“MATTERS” (As employed in the definition of word “Proved” in S.3 of the Indian Evidence Act) matter in criminal trials (This article is confined to the criminal trials)
by S. Palani, B.Sc., M.L., Judicial Magistrate No. III, Tirunelveli.
1. Every trial is voyage of discovery in which truth is the quest (Ritesh Tewari V. State of U.P., (2010) 10 SCC 677). Finding truth should be the objective of every trial. Judge has to play an active role and he should explore all avenues open to him in order to discover the truth (Meeradevi and others V. Jitender and others, CDJ 2016 DHC 1009). Section 165 of the Indian Evidence Act is intended to confer on the Judge with the most extensive powers for the purpose of getting truth (The principle of Judicial Evidence, by Sir James Fitzjames Stephen, Publication 1872.). The Evidence Act is the judicial tool in the hands of Judge to apply in admitting and appraising the evidence given on either side. The law of evidence, according to Sir James Fitzjames Stephen, who authored the Indian Evidence Act, is ''that part of the law of procedure which, with a view to ascertain the individual rights and liabilities in particular cases, decides what facts may or may not be proved in such a case; what sort of evidence has to be given of a fact which may be proved, by whom and in what manner the evidence must be produced relating to a fact which is to be proved.'' (A digest of the Law of Evidence, by Sir James Fitzjames Stephen, Publication 1886) In order to succeed a case, a party to the trial or proceedings thereof has to prove or disprove the existence of fact or collection of facts.
2. The entire provisions of the evidence Act centers round the definition of expression “Proved” which is engrafted in section 3 of the evidence Act in the following terms.
''Proved'' - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.''
Needless to say, the above definition of the expression ''Proved'' is applicable to trials, whether it be civil or criminal. Both in a civil trial and in a criminal trial, proof of a fact is determined by the test of probabilities, although the proof of probabilities shall not be measured to the level of scientific certainty or absolute certainty. (The Principle of Judicial Evidence, by Sir James Fitzjames Stephen “What constitutes moral certainty (as distinguished from scientific certainty) is thus a question of prudence, and not a question of calculation. It is commonly said in reference to judicial inquiries, that in criminal cases guilt ought to be proved ''beyond all reasonable doubt,'' and that in civil cases the decision ought to be in favor of the side which is most probably right''.) The degree of certainty which must be arrived at before a fact is said to be proved is that described in the definition of proved itself. The definition of proved centers round probability. Emphatically, a higher degree of probability, i.e.,beyond reasonable doubt is envisaged in a criminal trial; whereas the test of balance of probabilities is applied in a civil trial (R.V.E. Venkatachala Gounder V. Arulmigu Viswesaraswami & V.P.Temple, 2004-1-L.W.728.). The very same definition of expression proved is elastic enough to include the higher degree of proof that is demanded in a criminal trial and lesser degree of proof that is demanded in a civil trail. Insistence on a higher degree of proof in a criminal trial is absolutely justified by the definition of the expression proved in Section 3 which incorporates the principles of question of prudence into the definition, because the life and liberty of an accused person is at stake in a criminal trial (Krishna @ Chandrakanth V. State, CDJ 2012 Ker HC 394 ; 2012 CrLJ 3374).
3. Sir James Fitzjames Stephen, the eminent jurist of 19th century consciously refrained from using the word “Evidence” '' Section 3. ''Evidence'' means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence ;
(2) all documents including electronic records produced for the inspection of the Court ; such documents are called documentary evidence.'' in the definition of expression “Proved”, but instead used the words, “Matters”. According to Stephen, the word evidence itself is of ambiguity and for this reason, perhaps, it was extremely wise for him to employ the word matters in the definition of proved. (The principle of Judicial Evidence, by Sir James Fitzjames Stephen, ''The ambiguity of the word 'evidence' is the cause of a great deal of obscurity...'') Interestingly, the Indian evidence Act defines the expression “Evidence”, but not the expression “Matters”. The phraseology “matters before it” employed in the definition of proved in its wide amplitude includes certain matters, which do not fall in the strict sense within the definition of “Evidence” worded in section 3 of the Evidence Act.
