Admissibility of Dying Declaration

Dying-DeclarationIntroduction
Section 32(1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule. Principle behind the concept of dying declaration is that the person having the first hand information about a particular matter, however due to death or any kind of disability is unable to appear before the court, then his/ her knowledge/ information should be transmitted to the court through some other person . This Section plays a significant role when the person having a particular knowledge is sought to be proved died or cannot be found or due to any reason his attendance cannot be procured in the Court. However, proof must be produced before the Court that why person could not be present to give evidence. Further Supreme Court of India has held that a dying declaration made by a victim, accusing a person of having been responsible for his/her death cannot form the basis of conviction if it suffers from infirmity.
The statement made can be verbal/ oral connected to the circumstances of transaction that resulted the death caused to that person; such statement must be made before dying known as “dying declaration”. Such statement plays relevancy when the person who is making the statement, is under expectation of death, irrespective of the nature of proceedings in which the cause of death comes into question. If the declarant survives after making the statement then it is inadmissible as dying declaration but the statement can be used under section 157 of the Indian evidence Act, in order to contradict, corroborate, impeach or confirm the credit of the person by whom it was made.
In Uka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are compendiously called dying declaration”.
Admissibility of dying declaration in the Court
The concept of dying declaration is based on the Maxim “NEMO MORTURE PRAESUMNTUR MENTIRI” which means that the person who is about to die would not tell lie. The necessity of relying on the dying declaration is that a) victim being the sole eye witness of the crime committed, b) the statements made by a person who is about to die would be nothing but just truth. These are the two principles on which the concept of admissibility of dying declaration it is based upon.

Evidentiary value
Dying declaration can only be taken into consideration when it is a) Recorded by a competent magistrate (with certain exception), b) the said statement must be recorded in the exact words, c) there must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death, d) there must not be any ambiguity regarding the identity of the offender or cause of death.
It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.
Kaushal Rao Vs. State of Bombay

In the instant case, the Supreme Court observed that it was not an absolute rule of law that other evidence must corroborate a dying declaration. A dying declaration even if uncorroborated can form the sole side basis of conviction. But each and every case must be determined based on its facts and circumstances in which the dying declaration was made. A declaration cannot be judged on some footings and on general propositions, surrounding circumstances and other piece of evidence must also be taken into consideration.
Following conditions must be fulfilled to taking a statement admissible as dying declaration-
1. The declarant must about to die- That the person who has made the statement must be dead otherwise statement could not be taken into consideration as the name itself suggests “dying declaration”.
2. The declaration made must be in context to the cause of the death- Any statement made that has co-relation with the death of the declarant is considered admissible.
3. Cause of death must be in question- It is essential condition that the person who is about to die, his/ her death must be in question.
4. Injury caused- That the injuries that are caused to the declarant must be the cause of the death of him, otherwise said statement cannot be taken into consideration.

What happens if the dying declaration is incomplete?
In case of an incomplete dying declaration, where the person dies before completing the declaration in that situation the said statement cannot be taken into consideration hence the same would be inadmissible in the eyes of law. However, if the person made incomplete statement but have made the declaration about the cause of his death and has revealed that who is the accused/ offender. In that case the question of incomplete declaration would not come into the question; otherwise the sole purpose of the dying declaration will go in vain.
Even if the declarant fails to answer some of the questions asked and has made the relevant statement that has caused his death would be considered relevant and admissible before the Court. In Abdul Sattar Vs. State of Mysore the court held that however the dying declaration was not complete, but as far as the accused have shot the deceased is concerned, the said declaration could certainly be relied upon.

