Report No. 69
V. Certain Important Aspects of Section 10
7.130. Present section considered.-
We may now proceed to examine certain important aspects of section 10. On an examination of the section in the Evidence Act, the first thing that strikes the reader, is its provision for admitting out of court statements of one person against another. If the conditions given in the section are satisfied, a person becomes subject to a special rule of evidence, namely-the evidence admissible against him may include acts and admissions of another person. This is a departure from the ordinary rule.
7.131. Ordinary rule modified in relation to conspiracies.-
Ordinarily, on the trial of A for an offence other than conspiracy, what B said or wrote to C about A would normally be inadmissible to prove, as against A, the truthfulness of the statement. So, if A, a public officer, is charged with taking bribes from B and C, a letter from B to C stating that A was asking for his monthly cheque and that he wished the matter to be kept confidential would, on the trial of A, be inadmissible to prove the truthfulness of its contents, i.e., that A was taking bribes. The rationale for this is that A cannot cross-examine B and this evidence is, therefore, potentially very dangerous.
But, if A is charged with a conspiracy with B and C to take bribes, then, once "there is reasonable ground to believe in the existence of a conspiracy", the letter would be admissible against A to prove the trueness of its contents.1 However, in England, this exception applies only to acts or statements of any of the conspirators in furtherance of the common design.2 So, if B and C then confessed to the police that A had received bribes from them, that confession would be inadmissible in England to prove that A had conspired with B and C, because the confession would not be in furtherance of the common design.3
1. See R. v. Whitakar, (1914) 10 Cr App R 245.
2. R. v. Blake, (1844) 6 Queen's Bench 126 (115) ER 49.
3. R. v. Pepper, (1921) 16 Cr App R 12.
7.132. Justification for departure from ordinary rule.-
No doubt, there is a justification for this departure from the ordinary rule. That justification is furnished by the identity of interest-the combination to act for on unlawful purpose. In Mirza Akbar's case1, the Privy Council observed:
"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 an 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."
1. Mirza Akbar v. Emperor, AIR 1940 PC 176 (180).
7.133. This approach was approved by the Supreme Court in Sardul Singh's case.1-2 If two or more persons combine to commit an offence, each must share liability for whatever is done by the other in pursuance of the combination.
1. Sardul Singh v. State, AIR 1957 SC 749, paras. 38-42.
2. But see Bhagwan v. State of Maharashtra, AIR 1965 SC 682 (687).
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