4. Now, one may ask that is there any matters, which would not strictly fall into the definition of “Evidence” as defined under the Evidence Act, but still the Court may or shall under certain circumstances (Legal presumptions are obligatory on part of the Courts. See: Dhanvantrai Balwantrai Desai V. State of Maharashtra in 1964 (I) Cr.LJ 437 (SC).) take into consideration while adjudicating upon an existence or non-existence of a fact? the answer is affirmative. The expression matters contained in the definition clause of proved is not confined to evidence alone (Ananthakrishnan V. K.G.Rangasamy, CDJ 2019 MHC 4845). The endeavour of this article is to divulge certain matters, which may not strictly be called as evidence in view of section 3 of the Evidence Act, yet the Court, being armed with the usage of phraseology ''matters before it'', legitimately, invokes them as aid to adjudicate upon a criminal trial.
Therefore, in determining what will fall under the category of other than evidence within the language “matters before it” used in the Evidence Act, one has to read the definition of word “Proved” in the light of definition of “Evidence”. The Court is expected to consider all the matters which are admissible and relevant to arrive at truth, (“Section 5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.'' See also Section 136 of the Evidence Act which says the Judge has to decide the admissibility of evidence) besides the orthodox oral and documentary evidence adduced in a case.
5. All facts in issue and relevant facts must be proved by evidence, either oral or documentary evidence including electronic records. These oral and documentary evidence only represent as a means by which evidence are produced. The definition of evidence remains silent as to real evidence, in the sense, stolen property, material object or contraband etc., against which or by using which, offence had been allegedly committed. However, the author of the Evidence Act was of the opinion that oral evidence is sufficient enough to prove the existence of material objects (The principles of judicial evidence by James Fitzjames Stephen, ''Evidence in this sense of the word must be either (1) oral or (2) documentary. A third class might be formed of things produced in Court, not being documents, such as the instruments with which a crime was committed, or the property to which damage had been done, but is division would introduce needless intricacy into the matter... but the condition of material things, other than documents, is usually proved by oral evidence, so that there is no occasion to distinguish between oral and material evidence.''). The party desirable of proving the fact has to place the evidence, to this rule, the Evidence Act has two explicit exceptions; (i) facts judicially noticeable; and (ii) facts admitted. Apart from this, there are certain matters which have the characteristic of evidence and the Court may legitimately take aid of them in arriving at conclusion, notwithstanding that they may not fall in the strictness of definition evidence. Presumption of fact or law, Appreciation of evidence, Statement of witness recorded under section 164 of Cr.P.C., Demeanour of witness recorded under section 280 of Cr.P.C., Local inspection made by a Judge/Magistrate under section 310 of Cr.P.C., Statements of accused recoded under section 313 of Cr.P.C. are the illustrations of what has been aforesaid, although these examples are not exhaustive.
6. Judicial Notice:- “Certain facts are so notorious in themselves, or are stated judicial in so authentic a 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.” (Principles of judicial evidence by sir James Fitzjames Stephen) Section 56 of the Evidence Act states that a fact judicially noticeable need not be proved, whereas Section 57 of the Evidence Act enumerates in clauses 1 to 13, the facts on matters of public history, literature, science or art, which have to be judicially noticed and which need not be proved (The law of Evidence, 23rd Edition by Ratanlal & Dhirajlal, Page No.851).
A duty is cast upon the Court to take judicial notice of all laws in force in the territory of India and apply to the facts of the case, even though the parties and their counsels fail to produce such law (Shyamlal V. Munnilal, AIR 1972 Punjab 199). And impotence of taking judicial notice of laws by a Court could well be illustrated by referring a precedent. An accused of Indian citizen was alleged to have committed offence punishable under sections 376 and 417 of IPC in abroad, namely Australia. By virtue of section 4 of IPC, he was tried in India, but, without having obtained previous Sanction of central Government, as required under in section 188 of Cr.P.C. The trial Court in India having failed to take judicial notice of provisions section 188 of Cr.P.C, convicted the accused. On appeal, the Hon’ble Madras High Court was to set aside the conviction, since such legal defect was incurable in view of section 465 of Cr.P.C. which does not condone total absence of sanction, although the Hon’ble High Court went on to appreciate the evidence thereof as well (Karthick Theodre V. State Rep by Inspector of Police, CDJ 2014 MHC 1475 ; 2014 (3) CTC 568).
