A Police officer[IO] submitted several documents with his Report, but at trial, prosecution failed to identify any document or to mark as Court Exhibit- Explain consequences with the help of law

Advocate

A Police officer[IO] submitted several documents with his Report, but at the time of trial, the prosecution failed to identify any document or to mark as Court Exhibit- Explain the consequences with the help of law.

Police and Reporting Documents

Under section 3 of Indian Evidence Act, ”Evidence” can be both oral and documentary and electronic form. Section 22A has been inserted into the Evidence Act to provide for the relevancy of oral evidence regarding the contents of electronic records. Sections 65A and 65B are introduced to the Evidence Act under the Second Schedule to the IT Act, 2000. Section 5 of the Evidence Act provides that evidence can be given regarding only facts that are at issue or of relevance. Section 136 empowers a judge to decide on the admissibility of the evidence. 

As per Section 173(5) of Cr.P.C., the police officer is required to send to the court only those documents on which the prosecution proposes to rely and only those statements of witnesses whom the prosecution proposes to examine. Moreover, under Section 173(6) of Cr.P.C., the police officer can request the court to exclude certain statements or their parts from the copies to be given to the accused person by the court, for the reasons mentioned in that section.

Section 207 of Cr.P.C. describes copies of what documents or statements have to be given to the accused persons. Basically, these include the charge- sheet, the F.I.R., statements of witnesses, confessions and other documents of investigation on which the prosecution proposes to rely. While giving the documents to the accused, the court may not give copies of those statements for which the police officer has made a request under above-mentioned Section 173(6); however, the court may decide to give copies of such statements also if it considers necessary.

The accused has a statutory right of confronting the witnesses with the statements recorded under Sections 161 and 164 of the Code. The accused has statutory right of confronting the expert witnesses too with their opinions.

The words all documents or relevant extracts thereof, on which the prosecution proposes to rely will cover not only the opinion, but also the ground or the reasons for such an opinion given by the State expert i.e. Handwriting Expert, Ballistic Expert, Serologist Report, etc. The expert has to be examined and he would have to state before the Court his grounds for such an opinion. Those grounds should be supplied to the accused if they are sent by him to the Investigating Officer, and that would be in the nature of a statement obtained from him, as if it were under Section 162 of the Cr.P.C.

Again a public document can be proved in terms of Sections 76 to 78 of the Evidence Act. A public document can be proved otherwise also. A map or sketch of the scene of offence prepared by a Circle Officer on the basis of the Panchnama of the scene of offence and the statements of the witnesses has got to be proved like any other document in accordance with the provisions of the Evidence Act. It cannot be straightway admitted in evidence on the premise of being a public document.

The real issue arises when a dispute is raised regarding the proof of a document or admissibility of a document in evidence which is tendered along with a list of documents or along with an affidavit in lieu of examination-in-chief.  The decision of the Apex Court in the case of Bipin Shantilal Panchal vs. State of Gujarat & Anr., 2001 Cr.L.J 1254

“12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different  view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-mouled to give way for better substitutes which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.

14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

15. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.” 

In Shalimar Chemical Works vs Surendra Oil, (2010) 8 SCC 423 the plaintiff filed photocopies of a document which the trial judge marked subject to proof and admissibility. The Supreme Court faulted this procedure holding that he should have declined to exhibit it as well as shouldn’t have left its admissibility open and hanging.

Exhibition of Documents

The provisions of Delhi High Court (Original Side) Rules 1967 . Chapter XIII Rule 3 provides for documents admitted in evidence being numbered in such manner as the Court may direct……

…..There is an Original Side Practice Direction (No. 3 of 1974) which vide paras 6 and 7 provides….. A bare reading of this Practice Direction shows that it is not artistically drafted ‘Proved’ as used in para 6, is nothing else except used loosely for ‘put in’ ‘produced’ or ‘tendered’. After all the question of proof is not answered by the Court during the statement of witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement by the Court Master of exhibit number on a document is ‘admission in evidence’ and not proof of a document…… Every Court is free to regulate its own affairs within the framework of law. Chapter XIII Rule 3 above said contemplates documents admitted in evidence being numbered in such manner as the Court may direct.

The practice in the Subordinate Criminal Courts is that a document, which is tendered by a party and is admitted in evidence by the court, is marked exhibit number (i) if it is admitted by the opposite party, or (ii) its formal proof has been dispensed with by the opposite party affected by it, or (iii) it is certified copies of public document or otherwise admissible in evidence like certified copies issued under Bankers’ Books Evidence Act 1891, or (iv) is 30 years old document or (v) it has been proved by judicial evidence in accordance with the provisions of Indian Evidence Act. Sometimes the trial court also put exhibit number with note ‘objected’ by counsel or defendant (the affected party) or writing note ‘subject to objection’ or ‘subject to objection of the counsel’ for the party affected by the document. The exhibit number put on a document signifies its acceptance and admissibility in evidence and also that it has been proved by judicial evidence or otherwise and that it will be read in evidence. Writing of words ‘objected’ by opposite party or ‘subject to objection’ by opposite party indicates that the question of admissibility is kept open to be decided later or at the time of hearing of final arguments and the marking of exhibit is only provisional or tentative.