Forms/ types of dying declaration
There is no specific guideline or parameter to define the admissibility of a dying declaration; it can be verbal/ oral or written. It can be partly oral or partly written, at times it can be recorded when the declarant uses gestures or signs to give dying declaration, it can be in the form of question and answer. Even if the dying declaration is made in vernacular language and the same is recorded/ translated in English language, the same is considered admissible before the court of law. The declaration made orally must be taken with due care and caution. The Supreme Court held that dying declaration must be scrutinized minutely with a “microscopic eye” to make it admissible. Usually time limit is not taken into consideration; there are cases where dying declaration is considered admissible made 4 months prior to death.
In Ranjit Singh Vs. State of Punjab the deceased had written a letter to his brother mentioning that his relationship was not cordial with his wife and he has apprehended dragger of his life from his wife. These letters were written by the deceased five years prior to the incident sought to be proved. The court held that the letters are admissible as dying declaration as they alleged of the circumstances that brought about his death.
The only object to make it admissible is that the ends of justice must not be defeated. Where the victim is about to die/ already dead or there is no other eye witness or even if there are some they might not come forward after the death of victim, in that situation the statement of the victim plays a very evident role. The grounds of admissibility of statement are the death of the declarant and the presumption that before dying the person would state the truth. Supreme Court has held that conviction solely on dying declaration is valid.

Dying declaration has to be made in a fit state of mind
State of Tamil Nadu vs Karuppasamy In this case it was held by the apex court that it would be improper to reject the dying declaration merely on the ground that the maker is not fit, solely based on the certificate of the doctor and where the Magistrate did not enquire independently that the deceased was in a fit state of mind or not at the time the dying declaration was made.
The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that he was making the statement without any pressure or malice. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated.
Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the conviction even without further corroboration.

To whom the dying declaration must be given?
a) Best form of dying declaration would be the one that is recorded by the Magistrate.
b) However as per the Supreme Court guidelines anybody can record dying declaration. A bench of Justices BS Chauhan and Dipak Misra “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same,”.
c) Dying declaration can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or injured and wants to make a statement, the doctor can also record the same and make note of that statement. A person having 100% burns can make a statement, and a certificate provided by a doctor is not a condition precedent for placing reliance upon a dying declaration.
d) It can also be made to a relative or a family member and the same plays an admissible role in the eyes of law.
e) Courts discourage the recording of dying declaration by the police officers but if there is nobody else to record it, then the dying declarations written by the police officers are also considered by the courts.
f) If the statements are not recorded by the magistrate then in that case to make it admissible, it is better that signatures of the witnesses are taken who are present at the time of recording the dying declaration. It is important that when the declarant is giving the statement, he must be in sound state of mind.

Conclusion-
There are different opinions of courts on the question whether dying declaration must be considered as a whole or also admissible if made in parts. As per the opinions of experts on this issue, the conclusion drawn by them was that the statement made by the victim must make sense even if made in parts.

Taking a note of the above mentioned discussion and opinions of various courts and experts, it is concluded that whenever a dying declaration is to be recorded it must be done minutely after proper scrutiny, keeping in mind that court will attach it as a piece of evidence. In case where there is more than one dying declaration and there is inconsistency between the statements, then it is not safe to convict the person on such discrepant declaration made while dying by the declarant .

Different Kinds of Evidences & Witnesses under the Indian Evidence Act

Different Kinds of Evidences & Witnesses under the Indian Evidence Act

Evidence includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth. Evidence is the currency by which one fulfills the burden of proof.

In law, the production and presentation of evidence depends first on establishing on whom the burden of proof lays. Admissible evidence is that which a court receives and considers for the purposes of deciding a particular case. Two primary burden-of-proof considerations exist in law. The first is on whom the burden rests. In many, especially Western, courts, the burden of proof is placed on the prosecution. The second consideration is the degree of certitude proof must reach, depending on both the quantity and quality of evidence. These degrees are different for criminal and civil cases, the former requiring evidence beyond reasonable, the latter considering only which side has the preponderance of evidence, or whether the proposition is more likely true or false. The decision maker, often a jury, but sometimes a judge, decides whether the burden of proof has been fulfilled. After deciding who will carry the burden of proof, evidence is first gathered and then presented before the court.

Evidence

The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove.

According to Sir Blackstone, ‘Evidence’ signifies that which demonstrates, makes clear or ascertain the truth of the facts or points in issue either on one side or the other.

According to Sir Taylor, Law of Evidence means through argument to prove or disprove any matter of fact. The truth of which is submitted to judicial investigation.

