Tag: Indian Evidence Act

PAKALA NARAYAN SWAMI V. EMPEROR AIR 1939

INTRODUCTION

Examination of accused defined under section161 Cr.PC is prevalently known as interrogation. The object of examination of witness u/s.161 CrPC is to generate the evidence before the court at the time of trial as per section 162. Further, these statements are beneficial for the court for framing the charge. Before trial commences copies of these statements recorded by the police should be delivered to accused without costing any charge. Confession is deliberate admission of fault by the accused person.

The term statement is not defined in the Code of Criminal Procedure but its dictionary meaning is the act of stating or reciting. Section 161 and 162, deals with the oral examination of witnesses by police, the record to be made of the statements and their use subsequently.  These sections authorize the police to examine witnesses during the course of an investigation. Any person who is supposed to be acquainted with the facts and circumstances of the case maybe examined orally and such statement can be used in court as an evidence after fulfilling required conditions. The words “any person” used in Section 161 (1) also include a person who maybe accused of the crime and suspects. This is held by the Privy Council in the case:  Pakala Narayana Swami v. Emperor.[1]

ABOUT THE CASE LAW

COURT OF JUSTICE: Bombay High Court

NAME: Pakala Narayana Swami vs Emperor

DECIDED ON: 19 January, 1939

CITATION: (1939) 41 BOMLR 428

BENCH OF JUDGES:  Justice Atkin, Justice G Rankin, Justice Porter, Justice Thankerton, Justice Wright

FACTS:

An appeal by special leave from a judgment of the High Court of Patna who affirmed the decision of the Sessions Judge at Berhampur who had convicted the appellant of the murder of one Kuree Nukaraju and sentenced him to death. The accused, his wife, his wife’s brother, and his clerk living at his house were charged with the murder before the Sub-divisional Magistrate, Chatrapur, in May and June, 1937. After hearing the evidence the examining Magistrate discharged all the accused holding that there was no sufficient evidence to support the charge. Thereupon the Sessions Judge, Berhampur, exercising his powers under the Code of Criminal Procedure, called upon the accused to show cause why they should not be committed for trial, and in July, 1937, ordered the present accused and his wife to be committed to the Court of Session to stand their trial for offences under sections of the Indian Penal Code 120B (conspiring to murder) 302 (murder) and 201 (causing evidence of an offence to disappear). At the trial the Sessions Judge acquitted the appellant’s wife of all the charges but convicted the appellant of murder and sentenced him to death. The appeal is based upon the admission of certain evidence said to be made inadmissible by provisions of the Code of Criminal Procedure and the Indian Evidence Act; and is further maintained upon the contention that whether the disputed evidence be admitted or not, and certainly if it ought to have been rejected, there is no evidence sufficient to support this conviction.[2]

It will be observed that “the circumstances” are of the transaction which resulted in the death of the declarant. 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 March 21, or March 22, and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on March 20 or 21 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.

ISSUE:

It is now necessary to discuss the question whether the alleged statement of the accused to the police before arrest was protected by Section 162 of the Code of Criminal Procedure which provides [Sub-section (1)] :

No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

RELEVANT INFORMATION:

After giving powers to certain police officers to investigate certain crimes, the Code proceeds in:

Section 160, which gives power to any police officer making an investigation by an order in writing is required to take the attendance before him of persons who appear to be acquainted with the circumstances of the case.

Section 161, allows examination of witness by police.

SCOPE OF SEC.161 ( Cr.PC) STATEMENTS:

Recording of Statements of Witnesses: The Police Officer making an investigation should himself customarily inspect any person and record his statement during that investigation. However, in the cases where it is unfeasible, the Head Constable or the writer connected with the Police Station may record the statements of witnesses. In that case both the recording officer and the investigating officer should sign the statement recorded under section 161 (3) Cr.P.C. Under this section, administering oath or affirmation is not obligatory in an examination.

Here expression ‘any person’ includes accused also. Therefore, persons to be examined include whosoever may subsequently be accused of the offence in respect of which the investigation is made by the police officer. The person examined in the course of a police investigation is obliged to answer all questions put to him “other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.” Accused has got right to remain silent as he got ‘right against self incrimination’ as per S.161 (2) CrPC and Article 20 (3) of Indian Constitution. The person questioned is legally bound to state the truth. However, if a witness examined by the police does not give answers to the questions, he can be punishable u/s.179 IPC or if he gives false information, he can be punished u/s.193 IPC.

The statements of all witnesses (which are familiar with the facts and circumstances of the case and they may have to be cited as witnesses in the court) are desirable to be reduced into writing. The statement of each witness should be recorded separately. Statements recorded by Police Officers should not be in the indirect form of speech, as per Sec.161 (3) Cr.P.C. The language of Sec.162 Cr.P.C and S.145 of Evidence Act clearly point outs that the writing should be describable as a statement of the witness himself also it should be as nearly as possible, a complete record of what he has said. Sec.161 (3) Cr.P.C read together with Sec.173 (3) Cr.P.C clearly indicates that separate statements of all persons whom the prosecution proposes to examine as its witnesses should be recorded and copies thereof must be given to the accused before the instigation of the inquiry.

