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Report No. 69

I. Provision Permitting Evidence

8.98. Provision permitting evidence.-

The section declares, as relevant, facts "showing the existence of any state of mind, state or body or bodily feeling". A few examples of the stale of mind are given in the section, we need not quote them again.

8.99. Difficulty of application.-

The provisions of the section are simple in form, but not always easy to apply.

In Srinivasmal's case1for example, A was a salt agent and B was his employee. A was entrusted with the duty of allotting appropriate quantity of salt to each retail dealer. B was convicted of having sold salt to certain dealers, at a price exceeding the statutory maximum. A was convicted of abetting B in this offence. It appears that the statutory maximum was circumvented in the following manner. The lawful price was paid to another employee of A, and the excess charged was paid to B. The argument of the defence was that the excess paid to B went into B'S pocket, and did not form part of the purchase price.

At the trial, evidence was given by several dealers who spoke of other transactions (not the subject matter of the present proceeding), with the accused, shortly before and after the period covered by the offence. The evidence showed that the accused A knew of the illegal transactions of B, but connived at them. The Privy Council held that this evidence was relevant, both on the charge for the principal offence and on the charge of abetting. The evidence was relevant to the charge of abetting, because it showed an intention to aid the commission of an offence and an intentional omission to put a stop to an illegal practice.

1 Srinivasmal v. Emperor, AIR 1947 PC 135.

8.100. The facts in another case which went upto the Privy Council1 are also interesting. At the trial of the appellants for the murder of Karnail Singh, the approver gave evidence that he and the appellants had murdered Bhan Singh a few days before the murder of Karnail Singh, and that they proposed to conceal the murder of Bhan Singh by causing injuries to Karnail Singh and getting themselves arrested for so doing. That is to say, the evidence of the approver was that the motive, or at any rate one of the motives, for the injuries caused to Kamail Singh was a desire, to conceal the murder of ahan Singh.

The Privy Council observed: The suggested motive is, no doubt, a singular one, but however improbable an alleged motive may be, the prosecution is entitled to call evidence in support of it, and none the less so because such evidence may suggest that the accused has committed some crime other than that with which he is charged [see illustration (a) to section 81, Evidence Act].

1. Natha Singh v. Emp., AIR 1946 PC 187 (189).

8.101. It may be noted that in this case, if evidence that the appellants had murdered Bhan Singh had been given with a view to showing that they were persons likely to have committed murder of Karnail Singh, the evidence would have been inadmissible, but it was admissible to establish the motive for the murder with which they were charged now.

8.102. To some degree, of course, the intentions of parties to a wrongful act must be judged by the event.1 The presumption of intention depends upon the facts of each particular case.2 A guilty knowledge is not usually a matter on which direct evidence can be afforded. It is a matter of conscience, and it is connected with the secret motives of a man's conduct; it must be inferred from facts.3

1. R. v. Gookeel, (1866) 5 WR Cr 33 (38).

2. R. v. Gora, (1866) 5 WR Cr 45 (46).

3. R. v. Shurfuffooddeen, (1870) 13 WR Cr 26.

8.103. Principle as to intent.-

Intention may thus be presumed from conduct. But the rule that a person is presumed to intend the ordinary and natural consequences of his acts is not taken as one in the nature of a conclusive presumption. As is well-known, this aspect became the subject matter of acute controversy in England, and a decision of the House of Lords1 was taken as holding that there was an irrebuttable presumption of law that a person foresees and intends the natural consequences of his acts. The matter is now settled by a statute, and it is now provide2 as follows in England:

"A court or jury in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."

1. D.P.P. v. Smith, (1960) 3 All England Report 161.

2 Section 8, Criminal Justice Act, 1967 (English).

8.104. In regard to facts relevant under the section, it is to be noted that the application of the section is dependent on an important condition being satisfied. The crucial question to be considered is-Is a state of mind a relevant fact, having regard to the nature of the charge, or cause of action? This question cannot be answered without a reference to the substantive law. In civil proceedings, it would require an examination of the essential ingredients of the cause of action, in order to determine whether, and if so, how far, a mental element is required. Ordinarily, this question will have to be discussed with reference to sections 5 to 12; section 5 deals with facts in issue, sections 6 to 12 deal with other relevant facts.

8.105. Defences to liability.-

In a criminal case, the question or state of mind may assume importance either in a general way, or in a particular manner. In the general way, state of mind may become important if the accused pleads one of the general defences, to criminal liability given in the Indian Penal Code.1 Many of these defences are based on the absence of a criminal state of mind-the factors justifying exemption being such as to affect the freedom of will or the cognitive faculties, or to mitigate the criminality in the particular circumstances of the case.

