Report No. 69

7.61. Term 'conduct'.-

The next broad category relates to conduct. "Conduct" is the expression, in outward behaviour, of the quality or condition operating to produce these effects. These results are the traces by which we may infer the moving cause. In point of time, conduct is closely associated with the internal condition giving rise to it; nevertheless, the indication is strictly not a concomitant, but a retrospectant one, because the argument is backward from effect (conduct) to cause (internal condition).1

1. Wigmore, Vol. I, section 190, p. 640, cited by Woodroffe Evidence, (1941), p. 343.

7.62. Illustrations.-

Illustrations (a) and (b) to section 8 refer to motive. Illustrations (c) and (d) refer to preparation. Illustration (e) refers to previous and subsequent conduct of an accused. Illustrations (e) and (f) and (h) indicate a desire to avoid or stifle enquiry, thus representing conduct, and illustration (g) is an instance of silence which may amount to admission.

7.63. Illustration (a) elaborated.-

A case analogous to illustration (a) to section 8 may be cited. In a trial1 of the accused woman for the murder of her husband's elder brother, the circumstances that the relations between the deceased and the accused were strained, that the deceased threatened to expose her to her husband on his return from outstation, that the deceased was beaten by the paramour of the accused five days before his murder-were held to be relevant under section 8, as showing motive or preparation.

1. Himachal Pradesh Administration v. Mst. Shiv Devi, AIR 1959 HP 3.

7.64. Illustration (e).-

Illustration (e) would apply if it could be shown that the act of the person providing evidence would have the effect of giving an appearance favourable to himself.1

1. State v. Debnu, AIR 1957 HP 52 (57).

7.65. Illustration (g).-

As to illustration (g), we may refer to a Calcutta cases. The accused woman was present, when the person for injuring whom the accused was tried stated, almost immediately after the infliction of the injuries, that the accused woman inflicted them, and the accused did not contradict the statements of the injured. These statements were held to be admissible under illustration (g). In England1, it is a general rule that a statement made in the presence of the prisoner, which he might have contradicted, if untrue, is evidence against him.2

1. Petition of Surat Dhobini (in re:), 1884 ILR 10 Cal 302 (304). 2. R. v. Mallory, 15 Cos 456 (458) (Per Field, J.).

2. See also discussion as to 'silence', infra.

7.66. Cases relating to corruption.-

The case law, as to offences of corruption furnishes interesting illustrations of conduct as a relevant fact. In a Mysore1 case, at the time when the Inspector of Police, Anti-Corruption Branch, called upon the accused to produce the money which had been received as a bribe, the accused hesitated, and was trembling and perspiring. It was held that the conduct of the accused under such circumstances was a relevant fact which could be taken into consideration by the Court.

In Shiv Bahadur Singh's case, AIR 1960 Mys 111 (129) the Supreme Court took into consideration the reaction and confusion on the part of the appellant in that case, at the time when he was called upon by the police to explain his possession of the bribe money. In the case of State of Madras v. Vaidyanatha, AIR 1958 SC 61 also the Supreme Court took into consideration evidence to the effect that when the accused was caught, he was seen to be trembling.

1. M.M. Gandhi v. State of Mysore, AIR 1960 Mys 111 (129).

7.67. There is also a Calcutta case1 illustrative of conduct. The accused was charged with the murder of his wife, S, who was missing for some time. A photograph of the dead body was published in the newspaper for establishment of the identity of the dead woman. With the publication of the photograph in the newspaper, the matter moved swiftly towards identification. On seeing the photograph, the members of the wife's family had no doubt in their mind that this was the body of S. Soon after the photograph was published, the accused was the first to speak to B about the photograph appearing in the newspaper and told him-"people are saying that the photograph is that of S, please go and see".

When the accused spoke to B, the accused appeared to be in a disturbed state of mind and tried to go away, taking leave. It was held that the statement which the accused made to B, clearly came under the second paragraph of section 8, as showing the conduct and was a relevant fact. The particular statement by the accused accompanied and explained acts showing his reaction of a disturbed mind on the publication of the photograph in the newspaper, coupled with the suggestion that the photograph was of his dead wife. The statement by the accused to B, immediately on the publication of the photograph of S, was an incriminating circumstance against the accused.

