Judgment must be based upon facts declared by the Evidence Act to be relevant, and duly proved
When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact(last in the chain) must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion(Judicially contemplated state of mind), either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. [Rule for production of Evidence by parties Sec 136 IEA]
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents(Including lawyers) shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine(independent of regular Cross u/ss 137/145 of IEA) any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this would not authorize any Judge(including High Court) to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. [Judges power in connection with production of Evidence by parties Sec 136 IEA]
Appreciation Of Evidence
After the preliminary groundwork as stated ante, in order to arrive at a just conclusion with regard to the guilt or innocence of the accused, the evidence on record has to be properly and carefully weighed and valued. The evidence adduced may be direct or circumstantial(Indirect). It may present a true picture or a false or distorted one. If it is circumstantial, the chain of circumstances(Circumstantial evidence is different from inferential evidence) may not be quite complete to connect the accused. The oral evidence(it must be direct) may be biased, interested, exaggerated, purchased, perjured, tutored etc. In order to give any weight or value to the evidence, its true nature has first to be appreciated. But, dependent as the oral evidence is, on the variable and inconsistent factors such as human nature, the appreciation thereof can be reduced to a set of Formulae. There can be no can on either for weighing evidence or drawing inference therefrom.
Much of these without fail depend upon the Presiding Officer’s commonsense, knowledge and experience of men and matters as each case presents its own peculiarities. Conflicting versions with seeming realities make the task of appreciation of evidence all the more difficult. The power of judgment is put to hard test. The Presiding Officer has to bring to bear on facts elicited a fair amount of common sense, shrewdness, his knowledge and experience, taking into consideration at the same time the ordinary course of events and human conduct. The correct position would be, while considering the evidence he should put to himself(in the position of prosecution or accused) whether he, as a reasonable person is convinced that the evidence he has heard satisfies beyond reasonable doubt(even a single logical doubt would discharge the accused) that what is said to have taken place has really occurred in that manner. This matter is not of a simple nature and mistakes committed in this direction entail serious consequences. It is noticed that sometimes accused are acquitted on what we may call flimsy or inconsequential grounds while on other occasions conviction are based on material which does not justify convictions at all.
Acquittal in most of the cases is based on an erroneous impression and application of the rule of benefit of doubt It is not every contradiction or discrepancy however inconsequential, in the testimony, that should raise a doubt warranting acquittal One has to bear in mind that men’s powers of observation and expression vary and an account given by two or more witnesses equally truthful may be discrepant yet sufficiently accurate. Care must, therefore, be taken in sifting the evidence. The story, if found truthful otherwise, should not be brushed aside by reason of a slight discrepancy or defect which is explicable. Fiat Justitia should be the motto of the Court and discovery of truth should be attempted with the help of the evidence adduced. It will be wrong to decline to make such an attempt on the plea of discrepancies which may be the product of natural imperfections of human nature. It should be remembered that letting off the guilty without punishment is as much shocking to the public conscience as punishing the accused despite the absence of legal grounds based on legal testimony.
Most of such evils follow in the wake of misappreciation of or inability to appreciate evidence by reason of inexperience or ill-equipment of law. Of course, mathematical precision cannot be claimed in matters like these. But reasonableness of view must at all events be ensured by correct approach to the subject In this behalf the following guiding principles may be of great help to the Presiding Officers in achieving that object: –
(i) The Standard of Proof in Criminal Cases is not the same as in the Civil.
In criminal cases as life and liberty of the accused are involved, a strict standard of proof is required as to the guilt of the accused. It is not the preponderance of probabilities that establishes the guilt of the accused. It is necessary that the evidence on record must prove it beyond reasonable doubt A conviction cannot be based on the consideration that the prosecution story may be true. The accused can only be convicted if the Court reaches the conclusion that the prosecution story must be true. Considered as a whole the prosecution story may appear to be true but between “may be true” and “must be true” there is a long distance and the whole of this distance has to be covered by legal, reliable and unimpeachable evidence. (follow- Sarwan Singh Rattan Singh vs. State of Punjab: A.I.R. 1957 S.C.637; In re Shivabasappa Rayyappa Channali A.I.R. 1959 Mysore 47.) If the evidence on record establishes the truth of the charge and satisfies the reason and judgment of the Court such evidence must be taken to have proved the charge beyond reasonable doubt justifying conviction.
The law always requires that the conviction should be certain and not doubtfuL Otherwise, no man can be safe. The burden of proving the guilt of the accused is upon the prosecution. Upon such proof as is adduced, if there is a real and reasonable doubt as to his guilt, the accused is entitled to the benefit of the same. The defence evidence does not come up for consideration at all as the prosecution has not discharged its onus. If the prosecution story is weak it cannot gain strength from the weakness of the defence evidence. It should stand by itself.
Then again, where the circumstances of a case point to the conclusion that the accused committed the offence but at the same time there is also a reasonable probability raised by the state of evidence which is compatible with his innocence, there is no justification for the conviction of the accused. The accused must be acquitted.
But where the burden of proof relating to an issue in a case is on the accused, the standard of proof required of him is not the same as is required from the prosecution. The accused need not establish his case beyond reasonable doubt. It is enough if he shows that the preponderance of probability is in favour of his case. What is thus required of him is the standard of proof required in civil cases. (V.C. Jhingon vs. State of U.P. 1966 S.C. 1762). Thus where the accused person claims exemption under a general exception or a special exception under the Penal Law it will be sufficient if he succeeds in proving preponderance of probabilities. ( Harbhajan Singh vs. State of Punjab-1966 S.C. 97). In fact, in case he pleads right of private defence, even if the evidence read as a whole, both of the prosecution and the defence, leaves the Court in doubt that the circumstances are such that the accused may have a right of private defence, the accused is entitled to that benefit of doubt.
(ii) Extraneous factors and elements must always be kept out of mind while judging or determining the guilt
The determination of guilt must be based on legal evidence brought on record and not on outside material. The position of the accused in public life, his status or rank, the interest which the general public takes in the case, the publicity which the case is receiving in the local press or the sensation or stir if may have caused all these are definitely elements which are extraneous to the case and should never be allowed to affect the judgment of the Court in any manner. (Palvinder Kaur vs. State of Punjab A.I.R. 1952 S.C. 354).
Likewise the Magistrate should never import his own knowledge of facts or of the character of the witnesses into the case nor refer to matters which come to his knowledge from other sources. Personal impressions should not find place in judicial orders. He should not be moved by hearsay evidence either and should not allow it to be brought on record.
(iii) Evidence should be weighed but not counted
Section 134 of the Evidence Act enacts that no particular number of witnesses is required for proof of any fact. The evidence of witnesses indeed has to be weighed and tested whatever their numerical strength be. The conscience of the Court should be satisfied as to the guilt of the person before he can be convicted. It is the probative force and the value of the evidence and not the sheer numerical strength of the witnesses which determines the guilt of any accused. If the case against the accused rests on the evidence only of a single witness to the crime and his testimony is entitled to full credit, that evidence would be sufficient to sustain a conviction. The question of corroborative evidence would not then arise at all. Thus, the evidence of a single witness would in law warrant conviction if it is true and above reproach or suspicion and does not suffer from any infirmity or taint (Vadivelu Thevar vs. State of Madras: A.I.R. 1957 S.C. 614).
