Relevancy, Admissibility and their Evidentiary Value?

Every case is decided on the basis of the Evidence produced before the court be it oral or documentary, Direct or circumstantial, but the main question that arises for consideration is whether the fact is admissible or not, because sometimes even the fact may be relevant but not admissible. The courts have to be very conscious while considering the evidences produced before them and have to satisfy themselves that whether they can base their judgment on the basis of evidences led before the court of law. Section 6-65 of the Indian Evidence Act provides the instances wherein the facts are considered to be relevant and as per the definition of relevant fact under section 3, relevancy is not to be examined in isolation, rather it should be in connection with relative concept as well as subjective. In order to prove a fact to be relevant its connection with other facts i.e. a fact is relevant only in reference with other fact, such other fact may be either a fact in issue or another relevant fact.

Now comes the question that even if a fact is taken as a relevant fact i.e motive, previous conduct, subsequent conduct, admission, confession, dying declaration or any other relevant fact but is the same admissible in evidence. Because admissibility of evidence is described in two perspectives i.e. admissibility of fact and admissibility of evidence. There are certain evidences which are relevant but not admissible because the legislature has excluded them to base the judgment i.e. confession given before the police officer or under fear, threat or promise etc except the in cases where there is some recovery affected from such disclosure, oral evidence must be direct and hearsay evidence though relevant is not admissible. Despite certain facts being relevant and admissible as per the Indian Evidence Act, but the court hesitates to pass judgment on the independently on the following facts and look for corroboration of certain other facts because of the evidentiary value they carry. Now let us discuss what is meant by the evidentiary value of a particular fact. Evidentiary

Value of FIR: -

The FIR has certain evidentiary value, and this value is perhaps much greater than the evidentiary value which would exist with any statement which is made to any police officer during any point of time of the investigation. FIR is definitely not substantive, but, it cannot be doubted that it is an important piece of evidence and is an essential tool to corroborate the informant under Section 157 of the Indian Evidence Act. Alternatively, it may also be used to contradict him under Section 145 of the same Act. In general, an FIR’s content is solely for the purpose of contradiction and corroborations. However, certain situations may arise when the contents of an FIR can be used for other purposes.

Evidentiary Value of Expert Opinion:-

Experts are called in to given opinions on certain questions of foreign law, science, art and the identity of handwriting or finger –impressions science and with the change in technology and time, these days expert opinions are sought at every stage of the case and it helps the court of law to decide the cases in a correct manner. But despite the fact the expert opinions now have become a need of an hour, their opinions are merely taken as a piece of corroborative value and not as a substantive piece of evidence. There are certain areas wherein expert opinion is called for and depending on the kind of opinion sought their evidentiary value would always differ: Foot Prints: Footprint identification is reliable.

In Pritam Singh vs. State of Punjab disputed footprints in blood near a dead body and going towards the bathroom, were compared with those of the accused taken in printer’s ink. The expert gave evidence giving points of nine similarities in respect of the right foot and ten in respect of the left foot: and three dissimilarities only in each case and explained the dissimilarities with reference to the different densities of blood and ink. It was held that the comparison stood the test well and under the circumstances these foot impressions in blood near the place of the incident, were proved to be those of the accused.

Deoxyribonucleic Analysis (DNA):

Each person's genetic makeup contains DNA. This differs from individual to individual. DNA can be obtained through blood, saliva, semen, or hair. This helps in identifying a person. If a drop of blood or a strand of hair is found at a crime scene, it can be compared to a person's known DNA to see if there is a match, thereby linking the person to the crime. An expert witness can give an opinion about the likelihood that the blood that was found at the crime scene came from the individual whose sample was compared. DNA analysis is also used to establish paternity. Experts believe that the ability to link the culprit to the crime scene through his DNA prints is unquestionable as unlike conventional fingerprints that can be surgically altered, DNA is found in every tissue and no known chemical intervention can change it.

Tracker Dog:

In India we have yet to accept the evidence of tracker dog as a substantive piece of evidence. The Supreme Court of India opined that even the evidence of dog-tracking, if admissible also does not have much weight in the present state of scientific knowledge. The same was reiterated in another case where it was held that evidence of tracker dog was of little importance. No adverse inference could be drawn against the prosecution on the ground tracker was not examined by the prosecutor. 

However, it was observed that in construing the words science or art a static view can be no longer be tenable since expert testimony on subjects like telephony, psychiatry, identification of foot marks and tracker evidence is now admitted28. As recently as in 1993 the Court held that tracker dog’s evidence must be scrutinized and it reliability is as good or as bad as any other piece of evidence.

Lie Detector:

Generally Courts refuse to admit the results of a polygraph test as evidence. Polygraph measures a person's unconscious physiological responses, such as breathing, heart rate, and galvanic skin response while the person is being questioned. The underlying theory is that stress occurs when a person lies and that this stress is measured by changes in the person's physiological responses. There is a concern that an individual can conceal stress when he or she is lying. Polygraph tests are also considered unreliable because it is not possible to tell whether the stress that is measured during the test is caused by the test itself or by a lie.

