Report No. 69
8.163. Similar facts.-
Evidence of similar facts may have probative value. Nevertheless, the policy of the law is that in general all evidence tending to show a disposition towards a particular crime must be excluded, unless a specific justification is available-in the present case, the justification is that it tends to rebut a defence otherwise open to the person charged. It may be noted that in the case of Brides in the Bath, the prisoner Smith raised the defence that his wife had died in a fit-these were the words used in the telegram to the uncle after the death, and the prisoner even quoted the doctor as saying that his wife had fit in the bath.
However, it so happened that some person who read in the newspapers about the circumstances of her death had noted the similarity between this death and another death, and informed the police about it. This put the police on the track. The theory of natural death was disproved, because, if the girl had died a natural death in the bath, she would have dropped the soap. As it was, she was killed suddenly, her hand had immediately stiffened and she held on to the soap which she was using. This point was used by Dr. Spilsbury to show that the death was not accidental. The siimilarity of this incident and other incidents in which the accused was involved, also rebutted the theory of accidental death.
8.164. It may be stated that not only the mode of committing the murder, but also the defences advanced by the accused, or rather the false defences advanced, were similar. He would pretend that at the time of the death, he was out ,for purchasing fish or tomatoes or eggs. The landlady would tell the woman that the path was ready. Then she would hear someone go upstairs, and the sound of splashing in the bath-room, the noise of someone putting hands against the side of the bath and the long-drawn sign would be heard.
8.165. The evidence of similar facts is not admissible where its only effect is to show that a person is of general bad character or good character and therefore likely to have behaved in the way alleged. But such evidence is admissible to show his intention or knowledge, and the fact that it incidentally reveals good or bad character does not make it inadmissible. That is the general principle on which section 15 is based.
8.166. Comparison between sections 14 and 15.-
Section 15 is a specific application of the principle of section 14. Compared with section 14, section 15 has, however, a narrower application. In the first place, while any state of mind brings section 14 into operation (apart from a state of body or bodily feeling), section 15 is confined to the specified states of mind. Secondly, any kind of evidence can become relevant under section 14, subject, of course, to the other requirements of section while section 15 concentrates on evidence of similar facts. The similarity makes the probability of an innocent explanation so remote that the law provides that the evidence ought to be received.
8.167. Similar facts.-
Similar facts or acts may have been committed before1 or after the offence2 charged. But they must be similar transactions which do not merely tend to show a general criminal disposition, but show an intention which is relevant in the particular case.
1. (a) R. v. Mason, (1914) 10 Cri App R 169; (b) R. v. Armstrong, (1922) 2 KB 555.
2. Cf. the Brides in the Bath case.
8.168. Two situations covered by section 15.-
It should be pointed out that there are two kinds of cases which fall within section 15. In the first place, the section may come into operation where the question is whether an act was accidental or intentional. In the second place, the section may come into operation where the question is whether an act was done with a particular intention or knowledge. In the first case, the defence that is taken by the person charged would be that there was no intention at all, while, in the second case, the defence would be that a particular intention or knowledge was absent.
The basis of admissibility of the evidence on the issue of accident is the improbability of the coincidence of many identical or similar accidents. As was observed in R. v. Sims, 1946 KB 531 (537) "a series of acts with the same characteristics is unlikely to be produced by accident or inadvertance". In the second case, on the other hand, the relevance of the evidence in question on the issue of a particular intention or knowledge is to show not only, the existence of a state of mind in the abstract, but also the existence of a particula state of mind.
8.169. Same transaction not necessary.-
The words of the section, as well as the language of illustration (a), show that it is not necessary that all the act should form parts of one transaction. But it is necessary that such acts should form parts of a series of similar occurrences, and also-as the opening words require-that "there is a question whether an act was accidental or intentional a done with a particular knowledge or intention."1
This section, as already stated, is an application of a rule laid down in section 14 to a particular set of circumstances. It will always be a matter of decision of the Court whether there is a sufficient and reasonable connection between the fact to be proved and the evidentiary fact. If there is no common link, they cannot form a series2 as observed by Norton.
