RELEVANCY OF STATEMENT AS A CONDUCT: A JUDICIAL ANALYSIS*
Author: Simran Bais
Maharashtra National Law University, Nagpur.
ISSN: 2582-3655
ABSTRACT
The criminal jurisprudence develops on the concept of Conduct of the accused antecedent and subsequent to the commission of the crime. Needless to say, the motive and intention for the commission of a crime are considered to be the important ingredients on the part of the accused because navigating these two elements of motive and intention the reason as to why the crime was committed can be resolved. The motive or intention can also be manifested through the means of the statement used or referred to by the accused. The relevancy of statement as conduct helps the investigating officer to adopt a route of fair investigation where both the accused and victim’s statement and conduct are analyzed. The article attempts to throw some light pertaining to the thin line of distinction which exists between the explanation-I and II appended to s. 8 of the Indian Evidence Act. It is equally pertinent to observe that in order to judge the state of mind of a person or an accused in a particular situation reliance can be placed on the circumstances surrounding the accused which existed prior to and subsequent to the commission of a crime. The conduct of the accused should be such that it defeats the presumption of innocence.
Keywords- Relevancy, Statement, fair-investigation, motive, conduct, Evidence.
Introduction
Statement does not have a strait jacket definition under the Evidence Act, 1872. However, a quick look to a Preamble should be made before understanding the intricacies of a statute in question. The preamble of the Evidence Act shows that it is not merely a fragmentary enactment but a consolidatory code. Before venturing in this domain, it is significant to understand the meaning and the eminent context of relevant facts-
There is hardly any action without a concrete motive. It is pertinent to note that the opportunity, antecedent attempts, proof of preparation and the presence or absence of motive plays a crucial role because it serves not only to depict the mens rea of the crime perpetrated but also furnishes chain of events and circumstances leading to the commission of the crime in question. It can be rightly formulated that the s. 8 of the IEA is a magnification of s. 7 which embraces a wider series of facts. Whether a man had any interest or motive in the commission of the crime is the important consideration. The conduct that is previous for determining whether he calculated his actions to bring about it is an important consideration. Previous attempt to commit a crime is akin to preparation. Generally speaking, every voluntary act has a motive and an act unaccompanied with motive is in favor of accused. Therefore, the conduct of accused forms an indispensable part for the commission of the crime. Fundamentally, it has been observed that the probative strength for a particular kind of evidence changes when the absence of one kind of evidence is more predominant than the absence of another.[1] In the whole body of proof, failure to produce evidence showcasing appropriate motive may be a symptom of causing weakness in the whole body of proof, however, as a matter of law it is not a fatal one. The conduct as envisaged under section 8 of the evidence act is previous and subsequent conduct which becomes relevant like preparations, previous attempts, declarations of threat come under the spectrum of previous conduct whereas absconding, and change in life or demeanor, giving fabricated and false evidence of name and address comes under the realm of subsequent conduct.
