Indian Law/Criminal evidence

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Introduction[edit]

People have faith and confidence on Courts. They come to Court for justice. The object of a Criminal Court is to do justice, so to say, to convict the guilty and protect the innocent. The main motto of a criminal trial is to search for the truth. As such, the duty of a Criminal Court is to arrive at the truth and subserve the ends of justice.[1]

Evidence in Indian Courts[edit]

For discovery of the truth, Courts require proper or relevant facts and record evidence in clear and intelligible manner. When the language of a written instrument is perfectly plain, no construction will be made to contradict the language. As such, a Presiding Judge or Magistrate must cease to be a mere recording machine. He should take a participatory role in the trial. Exercising his control over the proceedings effectively, he should interfere when irrelevant fact is unnecessarily brought on record so that the ultimate objective i.e., the truth is arrived at. Summary on the Subject:

Mode of recording Evidence[edit]

  1. Taking and recording evidence would assume great significance in administration of justice. A good and reasoned judgment lags behind clear and correct recording of evidence. Sections 272 to 283 of the Code of Criminal Procedure, 1973 read with rules covered under Chapter XIII of General Rules and Circular Order (Criminal) Volume –I would throw light to a Presiding Judge or Magistrate on mode of taking and recording evidence in criminal cases.
  2. Section 273 mandates to record all the evidence in presence of the accused. If personal attendance of the accused is dispensed with, the same must be recorded in presence of his pleader.
  3. Section 274 lays down that the Magistrate shall record the memorandum of substance of evidence of a witness in open Court and such memorandum must be signed by him and shall form part of the record so far as summons case is concerned. In a warrant case, the Magistrate shall record the evidence of a witness by taking down by himself or cause it to be taken down in the narrating form.
  4. Section 275(3) permits the Magistrate to record the evidence in the form of question and answer. In view of the proviso to section 275(1), the evidence of a witness may be recorded by audio video electronic means in presence of the advocate of the accused.
  5. Section 276 says that recording of evidence before Sessions Court should be in the form of narrative. The Presiding Judge may, in his discretion, take down or cause to be taken down, any part of such evidence in the form of question and answer and the evidence so taken down shall be signed by the Presiding Judge.
  6. Section 278 stipulates that evidence of a witness when completed should be read over to him in presence of the accused or his pleader. It should not be done so at the end of the day after all witnesses have been examined. When the evidence is read over to the witness or to his pleader, if necessary, it can be corrected. If the witness denies the correctness of any part of the evidence, the Presiding Judge may instead of correcting the evidence, make the memorandum of the objection raised by the witness and shall add such remarks as he deems fit. If the evidence is recorded in the language not understood by the accused or his pleader, it shall be contemplated in open Court in the language understood to them.
  7. Section 280 empowers the Presiding Judge or the Magistrate to record the remarks, if any, if he thinks material in respect of the demeanour of any witness and he should avoid formulating any opinion on the credibility of the witness until the whole evidence has been taken.
  8. As per rule 83, the margin of one-fourth of the deposition sheet should be left blank. Rule 84 enables Court to record deposition by type writing machine. A certificate must be given by the Presiding Judge that evidence is recorded to his dictation in open Court and each page of the record so made must be attested by him.
  9. Rule 85 indicates that Presiding Judge or Magistrate shall record in his own handwriting the name of the witness examined, name of his father and if she is a married one, the name of her husband, profession, age of the witness, village, police-station, district in which the witness resides, the entry of age of the witness shall be according to the estimation of the Presiding Judge.
  10. So far as doubtful expression is concerned, the trial Court should actually record the word used by the witness so that its exact signification can be assessed in judgment. Assistance of an interpreter may be taken if the language of the witness is not understood by the accused Court, or lawyers.
  11. According to rule 87, deposition of each witness should be separately paragraphed and consecutive numbers should be assigned.
  12. In reference to Rule 88, the Magistrate or the Presiding Judge shall personally sign the certificate at the bottom of the deposition of each witness to the effect that read over and explained to the witness in presence of the accused/pleader representing the accused and admitted to be correct.

