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Report No. 69

7.51. Scientific evidenc.- Tape records.-

In fact, the potentiality of section 7 as regards scientific evidence is vast. Dealing with recorded tapes, the Supreme Court has held that the imprint on the magnetic tape is the direct effect of the relevant sounds, and, like all photographs of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and admissible under section.-though, of course, the evidence must be received with caution1. This aspect was also brought out in a Punjab case.2

1. Yusufulli v. State, AIR 1968 SC 147 (149), para. 5.

2. Dial Singh v. Rajpal, AIR 1969 Punj 350 (351), para. 4.5.

7.52. Utility of section 7.-

The utility of section 7 was demonstrated in a Saurashtra case.1 The accused was a Clerk in the office of the Chief Minister, and his duty was to receive remittances addressed to the Chief Minister's Office towards the Scarcity Relief Fund and send them to the Treasury or hand them over to a superior officer. A particular amount, which had been received from an overseas donor, was not so credited, and the superior officer of the accused wrote two letters to the overseas donor for particulars relating to the remittance. The accused was himself entrusted with posting these letters. When no reply was received, the superior officer wrote to the overseas donor another letter, which was despatched by a different Clerk, and a reply was received in due course.

On the prosecution of the accused under section 409 of the Indian Penal Code for breach of trust, the letter received in reply was given in evidence for the prosecution. It was held that, although the contents of the letter could not be received against the accused under section 32, because there was no proof that the writer of the letter was the same person as the overseas donor, yet the letter was admissible under sections 7 and n, to prove the fact that when letters were given to the accused for despatch, no reply was received from the addressee, while a reply purporting to be from the same addressee was received when the letter was given to despatch to some other person, thus leading to the inference that the accused had suppressed the letters entrusted to him.

1. AIR 1955 Saurashtra 68 (70).

7.53. Conclusion.- The above discussion reveals no need for change in the section.

Section 8

7.54. Motive preparation and previous or subsequent conduct.-

According to section 8, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any proceeding ate also relevant under the section, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

According to the first Explanation to the section, the word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this Explanation is not to affect the relevancy of statements under any other section of this Act. According to the second Explanation, when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

7.55. Illustration.-

There are eleven illustrations.

According to illustrations (a), if A is tried for the murder of B, the facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

Illustration (b) takes the case where A sues B upon a bond for the payment of money. B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made. B required money for a particular purpose, is relevant. A criminal trial is presented in illustration (c). A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. In illustration (d), the question is, whether a certain document is the Will of A. The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged Will related; that he consulted vakils in reference to making the Will, and that he caused drafts of other Wills to be prepared, of which he did not approve, are relevant.

According to illustration (e), where A is accused of .a crime, the facts that, either before, or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. According to illustration (f), where the question is, whether A robbed B, the facts that, after B was robbed, C said in A's presenc.- "the police are coming to look for the man who robbed B," and that immediately afterwards A ran away, are relevant.

Where the question is, whether A owes B rupees 10,000, then, according to illustration (g), the facts that A asked C to lend him money, and that D said to C in A's presence and hearin.- "I advise you not to trust A, for he owes B 10,000 rupees," and that A went away without making any answer, are relevant facts. In illustration (h), the question is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter, are relevant. In illustration (i), A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. Illustration (j) deals with rape. 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. The same aspects are illustrated in illustration (k). The question is, whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that he said that he had been robbed, without making any complaint, 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.

7.56. Section 8 and section 7.-

This section is, in a sense, an amplification of section 7. One of the facts relevant under section 7 is 'cause', and another fact so relevant is 'effect'. Motive, which is relevant under section 8, may be described as the psychological cause of the act which is done with the motive. Similarly, conduct which is influenced by a fact (section 8) is, in a sense, the effect of that fact (section 7).

7.57. Classes of relevant facts under section 8.-

The classes of facts which become relevant under section 8 fall into three broad groups, namely, (a) facts showing motive, (b) facts showing preparation, and (c) facts showing conduct-in each case, it being necessary that some connection between the fact sought to be brought under section 8 and some other fact already in issue or relevant, is established.

7.57A. Motive.-

As to motive, as the etymology of the word indicates, a motive is, strictly, that which moves or influences the mind. It has been said that an action without a motive would be an effect without a cause; the particulars of external situation and conduct will, in general, correctly denote the motive for the criminal action. Statements accompanying acts are often necessary to show the animus of the action.

7.58. Motive-a fact in issue.-

In some cases, motive may have an importance of its own, being an ingredient of the crime or tort-e.g., motive on a privileged occasion in relation to defamation. When motive is such an ingredient, it is not merely a relevant fact, but is a part of the "fact in issue" as defined in the Act1, because on motive depends the existence of the liability in such cases. Then, there may be cases where motive may affect the extent of the liability, and is, therefore, a fact in issue.

In all these cases, evidence of motive can be given under section 5, and rectiurse to section 8 is not needed. However, even where section 5 does not apply, motive may be relevant under section 8. It has been said2 that the section embodies, in a statutory form, the rule of evidence that the testimony of res, gestae is always allowable when it goes to the root of the matter concerning the commission of the crime.

1. See section 3, definition of "fact in issue".

2. Kalijiban v. Emperor, AIR 1936 Cal 316 (318): ILK 63 Cal 1015.

7.59. Importance of motive and preparation explained.-

In a consideration of the cause or occasion of a fact, or the state of things under which it happened, nothing can be more material than to know whether any person had an interest in its happening, or took any measures calculated to bring it about. For this reason, motive and preparation become of the utmost importance. If A is found murdered, the fact that B had a strong motive for wishing A dead is, so far as it goes, a piece of evidence against B. So, if A is poisoned with arsenic, the fact that B, shortly before, procured arsenic, or made arrangements by which he would have access to A's food, points, in a measure, to B being the poisoner, and would be relevant fact at his trial1.

1. Cunningham, pp. 93-94, cited by Woodroffe Evidence, (1941), commentary on section 8.

7.60. Preparation.-

Preparation is also relevant, it being obviously important in the consideration of the question whether a man did a particular act or not; to know whether he took any measures calculated to bring it about premeditated action must necessarily be preceded not only by impelling motives, but also by appropriate preparations.1 The existence of a design or plan is usually employed evidentially to indicate the subsequent doing of the act planned or designed.

It may be mentioned that, as a matter of law, a preparation for committing an offence is different from an attempt to commit it. The sufficiency of the actus reus of attempt is a question of law which has led to some difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. However, the distinction is, to quote the Supreme Court:2

"The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a 'direct movement' towards commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt."

1. See the case of Patch, cited in Stephen, Introduction to sections 99-106.

2. Malkiat Singh v. State of Punjab, (1969) 1 SCR 157 (Ramaswami, J.).

Indian Evidence Act, 1872 Back

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