Report No. 69

Sections 53-54

Introductory.-As regards evidence of character in criminal cases, the law is to be found in sections 53-54. Under section 53, in criminal proceedings, the fact that the person accused is of a good character, is relevant. Under section 54, in criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character-in which case it becomes relevant. There are two Explanations to section 54. The first Explanation makes it clear that this section does not apply to cases in which the bad character of any person is itself a fact in issue. The second Explanation provides that "a previous conviction is relevant as evidence of bad character."

The first Explanation to section 54 is self-explanatory. The second Explanation, which is rather cryptic, is really intended to convey the idea that if bad character is relevant or in issue, then a previous conviction is relevant as evidence of bad character. Before the second Explanation can apply, it must first be established that the case is one in which evidence of bad character is relevant. If that is established, then the Explanation permits one particular species of fact to be proved as evidence of bad character. Thus, the operation of the second Explanation is conditional. It does not operate as an independent source of relevance of facts with which it deals. Original section 54.-In this context, it may be noted, that section 54, as originally enacted, allowed a previous conviction to be admissible in all cases. The relevant portion of the section ran as follows:-

"In criminal proceedings the fact that the accused person has been previously convicted of an offence is relevant. "

This part of the section was found to be rather harsh, and it was also pointed out by a Full Bench of the Calcutta High Court that this was not the English law1. In fact, notwithstanding the apparently wide language of the section, the Calcutta High Court had, in an earlier case2, refused to allow a previous conviction in evidence, because the section also contained words prohibiting evidence of bad character (as at present). In 1891, the section was amended so as to bring it in conformity with the English law on the subject, that is to say, a previous conviction is not admissible, except where evidence of character is relevant by virtue of some independent and separate rule.

Rationale.-The present rule is, thus, narrower than what it was before 1891.

We may now briefly consider the rationale of the present rule. The rationale of the English rule was thus explained by Stephen3:

"A man's general bad character is a weak reason for believing that he was concerned in any particular criminal transaction, for it is a circumstance common to him and hundreds and thousands of other people, where as the opportunity of committing the crime and facts immediately connected with it are marks which belong to very fe.- perhaps only to one or two persons."

This observation of Stephen explains why, in general, evidence of bad character is excluded. It may be noted that, even in those cases where the character of a person might, according to common concepts, help us in arriving at a conclusion on the question whether it was probable that person acted in the particular manner, the law excludes it. Evidence of character is excluded in such cases, not because it has no probative value in logic, but for other reasons. It is the policy of the law that the judge who has to determine questions of fact should not base his conclusions on the character of the parties as an aid in determining the probability of their having acted in a certain way. In civil cases, one can state that character is excluded for reasons of convenience, but, in criminal cases, there is the additional consideration of prejudice.

Section 53 and 54-Principle.-Evidence of good character is, however, allowed to be given in criminal cases on grounds of humanity for the purpose of raising a presumption of innocence, and as tending to explain conduct4. But evidence of bad character is, in general, excluded as being too remote5, and as tending to prejudice the accused (as stated above). Guilt must be established by proof of the facts with which the accused is charged, and not by presumptions to be raised from the character which he bears6.

This is the general rule. The exceptions to this general rule are, first, where the character is itself a fact in issue, as distinguished from cases where evidence of character is tendered in support of some other issue. Being a fact in issue, it must necessarily be provided for. Secondly, where the accused has, by giving evidence of good character, challenged an enquiry, it is as fair that such evidence, like any other should be open to rebuttal, as it is unjust that he should have the advantage of a character which, in point of facts, is underserved. Both these exceptions are, in substance, incorporated in section 54 though they do not appear in the form of "Exceptions".

Common law rule.-This position has come to be established only after some fluctuations. Thus, in England, previously, the prosecution used to attack the prisoner's character without reserve.7 But, since the last decade of the seventeenth century8, the common law rule has been that the prosecution can tender evidence of the bad character of the prisoner only when he has set up his good character, and thus offered a challenge to the prosecution (unless bad character is a fact in issue)9-10.

No change needed in section 53.-The above discussion does not disclose any need for amending section 53, which permits evidence to be given of good character.

Section 54-Evidence of Character relevant under other sections.-Even in regard to section 54, there is no need to disturb the substance. But some points of detail may be mentioned. A Bombay case holds11 that if evidence is relevant under section 14 or section 15, it is not inadmissible merely because it might show previous misconduct. In other words, section 54 would not control the independent operation of other sections. Reference was made by the High Court to the English case of Harries,12-a decision of the House of Lords, wherein it was held that acts by way of similar transactions in the past are admissible, to show intention or to rebut a possible defence of the act being accidental.