7(i). Admissions:- “The general rule with regard to admissions, which are defined to mean all that the parties or their representatives in certain degrees say about the matter in dispute, or facts relevant thereto, is that they may be proved as against those who made them, but not in their favour.” (The Principles of Judicial Evidence by James Fitzjames Stephen). The expression “Admission” is defined under section 17 of the Evidence Act to mean a statement suggesting any inference as to any fact in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them in view of section 21 of the Evidence Act. For instance, a fact may be orally admitted in Court. The admission would not come within the definition of the word “Evidence” as given in the Evidence Act, but still it is a matter which the Court before whom the admission was made would have to take into consideration in order to determine whether the particular fact was proved or not (Joy coomar V. Bundhoo lall, ILR (1882) 9 Cal 363.) and this principle is embodied in section 58 of the Evidence Act. (''Section 58. Facts admitted need not be proved - No fact need be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or their pleadings:-
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.'')
7(ii). Confessions:- Admissions in reference to crimes are usually called confessions. Under section 21 of the Evidence Act, the confession, being a species of admission, would be relevant and could be proved as against the accused unless it can be shown that there is some provision of law which excludes the proof of such confession (Sidheshwar Nath V. Emperor, AIR 1934 All 351. Read section 26 of the Evidence Act, also read section 164 of Cr.P.C. which provides the manner in which the confession needs to be recorded). Confession (given by accused to the judicial Magistrate) is not an evidence as defined under section 3 of the Indian Evidence Act. The confession of an accused person is not evidence in the ordinary sense of the terms as defined in section 3 of the evidence Act. (Kashmira Singh V. State of M.P., AIR 1952 SC 159.). While rendering judgment in State of Maharashtra V. Damu Gopinath shinde, (AIR 2000 SC 1691: (2000) 6 SCC 269) the Hon'ble Supreme Court has categorically made it clear that the observations made in the case of Kashmira Singh V. State of M.P., AIR 1952 SC 159 was in the context of considering the utility of the confession made by the accused as against a co-accused in view of section 30 of the Indian Evidence Act and the Court went on to make following observation with regard to legal position confession made by the accused against himself.
''The legal position concerning confession vis-a-vis the confessor himself has been well-settled by this Court in Sarwan Singh Ratan Singh V. State of Punjab (AIR 1957 SC 637) as under: ''In law it is always open to the Court to convict an accused on his confession itself though he has retracted it at a later state. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.'' This has been followed by this Court in Kehar Singh V. State (Delhi Administration) AIR 1988 SC 1883.''
7 (iii). Confession made by an accused against a co-accused:- The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term evidence. It does not come within the meaning of evidence as contained in section 3, inasmuch as it is not required to be given on oath, nor in the presence of the accused, and cannot be tested by cross-examination. In Kashmira Singh V. State of Madhya Pradesh, (AIR 1952 SC 159) the Hon'ble Supreme Court made the following observation as to how the confession made by an accused as against a co-accused should be dealt with.
“It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way 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 fortify himself in believing what without the aid of the confession he would not be prepared to accept.” (Kashmira Singh V. State of M.P., AIR 1952 SC 159.)
Thus, the statements recorded under this section are not substantive evidence in a case, however, it cannot be used to limited purpose of corroborating or contradicting the witness''. (Chandra Kant Chiman Lal Desai V. State of Gujarat, (1992) 1 SCC 473). Although the confession of co-accused can be taken into consideration, it is a much weaker type of evidence and the expression “the Court may take into consideration such confession’’ employed in section 30 of the Evidence Act is significant. “It signifies that such confession by the maker as against co-accused himself should be treated as a piece of corroborative evidence. In the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extrajudicial confession or a judicial confession and least of all on the basis of retracted confession.” (Bishnu Prasad sinha V. State of Assam, 2007(11) SCC 467).
