RICHIK DADHICH

1742

UG IV SEMESTER

LAW OF EVIDENCE

END TERM EXAMINATION

TOTAL PAGES – 12

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ANSWER 1

Section 10 of the Indian Evidence Act provides for things said or done by conspirator in
reference to common design. The section provides that if there is reasonable ground to
believe that two or more persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of such persons in reference to
their common intention, after the time when such intention was first entertained by any one of
them, is a relevant fact.

Conspirators are jointly and severally liable for the actions of the other conspirators in the
pursuit of the objectives of the conspiracy. Thus, the acts done by any one in furtherance of
their common purpose is considered to be the acts of all. Even though the application of the
doctrine of vicarious liability is very rare under criminal law, the Indian Evidence Act, 1872
makes two major exceptions to this general rule of criminal law Section 10 for conspiracy,
and Section 30 which permits proof of confession of an accused against other co-accused if
its conditions are satisfied.

Under Section 10, conspiracy arises when two or more persons come together to commit an
offence or actionable wrong. ‘Conspiring together’ consists of sharing the common intention
and the liability is to be found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention.

Now, the essential ingredients required for the applicability of Section 10 could be gathered
from the case of Bhagwan Swarup v State of Maharashtra, where the Court held that the
essential requirements under Section 10 include a reasonable ground for a Court to believe
that two or more persons are members of a conspiracy, common intention, anything done by
the person should have been done after the intention was formed by any of them. Further, it
would also be relevant for the said purpose against another who entered the conspiracy
whether it was said, done or written before he entered the conspiracy or after he left it; and it
can only be used against a co-conspirator and not in his favour.

Regarding the ‘common intention’ aspect, it has been observed in State of Rajasthan v
Shobha Ram that is a state of mind of an accused which can be inferred objectively from his
conduct displayed in the course of commission of crime and also from prior and subsequent
attendant circumstances. Further, in Ramaswami Ayyangar v State of Tamil Nadu that it was
held that common intention is not an ingredient of the offence that all the parties should agree
to do a single illegal act. It may comprise the commission of a number of acts.

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In the context of Section 10, it was held in the oft cited case of Mirza Akbar v. Emperor, it
was observed that the common intention must be existing at the time when the thing was said,
done or written by one of them. Things said, done or written while the conspiracy was on foot
are relevant as evidence of the common intention. However, once the conspiracy is no longer
operational or has ceased to exist, the parties could not be held liable. This notion has also
been affirmed in N. Ramaratnam v. Emperor, where the Court held that once a conspirator is
arrested the conspiracy on his part comes to an end, the statements by other conspirators after
his arrest are not admissible against the person arrested.

Now, with respect to ‘reasonable grounds to believe’, it has to be noted that the Section will
come into play only when the Court is satisfied that there is reasonable ground to believe that
two or more persons have conspired together to commit an offence or an actionable wrong.
With regards to this, it has been held in Kehar Singh v. State that the application of the
second part of section 10 is contingent upon there being a reasonable ground under the first
part. Thus, it is enough if the prosecution can adduce prima facie evidence to persuade the
Court to believe that a conspiracy is afoot.

Once the reasonable grounds and common intention have been established, the parties could
be made liable, given that the said act or statement was made during the period of subsistence
of the agency. In Hamiza v State of Kerala, it has been observed that the principle of Section
10 is to ensure that one person shall not be made responsible for the acts and deeds of another
until some relationship in the nature of agency has been established between them. In oher
words, the acts, words or writing of another which is to be attributed vicariously to the person
charged must be in reference to their common intention or design. If the conditions laid down
therein are satisfied, the act done or statement made by one is admissible against the co-
conspirators.

ANSWER 3

Section 24 and 25 of the Evidence Act provide for circumstances where the confession made
by an individual would not be admissible as evidence. In order to better understand these
provisions, we first need to look into the nature of confessions in the context of Evidence Act.

Normally, nobody would like to admit his guilt as he is fully aware that the same would be
used against him. That apart, there is constitutional right for the accused that he shall not be
subjected to any testimonial compulsion. Under Article 20(3) of constitution, accused person
has a protection from being compelled to be a witness against himself.

