CHAPTER XXIII: EVIDENCE IN INQUIRIES AND TRIALS

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CHAPTER XXIII: EVIDENCE IN INQUIRIES AND TRIALS

The Criminal Procedure Code from Section 271 to section 299 has elaborately dealt with the procedure to be followed for recording of evidences beginning from the language in which is to be recorded to issue of commission.

MODE OF TAKING EVIDENCE: LANGUAGE OF THE COURT

The State government of each state by virtue of Sec 271 has the duty to determine the language to be used by all the courts in a state except high court in which the evidences are recorded. This provision serves dual purpose primarily instituting guidelines as to which language can be accepted for recording the evidences making the procedure easier for courts and secondly in most of the lower courts it is probable the witnesses may only be acquainted with vernacular and therefore a provision accepting the statement in the vernacular language becomes important.

It had been held in the case of Sejal Suresh Kumar vs. State of Gujrat the Hon’ble[1] court while granting the request of the accused for a translated copy of evidences given in Gujrati language in either Hindi or English for the perusal of accused. The court highlighted the significance of recording the evidence in the language of the court; it maintained that the evidences must be taken by the courts under section 275 or 276 in the language of the court if the witness are comfortable with the same.

However, the court also held that in cases where the evidence is given in a language which could not be comprehended by the court the evidence has to be primarily recorded in the language the person is comfortable with. The language is no bar for accepting any evidence which could possibly be substantive in determining guilt, the re section however ensures that a translation of such evidence has to be prepared which then has to be signed by the Magistrate of the presiding Judge before it could be entered into records.

Sec 277 also talks about the language of record of evidence in every summons or warrants case that if the witness agrees to give evidence in the language of the Court, it shall be taken down in that language however, if he gives evidence in any other language the evidence could either be : a.) if practicable, be taken down in that language b.) if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination proceeds which is to be signed by the Magistrate or presiding Judge affirming its veracity and shall form part of the record; a true translation thereof in the language of the Court shall be prepared as soon as practicable. Provided that when the evidence is provided by witness in English and a translation is not required by any of the parties, the Court may dispense with such translation.

In the case of Sri Jayendra Saraswathy swamigal vs State Of Tamil Nadu And Others

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[2] while discussing upon the transferability of case for convenience of prosecuting agency the court stated that in view of Section 277 Cr.P.C. if the witness does not give statement in the language of the Court, a translation of the evidence in the language of the Court has to be prepared as the examination of the witness proceeds and, therefore, transferring the case to a district which is not Tamil speaking was also permissible under law. The convenience of the prosecuting agency, especially in a case where there are large number of witnesses and documents, has also an important bearing. We are, therefore, of the opinion that the case may be transferred to Pondicherry as there will be no difficulty in recording the evidence in the same language in which almost all the witnesses would depose and with which the presiding judge would be familiar.

Sec 282 states that the Interpreter is bound to interpret truthfully when the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement. He shall be bound to state the true interpretation of such evidence or statement

PROCEDURE FOR RECORDING EVIDENCES:

The Sec 273 Cr.P.C. has a very elaborately defined the method to be followed for collection of evidence. The Act mandates the evidence to be recorded in presence of the accused, or his pleader. This precautionary measure is for both to ensure that there the accused is aware of all the existent evidences that are presented before the court by the opposite council so as to successfully plead his case and exercise his right of cross examination wherever necessary providing the defense with an opportunity to meticulously examine the veracity of the evidences.

It was held in the case of Banchhanidhi vs. State of Orissa

  1. REDIRECT [[2]]

[3] that for determination of guilt of accused in a case of theft under Section 379 of I.P.C. some of the evidences which were recorded were in absence of the accused as well as his representative. The Honorable appellate court considered it a gross violation of the provision under section 273 and thus on that ground solely the entire proceeding was vitiated.

When the trial is with in cases such as sexual offences or rape the legislature has shown a very considerate view by incorporating special provision through the Amendment in 2009, keeping in mind the psychological trauma a woman might be going through a proviso was introduced that if the woman is above 18 years of age and has been subjected to any such crime the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.

ATTENDANCE OF ACCUSED THROUGH VIDEO CONFERENCING

In the case of State of Maharashtra vs. Dr. Praful B.Desai

  1. REDIRECT [[3]]

[4] the Court was taken through Section 273 of Criminal Procedure Code. It was submitted that the section does not provide for the taking of evidence by video conferencing. Emphasis was laid on the words "Except as otherwise provided" in Section 273 and it was submitted that unless there is an express provision to the contrary, the procedure laid down in Section 273 has to be followed as it is mandatory. It was also submitted that Section 273 mandates that evidence "shall be taken in the presence of the accused" and that the term "presence" in Section 273 must be interpreted to mean physical presence in flesh and blood in open Court. It was submitted that as Section 273 is mandatory, the Section is required to be interpreted strictly. It was submitted that Section 273 must be given its contemporary meaning that is Contemporanea exposition est optima et fortissimm - The contemporaneous exposition is the best and the strongest in law.

Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanor. In fact the facility to play back would enable better observation of demeanor. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.

The doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an on-going statute/act like the Criminal Procedure Code. Therefore, recording evidence while the accused is connected through video conferencing is viable

RECORDING EVIDENCE IN ABSENTIO

SEC 299

The only instances in which evidence may be taken in the absence of the Accused, under the Criminal Procedure Code are Sections 317 (provision for inquiries and trial being held in the absence of accused in certain cases) and 299 (record of evidence in the absence of the accused) that is:- i.) If it is proved before the court that an accused person has absconded and that there is no immediate prospect of arresting him, the competent Court may, in his absence, examine the witnesses and record their depositions. However, the accused has a right to be made aware of any such deposition upon arrest which is likely to be given in evidence against him on the inquiry into, or trial if the deponent is dead or incapable of giving evidence or if the presence of the deponent cannot be procured without an unreasonable amount of delay, expense or inconvenience.

The objective of the legislature in such case is quite prominent; it is based on the basic principle that the evidences must be put into records at the first stance to ensure that the trial is not incapacitated by the sole reason that the evidence perished due to unnecessary delay and can no longer be availed or in cases where the evidence is to be given by a person whether an eye witness or any other deponent who has some substantial piece of information , the witness died or become incapable to dispose of the information. Therefore recording information becomes pertinent for means of justice.


ii.) This becomes even more important when the person is accused of an offence punishable with death or imprisonment for life, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence.

However it is important to note that this provision does not by any means inhibits the procedure of production of such evidences while the trial is being conducted if the evidence still exists or the witness are not dead or incapacitated. Section 299 of the Code of criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused This procedure contemplated under Section 299 of the Cr.P.C. is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. The Court must be satisfied that the accused has absconded or that there was no immediate prospect of arresting him, and that when the accused was arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence. Any one of these circumstances, which permits the prosecution to use the statements of such witnesses recorded under Section 299(1) must be conclusively proved and the Court concerned must be satisfied and record a conclusion thereon.

The provision was clearly illustrated in the case of Nirmal Singh vs State of Haryana[5] wherein the production of primary witnesses was in question, while the prosecution claimed that five of the primary witnesses were now deceased the respondents claimed that the fact had not been established, and if they were indeed alive the trial could not be conducted without examining them in the court in presence of the accused. In this case the court addressed the sole question for consideration that is, under what circumstances and by what method, the statements of five persons could have been tendered in the case for being admissible under Section 33 of the Evidence Act and whether it can for the basis of conviction.

There possible cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Cr.P.C. the prosecution, which proposes to utilize the said statement as evidence in trial, must, therefore, prove about the existence of the pre-conditions before tendering the evidence after which it is admissible, the Court can interfere only if, it is satisfied that grave and substantial injustice has been caused by misperception of the evidence in the case. The Hon’ble court however pointed out that Court, while such statements are tendered in evidence have to record as to how the pre-conditions of the second part of Section 299 of the CrPC have been compelled with.

SECTION 317

At any stage of an inquiry or trial if the Judge or Magistrate is satisfied that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings may dispense with his attendance if he is being represented by the pleader and proceed with such inquiry or trial. However, at any subsequent stage of the proceedings the court may direct the personal attendance of such accused. If the accused in any such case is not represented by a pleader, the Judge or Magistrate may, if he thinks fit either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately. The Judicial officers in both the cases have to record the reasons for its decision in writing.

RECORD IN SUMMONS CASES AND INQUIRIES:-PREPARING MEMORANDUM (S. 275)

The Magistrate by this code is directed to make a memorandum of substance of evidence in the language of court as the examination of each witness proceeds in all summons-cases tried before a Magistrate, in all inquiries under sections 145 to 148 (proceedings with respect to disputes regarding immovable property), and in all proceedings under section 446 otherwise than in the course of a trial. The memorandum is to be made by the Magistrate himself in if due to any circumstance he is unable to do so he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court. Such memorandum shall be signed by the Magistrate and shall form part of the record.