In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the Trial. In Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. the Supreme Court has laid down that mere marking of an exhibit does not dispense with the proof of the document. All those document which are not proved in the view of the court by judicial evidence are simply to be marked for the purpose of their identification. Courts should be careful to distinguish between mere production of documents and their ‘admission in evidence’ after being either ‘admitted’ by the opposite party or ‘Proved’ according to law. When documents are ‘produced’ by the parties, they are only temporarily placed on the record subject to their being ‘admitted in evidence’ in due course. Only documents which are duly ‘admitted in evidence’ form a part of the record, while the rest must be, returned to the parties producing them. Every document ‘admitted in evidence’ must be endorsed and signed or initialled by the Judge in the manner required  by law and marked with an Exhibit number. 

In Baldeo Sahai v. Ram Chander and Ors. AIR (1931) Lahore 546 it was held:

“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents are proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are returned to the party who produced them with an endorsement therein to that effect.”

Prosecution exhibits shall be marked as Exhibit P-1, P-2 etc in seriatim. Similarly, defence exhibits shall be marked as Exhibit D-1, D- 2, etc in seriatim. The Court exhibit shall be marked as Exhibit C-1, C- 2, etc in seriatim. Marking of confessional statements.- The Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number.

Objection on Exhibition

Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.

In Abdul Rahaman Kunji Vs. The State of West Bengal, [MANU/WB/0828/2014],the Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication.

Prosecution witness failed to identify document/s

The function of a Court, whether a civil court or a criminal court, is to decide whether a certain fact is proved or not. A criminal court has to decide whether the commission of the offence by the accused is proved. A fact is said to be proved, vide section 3 of the Evidence Act, “when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists”.

Prakash Chandra v. State of U.P., AIR 1960 SC 195 at p. 197 observed:-

“decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must result in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters.”

If an eye-witness is examined and there is another, he may be examined to corroborate him, but the law does not compel this; on the other hand Section 134 clearly lays down that “no particular number of witnesses shall in any case be required for the proof of any fact.”

In Rameshwar v. State, Criminal Appeal Wo. 386 of 1959, decided on 16-12-1959 (All), Mulla, J., said:-

“It has been held uniformly without any dissension on the point that the evidence of identification in order to create confidence must be consistent throughout and if that evidence is not consistent it is not reliable and it has to be discarded. The reason is that the evidence of identification is a weak type of evidence and a man of prudence wants a reasonable assurance that the evidence of identification is dependable before it is accepted….

………… Any witness who is not produced before the committing Magistrate unless there are very good reasons for such non-production, cannot be acceptable as a reliable witness, if he is examined for the first time before the trial Court. …………

in order to create an assurance in the mind of the court a witness should also be produced before the Magistrate in order to satisfy a court that his identification is dependable.”

If prosecution a witness failed to identify a Document tendered by the Police should not be Marked as Exhibit or admitted for Evidence or marked as proved against the accused person/s.

Example of Police documents produced with Reports

Death while in police custody

In case of death of a person in police action [under Section 46 Criminal
Procedure Code, 1973(“Cr.PC”) or Sections 129 to 131 Cr.PC] or death
while in police custody, the magistrate or the Investigating Officer as the case
may be, shall inform the hospital or doctor in charge to arrange for photographs
or videography for conducting the post-mortem examination of the deceased.
The photographs of the deceased shall also be arranged to be taken in all cases.

ii. Such photograph and video graphs shall be taken either by arranging a police
photographer or a nominated photographer of the State Government, and where
neither of the above are available, an independent or private photographer shall
be engaged.

iii. Such photographs or video graphs shall be seized under a panchnama or
seizure memo and all steps taken to ensure proper proof of such
photographs/video graphs during Trial.

A site plan

i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama.
ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose
a. the place of occurrence,
b. the place where the body (or bodies) was / were found,
c. the place where material exhibits and/or weapons,
d. blood stains and/or body fluids had fallen,
e. the place where bullet shells, if any, were found or have caused impact,
f. the source of light, if any and
g. adjoining natural and man-made structures or features such as walls, pits, fences, trees/bushes, if any and
h. elevation of structures and their location.

The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects – all are to be identified by the witness , on failure the document shall not be part of Court record and the Court would not consider it to prove a prosecution case – Consequence is acquittal of the accused person.


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