(a) Stephen Digest, Article 12; and
(b) S. v. Debendra, 1909 ILR 36 Cal 573 (PC).
2. Norton Evidence, 140, cited in Woodroffe.
The illustrations to the section are important Illustration (a) is founded on an English case :1 The authority of this case, doubted by Stephen,2 but the principle of the illustration seems to have been approved in a Bombay case,3 and in a Calcutta case.4
In Queen-Empress v. Vajiram, ILR 16 Bom 414, Telang J., observed:
"And, further, I may point out that in India we have what may be called a legislative approval of the decision of Willes, J., for illustration (a) to section 15 of the Evidence Act is really a statement of the case of Reg. v Gray, 4 F&F 343.
1. R. v. Grey, 4 F&F 1102 (see infra).
2. Stephen's Digest, Article 12, Note.
3. R v. Vajiram, ILR 16 Born 433 (see infra).
4. R. v. Devendra, 1909 ILR 36 Cal 573.
8.171. Illustration (b) to section 15 is, in principle, identical with the English-case of Reg. v. Richardson, ILR 16 Bom 414 (433) par Telang J.), the only difference being that the English case was on of swelling debits, and the illustration is a case of reducing credits.1 It is well established2 that the gist of the section is that, unless there is a sufficient and reasonable connection between the fact to be proved and the evidentiary fact that is, unless, there is in substance some common link, they cannot form a series.3
Illustration (c) is comparable to section 14, illustration (b). The presumption in both the cases is the same. In section 14, the illustration refers to possession, while, in section 15, the illustration refers to delivery.
1. Q.E. v. Vajiram, ILR 16 Born 414 (433) (par Telang J.).
2. Emperor v. Panchu Das, AIR 1920 Cal 500; Stephen's Digest, Article 12, p. 20.
3. Emp. v. Panchu Das, AIR 1920 Cal 500.
8.172. Caution to be exercised.-
In general, it may be stated that the caution to be exercised in applying section 14 should also be exercised in applying section 15. It is only when there is a question whether the act (now under consideration) was accidental or intentional, or done with a particular knowledge or intention, that the section applies. In particular, what is relevant under section 15-the fact that an act formed part of a series of such occurrences in each of which the person doing the act was concerned-is so relevant only to show that the act now under consideration was not accidental but intentional, or that it was done with a particular knowledge or intention. While discussing section 14,1 we have pointed out that the application of that section is dependent on an important condition, and also that the use of that section is subject to a restriction. The same comments apply in relation to section 15 also.
1. See discussion as to section 14, supra.
8.173. Difficulty of applying.-
The section is, therefore, not an easy one to apply. The difficulty of applying the section is illustrated by a Calcutta case,1 where, on a charge involving thefts from rich prostitutes, certain facts were sought to be given to establish that A and B had, in several instances, taken part in thefts from rich prostitutes in a series of incidents from 1914 to 1918, and that they had lived together and had transactions together, that a system had been followed by them and that they used to go about together under different names and had associated together with the evil motive of committing such thefts. By a majority judgment, the evidence was held to be inadmissible under section 14 or under section 15, there being no question involved of a criminal object.
1. R. v. Panchu, 1920 ILR 47 Cal 671.
8.174. With this case, we may contrast a Bombay case.1 The accused was a shopkeeper at Bhiwani, and used to get goods by lorries from Bombay through the limits of the Kalyan Municipality. The lorry-driver, instead of paying octroi duty on the goods at Kalyan, rapidly drove past at the octroi post of the Kalyan Municipality. The accused was prosecuted under section 77(2) of the Bombay District Municipal Act, 1901, for introducing the goods within the octroi limits without paying the octroi dues, in three instances in August and September, 1923. The accused was convicted and was sentenced to pay a fine of Rs. 15 or, in default, to undergo simple imprisonment for 7 days, by the trial court. The trial court admitted, as evidence, the similar complaints which were made against the accused in the year 1921.