The same principles which apply to proof apply equally to disproof, and even as guilt of an accused may be proved by a single witness; his innocence also may be accepted on the testimony of a single reliable witness even though a number of other witnesses not so reliable may have testified to his guilt.
(iv) Evidence must conform to ordinary human conduct, natural course of events and probabilities of the transaction
The object of hearing evidence is to enable the Court to Form its belief in the truth or otherwise of the alleged occurrence and of the guilt of the accused. This, it has to do by evaluating or correlating the various facts in the evidence on which the proof of guilt is made to rest The occurrence and the commission thereof by the accused are the two essential facts the truth whereof is to be discovered. The discovery of any fact can be had either by direct perception or by inference. The Courts have, of necessity, to infer the truth or otherwise from the testimony of the persons who are said to have knowledge thereof by direct perception. But whether their testimony is worthy of acceptance has to be judged, regard being had to the circumstances under which they observed, the state of their observation, whether casual, disturbed or distracted, their power of observance, the elasticity of their impressions, facility of description and possible lapse of memory. Allowance also must be made for possible distortion of the story and even lying. In order to ensure that the testimony accords with facts or contains the whole truth it has to be necessarily subjected to scrutiny. It is capable of being tested as there is cosmos and not chaos in the universe of facts. All the facts of the Universe are consistent with one another. There is order, regularity and system in the interrelation of facts. There is, indeed, a logical sequence in them as of cause and effect Their interrelationship is so close that one fact can be traced out with the help of the other. It is, therefore, possible to reach the truth by process of reasoning on the strength of the facts known which have logical connection therewith. Inference or reasoning to lead us to truth must of course proceed on facts which can be believed to be true. Belief can be engendered only if the said facts accord with reason and commonsense. The Court, therefore, while judging the testimony or evidence before it, has to necessarily examine whether it is consistent with itself, conforms to the ordinary course of human conduct, the natural course of events and probabilities of the transaction. Of course, in this task effective cross-examination by the party may help the Court a good deal. But absence of such cross-examination does not relieve the Court from its duty to test the evidence. The Court has to undertake its task even though the witnesses are not effectively cross-examined by the party or his counsel, It cannot, in this behalf, afford to act mechanically. It has to subject the evidence to strict scrutiny. In weighing and evaluating the evidence, the Presiding Officers are bound to call in aid their knowledge and experience of life in discovering the truth. (Chaturbanj Pande vs. Collector, Raigarh A.I.R. 1969 S.C. 255 at page 257).
The evidence of a witness shall be regarded with suspicion if it does not accord with the probabilities of the transaction to which he deposes. It should certainly be rejected when it is not consistent with itself nor conforms to the natural course of events, or ordinary human conduct. This principle in the appreciation of evidence is of paramount importance.
(v) In judging the credibility of the witnesses, the demeanour of witnesses, their position, character and antecedents also are to be taken into consideration
In judging the truth or falsehood of the testimony of witnesses; regard must also be had to the factors, such as, the demeanour of witnesses, their position, character and antecedents and their possible and probable motive for giving evidence. The demeanour of a witness under examination, if minutely and skilfully observed, would give an important clue to the nature of his evidence.
Indeed Section 280 of the Criminal Procedure Code, 1973, casts a duty on a Sessions Judge or Magistrate to record such remarks (if any) as he thinks material respecting the demeanour of any witness whilst under examination. The Code thus attaches significance to anything discovered worthy of note in the demeanour and takes care that such impressions are protected from fading away so that the Courts may be in a position to eventually act upon them. By making a notice of the demeanour, the trial Court keeps the impression fresh in its memory. The appellate Court also will not miss this important feature in estimating the value of the evidence by reason of the record. Of course, the remarks contemplated are remarks in relation to unfrank, suppressive and evasive replies of the witness or as to other demeanour in the manner of his speech or otherwise, which has a bearing on the question how far his evidence can inspire confidence. The Presiding Officer, however, has to be cautious in making remarks or judging the credibility of the witness on the basis thereof. Before he can make use of them he has to certainly make considerable allowance for the unaccustomed situation in which the witness is placed and the impressions which such a situation are calculated to make upon his mind. Certain particular features noticed may as well spring from the state of agitation and embarrassment under a searching cross-examination or novelty of the position in which the witness is placed or his constitutional nervousness. Nevertheless if the demeanour is minutely and skilfully observed, the eye, the tone, the voice and the mouth may reflect the state of his mind and will give a valuable clue to a skillful observer to come to the conclusion whether he can be said to be a witness of truth or not If while making a statement he takes him to think about the materiality of his evidence and the effect that his answer will produce on the case or gives an evasive reply or answers a question put to him with great hesitation, the evidence that he gives may ordinarily be open to much suspicion. The Magistrate however has to be very cautious in noting his demeanour in drawing an adverse inference against his bona fides.
It is not unusual that uneducated witnesses or those who are not accustomed to the ways of the Court do in their confusion of thought create discrepancies under a severe test of cross-examination. But on that account their story, if honest and substantially true, should not be rejected. The demeanour, though of great importance, has to be closely, carefully and critically watched and the conclusion on the basis thereof must be reached with due caution. Further, it is not only the demeanour of a witness but also his position, character and antecedents and his probable motive for giving evidence which are also to be taken into consideration. After all, the question of credibility of the witness comes for consideration only at the end when the Presiding Officer takes the overall picture and judges the evidence in that light.
(vi) The testimony of partisan or interested witnesses or relatives cannot be discredited merely by reason of that character
What principles should be kept in view in judging the testimony of such witnesses.
Evidence given by witnesses should not be discarded merely on the ground that it is evidence of relations or partisan or interested witnesses. Where offences are committed in residential houses, the witnesses to the offences generally are relations and servants. When factions prevail in villages where offences are committed, evidence available may be largely of partisan or interested witnesses. The testimony of these witnesses cannot be mechanically rejected on the mere basis of interestedness. Such a rejection is calculated to result in failure of justice. Their interestedness may render their testimony open to strict scrutiny; but interestedness by itself is not a good cause for rejecting or brushing aside their testimony. It may be rejected when the witnesses are discredited as regards their good faith and honesty or their evidence otherwise does not bear scrutiny. The Court has, therefore, to be careful in weighing such evidence and see whether or not their evidence is discrepant, whether the story disclosed by this evidence is probable, whether their testimony appeals to reason and commonsense and appears to be true. In short, the evidence is to be judged taking into account all matters which the Court has to keep in view for testing the evidence and the testimony should be accepted, or rejected consequently. [Vide Masalti vs. State of U.P.(A.I.R. 1965 S.C.202)]
Again the witnesses coming under the description of interested witnesses may have further traits.
A person may be interested in a victim as being either his relative or his friend; but he may not share with the victim hostility against he assailants.