Ballistic Expert Evidence:

Ballistics is the science that deals with the motion, behavior, and effects of projectiles, especially bullets, gravity bombs, rockets, or the like; the science or art of designing and hurling projectiles so as to achieve a desired performance31.Where the opinion is given by the Expert of Ballistics who after conducting all the tests deposes in the Court of law, there is no reason to distrust his opinion. It can be accepted.

That does not mean in spite having direct evidence, one should call for the opinion of the expert. In every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may and though, on the record, there may no reason to doubt the said direct evidence.

Since the expert opinions are reliable as well as admissible, but they are still not considered as the substantive piece of evidence and the courts are always conscious to take them into consideration because the human mind is always subject to the fallacy and therefore they are merely used to corroborate or contradict other piece of evidence available with the court of law. Evidentiary Value of SMS,

MMS and E-Mail: The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence.

Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with conventional form of documents. In State of Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation, then the person challenging it must prove the same beyond reasonable doubt. The court observed that mere theoretical and general apprehensions cannot make clear evidence defective and in admissible. This case has well demonstrated the admissibility of electronic evidence in various forms in Indian courts.

The basic principles of equivalence and legal validity of both electronic signatures and hand written signatures and of equivalence between paper document and electronic document has gained universal acceptance. Despite technical measures, there is still probability of electronic records being tampered with and complex scientific methods are being devised to determine the probability of such tampering. For admissibility of electronic records, specific criteria have been made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability which may be strengthened by means of new techniques of security being introduced by advancing technologies.


Evidentiary Value of Confession: A confession is substantive evidence against its maker, so that it has been duly recorded and suffers from no legal infirmity, it would suffice to convict the accused who made the confession, though as a matter of prudence, the Court expects some corroboration before acting upon it. Even then slight corroboration would suffice. But before acting upon a confession, the Court must be satisfied that it is voluntary and true. Voluntaries depend upon whether there was any threat, inducement or promise. Its truth is to be judged in the context of the entire prosecution case,- whether it fits into the proved facts and does not run counter to them. Supreme Court on section 164 of Cr.P.C. – Supreme Court enunciated the following principles with regard to section 164Cr.P.C:

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

2. 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.

3. 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.

4. The maker should be granted sufficient time for reflection.

5. 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.

6. 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.

7. 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.

8. 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.

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

10. Confession of a co-accused is a weak type of evidence.

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

Evidentiary Value of Retracted Confession:

It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to pass a conviction on its strength alone. Corroboration should not be dispensed with merely because the confession contains a wealth of detail.

STATE OF MAHARASHTRA v. MOHD. AJMAL MOHD. AMIR KASAB.

When a confession is retracted, the Court must look for the reasons for making of the confession as well as for its retraction, and must weigh the two to determine whether or not the retraction affects the voluntary nature of the confession.

1. If the Court is satisfied that it was retracted because it was an after-thought advice, the retraction may not weight with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant it user.

2. All the same, the Court would not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. In short, while a true confession voluntarily made may be acted upon with the slight evidence to corroborate it, a retracted confession requires the general assurance that the retracted confession was an after-thought and that the earlier statement was true.

Evidentiary Value of Narco-Analysis:

The term Narco-Analysis was introduced in 1936 for the use of narcotics to induce a trance-like state wherein the person is subjected to various queries.2 The term is derived from Greek word (meaning anaesthesia or torpor) and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term Narco-Analysis was coined by Horselley.

The Narco-Analysis test is based on the principle that a person is able to lie using his imagination and, under the influence of certain barbiturates, this capacity for imagination is blocked or neutralised by leading the person into a semi conscious state. It becomes difficult for the person to lie and his answers would be restricted to facts he is aware of the statements made by the accused are recorded on audio and video cassettes, and the report of the expert is helpful in collecting evidence.

The use of such drug in police work or interrogation is similar to the accepted psychiatric practice of Narco-Analysis and the only difference in the two procedures is the difference in the objectives. The first narco-analysis was done in the Forensic Science Laboratory, Bangalore in 2001 on an individual associated with offences committed by Veerappan. The Supreme Court found that Narco-Analysis violated individual’s right to privacy and amounted to cruel, inhuman or degrading treatment. Article 21 protects the right to life and personal liberty, which has been broadly interpreted to include various substantive due process protections, including the right to privacy and the right to be free from torture and cruel, inhuman, or degrading treatment. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.

The Supreme Court left open the possibility for abuse of such tests when it provided a narrow exception, almost as an afterthought, namely, that information indirectly garnered from a voluntary administered test i.e. discovered with the help of information obtained from such a test” can be admitted as evidence. The power of the police to coerce suspects and witnesses into voluntarily doing or not doing certain things is well known. It is highly probable that the same techniques will be applied to get suspects or witnesses to Narco-Analysis and other tests, resulting in a mockery of the essence of the Supreme Court judgment.

There are other relevant facts like evidence given by child witness, hostile witness, dying declaration etc which I will cover in my next Article. 

 

Kapil Chandna 
on 08 August 2016
Published in Criminal Law
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