1. Arun Kumar Banerjee v. State, AIR 1962 Cal 504 (508).

7.68. Silence as conduct.-

A few words about silence as evidencing conduct are needed. The fact that an accused person remains silent when denounced in the presence of witnesses by another person as the latter's assailant, is admissible in evidence. The situation represents a confrontation of the accused by the person he is alleged to have harmed. First, the evidence is of importance as affording evidence of identification. If the victim dies, it may be of the highest importance that before his death he identified the accused as his assailant; if he lives and gives evidence of the identity of the accused at the trial, the fact that he did so at the first possible moment is often valuable as showing the consistency of his story.

Secondly, it affords the accused person an opportunity-though he is not bound to avail himself of it-either of denying that he is the person who harmed the injured party or of setting up some fact which may at a later stage form part of his defence. The degree of weight to be attached to the silence of an accused person in such circumstances depends upon the nature of the case. Many factors must be taken into account in assessing it, and no hard and fast rule can be laid down. Illustrations which may afford guidance can be found in the cases.1-2-3

Care must be taken in all cases not to put too high a value on the absence of an immediate denial unless the surrounding facts point unequivocally to the conclusion that any accused person, whether educated or ignorant, cautious or impulsive, voluble or taciturn, would have felt bound to make a rejoinder in view of the particular charge against him and in the particular circumstances prevailing when he was made aware of it. It is not permissible to arrive at an adverse verdict on the strength of the opinions formed as to conduct of an accused person to supplement a case for the prosecution which, at the conclusion of the evidence heard on both sides, is too weak to justify conviction.4

1. Rex v. Feigenbaum, (1919) 1 KB 431.

2. Rex v. Whitehead, (1929) 1 KB 99.

3. Rex v. Tate, (19013) 2 KB 680,

4. Stephen Seneviratne v. King, AIR 1936 PC 289: 41 CWN 65 (78) (Lord Roche).

7.69. Silence as consent.-

The admissibility of silence in such circumstances is usually based upon the Latin maxim "qui tacet, consentir videtur"-silence indicates consent; thus, the silence is thought to be a tacit admission. The alternative justification is that, since "it is the nature of innocence to be impatient of a charge of guilt whenever seriously made and distinctly understood, an innocent person will usually spontaneously deny the accusation,"1 the failure to make a denial is unnatural in an innocent man, and therefore evidence of a guilty conscience. Thus, the inference from silence is based on the assumption that it is natural for the person against whom the allegation is made to repudiate it. This assumption is as old as the Bible2 where we find the following passage:

"And Jesus stood before the governor: and the governor asked him, saying, Art thou the King of the Jews? And Jesus said unto him, Thou sayest. And when he was accused of the chief priests and elders, he answered nothing. Then said Pilate unto him, Tearest thou not how many things they witness against thee? And he answered him to never a word; in so much that the governor marveled greatly."

1. People v. Nitti, cited in (1965-1966) 79 Harvard Law Review 1036.

2. Mathew 27; 11-14.

7.70. The assumption that silence indicates consent is not always valid. No doubt, sometimes this assumption is justified. For example, in Egan v. United States, 137 F 2d 369 (8th Cir). cert denied, (1943) 320 US 788 See (1965-1966) 79 Harvard Law Review 1037 the accused, his lawyer, other company officers, and their lawyers, were the only persons present at a meeting. The attorney for one of the other officers read a statement made by his client to the Securities Exchange Commission, about a matter then under investigation, admitting the client's guilt and implicating also the accused.

In those circumstances, it might well have been natural for an innocent man to reply. But there are situations where a repudiation may not be expected. This is particularly so where the police are present. For a variety of reasons, the person concerned may not like to make a repudiatory statement. In fact, the existence of such counter-balancing considerations is itself a relevant fact under section 9.

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