If the relationship of the witness with the victim is close enough and friendship is very intimate, all that the Court should do is, be careful to note is whether his testimony bears strict scrutiny. The witness cannot, at any rate, be discredited on the ground of mere interestedness. The Court must consider whether the witness is a chance witness or can be accepted as being present at the scene of offence. Further, if there is no reason to disbelieve the truth of the account given by him, there is no reason why his statement should not be acted upon.
Even where the witness, besides being a relative or friend of the victim, shares the hostility of the victim against the assailant, on principle it is difficult to accept the plea that his evidence can never be accepted unless it is corroborated in material particulars. (Dayra Singh vs. The State of Punjab A.I.R. 1965 S.C. 328)
The testimony of the mother or a near relative of a girl against whom an offence of rape is committed, cannot be discounted dubbing it as interested evidence. In the absence of sufficient circumstances or motive for giving false evidence, such as enmity, ill will or grudge against the accused the testimony of such a witness should be judged on the same footing as that of an independent witness. Even where, in the circumstances of the case, some corroboration is required, if the girl against whom the offence is committed has complained to such a witness, her evidence is sufficient corroboration. (Rameswar Kalyan Singh vs. State of Rajasthan A.I.R. 1952 S.C. 54)
A witness is normally to be considered as independent unless he is traceable to a source which is likely to be tainted and a witness is to be considered to be tainted only if he has been shown to have a reason or motive for implicating the accused falsely, such as, enmity or grudge. Ordinarily, a close relative of the victim would be the last person to screen the real culprit and falsely incriminate an innocent person, and the mere fact of relationship, far from being a ground for suspicion, is often a guarantee of truth. There is no rule of prudence that a relative’s evidence requires corroboration, and the fallacy often noticed that there is any such should be clearly dispelled. However, Courts must carefully see that out of feelings of relationship, innocent persons are not roped in. Each case must be judged on its own facts. (Dalip Singh vs. State of Punjab (A.I.R. 1953 S.C.364).
Partisan witnesses: – In factious cases the names of the innocents are not unoften tacked on to the really guilty ones. It is therefore, necessary that in such cases the Judge should scrutinise the evidence of partisan witnesses with particular care to exclude the danger that out of spite or enmity all the important members of the opposite faction are implicated so as to destroy them root and branch. It is important that evidence of such partisan witnesses be scrutinised with more than ordinary care and in particular sweeping statements and wholesale implications should be received with utmost caution.
The above principles are well settled. The Courts would do well to keep in view the following points relating to appreciation of evidence, while considering the evidence of interested witnesses or relatives :-
(1) The testimony of a close relative cannot be discarded merely because of relationship. In fact, his evidence in a large number of cases would be very material, for a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. The mere fact of relationship, far from being a ground of suspicion or the foundation of criticism of evidence, is thus often a sure guarantee of truth. It is not a general rule of prudence to require corroboration before such evidence is believed. Of course, if the culprits are more than one, rule of prudence may in certain circumstances require corroboration. It must all depend upon the particular circumstances of each case and the degree of confidence inspired by the statement of the witness.
(2) A person may be interested in the victim being his relation or otherwise and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend may not necessarily be a ground to subject the statement of the witness to more than ordinary scrutiny.
(3) (a) Where the witness is a close relation of the victim and is shown to share the victim’s hostility against his assailant, that naturally would impel the Court to put the evidence to strict scrutiny before deciding to act upon it. In dealing with such evidence, the Courts will have to ascertain whether such witnesses are chance witnesses and whether their testimony, having regard to its nature, consistency with itself and conformity with the other circumstances of the case, appeals to reason or commonsense and should be accepted as correct, or is fairly corroborated by other evidence.
(b) It must always be remembered that interested witnesses are not necessarily liars. Their testimony cannot be rejected and must be acted upon if it bears scrutiny. Their statement may, however, having regard to the circumstances of the case, be judged with care taking into account the possible bias.
(c) The testimony of partisan witnesses in factious cases must be scrutinised with more than ordinary care and accepted with due caution.
(4) It is not the rule that if a witness is shown to be a relative of the victim and it is also shown that he shares the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. All that can be said is that his testimony should be accepted if it bears scrutiny and the conscience of the Court is satisfied that it is true.
(vii) The Rule of Best Evidence should never escape one’s attention in evaluating evidence
In attaching weight and value to the evidence the Court should also see why the best evidence which could be produced by the Prosecution was not so produced. Where, for instance ‘A’ a respectable man of the village who was present when the occurrence took place, is not produced but instead two labourers living at a distance from the place of occurrence are produced, the Court should view their evidence with suspicion unless good reasons are given for not producing ‘A’ and there are other circumstances to believe the testimony of the labourers. It goes much to the discredit of a party if good evidence which is worthy of credit is kept back and not produced. But if the best evidence has not been produced it does not mean that the other evidence admissible in law should be rejected forthwith. As observed above, the Court has still to consider the weight and the legal effect of the witnesses produced in the case.
(viii) The evidence of child witnesses should be accepted with due care
The competence of a witness is determined by Section 118 of the Evidence Act According to the said section, every person is competent to give evidence, except when the Court considers that he or she is unable to understand the questions put to him or her, or give rational answers. Such incompetency may arise from causes like tender years, old age, disease, etc.
The proviso to Section 5 of the Oaths Act prescribes that when a witness is a child under 12 years of age and the Court considers that though he understands the duty of speaking the truth, he does not understand what oath means, the Court may dispense with the administration of oath. But the Judge should always, when dispensing with an oath, make a clear record that he was satisfied that the child understands the duty to speak the truth and should also state his reason for thinking so. (Rameshwar Kalyan Singh vs. State of Rajasthan 1952 S.C.54.)
Although the unworn testimony of a child is admissible, it must be received with great caution. Children of tender age, generally speaking, are pliable and their evidence can easily be shaped and moulded. They can be made to repeat glibly a story put into their mind. They do not possess the discretion to distinguish between what they have witnessed and what they have heard. It is therefore desirable that absolute reliance should not be placed on the evidence of a solitary child witness. One should look for corroboration of the same from other circumstances in the case. The tender years of the child, coupled with other circumstances appearing in the case, for example its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary. But that is a question of fact in every case. If, after carefully scrutinising the evidence, the Court comes to the conclusion that there is a great impress of truth in it, there is no bar in law in the way of accepting the evidence of a child witness. The Court should look for corroboration as a matter of caution and not as a rule of law. That is the guiding principle in appreciation of evidence of a child witness. There is no law which says that the evidence of a child witness should not be accepted unless it is corroborated. But the rule of prudence requires corroboration. (Mohammed Sugal Esa vs. The King. 1946 P.C.3).
(ix) Evidence of Accomplice requires corroboration for conviction
Section 133 of the Evidence Act provides that “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
The provision thus places no limitation on the acceptance of the testimony of an accomplice against the accused on the ground that he is an accomplice. It does not impose any condition or correlation for purposes of conviction.
But illustration (b) under Section 114 of the Act says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. It follows that notwithstanding that an accomplice is a competent witness against the accused, his testimony is inherently of a tainted nature and by itself it is not sufficient to sustain a conviction. Of course, it is legal evidence. It can be relied upon in proof of the guilt of the accused if it is worthy of credit but conviction can follow if it finds corroboration from other evidence.
