Khaki Mafia Highjacking the judicial systems
Tragic decline of criminal jurisprudenceCops have been successful in cajoling the media to tout law as too lame to curb crime, or deal with hardened and tough criminals. Thus, the criminal justice system yielded, impatiently trying to achieve not only a higher rate of convictions but also negating past precedents set by the Supreme Court whereby persons accused by the police got a fair chance to prove their innocence. Now the legal protection of accused persons has all but disintegrated because of the higher judiciary's rulings that write off not only their own affirmations made in the past but also guarantees provided under the Constitution to protect an individual's life and liberty. Senior advocate Dhairyasheel Patil cites cases where the highest judiciary has gone against its earlier rulings as, for an example, in one shocking decision which overlooks torture of women accused as Dhairyasheel
he dismantling of the criminal law protection of the accused is said to have started about 15 years ago. It began with the perception within the judiciary at the highest levels that criminal law protection was too extensive and needed to be reviewed. It was fuelled in large part by the systematic campaign carried out by senior police officers who came on national television boldly berating the judiciary for taking a hyper technical human rights view, thus letting off criminals at the drop of the hat. The appearance of senior police officers on television right across the country was not accidental but part of a sinister conspiracy to destroy the criminal justice system by shaking the confidence of the higher judiciary in their own system. And to achieve this, policemen appealed to the public in prominent cases saying that while they have captured dreaded criminals and terrorists, the judiciary was letting them out on bail or acquitting them because of notions of fairness, ignoring the victims of theses crimes. The police often referred to the low rate of conviction in IPC cases presenting false information to the public on numerous TV programmes. The public was told that the rate of conviction was as low as 10 percent whereas in fact conviction in IPC cases was about 50 percent. It was often said that conviction in TADA cases was a mere five percent forgetting that the vast majority of TADA accused were kept as undertrials for five years or more before their trials began. Thus, even if they were ultimately acquitted, innocent persons spent at least five years incarcerated.Judges, of course, cannot come on prime time television pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place. Thus, the ideological campaign ultimately had its intended effect. Judges were apparently embarrassed at the low rate of convictions. The public perception, not criminal justice, was uppermost in their minds. At some stage, the judiciary decided that it was necessary to push up the rate of convictions, come what may. This is how we have come to live in the decade of the dismantling of the criminal law protection of the accused. What matters is not criminal justice or criminal jurisprudence. What is most important is that people perceived as being criminals should be put behind bars, denied bail and given the stiffest possible sentence, perhaps even the death sentence. That a judge should entertain reasonable doubt as to the guilt of the accused now plays second fiddle. An overarching objective was to be achieved and that was to change the public's view of the judiciary in criminal trials and to clearly show that the courts were tough on criminals. That this objective could be achieved in another manner which would be in tune with the Constitution as well as protect the rights of the accused persons was never discussed. The constitutional law protection for accused persons was undermined in case after case in a hasty rush to change the common man's perceived view of the judiciary. Nobody bothered to introspect and ask the question as to whether the view perceived was a general one or one relating to the upper middle classes. The vast majority of the poor in any case see the criminal justice system as a great engine of oppression where torture is widespread and condoned by the judiciary and innocent people are roped in while rich get away scot-free. Ultimately, upper middle class opinion held sway and the agenda of the legal system was guided more by how the system would be portrayed in the media than by the desire to uphold constitutional values. It is often unpopular to uphold the Constitution particularly when it is implemented in respect of poor and working class people.
The dilution of criminal lawThe dilution of the criminal law was brought about in strange ways. First of all, the principle that precedents must be adhered to and that decisions of larger benches must be followed by smaller benches even if they disagree was departed from. Decisions of larger benches, even constitutional bench decisions were departed from on the grounds that such a view was "technical" or that the ratio of the larger bench was "only a rule of prudence" or "merely a rule of caution". But criminal law is, at its core, a set of technical rules and procedures that require a judge to be prudent and cautious and which lay down the path by which a judge is able to determine what constitutes reasonable doubt. Once these technical rules are discarded and a judge becomes imprudent and rash, the "beyond reasonable doubt" standard is thrown to the winds and a judge basically does what he likes. He is then able to convict or acquit on the basis of what he may find to be true in a subjective manner or on some sort of gut feeling. When such a development takes place, the rule of law goes into a tailspin. We have, indeed, set out on such dangerous course.
