Life imprisonment for Dara Singh correct: Supreme Court

Dismissing the appeal against the decision of the Orissa High Court, the Supreme Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India declared that "in a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large". Thus the Supreme Court declined to reduce the punishment of life-imprisonment meted to Dara Singh by the High Court for the live-burning of the Australian Christian Missionary - Graham Stuart Staines and his two minor sons in an incident which rocked the nation in 1999.

On the aspect of religious freedom in the country, the Bench of Justice P. Sathasivam and Justice B.S. Chauhan observed as under;

46) In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that the State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.

47) The then President of India, Shri K R. Narayanan once said in his address that “Indian unity was based on a tradition of tolerance, which is at once a pragmatic concept for living together and a philosophical concept of finding truth and goodness in every religion“. We also conclude with the hope that Mahatma Gandhi’s vision of religion playing a positive role in bringing India’s numerous religion and communities into an integrated prosperous nation be realised by way of equal respect for all religions. It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.

We have also made an attempt to cull out the legal principles emanating from the observations of the Court. These are as under;

13) Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma (supra). It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. In para 254, this Court held: 

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. 

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

14) In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the following conclusion is relevant:

“12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time” 

15) In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38, the following conclusion is relevant: 

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

Further, the Court also formulated the principles under Section 164 of the Code of Criminal Procedure which relate to recording of confessional statements in the following terms;

21) Before analyzing the confessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us consider various decisions touching these aspects. 

22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC 21, while considering these issues, it was held:

“27……The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency (see State of U.P. v. Singhara Singh, AIR 1964 SC 358). It was also held by this Court in the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76  that the provisions of Section 164 CrPC must be complied with not only in form, but in essence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

28. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate (PW 1) does not show that any such precaution was taken before recording the judicial confession.

29. The confession is also not recorded in questions-and-answers form which is the manner indicated in the criminal court rules.

30. It has been held that there was custody of the accused Pooran Singh with the police immediately preceding the making of the confession and it is sufficient to stamp the confession as involuntary and hence unreliable. A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. (See Shankaria v. State of Rajasthan, (1978) 3 SCC 435 (para 23)”

23) In Shivappa vs. State of Karnataka (1995) 2 SCC 76, while reiterating the same principle it was held:- 

“6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its noncompliance goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody.

7. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a ‘voluntary’ statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.

8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: “I have not stated to the accused that I am a Magistrate” and further admitted: “I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement.” The Magistrate, PW 17 also admitted that “at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court”. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant…..”

24) In Dagdu and Others vs. State of Maharashtra, (1977) 3 SCC 68, the following paragraph is relevant:-

“51. Learned Counsel appearing for the State is right that the failure to comply with Section 164(3) of the Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with Section 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements.”

25) Davendra Prasad Tiwari vs. State of U.P. (1978) 4 SCC 474, the following conclusion arrived at by this Court is relevant:-

“13….. It is also true that before a confessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on September 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.”

26) In Kalawati & Ors. vs. State of Himachal Pradesh, 1953 SCR 546 at 631, this Court held:

“…In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.”

27) In State thr. Superintendent of Police, CBI/SIT vs. Nalini and Others (1999) 5 SCC 253 at 307, the following paragraphs are relevant which read as under:-

“96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.

97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another coaccused at all? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a coaccused, abettor or conspirator tried in the same case. 

98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 had made the following observations:

“Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

99. The above observations had since been treated as the approved and established position regarding confession visà- vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P., AIR 1952 SC 159 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184.”

28) In State of Maharashtra vs. Damu (2000) 6 SCC 269, the same principles had been reiterated which read as under:-

“19. We have considered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 

25. We may make it clear that in Kashmira Singh this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis-à-vis the confessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab as under: 

“In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.” 

This has been followed by this Court in Kehar Singh v. State (Delhi Admn.)”

29) The following principles emerge with regard to Section 164 Cr.P.C.:-

(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. 

(iii) A Magistrate should ask the accused as to why he wants  to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. 

(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. 

(x) Confession of a co-accused is a weak type of evidence. 

(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.

Have a look at the decision.

