02. Case Law 1-16

Delhi Law Academy

                                         Case  Law  on  sections  1-16  Indian  Evidence  Act

1.    Mirza Akbar                             v.       Emperor                       [1940 PC]

2.    Badri Rai                                   v.       State of Bihar               [1959 SC]

3.    Jayantibhai   Bhenkarbhai     v.        State   of   Gujarat      [2002 SC]

Case Law on section 10

                                              Mirza Akbar     v.     Emperor     [1940 PC]

The appellant was charged with conspiracy to murder, in consequence of which conspiracy murder was committed. Under the joint effect of Section 302/120B of Indian Penal Code, he was convicted and sentenced to death by Additional Sessions Judge, Pehawar Division.

The appellant was tried along with the actual murderer Umar Sher, and with Mst. Mehr Taja who had been the wife of the murdered man, Ali Askar. The murder was committed on August 23, 1938, in the village of Taus Banda. The guilt of Umar Sher was not really open to doubt. He was practically caught red-handed. He was caught running away with a single barrel shot gun in his hand, the barrel of which smelt as if freshly discharged. There was an empty cartridge jammed in the barrel. When the appellant came up from the field in which he had been working about half a mile away from the scene of the murder he asserted that Umar Sher was innocent and should be released, but the other present refused to do so.

Umar Sher’s main defence seems to have been absence of motive. This fact however was relied upon by the prosecution as showing that he was a hired assassin, bribed to commit the murder by the appellant and Mst. Mehr Taja who were co-conspirators in that regard. This was found by the Court to have been the fact. The principal evidence of the conspiracy between these two prisoners consisted of three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner.

It will be convenient to set out the relevant portions of the three letters. Exhibit P.A., in the handwriting of Mst. Mehr Taja:

Greetings to thee O my sweet-heart. Now I shall sell myself and do this act if only I have thee at my back. What a blissful hour it would be when with Amir Jan wailing over Ali Askar we contract our Nikah and enjoy ourselves. However hard on thee I have been in the past, that is all past. Henceforth I solemnly promise to desist. I do fervently cherish the hope that God will make thee mine. Try and send Mir Aftab often to me so that I may talk to him. I have found out money for thee but thou must unhesitatingly find out the man. My heart is bursting for thee and I long for thee immensely. Accept my greetings.

Exhibit P. B. , also in Mst. Mehr Taja’s handwriting:

Letter to the sweet-heart. For God’s sake spare not a moment or thou wilt ever repent my loss. They are all one against me. It would be better if aught thou couldst do.

Exhibit P. D., in handwriting of the appellant:

My sweet-heart and the bearer of my burden.  You must find out the money or I would die. Is it of my choice to be roaming about and thou be enjoying with him, but what shall I do. If I had my own way I would not have left you to remain with him. I am burning and have pity on me for God’s sake. To me the passing of each day is like months and years. Once place thy self in my charge and satiate me with the honey of thy red lips. Even if thou cuttest my head off my neck I would still yearn for thy white breast…. The house of the torturer will be rendered desolate. Mirza Akbar’s limbs have grown sapless after thee.

The judges in the Court below have found in these letters, their authenticity being established, evidence justifying the conviction of the appellant and Mst. Mehr Taja. The Judicial Commissioner in dismissing these prisoners’ appeals thus summed up the position, with special reference to the letters. He said:

There is a reference to Mirza Akbar by name in Ex. P. D. and the name clearly refers to the writer of the document. Furthermore, the three documents taken as a whole show that the two writers of the documents desired to get rid of Ali Askar so that they should marry each other. There was a question of finding money for hired assassin to get rid of him.  Subsequently we find that Ali Askar was shot by a man who had no motive to shoot him. In addition to this there was the strange conduct of Mirza Akbar when Umar Sher was arrested. There is no reason for doubting the statement of the witnesses that he did request that Umar Sher should be released. In my opinion there is no doubt whatsoever that these two Appellants Mirza Akbar and Mst. Mehr Taja did enter into conspiracy to murder Ali Askar and that they hired Umar Sher to commit the actual murder, which he did.

But the appellant’s contention was that this conclusion was vitiated by the admission as against him of a statement made by Mehr Taja before the Examining Magistrate after she had been arrested on the charge of conspiracy. That statement which was made in appellant’s absence was admitted in evidence both by the trial judge and by the Judicial Commissioner as relevant against the appellant under Section 10 of Evidence Act.

The English rule on this matter is in general well settled. It is a common law rule not based on, or limited by, express statutory words. The leading case of R. v. Blake [QB] illustrates the two aspects of it, because that authority shows both what is admissible and what is inadmissible. What in that case was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other. No doubt what was contained in it amounted to a statement evidencing what had been done and also the common intent with which at the time it had been done, but it had nothing to do with carrying the conspiracy into effect. Lord Denman said that the evidence must be rejected.