To sustain conviction it should thus satisfy two tests:
(1) The version must be a reliable account which means that there is nothing inherently improbable in the story.
(2) There must be sufficient corroboration of his evidence before it is accepted or acted upon. (Piara Singh vs. The State of Punjab, 1969 SC 961 Sarvan Singh vs. The State of Punjab, 1957 SC 637 Lachhiram vs. The State of Punjab, 1967 SC 792, and
Seshanna vs. State of Maharashtra, 1970 SC 1330 at 1333).
The nature and extent of corroboration that the Court should look to depends upon the facts and circumstances of each case. It is not possible to Formulate any rules. However, the following principles are well established:
(a) Corroboration must be from an independent source.
(b) Corroboration need not be by direct evidence. It is sufficient eventhough it is circumstantial in nature.
(c) Corroboration is required on material particulars and not confirmation of every detail deposed to by the approver.
(Bhiva Doulu Patel vs. State of Maharashtra, 1963 SC 599 and Sarvan Singh vs. State of Punjab. 1957 SC 637).
(d) Corroboration required to the extent stated in both as to the commission of offence and identity of the accused or each one of the accused (as the case may be) as actual participants in the Crime.
(x) Nature and extent of corroboration wherever it is required by law should always be kept in mind.
In all cases where corroboration is required, the nature and extent of corroboration that the Court should look to must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. There can, therefore, be no set Formula which may be of universal application. However, there are certain guiding principles which will be of great help to the Presiding Officer in this behalf. These principles have been succinctly laid down in King vs. Baskerville, 1916(2) KB. 658 which is the locus classicus on the subject.
One of the important principles according to it is that wherever corroboration is required, what should be looked into is not independent corroboration of every circumstances in the sense that there should be independent evidence which by itself de hors the testimony of the complainant or the accomplice be sufficient to sustain conviction.
As Lord Reading says: –
“Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony”. All that is required is that there must be “some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it”.
The second principle is that the corroborative evidence must not only make it safe to believe that the crime was committed but also must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused had committed the crime. This does not, however, mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. It is nevertheless essential that there should be independent evidence which will make it reasonably safe in believe the witness’s story that the accused was the one among those who committed the offence. The reason for this part of the rule is that “a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without indentifying the persons, that is really no corroboration at all. It would not at all tend to show that the party accused participated in it.”
The third principle is that the corroboration must come from independent sources or sources other than tainted. Ordinarily, therefore, the testimony of one accomplice would not be sufficient to corroborate that of another. But of course, the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction would not be illegal.
The fourth principle is that the corroboration need not be by direct evidence that the accused committed the crime. It is sufficient even if it is circumstantial evidence as to his connection with the crime. Were it otherwise “many crimes which are usually committed in secret, such as incest, offences with females (or unnatural offences) could never be brought to justice”.
The above rules were approved or followed in Rameshwar Kalyan Singh as. State of Rajasthan (1952 SC 54). Sidheshwar Ganguly vs. State of West Bengal (AIR 7958 SC 143) and Major E.G. Barsay vs. State of Bombay (1961 SC 1762).
(xi) Former statement of a witness may be used as corroboration of his testimony
The previous statement of a witness may be corroboration of the evidence of the witness.
Illustration (j) under Section 8 of the Indian Evidence Act reads as follows: –
“The question is whether A was ravished. The fact 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”.
Thus the previous statement of a female who is ravished is admissible under Section 8 of the Indian Evidence Act by way of the conduct of the party. The question is whether such a statement may be proved to corroborate the subsequent testimony as to the same fact. In this regard Section 157 of the Indian Evidence Act reads thus:
“In order to corroborate the testimony of a witness, any Former statement made by such witness relating to the same fact, at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved”.
Thus according to this section any Former statement made by a witness may be proved to corroborate his testimony provided the conditions laid down therein are satisfied. One of the conditions is that the Former statement must have been made ‘at or about the time’ when the fact took place. At or about the time’ would mean as early as can reasonably be expected in the circumstances of each case. See: Rameshwar Kalyan Singh vs. State of Rajasthan 1952 SC 54. In that case, a girl who was raped told her mother about the incident about 4 hours after it occurred. The reason for the delay was that the mother was not at home when the girl went there. When the girl went home, she lay down and went to sleep and when her mother returned from the field at about 4 p.m. she told her mother what had happened. It was held in that case that the Former statement of the girl was made at or about the time when the fact took place.
(xii) The Probative Value of evidence of the complainant or the prosecutrix in sexual offences
A women who has been raped is not an accomplice. She is the victim of an outrage. If the woman gave her consent, there is no offence unless she 1 happens to be a married woman in which case consequences of adultery may follow. In the case of a girl below the age of consent, her consent will not matter so far as the offence of rape is concerned. In all sexual offences, including unnatural offences, the evidence of the complainant or the prosecutrix has to be treated with caution. Though the complainant or the prosecutrix is not an accomplice, and though corroboration is not essential before there can be a conviction, the necessity of corroboration must be present to the mind of the Judge and in the case of trial by Jury there must be an indication in this charge to the Jury about the necessity of corroboration of such evidence though such corroboration may be dispensed with in the particular circumstances of a case when it is safe to do so. When the child on whom the sexual offence is committed is of tender years and has no opportunity of being tutored having regard to her demeanour, corroboration may be dispensed with. See: Rameshwar vs. The State of Rajasthan (1952 SC 54) and Sidheswar Ganguly vs. State of West Bengal (1958 SC 143).
(xiii) The value of evidence of trap witnesses in cases relating to bribery
In cases relating to bribery, sometimes in order to entrap the persons receiving the bribe, the persons offering the bribe produce currency notes before the police authorities or Executive Magistrates. After some marks are made on the currency notes, the same are handed over to the person receiving bribe and he is entrapped and caught. In some cases, the Police Officers and Executive Magistrates themselves provide such money. The point for consideration is whether the evidence of the witnesses of the raiding party and the Officer is to be treated as that of accomplices.
The persons who under compulsion offer money to the person receiving bribe cannot be said to be accomplices. They are in the nature of only partisan or interested witnesses. Their evidence cannot be rejected on the ground of absence of independent corroboration. Their evidence has to be judged by the same standard as the evidence of other partisan or interested witnesses. Vide State of Bihar vs. Basawan Singh (1958 SC 500) Ramanlal vs. State of Bombay (1960 SC 961).
The inexpediency of employing Magistrates as trap witness has been stressed upon in various cases. In Brannan vs Peek 1947 (2) All E.R. 572 Goddard, C.J. made the following observations: –
“I hope the day is far distant when it will become a common practice in this country for police officers to be cold to commit an offence themselves for the purpose of getting evidence against someone”.
This point was again stressed upon in Ramjanam Singh vs. The State of Bihar (1956 SC 643 at 651). It was observed therein thus:
“The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts or because some other has shown them either the futility or the wickedness of wrong doing it behoves society and the state to protect them and help them in their good resolve, not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside.”