7(iii). The theory of confirmation by subsequent facts:- As per Section 25 of the Evidence Act, a confession given by an accused to a police officer while he was in the custody of police is made inadmissible, though it is relevant to the matter in issue. Of course, the Evidence Act has explicit exception to this rule that only that part of disclosure statement which leads to the discovery of unknown fact, becomes admissible in view of language employed in section 27 of the Evidence Act and the rest of such confession is made inadmissible. The most quoted leading authority on this subject is the decision of the Privy Council in Polukuri Kotayya V. King Emperor, (AIR 1947 PC 67) wherein, it has been held thus:
''The Section seems to be 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. ...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.''
The theory of confirmation by subsequent facts is founded upon a principle that if any unknown or new fact is discovered and recovery is made on such discovery of fact and is also proved in evidence subsequently, in consequence of information supplied by the accused, would give assurance that information furnished by him is true. In the words of Hon'ble Supreme Court in State of Maharashtra V. Damu Gopinath Shinde, (AIR 2000 SC 1691: (2000) 6 SCC 269) the theory of confirmation by subsequent facts has been explained as follows:
''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 noninculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum.''
It is now well-settled that 'the discovery of fact' is not limited to a object discovered thereby, but also includes the knowledge of the accused as to its concealment. In this context, the observation made by the Hon'ble Supreme Court in the case of Asar Mohammad V. The State of Uttar Pradesh (2018 (14) SCALE 343) is extracted hereunder for better understanding on this proposition of law.
''It is a settled legal position that the facts need not be self probatory and the word as contemplated in Section 27 of the Evidence Act is not limited to actual physical material object. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence.
The disclosure statement which is obviously part of confession given to the Police does not fall within the meaning of evidence as defined under section 3 of the Evidence Act. However, the Court having verified its truthfulness by subsequent facts proving the recovery may admit and use it as evidence against the accused and this exception is founded upon logical reasoning that it is only the accused would be having knowledge as to concealment of any incriminating article/weapon/thing/body etc.,
8. Presumption of fact / law:- Presumptions are inferences which the judges are directed to draw the presumption of certain facts from other proved facts based on inferences, these presumptions would remain until such inferences are disproved and these Presumptions are allowed a certain amount of weight in the scale of proof. (The principles of Judicial Evidence Act by James Fitzjames Stephen). Presumptions are not final and are rebuttable. (Although section 112 of Indian Evidence Act raises a presumption of conclusive proof, same is rebuttable, see Nandlal Wasudeo Badwaik V. Lata Nandlal Badwaik and Another, (2014), 1 MLJ (Crl.) 246 (SC).) A presumption can be drawn only from proved facts and not from other presumption. (Suresh Budharmal Kalani Vs. State, (1998) 7 SCC 337). We know that the Indian Evidence Act defines the three kinds of presumptions (i) may presume; (ii) shall presume; and (iii) conclusive proof. (''Section 4. 'May presume'' - Whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. ''Shall presume'' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. ''Conclusive proof'' - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.''). Law gives judicial discretion to the Court to presume the existence of any fact as it thinks likely to have happened. (State of Tamilnadu V. N.Vijayakumar, CDJ 2020 MHC 2959). For instance, section 114 of the Evidence Act enables a Court to draw any inference based on human conduct and common course of natural events. In the process of adjudication, the Court may or may not draw a factual presumption, which arises under section 114 of the Evidence Act. Whereas it is obligatory on part of the Court to raise the legal presumption created by statute. (Dhanvantrai Balwantrai Desai v. State of Maharashtra reported in 1964 (I) Cr.LJ 437 (SC)). For instance, section 20 (1) of the Prevention of Corruption Act or section 139 of Negotiable Instrument Act creates presumptions of law which are mandatorily to be drawn by a Court. Everyone is