Judges cannot come on prime time TV pointing out that it was due to the appalling level of investigation of crimes and corruption in the investigation process, that acquittals take place
The obliteration of decades of binding precedents of coordinate benches and even larger benches of the Supreme Court takes place when a coordinate bench or a smaller bench side steps a binding precedent of the Supreme Court without referring the issue for determination to a larger bench. That decision then is followed in a series of cases. On being cited in case after case this effectively sets aside the earlier binding precedent.This is not to argue that reforms were not necessary. They certainly were. But for reforms a certain degree of transparency, consultation and deliberation is absolutely necessary. It is not upto individuals to take it upon themselves to depart from decades of well established law and procedure and bring about change in an arbitrary and ad hoc fashion. Nor is it permissible to bring about reforms that have the effect of undermining criminal law jurisprudence itself. Reform of the criminal justice system does not mean the dilution of standards and the lowering of the Bar. It means the raising of the standards of the police and the public prosecutors so that they are able to meet the high standards set by the Supreme Court through its earlier judgments. Sadly, things have proceeded in the opposite direction. It is assumed that the police and public prosecutors will continue to be inept and corrupt. The question then is posed of speeding up of the system and increasing the rate of convictions while assuming that the appallingly low level of investigations must necessarily remain the same. In doing so the judiciary has lost a marvellous opportunity to radically reform police investigations and has instead taken the high standards of criminal law jurisprudence down to the level of the police. And thereby a grave disservice is caused not only to accused persons but also to the public at large. They run the risk of facing indiscriminate arrests, prosecutions and convictions on ever increasing scale. Secondly, the police could read the clear signal to do business as usual. Whatever little desire there was, within the police force, to make the investigations of crimes a professional affair dissipated.Yet the Malimath Report on criminal justice reforms in India suggested precisely such a change. It came in for widespread criticism. Government of India rejected its recommendations. To change criminal law standards requires substantial amendments in the Criminal Procedure Code and the Indian Penal Code. The executive chose not to make such changes. But the legal system went ahead nevertheless bringing about sweeping changes.
Policemen as panchasIn G Srinivas Goud vs State of AP 2005(8) SCC 183 a two-judge bench of the Supreme Court held that "there is no bar in law for a policeman to act as a panch witness".
Sealing not done on the spotIn State of Maharastra vs BC Raghani 2001(9) SCC 1 the Supreme Court held that it was unnecessary to "make a mountain out of a molehill" merely because the seized weapons were not sealed on the spot and were subsequently displayed at a press conference. "We are of the opinion that the trial court adopted a technical approach in appreciating the factum of recovery of weapons" and wrongly held that the evidence relating to the seizure will have to be totally kept aside, the Supreme Court held.The Constitutional Bench decision in the case of Kartar Singh versus State of Punjab 1994(3) SCC 569, not followed by smaller Benches of the Supreme Court thereafter
In Kartar Singh's case, the Supreme Court abdicated doing its duty as a Constitutional Court and was more concerned with executive issues presented in an exaggerated and one-sided fashion. Whereas the executive is concerned with the issue of terrorism per se and is not concerned with balance between terrorist acts on the one hand and the protection of the human rights of accused persons on the other hand, the Supreme Court is concerned precisely with this balance. Para 21 to 23 of the decision and subsequent paragraphs as well are couched in intemperate language more suitable for politicians rather than judges. In Para 83 of the judgment the Supreme Court concludes that the provisions of TADA including the provision for the setting up of designated courts "all postulate the concept of speedy trial in spirit under TADA". Immediately thereafter in Para 85 the Court admits, "In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay".Referring to Section 15 of TADA which made certain confessions made to police officers admissible in evidence, the Supreme Court held in Para 254:"In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement…"(Page 680)
The Court came to the conclusion even though the court was aware of the fact that torture was widespread in India, the Court observed:"… we cannot avoid but saying that we - with the years of experience both at the Bar and on the Bench - have frequently dealt with cases of atrocity and brutality practised by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic methods of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on a few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers." (page 679)"It is heart-rending to note that day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have been committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency." (Page 711)
Now if this is the situation in India, namely, that torture is the principle forensic tool of the police and is extensively used, and as a result confessions to a police officer have never been held to be admissible right through the British period and upto the enactment of TADA, what was the evidence before the Supreme Court on the basis of which they could conclude that it would be legitimate to repose faith in senior police officers because they would be less inclined to use torture? In fact, there was no such evidence. The Supreme Court concluded that confessions made to senior police officers were admissible based on no evidence at all to justify the departure from a rule of law and practice that govern criminal trials for over 100 years. There was also no evidence before Supreme Court that the police practice of torture had declined in any manner. In fact, a perusal of decisions of the Supreme Court could possibly indicate precisely the opposite i.e. an increasing use of torture by the police during investigation of crimes, as manifested in custodial violence cases.The Supreme Court also concluded that a confession made by a person before a police officer is also admissible against the co-accused. Refer to Sukhmant Singh v/s State-2003 AllMR (CR) 2365.
