Report No. 185
This section is a classic one and has as its basis various aspects of human conduct. It refers to facts which the court 'may' presume. It is followed by nine illustrations Illustration (a) to (i) which are in the nature of 'maxims' and they are followed by nine more paragraphs which refer to the facts which have to be taken into consideration for the purpose of the 'maxims' referred to in illustration (a) to (i).
We shall first refer to the main section. We shall then separately refer to each of the nine illustrations and to the corresponding requirement as to the other facts to be taken into account in the case of each illustration.
The main section 114 reads as follows:
"114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
The section enables the court to presume the existence of any fact which the court thinks likely to have happened, regard being had to
(a) the common course of natural events;
(b) human conduct; and
(c) public and private business.
Sir James Stephen, while introducing the BIllustration stated, in regard to section 114 as follows:
"The effect of this provision is to make it perfectly clear that courts of justice are to use their own common sense and experience in judging the effect of particular facts, and that they are to be subject to no particular rules whatever on the subject. The illustrations given are for the most part, cases of what in English law are called presumptions of law: artificial rules as to the effect of evidence by which the court is bound to guide its decisions, subject however, to certain limitations which it is difficult either to understand or to apply, but which will be swept away by the section (114) in question."
(Proceedings in Council, Gazette of India, 30th March, 1872, supplement, pp 234-35).
It is also important to note that the section uses the words 'may presume'. It is for the court to raise the presumption or not (R v. Shibnath: AIR 1943 F.C. 75). The presumption, even if drawn, is rebuttable. But no 234 presumption can be safely drawn from another presumption. (U.S. v. Ross: 92. U.S. 281).
Once a presumption is satisfactorily rebutted, it simply vanishes. It cannot again come back once again. In a famous quotation, (Council Blulb RR) Lamm J observes in Mackowik v. Kansas city St. James & CBR Co. (94. S.W. 256, 262) = 196 MO, 550 that-
"presumptions are like bats, flitting in the twilight but disappearing in the sunshine of facts"
The relevant passage reads as follows:
"It would seem from his own testimony that this unfortunate plaintiff foolishly shook dice with danger and lost on the throw; for in his testimony at Savannah he says he made a 'run' to get across, and in his testimony at the last trial he said he 'thought he could make it". Learned Counsel somewhat rely upon the proposition that plaintiff had the right to presume that defendant was obeying the ordinances and governed his actions accordingly.
But will the law indulge presumptions where the parties to the actual occurrence are alive and go upon the stand and the facts are fully disclosed? If plaintiff knew of the ordinances and relied on the fact that defendant was obeying their provisions and acted on that reliance, could he 235 not have said so? Under such conditions, reliance would seem to be a fact susceptible of proof as are other facts, and should be proved by the best evidence which the case would admit.
He of all men knew what the facts were: and, having declined to speak, may he invoke the aid of friendly presumptions? "Presumptions", as happily stated by a scholarly counselor, are "tenuous", in another case, "may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts". That presumptions have no place in the presence of the actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care, as held in many cases".
(Wigmore, 1981, para 2491, page 305) (see also G. Vasu v. Syed Yaseen (AIR 1987 AP 139) (FB) where the above American case was quoted) approved by the Supreme Court in Bharat Barrel and Druna Mfg. Co. v. Amin Chand Pyarelal: 1999 (3) SCC 35.
At page 311, Wigmore quotes Bohler 'The Effect of Rebuttable Presumptions of Law upon the Burden of Proof' (1920) 68, U.Pa.L.Rev 307) (reprinted in Bohler, Studies in the Law of Torts, 636 (1926))
"In all these, the need is satisfied when evidence is provided. Having accomplished their purpose they have, of course, no further effect.
Like Maeterlinck's male bee, having functioned, they disappear."