presumed to know the law of the land is a kind of legal presumptions (Another example would be that the child under the age of 7 years is presumed to be taken as incapable of committing a criminal offence) which a Court cannot ignore, merely because the Evidence Act does not speak of this presumption. The Author of the Indian Evidence Act was of the opinion that it was wise to exclude these kinds of presumption of law from the evidence Act, since they belong to the substantive criminal law, (A Digest of the Law of Evidence by Sir James Fitzjames stephen) since the law of evidence is primarily procedural law. Section 114 (a) of the Evidence Act (''Section 114 (a) - The court may presume that a man who is in possession of stolen goods soon after the ft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession...'') is the classic example for presumption of fact, whereby the Court may take into consideration of failure on part of accused to account for in respect of his possession of stolen goods is the adverse circumstance that can be made against accused, even though it may not fall in the definition of evidence in the strictness - mere failure on part of accused to account for possession of goods/articles, nevertheless the Court may draw the presumption of adverse inference as to existence of fact upon fulfilling the conditions therein. The Court may also draw an adverse inference under section 114(g) of the Evidence Act, notwithstanding that the onus of proof did not lie on a party and he was not called upon to produce the evidence which he withheld. (Union of India V. Ibrahim Uddin and another, 2012-4-L.W.359).
9 (i). Appreciation of Evidence :- The definition of proved and the using of word matters in it provides wider scope for the appreciation of evidence adduced in a case. Evidence is not proof. Despite receiving the evidence, the Court attaches whatever probative value to the evidence so received and assesses the sufficiency (Sufficiency in the sense weightage to be given to each evidence rather than counting. Read section 134 of the Evidence Act) of whole evidence by the process called appreciation of evidence, which is guided by judicial discretion, to accept or reject such evidence. The Court is only applying a process of intelligent reasoning, which the mind of a prudent man would do under similar circumstances. (State of Tamilnadu V. N.Vijayakumar, CDJ 2020 MHC 2959). Question of prudence plays a pivotal role in appreciating the evidence. This can be illustrated by taking the example from the provisions of the Evidence Act itself. Though it is not illegal for the Court to base conviction upon the uncorroborated testimony of an accomplice, (''Section 114 (b) – The court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars...'') the rule of prudence would caution the Judge possessing judicial experience that it is unsafe to act upon the evidence of an accomplice, unless it is corroborated in material respects (''Accomplice'' - An accomplice shall be a competent witness against an the accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. See also: Bhiva Doulu Patil V. State of Maharashtra, AIR 1963 SC 599) and there is no antithesis between Section 133 and illustration (b) of Section 114 of the Evidence Act, as has been held by the Hon'ble Apex Court. (Abdul Sattar V. Union territory of Chandigarth, AIR 1986 SC 1438). Common sense being used as a judicial tool to resolve the controversies which is brought before a Judge. No Judge would have seen the occurrence, but he is sanctioned to render the judgment based on the evidence. He employs the faculty of reason, logic and common sense (Krishna @ Chandrakanth V. State, CDJ 2012 Ker HC 394 ; 2012 CrLJ 3374) to believe or disbelieve the evidence. Akin to this proposition, We may usefully consider the observation made in the case of Karthick Theodre vs State Rep by Inspector of Police, (CDJ 2014 MHC 1475 ; 2014 (3) CTC 568 ; 2014 CrLJ 4919) wherein, it has been held as follows:
''The yardstick for appreciating the evidence of a witness has been succinctly laid down by Sir Stephens in the definition of the word ''proved'', in section 3 of the Indian Evidence Act. ...18.While appreciating the evidence, the Judge is not required orally to read the deposition of the witness and decide the case. Sir Stephens in the definition of the word ''proved'' has used the expression ''After considering the matters before it.'' The word ''matters'' is larger than the expression ''evidence'', because presumption in Section 114 of the Indian Evidence Act permits a Judge to use his common sense while appreciating a piece of evidence.''