... day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, ... in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency
Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules, 1987 lays down in detail how confessions are to be taken and recorded. In particular the rule requires the police officer to make a certificate in writing to the effect that the confession was taken in his presence and the record contains a full and true account of the confession and that it was voluntarily made. Referring to the Acts and Rules regarding confessions the Supreme Court held, "we strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession". We will now show how, in the following cases smaller benches of the Supreme Court disregarded the directives of the Constitutional Bench and held that the safeguards and the guidelines are directory and not mandatory.A digression at this point is in order. Despite the binding decision of the Constitution Bench in Kartar Singh's case above mentioned, in Jameel Ahmed versus state of Rajasthan - 2003(9) SCC 673 - a two judge Bench of the Supreme Court without reference to the observations of the Constitutional Bench above mentioned held as under:"Rule 15(5) does not ascribe any role to the CMM or the CJM of either perusing the said statement or making any endorsement or applying his mind to these statements. It merely converts the said courts into a post office for further transmission to the Designated Court concerned, therefore, the object of the rule is to see that the statement recorded under Section 15 of the Act leaves the custody of the recorder of the statement at the earliest so that the statement has a safer probative value. In our opinion, transmission of the recorded confessional statement under Section 15 of the Act to the CMM or the CJM under Rule 15(5) is only directory and not mandatory." (Page 688)
Going back to Kartar Singh's case, the Supreme Court then rejected the argument that it would be improper to empower the Executive Magistrates to record confessions under Section 15 of TADA, since they cannot be expected to have judicial integrity and independence.Justice K Ramaswamy made an extraordinary dissent. Referring to section 25 of the Evidence Act which excluded confessions made to the police as evidence he said that it "rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion." (page 724).
Justice Ramaswamy held: "While the Code and Evidence Act seek to avoid inherent suspicion of a police officer obtaining confession from the accused, does the same dust not cloud the vision of superior police officer? Does such a procedure not shock the conscience of a conscientious man and smell of unfairness? Would it be just and fair to entrust the same duty by employing non obstante clause Section 15(1)? Whether mere incantation by employing non-obstante clause cures the vice of afore enumeration and becomes valid under Articles 14 and 21? My answer is "NO", "absolute no, no". The constitutional human rights perspectives projected hereinbefore; the history of working of the relevant provisions in the Evidence Act and the wisdom behind Section 164 of the Code ignites inherent invalidity of sub-section (1) of Section 15 and the court would little afford to turn Nelson's blind eye to the above scenario and blissfully bank on Section 114 III.(e) of the Evidence Act that official Acts are done according to law and put the seal that sub-section (1) of Section 15 of the Act passes off the test of fair procedure and is constitutionally valid". (page 731)… Conferment of judicial powers on the police will erode public confidence in the administration of justice… It not only sullies the stream of justice at its source but also chills the confidence of the general public and erodes the efficacy of the rule of law." (page 732).
Dealing with the argument that senior officers may be trusted to record confessions, he said:"It would, therefore, be clear that any officer not below the rank of the superintendent of police, being the head of the district police administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the object assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution." (page 734).
Justice Sahai also dissented saying:"Killing of democracy by gun and bomb should not be permitted by a State but in doing so the State has to be vigilant not to use methods which may be counter-productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, liberty and justice. … Measures adopted by the State should be to create confidence and faith in the government and democratic accountability should be so maintained that every action of the government be weighed in the scale of rule of law." (page 753)"A police officer is trained to achieve the result irrespective of means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant and this philosophy does not change by hierarchy of the officers. A sub-Inspector of the police may be uncouth in his approach and harsh in his behaviour as compared to a superintendent of police or additional superintendent of police or any higher officer. But the basic philosophy of the two remains the same. The Inspector of police is as much interested in achieving the result by securing confession of an accused person as the superintendent of police. By their training and approach they are different. Procedural fairness does not have much meaning for them. It may appear unfortunate that even after Independence a force which was created to implement harsh and Draconian laws of imperial regime, ruthlessly and mercilessly, has not changed much even in people regime. Dignity of the individual and liberty of person - the basic philosophy of Constitution - has still not percolated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British police it is highly centralised administrative instrumentality meant to wield its stick and spread awe by harsh voice more for the executive than for the law and society."
"A confession made to a police officer is suspect even in England and America. But it has been made admissible subject to the safeguards mentioned above. Why? Because what is provided by Section 26 of the Evidence Act stands substituted by presence of lawyer or near relatives". (Page 762)."Further a confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area. An offence under TADA is considered to be more serious as compared to one under Indian Penal Code or any other Act. Normally graver the offence more strict the procedural interpretation. But here it is just otherwise. What is inadmissible for a murder under Section 302 is admissible even against a person who abets or is possessed of the arms under Section 5 of the Act. How the methods applied by police in extracting confession has been deprecated by this Court in series of decisions need not be reproduced. But all that changed overnight when TADA was enacted. Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities, as observed by Police Commission. The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability, the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to be justified on law existing in other countries." (page 762) … Section 15 of the TADA throws all established norms only because it is recorded by a high police officer. In my opinion our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantees." (page 763)
Confessions recorded under TADA admissible even if accused acquitted of all TADA charges!In State vs Nalini - JT 1999 (4) SC 106 - a three Judge of the Supreme Court held:"The admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences."