Marking of Exhibits[edit]

  1. The documents admitted as evidence on behalf of the prosecution shall be marked with number in the order in which they are admitted. For example: Ext. 1, 2 etc.,
  2. The documents admitted as evidence on behalf of the defence shall be marked with capital letters. For example: Ext. A, Exhibit B, etc.
  3. When documents admitted at the instance of the Court and neither party is willing to accept them as evidence, they shall be marked as: Ext. C-I, C-II etc.
  4. When a number of documents of same nature will be admitted, the whole series shall bear the same number or same capital letter, as the case may be, and a small number or small letter being added to distinguish each document of the series. For example: Exhibit 11, 12, 13 etc. Aa, Ab, Ac etc., C-I/1, C-I/2, etc., etc.
  5. When any article or material which is produced and after being proved and admitted in evidence, it shall be marked with a Roman number. For example: MO-I, MO- II etc.
  6. List of articles admitted in evidence shall be prepared by the Bench Clerk of the Court and shall be signed by the Judge.

Considerable Solutions to practical problems in aid of the Evidence Act, 1872[edit]

  1. Examination in chief and cross-examination must relate to relevant facts. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in chief, shift the facts already stated by witnesses, to detect and expose discrepancies, to elicit suppressed facts which will support the case of cross-examining party.
  2. Repetition of questions is prohibited in view of the ratio laid down by the Bombey High Court in deciding a criminal appeal in 485 of 2006 (date of judgment: 06.05.2011)
  3. The cross-examiner should be asked to repeat the question, if the witness is unable to understand. This minor precaution can prevent improper and incorrect recording of evidence. Ordinary witness should not be asked regarding legal provisions. At times legal questions may be relevant to an expert witness.
  4. While recording omissions and contradictions, the Presiding Officer must verify the previous statement. When the omissions relate to the natural part of the statement, it should be specifically recorded to that effect.
  5. Unless documents are properly filed on record, they should not be permitted to refer in cross-examination.
  6. Handwriting or signature may be proved by the person who wrote or signed, who acquainted with the handwriting or signature or by the Court itself by means of comparison or through opinion of expert.
  7. If a document is duly proved but mechanically or otherwise is not exhibited, still it can be read in evidence. Courts take judicial notice of public document. All official documents are also public documents. Certified copies of public documents are treated to be genuine unless contrary is proved. Truth of contents of certified copies of private documents like sale deed, gift deed, lease deed, etc., are required to be proved by independent evidence.
  8. Court insists for direct evidence and primary evidence. Execution of a document is proved by admissible evidence. Admissible evidence is by way of admission by signatory to the document of its execution, by way of examination of a scribe, by way of examination of an attesting witness, by proof of signature and handwriting of the person who signed or wrote the document produced, by proof of digital signature, by expert’s opinion or by proof as to verification of digital signature.
  9. Where several accused of the same name appear at one trial, care should be taken in recording evidence to specify the name of the father of the accused.

Issues and probable answers[edit]

Q.1. (a) Whether can deposition of any witness be recorded, if produced on behalf of the prosecution, in absence of the accused? Ans: Yes. If an accused has absconded and there is no immediate prospect of securing his presence, the trial court can record evidence of witnesses in his absence. Such evidence may be used against him on his arrest, if any of the witnesses is dead, incapable of giving evidence or cannot be found. Such procedure for recording evidence in absence of the accused has been laid down in section 299 of the Code of Criminal Procedure. This is the salutary exception to the scheme of trial in the Court. The object of section 299 is to procure and preserve the evidence so as to prevent its loss.

Q.1 (b) How does a Magistrate of First Class examine the witnesses in absence of accused?

Ans: If the accused of an offence punishable with death or imprisonment of life absconds, the High Court or the Court of Sessions may direct the Magistrate of First Class to hold an enquiry and to examine the witnesses. The evidence of such witnesses can also be used against the accused on his arrest.

Q.2. If a previous contradictory statement of a witness is intended to be proved, which procedure is resorted to?

