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Prevention of Corruption Act 1988: ss.7 and 13(1)(d) r/w s.13(2) – In the absence of evidence of the complainant (direct/ primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant u/ss.7 and 13(1)(d) r/w s.13(2) of the Act based on other evidence adduced by the prosecution. Reference Matter – Prevention of Corruption Act 1988 – Whether B. Jayaraj v State of A.P & P. Satyanarayana Murthy v D. Insp. Of Police, State of A.P. in conflict with M. Narsinga Rao v State of A.P – Reference Answered – There is no conflict in B. Jayaraj and P. Satyanarayana Murthy with the decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences u/ss.7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason – Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant u/ss.7 and 13 (1)(d) (i) and (ii) of the Act – Prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact and the same can be proved by direct evidence – The proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence, if such circumstantial evidences corroborates the foundational fact of demand and acceptance of illegal gratification. Prevention of Corruption Act 1988: s.20 – Scope of Presumption used therein – s.20 envisages the law regarding the presumption where public servant accepts gratification other than legal remuneration – The expression used therein is “shall presume” which is legal or compulsory presumption – The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied – It does not say that the said condition should be satisfied through direct evidence but the only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Evidence Act, 1872: s.3 – Word “Fact” – “Factum Probandum & Factum Probans” – Classification and Connection – Fact consists of state of things, events or mental state – The principal fact (factin-issue) constitutes Factum Probandum whereas the evidentiary fact (relevant fact) constitute Factum Probans – Facts relevant to the issue are evidentiary fact which render probable the existence or non-existence of fact-in-issue or some other relevant fact. Evidence Act, 1872: s.3 – Word “Evidence” – Scope – Evidence may include the actual words of witnesses, or documents produced – The term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge u/ s.313 of the Criminal Procedure Code. Evidence Act, 1872 – ss. 3, 59, 60, 61 – Classification of Evidence – Evidence may be classified as direct evidence (original evidence) and indirect evidence (substantial evidence) – Direct Evidence establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it and the same is devoid of any room for inference or presumption – Indirect Evidence gives rise to the logical inference that a fact-in-issue exists, either conclusively or presumptively – Direct Evidence may constitute either oral or documentary evidence – Indirect evidence may constitute evidence which is circumstantial in nature. Evidence Act, 1872: s.60 – Oral Evidence – Classification and Scope – Oral Evidence can be either original or hearsay in nature – It is original if it is given by the person who himself have seen or heard something through his own senses – Hearsay Evidence could be called as derivative, transmitted or second-hand evidence in which a witness is merely reporting what he had not himself seen or heard but have learnt from some third person – Oral Evidence is also sub-categorized as Primary and Secondary evidence – Former is an oral account of the original evidence while latter is a report or an oral account of the original evidence or a copy of a document or a model of the original thing – As per the mandate of s.60, the oral evidence must be direct or positive. Evidence Act, 1872: Word “Hearsay evidence” – Scope – The expression “hearsay evidence” is not defined under the Evidence Act – Hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken or certain results followed such as evidence of an informant of the crime. Evidence Act, 1872: ss. 59, 61, 62, 63, 64, 65, 66, 67(2), 78 – Documentary Evidence – Classification and scope – As per the mandate of s.59 contents of document cannot be proved by oral evidence – Documentary evidences are to be proved by production of documents themselves or, in their absence, by secondary evidence u/s.65 of the Act – s.61 permits proof of contents of document by primary or by secondary evidence – As per s.62, primary evidence mean when the document itself is produced for inspection of the court – For an evidence to be a secondary evidence for proving the contents of the document, it must be of the kind as specified u/s.63 – As per the mandate of s.64 document must be proved by adducing primary evidence, except in the cases mentioned u/s.65 – The policy of law is that primary evidence is the best evidence and it affords the greatest certainty of the fact in question and it is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Evidence Act, 1872: ss. 4, 114 – Law regarding presumptions – Word “May Presume, Shall Presume, Conclusive Proof” – Factual Presumption or discretionary presumption come under “May Presume” and in this case facts may be proved either by adducing evidence or the court may presume the existence of a fact – Legal Presumption or Compulsory Presumption come under “shall presume” and once it is declared by the law that the court shall presume the existence of a fact, then the court is under obligation to presume such fact unless such presumption is displaced by adducing evidence contrary to such presumption – Conclusive proof is a strict declaration of law and once a fact is declared to be a conclusive proof of the other, then the court shall not allow the evidence to be adduced to misplace such presumption – The presumption as contemplated by s.114 is a discretionary presumption. Evidence Act, 1872: Chapter 7 – Burden of Proof - The phrase “burden of proof” has two meanings one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. Evidence Act, 1872: Hostile Witness – Admissibility of Evidence – Settled Legal Position – Even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. |