Section 3 of The Indian Evidence Act[1], defines evidence in the following words-

Evidence means and includes-

(1)   All the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called Oral evidence;

(2)    All the documents including electronic records produced for the inspection of the court; such documents are called documentary evidence;

The definition of Evidence given in this Act is very narrow because in this evidence comes before the court by two means only-

(1)   The statement of witnesses.

(2)   Documents including electronic records.

 

But in them those things have not been included on which a Judge or a Penal authority depends for this position.

The Hon’ble Supreme Court of India in Sivrajbhan v. Harchandgir[2] held “The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party’s statement is not Evidence.”

Different Forms of Evidence

(a)    Oral Evidence– Section 60 of the Indian Evidence Act, 1872 prescribed the provision of recording oral evidence[3]. All those statements which the court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue[4].

(b)   Documentary Evidence– Section 3 of The Indian Evidence Act says that all those documents which are presented in the court for inspection such documents are called documentary evidences[5]. In a case like this it is the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence.[6]

(c)    Primary Evidence-Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production of an original document for inspection by the court. It means the document itself produced for the inspection of the court. In Lucas v. Williams[7] Privy Council held “Primary Evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given.” [8]

(d)   Secondary Evidence– Section 63 says Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary position. It is such evidence that on the presentation of which it is felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence[9]. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.”[10]

(e)    Real Evidence– Real Evidence means real or material evidence. Real evidence of a fact is brought to the knowledge of the court by inspection of a physical object and not by information derived from a witness or a document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign. For example, Contempt Of Court, Conduct of the witness, behavior of the parties, the local inspection by the court. It can also be called as the most satisfactory witness.

(f)    Hearsay Evidence– Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness which he has not seen either heard. Sometime it implies the saying of something which a person has heard others say. In Lim Yam Yong v. Lam Choon & Co[11]. The Hon’ble Bombay High Court adjudged “Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against a party merely because his council fails to take objection when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person[12]. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility[13]. When a piece of evidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use comes in for question is governed by the Evidence Act.[14]

(g)   Judicial Evidence– Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial Evidence.

(h)   Non-Judicial Evidence– Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Evidence.

(i)     Direct Evidence– Evidence is either direct or indirect. Direct Evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense.[15]

(j)     Circumstantial Evidence or Indirect Evidence– There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion.

In Hanumant v. State of Madhya Pradesh[16], The Hon’ble Supreme Court Observed, “In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance , be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

In the case of Ashok Kumar v. State of Madhya Pradesh[17], the Hon’ble Supreme Court held-

(1)   The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

(2)    Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused.

(3)   The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

(4)   The Circumstantial Evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Direct Evidence V. Circumstantial Evidence

The question that which evidence is superior is going from a long time, on this subjects jurists differ in their views. Some jurists hold that direct evidence is superior evidence. When a particular says that he had seen a particular event happening then undoubtedly his evidence is superior, but even relying on direct evidence at once is also hazardous because a witness can make a completely false statement. In the same manner in the case of circumstantial evidence circumstances are also proved by witnesses. Particularly the manner in which the court draws inferences from circumstances they can be wrong and also and thus circumstances also become false.

In the case of Kallu v. State Of Uttar Pradesh[18], the accused was tried for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the bed of the deceased. The accused was arrested at a distance of 14 miles from the village which was the place of occurrence. He produced a pistol from his house which indicated that he could have alone have known of its existence there. The fire-arms expert proved that it was the same pistol from which the shot was fired and deceased was killed. The Hon’ble Supreme Court while convicting the accused held “Circumstantial Evidence has established that the death of the deceased was caused by the accused and no one else.”

 

Different Kinds of Witnesses

 

The witness can be divided mainly into two categories-

(1)   Eye Witness

(2)   Circumstantial Witness

 

Witness can be further divided into following kinds-

(1)   Prosecution Witness– Prosecution is the institution or commencement of criminal proceeding and the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final judgment on behalf of the state or government by indictment or information. A prosecution exists until terminated in the final judgment of the court to write the sentence, discharge or acquittal, a witness which appears on behalf of the prosecution side is known as a Prosecution Witness.