9 (ii). Receiving of evidence does not mean that it is to be read in favour of side adducing it. It is solemn function of a Judge to evaluate the weightage and sufficiency of the evidence needed to establish proof. (Stanford Encyclopedia of Philosophy, The legal concept of Evidence, https://plato.stanford.edu/entries/evidencelegal/). In resolving the factual disputes before the Court, the Judge has to necessarily rely on certain well-established and enriched legal principles. For instance, at a criminal trial, the accused must be presumed to be innocent unless he is proved to be guilty; and that the onus of the prosecution never shifts. The prosecution is required to prove its case beyond reasonable doubts. It is true that under section 105 of the Evidence Act the onus of proving general exceptions mentioned in the Indian Penal Code lies on the accused, (Useful reference may be had to: Sher Singh @ Partapa V. State of Haryana (2015) 3 SCC 724.'' when the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the burden is upon him to prove his defence'') but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. (Rabindra Kumar Dey V. State of Orissa, 1977 AIR 170, 1977 SCR (1) 439). It is sufficient enough, if the accused is able to prove his defence case by the standard of preponderance of probabilities. Thus, the standard of proof in a criminal trial has been given on different interpretations in respect of prosecution and defence.
9 (iii). The Judge has to give evidential reasoning in law to accept or reject the evidence adduced in a case. The Judge is bound by previously decided cases on point of law, although not factually. (Megh singh V. State of Punjab, (2003) 8 SCC 666 ''Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based). For instance, in a given case, if two views are possible on the interpretation of Evidence placed, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused shall be adopted by giving benefit of doubts. (State of U.P. V. Ram Veer Singh, 2007 (6) Supreme 164. See also : Narendra Singh V. State of U.P., 2004 AIR (SC) 3249). We may also resort to another legal proposition emanating from judicial precedent that “the defence witnesses are entitled to equal treatment with those of the prosecution; and the Courts ought to overcome their traditional instinctive disbelief in defence witnesses” (Dudhnath Pandey V. State of U.P., 1981 (2) SCC 166) or equally, the Court cannot ignore the settled law that the deposition of the witness has to be read as a whole and no part of sentence shall be read in isolation. (Atmaram & ors. V. State of M.P., (2012) 5 SCC 738). It is judicial discipline coupled with rule of law that the Court is under legal obligation to follow the legal propositions enunciated by the Constitutional Courts to give uniformity to the conclusion, which is also founded on the doctrine of equal treatment of laws to all persons similarly placed. (See Article 14 of the Constitution of India).
10. Statement of witness recorded under section 164 of Cr.P.C.:- The statements under section 164 Cr.P.C. being recorded behind the back of the accused are not substantive evidence and cannot be made use of, except to corroborate the witness (under section 157 of Indian Evidence Act) or contradict the witness (under section 145 of Indian Evidence Act). (Ram Kishan Singh V. Harmit Kaur, AIR 1972 SC 468). A statement given by a witness under section 164 of Cr.P.C. is like previous/former statement, but has higher value (R.Palanisamy V. State, 2013 (2) LW (Crl.) 169) than 161 statements recorded by police, because a statement made to a Magistrate is not affected by the prohibition contained in the section 162 of Cr.P.C. (Ramprasad V. State of Maharashtra, 1999 Crl.L.J. 2889 (SC)). Though statement under this provision recorded by Magistrate after administering oath to the witness, it is not recorded in the presence of accused. (Section 273 of Cr.P.C. which mandates that all evidence shall be taken in the presence of accused or his pleader, except under expressly provided circumstances). By recording the 164 Statement, the Magistrate is not conducting any inquiry or trial at that stage of investigation. And, he records the 164 statement on the request of police to aid the investigating agency to have a hold over the witness who supports the case of prosecution and therefore, the statement recorded under this provision cannot be termed as evidence in the strict definition of section 3 of the Indian Evidence Act. Although the statements recorded under section 164 Cr.P.C. cannot be used as substantive evidence, the utility of such statements cannot be said to be nil, because such statements are useful to test the creditworthiness of witness who is in witness box for the purpose of corroboration or contradiction and this would also assist the Court to ascertain the weightage to be attached to the testimony of such witness on scrutiny.