Understanding the relevancy of statement as a conduct from s. 8 of the Evidence Act, 1872
The scheme of Explanation-I of S. 8
It is important to understand what facts become relevant while dealing with s. 8 that is to say firstly, facts; for any fact in issue or relevant fact facts depicting or comprising a motive or preparation. In many cases, whether civil or criminal it becomes necessary to determine with what intention and motive the act under inquiry were done. At the point of time when proceedings arise the facts which arise or reference to any relevant fact or fact in issue, the conduct of a party to its proceedings or his agent with reference to the proceedings is relevant. The condition of admissibility is that it must directly influence or be influenced by the same factors of relevant issue or fact-in-issue. The explanation appended to s. 8 states that mere statements as distinguished from acts do not constitute conduct unless those statements accompany and explain acts other than statements. Statements accompanying acts are part of res gestae[2] and therefore, they explain the acts and make them intelligible, so they are relevant.[3]
It is important to note that when the conduct of any person is in question, statements whether oral or written made to him or in his presence that affect such conduct is relevant. To understand this, the explanation-I appended to s. 8 is of primordial importance which states that mere words unaccompanied by acts do not constitute conduct. Like for an instance, there is a trial going on against A for the murder of B, C who is present in the Court states that the sub-inspector is coming to catch hold of the murderer and as soon as A listens to this he tries to evade. This statement of C affects the conduct of A these statements are relevant.[4]
For instance, consider a situation wherein an injured person is running down the lane recalling the entire accident in which he got the inflicted injury and the names of the assailant this particular situation needs to be proved as a whole and not in part. However, the situation would be entirely different if a passer-by stops suggest some names, and asks about the incident. The latter situation wherein response comes into the picture is not admitted by way of conduct.[5]
In Bhagwandas v. State,[6] it was held that evidence relating to the truth of a statement that does not explain any accompanying conduct of the accused is not admissible under this section. Hearsay evidence relating to a statement of admission by one of the conspirators is not admissible under this section if it did not explain any accompanying conduct of that conspirator. When a person who took the bribe was caught and gave a statement, the statement is not admissible.[7]Where a woman who was with her husband during the night, told her brother in the morning when questioned by them that she did not know the whereabouts of her husband, it was held that the statements of the brothers were inadmissible as they did not accompany or explain any act.[8]
The scheme of Explanation-II of S. 8
Under Explanation-II, it is imperative to note that when the conduct of any person is in question, the statements which are made to him or in his presence which in a way affects the conduct of the person to whom they are addressed are said to be relevant. Thus, if a man charged with an offense keeps silent or absconds after a receipt of the letter that inquiry was being made for the criminal. The statements have an important bearing on his conduct. Mere statements to a person that do not affect the conduct are not relevant. Another point of significance is that the statements must also be made to the person or in his presence and hearing. It is to be noted that all this is necessary that the statement must be meant for him or it should be addressed to him so that it comes to his actual knowledge. As a part of the groundwork of his conduct, the statements made in the presence of a party are admissible. In order to further understand this, take the case of a man who is accused of a crime, in such a situation his response along with his conduct and statements are taken together as a whole and not in part as evidence against himself. The statements themselves are material in order to reach an effective conclusion along with the conduct. Under explanation-II to s.8 statements made in the presence of the accused, which he might have contradicted if untrue is evidence against him.
Silence
There is a difference of opinion as to whether the silence of the accused is relevant and admissible, giving rise to an inference that he accepts the truth of the accusation where the charge is made by a police officer or other person with authority to investigate the crime. The maxim qui taci consentire videtur (Silence gives consent) must be taken with considerable qualification. For silence to carry incriminating force, there must be circumstances that afford an opportunity to speak. It is important to understand that the silence should not be considered as evidence of an admission, unless and until there are circumstances that makes it reasonably more probable that a man would answer the charge made against him than he would not.[9] Before the words of a third person are let in, it must be shown that the conduct which they proposed is in a way affecting the circumstance.[10]
The interplay of s. 162 Cr.P.C.
The conduct which is admissible under s. 8 and the statement rendered to a police officer in the course of the investigation which is hit by s. 162 Cr.P.C. is distinct and separate in their own field of operation. It is equally important to emphasize that what s. 162 Cr. P.C excludes is the statement and not the evidence relating to the conduct which is questioned by the Police officer. The ‘period of investigation’ and the ‘course of investigation’ are not synonymous with each other. What s. 162 Cr. P.C envisages are the statements recorded by the Police officers while investigating the offence.[11]
In a situation wherein an accused simply led the police and pointed out the place where incriminating articles were hidden it is admissible as conduct under the clutches of s. 8 of Evidence Act.[12]
Navigating the conduct of the accused
A criminal trial is nothing but an inquiry into the conduct of an accused of the determination of the offenses for which he is charged. It is material to note that the conduct which needs to be taken into consideration is the conduct that destroys the presumption of innocence.[13]
In order to judge the real state of a person’s mind, the surrounding circumstances and subsequent events can be referred to.[14] Before the commission of murder, facts showing preparation or motive are relevant.[15] It is important to note that after the transaction of sale, the conduct of parties is important in order to ascertain the intention of the parties as to when the property should pass.[16] The conduct of the accused is relevant under s. 8 of the aforesaid Act, when such conduct influences or is influenced by any relevant fact or the fact-in-issue for that particular matter.[17] It is important to note that such act or statement to be held as admissible under s. 8 should form part of the same transaction in question.[18] In a situation where the offenses of kidnapping and murder are in question the relevant facts which are admissible under s. 8 becomes the conduct of the accused for instance whether on spotting police he flees or not becomes relevant. [19]
Analysis
The conduct of the accused antecedent and subsequent forms the bedrock to determine the guilt of the accused.