Unsoundness of mind and criminal liability: Supreme Court explains

In an earlier post we had covered a decision of the Delhi High Court relating to mental insanity and the status of such an accused under criminal law. The Supreme Court in a recent decision [SURENDERA MISHRA v. STATE OF JHARKHAND later reported as AIR 2011 SC 627] revisited the issue and explained the law as applicable in India in terms of Section 84 of the Indian Penal Code which governs the issue on this aspect. Holding that there was a difference between 'legal insanity' and 'medical insanity', the Supreme Court explained that not every conceited, odd, or irascible could be taken into account to determine the defence of an accused on grounds of insanity. 

The Court explained the nuances of Section 84 in the following terms;

6. ... In view of the plea raised it is desirable to consider the meaning of the expression “unsoundness of mind” in the context of Section 84 of the Indian Penal Code and for its appreciation, we deem it expedient to reproduce the same. It reads as follows: 

“84. Act of a person of unsound mind.— Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

Section 84 of the Indian Penal Code is found in its Chapter IV, which deals with general exceptions. 

7. From a plain reading of the aforesaid provision it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But what is unsoundness of mind? This Court had the occasion to consider this question in the case of Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66, in which it has been held as follows:

“The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.”

8. The scope and ambit of the Section 84 of the Indian Penal Code also came up for consideration before this Court in the case of Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109 = AIR 2009 SC 31 in which it has been held as follows:

“Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of ‘unsoundness of mind’ in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.”

9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.

10. Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, in which it has been held as follows:

“9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the  general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. 

10. In State of M.P. v. Ahmadull, AIR 1961 SC 998, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.

11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought.”

Have a look at the decision.

Hearsay Evidence: The concept understood

"Witnesses are the eyes and ears of justice", said Jeremy Bentham a noted jurist. Thus the foundations of judicial administration is dependent upon the truthfulness and veracity of the witnesses which come to form an essential part of the judicial exercise of decision-making. In these circumstances, it is apt that the law provide for a means whereby the palpably incongruous depositions are excluded. The law of evidence, therefore, builds certain safeguards to rule out such depositions. The rule excluding hearsay evidence is one such rules, which forms a part of the very foundation of the Indian Evidence Act, 1872.

The Supreme Court in a recent decision [Kalyan Kumar Gogoi v. Ashutosh Agnihotri] dwelled upon the reasons for exclusion of hearsay evidence from being considered in a trial and explained the concept in the following terms;

18. The word ‘evidence’ is used in common parlance in three different senses : (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as : best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. The idea of best evidence is implicit in the Evidence Act. Evidence under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature. These principles are expressed in Sections 60 and 64 of the Evidence Act. 

19. The term ‘hearsay’ is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.

20. The argument that the rule of appreciation of hearsay evidence would not apply to determination of the question whether change of venue of polling station has materially affected the result of the election of the returned candidate, cannot be accepted for the simple reason that, this question has to be determined in a properly constituted election petition to be tried by a High Court in view of the provisions contained in Part VI of the Representation of the People Act, 1951 and Section 87(2) of the Act of 1951, which specifically provides that the provisions of the Indian Evidence Act, 1872, shall subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. The learned counsel for the appellant could not point out any provision of the Act of 1951, which excludes the application of rule of appreciation of hearsay evidence to the determination of question posed for consideration of this Court in the instant appeal.

21. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and un-trustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination. The phrase “hearsay evidence” is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.

22.The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”, (b) truth is diluted and diminished with each repetition and (c) if permitted, gives ample scope for playing fraud by saying “someone told me that...........”. It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible.

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Defection of MPs expelled from party: Supreme Court to reconsider

The law of defection keeps the elected members of the Parliament and State Assemblies within the decision-making realms of their Parties. The Tenth Schedule of the Constitution of India , also understood as the Anti-Defection law, provides that a Member can be expelled from the Parliament or the State Assembly if he/she acts in violation of the command issued by the Party on whose ticket the Member stood for election and won the seat. 

In the case of G. Viswanathan vs. Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353] the Supreme Court had inter alia held that "in view of the Explanation to Paragraph 2(1)of the Tenth Schedule, even if a member is expelled from his party, for the purposes of the Tenth Schedule, he/she would not cease to be a member of the political party that had set him up as a candidate for the election and he would continue to remain attached to that political party even if he is treated as 'unattached'.