11. Demeanour of witness:- Section 280 of Cr.P.C. provides authority for the trial judge/Magistrate to record the remarks, if he thinks it material for the purpose of the case, respecting the demeanour of the witness, during the course of his examination. The object is that the trial judge has the advantage of looking at the demeanour of the witnesses (Meeradevi and others V. Jitender and others, CDJ 2016 DHC 1009) while under examination, and if he makes a record of it, it would be useful for the trial Court as well as the Appellate Court to assess the veracity and credibility of the witness. The Appellate Courts would be in better position to understand as to why the trial Judge has or has given such weightage to the evidence of witness, whose demeanour had been recorded during in the examination, as the trial judge would have all the advantage of closely observing the witness in the witness box, which facility is not available to the Appellate Court. (See : The Law of Evidence, Ratanlal & Dhirajlal, 23rdedition, P.148) Recording about the demeanour should be known to the counsel of the parties, who may have suggestions to make about the observations and inferences to be drawn therefrom. (Zafar Husain, (1956) 2 All 736).
12. Local inspection by a Judge/Magistrate :- Section 310 of Cr.P.C. permits the Judge/Magistrate to make local inspection of place of occurrence and record the memorandum of any relevant facts observed therein for the purpose of properly appreciating the evidence already adduced in a case. The memorandum recorded by the Judge itself is not to be treated as distinct evidence and it has to render help in appreciating the evidence already recorded by the Court. “The local inspection envisaged under section 310 of Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by trial judge has to be appreciated in conjunction with the evidence already recorded.’’ (State of Himachal Pradesh V. Mast Ram, (2004) 8 SCC 660). Any omission in the memorandum recorded by the trial judge/Magistrate by itself would not vitiate the prosecution case. It is apposite to note the local inspection is not substitute for evidence (Keisam Kumar Singh V. State of Manipur, AIR 1985 SC 1664). The Court may, in spite of such limitation in its application, use it for properly appreciating the evidence already recorded.
13. Statement of Accused u/s.313 of Cr.P.C.:- Though a statement, recorded under section 313 of Cr.P.C. is not made on oath and is not strictly speaking evidence, yet the statement, so made by accused during the trial under this provision, can legitimately be taken into consideration by the Court for the purpose of arriving at the guilt or innocence of the accused. A written statement of the accused filed by him under this provision is not strictly evidence, though the Court may consider it. (Emperor V.Tuli Babu, (1945) Pat 33: AIR 1969 Ori 228. Section 313 (4) of Cr.P.C. which provides that ''the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed, the answers given by the accused under this provision may be taken into consideration in such inquiry or trial.”). It is true that the prosecution is required to prove its case beyond reasonable doubt, but the provisions of Section 313 of Cr.P.C. are not a mere formality or purposeless (68 Ravi Kapur V. State of Rajasthan, 2012 (9) SCC 284; CDJ 2012 SC 552). Now the march of law has come to make it obligatory that the Court shall record its reasons for accepting or rejecting the statement made by the accused under this provision, although it was not made on oath as per section 313(2) of Cr.P.C. Regard must be had to decision of Hon'ble Supreme Court in Reena Hazarika Vs. State of Assam, (AIR 2018 SC 5361), wherein it has been observed in the following language:
''To our mind, a solemn duty is cast on the Court in dispensation of justice to adequately consider the defence of the accused taken under section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.''
Although the word “may” has been used in the section 313 (4) of Cr.P.C., the defence version stated by accused in response to questioning under this provision shall be considered by the Court, having due regard to fact that this is the only provision whereby the accused can have the direct dialogue between the Court by explaining his defence version, whether such defence is acceptable or not, is a entirely different matter. This provision gives the most valuable right to accused, which is part of fair justice, as envisaged in Art.21 of the Constitution of India (Reena Hazarika Vs. State of Assam,AIR 2018 SC 5361).