(2)   Defense Witness– Defense side in a criminal proceeding is opposing or denial of the truth or validity of the prosecutor’s complaint, the proceedings by a defendant or accused party or his legal agents for defending himself. A witness summoned on the request of the defending party is known as a Defense Witness.

(3)   Expert Witness– An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an advisory character. The duty of an ‘expert witness’ is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions.[19]

(4)   Eye Witness– A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is a person who saw the act, fact or transaction to which he testifies. An eye witness must be competent (legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the event occurred will be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence. Identification of an accused in Court by an ‘Eye witness’ is a serious matter and the chances of a false identification are very high[20]. Where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. “It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.”[21]

“Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.”[22]

On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.”[23]

(5)   Hostile Witness-The witness who makes statements adverse to the party calling and examining him and who may with the permission of the court, be cross examined by that party. Now it is true that in Coles v. Coles[24], and it may be in other cases, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This is not a very good -definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of ‘cross-examination’ even by committing itself to the word ‘hostile’.

This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra (2 supra) the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The testimony of hostile witness has to be tested, weighed and considered in the same manner in which the evidence of any other witness in the case.[25]

 

Conclusion

Thus we can finally conclude that in order to provide justice Evidence and witnesses are very necessary and they hold a very important place in the Law. With the help of Evidence the judge reaches a verdict. The evidence heard by the court is the most important factor in determining whether the judgment will be in favour of Prosecution side or Defense side.


[1] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[2] Sivrajbhan v. Harchandgir (AIR 1954 SC 564)

[3] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[4] Dr. J.J. Irani @ Jamshed J. Irani … vs State Of Jharkhand And Anr, 2006 (4) JCR 117 Jhr

[5] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[6] Harihar Prasad Singh And Ors vs Balmiki Prasad Singh And Ors, 1975 SCR (2) 932

[7] Lucas v. Williams (1892 Q.B 116)

[8] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[9] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[10]  Kalyan Singh, London Trained, … vs Smt. Chhoti And Ors, AIR 1990 SC 396,

[11] Lim Yang Yong v. Lam Choon & Co. (6 All 509 Fb)

[12] Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur

[13] Hasmukhlal V. Shah vs Bank Of India And Ors, (1997) 3 GLR 1891

[14] K.P. Abdul Kareem Hajee And Anr. vs Director, Enforcement, (1977) 2 MLJ 47

[15] Tahsildar Singh And Another vs The State Of Uttar Pradesh, AIR 1959 SC 1012

[16] Hanumant v. State Of Madhya Pradesh (AIR 1995 SC 343)

[17] Ashok Kumar v. State Of Madhya Pradesh (AIR 1989 SC 1890)

[18] Kallu v. State Of Uttar Pradesh (AIR 1958 SC 180)

[19]  State Of Himanchal Pradesh v. Jai Lal (AIR 1999 SC 3318)

[20] `’Proof of Guilt by Glanville Williams,’ 3rd Edition

[24] (1866) L.R. 1 P. & D. 70

[25] Shyama vs State Of Rajasthan, 1977 WLN 278

Right to Live with Human Dignity of Advocate

E.S. Jagadeeshwar

Advocates are depriving of their Right to Live with Human Dignity

It is very popular among the people as Legal Profession is a noble profession but should not be a commercial one. No doubt an Advocate should be humane, should understand the grievances of the parties.

The present scenerio is prices of essential commodities are touching the sky, in the same manner the monthly income of an Advocate is not increasing. Particularly at the Subordinate Court level or Dist. level there is no guarantee of guaranteed monthly income to all Advocates.

For a young lawyer at the Dist. level has to concentrate mainly on Civil Laws and Criminal Laws. For this an Advocate practicing on Civil laws should aware of the filing procedure

1. Junior Civil Judge Courts

2. Senior Civil Judge Courts

3. District Judge Court

(Basic knowledge of Drafting, preparing the case, submitting to the Court of Law, knowledge of Civil Procedure Code, Indian Evidence Act, Suits Valuation Act, Stamps Act, Art of cross examination etc.)