Where the evidence is admissible it is in their Lordships’ judgment on the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. The words written or spoken may be a declaration accompanying an act and indicating the quality of the act as being the act in the course of the conspiracy: or the words written or spoken may in themselves be acts done in the course of the conspiracy. This being the principle, their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past.

In their Lordships’ judgment, the words “a common intention” signify a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships’ judgment Section 10 embodies this principle. In cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of the conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past.

In their Lordships’ judgment statement of Mehr Taja falls under the latter category, and was wrongly admitted. But the question of law is not really material in this case. The statement so far from admitting a conspiracy with the appellant, categorically denied it. While the woman stated that the appellant had threatened to kill her and her husband if she refused to marry him, she had refused his advances and stopped him coming to the house.

In their Lordships’ judgment, however, the admission of the statement did not vitiate the proceedings. On the material before the Court, after the statement is excluded, there was evidence sufficient to justify the conviction. The terms of the letters are only consistent with a conspiracy between the prisoners to procure the death of Ali Askar. The vague suggestion that they related merely to a scheme to obtain a divorce and to raise money for that purpose is clearly untenable. They accordingly humbly advise His Majesty that the appeal should be dismissed.

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Case Law on section 10

                                                          Badri Rai       v.       State of Bihar    [1959 SC]

This appeal is directed against the concurrent judgments and orders of the courts below, convicting the two appellants under Section 120-B read with Section 165-A of the Indian Penal Code.

Facts of the case are as follows: The second appellant, Ramji Sonar, is a gold smith by profession, and runs a shop on the main road in the Village Naogachia. In that village, there is a police station, and the shop in question is situated in between the police station building and the residential quarters of the Inspector of police, who was the First Informant in the case, resulting in the conviction and sentences of the appellants, as stated above. The first appellant, Badri, runs a school for small boys in the same village, about 50 yards away from the shop aforesaid, of the second appellant. On August 22, 1953, the First Informant, who, holding the position of an Inspector of Police, was in charge of the police station, made a seizure of certain ornaments and molten silver from a vacant building in front of the house of the second appellant, Ramji. Those ornaments were being melted by six strangers coming from distant places, with implements for melting, said to have been supplied by Ramji. The seizure was made on the suspicion that the ornaments and the molten silver were stolen property, which were to be sold to Ramji in a shape which could not be identified with any stolen property.

After making the seizure-list of the properties, thus seized, the police officer arrested Ramji, as also the other six strangers. Ramji was released on bail that very day. Police investigations into the case, thus started, followed. During that period, on August 24, 1953, at about 7.30 p.m., the Inspector was on his way from his residential quarters to the police station, when both the appellants accosted him on the road, and Ramji asked him to hush up the case for a valuable consideration. The Inspector told them that he could not talk to them on the road, and that they should come to the police station. Thereafter, the Inspector reported the matter to his superior officer, the DSP (PW 8) and to the Sub-Inspector, PW 9, attached to the same police station. On August 31, the same year, the first appellant, Badri, came to the police station, saw the Inspector in the central room of the thana, and offered to him a packet wrapped in a piece of old newspaper, containing Rs 500 in currency notes. He told the Inspector, (PW 1) that the second appellant, Ramji, had sent the money through him in pursuance of the talk that they had with him, in the evening of August 24, as a consideration for hushing up the case that was pending against Ramji. At the time the offer was made, a number of police officers, besides a local merchant (PW 7), were present there. The Inspector at once drew up the first information report of the offer of the bribe on his own statement, and prepared a seizure-list of the money, thus offered, and at once arrested Badri, and put him in the thana lock-up. After the usual investigation, the appellants were placed on their trial, with the result indicated above.

The only serious question raised in this appeal, is the point raised on behalf of the second appellant, Ramji, as to whether the statement made by the first appellant, Badri, on August 31, 1953, that he had been sent by the second appellant with the money to be offered by way of bribe to the police officer, was admissible against him. The learned counsel for the appellant was not able clearly to formulate his grounds of objection to the admissibility of that piece of evidence, which is the basis of the charge against both the accused persons. Section 10 of the Evidence Act, is a complete answer to this contention.