Holding that the said decision required reconsideration, a bench comprising of Justice Altamas Kabir referred the cases filed by Amar Singh and Jaya Pradha to the Chief Justice of India for constituting a larger bench to settle the issue in the following terms;

15. We are also convinced that in the background of the legislative history of the introduction of the Tenth Schedule in the Constitution, in which it was initially intended to include expelled Members within the ambit of the provisions relating to disqualification, the same was dropped after the debate in Parliament in which the dangerous effects of the inclusion of such a sub-clause were pointed out by many of the Members in the House. If it was the intention of the legislature not to include expelled members of a political party within the category of persons who could be clubbed with the category of persons who voluntarily resigned from membership of their parties, the same could not have been imported into the Tenth Schedule by virtue of the judicial pronouncement in the said case. In fact, what was sought to be excluded by the legislature has now been introduced into the Tenth Schedule by virtue of the said decision.

16. We are also convinced that the decision in G. Viswanathan’s case (supra) merits another look as far as the Members of the House who are expelled from their parties on whose banner they had been elected to the House, are concerned, as they would be left completely vulnerable to the whims andfancies of the leaders of their parties. We, therefore, issue Rule in the two Writ Petitions and request Hon’ble the Chief Justice of India to refer the matter to a larger Bench on the following questions :- 

1. What is the status in either House of Parliament or the State Legislatures of a Member who is expelled from the party which set him/ her up as a candidate for election ? 

2. Will the provisions of the Tenth Schedule to the Constitution apply to such Member? 

3. Was the view taken in G. Viswanathan’s case [(1996) 2 SCC 353], with regard to the status of Members in either House of Parliament who had not voluntarily resigned from their party but had been expelled therefrom, in harmony with the provisions of the Tenth Schedule to the Constitution ? 

4. In view of the fact that Members of the two Houses of Parliament, who are expelled from the membership of the parties which had set them up as candidates in the election, are not referred to in the Tenth Schedule to the Constitution, was the decision in G. Viswanathan’s case that they must be deemed to continue to belong to such party in view of Explanation (a) to paragraph 2(1) of the Tenth Schedule, a correct interpretation of the said provisions, having regard to the Parliamentary debates on the Bill which became the Tenth Schedule ? 

5. Can Explanation (a) to paragraph 2(1) of the Tenth Schedule to the Constitution be extended to include Members of the two Houses of Parliament who are expelled from their parties? 

6. When a Member of either House of Parliament is expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule ? 

7. What is the status of an ”unattached” Member in either House of Parliament or in the State Legislatures ?  

17. Pending the reference, the decision in G. Viswanathan’s case (Supra) shall not be applied to the two writ petitioners, Shri Amar Singh and Ms. Jaya Pradha.

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Consent of wife required for valid adoption by Hindu Male: Supreme Court

Making a reference to the provisions of the Hindu Adoptions and Maintenance Act, 1956 and contrasting it with the Hindu law as prevailing before its enactment, the Supreme Court in its recent decision [Ghisalal v. Dhapubai , later reported as AIR 2011 SC 644] has declared that it is mandatory for a Hindu male to take consent of his wife, unless she is incapacitated from giving consent, before adopting a child.

The Supreme Court expressed the position of law in the following terms;

17. Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays down that if a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption unless either of them suffers from any of the disabilities specified in the proviso to Section 7. Section 8 enumerates the conditions, which must be satisfied for adoption by a female Hindu. Section 12 deals with effects of adoption. It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom he or she could not have married if he or she had continued in the family of his or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lays down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section 16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise.

18. In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband’s lifetime without his express consent. After his death, she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. In other parts of India, she could adopt without such authority. However, in no case a wife or a widow could adopt a son to herself. An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person. A daughter could not be adopted by a male or a female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was not finally settled and there was divergence of judicial opinion. 