It is a well-settled law that the Court takes into account the conduct of the accused to appreciate the evidence present on the record.[20] Where the eye-witnesses, the brothers of the deceased arriving on the murder spot hearing his cries, ran away from there to inform the people leaving his brother in distress, their conduct was held to be unnatural and their presence there was doubtful.[21] The prosecution witness claiming to have been present at the scene of occurrence and seen the occurrence did not accompany the injured to the hospital for which the prosecution could give no explanation. It was held that his conduct was quite unnatural.[22]
In a case, the eye-witness, seeing his uncle, the deceased, being attacked, hid behind a tree, though his father and his father’s uncle intervened in the fight. The accused did not attempt to threaten him or even them. The SC held that the conduct of the eye-witness was unusual.[23] The conduct of the eye-witness, the wife of the deceased in leaving her husband lying seriously injured and going to the police station at a distance of about 10 km and lodging a complaint there against all the family members en bloc excepting the mentally unsound mother of the deceased is unnatural and shows her vindictiveness and tendency to implicate innocent persons and hence, her testimony was held to be unreliable.[24]
Conclusion
The relevancy and admissibility of evidence are used synonymously but their legal operations are distinct in nature. The facts and circumstances of each and every case are to be taken into account while analyzing the conduct of the accused. The facts forming part of the same transaction are relevant as they are things done. The facts are connected together in the same transaction and these facts are taken with the same legal name. the conduct of the accused before and after the incident is important as it points out the motive or intention to carry an act by the accused. The conduct of the victim as well as of the accused is primordial in nature as it helps the Investigating officer to frame a structure to collect evidence further, based on the conduct. This acts as a culvert to fair investigation which is a natural right of every accused.
* Author is Simran Bais, 4th Year B.A.LLB (Hons.) student at National Law University, Nagpur.
[1] WIGMORE, s.118.
[2] The Indian Evidence Act, 1872 s.6.
[3] R v. Abdullah (1885) ILR 7 All 385.
[4] Wright v. Tatham 7 Ad & E 313.
[5] R v. Abdullah (1885) ILR 7 All 385.
[6] Bhagwandas v. State AIR 1974 SC 898.
[7] Zwinglee Ariel v. State, 1954 SC 15.
[8] Bai Katija v. State AIR 1962 Guj 1.
[9] Wiedemann v. Walpole, (1891) 2 RB 534, 539.
[10] Emperor v. Hira Gobar ,ILR (1919) 21 Bom LR 724
[11] SMT. SOBHA KUMARI, CIVIL JUDGE RAJAM: Scope and relevance of statements recorded under s. 161 & 164 Cr.P.C.
[12] Prakash Chand v. State AIR 1979 SC 400.
[13] Sidhatha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1.
[14] Ganesh v. R AIR 1931 Pat 52.
[15] H.P. Admin v. Shiv Devi AIR 1959 HP 3.
[16] Bhagan v. Allah Ditta 45 PR 1911.
[17] Rattilal Magabhai Vasava v. State of Gujarat, 2008 Cr.L.J 4016.
[18] Gagan Kanojia v. State of Punjab (2006) 13 SCC 516.
[19] A.N. Venkatesh v. State AIR 2005 SC 3809.
[20] Vithal Mahadev Patil v. State 1996 Cr.LJ 1796.
[21] Surendra Singh v. State of Uttaranchal 2004 Cr.LJ 4503, 4507.
[22] State of Rajasthan v. Arjun Singh AIR 2011 SC 3380.
[23] Sheo Shankar Singh v. State of Jharkhand AIR 2011 SC 1403.
[24] Bipin Kumar Mondal v. State of W.B. AIR 2010 SC 3638.