In case of Criminal laws..an Advocate should have the knowledge of practicing

before

1. Magistrate Court

2. Asst. Seesions Judge Court

3. Sessions Judge Court

At present young Advocates are in a state of confusion. At the grassroots level it is very difficult to get a case, even after getting the case, it is difficult to collect the fee.

The Advocate Fee Rules are outdated. The fee fixed by the authorities concerned is very low. Basing on that income an Advocate cannot survive.

Whereas in case of High Court and Supreme Court eminent Advocates are collecting huge amounts on hourly basis, for appearance, consultation fee, drafting fee etc. In some cases the fee may be in lakhs. A Trial Court Advocate cannot demand in such a manner.

Once an Advocate has been appointed as a Standing Counsel to any Bank or Insurance Company, there is no limit of cases allotted to him/her. Once he/she has been appointed as a Counsel, he/she is continuing until he retires or dies. How young Advocates will get opportunities?

In Andhra Pradesh, drafting of various legal documents is being done by Document Writers but not by trained Lawyers.

Corporates are less at Dist. level and all registered offices are situated in Capital cities or well developed cities. The payments made by the corporates to their Standing Counsels is also less.

Under these circumstances how an Advocate can survive?

1. Advocate Fee Rules are outdated not in tune with modern times.

2. Corporates are paying very low fee by taking advantage of outdated Advocate Fee Rules.

3. Opprotunities to be appointed as Standing Counsel for Banks, Insurance Companies or Corporates are very less.

4. Few Advocates are controlling the legal profession.

5. There is no guarantee of guaranteed monthly income to all Advocates at the Subordinate Court.

6. Without having sufficient cases how an Advocate can sharpen his/her skills? What are the opportunities available to them at the Dist. level? How many Tribunals under various Acts are available at Dist. level?

7. What are the opportunities available to specialize a single Act or Law at the Subordinate Court?

8. Without having sufficient cases how an Advocate can improve the skills of cross examination?

9. Why the State and Central Governments are reluctant to establish more High Court benches and Supreme Court bences in various States?

I would like to say to our legal fraternity as ”specifically Subordinate Court Advocates are deprive of their Right to Live with Human Dignity. They are unable to understand their purview as well as the public also.

Be bold and raise your voice to uplift the human dignity of our legal fraternity and make efforts to provide guaranteed monthly income to all Advocates. Otherwise their lives will be in danger. They cannot survive, they have to leave the profession.

Our Advocate brethren are thinking about the protection of human rights of others but not our legal fraternity. What I feel is, first we have to protect our ”right to live with human dignity” then only, we can understand others.

So, our legal fraternity can understand my heartburn as well as our Trial Court Advocates

 

 

Accomplice Witness and its admissibility as Evidence

Ayush Yadav

Introduction:

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal, Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime . The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime .

To the lay man, accomplice evidence might seem untrustworthy as accomplices are usually always interested and infamous witnesses but their evidence is admitted owing to necessity as it is often impossible without having recourse to such evidence to bring the principal offenders to justice. Thus accomplice evidence might seem unreliable but it is often a very useful and even invaluable tool in crime detection, crime solving and delivering justice and consequently a very important part of the Law of Evidence.

Section 133 of the Indian Evidence Act, 1872 deals with the Accomplice Witness. It says that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Usually most of the crimes are committed at secluded places where there will not be any eye – witness to testify regard to these offences, and it would not be possible for the police to get sufficient evidence to prove the guilt of the accused. In such cases what police does is that it picks up one of the suspects arrested who is usually least guilty and offers to him an assurance that if he is inclined to divulge all information relating to the commission of the crime and give evidence against his own colleagues, he will be pardoned. So any such person who is picked up or who is taken by the police for the purpose of giving evidence against his own colleagues is known as an accomplice or an approver.

An accomplice is a competent witness provided he is not a co accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. An accomplice by accepting a pardon under Section 306 CrPC(Code of Criminal procedure,1973) becomes a competent witness and may as any other witnesses be examined on oath.