The High court also pointed out that as the House of Lord was dealing with English, law, a discretion in the court to reject such evidence was recognised, but it was doubtful whether, under the Indian Evidence Act, where any evidence is relevant and satisfies the conditions laid down in the various section, the court can possibly exclude it only on the ground that it may deepen the suspicion against the accused. We agree with the view taken by the Bombay High Court. The point does not, however, involve any amendment of section 54, and is really relatable to the interpretation of the scope of sections 13-14.

Ambiguity of the words "unless evidence has been given...."-There is, however, a verbal point concerning section 54, which should be considered. It arises out of the words "unless evidence has been given that he has a good character", which occur in the section which permitting evidence of bad character in such cases These words could be regarded as ambiguous. They may be taken-(i) as confined to the evidence of good character given directly by witnesses for the defence, or (ii) as also covering evidence of good character elicited in cross-examination from the witnesses for the prosecution13 The first is a narrower view than the second.

The scope of the section should be made clear in this regard. It appears to us that the wider view should be adopted. In other words, evidence in rebuttal should be permissible even as regards answers elicited in cross-examination, which tend to show the good character of the accused. Justice requires that if statements are elicited in the cross-examination of prosecution witnesse.- that is to say, where, in such cross-examination, evidence of good character of the accused has been give.- the case should be regarded as falling within the excluding words "unless evidence has been given that he has a good character", in section 54.

Recommendation to amend section 54.-We recommend that the section should be amended for the purpose. The object could be achieved by adding, after the words "unless evidence has been given that he has a good character", the words "Whether through witnesses for the defence or through cross-examination of witnesses for the prosecution or in any other manner".

1. R. v. Kartick, 1887 ILR 14 Cal 721 (727) (FB).

2. Roshun v. R., 1880 ILR 5 Cal 768.

3. Stephen's General View of the Criminal Law of England, pp. 309, 310.

4. Taylor Evidence, section 352; Stephen's General View of the Criminal Law of England, pp. 311, 312.

5. Stephen's General View of the Criminal Law of England, pp. 302, 310.

6. (a) R. v. Tuber field, 10 Cox 1;

(b) Amrita v. R., 1915 ILR 42 Cal 957.

7. See R.N. Gooderson Is the Prisoner's Character Indivisible, (1953) 11 Cambridge p 377.

8. (a) R. v. Harrison, (1962) 12 St Tr 833 (864). (b) See also R. v. Hampden, (1894) 9 St Tr 1053 (1103).

9. E.g. Makin's case, 1894 AC 57.

10. See generally, Stone in 51 LQR 443 (460), and in 58 LQR 369 (372, 380).

11. Lakshmandas v. State, AIR 1968 Bom 400 (422) (DB) (reviews case law).

12. Harries v. D.P.P., (1952) 1 All ER 1044 (HL) which followed the principle in Makin's case, 1894 AC 57.

13. Woodroffe and Amir Ali Evidence, (1958), Vol. 2, p. 727.

Section 55

Section 55-Character as affecting damages-Principle.-So far, the sections dealing with character were concerned with the principal issues, i.e., issues concerning the facts on which the existence of liability depends. Character may, however, affect the quantum of relief also. Under section 55, in civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is, therefore, relevant. The principle underlying this part of the section is that in suits in which the damages are claimed, the amount of damages is itself a fact in issue, being concerned with the "extent" of the liability.

Section 55, Explanation.-The above comment relates to the main parts of section 55. The section also contains an Explanatio.- entirely unconnected with the main paragrap.- which provides that in sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but, except as provided is section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.

The Explanation really serves all the sections dealing with character. The Explanation has the effect of (i) including both reputation and disposition within the expression "character", but (ii) excluding particular acts by which reputation or disposition were shown, except as provided in section 54. The last mentioned refinement became necessary because, by section 54, in certain cases, a previous convictio.- which is really a particular fact showing characte.- becomes relevant.

Section 55 and evidence of character in libel action.-As to libel actions, our recommendations is that in a suit for damages for defamation for injury to the reputation of a person, evidence of character should relate to that aspect of that person's character to which the libel relates. This is in furtherance of our approach to section 12.1

1. See discussion as to section 12.