The matter came up before the High Court, on a reference by the Sessions Judge for quashing the conviction of the accused. One of the points for consideration before the High Court related to the admission of evidence of simila complaints of the year 1921. The High Court held that this was admissible to prove the intention of the accused, under sections 14 and 15. Reliance was placed on the summary of law, given in two cases2-3 of the Calcutta High Court, in the following words:-
"In general, whenever it is necessary, to rebut, even by anticipation, the defence of accident, mistake, or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question, may be given."
The conviction of the accused was upheld by the High Court.
1. Emperor v. Harjivan Valji, AIR 1926 Born 231.
1. Amrita La! Hazara v. Emperor, 1915 ILR 42 Cal 957.
2. Emperor v. Panchu Das, 1920 ILR 47 Cal 671.
8.175. Acts of same kind necessary.-
To admit evidence under this head however, the other acts tendered must be of the same specific kind as that in question, and not of a different character, and the acts tendered must also have been proximate in point of time to that in question.1
In Noor Mohomed v. The King's, AIR 1916 Cal 188 (202): ILR 42 Cal 957, the accused was tried before the Court of British Guiana, on a charge of murdering a woman commonly known as Ayesha by poisoning her. Evidence was admitted to show that the accused had earlier murdered another woman-his wife,.-in similar circumstances. It was held that the admission of such evidence was not justified, there being no issue as to whether the act was intentional or accidental.
1. Amrit Lai Hazara v. Emperor, AIR 1916 Cal 188 (202): ILR 42 Cal 957.
8.176. No change needed.-
The above discussion is intended to elucidate various aspects of the section. However, no change in the law is recommended.
8.177. Section 16-Introductory.-
Section 16 provides that when there is a question whether a particular act was done, the existence of any recourse of business according to which it naturally would have been done is a relevant fact Illustration (a) to the section relates to the case where a particular letter was despatched, and provides that the fact that it was the ordinary course of business for all letters put in a certain place to be sent by post, and that that particular letter was put in that place, would be relevant. This corresponds to one of the English cases.1-2 It may also be noted that the Evidence Act, 2 of 1855, sections 50 and 51, to some extent dealt with this situation.
1. Hetherington v. Kemp, (1815) 4 Camp 193: 16 ER 773.
2. See Ningawa v. Bharamanna, 1897 ILR 23 Born 63 (65).
While illustration (a), mentioned above, mainly deals with private business though it is not so confined-illustration (b) is mainly relevant for public business. That illustration provides that where the question is whether a particular letter reached A, the fact that it was posted in due course and was not returned through the dead letter office, is relevant. This illustration may be compared with an English case-Warren v. Warren, (1834) 1 CM&R 250, where Parke B. observed,-
"If a letter is sent by post, it is prima fade proof until the contrary be proved that the party to whom it is addressed received it in due course."1
1. See also British American Telegraph Co. v. Colson, 1871 LR 6 Exch 108.
8.179. Cognate provisions of the Act.-
The matter dealt with by section 16 is usually dealt with in English text-books under the subject of "presumptions". In this connection, we may refer to the observations of the Privy Council in a case decided before the Evidence Act,1 to the effect that "it is reasonable to presume that that which was the ordinary course was pursued in this case."
Reference may also be made to section 32, second clause, where the expression "ordinary course of business" is used, and to section 114, illustration (f), under which the Court may presume that the common course of business has been followed in particular cases. Similar expressions occur in sections 34 and 48. The distinction between section 16 and section 114, illustration (f), is that the former makes the course of business relevant,2 and the latter then empowers the Court to draw a presumption that the course of business was followed in the particular case.
1. Dwarka v. Jankee, (1855) 6 MIA 90 (PC).
2. Cf. Mobarak Ali v. State of Maharashtra, AIR 1975 SC 8.
8.180. Postal business.-
Of course, illustration (b) to section 16 does not deal with the question of the time when the letter may be presumed to have reached the addressee. Stephen, in his Digest,1 has a specific illustration on this point-"A letter is presumed to have arrived at its destination at the time at which it would be delivered in the ordinary course of postal business."2
1. Stephen's Digest, Article 13, illustration (a).
2. Compare Stocken v. Collin, (1841) 7 M&W 515.
8.181. Nor does the section deal with any presumption as to post-mark, on letters as furnishing prima facie evidence that letters were in post at the time and place therein specified.1 As to such matters, the Court is free to draw a suitable presumption, having regard to the facts of each case, under the general provisions in section 114.