We shall now take up the words "common course of natural events, human conduct and public and private business". The word 'common course' 236 qualifies not only natural events but also the words 'human conduct' and 'public and private business'. When the court is prepared to accept the direct evidence of a witness or an expert, section 114 does not come into play. It is only in their absence, that section 114 is resorted to. As to what is 'common course of natural events, human conduct and public and private business' depends upon the common sense of the Judge acquired from experience of worldly and human affairs, tradition or convention.
We shall next take up each of the illustrations (a) to (i) and the relevance of certain facts in relation to each of them, as stated in section 114, and mentioned in the latter part of the illustrations.
Before we do so, we may however, point out that the illustrations are not intended to lay down rules of law which are exhaustive. They are merely examples and it is always open to the Court to go back to the section and apply it Debi Prasad v. R AIR 1947 Allahabad 191 (FB).
But in as much as the 69th Report commented on each illustration, we also do so.
"Illustration.(a): The Court may presume (a) that a man who is in the possession of stolen goods soon after the theft is either the thief or has 237 received the goods knowing them to be stolen, unless he can account for his possession.
But the court shall have regard to the following: (a) A shopkeeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business."
The illustration uses the word 'may' and the court may or may not draw an inference. Even otherwise, it is rebuttable.
The illustration has been taken from Taylor (Section 140) who quotes R v. Langmead: 9 Cox CC 464. In Tulsiram v. State AIR 1954 SC.1, the Supreme Court observed that the presumption permitted to be drawn under section 114, ill.(a), has to be read along with time factor. If several months have expired in the interval, the presumption cannot normally apply. In Gulabchand v. State of M.P.: AIR 1995 SC 1598, the recovery was within 3 or 4 days. In Earubhadrappa v. State of Karnataka AIR 1983 SC 446 a period of one year was not treated as too long. It all therefore depends on the facts of each case.
The second aspect is that the burden of proving the guilt of the accused does not shift but the evidential burden may shift to the accused.
Though, he may give evidence, by cross examination of the prosecution witness, he may take benefit by showing that there was an alternative case which can throw doubt on his guilt. In Karnal v. State : AIR 1976 SC 1097, the Supreme Court observed that the court may draw presumption to convict the accused where the circumstances indicate that no other reasonable hypothesis except his guilty knowledge. See also Baiju v. State AIR 1978 SC 522 and Mohanlal v. Ajit: AIR 1978 SC 1183. In fact, in Trimbak v. State AIR 1954 SC 319 it was held that it is not a correct way to infer his guilt merely because he had no explanation.
The presumption under section 114 (a) is not confined to cases of theft. It can apply to other offences also, like breach of trust etc.
But, the more important question is whether in the case of recovery of such goods and absence of an explanation and no other explanation is possible, question arises whether the accused must be held guilty for theft under section 411 IPC, for possession of stolen goods.
In Union Territory of Goa v. Boaventura D'Souza: AIR 1992 SC 1199, it was held that presumption cannot be extended to say that the person in possession of stolen goods must have also committed the murde.- in a case of murder to commit robber.- unless there are circumstances to connect the accused with the offence of murder. Otherwise, the presumption is only that he is guilty of an offence of theft under section 411 of IPC. Similar was the position in Surjit Singh v. State: AIR 1994 SC 110.
However, in Gulab Chand v. State of M.P. : AIR 1995 SC 1598 it was proved that murder and robbery were integral part of the same transaction and a presumption under ill (a) was drawn not only that the accused committed also robbery of the ornaments of the deceased lady but also murder. On the other hand, in Amar Singh v. State of M.P.: AIR 1982 SC 129, it was held, on facts, that the presumption could not be extended to the offence of dacoity. Similar was the position in Sanwat Khan v. State: AIR 1956 SC 54.
The 69th Report stated in para 56.11 that no amendment is necessary in this illustration. We are of the same view in as much as the decisions of the Supreme Court give the court enough guidance otherwise.
Illustration (b) and section 133: The Court may presume that (b) an accomplice is unworthy of credit, unless he is corroborated in material particulars.