1. Sections 76 to 106, Indian Penal Code.

8.106. Defences to criminal liability classified.-

Broadly speaking, the various defences to criminal liability could be classified into three main groups, namely, justification, excuse and mistake or ignorance or constraint. Justification is illustrated by the defence of duty to act, judicial duty, justification by law and justification on the basis of an act done to avoid other harm.1 Excuse exists where the harm was inflicted with consent or in good faith for the benefit of the sufferer or was very slight.2 Both the categories of justification and excuse assume that the injurious event is the consequence of the conduct of the individual; but, in the circumstances of the case, the conduct is not criminal, because the mind was innocent.

1. Sections 76 to 79 and 81, Indian Penal Code.

2. Sections 87 to 92, 93 and 95, Indian Penal Code.

8.107. Even where justification or excuse does not apply, innocence may be established on the ground of mistake or ignorance or constraint. Under the category of mistake or ignorance, we can put the defence of insanity-the accused being "incapable of knowing the nature of the act", and the defence of intoxication, as also the defence of mistake of fact.1

1. Sections 87 to 92, 93 and 95, Indian Penal Code.

8.108. Under the category of constraint, we can put the sections of the Penal Code relating to self-defence,1 compulsion by threat2 and the like. In cases of mistake or ignorance or constraint, either the conduct is not voluntary (thus the will is not free), or the consequences are not known, or, if the consequences were known, they were not known to be wrong. To sum up the discussion, in most of the general defences to criminal liability, either the mental element was absent or, though if was apparently present, it was not criminal in the circumstances of the case.

1. Sections 84, 85, 86, 76 and 79, Indian Penal Code.

2. Sections 96 to 106, Indian Penal Code.

8.109. We may illustrate what is stated above. An infant under seven years is free from criminal responsibility, because "he knoweth not of good and evil."

8.110. The Indian law on the subject of infancy as a defence in criminal cases is contained in two sections of the Penal Code.1 Section 82 provides:

"Nothing is an offence which is done by a child under seven years of age" Section 83 of the Penal Code provides:

"Nothing is an offence which is done by a child above seven years of age and under ten who has not attained sufficient degree of maturity of understanding to judge the nature and consequences of his conduct on that occasion."

1. Sections 82-83, Indian Penal Code.

8.111. The immunity for children under seven years is absolute. However, where the accused stands between childhood and maturity, criminal liability depends upon whether or not the accused in fact possessed a guilty state of mind. This principle is the basis of the provisions quoted above.

8.112. The exemption from criminal liability on the ground of mental incapacity, which is to be found in section 84 of that Code, has its foundation in the view that criminal punitive responsibility pre-supposes a basic common frame of reference-a frame of reference shared by the community and the accused. If the accused, by reason of insanity, is unable to think and feel within a frame of reference that is of the vast majority, he ought not to be punished for failing to conform to its demands and rules. That is the general principle underlying the defence of insanity.

8.113. Then, there is the defence of consent or acts done for the benefit of a person. Sections 87, 90 and 91, I.P.C. deal with the subject of consent. The act done is excused, because the sufferer had consented to its being done. In cases of a beneficial act, it is excused because it was done for the benefit of the sufferer. Most of these sections require "good faith", thus involving a determination of a state of mind. Moreover, in so far as they rest on consent, an inquiry into the state of mind of the victim is also needed.

8.114. It is of interest to note what Macaulay1 observed as to consent:

"We conceive the general rule to be that nothing ought to be an offence by reason of any harm which it may cause to a person of ripe age, who, undeceived, has given a free and intelligent consent to suffer that harm or to take the risk of that harm. The restrictions by which the rule is limited affect only cases where human life is concerned."

1. Draft Penal Code, Note B, p. 106 (1837).

8.115. The above discussion deals with the mental element in a general sense. In addition, the state of mind in a particular sense may become relevant. When the statutory definition of a crime makes a particular intent a necessary ingredient, such intent must be proved by the prosecution, and there is no onus on the accused.1-2-3

1. Reg v. Dart, 14 Cox 143.

2. Reg v. Gary, 17 Cox 299.

3. Reg v. Sleep, L and C 44.

8.116. Crucial question-state of mind.-

In this connection, it may be noted that this is not always an easy question to determine. In a Bombay case,1 for example, a serious difference arose, on this very point, between Chandavarkar J. and Jacob J. which had to be resolved by referring the matter to Aston J. In that case, the precise question to be considered was whether, for the offence of keeping a common gambling house under section 4 of the Bombay Prevention of Gambling Act, 1887, a previous conviction under the Act would be relevant. Chandavarkar J. considered it to be relevant on the ground that, since the section uses the word "keeping", it presupposes something habitual, and the previous conviction was, by virtue of explanation 2 to section 14, relevant because the user of a place or keeping it for a particular purpose necessarily connotes the existence of a state of mind-intention to use the place for that purpose and knowledge that it is so used.