This is a shocking proposition of law. Confessions to a police officer were made admissible in evidence for the first time under TADA to meet the exigencies arising out of terrorist offences. Now, even if those offences were not made out the confessional statements would continue to be admissible in evidence for prosecution under normal criminal law where such evidence is not admissible had TADA not been applied. In this manner confessions before a police officer became admissible in evidence under normal criminal law, without the legislature making any amendment in the Code.
A confession made to a police officer for an offence committed irrespective of its nature in non-notified area is inadmissible. But the same police officer is beyond reproach when it comes to a notified area
In Nalini's case the doubt expressed by the Supreme Court in Bilal Ahmed Kaloo vs state of AP - JT 1997 7 SC 272 - was overruled. In Bilal's case the Supreme Court held that the confessions made before a police officer under TADA were admissible in evidence even when the accused is acquitted of offences under TADA. After Nalini's case, a three judge bench of the Supreme Court doubted the correctness of the decision in Nalini's case as under:"We are, however, constrained to record our doubt as regards the state of law as declared by the three-judge bench of this Court in Nalini (supra)
The issue, therefore, is whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear finding that TADA Act has been wrongly taken recourse to or the confession loses its legal efficacy under the Act and thus rendering itself to an ordinary confessional statement before the police under the general law of the land. Nalini (supra), however, answers this as noticed above, in positive terms but we have some doubts pertaining thereto since the entire justice delivery system is dependent upon the concept of fairness. It is the interest of justice which has a pre-dominant role in the criminal jurisprudence of the country. The hallmark of justice is the requirement of the day and the need of the hour. Once the court comes to a definite finding that invocation of TADA Act is wholly unjustified or there is utter frivolity to implicate under TADA, would it be justified that Section 15 be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!!"However, the five-judge Constitutional Bench in Prakash Kumar vs state of Gujarat - JT 2005 11 SC 209 - upheld the ratio of Nalini's case.
Recording of confessionsIn the case of Nazir Ahmed vs King Emperor AIR 1936 PC 253 the Privy Council held that confessions recorded by a magistrate acting under Section 164 had to be recorded in the manner prescribed under the Section and the Standing Orders and in no other way. In that case the magistrate had not recorded the confession as required by law and tendered his oral evidence of the confession made by the accused. It was held that the confession was inadmissible and the accused was acquitted. This was followed in state of UP v/s Singhara Singh reported in AIR 1964 SC 358.Recent smaller benches of the Supreme Court have disregarded the precedent set in Nazir Ahmed's case as in 1998 (1) Bom Cr Cases 631.
Chance witnessIn a long line of decisions starting from Puran vs State of Punjab - AIR 1953 SC 459 - the Supreme Court had rejected the evidence of what was called "nature's call witnesses" who allegedly appeared at the crime scene out of the blue with the explanation that they were at the crime scene by chance while attending the call of nature. In a startling reversal the Supreme Court has in state of UP versus Farid Khan 2005(9) SCC 103 taken the contrary view without any reference to the preceding case law to the contrary. The Supreme Court held:"However, the High Court disbelieved his evidence on two counts - firstly on the ground that he was previously convicted in a criminal case and was sentenced to four years' imprisonment. This, according to the High Court, was a valid ground to discard his evidence. Another ground to disbelieve the evidence of PW 2 Sharif was that he must have been a chance witness and his explanation that he was going to the shop of Safi may not have been true as there were several other "beedi" manufacturers in that locality nearest to his house. Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution. But if such an evidence gets sufficient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence." (Page 106)
In Puran vs state of Punjab, the abovementioned, the three-judge bench of the Supreme Court held:"In these circumstances it could not be said that the Sessions Judge was in error when he rejected the evidence of this witness and described him as a chance witness. Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence." (Page 460)
The SC convicted an accused even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. ... SC breached the right to silence of the accused persons ...