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In Ibrahim v The King, the Court observed that confession is a voluntary when it is made
without fear of prejudice or hope of advantage. Thus, a confession, like admission, is
considered relevant because it is a self-harming statement and nobody would make a
statement harming his interests unless it is true. Since the modern basis of confession rule is
the rule against self-incrimination, it is the combination of voluntariness and fairness that
forms the basis of admissibility. Thus, if the confession is made to a person in authority, to
the police or in police custody or in response to incriminating questions without the accused
being warned, the fairness requirement will be breached, and the confession becomes
inadmissible. In this context, we will now analyse Sections 24 and 15.

Section 24 provides that a confession made by an accused person is irrelevant in a criminal

proceeding, if the making of the confession appears to the Court to have been caused by any
inducement, threat or promise, having reference to the charge against the accused person,
proceeding from a person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him reasonable, for supposing that by
making it he would gain any advantage or avoid any evil of a temporal nature in reference to
the proceedings against him.

The Section provides that it is sufficient if it ‘appears’ to the Court that the confession was
caused by inducement and it is not necessary that it should be as strong as proved with a high
degree probability. The expression ‘appears’ connotes that the Court need not go to the extent
of holding that the threat has in fact been proved.

While discussing the degree of certainty required under Section 24, the Supreme Court had
observed in State v Navjot Sandhu alias Afsan Guru, that if the facts and circumstances
emerging from the evidence make it reasonably probable that the confession could be the
result of threat, inducement or pressure, the court will refrain from acting on such confession,
even if it be a confession made to a Magistrate or a person other than police officer.

It has to be noted that the mere existence of an inducement is not enough to attract the bar of
Section 24 and the inducement must have had the desired effect of persuading him to make a
confession which he would not have otherwise made but for that inducement etc. The
inducement, threat or promise must give the accused grounds that appear to him reasonable
grounds for supposing that he would, by making the confession, gain any advantage or avoid
any evil of temporal nature in reference to the proceedings against him. In the case of Pyare
Lal v Rajasthan it has been held that this assessment will have to be case-specific and the

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Court will have to put itself in the position of the particular accused and decide whether the
accused has been subjected to pressure.

Further, such an inducement or threat need not be express and it can be implied. The
superior-inferior relationship between the person holding out the threat and the accused could
be such that a word or even a gesture could produce the threat-benefit perception. In Emperor
v Dinanath Sundarji, the accused, in making a confession before a Magistrate, admitted that
he had been asked to tell the truth by the Sahib who said he would be released, if he told the
truth, it was held that the confession was vitiated by inducement.

Now, Section 25 provides that no confession made to a police officer shall be proved as
against a person accused of any offence. Here, unlike Section 24 which is lays down many
conditions before a confession can be treated as barred by it, Section 25 bars a confession
made to a police officer in one simple and straight forward sentence. While under Section 24
involuntariness of confession has to be established by proving ‘inducement, threat or
promise’, under section 25 the involuntariness is presumed and need not be proved.

The interpretation of the term ‘police officer’ is crucial for the applicability of this section. In
R v Hurriboleit was held that he term ‘Police office’ should be read not in any strict technical
sense, but according to its more comprehensive and popular meaning. In Raj Kamar Karwal v
UOI, the Court held that the question whether or not a person is considered as a police officer
depends, not on his designation as officer or not even his nomenclature, but on whether he
has been conferred by the enactment concerned with the real powers and functions of a police
officer.

Thus, he must not only have power to make investigation of crime but to file a report against
criminal. In Public Prosecutor v Parmashivam, the Court held that when an officer was
empowered to investigate all offences punishable under an Act and to conduct such
investigation, with powers, duties, privileges and liabilities of an officer-in-charge of a police
station under the Criminal Procedure Code when investigating a cognizable offence, he
would be a police officer within the meaning of Section 25 of the Evidence Act too.

It has been held in Aghnoo v State that a confessional statement made in the form of an FIR
to the police officer would not be admissible. It has also been clarified in Khatri Hemraj v
State of Gujarat that such a confession could be made before the investigation, after it, or
even during the custody. The whole spirit of this section is to exclude confessions to the
police, and the moment a statement is found to amount to a confession, it does not matter of

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what crime it is said to be a confession. This is the reason why the section has been given a
broad interpretation to this section, which is inclined towards protecting the accused.