The inexpediency of employing Magistrates as trap witnesses cannot be resolved into an inflexible rule that their evidence should be totally rejected in the absence of independent corroboration. Vide The State of Bihar vs. Basawan Singh (1958 SC 500).
(xiv) The value of evidence of a person seeing the commission of a crime and not giving information of it to anyone else.
A man who sees the perpetration of a crime and does not give information of it to anyone else cannot be regarded in law as an accomplice. But there can be no doubt that evidence of such a man should be scanned with much caution and the Court must be fully satisfied that he is a witness of truth especially when no other person was present at the time to see the crime or murder. Though he is not an accomplice, the Court would still require corroboration on material particulars as he is the only witness to the crime and as it would be unsafe to hang the accused on his sole testimony unless the Court feels convinced that he is speaking the truth. [Vemireddy Satyanarayana Reddy vs. State of Hyderabad (1956 SC 379)].
(xv) Contradictions and Discrepancies have to be carefully judged. How far they are material
The duty of the Court is to discover the truth and to find out whether the accused is guilty or not It has to reach its conclusion in this behalf on the basis of legal testimony or the evidence brought before it. This evidence may be direct or indirect It may be based on perceived facts or inferred facts. Facts based on direct observation are perceived facts. What may be inferred from the facts known by a process of thinking or reasoning are inferred facts.
Even the perceived facts come before or to the knowledge of the Court by way of testimony of persons who say they have seen them. This testimony cannot be free from certain natural defects. To start with, human observation itself has its own imperfections. It cannot possibly cover all the particulars of the incident at one time. It is not therefore free from possibility of mistake. Mistakes again may be of observation or they may be of description. The version coming before the Court besides cannot be free from mistakes of memory and what is more of the possibility of careless reporting or deliberate lying.
The amount of confidence which has to be placed on legal testimony based on observation must, therefore, be judged by references to various factors such as-
(1) the subject matter, i.e., the nature of the occurrence,
(2) the time of the observation
(3) whether the observation was casual or deliberate
(4) the type of mind of the observer,
(5) the state of mind at the time,
(6) the possibility of elaboration and distortion of the facts perceived,
(7) the length of time that elapsed between the observation and the recording of testimony
(8) the amount of corroboration from other observers, and
(9) whether the testimony is consistent with the probabilities of the transaction.
So then, while considering the testimony, we are obliged to take into account not only the possibilities of mistakes of observation and mistakes of memory but also the possibilities of careless statement or deliberate lying. Of course, a thorough and skillful cross-examination should enable the Court to judge the state of observation and the witness’s memory. It may expose any attempt at deliberate falsehood as well But an inference as to the truth or otherwise of the story told has to be drawn even from out of seeming conflicts, contradictions or discrepancies, found in the testimony occasioned by cross-examination or otherwise. These contradictions and discrepancies may flow from natural defects of observation and vagaries of human nature or they may betray that the versions of the deponents are false or unworthy of credit It all depends upon the nature of the defects and the type of the witnesses examined. It must be remembered that contradictions and discrepancies are natural and inevitable in the testimony of even truthful witnesses. There can be discrepancies of truth as of falsehood. It all depends upon the natural causes thereof. While minor discrepancies cannot be of any consequence, contradictions in the statement of witnesses cannot be lightly passed over as they seriously affect the creditability of witnesses. Discrepancies of minor character are generally those which are attributable to inattention to all the details or the elasticity of human impressions, men’s varied powers of observation and expression. A version given by two persons in relation to some incident though sufficiently accurate may not be free from discrepancies. It not possible for any two persons to observe all the minutest details of the occurrence with equal care. Their power of appreciation or expression also differs. The discrepancies, therefore, both as a result of inattention to details and due to natural tendency to exaggerate or belittle are but natural and inevitable. Indeed, the absence of such discrepancies may, in a large number of cases, be attributable to tutoring. So then “when the evidence is discrepant or exaggerated allowance has to be made for the idiosyncrasies of the class from which the witnesses are drawn, their powers of observation, strength of memory and facility of description with a discount for possible bias or prejudice”. (Taylor on Trial or Cases, Page 86).
The discrepancies may sometimes be due to confusion of thoughts when the witness is subjected to severe test of cross-examination. Such defect will be more prominent in cases of persons who are not accustomed to the ways of Courts or are nervous. Certainly these factors have to be borne in mind while evaluating the evidence of the witnesses. While contradictions on material points cannot be easily ignored as they affect the truth of the story, not much importance should be attached to the minor discrepancies. These discrepancies may not be merely in relation to the details of the occurrence but also to the time and date or day of the occurrence as well.
As a matter of fact the time and date as given by most of the witnesses are approximate and there ought to be great margin for honest error. It is not possible for the witnesses to give the exact time in relation to each instance of the incident. They may not have watches with them and even if they have, they may not closely note the same, being wholly absorbed in the observation of the incident Eventhough they may at times remember the date, when they have to give their evidence after a long interval, failure of memory in this behalf may be inevitable. They will not be able to recall the exact date. Indeed it is impossible to expect any witness much less an illiterate witness to describe the particulars as to time and distance and the movements of persons in such a scientific detail as to stand the test of calculation. See Nitta Singh vs. State of Punjab (1965 SC. 26 at 30).
Where a large number of offenders or victims are involved in an offence, it is often not possible for the witnesses to describe accurately the part played by each one of the assailants. In such cases, it is usual to adopt the test that the conviction should be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident (See Masalti vs. State of U.P. 1965 SC. 202).
Sometimes illiterate witnesses from villages who are dull witted are unable to separate in their minds what they saw from what they heard, from the inferences they themselves draw and from the inferences other persons draw for them. It is due to this inability certain discrepancies creep in their statements. These discrepancies are to be judged carefully. The Court has to subject each material contradiction or discrepancy to strict scrutiny and see whether its conscience is satisfied that the witnesses are speaking the truth. The Court has, always, to bear in mind that the benefit of reasonable doubt has to go to the accused. Where the evidence is conflicting or where there is an indication that false evidence has been introduced the probability or improbability of the transaction should be taken into account to arrive at the truth. Of course, the rejection of certain specific statements of a witness is not necessarily a ground for disbelieving the whole of his evidence. Where the untruth spoken to, by a witness is merely in embroidery to the story and is attributable to lack of memory, the whole statement should not be disregarded and an attempt should be made to disengage the truth from the falsehood. But if it is established that he has prejudiced himself either with regard to a particular accused or on a major part of the case, that should be enough to discredit the testimony altogether. (Sukha vs. State of Rajasthan 1956 SC. 513).
Hardly we come across a case where there is not a grain of untruth in the evidence of a witness. Often the statements of witnesses contain exaggerations, embellishments, and embroideries; but on that ground alone their evidence cannot be discarded. Truth must be separated from falsehood in the same manner as chaff should be separated from grain. But where the material portion of the evidence is not believed, it is wholly unsafe to convict any person on a small piece of evidence that may possibly be true. Ugar Ahir and others vs. The State of Bihar 1965 SC 277, Nisar Ali vs. The State of U.P. 1957 SCJ 392: AIR 1957 S.C. 366).