The incident of August 24, when both the appellants approached the Inspector with the proposal that he should hush up the case against the second appellant, for which he would be amply rewarded, is clear evidence of the two persons having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. There cannot, therefore, be the least doubt that the court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence. Therefore, the charge under Section 120-B had been properly framed against both of them. That being so, anything said or done by any one of the two appellants, with reference to the common intention, namely, the conspiracy to offer bribe, was equally admissible against both of them. The statement made by the first appellant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which was then under investigation, is admissible not only against the maker of the statement — the first appellant — but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy. That statement is admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself. The incident of August 24, is evidence that the intention to commit the crime had been entertained by both of them on or before that date. Anything said or done or written by any one of the two conspirators on and after that date until the object of the conspiracy had been accomplished, is evidence against both of them.

As already indicated, the incident of August 24, is a clear indication of the existence of the conspiracy, and the court was perfectly justified in drawing up the charge under Section 120-B also. It is no answer in law to say that unless the charge under that section had been framed, the act or statement of one could not be admissible against the other. Section 10 of the Evidence Act, has been deliberately enacted in order to make such acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of the crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statements of the others, unless there is a common bond linking all of them together.

Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another. It is only when there is evidence of a concerted action in furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a conspiracy, is acting as the agent of the rest of them. As soon as the court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration made, by any one of the co-conspirators, is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy. Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy.

It was also suggested that the statement made by the first appellant on August 31, about the purpose of the payment, having been made after the payment, was not admissible in evidence, because the object of the conspiracy had been accomplished before the statement in question was made. Reliance was placed in this connection upon the decision of their Lordships of the Judicial Committee in Mirza Akbar v. King-Emperor [AIR 1940 PC 176].

But that decision is itself an answer to the contention raised. The payment was made, and the statement that it was being made with a view to hushing up the case against the second appellant, is a part of the same transaction, that is to say, the statement accompanied the act of payment of the bribe. Hence, it cannot be said that the statement was made after the object of the conspiracy had already been accomplished. The object of the conspiracy was the hushing up of the criminal case against the second appellant, by bribing the public servant, who was in charge of the investigation of the case. The object of the conspiracy was yet far from being accomplished, when the statement in question was made. The leading case on the subject is that of R. v. Blake [(1844) 6 QB 126]. That decision is an authority both for the positive and the negative aspects of the question. It lays down what is admissible and what is not admissible. It held that the documents actually used in effectuating the objects of the conspiracy, were admissible, and that those documents which had been created by one of the conspirators after the object of the conspiracy had been achieved, were not admissible.

Section 10 of the Evidence Act is on the same lines. It is manifest that the statement in question in the present case, was made by the first appellant in the course of the conspiracy, and accompanied the act of the payment of the money, and is clearly covered by the provisions of Section 10, quoted above. It must, therefore, be held that there is no substance in the only question of law raised in this appeal. It is accordingly dismissed.

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Case Law on section 11

                                     Jayantibhai   Bhenkarbhai     v.     State   of   Gujarat      [2002 SC]

                                            Law laid down by the Supreme Court on section 11 Evidence Act

Section 11 of the Evidence Act, 1872 provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or a relevant fact highly probable or improbable.

The plea of alibi flows from Section 11 and is demonstrated by Illustration (a). The word “alibi” is of Latin origin and means “elsewhere”. It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant.

The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi.

If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court.

Reverting back to the facts and circumstances of the case and keeping in view the nature of the accusations made against the accused-appellant and weighing the same against the overwhelming defence evidence adduced by the accused-appellant in support of his plea of alibi, in our opinion, a reasonable doubt is created in the prosecution case so far as the participation of this accused-appellant in the incident is concerned. We have already noted, the High Court itself, having arrived at a finding in favour of the accused-appellant that his presence at Gandhinagar up to 11.00 a.m. on the date of the incident cannot be doubted. That being so, it is rendered highly improbable if the accused-appellant could have reached back to Village Singpur by the time the incident happened.

For the foregoing reasons, we are of the opinion that the accused-appellant is entitled to the benefit of doubt and his appeal therefore deserves to be allowed.

Though we are holding Jayantibhai Bhenkarbhai, the accused-appellant before us entitled to acquittal, we are conscious of the fact that the High Court has held five accused persons guilty and convicted them with the aid of Section 149 IPC. With the acquittal of Jayantibhai, the accused-appellant before us, the number of culprits who participated in the incident is reduced to less than five and the charge with the aid of Section 149 IPC falls to the ground. We could have, in exercise of our jurisdiction under Article 136 of the Constitution, entered into the legality and propriety of the conviction of the non-appealing accused persons also. However, in the facts and circumstances of the present case, we are not inclined to do so. Though the charge with the aid of Section 149 IPC may fail, yet the non-appealing accused persons could still have been held liable to conviction with the aid of Section 34 IPC in which event the sentences would have remained the same. Be that as it may, inasmuch as the other accused have chosen not to file any appeal of their own, we are not inclined to enter into examining the sustainability of the conviction of the non-appealing accused persons.

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