ANSWER 4

Section 9 of the Evidence Act provides for the admissibility of facts which are necessary to
explain a fact in issue or relevant fact. The section deals with that kind of evidence which if
considered separate and distinct from other evidence would be irrelevant; but if it is taken
into consideration in connection with some other facts, proved in the case it explains and
throws light upon them. As per this section, facts which establish the identity of accused are
relevant.

Now, test identification parades are conducted as a part of investigation to establish the
identity of a person or even a thing. The object of conducting the test identification parade of
a person is the same as in the case of identification of things or articles. Here also the
evidence of test identification is only a supporting evidence and not substantive evidence. It
helps only to corroborate the evidence of the identification witnesses. It has been held in
Ramkrishnan v. State of Bombay State, that the object of conducting a test identification
parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom
they suspect is really the one who was seen by them in connection with the commission of
the crime. Second is to satisfy the investigating authorities that the suspect is the real person
whom the witnesses had seen in connection with the said occurrence.

 It has to be noted that the record of test identification itself is not substantive evidence
according to law, without proof of those facts recorded. It can be used either for
corroboration or for contradiction. Thus, it is true that it may even be rejected if it has not
been conducted properly.
Regarding this, the Court has held in Sidhartha Vashisht Sharma v State that the primary
purpose of a prior test identification, is to test and strengthen the trustworthiness of that
evidence. In Prakash v State of Karnataka, it has been held that identification parade is
not mandatory nor can it be claimed by the suspect as a matter of right.
 In the case of Budhsen v. State of UP, it was held that the test identification parade is not
a substantive piece of evidence and hence does not hold a high evidentiary value. Thus,
the Courts could not solely rely in the TIP to proceed in a case. A similar stance has also
been taken by the Court in Munshi Singh Gautam v. State of MP, where it was held that
much evidentiary value cannot be attached to the identification of the accused in Court

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 where identifying witness is a total stranger who had just a fleeting glimpse of the person
identified or who had no particular reason to remember the person concerned, if the
identification is made for the first time in Court. In Ashanand v State of Rajasthan, it was
also observed that even though TIP is one of the important ways to ascertain the
credibility, the non-holding of a TIP could not be the sole ground for vitiating a trial.
 It has been observed in Brij Mohan v State of Rajasthan that there is no time limit within
which the TIP must be held. However, as the memory of the witnesses gets dimmer and
dimmer with passage of time, TIP held at the earliest and without undue delay inspires
more faith in the fairness of the parade.
Further, while deciding on the reliability of TIP in Mulla v State of UP, the Court
observed that there are three requirements to be fulfilled. Firstly, an identification parade
ideally must be conducted as soon as possible to avoid any mistake on the part of
witnesses. Secondly, this condition can be revoked if proper explanation justifying the
delay is provided and the authorities must make sure that the delay does not result in
exposure of the accused which may lead to mistakes on the part of the witnesses.
 Apart from this, police officer should not be present at the time of identification parade. If
it is conducted in the presence of police officer, it amounts to a statement within the
meaning of Sec. 162 CrPC, and might also attract Section 25 of the Evidence Act, which
would make it inadmissible in evidence.
Thus, in view of the provisions of section 162 of CrPC, it is not the police but the
magistrate who conducts the parade. While the specific requirements may vary depending
on the Police Manuals and the Rules of Practice and Procedure, reference can be made to
the Andhra Pradesh Manual, which provides that, the accused must be made to stand in a
line along with some other non-suspect persons with physical features like height, colour
similar to those of the suspect in the proportion of a minimum of 1:5 and a maximum of
1:10. Persons already known to the identifying witnesses should not be selected to stand
along with the suspects in the parade. They must be made to take their positions, along
with the persons with whom they are mingled in a line. Further, after the identification of
one witness is over, care should be taken to see that the witness does not mingle or
communicate with other witness for whom identification parade is yet to be conducted.
 In Satya Narayan and Ors. v. State, the Court also observed that when several suspects are
required to be identified and they are put up for identification separately, care should be

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 taken to see that the innocent persons mixed up or changed with every change of suspect,
for otherwise the benefit of holding separate identification proceedings would vanish.
 In State of Bombay v Kathi Kalu Oghad, it was held that to be a witness’ is not equivalent
to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely
making of oral or written statements but also production of documents or giving materials
which may be relevant at a trial to determine the guilt or innocence of the accused. It is
not the accused who is called upon to testify against himself but somebody else on seeing
him and others now in the parade may have something to say later on. The accused does
not produce any evidence or perform any evidentiary act. Hence, TIP would not be in the
violation of Article 20(3) of the constitution.