This has to be read with two other illustrations in the second half of section 114. We shall refer to them at a later stage when we deal with the alleged inconsistency between section 133 and 1ll(b).
The rule of practice regarding the credibility of an accomplice is based on human experience and the court will look for corroboration (Sheikh Zakir v. State of Bihar: AIR 1983 SC 911); Niranjan Singh v. State of Punjab: AIR 1996 SC 3254.
This illustration has to be read with section 133 of the Evidence Act. Section 133 reads as follows:
"Section 133: Accomplice: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
This Section does not rule out the possibility of conviction on the basis only of the evidence of an accomplice, while ill (b) requires corroboration. The case in C.R. Mehta v. State of Maharashtra: 1993 Crl LJ 2863 (Bom) is on point. There two persons tried to bribe a Minister for a favour, the Minister informed the Anti Corruption Bureau and the accused persons were arrested in a trap. On the basis of the evidence of the Minister, whose general integrity was of a high order, the persons who offered the bribe were convicted.
There is some apparent inconsistency between illustration (b) and Section 133 in that the former requires 'corroboration' while the latter suggests that there is nothing illegal if a person is found guilty on the basis of the "uncorroborated" testimony of an accomplice.
This aspect was dealt with in the 69th Report while dealing with Section 133 in chapter 73 and after a very elaborate discussion, it was suggested that Section 133 be deleted and ill (b) to Section 114 be retained. (The question is whether ill (b) is to be deleted and Section 133 amended?)
No doubt, Sri Vepa P Sarathi has, in its comments, stated that there is no inconsistency at all between Section 114, ill.(b) and Section 133. Section 133 provides the normal rule that conviction can be based on the sole testimony of an accomplice, just as in the case of the evidence of a single witness or a dying declaration alone. But, in a particular case, the court might feel that it is not safe to convict a person on the sole testimony of that accomplice, just as in a particular case, the court may feel that it is not safe to convict a person on the sole testimony of a single witness or on the basis of a dying declaration only.
If in a particular case, the court feels that corroboration is necessary for the evidence of an accomplice, it may resort to it under Section 156. According to Sri Sarathi, the confusion has arisen, because, the law in R v. BaskervIllustration 1966 (2) KB 658 (the rule of procedure has become a rule of English law) is, as usual, unnecessarily imported into India, where the law is different.
The law in India, according to him, is different, because the accomplice's statement, before he is treated as an approver, is given to a Magistrate who is expected to take all precautions to see that the accomplice is not giving his statement because of police torture. Section 133 is inserted to show that an accomplice is like any other witness. The illustration in Section 156, though it refers to 'accomplice', the main Section deals only with a 'witness'.
While these comments are somewhat forceful, we feel that the question is not whether there is no inconsistency between Section 133 and ill.(b), but that the two aspects should be brought together at a single place rather than be allowed to remain separate.
We, therefore, feel that the proper thing would be to amend Section 133 by bringing in the aspects covered by illustration (b) into Section 133 and to delete illustration (b).
In fact, in the commentary in Sarkar (15th Ed., 1999, page 2076) it is stated that the conflict has arisen because Section 114 is in Ch. VII while Section 133 is in Ch.IX. It was suggested:
"It would seem that the insertion of an explanation to Section 133 in terms of ill.(b) to Section 114 would have been of more help in understanding the true meaning of Section 133."
At pp 2076 and 2077 of Sarkar, on Evidence, it was pointed out that newly recruited judicial officers, if they did not harmonise Section 133 and ill.(b) to Section 114, they may feel that it is not legal (i.e. not unlawful) to find a person guilty on the only evidence of an accomplice without there being any corroboration.
We shall now refer to the two illustrations in the latter half of Section 114 regarding illustration (b): The Court shall have regard to these illustrations too as to ill.(b):, A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself: "a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable."
