Report No. 185

Section 8

Section 8 refers to 'motive, preparation and previous or subsequent conduct' and their relevance. It contains two Explanations and 11 illustrations.

We are not extracting either section 8 or its Explanations.

In the 69th Report, there is a very elaborate discussion and it was recommended in para 7.88 that there is no need to change the law as enacted in section 8.

On motive, the Supreme Court has reiterated that motive may be relevant to support a finding of guilt but absence of motive may not be evidence of innocence. See S.C. Bahri v. State of Bihar AIR 1994 SC 2420)

There are a large number of judgments of the Court as to the relevance of motive, rendered after the 69th Report, but there is no change in the law.

Similarly, on the other aspect of previous and subsequent conduct, there are later cases, but there is no change in the law.

We agree with the 69th Report that no amendment is necessary in section 8. But before parting with section 8, we may refer to two new aspects: (1) rape victims and (2) right to silence.

(1) In the case of rape victims, the complaint of the victim is relevant under ill.(f) and also under section 157 (Rameshwar v. State: AIR 1952 SC 54). There are, of course, other relevant factors, such as delay, which may or may not have varying degrees of importance in various cases. (see Sarkar, Evidence, 1999, Vol. 1, pg. 196-97). It is pointed out that in England, the complaint of the prosecutrix though given behind the back of the accused, if made at the earliest possible opportunity, is relevant.

This principle is applied to victims of rape, indecent assault and other similar offences under the Criminal Law Amendment Act, 1885 (48 & 49 vic.c. 469) and only for the purpose of the credibility of the story or for negating pleas of consent. Complaint of victims is not relevant in other cases. In India, the provision is wider in section 8 and refers to all complaints. Distinction is however made between complaints and statements.

Illustration (j) under section 8 make a distinction between a complaint and a statement. While a statement is made relevant only as corroborative evidence under section 157, with regard to a complaint, ill. (j) demonstrates that the fact of the complaint having been made, the circumstances under which, and the terms in which made, are relevant (Aziz Bin Muhammed Din v. Public Prosecutor : (1996)5 Malayan L.J. 473 (Melaka H.C.)

Illustration (j) below section 8 reads as follows:

"(j) : The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is, not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157."

It was held in Parvati v. Thirumalai 10 Mad 334, that there is a distinction between a complaint and a statement. A complaint is expressive of feeling while a statement is expressive of knowledge. Sarkar (1999, 1 Ed. p.198) refers to Norton p. 114, where the latter points out that there may sometimes be a difficulty in discriminating between a statement and a complaint. A complaint is one made seeking redress or punishment and must be made to one in authority, the police or some other person to whom the complainant is justly entitled to look for assistance and protection.

The distinction, according to Norton, is important because while a complaint is always relevant, a statement not amounting to a complaint, will only be relevant under particular circumstance.- e.g. if it amounts to a dying declaration or can be used as corroborative evidence. Sri Vepa P. Sarathi in his Evidence, (5th Ed. 2002 at pp 60-61) refers to ill.(j) and the distinction between 'complaints' and 'statements' and to the difference between English law and Indian law. The author says that conduct of an accused pointing out places, relevant under section 8, may be still excluded by section 162 Cr.P.C., subject of course to statements leading to discovery under section 27.

As already stated, the English Act, 1885, above referred to, deals only with relevance of complaints in cases of sexual offences. It does not deal with statements at all and section 8 of the Indian Act is wider.

These and other aspects were, in fact, dealt with in the 69th Report (para 7.73 to 7.87). In para 7.87 it was pointed out that 'statement' as to offences, (other than complaints) are relevant under section 6, 32, 157, 159, 145, unless excluded by section 162 Cr.P.C. Statements which amount to complaints are relevant under section 6, 8, 9 and section 32, unless excluded by section 162 Cr.P.C.

After much discussion, the 69th Report says that no change is necessary in section 8. In as much as the distinction between a complaint and a statement is still valid under the law of evidence, we do not propose any change in section 8 even in so far as the section relates to rape or other offences.

(2) The next question is about the right to silence. This aspect has been dealt with in paras 7.68 to 7.71 of the 69th Report. After considerable discussion of the philosophy behind the right to silence and to Egan v. US 137 F.2d 369 (8th Circuit), certificate denied, (1943) 320 US 788 the Commission felt in para 7.88, no change is necessary.

This question has to be examined in the background of Article 20(3) of the Constitution of India which precludes compulsion of a person to be a witness against himself. There have since been statutory changes in England under the Criminal Justice & Public Order Act, 1994 based on the 11th Report of the Criminal Law Review Committee (Cmmd 4991) and a further amendment to the 1994 Act inserted by section 58(2) of the Youth Justice and Criminal Evidence Act, 199.- which takes into account the decision of the European Court of Human Rightsin Murray v. UK (1996)22 EHRR 29 that if in such a case, access to legal advice is denied, Article 6 of the European Convention is violated. In this connection see also Saunders v. UK (1996) 23 EHRR 313; Condrom v. UK (2001) 31 EHRR 1 and Averill v. UK (2001) 31 EHRR 839 where the European Court held that the police not having followed the condition of giving opportunity to the accused to call a lawyer, the rights of the accused under Article 6 ECHR were violated.

There is a detailed discussion of these developments in Phipson (2000, 15th Ed., para 32.01 to 32.12).

The Law Commission has given a separate Report on the Right to Silenc.- see 180th Report of the Law Commission.

As stated earlier, section 8 does not require any amendment.