Evidentiary Value of statements recorded The statements recorded by the police u/s.161 CrPC are not evidence for prosecution. They can be used by the defense for oppose the prosecution witnesses. However, when the prosecution witness turns hostile with the permission of court, the Public Prosecutor can cross-examine that witness by using his Sec.161 statements to determine contradiction. But when Sec.161 statements falls u/s.27 or u/s.32 (1) of Indian Evidence Act, then those statements can be used by prosecution as an evidence. Sec.161 statements are not substantive evidence. Statement of injured witness was recorded as dying declaration but he survived, then such statement has to be considered as Sec.161 statements. But Sec. 161 statements can be treated as dying declaration if that person dies. Sec.161 statements cannot be used against the accused in criminal cases. They shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Sec. 162 (1). Under Sec.161 & Sec.162 Cr.P.C the Witness is not confronted with the statement. The Court cannot subsequently use the statement even for drawing any adverse impression against the witness. If thumb impression or signature is not obtained, such statements are fallacious. Signing of statement merely puts the Court on prudence and may necessitate in depth inspection of the evidence, but the evidence on this account cannot be rejected outright. Hindrance in examination of witnesses by police u/s.161 CrPC, if properly explained, is not lethal to the prosecution case

[1] AIR 1939 PC 47

[2] https://indiankanoon.org/doc/516808/

FACTS WHICH NEED NOT BE PROVED

INTRODUCTION

Section 56 to 58 deal with facts which need not be proved because either facts (a) are indisputable as they are too well known to require proof (“judicial notice”) or (b) are undisputed and their proof is dispensed with because they are admitted by both the parties. There are some facts which are not so notorious and well known that they require no proof. If it becomes relevant in a case to know as to, who is the president of India or the Chief Minister of UP, a party need not adduce any evidence to that effect.  Again if it is a question at issue as to what is the distance between Banaras and Allahabad, a party need not prove it. The court may take a judicial notice of these facts if they are relevant to the issue. Sections 56 and 57 deal with judicially noticeable facts. Section 58 postulates that things admitted need not to be proved. A Dispute is difference of opinion between the parties on questions of fact or of law. In the system of an adversarial proceeding that is prevalent in India as a British legacy, “facts in issue” are the facts” asserted and denied” by the parties and the Court has to adjudicate on those issues. If there is no dispute between the parties as to certain matters,   the court might dispense with proof of those facts and, in legal parlance, those facts are said to be “common ground”. And the court may dispense with proof of facts admitted by both the parties to a case because there is no dispute as to the existence of those facts.

FACTS JUDICIALLY NOTICEABLE (Sections 56 & 57)

Certain facts are so scandalous in themselves, or are stated in so authentic manner in well- known and accessible publications, that they require no proof. The Court, if it does not know them, can inform itself upon them without formally taking evidence. These facts are said to be judicially noticed. ”Judicial Notice” is a manoeuvre by which the court “notices” or takes cognizance of certain facts which are broadly known to exist. Those facts are so well known to be true that their formal proof is considered redundant and unnecessary. Section 56 states that a fact judicially noticeable need not be proved, whereas Section 57 enumerates in clauses (1) to (13), the facts which have to be judicially noticed and which need not to be proved.

Principle/Object:

In the cases of the facts dealt by these Sections, the judge’s belief in their existence is induced by the general knowledge acquired, otherwise than in particular proceedings before the Court and independently of the action of the parties therein. The judicial notice is taken for the common affairs of the life which are of general knowledge. The rationale of “judicial notice” is not that the Court knows them as do many others; but it is the intrinsic indisputability of the facts because of their notoriety. Two reasons have been put forward for the doctrine of judicial notice; (a) Firstly, it expedites the hearing of cases if well-known facts are judicially noticed; (b) secondly, it tends to produce uniformity of decisions on matters of fact. The wisdom of administration with proof of matters within the collective knowledge of everyone has never been questioned.

FACTS ADMITTED NEED NOT BE PROVED (Section 58)

Another set of facts which need not be proved are facts which have been admitted. There are two methods of holding trial, one is the inquisitorial system in which the judge also acts as an investigator of facts; and the other is the adversary system in which the judge sits like a silent umpire; he can either advice any party nor ask for the production of any evidence. He gives his judgement on the basis of the contentions argued before him, i.e., according to the issues between parties. Facts which have been admitted on both sides are not in issue and therefore, no proof need to be offered of them. A court in general has to try the questions on which parties are at issue, and not those on which they have agreed. Admissions which have been deliberately made for the purpose of suit, whether in pleading or by the agreement, which acts as an estoppel to the admission of any evidence contradicting them.

Principle/ Object:

What is admitted need not be proved, is the simple principle lying under this section. The object of this is to save time and expense at a trial. One of the principal effects of admission is to shorten the litigation just as the effect of res judicata is to give finality of litigation.

In Union of India v. Ibrahim Uddin[1]

The Supreme Court observed, “Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is the decisive of the matter, unless successfully proved withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence and further it is prove in accordance with the provisions of evidence act. It would be appropriate to offer an opportunity to the person under cross examination to tender his explanation and clear the point on the question of admission.”[2]

In, Raman Pillai v. Kumaran Parameswarn[3]

The facts in question were admitted in written statement. In a suit for title, admissions were made by the predecessor in interest of the plaintiffs in their written statement in earlier judicial proceedings to the effect that the right in the suit property were lost by adverse possession and limitation and the predecessors of the respondents had perfected the title. Certified copy of written statement was held to statement in question was not a public document.

CONCLUSION

Taking into account the Indian Evidence Act provisions and the aforementioned judicial rulings, it can be determined that the facts are not legally recognizable by the courts, such as laws existing and applicable in India; articles of war; state seals; the facts relating to legislative, executive and judicial processes in India, or to any other sovereign or state recognised by the Indian Government; the rule of law etc. need not be proved by the parties to the suit.

[1] (2012) 8 SCC 148

[2] indiankanoon.org

[3] AIR 2002 Ker 133