 

Definition:

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal, Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime . The word ‘accomplice’ has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime.

An accomplice is one concerned with another or others in the commission of a crime or one who knowingly or voluntarily cooperates with and helps others in the commission of crime. It was held in R.K Dalmia v. Delhi Administration that “an accomplice is a person who participates in the commission of the actual crime charged against an accused.

Categories of Accomplice:

1. Principal offender of First Degree and Second Degree: The principal offender of first degree is a person who actually commits the crime. The principal offender of the second degree is a person who either abets or aids the commission of the crime.

 

2. Accessories before the fact: They are the person who abet, incite, procure, or counsel for the commission of a crime and they do not themselves participate in the commission of the crime.

 

3. Accessories after the fact: They are the persons who receive or comfort or protect persons who have committed the crime knowing that they have committed the crime. If they help the accused in escaping from punishments or help him from not being arrested, such person are known as harbourers. These persons can be accomplices because all of them are the participants in the commission of the crime in some way or the other. Therefore anyone of them can be an accomplice.

Competency of Accomplice as Witness:

An accomplice is a competent witness provided he is not a co accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. An accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witnesses be examined on oath; the prosecution must be withdrawn and the accused formally discharged under Section 321 CrPC before he can become a competent witness. Even if there is an omission to record discharge an accused becomes a competent witness on withdrawal of prosecution. Under Article 20(3) of the Constitution of India, 1950 no accused shall be compelled to be a witness against himself. But as an accomplice accepts a pardon of his free will on condition of a true disclosure, in his own interest and is not compelled to give self-incriminating evidence the law in Sections 306 and 308, Code of Criminal Procedure is not affected. So a pardoned accused is bound to make a full disclosure and on his failure to do so he may be tried of the offence originally charged and his statement may be used against him under Section 308.

 

When Accomplice becomes a competent witness:

Section 118 of the Indian Evidence Act says about competency of witness. Competency is a condition precedent for examining a person as witness and the sole test of competency laid down is that the witness should not be prevented from understanding the questions posed to him or from giving rational answers expected out of him by his age, his mental and physical state or disease. At the same time Section 133 describes about competency of accomplices. In case of accomplice witnesses, he should not be a co-accused under trial in the same case and may be examined on oath.

Some propositions have been made by Courts in this regard:

First, courts have opined that such competency, which has been conferred on him by a process of law, does not divest him of the character of an accused and he remains a participes criminis and this remains the genesis of the major problem surrounding the credibility of such evidence.

Secondly, an accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witness be examined on oath, the prosecution must be withdrawn and the accused formally discharged under Section 321 of the Criminal Code before he would be a competent witness18 but even if there is omission to record discharge, an accused is vested with competency as soon as the prosecution is withdrawn.

Thirdly, Article 20(3) of the Indian Constitution says that no accused shall be compelled to be a witness against himself. But as a co-accused accepts a pardon of his free will on condition of a true disclosure, in his own interest, and is not compelled to give self-incriminating evidence, the law in Section 306 and 308 of CrPC is not affected and a pardoned accused is bound to make a full disclosure and on his failure to do so he may be tried of the offence originally charged and his statement may be used against him under Section 308. This suggests that a participes criminis continues to be the same and if so then despite the fact that his involvement has been pardoned by a judicial act can be used for self-incrimination and to expect a “true and full disclosure” is unreal.

In order to be an accomplice a person must participate in the commission of the same crime as the accused and this he may do in various ways. In India all accessories before the fact if the participate in the preparation for the crime are accomplices but if their participation is limited to the knowledge that crime is to be committed they are not accomplices. However opinion is divided as to whether accessories after the fact are accomplices or not. In some cases it has been held that in India there is no such thing as an accessory after the fact whereas in some cases accessories after the fact have been held to be accomplices. Three conditions must unite to render one an accessory after the fact:

  •  The felony must be complete
  •  The accessory must have knowledge that the principal committed the felony
  •  The accessory must harbour or assist the principal felon.