If the statement of a few witnesses is not believed with respect to some of the accused persons, it does not necessarily follow that their evidence should not be relied on with reference to other accused as well (See Gullusah vs. The State of Bihar, 1968 SC 813). (in the case cited the evidence of witnesses was not accepted in respect of some of the accused but was relied on against the appellant).
Witnesses who retract their statements in the trial Court should be looked upon as witnesses not above suspicion and their evidence should be regarded with great caution. Where a witness for the prosecution makes a statement in the trial Court contradictory to the one before the Inquiry Magistrate or the Police casting a serious doubt about the case for the Prosecution, there is no guarantee of truth in either of his statements and his evidence entirely unreliable. (Madan Mohan Singh vs. State of U.P., AIR 1954 SC 637).
Witnesses who kept silent for a long time about the incidents to which they have deposed and who, moreover, when first questioned by the Police had denied all knowledge of the affair, are not entitled to have their testimony believed.
(xvi) Circumstantial Evidence is of considerable help in determining the guilt
Circumstantial evidence is sometimes of very great importance. Indeed in some heinous crimes it is the only evidence available. It provides links in a chain oaf facts which go to establish the guilt of the accused. Where there is no direct evidence and the proof is made to rest on circumstantial evidence, the principles which should be kept in view in judging the guilt are as follows:
(1) Each fact and circumstance on which the prosecution relies in support of its cause must be such as to lead to a reasonable inference about some aspect of the guilt of the accused.
(2) Every such fact or circumstance on which the prosecution relies must be clearly proved beyond doubt.
(3) The chain of proved facts and circumstances must be of such nature as to point, in their total effect, irresistibly and unmistakably to the only conclusion that the accused is guilty of the offence. The Chain of evidence must be so far complete as not to leave any reasonable doubt for the conclusion consistent with the innocence of the accused person. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In short, the incriminating facts established must be incapable of explanation upon any other hypothesis then that of the guilt of the accused. Otherwise the accused must be given the benefit of doubt.(Anant Chintaman Lagu vs. State of Bombay, AIR 1960 SC 500 ; Govinda Reddy vs. State of Mysore, AIR 1960 SC 29, Eradu vs. State of Hyderabad, AIR 1965 SC 316; Charan Singh vs. State of U.P. 1967 SC 520 and Hanumant Govind Nargundkar vs. State of M.P., 1952 SC 343).
(xvii) The Significance of Evidence of Motive
Motive is the reason which induces and actuates a man to do a certain act. It is a sense of injury or a long cherished feeling of resentment which induces a person to commit an offence. Motive is thus no doubt an important factor and is therefore relevant under Section 8 of the Evidence Act. Existence of adequate motive for the perpetration of crime is an important factor which strengthens the general body of evidence. But failure to prove motive cannot outweigh the positive evidence as to the crime. Thus motive, though an important factor, adequacy or absence of motive may not affect the merits of the case if there is positive evidence as to the crime which brings home the guilt of the accused.
(xviii) The evidence regarding conduct is relevant. The degree of probative value depends on the particular circumstances of each case
In some cases the prosecution seeks to establish that the accused when arrested manifested a great agitation and alarm or that when the accused came to know that the police machinery is set in motion in relation to the occurrence, he immediately took to flight or that every since the incident the accused has been absconding.
Wills in his Book on Circumstantial Evidence at page 126 says: –
“Men are differently constituted as respects both animals and moral courage and fear may spring from causes very different from that of conscious guilt ; and every man is therefore entitled to a candid construction of his words and actions, particularly if placed in circumstances of great and unexpected difficulty”.
Mr. Justice Abbot in a trial for murder where evidence was given of flight, observed in his charge to the Jury, that
“a person, however, conscious of innocence, might not have courage to stand a trial ; but might, although innocent, think it necessary to consult his safety by flight.
“It may be a conscious anticipation of punishment for guilt, as the guilty will always anticipate the consequences ; but at the same time it may possibly be, according to the frame of mind, merely an inclination to consult his safety by fight rather than stand his trial on charge so heinous and scandalous as this is”.
These passages show that the evidence of such a conduct unless it is traceable to the conscious guilt of the accused is not of much consequence. (See Khushal Rao vs. State of Bombay, 1958 SC 22). Of course, when there is no sufficient explanation and the other evidence pointing to the guilt is overwhelming, this conduct adds to the proof of guilt (See Pritam Singh vs. State of Punjab, 1956 SC 415).
(xix) Confession and their value
Deliberate and voluntary confessions of guilt, if clearly proved, are amongst the most effectual proofs in the law. That is because it cannot be ordinarily presumed that a rational being will wantonly make admissions prejudicial to his interests and safety. But in a large variety of cases it is seen that the confession is retracted at the trial. So then, it falls to the duty of the Court to determine if a confession is voluntary. The burden will be on the prosecution. If the circumstances in which a confession was made throw a doubt upon its voluntary character, it must be rejected. If the accused claims that the confession was induced or coerced, unless the voluntary nature is fully proved, the confession has no value. The accused is not required to prove his assertion affirmatively. All that may have to be considered is whether what he says is possible. If there is nothing on record to show that his assertion is false and, judged from other circumstances, such things can happen and may have happened in the instant case, that is enough to give the benefit to the accused. (Nathu vs. State of U.P. 1956 SC 56 ; Aher Raja Khima vs. State of Saurashtra, 1956 SC 217). If the reasons given by the accused for withdrawing the confessional statement are palpably false and the statement is held to be true and voluntary, the question arises, what is the importance and weight to be attached to the confession, retracted as it stands. If the truth of the confession is established by corroboration in material particulars by independent evidence, it can be acted upon. What is sufficient corroboration for this purpose has to be decided in each case on its own facts and circumstances. It may, however, be generally stated that where the prosecution by the production of reliable evidence which is independent of the confession, establishes the truth of certain parts of the account given in the confession and those parts are so integrally connected with other parts of the confession, that a prudent Judge would think it reasonable to believe, in view of the established truth of these parts that what the accused has stated in the confession as regards his own participation in the crime, is also true, that is sufficient corroboration. (See Nand Kumar vs. State of Rajasthan, 1962(2) S.C.R. 890.
(xx) Extra Judicial Confession
Extra-judicial confession can he accepted as evidence only if the Court is satisfied that it is both voluntary and true. It must be received with great caution. The exact words used by the accused should always be ascertained; and before it is accepted as a piece of evidence justifying a conviction, the Court should satisfy itself on the following points: –
1. What were the circumstances under which it was made or in what manner was it obtained?
2. Was the confession made by the accused voluntarily?
3. What was the reason for the accused to have confided in the witness who proves it and to have made a clean breast of his actions?
4. Did the witness truly understand the sense of what was stated to him, or is there any room for a mistake or misapprehension?
5. Have the words uttered by the accused been correctly reproduced or is the witness improving on the statement which was made to him?
6. Has the witness any personal motive to depose falsely against the accused, or have the police, in their eagerness to prove the commission of a crime, put up that witness to prove a confession.