Blood testIn a long line of decisions the Supreme Court had acquitted the accused on account of deficiencies in the investigation, such as the failure of the police to show that the blood stains on the recovered articles corresponded with the blood of the deceased. In a shocking reversal, and once again without referring to the earlier case law, the Supreme Court convicted an accused person even though there was nothing to show that the blood stains on the lungi recovered belonged to the deceased. Not only that the Supreme Court breached the right to silence of the accused persons and in the face of a grossly incompetent investigation used an adverse inference drawn on account of the silence of the accused to convict him. The Supreme Court held as under:"As noted above and as seen from the mahazar, the deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained bloodstains. The Serologist has opined that the bloodstains are of a human being but was not able to establish the blood group. As noted above, learned counsel for the appellant had contended that in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungis belonged to him and were seized from him, for that matter he says he gave the lungis to the investigating officer but he has not explained how the bloodstains which are at least proved to be human blood came to be there on the lungis. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungis at the time of the attack on the deceased." (page 188)
In Kansa Behera vs state of Orissa - 1987 3 SCC 480 - the Supreme Court held:"As regards the recovery of a shirt or a dhoti with bloodstains which according to the serologist's report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and, therefore, it could not positively be connected with the deceased. In the evidence of the investigating officer or in the report, it is not clearly mentioned as to what were the dimensions of stains of blood. Few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in village. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in this view of the matter, in our opinion even this is not a circumstance on the basis of which any interference could be drawn." (Page 484)
Re-examinationDespite a long line of decisions starting from Chanan Singh v/s state of Haryana 1971 SCC (Cr) 714 to the effect that re examination of witnesses in a criminal trial on behalf of the prosecution must be confined to clarification of ambiguities which may have emerged during the cross examination, the Supreme Court in the case of Rammi versus State of MP 1999(8) SCC 649 held without reference to the previous case law as under:"There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross examination he has the liberty to put any question in re-examination to get the explanation. The public prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the public prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.Even if the public prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.A public prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient public prosecutor would gather up such answers falling from the mouth of a witness during cross examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination." (Page 655)
Dying declarationIn a number of decisions culminating in Paparambaka Rosamma versus state of AP 1999(7) SCC 695 Supreme Court repeatedly held that where a doctor was present, the magistrate may record a dying declaration but it is imperative that the doctor certify that the injured was in a fit state of mind at the time of making the declaration. In Paparambaka's case the Supreme Court held:"In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration." (Page 701) … In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessary in a fit state of mind. This distinction was overlooked by the courts below". (page 702)
Earlier, in Mani Ram versus state of MP 1994 (Supp) 2 SCC 539 the Supreme Court similarly held:"… in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. These are some of the important requirements which have to be observed". (Page 540)
In innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot
Both the three-judge Bench decisions in Paparambaka's case as well as the decision in Mani Ram's case was departed from by the Supreme Court in Koli Chunilal Savji versus state of Gujarat - 1999 (9) SCC 562 - in the following fashion:"In the case of Mani Ram versus state of MP, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given." (page 566)
Ultimately, a Constitutional Bench of the Supreme Court was formed, and in Laxman versus state of Maharashtra - 2002(6) SCC 710 - the Constitutional Bench referring to its decision in Paparambaka's case held that the view that a doctor's certificate stating that the injured was in a fit state of mind to make a statement was necessary for a dying declaration to be relied upon, was a view "too broadly stated and is not the correct enunciation of law". (Page 715)
SealingIn innumerable decisions culminating in Amarjeet Singh versus state of Punjab (a three-judge bench decision) 1995 (supp) 3 SCC 217 -- the Supreme Court repeatedly held that sealing has to be done on the spot by the investigation officer and that non-sealing of the articles recovered or seized would be considered a serious infirmity. In Amarjeet Singh's case the Supreme Court held:"The non-sealing of the revolver on the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out." (page 218).
All this long line of precedents was discarded by the Supreme Court in 2002 Cr LJ 944, once again without noting judgments to the contrary, by criticising the approach as "a technical approach" and condemned the trial court for making "a mountain out of a mole hill on such a frivolous ground". (Page 34). The Supreme Court held as under:"Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of a molehill on such a frivolous ground."
Thereafter in Ganesh Lal versus state of Rajasthan - 2002(1) SCC 731- a similar observation on law is recorded:"In such a situation, merely because the articles were not sealed at the places of seizure but were sealed at the police station, the recovery and seizure do not become doubtful." (Page 736)
Similarly in Rajendra Kumar vs state of Rajasthan - 2004 SCC (Cri) 713, where a submission was made by counsel for the accused to the effect that the bangles allegedly recovered were not sealed. The Court held:"We do not think much importance can be attached to the fact that these bangles were not sealed at the time when recovery was made." (Page 716)
Arrest of femalesDeparting from a long tradition of not arresting women at night and not arresting women in the absence of a female constable, the Supreme Court in state of Maharashtra versus Christian Community Welfare Council of India - 2003(8) SCC 546 - held:"Herein we notice that the mandate issued by the High Court prevents the police from arresting a lady without the presence of a lady constable. The said direction also prohibits the arrest of a lady after sunset and before sunrise under any circumstances. While we do agree with the object behind the direction issued by the High Court in sub-para (vii) of the operative part of its judgment, we think a strict compliance with the said direction, in a given circumstance, would cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused. While it is necessary to protect the female sought to be arrested by the police from police misdeeds, it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises, therefore, we think this direction issued requires some modification without disturbing the object behind the same. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable." (page 549)
Exaggeration by witnessesIn their desire to push up the rate of conviction lies, exaggeration, embroidery and emballishments have become intrinsically mixed up with admissible evidence against the accused in criminal trials. Normally, in any other jurisdiction, the evidence of witnesses who lie or exaggerate would never be the basis of a conviction. The evidence would be frowned upon. In most jurisdictions in America or Europe, the evidence would be discarded lock, stock and barrel. In India however, the Supreme Court has laid down a very low standard for accepting untruthful evidence against accused persons. In SA Gaffar Khan versus VR Dhoble - 2003(7) SCC 749 - the Supreme Court held as under:"The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars… It is merely a rule of caution… The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main… The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment." (Page 764).
