Prosecution Evidence

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PROSECUTION EVIDENCE
By
MIAN ALI HAIDER
L.L.B., L.L.M. (CUM LAUDE) U.K.
1
SESSION TRAIL
• FIR, ITS NATURE AND VALUE AS
EVIDENCE
IN
DIFFERENT
CIRCUMSTANCES
• OTHER POLICE STATEMENTS
• STATEMENTS BY WITNESSES BEFORE
MAGISTRATE DURING INVESTIGATION
• DYING
DECLARATION
BEFORE
MAGISTRATE, ARTICLE 46 OF 1984
ORDER
• RECOVERY EVIDENCE, SECTION 103
CR.P.C.
POLICE
OFFICIALS
AS
RECOVERY WITNESSES –
2
INTRODUCTION
• All the Evidence in any criminal trial,
investigation or inquiry?
• Different forms of evidence?
• Qanoon – e – Shahdat & Cr. P.C. go side by
side?
• Different interpretations & applications?
3
1st Starting point of any prosecution
evidence
• FIR u/s 154 of Cr.P.C.
• It’s nature, value as evidential
– Supposed to contain the narrative of way incident takes place
– Maters of minute detail are not necessary or absence will not
vitiate the evidential burden
– Person who made the report may not necessarily a party
– Such a report is to be regarded as intimation
– Which can be made by any one, who gained the knowledge in
any manner
– Further pursuit of matter by police is the activity of the state
(Matlub Hussain’s Case)
4
1st starting point of any prosecution evidence
• FIR recorded at spot after investigationtantamount to statement made before police
– inadmissible in evidence
• If accused report his own crime?
– Statement of accused in FIR is not
admissible for the reason that it is
inculpatory in nature
5
2nd STAGE POLICE STATEMENTS
• Statement u/s 161
• Statement made u/s 161 can be contradicted u/s 162
 Provided that, when any witness is called for the prosecution in such inquiry or trial
whose statement has been reduced into writing as aforesaid, the
Court shall on the request of the accused be furnished with a copy
thereof, in order that any part of such statement, if duly proved,
may be used to contradict such witness in the manner provided
by 'section 145 of the Evidence Act. 1872. When any part of such
statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.
 What is the context of section 162
6
2nd STAGE POLICE STATEMENTS
• The word “investigation” must refer to investigation of specific
allegation of crime
• Same crime must have been already reported and therefore the
section can only apply to those statements which are steps in
furtherance of pending investigation
• The mere fact that a statement was made during an investigation
is not by itself sufficient to bring it under 162
• Now, the question whether a statement was recorded ‘ in the
course of an investigation’ or not is a
– QUESTION OF FACT
– To be decided on the circumstances of each case
7
2nd STAGE POLICE STATEMENTS
• 172. DIARY OF PROCEEDINGS IN INVESTIGATION
– Police diaries cannot be used as evidence at all
– but can be used by the court
– “…Any Criminal Court, may send for the police-diaries of a case under
inquiry or trial in such Court, and may use such diaries not as evidence in
the case, but to aid it in such inquiry or trial. Neither the accused nor his
agents shall be entitled to call for such diaries, nor shall he or they be
entitled to see them merely because they are referred to by the Court; but if
they are used by the police-officer who made them, to refresh his memory,
if the Court uses them for the purpose of contradicting such police-officer
the provisions of the Evidence Act, 1872 section 161 section 145 as the
case may be, shall apply”.
8
3rd STAGE OF PROSECUTION EVIDENCE
• Statements by witnesses before Magistrate
during investigation
• Section 164 Cr.P.C. read with Section 244A
and 265 J Cr.P.C.
– Which may include
•
•
•
•
Confessions
Admissions
Dying Declaration or
Any other statements
9
DYING DECLARATION
• “Nemo moriturus praesumitur mentire”
• ‘a man will not meet his maker with a lie in his mouth’.
• It operates as an exception to the hearsay rule. Hearsay evidence is
excluded because it is considered not sufficiently trustworthy.
• It is rejected because it lacks the sanction of the tests applied to
admissible evidence i.e. the oath and cross examination.
• They are not given any importance in the courts because the
person who is giving this evidence is not telling his experiences
but that of another person and who cannot be cross examined to
verify the facts
• Law Dealing With it is multifarious
10
Dying Declaration
•
46. Cases in which statement of relevant fact by person who is dead or cannot be
found, etc., is relevant:
(Section 32 of Indian Evidence Act 1872)
Statements, written or verbal, of relevant facts made by a person who is dead, or who
cannot, be found, or, who has become incapable of giving evidence, or whose
attendance can not be procured without an amount of delay or expense which under the
circumstances of the case appears to the Court unreasonable, are themselves relevant
facts in the following cases:
(1) When it relates to cause of death: When the statement is made by a person as
to the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's death comes into
question. Such statements are relevant whether the person who made them was or
was not, at the time when they were made, under expectation of death, and whatever
may be the nature of the proceeding in which cause of his death comes into question.