19. After India became a sovereign, democratic republic, this position has undergone a sea change. The old Hindu Law has been codified to a large extent on the basis of constitutional principles of equality. The Hindu Marriage Act, 1955 codifies the law on the subject of marriage and divorce. The Hindu Succession Act, 1956 codifies the law relating to intestate succession. The Hindu Minority and Guardianship Act, 1956 codifies the law relating to minority and guardianship among Hindus. The 1956 Act is also a part of the scheme of codification of laws. Once the Hindu Succession Act was passed giving equal treatment to the sons and daughters in the matter of succession, it was only logical that the fundamental guarantee of equality of a status and equality before law is recognized in the matter of adoption. The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption [Sections 8, 11(1) and 11(2)]. However, if she is married, a female Hindu cannot adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound mind or has renounced the world. By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution. 

20. The term ‘consent’ used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. 

21. At this stage, we may notice some precedents which have bearing on the interpretation of proviso to Section 7 of the 1956 Act. In Kashibai v. Parwatibai (supra), this Court was called upon to consider whether in the absence of the consent of one of the two wives, the adoption by the husband could be treated valid. The facts of the case show that plaintiff No.1 and defendant No.1 were two widows of deceased Lachiram. Plaintiff No.2 was daughter of Lachiram from his first wife Kashibai and defendant No.2 was the daughter from his second wife Parwati. Defendant No.3, Purshottam son of Meena Bai and grandson of Lachiram. The plaintiffs filed suit for separate possession by partition of a double storey house, open plot and some agricultural lands. The defendants contested the suit. One of the pleas taken by them was that Purshottam son of Meena Bai had been adopted by deceased Lachiram vide registered deed of adoption dated 29.4.1970, who had also executed deed of Will in favour of the adopted son bequeathing the suit properties to him and thereby denying any right to the plaintiffs to claim partition. The trial Court decreed the suit for separate possession by partition by observing that the defendants have failed to prove the adoption of Purshottam by Lachiram and the execution of Will in his favour. The High Court reversed the judgment of the trial Court and held that the defendants had succeeded in proving execution of the deed of adoption and the deed of Will in accordance of law and as such the plaintiffs were not entitled to any share in the suit properties. On appeal, this Court reversed the judgment of the High Court and restored the decree passed by the trial Court. On the issue of adoption of Purshottam, this Court observed: 

“It is no doubt true that after analysing the parties’ evidence minutely the trial court took a definite view that the defendants had failed to establish that Plaintiff 1, Defendant 1 and deceased Lachiram had taken Defendant 3, Purshottam in adoption. The trial court also recorded the finding that Plaintiff 1 was not a party to the Deed of Adoption as Plaintiff 1 in her evidence has specifically stated that she did not sign the Deed of Adoption nor she consented for such adoption of Purshottam and for that reason she did not participate in any adoption proceedings. On these findings the trial court took the view that the alleged adoption being against the consent of Kashi Bai, Plaintiff 1, it was not valid by virtue of the provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956. Section 7 of the Act provides that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. It provides that if he has a wife living, he shall not adopt except with the consent of his wife. In the present case as seen from the evidence discussed by the trial court it is abundantly clear that Plaintiff 1 Kashi Bai the first wife of deceased Lachiram had not only declined to participate in the alleged adoption proceedings but also declined to give consent for the said adoption and, therefore, the plea of alleged adoption advanced by the defendants was clearly hit by the provisions of Section 7 and the adoption cannot be said to be a valid adoption.”

22. In Brajendra Singh v. State of M.P. (supra), the Court considered the scope of Sections 7 and 8(c) of the 1956 Act in the backdrop of the claim made by the appellant that he was validly adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with her parents. In 1970, Mishri Bai claims to have adopted the appellant. After some time, she was served with a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 indicating that her holding of agricultural land was more than the prescribed limit. In her reply, Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land. The competent authority did not accept her claim. Thereupon, Mishri Bai filed suit for declaration that the appellant is her adopted son. During the pendency of the suit, she executed a registered Will bequeathing all her properties in favour of the appellant. The trial Court decreed the suit. The first appellate Court dismissed the appeal preferred by the State of Madhya Pradesh. The High Court allowed the second appeal and held that in the absence of the consent of Mishri Bai’s husband, adoption of the appellant cannot be treated as valid. This Court noticed that language of Sections 7 and 8 was different and observed: 

“A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the wife, unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect the Act radically departs from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife’s consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption without wife’s consent would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an adoption.”

xxx

34. In view of the above discussion, we hold that the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the learned Single Judge of the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures. We further hold that Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside.

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