In a subsequent case Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cri) 32, the Supreme Court went even further holding:"Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained." (Page 42)
These observations of the two-judge Bench of the Supreme Court are directly contrary to coordinate benches and even larger benches. In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses who are lying and exaggerating and certainly not in the case of witnesses whose testimony has been found substantially false.
In case after case, the Supreme Court has held that if a witness is found lying then it would be very hazardous to rely on part of his evidence while rejecting the other part. The notion of separating chaff from the grain is alien to criminal law jurisprudence and cannot be used in the context of witnesses ...
In the case of RP Thakur versus state of Bihar - 1974 (3) SCC 664 - Supreme Court held:"If Nakuldeo could involve one person falsely, one has to find a strong reason for accepting his testimony implicating the others." (page 665)
Similarly in Suraj Mal versus State - 1979(4) SCC 725 - the Supreme Court held:"It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses … In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible." (page 726)
POTAIn Kartar Singh's case, the Supreme Court was called upon to decide a challenge to the constitutional validity of TADA. In the Peoples Union for Civil Liberties versus Union of India 2004(9) SCC 580, the Supreme Court decided the constitutional validity of the Prevention of Terrorism Act, 2002. By the time the case came to be decided on the December 16, 2003, there were widespread protests against the misuse of TADA and the roping in of innocent people. When this was brought to the notice of Supreme Court at the beginning of the hearing the Supreme Court held:"Another issue that the petitioners have raised at the threshold is the alleged misuse of TADA and the large number of acquittals of the accused charged under TADA. Here we would like to point out that this Court cannot go into and examine the "need" of POTA. It is a matter of policy. Once legislation is passed the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional". (page 598)
As in Kartar Singh's case the Supreme Court missed the bus. The issue was not "a mere possibility of abuse" but rather one of persistent and rampant abuse of a statute. As stated earlier, while the Supreme Court was hearing the case, there were widespread allegations of misuse of POTA and there were numerous articles appearing in the newspapers on the misuse of POTA by the authorities. In circumstances where the petitioners are in a position to demonstrate that the statute and the misuse of the statute are so intrinsically interwoven that it is impossible for any court to deal with one without the other, was it permissible for the Supreme Court to dismiss the challenge and ignore widespread misuse of the statute in a summary manner? Ultimately, Government of India itself accepted that POTA was widely misused and that there was widespread public dissatisfaction with the Act. The Act was repealed. POTA was considered, as was TADA, as a black period of criminal law jurisprudence. Yet the Supreme Court in both the instances gave these repressive statutes a clean chit.When it was argued that lawyers and journalists who are bound by their code of conduct and ethics to maintain confidentiality with respect to matters covered by lawyer - client and journalist - source privilege, the Supreme Court dismissed this off-hand as under:"It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics… There is also no law that permits a newspaper or a journalist to withhold relevant information from courts though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against the Press Council… Of course the investigating officers will be circumspect and cautious in requiring them to disclose information. In the process of obtaining information, if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies." (page 603)
Dealing with Section 32 of POTA which made it admissible confessions made to a police officer and also dealing with Section 32(4) and (5) which require the confession to be sent to magistrate, the Supreme Court held:"In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the Magistrate's responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer." (page 612)
In the earlier section dealing with TADA we had demonstrated how smaller benches of the Supreme Court disregarded the Constitutional Bench decision in Kartar Singh's case holding that the guidelines laid down by the Court in that case were to be scrupulously followed. Now in the POTA case we have set out the finding of the Supreme Court above mentioned only to demonstrate that subsequent smaller benches of the Supreme Court departed from this binding observation in the PUCL case to hold that the magistrate has virtually no role to play and almost acts only as a post office.