To "keep" a common gambling house is, according to Chandavarkar J., to hold the house and manage it with the intention of using it as such habitually. To prove knowledge or intention and habitual course of dealing with the house or place, previous convictions are relevant under section 14.

With this view, Aston J. agreed, but, according to Jacob J. the relevance of such previous convictions would be excluded by the terms of the first Explanation to section 14 read with illustration (p) to the section, and he did not regard the offence charged in the case as concerned with any such states or conditions as are specified in section 14 of the Evidence Act.

1. Emperor v. Allomiya, 1904 ILR 28 Born 129 (135, 143, 151) (FB).

8.117. A recent Supreme Court case,1 though it did not relate to section 14, illustrates how difficult it is to determine whether or not a mental state is an ingredient of an offence. In that case, construction of sections 9 and 10 of the Opium Act, 1878 was in issue. Those sections read as follows:-

"9. Any person who, in contravention of this Act, or of rules made and notified under section 5 or section.-(a) possesses opium, or (b) transports opium, or (c) omits to warehouse opium or removes or does any act in respect of warehouse opium and any person who otherwise contravenes any such rule, shall, on conviction before a magistrate, be punishable for each such offence with imprisonment which may extend to three years, with or without fine: and where a fine is imposed, the convicting magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced.

10. In prosecutions under section 9, it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act."

1. Inder Sain v. State of Punjab, (1974) 1 SCR 215: AIR 173 SC 2309.

8.118. After a review of the English cases and Indian cases on the subject of possession, the Supreme Court1 held, in the first place, that by reason of section 10 of the Opium Act, the prosecution need not prove conscious possession before it could resort to the presumption in section 10; secondly, however, it does not follow from this proposition that the word "possessed" in section 9 did not connote conscious possession. The Supreme Court observed-

"Knowledge is an essential ingredient of the offence as the word 'possess' connotes, in the context of section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession."

1. Mathew and Dua, JJ.

8.119. The conviction was, however, confirmed on the facts.

8.120. Requirement of intent implied.-

Even where there is no such provision as to intent, in a statute, the court might hold one to be implied. In Sweet v. Parsley, (1969) 1 All ER 347 (per Lord Reid), 357 (per Lord Pearce), 362 (per Lord Diplock)., for example the House of Lords seems to agree with a doctrine developed in Australia1-

"When a statutory prohibition is cast in terms which at first sight appear to impose strict responsibility, they should be understood merely as imposing responsibility for negligence but emphasising that the burden of rebutting negligence by affirmative proof of reasonable mistake rests upon the defendant."

1. (a) Maher v. Musson, (1934) 52 CLR 100.

(b) Proudman v. Dayman, (1941) 67 CLR 536.

8.121. Thus, the most important question that arises in each case where section 14 is sought to be invoked is-Is the charge or cause of action such that a state of mind is a relevant fact?

8.122. Use of facts relevant as showing state of mind.-

It should be noted that evidence under this section is not admissible when the case depends on the proof of actual facts and not upon the state of mind.1 In a Mysore case,2 Hegde J. pointed out-

"The principle on which evidence of similar acts is admissible is not to show (that) because the accused has committed already some crimes, he would therefore be likely to commit another, but to establish the animus of the act for which he is charged and rebut, by anticipation, the defence of ignorance, accident, mistake, or innocent state of mind. In this case (under section 477A, I.P.C.-falsification of accounts,) it is not sufficient for the prosecution to prove that the entries which are subject matter of the second charge are wrong entries and that they were made by the accused: the prosecution must so further and prove that those entries are false entries and the accused made those entries wilfully and with intent to defraud the State.

Therefore, the prosecution can prove similar instances to prove that the accused made the entries in question wilfully and with intent to defraud the State. Those instances can also be proved to rebut the accused's plea that he innocently made those entries at the behest of his superiors. But that evidence cannot be used to show that the accused was guilty of temporary misappropriations in past or to probabilise the charge levelled against him by proving his past bad conduct, if any. To the extent the trial Court has relied on that evidence in support of its finding that the accused was now and then temporarily misappropriating certain sums of money in the Treasury, the finding in question is vitiated."

1. Gokul v. R., (1924) 29 CWN 483.

2. Krishna Murthy v. Abdul Subhan, AIR 1965 Mys 128 (133), para. 8.

Indian Evidence Act, 1872 Back

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