(See Ratan Gond vs. State of Bihar, 1959 SC 18; Mulk Raj vs. State of M.P. 1956 SC 902)
(xxi) Value to be attached to confessional statements of co-accused
The confession of a co-accused is not evidence under Section 3 of the Evidence Act. It is not required to be recorded on oath and it cannot be tested by cross-examination. First the Court should altogether exclude such confession from consideration. It must see if there is evidence in the case sufficient to sustain a conviction. If the finding is that there is not sufficient evidence the matter ends there and a conviction cannot be upheld eventhough there is in addition a confession by a co-accused. If on the other hand, the Court finds that the other evidence is of such a nature as to be sufficient to sustain a conviction provided it is believed, the confession of a co-accused comes into use and can be called in aid for lending assurance to the belief in that evidence.[ Nathu vs. State of U.P. (1956 SC 56)].
The confession must implicate the maker himself substantially to the same extent as his companions in the crime before it can be used against the accused. See Balbeer Singh vs. State of Punjab (1957 Section 216). Section 30 of the Evidence Act alone permits the Court to take into considerations the confession of a co-accused against others if it is made by him affecting himself and some other.
The various principles referred to above though by no means exhaustive will afford sufficient guidance to the Magistrates in particular and all the Presiding Officers of the Criminal Courts in general in appreciating the oral evidence that may be adduced in criminal cases. The Courts called upon to decide criminal cases while appreciating evidence have to take into account the documentary evidence as well. They have to call in aid sometimes certain presumptions of law. If need be, they have to take judicial notice of certain facts as well It may be seen that whereas it is manifest that the evidence that may be given in any inquiry or trial under the mandate of Section 5 of the Evidence Act, is of the existence or non-existence of every fact is issued and of such other facts as are relevant under the Indian Evidence Act and of no others, and what are relevant facts have been referred to in Sections 6 to 55 of the said Act, the method of proof is not merely by way of oral testimony of witnesses. There are other methods as well One such method which is most common is the documentary proof. The documents may be public or private. Private documents are other than the Public Documents. (Sections 74 and 75 of the Indian Evidence Act). Method of proof of Public Documents has been stated in Sections 77 to 79 and the presumptions which have to be raised in relation to certain documents have been mentioned in some of the subsequent sections. It is necessary that these presumptions should be kept in mind while judging the evidence. The proof of private documents has to be adduced by producing the originals, if available.
They have to be duly proved by a person who wrote and signed them (Section 67) and if any such person is dead or cannot be found or denies his handwriting or signature, they may be proved by ;
(a) the evidence of the person who are familiar with this handwriting or signature.
(b) by a comparison of the signature or writing of that person with his signature or writing which is admitted, or proved to the satisfaction of the Court (Section 77).
Thus even in relation to the documents, oral testimony becomes necessary and the principles of appreciation of evidence already referred to will apply. It should be further remembered that the documentary evidence being not prone to lapses of memory may have its special value as against the oral evidence but that has to be judged in the circumstances the document was executed or brought into being. This has to be borne in mind while attaching weight and value to the evidence. Under the Evidence Act, the Court has to take judicial notice of certain facts without calling upon the party to prove as provided in Sections 56 and 57. Thus the Court would do well to take all these factors into consideration while appreciating the evidence and coming to its conclusions in criminal cases.
Punishment And Sentence And Considerations
In Awarding Punishments Sections 35 and 39 of Criminal Procedure Code deal with the limits of sentences which various Courts may legally pass. The Indian Penal Code save, in certain offences where the minimum also is fixed, fixes only the maximum limits of sentences which may be passed for any offence. The same is the case even with regard to fines. The legislature thus has, in reason, left the matter of award of adequate sentence, within the limits prescribed, entirely to the discretion of the Court This discretion has, of course, to be exercised judicially in accordance with the established principles of reason and justice regard being had to the nature of the offence, the circumstances in which it is committed, the circumstances of the accused and the policy and object of law. The question of determination of proper sentence is not free from difficulty. Indeed its importance cannot be overemphasised when it is manifest that a disproportionate sentence is likely to excite sympathy of the public for the accused and thus defeat the very object for which it is passed. It removes all chances of reFormation also. Likewise a light or a ridiculously low sentence is fraught with tendencies to prove a danger to the public peace. The question of sentence is thus both a difficult and delicate matter. No hard and fast rule can be laid down being a matter of discretion, guided by a large number of considerations. Precedents also cannot be a sure guide unless they are based upon any principle of universal application. Sentence passed by one Judge in relation to the same kind of crime or offence cannot therefore be a dependable guide. No two cases can be exactly similar in all their aspects. Indeed in a large variety of cases, there can be wide divergence both in relation to the circumstances in which the offences were committed and also those of the accused. The Presiding Officer has to fall back on his good sense and judgement taking into account various considerations while determining the sentence. The nature and gravity of the offence, the circumstances in which it was committed the degree of deliberation shown by the accused or provocation received, the age and character of the accused, his antecedents, the motive for the crime and the manner in which it was committed, etc., are all matters which have to be necessarily taken into consideration. Further, all these must be matters of a record established by evidence and not mere impressions created by the accused on the Presiding Officer. The aggravating and extenuating circumstances have an important role to play. The theory and object of punishment and the policy of law are no less significant They have to be always kept in mind. The avowed objects of punishment are varied and manifold. But mainly and essentially the object is to ensure the protection of the public against offences to person and property. As Bentham in his works, Vol. I, page 386, has said: “If we could consider an offence which has been committed as an insolated fact, the like of which would never recur, punishment would be useless. It would be adding an evil to another. But when we consider that an unpunishable crime leaves the path of crime open not only to the same delinquent but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all”.
Protection of the public is ensured if prevention of crime is secured.
This object can be achieved in two ways:
(1) by imposing punishments sufficient to deter the accused from repeating the crime and serve as a lesson or warning for others with similar bent of criminal mind; and (2) by ensuring that the punishment given serves as a reformation for the offender so that he may become a good citizen and cease to be a threat to the public.
Thus the theory of punishment is based upon (1) the protection of the public; (2) the prevention of crime; (3) the re-Formation of the offender; and (4) corporal suffering for the crime to committed. The punishment may have a deterrent element also. The concept of deterrent punishment does not take in the idea of vindictiveness; but intact eschews the same. While deterrent punishment has a re-Formative value, vindictiveness defeats the very object The sentence in each case at any rate should necessarily bear reasonable proportion to the nature and gravity of the offence and circumstances of each case. If it is unduly severe or vindictive, it is apt to frustrate the very purpose.
So then, what is to be considered while awarding punishment within permissible limits is firstly, the gravity of the offence; secondly, the circumstances under which it is committed; thirdly the circumstances of the accused, and fourthly, the object and policy of law.
Nature and gravity of the offence is the first consideration. The measure of punishment should be determined largely having regard to the same. Offences against person are certainly of greater magnitude than those against property, for personal violence spreads a feeling of greater insecurity and terror in the community, involves the person in more bodily suffering and sometimes the injury caused is irreparable. Therefore, the Former type of offence warrants a heavier sentence than the latter. At the same time, the circumstances under which they were committed are of no less significance in determining the quantum. The offence may be attended by aggravating circumstances or there may be some mitigating circumstances. The punishment in both the cases cannot be the same or else the purpose of punishment will be frustrated.