Medical vs ocular evidenceIn a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence. There are no doubt cases where the two, despite apparent contradiction, can be reconciled. However in cases where there is a clear contradiction which cannot be explained reasonably, the Supreme Court has repeatedly held that the benefit of doubt will go to the accused persons. Now in a startling reversal, once again without reference to binding precedent, the Supreme Court has, in Gangadhar Behera & Ors vs state of Orissa - 2003 SCC (Cr) 32, held:"At this juncture, it would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant." (Page 44)
This two-judge bench decision is directly contrary to the three-judge bench decision in Mitra's case above-mentioned where the magistrate made a direction to the Jury as under:"Now, gentlemen, when a medical witness is called as an expert he is not witness of fact. Medical evidence of an expert is evidence of opinion, not of fact. Where there are alleged eyewitnesses of physical violence which is said to have caused the hurt, the value of medical evidence by prosecution is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence, or any medical evidence which the defence might itself chose to bring is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Therefore, you must remember this particular point of view that if you believe the eyewitnesses, then there is no question of having it supported by medical evidence, unless the medical evidence again in its turn goes so far that it completely rules out all possibility that such injuries could take place in the manner alleged by the prosecution and that is a point which you should bear in mind, because if you accept the evidence of the eye-witnesses, no question of further considering the medical evidence arises at all." (Page 1034)
The three-judge bench of the Supreme Court disagreed:"I do not think that the direction is either correct or complete. It is incorrect, because a medical witness who performs a post-mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. Further, the value of a medical witness is not merely a check upon the testimony of eye-witnesses; it is also independent testimony, because it may establish certain facts quite apart from the other oral evidence. If a person is shot at close range, the marks of tattooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds, would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person." (Page 1034)
Similarly in Mohar Singh vs state of Punjab - 1981 Supp. SCC 18 - the Supreme Court had held:"In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants on such evidence." (Page 20)
Report to the magistrate Section 157 CrPC requires the Officer in charge of a police station to "forthwith" send a report to the magistrate on the police receiving information in respect of the commission of an offence. There is a long line of binding precedent of the Supreme Court (AIR 1976 SC 2423, AIR 1980 SC 638) to the effect that a late dispatch of the report to the magistrate could provide a basis for suspicion that the FIR was the result of consultation and deliberation and that it was recorded later than the date and time mentioned. However, in state of J&K vs S Mohan Singh - 2006 9SCC 272, where the crime is said to have occurred on 23.7.85 at 6 pm, the FIR was lodged at 7.20 pm and a copy of the FIR was received by the magistrate on the next day at 12.45 pm the Supreme Court held:"In our view, copy of the first information report was sent to the magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the magistrate." (Page 275)
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3713 - the Supreme Court introduced a new concept namely "extraordinary delay". Without reference to the previous case law, the law on the point is changed in the following manner:"Extraordinary delay in sending the copy of the FIR to the magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial." (page 3174)
Names of witnesses omitted The Supreme Court has held repeatedly that if the name of the witnesses are omitted in the FIR, unless a plausible explanation is given, the omission could be treated as a ground to doubt the evidence. In Marudanal Augusti versus state of Kerala - 1980(4) SCC 425 - the Supreme Court acquitted the accused persons because though it was stated in the Court evidence that they had witnessed the assault, they were not mentioned at all in the FIR. To the contrary, however, in Rajkishore Jha vs. state of Bihar - 2003 11 SCC 519, the Supreme Court held: "The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence." (Page 520)
In a series of decisions starting with NB Mitra vs SC Roy - AIR 1960 SC 706 - the Supreme Court has acquitted accused persons when the medical evidence was explicit and the ocular evidence was clearly at variance with the medical evidence
Similarly in Anil Rai versus state of Bihar - AIR 2001 SC 3173 - the Supreme Court held that the non-inclusion of the names of the witnesses in the FIR could have been on account of the fact that the wife who had lodged the FIR was perturbed on the murder of her husband.
The case of the defenceIn a striking unsettling of well settled criminal law procedure and jurisprudence, not referred to in the judgment, the Supreme Court has, in Tarun Bora vs state of Assam - 2002 SCC (CRI) 1568 - observed as under:"In cross-examination the witness stated as under:"Accused Tarun Bora did not blind my eyes nor he assaulted me."This part of cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused Tarun Bora as admitted. The only denial is that the accused did not participate in blindfolding the eyes of the witness nor assaulted him. (Page 1572)
We have already noticed that in the cross-examination of PW 1, a suggestion was put to him that the appellant Tarun Bora had neither participated in blindfolding him nor assaulted him. This is clearly indicative of the presence of the appellant and participation in the kidnapping episode." (Page 1573) Similar is the case reported in 2002 SCC (Cr) 217.
Inadmissible evidenceIn BS Panchal vs state of Gujarat - AIR 2001 Supreme Court 1158 - the Supreme Court began by remarking:"We have reached the stage when no effort shall be spared to speed up trials in the Criminal Courts."
The Court then went on to observe:"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." (Page 1158)"Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item or 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. There is no illegality in adopting such a course." (Page 1159)
There are major problems with this approach. First, in all jurisdictions trial court judges are expected to deal with the objections on the spot in criminal trials. There was no evidence before the Supreme Court to indicate that the practice of deciding objections as to admissibility of evidence there and then, was "archaic". This observation is based more out of frustration than a serious attempt to deal with delays in criminal trials. Secondly, recording all objections and proceeding nevertheless in a criminal trial may cause grave prejudice to the accused and bias the mind of the judge as inadmissible evidence may come on record, albeit temporarily. Thirdly, it allows the judge to be mechanical in his approach and behave more as a recorder of evidence rather than an adjudicator. It is one thing to say that complex issues relating to admissibility of evidence may be temporarily postponed after recording the objections. It is an entirely different thing to lay down a rule of this sort for every objection.