Ans: If a previous contradictory statement of a witness is intended to be proved, his attention must be drawn to it. Section 145 of the Evidence Act enables the opponent to cross-examine such witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him. If the witness gives answer in the affirmative, the previous statement in writing need not be proved. On the other hand, if the witness denies to have made the previous statement attributed to him or states that he does not recollect it, the cross examiner must read out to the witness the relevant portion which is to be contradictory to his statement in the Court and give him opportunity to reconcile the same if it can.

It appears in mind that the relevant portion of his previous statement which contradicts his statement in Court should be exhibited. His whole previous statement should not be exhibited.

Electronic Evidence[edit]

Q.3. Which provision of law is mandatorily adhered to for the proof of electronic evidence?

Ans: The evidence consists of three parts – (i) Electronic record, (ii) Documentary evidence other than electronic record, and (iii) Oral evidence.

Electronic record is documentary evidence under section 3 of the Evidence Act. Any information contained in an electronic record is deemed to be a document. An electronic record may be like computer print out, Compact Disc (CD), Video Compact Disc (VCD), Pen drive, Chip etc.,. In other words, it may be printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence. If an electronic record as such is used as primary evidence under section 62 of the Evidence Act, the same is admissible in evidence. The general law on secondary evidence under section 63 read with section 65 of the Evidence Act has no application in case of secondary evidence by way of electronic record. The same is wholly governed by sections 65-A & 65 B. In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600, the Apex Court while considering the print out of the computerised records of the calls pertaining to the cell phones in view of the production of electronic record held as follows

“150. xxx irrespective of the compliance with the requirement of section 65–B, which is a provision dealing with admissibility of the electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, sections 63 & 65. It may be that the certificate containing the details in Sub-section (4) of section 65-B is not filed in the instance case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, sections 63 & 65.”

But the Apex Court in Anvar P.V. v. P.K. Basheer & Others vide Civil Appeal no. 4226 of 2012 while delivering judgment on 18th September, 2014 over ruled the legal position as laid down in Navjot Sandhu case (supra). Their Lordships observed, inter alia, that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65–B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of section 65-B obtained at the time of taking evidence, without which, the secondary evidence pertaining to that electronic record, is not admissible.

The nature and manner of admission of electronic records was one of the principal issues arising for consideration before the Apex Court in the aforesaid appeal. The appellant therein admittedly has not produced any certificate in terms of section 65–B in respect of the impugned CDs. Therefore, the same could not be admitted in evidence. For such reasons, the whole case set up regarding the corrupt practice using sounds, announcements and speeches fall to the ground.

Above all, be it noted that strict adherence to section 65–B of the Evidence Act is imperative for the proof of electronic evidence.

Q.4 If objection is raised during examination of prosecution witness regarding proof of document, how does the Court deal with the situation? Ans: Whenever an objection is raised regarding admissibility of any material or item of oral evidence, the Court does not proceed further without passing order on such objection. The court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objection to be decided at the last stage in the final judgment. If the Court finds at that stage that the objection so raised is sustainable, it can keep such evidence excluded from consideration.

Proof of Documents[edit]

If the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection then and there before proceeding further. On this aspect, a decision of the Apex Court of its Constitution bench consisting of 5 Hon’ble Judges in the case of Javer Chand & Others v. Pukhraj Surana: AIR 1961 SC 1655 may be referred to. The above procedure, if followed, will have two advantages. First is that time in the trial Court during evidence recording stage, would not be wasted and the Court can continue to examine the witnesses. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. This procedure has also been highlighted in Bipin Shantilal Panchal v. State of Gujarat & Anr (2001 Cri.L.J. 1254)

Whenever an affidavit in lieu of examination in chief is filed, the witness has to enter the witness box and formally depose to the contents of the affidavit and only thereafter an affidavit can be read as examination in chief (see, Shelatkar Construction Private Ltd., v. Creative Enterprises: 2008 All MR (Cri) 475. After the said formal examination in chief is recorded, the stage contemplated by section 294 of the Code of 1973 will come in picture. The documents are required to be tendered along with a list and the rival party is called upon to admit or deny genuineness of such document. Where genuineness of any document is not disputed, such document may be read in evidence in the trial without proof of the signature of the person by whom it purports to be signed. In other words, it can be said that the said document can be treated as proved and examination of a witness for proving the document is not required. Reference may be made to a decision of Full Bench of the Bombey High Court in the case of Shaikh Farid Hussainsab v. State of Maharashtra 1981 Maha.L.J. 345.