 

Importance of Section 114 and 133:

These are the two provisions dealing with the same subject. Section 114 of the Indian Evidence Act says that the court may presume that an accomplice is unworthy of any credit unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness as against the accused person and a conviction the accused based on the testimony of an accomplice is valid even though it is not corroborated in material particulars.

Necessity of Corroboration:

Reading Section 133 of the Evidence Act along with Section 114(b) it is clear that the most important issue with respect to accomplice evidence is that of corroboration. The general rule regarding corroboration that has emerged is not a rule of law but merely a rule of practice which has acquired the force of rule of law in both India and England. The rule states that: A conviction based on the uncorroborated testimony of an accomplice is not illegal but according to prudence it is not safe to rely upon uncorroborated evidence of an accomplice and thus judges and juries must exercise extreme caution and care while considering uncorroborated accomplice evidence.

An approver on his own admission is a criminal and a man of the very lowest character who has thrown to the wolves his erstwhile associates and friends in order to save his own skin. His evidence, therefore must be received with the greatest caution if not suspicion. Accomplice evidence is held untrustworthy and therefore should be corroborated for the following reasons:

  •  An accomplice is likely to swear falsely in order to shift the guilt from himself.
  •  An accomplice is a participator in crime and thus an immoral person.
  •  An accomplice gives his evidence under a promise of pardon or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally, and this hope would lead him to favour the prosecution.
  • Like the Supreme Court has laid down what is known as theory of “double test” in the case of Sarwan Singh v. State of Punjab . In this case Sarwan Singh who was the third accused, was tried along with two others, i.e. Gurdayal Singh and Harbans Singh, under Section 302 for the murder of one Gurdev Singh who was the brother of the first accused, Harbans Singh. The case was that Sarwan Singh along with Gurdayal Singh and Banta Singh, who became an approver later on , caused the death of Gurdev Singh and all the accused were convicted on the basis of the evidence of Banta Singh. So the evidence of Accomplice is subject to corroboration.

 

 

Nature of Corroboration:

Generally speaking corroboration is of two kinds. Firstly the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. Secondly the court seeks corroboration of the approver’s evidence with respect to the part of other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime. The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient. The corroboration need not consist of evidence which, standing alone would be sufficient to justify the conviction of the accused. If that were the law it would be unnecessary to examine an approver. All that seems to be required is that the corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate.

Detectives, Decoys and Trap Witness:

Detectives, decoys and trap witness cannot be put on a par with the accomplice. These are the persons who act for the advancement of public justice and their aim is to bring the culprits to book. Although they pretend to collaborate with the culprits in the commission of crime they do not share the element of Mens rea. These persons therefore cannot be considered as accomplices and their evidence requires no corroboration.

Where a servant of the accused was a mute spectator to the crime being committed by the accused, he cannot be regarded as an accomplice witness as he cannot set to have participated in crime with the requisite mens rea.

Honest Trap Witness:

In C.R. Mehta v. State of Maharashtra, the accused acting in consort offered a sum of Rs. 3 Lacs to the Home Minister of State Government for cancellation of a detention order. The Minister giving an impression that he would consider the offer filed a complaint with Anti – Corruption Bureau and a trap was laid. While handing over the bribe money to the Minister the accused along with his three other co – accused were arrested. It was held that the complainant Minister cannot be equated with position of an accomplice and as a witness the quality of his evidence as also his general integrity being of high order conviction of the accused can be based even on his uncorroborated evidence.

 

Application of the Concept of Accomplice witness in various cases:

Janendra nath Ghose v. State of West Bengal the accused was tried for the offence of murder and the jury found him guilty on the evidence of the approver corroborated in material particulars. It was contended that there was a misdirection because the jury were not told of the double test in relation to the approver’s evidence laid down in Sarwan Singh case.

Raghubir Singh v. State of Haryana – In this case it was observed:

“To condemn roundly every public official or man of the people as an accomplice or quasi – accomplice for participating in a raid is to harm the public cause. May be a judicial officer should hesitate to get involved in police traps when the police provides inducements and instruments to commit crimes, because that would suffer the image of the independence of the judiciary.” In the present case the Magistrate was not a full – blooded judicial officer, no de novo temptation or bribe money was offered by the police and no ground to discredit the veracity of the Magistrate had been elicited.