RECORD IN WARRANTS CASE BEING TRIED BY MAGISTRATE AND CASES TRIED BY COURT OF SESSIONS (S.276, 277)

For all warrants cases being tried before a Magistrate and all summons or warrants cases tried before the presiding Judge of Court of Sessions, the evidence of each witness shall be taken down in writing either by the magistrate or the presiding judge whichever applies on their own. Or they can authorize an officer of the court to take the evidence in writing upon their dictation in open Court, under their direction and superintendence. For warrant cases being tried by the magistrate the Magistrate have to record a certificate stating the reason of his incapability, where he is unable to do so owing to a physical or other incapacity recording warranting his authorization of someone else. Provided that evidence of a witness in a warrant case before a magistrate may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence. The provision was incorporated by Act 5 of 2009 as was held in the case of State of Maharashtra vs. Dr. Praful B. Desai.[6] The evidence could be in the form of a narrative or in the form of question and answers as per the discretion of the court. The evidence so taken has to be signed by the Magistrate or the presiding judge whichever the case is in order to form a part of the record.

PROCEDURE AFTER RECORDING OF EVIDENCE IS COMPLETE

After the evidences are duly recorded by the court the next step is to read out the evidence to the witness (Sec 278) so that he could affirm the propriety as well as the accused (Sec 279) to make sure he is apprised of the evidences available against him. As soon as the evidence of each witness taken under section 275 or section 276 is completed it is to be read over to the witness in the presence of the accused or of his pleader if he appears by pleader. If the witness denies the correctness of any part of the evidence when the same is read over to the witness after which it shall be corrected if necessary or the Magistrate or presiding Judge can instead make a memorandum thereon of the objection made to it and add such remarks as they think is necessary, they have the discretion to decide the same. The court even has the power to record any material remarks regarding the demeanor of witness while he was being examined ( Sec 280). In cases where the evidence is recorded in a language different from which it had been given in and the witness is unable to understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands. The evidences are taken in presence of the accused as provided by Sec 273, and the same procedure is followed in cases where the evidence is given in a language not understandable by the accused or his pleader if he is represented by him it is interpreted in the language understood. However, the court has discretion to interpret only the necessary parts when the documents are put for formal proof.

RECORDING EXAMINATION OF ACCUSED IN WARRANTS CASE

i.) WRITING DOWN OF THE EXAMINATION (Sec 281) In cases where the examination is being conducted by a Metropolitan Magistrate he is required to make a memorandum of the substance of the examination of the accused in the language of the court. The procedure is more elaborate when it comes to any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to the accused and every answer given by him, shall be recorded in full in the language in which the accused is examined or, if that is not practicable, in the language of the Court (unlike the metropolitan judge who is supposed to write down the substance of examination) by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

ii.) READING OUT THE RECORD TO ACCUSED: After the record is written down it shall be shown or read to the accused. In cases where the does not understand the language in which it is recorded, the same shall be interpreted to him in an understandable language.

This step is of critical importance during examination of accused it is only after he clearly understands the statements that have been purported to be made by him and would be part of courts record to determine his guilt he can utilize the liberty provided to explain or add to his answers.

iii.) SIGNINING BY THE JUDGE OR MAGISTRATE: After the procedure of recording is complete the record shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

In the case of V.Yadav Vs. Renna Yadav

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The Hon’ble Delhi High Court clarified that It must be borne in mind that the statement of accused under Section 281 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence.

There is no presumption of law that explanation given by the accused was truthful. In the present case, If the accused wanted to prove his statement, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His statement should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption of certain facts.

RECORD IN HIGH COURT

Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it and the same is to be followed.


COMMISSION FOR EXAMINATION OF WITNESSES

In cases where the examination of the witness is absolutely necessary before ends of justice but however is impossible to procure without delay, expense or inconvenience which would be unreasonable to in the existent case the provision of Sec 284 provides for the provision to the Court or the Magistrate to issue a commission for the purpose of examination Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union territory as a witness is necessary for the ends of Justice, a commission shall be issued for the examination of such a witness. The Court may when issuing a commission for the examination of a witness for the prosecution may direct the prosecution to pay such amount the Court considers reasonable to meet the expenses of the accused, including the pleader's fees.


COMMISSION ISSUED TO WHOM

Sec 285 provides the Commission could be issued to — 1.) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate within whose local jurisdiction the witness is to be found and if the code extends to their territories.

2.) To such Court or officer as the Central Government may, by notification, specify If the witness is in India, but in a State or an area to which this Code does not extend.

3.) To such Court or officer, and sent to such authority for transmission in such form as the Central Government may by notification prescribes if the witness is in a country or place outside India and after due arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters.