When a document is sought to be produced in Court, the issue of admissibility has to be decided and it cannot be postponed till the delivery of judgment. At the same time, it is borne in mind that when a witness proves any document, the document should be immediately marked as exhibit. The exhibit number should be incorporated on the document itself and also in the body of deposition. In Sait Tarajee Khim Chand & Others v. Yelamarti Satyam @ Satteyya & Others: (1972) 4 SCC 562, the Apex Court delineated the principle that mere marking of an exhibit doesn't dispense with the proof of the document.

In case of Narbada Devi Gupta v. Birendra Kumar Jaiswal & another: (2003) 8 SCC 745 the Apex Court further reiterated that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. Situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by Courts. There are three categories of objections raised by rival party when documents are produced in the Court of law. The first objection is regarding insufficiency of proof and/or irregular mode adopted for proving the document. This objection is that the document has not been proved in accordance with law. The second objection is that the document is not properly stamped as required by the Stamp Act. The third objection is that the document sought to be proved is otherwise inadmissible in evidence.

Presence of Accused[edit]

Q.5 (a) What do you mean by “presence of accused” in terms of Section 273 of the Cr.P.C? Ans: Section 273 of the Code of Criminal Procedure reads as follows: “Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation.- In this section, “accused” ‘includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.” One does not have to consider dictionary meanings of the term ‘presence’ when a plain reading of the provision brings out what was intended. Presence of the accused does not take to mean actual physical presence. If personal attendance of the accused is dispensed with, evidence may be taken in presence of his pleader. Thus, section 273 provides for dispensation from personal attendance. In other words, it may be stated that the presence of the pleader is, thus, deemed to be presence of the accused. That is why, section 273 contemplates constructive presence. This shows that actual physical presence of the accused is not a must. This indicates that the term ‘presence’, as enshrined in this section, is not used in the sense of actual physical presence. A plain reading of section 273 does not accept the restrictive meanings of the dictionary. In case of State of Maharashtra v. Dr. Prafull B. Desai and Another: AIR 2003 SC 2053, the Apex Court depicted the meaning of the term presence in the aforesaid manner.

Q.5(b) What is the requirement of the law in reference to section 273 of the Cr.P.C?

Ans: The requirement of law in reference to section 273 of the Code of Criminal Procedure is that the evidence must be recorded in presence of the accused. The term presence in this section does not mean the actual physical presence of the accused in the Court. Idea of fair trial is implicit therein.

Q.5 (c) Is recording of evidence by video conferencing permissible? If so, state the provision of law?

Ans: Recording of evidence by video conferencing is permissible. A proviso was inserted to sub section (1) to section 275 of the Code of Criminal Procedure, 1973, by Act 5 of 2009 {the Code of Criminal Procedure (Amendment) Act, 2008} which runs as follows:

'Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.'

From the aforesaid provision, it is gathered that the evidence of a witness may be taken by video conferencing.

Conclusion[edit]

The Presiding Judge or Magistrate shall scrutinize evidence led by both the parties under a reasoned judgment. The force of judgment is derived from the recording of evidence. As such, the mode of taking and recording evidence is unconstable and integral feature of criminal trial. Higher Court (Appellate/ Revisional Court) looks at the evidence through the eyes of the trial Judge. Unless a Judge is well equipped with legal knowledge and also well trained in recording evidence, protection of innocent and punishment to the guilty would be a far-cry.

N.B:-(The author of this article is an Assistant Sessions judge from the state of Odisha in the Republic of India)

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