Lachi Ram v. State of Punjab – the accused was charged with murder and was convicted on the evidence of an approver corroborated in material particulars. On the question whether proper tests were applied in applied in appreciating the approver’s evidence the Supreme Court held:

“It was held by this Court in Sarwan Singh case that an approver’s evidence to be accepted must satisfy two tests”.

The first case to be applied is that his evidence must show that he is a reliable witness, and that is a test which is common to all witness. The fact that High Court did not accept the evidence of the approver on one part of the story does not mean that the high Court held that the approver was an unreliable or untruthful witness. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver and there is no finding that the approver has given false evidence.

The second case which thereafter still remains to be applied in the case of an approver and which is not always necessary when judging the evidence of the witness, is that his evidence must receive sufficient corroboration. In the present case the evidence of the approver was reliable and was corroborated on material particulars by good prosecution witnesswho have been belived by the lower courts.”

 

Conclusion

The Courts in this country have by harmoniously reading Section 114(b) and Section 133 together laid down the guiding principle with respect to accomplice evidence which clearly lays down the law without any ambiguity. This principle which the courts have evolved is that though a conviction based upon the uncorroborated testimony of an accomplice is not illegal or unlawful but the rule of prudence says that it is unsafe to act upon the evidence of an accomplice unless it is corroborated with respect to material aspects so as to implicate the accused. This guiding principle though very clear is often faced with difficulties with respect to its implementation. While implementing this principle different judges might have different levels of corroboration for accomplice evidence and thus with no hard and fast rules relating to the extent and nature of corroboration an element of subjectiveness creeps in which can result in injustice.

Accomplice witness can be a competent witness by fulfilling certain condition. One necessary condition for being Accomplice Witness is that he must be involved in the crime. So, the Accomplice Evidence can be taken as a strong evidence when it is subject to corroboration.

 

Books Referred:

1) Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia &Co.), 2010

2) Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications), 2007

3) Dhiraj Lal & Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa & Company), 2008

4) Tandon M.P., Indian Evidence Act, 1872, (Faridabad : Sri Sai Law Publication), 2006

5) Sarathi P. Vepa, Law of Evidence,(Lucknow : Eastern Book Company), 2006

6) Myeni S.R., The Law of Evidence, ( Hyderabad : Asia Law House), 2008

7) Basu S.D., The Law of Evidence, ( Faridabad : Allahabad Law Agency), 2010

 

Websites Referred:

1) http://www.airwebworld.com/articles/index.php?article=900 – A Critical Analysis Of Accomplice Witness In India

2) http://www.oppapers.com/essays/A-Critical-Analysis-Of-Accomplice-Witness/507650 – An Essay on A Critical Analysis Of Accomplice Witness In India

3) http://legal-dictionary.thefreedictionary.com/Accomplice+Witness – Legal Definition of Accomplice Witness

4) http://legalsutra.org/507/accomplice-evidence/ – Accomplice Evidence

Cases Referred:

1) Jagannath v. Emperor, AIR 1942 Oudh 221

2) Francis Stanly v. Intelligence Officer N.C.B., Thiruvananthapuram, 2007 Cri. Lj 1157 (SC)

3) K. Hasim v. State of Tamil Nadu, 2005 Cri. Lj 143 (SC)

4) Subhash Chandra Panda v. State of Orissa, 2001 (4) Crimes 367 (DB) (Ori)

5) C.R. Mehta v. State of Maharashtra ,1993 Cr.Lj 2863 (Bom.)

6) Sarwan Singh v. State of Punjab, AIR 1957 SC 637

7) R.K Dalmia v. Delhi Administration, AIR 1962 SC 1821.

8) Janendra nath Ghose v. State of West Bengal, AIR 1959 SC 1199

9) Raghubir Singh v. State of Haryana, (1974) 4 SCC 560

10) Lachi Ram v. State of Punjab, AIR 1967 SC 792