ANSWER 5

Chapter II of the Evidence Act pertains to the relevancy of facts. While Section 7 provides
for facts which are the occasion, cause or effect of facts in issue to be relevant, Section 8
gives relevancy to previous or subsequent conduct. Further, Section 106 states that s when a
fact is within the knowledge of a person, the burden is upon him to establish his innocence.

Now, the notion that last seen together theory should not be taken as a substantive piece of
evidence but must be corroborated with other circumstantial evidences could be understood
in the context of various case laws which elaborate the rationale behind using this doctrine
and in what circumstances it would be applicable.

In Sahadevan v State of TN, it was held that the last seen theory is applicable where the time
gap between the point of time when the accused and deceased were last seen alive and when
the deceased is found dead is so small that probability of any other than the accused being the
author of the crime becomes impossible. In the absence of eye witness and tangible evidence,
it is the last resort of the prosecution in a murder case, the person last seen with the victim is
presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or
come up with an alibi. Thus, the foundation of the theory is based on probability and cause
and connection. Last seen together rule is used when no evidence is recovered after the
investigation and it is assumed that the person last seen together with the deceased has a
reason to commit the crime.

In SK Yusuf v. State of West Bengal, the Court held that the last seen theory comes into play
where the time gap between the point of time when the accused and deceased were last seen

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alive and when the deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible.

Similarly, it has been held by the Supreme Court in Nizam v. State of Rajasthan that if a
person is last seen with the deceased, he must offer an explanation as to how and when he
parted company. He must furnish an explanation which appears to the court to be probable
and satisfactory. If he does so he must be held to have discharged his burden. If he fails to
offer an explanation on the basis of facts within his special knowledge, he fails to discharge
the burden cast upon him by Section 106 of the Evidence Act.

Now, it must be noted that the last seen together theory falls under the ambit of circumstantial
evidence under Section 3 of the Evidence Act. Circumstantial evidence is unrelated facts that
when considered together can be used to infer a conclusion about something unknown.
Circumstantial evidence can be the basis for a conviction if circumstances establish the ‘chain
of events’ leading to the guilt of the accused and commission of the crime without other
possibilities. The chain of circumstances should be complete without gaps to the extent no
other conclusion or inference apart from the guilt of the accused can be drawn.

While discussing the nature of last seen together theory in this context, it was observed in
Rambraksh v State of Chhattisgarh that to record a conviction, the last seen together itself
would not be sufficient and the prosecution has to complete the chain of circumstances to
bring home the guilt of the accused. This means that the theory has to be applied in the
context of other relevant facts and provisions. For instance, if the husband and wife were
together in the bedroom and the wife was found killed, he must offer an explanation as that is
only within his knowledge within the meaning of section 106 also.

The Supreme Court has taken the consistent view that where the only circumstantial evidence
taken resort to by the prosecution is that the accused and the deceased were last seen together,
it may raise suspicion but it is not independently sufficient to lead to finding of guilt. In
Jaswant Gir v State of Punjab, where there was a considerable time-gap between the deceased
boarding the vehicle of the accused and the time the dead body was found, it was held that in
absence of any other links in the chain of circumstantial evidence, it was not possible to
convict the accused solely on the basis of the last seen evidence.

In other words, it could be said that the last seen together theory shifts the burden of proof on
the accused, requiring him to explain how the incident had occurred. Failure on the part of the
accused to furnish any explanation in this regard, would give rise to a very strong

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presumption against him. Since it is circumstantial in nature, it has to be decided carefully on
a case to case basis about whether the presumption would be sufficient to hold the accused
guilty. It cannot alone act as a conclusive proof, as held in Ashok v State of Maharashtra.

A similar stance has also been taken by the Court in Sahadevan v State of TN, where it was
observed that the theory should be applied while taking into consideration the case of the
prosecution in its entirety and keeping in mind the circumstances that precede and follow the
point of being last seen.

Now, to conclude on the basis of the above cited case laws, it would be apt to state that it is
not prudent to base conviction solely on the last seen theory. As held in the recent case of
Nizam v State of Rajasthan, last seen theory should be applied taking into consideration the
case of the prosecution in its entirety and keeping in mind the circumstances that precede and
follow the point of being so last seen.