1. Compare Stocken v. Collin, (1841) 7 M&W 515.
8.182. Other statutory provision.- section 27, General Clauses Act (Post).-
Besides the Evidence Act, there are other statutory provisions relevant to the subject of "course of business" in relation to post. There is, for example, a rule of construction in section 27 of the General Clauses Act, 1897. It relates to service by post, and consists of two limbs, dealing, respectively with (i) the mode of service, and (ii) the time of service. Under the first part of the section, for the purposes of an Act authorising or requiring a document to be served by post, service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document. This deeming provision, of course, applies unless a different intention appears from the Act under construction. At present, there is no express saving for cases where the contrary is proved; an amendment in this regard has been recommended by us in our Report on this Act.1
1. See 60th Report (General Clauses Act), para. 16.6, et seq.
8.183. Although the presumption under section 27, General Clauses Act, can arise only when the notice is sent by registered post1there may arise a presumption under section 114, Evidence Act, when notice is sent by ordinary post. But the presumption to be drawn under section 114 is not mandatory.
1. Contrast section 26, Interpretation Act, 1889 (English).
8.184. Under the second part of section 27-General Clauses Act, 1897, the service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. This deeming provision applies, unless the contrary is proved, and unless a different intention appears from the context.
8.185. Reference should also be made to section 106 of the Transfer of Property Act, 1882. Under that section, the lessor can determine the lease by a notice tc quit, and one of the modes of service of such notice is sending it by post to the party intended to be bound by it. There are similar provisions in certain other Central Acts.
8.186. Illustrations of various presumptions under section 114, concerning post.-
We have already referred to section 114. A number of presumptions can be drawn by virtue of this section. A few relevant matters concerning letters sent by post may be referred to, by way of illustrations:
(i) In a Calcutta case,1 a notice was sent by a registered letter, the posting of which was proved, and which was produced in Court in the cover in which it was despatched. That cover contained the notice, with an endorsement upon it, purporting to be by an officer of the post office, stating the refusal by the defendant to receive the document served. It was held, having regard to two earlier cases2 and also to section 16, illustration (b), that the notice was sufficiently served.
(ii) In England, the posting of a letter may be proved by showing that it was handed to, or left with, the clerk, whose duty it was in the ordinary course of business, to carry it to the post, and who, though he had no recollection of the particular letter, habitually and invariably took all the letters delivered to him to the post office.3 The position would be substantially similar in India under section 114.
(iii) In England, the post-mark on a letter has been held to be prima facie evidence that the letter was in the post at the time and place therein specified.4 The position in India would be the same under section 114.
(iv) The post-marks on letters are considered as evidence of the dates and places mentioned therein.5
Thus, on the question whether a letter was sent on a given day, the postal mark on it was held to be a relevant fact.6
(v) The possession by a person of a letter with the address torn off prima facie shows that it was addressed to him.7
1. Jogendra Chunder Ghose v. Dwarka Nath Karmoker, 1888 ILR 15 Cal 681 (683) (Pigot & Rampini, JJ.)
2. (a) Papillon v. Bruton, 5 H&N 518. (b) Lootf Ali, 16 WR 223 (Cal).
3. Skilback v. Garbett, 14 LJQB 338: 115 ER 706, discussed in Bank of Bihar v. I.S.D.C. Ltd. (Calcutta), AIR 1960 Cal 475 (476).
4. Fletcher v. Braddy, 1 (3) Stark R 64.
5. R. v. Johnson, 7 East 65.
6. R. v. Cunning, 198 Law Times 370.
7. Cartis v. Richards, 1 M&G 47.
8.187. No change needed.- The above discussion does not disclose any need for amendment of section 16.