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Dying Declaration
• Two Classic Expressions in same article
– “Any of the circumstances of the transaction resulted in his death”
– “ The Cause of his death”
– (Former is wider than the latter one)
– Words “resulted in his death” do not mean “ caused his death”
• Law makes admissible not only statement dealing directly with the cause
• But also statement as to any of the circumstances
– Which may include
• cases where cause of dying daclarant's death comes into question
• Circumstances in which dying daclarant’s companion may have been
done to death in course of same transaction
(Muahmmed Aslam & others vs. The State)
12
Dying Declaration
• Law relating to recording the dying declaration
• Chapter XXV deals with this in detail
• If recorded u/s 164 and requirements are not fulfilled , will
not affect the admissibility of dying declaration
• They are admissible even if made orally
• Which contravene the general rule of hearsay evidence
• So the article 46 are in no way dependent on, or
circumscribed by the requirements as contained in 164
13
Dying Declaration
• Credibility ? Reliability? Believability?
– Merely a question of “ordinary human judgment”
– To accept such statement without considering “surrounding
circumstances”
• Totally inconsistent with
– “Safe dispensation of justice”
– But also
– Accepting such statement on consideration of opinions
expressed in precedents regarding similar declarations,
accompanied by words indicating some reliance on “ some
principle of law” held to be
14
– “NO LESS DANGERIOUS”
Prevailing law and practise on dying declaration
• “Once the Court has come to the conclusion that the dying declaration was the
truthful version as to the circumstances of the death and the assailants of the
victim, there is no question of further corroboration.
• If, on the other hand, the Court, after examining the dying declaration in all its
aspect, and testing its veracity, has come to the conclusion that it is not reliable
by itself, and that it suffers from an infirmity,
• then, without corroboration it cannot form the basis of a conviction.
• Thus, the necessity for corroboration arises not from any inherent weakness of
a dying declaration as a piece of evidence, as held in some of the reported
cases, but from the fact that the Court, in a given case, has come to the
conclusion that particular dying declaration was not free from the infirmities,
referred to above or from such other infirmities as may be disclosed in
evidence in that case.”
• statement is “WORTHY OF BELIE|F”
15
RECOVERY EVIDENCE (103)
•
•
•
•
Section applies to search of a place situate in locality not to a search of a person.
Section is procedural but mandatory in nature
Designed & intend to guard chicanery and concoction.
Marked distinction’s
– Cases in which compliance of section is made
– In cases where no such effort was made
• Result of admissibility would be different in both the cases
– The offence charged with the recovery of article
– The case in which article recovered
• Result of admissibility would be different in both the cases
– Police officer as an eye witness
– Police officer as Investigating officer
•
Result of admissibility would be different in both the cases
16
(Mushtaq Ahmed Vs. The State)
RECOVERY EVIDENCE (103)
• When section 103 will not apply?
• Exception contained in Article 40?
• Reasons
– Plain reading of 103 elaborates the scenario where
police conducts search of a house / place to recover an
article for which search is to be made
• But not to
– In consequence of the information given by or on the
pointation of the accused
17
– Such a recovery is sheltered by Art 40.
Reading Material
• Muhammad Ashiq – PLD 1957 SC (P) 293; Liaqat Ali – 1981 SCMR 1130;
Nasim Akhtar – PLD 1968 Lah. 841; Muhammad Hanif – PLD 1977 Lah.
1253; Lakhmir – PLD 1968 Q 7; Ghulam Qadir – PLD 1967 Pesh. 269
A.Nagesia – AIR 1966 SC 119; Khalil Ahmed – 1975 SCMR 442; Ismail –
1976 SCMR 135 ; Hamid Khan – PLJ 1980 SC 519; Muhammad Saleh – PLD
1965 SC 366; A.Nagesia – AIR 1966 SC 119; Against others ; Ghandal – PLD
1960 SC 137; Salman Shah – PLD 1971 SC 751; Muhammad Aslam – PLD
1978 SC 298 ; Reg v Osman (1881) 15 Cox CC 1, 3; Zarif – PLD 1977 SC
612, 617 (modern approach) Ratten (1971) All ER 801; Bakhsheesh Singh –
AIR 1925 Lah. 549 ; Abdul Razik – PLD 1965 SC 151; Tawab Khan – PLD
1970 SC 13; Muhammad Aslam – PLD 1978 SC 298 Ratten – (1979) 3 All ER
801; Mushtaq Ahmed – PLD 1996 SC 574; Mir Ahmed – 1995 SCMR 614 ;
Javed Masih – PLD 1994 SC 314, 324; Mir Ahmed – 1995 SCMR 614
18
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