EXAMINATION OF WITNESSES

Upon receipt of the commission, the Chief judicial Magistrate or Chief Metropolitan Magistrate appointed has the duty to record the evidences for the same purpose he may either by himself or through any metropolitan magistrate or judicial magistrate appointed by him to act on his behalf may move to summon the witness before him or proceed to the place where the witness is, and take down his evidence. For this purpose the Court or Magistrate shall have the same powers and follow the same procedure as in trials or warrant-cases under this Code. The parties to the proceeding, may forward any interrogatories in writing which they believe that Court or Magistrate directing the commission may consider relevant to the issue, with an objective to direct their attention towards the same and it shall be lawful for the Magistrate, Court or officer to whom the commission has been directed or the person upon whom the execution it is delegated, to examine the witness upon such interrogatories. Any such party may even appear before such magistrate, Court or Officer by pleader, or if not in custody, in person, and to examine, cross-examine and re-examine the said witness.

RETURN OF COMMISSION

After execution of commission issued under section 284 by Court or Magistrate the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission (Sec 289). The commission is to be returned along with the deposition of the witness examined. It is also provided that they shall be available for inspection of parties at all and may subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record. In cases where the witness is dead, incapable to give evidence or if his evidence cannot be possibly procured, not at least without causing unnecessary delay the record shall also be received in evidence at any subsequent stage of the case before another Court.

EVIDENCES CAPABLE OF BEING TAKEN INTO RECORDS:

There are certain documents which are not given by witnesses but because of the fact that they have been given by experts on the subject or persons who have the authority to present a document regarding issue in concern may be given as evidence in any enquiry, trial or other proceedings. The deponent in such cases although are not called witnesses and can be summoned by court to examined as to subject-matter on application of accused or prosecution. 1.) Deposition of medical witness.— The deposition of civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this Chapter, may be given in evidence .

2.) Identification report of Magistrate.—Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence

[Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157 of the Indian Evidence Act, 1872 applies such statement shall not be used under this sub-section except in accordance with the provisions of those sections.]

3.) Evidence of officers of the Mint.— Any document purporting to be a report upon any matter or thing duly submitted for examination in the course of any proceeding, under the hand of any such officer of: • Any Mint or • Any Note Printing Press or • Any Security Printing Press (including the officer of the Controller of Stamps and Stationery) • Any Forensic Department • Division of Forensic Science Laboratory • Any Government Examiner of Questioned Documents • Any State Examiner of Questioned Documents, as the case may be, as the Central Government may, by notification, specify in this behalf may be used as evidence Provided that no such officer shall be summoned to produce any records on which the report is based or be permitted except with the permission of the General Manager or any officer in charge — (a) To give any evidence derived from any unpublished official records on which the report is based. (b) To disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing (Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872).

4.) Reports of certain Government scientific experts.— Any document purporting to be a report under the hand of a Government scientific expert upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code is admissible as evidence. This section applies to the following Government scientific experts, namely:— • any Chemical Examiner or Assistant Chemical Examiner to Government • the Chief Controller of Explosives (c) the Director of the Finger Print Bureau • the Director, Haffkeine Institute, Bombay • the Director [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory • the Serologist to the Government • Any other Government scientific expert specified, by notification, by the Central Government for this purpose. No formal proof of certain documents-Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused or their pleaders shall be called upon to admit or deny the genuineness of each such document. If the genuineness of the document is not disputed it may be read in evidence in inquiry, trial or other proceeding without proof of the signature of the person to whom it purports to be signed by. Provided that the Court may, in its discretion, require such signature to be proved.

ISSUE OF AFFIDAVIT-

Sec 296 provides that the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.

Authorities before whom affidavits used in courts may be sworn.—

(a) any Judge or Judicial or Executive Magistrate (b) any Commissioner of Oaths appointed by a High Court or Court of Session (c) any notary appointed under the Notaries Act, 1952 Affidavits shall be confined to and shall state separately such facts as the deponent is able to prove from his own knowledge. It shall also state such facts the deponent has reasonable ground to believe to be true, and in this case the deponent shall clearly state the grounds of such belief. The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended (Sec 298).

It is important to note here that the documents if not produced under section 295 or 296It was held in the case of Mahalingappa Shivlingappa Meti, v. Sangana basappa Sangappa Paraddi[7] and another , It is specifically provided for in S.295 that affidavits in proof of conduct of public servants can be given. Similarly, under Section 296 of the Cr.P.C. 1973, evidence of any person whose evidence is of a formal character may be given by affidavit. In other words, besides the two categories of evidence as specified in Sections 295 and 296 no other evidence can be adduced by affidavit.

PROOF OF PREVIOUS INQUIRY OR TRIAL-

In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved by— (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order.

(b) in case of a conviction, either by a certificate signed by the officer in charge of the Jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted.

  1. (2005) 2GLR 1716
  2. Transfer petition Crl. 134/2005
  3. 1990 CriLJ 397
  4. (2004) 4 SCC 601
  5. 2000 Cri. LJ 1803, 2000 2 SCR 807, 2000 (2) UJ 904 SC
  6. (2004) 4 SCC 601
  7. 1979 CRI.L.J. 83