14. Now the question arises is whether the power of the Court is limitless in considering these matters, taking under the shelter behind the definition of ‘matters’, which may even fall outside the strictness of definition evidence? Obviously, the answer is negative. As discussed supra, the definition of word “Proved” must be read with that of word “Evidence”. We know that legal evidence means that can be given in relation to facts in issue or relevant facts, provided such evidence is admissible too. It is emphasized here that the usage of phrase “matters before it” does not enable a Court to take into consideration of any matter, say for example, statement recorded under section 161 Cr.P.C. (Section 162 of Cr.P.C. prohibits the use of 161 statements, except for the purpose of contradictions in a manner stated u/s.145 of Evidence Act or statement falling u/s.32(1) of the Evidence Act or permitted to be proved u/s.27 of the Indian Evidence Act. See also: Hazari lal Vs. Delhi Administration, 1980 AIR 873), or confession, (Section 25 of the Indian Evidence Act declares that “No confession made to a police officer shall be proved as against a person accused of any offence.”) given by an accused to a police officer while he was in police custody without there being any discovery of any unknown/new fact as permissible under section 27 of the Evidence Act, (Navaneetha Krishnan V. The state, CDJ 2018 SC 403, Held : “Section 27 of the Evidence Act incorporates the “theory of confirmation by subsequent fact” i.e. statements made in custody are admissible to the extent that can be proved by the subsequent discovery of facts.”), in defiance of ban contained in the laws. Regard being had to the decision of Hon’ble Supreme court in Hazari lal Vs. Delhi Administration, (1980 AIR 873), wherein, the Hon’ble Supreme Court was called upon to decide as to whether the Court is justified in taking into consideration of any forbidden evidence under the guise of “matters” as defined under the definition “proved”.
''The Courts below were clearly wrong in using as substantive evidence, the statements made by witnesses in the course of investigation. ...the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.”
From the afore-referred ruling, it is vivid that the Court must not regard to the forbidden matters’ while adjudicating upon a particular fact, although the Court is allowed to consider the ‘judicial matters’ which may not strictly be called as evidence in view of section 3 of the Evidence Act. The catena of judicial pronouncements would also lay down the following aspects, which would fall in the category of ''matters before it''. They are: the adverse inferences,( Debendra Narayan Singh V. Narendra Narayan Singh, 54 Ind Cas 636), the opinion evidence made relevant by section 50 of the Evidence Act, the pretrial admissions and the statement made by the accused, during the trial under section 342 Cr.P.C. (old code), (Rabindra Kumar Bhattacharjee V. Smt. Prativa Bhattacharjee: 1970 CrLJ 838), common sense of a Judge, while appreciating a piece of evidence, (Karthick Theodre vs. State, CDJ 2014 MHC 1475 ; 2014 (3) CTC 568 ; 2014 CrLJ 4919), presumption, inference and admissions (Ananthakrishnan V. K.G.Rangasamy, CDJ 2019 MHC 4845). The Judge may legitimately take into consideration of these ‘matters’ highlighted above to arrive at conclusion, apart from the usual oral or documentary evidence being produced before him. The foregoing discussions would show us that the limitations imposed upon the Judge in taking the evidence under the context of
''matters before it'' are firstly, the Judge is bound by the definition of section 5 of the Evidence Act, which declares that nothing can be given as evidence, unless it has relevancy to the matters in issue (It is worth to note that section 165 of the Evidence Act permits the Judge to put any question about irrelevant fact to discover proper proof of relevant facts) and secondly, he ought not consider the matters/materials, application of which are expressly forbidden by the Evidence Act or any other law. In other words, on the strength of word ''matters'', it is open to the Court to read the certain matters, besides the oral and documentary evidence, in favour of or against a party, provided such matters are admissible in law and are relevant to a lis.
Bibliography
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2. The code of Criminal Procedure, 1973.
3. The Indian Penal Code, 1860.
4. The Negotiable Instrument Act, 1881.
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https://plato.stanford.edu/entries/evidence-legal/