Aggravating circumstances may generally be, as Bentham has put it:
“(1) Deliberate violence especially when it is super added to another crime, viz., robbery and dacoity in which case the offender justly forfeits all human sympathy.
(2) Use of lethal weapon.
(3) Wanton cruelty and malignity.
(4) Treachery as when he is inveigled into an ambush and then murdered.
(5) Nature of injury-as where a man is clubbed to death or where he is stabbed with a knife.
(6) Motive which will of course play a most important part “Mitigating circumstances as mentioned by the same author are:-
“(1) Absence of bad intention.
(2) Provocation.
(3) Sell-preservation.
(4) Preservation of some near friend.
(5) Transgression of the limits of self-defence.
(6) Submission to menace.
(7) Submission to authority.
(8) Drunkenness.
(9) Childhood.”
The above list cannot be said to be exhaustive. Aggravating circumstances certainly warrant heavier sentence and the mitigating circumstances tend towards leniency. Thus the nature and enormity of the offence is a major consideration that must be primarily kept in view in awarding punishment The measure thereof, of course, may to an extent be influenced by the other considerations which call for strict or lenient view of the matter. This depends on the circumstances under which and the manner in which the offence was committed, the personal circumstances of the offender himself and the object and policy of law.
The offence might have been committed with deliberation and cruelty or it might have been committed in the supposed exercise of right of private defence or without pre-meditation or under grave and sudden provocation. It may be the product of momentary impulse or a feeling of supposed wrong. Further, the offender may be a man of tender age or immature understanding or he may be an old man of senile intellect He may be a man given away to fits of temper or he may have acted on the authority of some person who has in a domineering position. His state of health, sex, position in life-all these must necessarily influence the determination of the appropriate measure and extent of punishment The cases of first offenders have to be viewed with commiseration as in such cases repentance and reFormation are always possible. In such cases punishment should ordinarily be of warning rather than of penalty. That is not to say that Criminal tendencies in juvenile offenders should not be taken into consideration at all in passing sentence against them. Indeed while passing, sentence on such offenders also, it is necessary to guard against any danger to the public and danger to the accused himself. Where the crime committed by a young man is by no means a simple crime, such as is committed by children out of mere thoughtlessness rather than criminality, and it shows a singular combination of design and ingratitude and a general character of craft and deceit, he may not be leniently dealt with. The cases of hardened criminals may warrant a long term of imprisonment if there is no likelihood of moral improvement of the person. Considerations of public safety and protection and the risk and danger to which the public will be exposed while he is at large may justify his being awarded a long term of imprisonment Where deliberate murders have been committed, dangerous weapons are used or a defenceless man or woman is attacked in a cowardly manner or with treacherous deceit or where the deceased is mercilessly killed or where a child is killed for its ornaments by a servant to whose care the child was committed-such cases ordinarily warrant severe sentence and may sometimes even extreme penalty of law that can be given. So also the cases dacoity or robbery with acts of great cruelty and violence; likewise rape committed upon an innocent and undefended girl or other atrocious crimes committed with deliberation all these cases demand severe sentence.
There are certain types of cases where deterrent sentences may have to be passed. These sentences will be of utility where there is a deliberate defiance of law by a large body of person. “when waves of imitative crime sweep over the State or where in times of public tumult there is danger of wide breach of public peace or security or where a highly organised or some professional association of persons “engineer series of offences or in similar circumstances” See. 63 I.C.615 (Per Bucknil-J).
Exemplary punishments may be needed in cases where it is necessary to maintain as high a standard as possible of honesty and decency among public servants and persons who occupy positions of trust and confidence. They may also sometimes be needed in the case of prejury. In the case of thefts in places of public resort, such as fairs, railway trains, having regard to the circumstances, deterrent sentences may have to be passed. In offences which may be said to be terrible or in certain class of crimes which can figuratively be called ‘white collar crimes’ or in offences for bribery, corruption, tax evasions, malpractices in share markets and offences punishable under special enactments like the Prevention of Food Adulteration Act, the Drugs Act, Anti-smuggling Laws, Violation of Foreign Exchange Regulations and the like, they may, having regard to the circumstances in which they were committed have to be dealt with by awarding deterrent punishments. These offences are, as a rule, more dangerous than ordinary crimes not only because the financial stakes are high but also because of irreparable damage done to public morals and injustice to the society at large. The unnatural offences such as those punishable under Section 377 I.P.C. or similar offences which corrupt the society call for deterrent sentence. So also all anti-social offences where the person wants to become rich at the time of scarcity, like the offences of black-marketing, also may warrant deterrent sentence. So also certain cases under the Excise Act which are not easy to detect and are difficult to prove.
Leniency in punishments may be of grate utility in cases where the mitigating circumstances warrant the same.
Where the offence is purely a technical one it may call for only a nominal punishment The fact that the accused was not cognizant of the offence committed by him also may be taken into consideration in determining the measure of punishment.
In cases of political offences, arising out of beliefs of the accused but not involving heinous crimes„ or offences endangering the public safety severe sentence might sometimes defeat the object and create other offenders. Where the offence involves no moral turpitude though it is deliberate, having regard to the nature and gravity of the offence, sometimes it may be sufficiently punished by fine if the offender is capable of paying the same.
It is not possible to cover the entire sphere of cases in connection with the question of punishment It is sufficient to state that award of adequate punishment being a matter left to the discretion of the Court, the Court has to judiciously exercise its discretion regard being had to the Principles stated above.
The instances given already must furnish sufficient guidance for exercising the discretion. They should not, however, be taken as rule of thumb but only as principles regulating discretion.
The question of awarding punishment arises only when the guilt of the accused is proved beyond reasonable doubt In doubtful cases or where the evidence is weak or insufficient, it is highly improper to convict the accused and pass a nominal or inadequate sentence which is not open to appeal.
Unappealable sentences are permitted by law on the basis of absolute trust in the bona fides and integrity of the Magistrates.
A sacred responsibility, therefore, rests on them when they pass unappealable sentences.
As already stated the sentences which the Courts may pass must be clear and complete in themselves so as to allow no scope for doubt or misapprehension about the scope and effect thereof. If the accused is convicted of two or more offences, the sentence should be passed separately for each of the offences. It should also be stated whether the punishments should run concurrently or not.
Where the offence is punishable both under the Penal Code and another law, the offender can be punished under one or the other but not under both. If an offence is punishable with death alone as in the case of Section 303 of I.P.C. that punishment alone should be inflicted on conviction. If the sentence is death or imprisonment for life, no sentence other than any of these two can be given.
Fine: – In some cases fine is the only punishment which can be imposed while in other cases fine may be imposed along with the imprisonment In awarding the sentence of fine, in addition to substantial term of imprisonment, it shall be carefully considered whether or not the circumstances of the crime desire both the fine and imprisonment.
