implies that it is for the
person being examined to decide whether the answer to a particular question will
eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that
the information or materials collected at an earlier stage of investigation can prove to be
inculpatory in due course
IB: Whether the tests amount to testimonial compulsion under Art. 20(3)?
Apart from the apparent distinction between evidence of a testimonial and physical
nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance,
even though acts such as compulsorily obtaining specimen signatures and
handwriting samples are testimonial in nature, they are not incriminating by
themselves if they are used for the purpose of identification or corroboration with
facts or materials that the investigators are already acquainted with. The relevant

consideration for extending the protection of Article 20(3) is whether the materials
are likely to lead to incrimination by themselves or `furnish a link in the chain of
evidence' which could lead to the same result.
130. It is quite evident that the narcoanalysis technique involves a testimonial act. A
subject is encouraged to speak in a drug-induced state, and there is no reason why such
an act should be treated any differently from verbal answers during an ordinary
interrogation. In one of the impugned judgments, the compulsory administration of the
narcoanalysis technique was defended on the ground that at the time of conducting the
test, it is not known whether the results will eventually prove to be inculpatory or
exculpatory. We have already rejected this reasoning. We see no other obstruction to the
proposition that the compulsory administration of the narcoanalysis technique amounts to
`testimonial compulsion' and thereby triggers the protection of Article 20(3).
136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling
precedent, it will be useful to re- state the two main premises for understanding the
scope of `testimonial compulsion'. The first is that ordinarily it is the oral or written
statements which convey the personal knowledge of a person in respect of relevant
facts that amount to `personal testimony' thereby coming within the prohibition
contemplated by Article 20(3). In most cases, such personal testimony' can be
readily distinguished from material evidence such as bodily substances and other
physical objects. The second premise is that in some cases, oral or written
statements can be relied upon but only for the purpose of identification or
comparison with facts and materials that are already in the possession of the
The bar of Article 20(3) can be invoked when the statements are likely to lead to
incrimination by themselves or `furnish a link in the chain of evidence' needed to do
so. We must emphasize that a situation where a testimonial response is used for
comparison with facts already known to investigators is inherently different from a
situation where a testimonial response helps the investigators to subsequently discover
fresh facts or materials that could be relevant to the ongoing investigation.
149. We are inclined towards the view that the results of the impugned tests should be
treated as testimonial acts for the purpose of invoking the right against self-incrimination.
Therefore, it would be prudent to state that the phrase `and such other tests' [which

appears in the Explanation to Sections 53, 53A and 54 of the CrPC] should be read
so as to confine its meaning to include only those tests which involve the
examination of physical evidence. In pursuance of this line of reasoning, we agree with
the appellant's contention about the applicability of the rule of `ejusdem generis'. It
should also be noted that the Explanation to Sections 53, 53A and 54 of the CrPC does
not enumerate certain other forms of medical examination that involve testimonial
acts, such as psychiatric examination among others. This demonstrates that the
amendment to this provision was informed by a rational distinction between the
examination of physical substances and testimonial acts.
Hence, on an aggregate understanding of the materials produced before us we lean
towards the view that the impugned tests, i.e. the narcoanalysis technique, polygraph
examination and the BEAP test should not be read into the provisions for `medical
examination' under the Code of Criminal Procedure, 1973
153. However, it must be borne in mind that even though the impugned techniques
have not been expressly enumerated in the CrPC, there is no statutory prohibition
against them either. It is a clear case of silence in the law. Furthermore, in
circumstances where an individual consents to undergo these tests, there is no
dilution of Article 20(3).
Ordinarily evidence is classified into three broad categories, namely oral testimony,
documents and material evidence. The protective scope of Article 20(3) read with Section
161(2), CrPC guards against the compulsory extraction of oral testimony, even at the
stage of investigation. With respect to the production of documents, the applicability of
Article 20(3) is decided by the trial judge but parties are obliged to produce documents in
the first place. However, the compulsory extraction of material (or physical) evidence
lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral
or written form can be required under compulsion if it is to be used for the purpose
of identification or comparison with materials and information that is already in the
possession of investigators.
The results obtained from polygraph examination or a BEAP test are not in the nature of
oral or written statements. Instead, inferences are drawn from the measurement of
physiological responses recorded during the performance of these tests. It could also be
argued that tests such as polygraph examination and the BEAP test do not involve a

`positive volitional act' on part of the test subject and hence their results should not be
treated as testimony.
However, this does not entail that the results of these two tests should be likened to
physical evidence and thereby excluded from the protective scope of Article 20(3). We
must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which
equated a testimonial act with the imparting of knowledge by a person who has personal
knowledge of the facts that are in issue. It has been recognised in other decisions that
such personal knowledge about relevant facts can also be communicated through
means other than oral or written statements. For example in M.P. Sharma's case
(supra.), it was noted that "...evidence can be furnished through the lips or by
production of a thing or of a document or in other modes" [Id. at p. 1087].
Furthermore, common sense dictates that certain communicative gestures such as
pointing or nodding can also convey personal knowledge about a relevant fact, without
offering a verbal response. It is quite foreseeable that such a communicative gesture may
by itself expose a person to `criminal charges or penalties' or furnish a link in the chain of
evidence needed for prosecution.
160. Even though the actual process of undergoing a polygraph examination or a BEAP
test is not the same as that of making an oral or written statement, the consequences are
similar. By making inferences from the results of these tests, the examiner is able to
derive knowledge from the subject's mind which otherwise would not have become
available to the investigators. These two tests are different from medical
examination and the analysis of bodily substances such as blood, semen and hair
samples, since the test subject's physiological responses are directly correlated to
mental faculties.
Through lie-detection or gauging a subject's familiarity with the stimuli, personal
knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the
case of documents, the investigators cannot possibly have any prior knowledge of
the test subject's thoughts and memories, either in the actual or constructive sense.
Therefore, even if a highly-strained analogy were to be made between the results
obtained from the impugned tests and the production of documents, the weight of
precedents leans towards restrictions on the extraction of `personal knowledge'
through such means.

161. During the administration of a polygraph test or a BEAP test, the subject makes a
mental effort which is accompanied by certain physiological responses. The measurement
of these responses then becomes the basis of the transmission of knowledge to the
investigators. This knowledge may aid an ongoing investigation or lead to the discovery
of fresh evidence which could then be used to prosecute the test subject. In any case, the
compulsory administration of the impugned tests impedes the subject's right to
choose between remaining silent and offering substantive information. The
requirement of a `positive volitional act' becomes irrelevant since the subject is
compelled to convey personal knowledge irrespective of his/her own volition.
223. In light of these conclusions, we hold that no individual should be forcibly
subjected to any of the techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty. However, we do leave room for the
voluntary administration of the impugned techniques in the context of criminal
justice, provided that certain safeguards are in place. Even when the subject has given
consent to undergo any of these tests, the test results by themselves cannot be admitted
as evidence because the subject does not exercise conscious control over the
responses during the administration of the test. However, any information or
material that is subsequently discovered with the help of voluntary administered test
results can be admitted, in accordance with Section 27 of the Evidence Act, 1872-
followed by guidelines.