Standard lowered In a startling departure from the well established standard of proof for criminal cases of "beyond reasonable doubt" the Delhi High Court has, without reference to binding case law to the contrary now lowered the standard to "moral certainity". In Alamgir vs state - 2003 1 SCC 21 - a two-judge bench of the Supreme Court while noticing that a High Court had defined the standard thus chose to leave it alone:"Incidentally, the High Court did emphasise on the true and correct meaning of the phraseology "reasonable doubt" to be attributed thereon and it is on this score, the High Court records:'Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge'."We are, however, not expressing any opinion with regard thereto." (Page 26)
This is directly contrary to the Constitutional Bench's decision in Haricharan Kurmi vs state of Bihar - AIR 1964 SC 1184 - where the constitutional bench categorically said:"In criminal trials, there is no scope for applying the principle of moral conviction." (Page 1184)
Accused do not figure Once again contrary to a long line of binding precedent to the effect that if the names of the accused do not figure in the statements made to the police during investigation, then normally such an omission could possibly cast a doubt on the prosecution case. However, in Alamgir versus State - 2003(1) SCC 21 - the Supreme Court held:"Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 CrPC, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official? Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view cannot but be in the negative." (page 27)
Confessions against co-accusedWe start with the three-judge Bench decision of the Supreme Court in Kashmira Singh versus state of Madhya Pradesh - AIR 1952 SC 159 - where it was held as under:"The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (page 159)
As regards its use in the corroboration of accomplices and approvers, a co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. The tendency to include the innocent with the guilty is peculiarly prevalent in India and it is very difficult for the court to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measures implicates such accused." (page 159)The three-judge bench decision in Nathu versus state of Uttar Pradesh - AIR 1956 SC 56 - where it was held therein:"… that such statements were not evidence as defined in S. 3 of the Evidence Act, that no conviction could be founded thereon, but that if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it." (Page 154)
This was followed by another three-judge Bench decision in Ram Chandra versus state of UP - AIR 1957 SC 381 - where the Court held:"Under S. 30 confession of a co-accused can only be taken into consideration but it not in itself substantive evidence." (Page 560)
Then we have the decision of the Constitutional Bench of the Supreme Court in the case of Haricharan Kurmi versus state of Bihar - AIR 1964 SC 1184 - where the Supreme Court held that:"... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. (para 12)
Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence." (page 844)
... in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, ...
Directly contrary to this line of binding precedent is a decision of the two-judge Bench in K Hashim versus state of TN - 2005(1) SCC 237 - where the Supreme Court held:"If it is found credible and cogent, the court can record a conviction even on the uncorroborated testimony of an accomplice." (Page 247)
False defence as evidenceThere is a plethora of binding precedents to the effect that a false defence can never be taken as substantive evidence. In the case of circumstantial evidence, it is only when the chain of circumstances is complete that a false defence can at best be considered an additional circumstance. In Shankerlal G Dixit versus state of Maharashtra - 1981(2) SCC 35 - it was held:"… falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." (page 43)
Directly contrary to this is the two-judge Bench decision in state of Maharashtra versus Suresh - 2000(1) SCC 471 - where the Supreme Court held:"A false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain." (page 480)
A study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence
This was followed by another two-judge Bench in Mani Kumar Thapa versus state of Sikkim - 2002(7) SCC 157 - where the Supreme Court held:"If the said principle in law is to be accepted, the statement of the appellant made under Section 313 CrPC being palpably false and there being cogent evidence adduced by the prosecution to show that the appellant had given two other versions as to the incident of 12.2.1988, we will have to proceed on the basis that the appellant has not explained the inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances." (page 167)
Condonation of tortureIn Kamalanantha vs state of TN - 2005 5 SCC 194 - the women who had alleged that they were raped stated: "After the police beat us, myself and other girl informed that we were raped by Premanandha. " In a shocking condonation of torture making admissible evidence taken after beating of the witnesses by the police, the Supreme Court held:"It is in that context the High Court held that the so-called beating could have meant to shake off their inhibition and fear, to make them free to say what they wanted to say. In the given facts and circumstances of this case, beating will mean to remove the fear psychosis and to come out with truth. We do not find any infirmity in the concurrent findings recorded by both the courts below on this court".
Extr-judicial confessionsA study of the criminal law reports from 2001 onwards shows an increasing tendency of the superior courts to use extra-judicial confessions as substantive evidence in the conviction of the accused, on par with other forms of evidence. The latest is Ram Singh vs Sonia - 2007 2 SCC (Crl.) 1. This is contrary to a long line of binding precedent holding, as in Rahim Beg vs state of UP - 1972 3 SCC 759 - that "the evidence of the extra judicial confession is a weak piece of evidence." (Page 765)
162 CrPC statementsThe superior courts are increasingly inclined to brush aside objections relating to statements made in court which are improvements from the statements made to the police during investigation. In a long line of decisions, as in Yudhishtir vs state of MP - 1971 3 SCC 436 - the Supreme Court has originally held that crucial omissions in the statements to the police must be considered an improvement and may make the evidence before the court to be considered as "false and unacceptable". (Page 439)
- The author is former chairperson of the Bar Council of India