It has been, however, pointed out that, in the absence of special circumstances of the nature indicated in the two further illustrations to ill.(b), an accomplice is to presumed unworthy of credit. The two further illustrations are not exhaustive. They are given by way of guidance only, and in order that a party may test the facts of a particular case to see whether anything has emerged to show that the evidence of an accomplice need not be corroborated in material particulars (R v. Nag Myo: AIR 1933 Rang 177 (FB).
The Privy Council in Bhubani v. R : AIR 1949, P.C. 257 also laid down this rule.
Precisely what was stated in Sarkar at pp 2076-2077 is a part of the judgment in S.C. Bahri v. State of Bihar: AIR 1994 S.C. 2420, that Section 133 be amended by bringing the gist of Illustration (b) to Section 114, as an Explanation or a proviso to Section 133.
In Nga Aung v. R : AIR 1937 Rang 209, Roberts CJ described Section 133 as a rule of law to this extent triumphs over the rule of practice that if special circumstances exist which render it safe, in an exceptional case to act upon the uncorroborated testimony of an accomplice and upon that alone, the Court will not merely for the reason that the conviction proceeds upon such uncorroborated testimony say that the conviction is illegal.
In R v. Baskerville: 1916(2) KB, 658, in a judgment of five learned Judges, the entire law on this subject has been reviewed and the Supreme Court in Biva Doulu v. State: AIR 1963 SC 599 quoted Lord Abinger in R v. Farler 8.C.P. 106 and Lord Reading in R v. Baskerville. The principle in R v. Baskerville was reiterated by the Supreme Court earlier in Ramashwar v. State: AIR 1952 SC 54 and Vemireddy Satyanarayan Reddy v. State: AIR 1956 S.C. 379. The rules propounded in R v. Baskerville have been summarized at p. 2102 of Sarkar (15th Ed., 1999) as follows:
"(1) It is not necessary that there should be independent confirmation in every detail of the crime related by the accomplice. It is sufficient if there is a confirmation as to a material circumstance of the crime.
(2) The confirmation by independent evidence must be of the identity of the accused in relation to the crime, i.e. confirmation in some fact which goes to fix the guilt of the particular person charged by connecting or tending to connect him with the crime. In other words, there must be confirmation in some material particular that not only has the crime been committed but that the accused committed it.
(3) The corroboration must be by independent testimony, that is by some evidence other than that of the accomplice and therefore one accomplice cannot corroborate the other.
(4) The corroboration need not be by direct evidence that the accused committed the crime, it may be circumstantial.
A Full Bench of the Rangoon High Court in Aung Hla v. R: 9 Rang 404 (FB) laid down six propositions and the fifth one was that one 'approver' may be corroborated by another approver, but this proposition has not been approved in some other cases. In Mahadeo v. R: 1936(3) All ER 813 (PC), Sir Sidney Rowlatt, while referring to the principle that one accomplice cannot corroborate another, treated it as "now virtually a rule of law".
However, while agreeing with Bhuboni's case (AIR 1949 P.C. 257) the Supreme Court observed in Kashmira v. State (AIR 1952 SC 159) that "the testimony of an accomplice can in law be used to corroborate another though it ought not to be used save in exceptional circumstances and for reasons disclosed".
In the light of the above discussion, leaving out the various other principles laid down by the Supreme Court, it will be necessary to recommend shifting ill.(b) in Section 114 and redrafting Section 133 and shifting the illustration to the latter part of Section 114 in relation to ill.(b) to Section 133, as follows: Our recommendations are:
(1) delete ill.(b) in Section 114.
(2) Delete both the paragraphs in the later part of Section 114 starting with the words "As to illustration (b)".
(3) Redraft Section 133 as follows:
[by shifting the principle of illustration (b) to Section 133. It is also proposed to shift the two paras, in the latter part of Section 114, which deal with illustration (b).]
"133. Accomplice.- An accomplice shall be a competent witness against an accused person but his evidence is unworthy of credit unless he is corroborated in material particulars:
Provided that where the accomplice is a person whose evidence, in the opinion of the Court, is highly creditworthy as not to require corroboration, a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.