ANSWER 6

Section 11 of the Evidence Act provides for a situation when facts not otherwise relevant
become relevant. The section thus declares the relevancy of a class of facts which in
themselves are not relevant, but which become relevant because of their connection with
some relevant fact on which the prosecution relies.

Section 11 is considered to be a residuary section as most of the facts that are typically
admissible under this section are also relevant under one or the other sections of the chapter
on relevancy. Illustration (a) to section 11 is an example of the plea of alibi. The plea of alibi
postulates the physical impossibility of the presence of the accused at the scene of offence by
reason of his presence at another place. It would be successful if it is shown that the accused
was so far away at the relevant time that he could not be present at the place where the crime
was committed.

Naturally, distance is a material factor for alibi as it is based on the assumption that the fact
of presence elsewhere, which would be inconsistent with the presence of the accused at the
place and time of the alleged occurrence, and the participation in it.

In the case of Dudh Nath Pandey v. State of U.P., it was held by the Supreme Court that the
plea of alibi postulates the physical impossibility of the presence of the accused at the scene
of offence by reason of his presence at another place. The plea can therefore succeed only if it
is shown that the accused was so far away at the relevant time that he could not be present at

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the place where the crime was committed. Here, the Court also stressed that defence
witnesses are entitled to equal treatment with those of the prosecution, and that the courts
ought to overcome their traditional, instinctive disbelief in defence witnesses.

The plea of alibi taken by the accused needs to be considered only when the burden, which
lies on the prosecution, has been discharged satisfactorily. If the prosecution has failed in
discharging its burden of proving the commission of crime by the accused beyond any
reasonable doubt, it may not be necessary to go into the question whether the accused has
succeeded in proving the defence of alibi.

Now, in Jayantibhai Bhenkarbhai v. State of Gujarat, the Court affirmed the view that once
the prosecution succeeds in discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of
his presence at the place of occurrence.

In addition to this, in Mohinder Singh v. State, the Court held that the standard of proof
required in regard to a plea of alibi must be the same as the standard applied to the
prosecution evidence and in both cases it should be a reasonable standard. Further explaining
the nature of burden of proof under alibi, the Court observed in Munshi Prasad v State of
Bihar, that when a plea of alibi is raised on behalf of the accused, burden of proof of alibi is
heavier than that is usually on the accused for establishing any exception under section 105
on mere preponderance of probabilities and the plea must be proved with absolute certainty.
Thus, the accused is required to prove that his plea is inconsistent with his guilt or makes it
highly improbable.

In Lakhan Singh v. The state of NCT of Delhi, it was held that the plea of alibi cannot be
treated like a plea of self-defence. It is supposed to be taken at the earliest possible
opportunity/first instance which can either be at the stage of framing of charge or at the
preliminary hearing but not later than the stage of defence evidence.

It has to be noted that that alibi which is sometimes taken as a defence in criminal cases is not
mentioned in any of the general or special exceptions in Indian Penal Code. In Binay Kumar
Singh v State of Bihar, the Court held that an alibi is neither a special nor a general exception
envisaged in the Indian Penal Code. It is only a rule of evidence recognised in Section 11 of
Evidence Act.

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This is because all exceptions are exemptions, total or partial, from criminal liability, either
by way of excuses or justifications and it means that the accused was in fact responsible for
the harm caused to the victim but that the law exempts him from liability on the grounds
mentioned in Indian Penal Code or other law. In the case of the plea of alibi, the accused
claims that he did not cause the harm at all as he was away at such a far off place that he
could not have committed it. The Court further stated that alibi is a plea that results in total
denial of liability on the ground that it was impossible for the accused to have committed the
crime as he was at a place far off from the scene of the crime, and it is not a general or special
exception. A similar stance was taken in the American case of People v Victor, where it was
held that technically alibi is a plea and not a defence.

In other words, a difference exists between the first scenario where the accused did, indeed,
commit the act that caused the harm but that he was exempt from liability either because of a
justification or an excuse recognized by the law and the second scenario of alibi where he did
not commit the act at all and that he was totally innocent. Thus, alibi is a plea which, if
proved, would tell the prosecution that they are fundamentally wrong.

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