Report No. 69

7.71. Silence when explained.-

It follows that when the silence of the accused is readily explained by special circumstances negating the inference of guilt, it cannot constitute an admission.1 Thus, the silence of a person under the influence of narcotics or at a formal hearing before a magistrate, is inadmissible. In applying section 8, all these considerations will have to be borne in mind.

1. See (1965-1966) 79 Harvard Law Review 1037.

7.72. Absconding.-

Similar comments apply to conduct by way of absconding-Illustration (h). Even innocent persons may evade apprehension owing to the instinct of self-preservation.1

1. (a) Thimma v. State of Mysore, AIR 1971 SC 1871 (1877), para. 11;

(b) Rahman v. State of Uttar Pradesh, AIR 1972 SC 110 (116), para. 21.

7.73. Illustration (j) and (k)-Complaint as distinct from bare statement.-

We shall now deal in detail with illustrations (j) and (k), which are concerned with statements accompanying and explaining the conduct of a person an offence against whom is alleged to have been committed-i.e., the victim. Under these illustrations, the terms in which the complaint was made are relevant. A distinction is to be made here between a bare statement of the fact of rape or robbery, and a complaint. The latter evidences conduct; the former has no such tendency. There may sometimes be a difficulty in discriminating between a statement and a complaint.

It is conceived that the essentials difference between the two is that the latter is made with a view to redress or punishment, and must be made to some one in authority-the police, for instance, or a parent, or some other person to whom the complainant was justly entitled to look for assistance and protection. For instance, a petition impugning the conduct of a police officer and begging that he may be put on trial is a complaint within the meaning of the Code of Criminal Procedure.1

1. Gangadhar v. Emperor, 1915 ILR 43 Cal 173.

7.74. Importance of distinction.-

The distinction is of importance, because, while a complaint is always relevant as conduct, a statement not amounting to a complaint will be relevant only under particular circumstances-e.g., if it amounts to a dying declaration,1 or as a corroborative evidence.2 Section 8, in so far as it admits a statement as included in the word "conduct", must be read in connection with sections 25 and 26, and cannot admit, as evidence, a statement which would be shut out by those sections.3

1. See the illustrations to section 8.

2. See-(a) Apurba v. R., 1907 ILR 35 Cal 141; (b) R. v. Shamlal, 1889 ILR 14 Cal 707.

3. R. v. Nana, 1889 ILR 14 Bom 260.

7.75. Essence of a complaint.-

A complaint, as we have already stated1 is one made with a view to redress or punishment, and must be made to some authority or some person to whom the complainant is justly entitled to look for assistance and protection.2 In a Lahore case,3 a woman who was raped, was questioned by a relative of her husband. The woman told him that the accused had raped her and asked him to tell her father-in-law in his field, which the relative did. When her father-in-law came home, she made the same statement to him. It was held that while the above statements could not be regarded as forming part of the same transaction as the offence and so section 6 would not apply, the statements were admissible under section 8 as evidencial conduct.

1. Para. 7.73, supra.

2. Sec {a) Gangadhar v. Emperor, ILR 43 Cal 173;

(b) Emperor v. Phulel, ILR 35 All 102.

3. Raman v. Crown, AIR 1921 Lah 258.

7.76. Complaint when hearsay.-

If a statement does not amount to a complaint and is outside section 8, it is inadmissible unless some other section covers it. In the Patna case of Emperor v. Phagunia Bhutan, AIR 1926 Pat 58 it was observed:

"If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself; but if she only answered questions, her statement would be mere hearsay."

The conduct of a woman who has been raped is, thus, relevant under section 8 only if she lodges a complaint. If she does not make a statement with a view to making a complaint, then that statement will not be admissible in evidence under section 8 as conduct and would be ruled out as hearsay, unless admissible under some other section.

7.77. Statements by ravished female.-

It should be noted that a statement by a ravished female after the commission of the offence, though not covered by section 6, is admissible, not only as explanation of her conduct under section 8, but also under section 157 by way of corroboration.1 Thus, where the statement of the girl to her mother (if she had made any) does not form part of the transaction, viz. the raping of the girl, or occur during it, but is made after this transaction, and the rape of the girl was over when the perpetrator had gone away and the girl came away from the scene of occurrence to her mother's house, the statement is not relevant under section 6.2

But it may be relevant under section 8. A statement made to the mother by the raped girl is also relevant3-4 under section 8, if the girl is a witness, as she usually is, section 157 would also be relevant. If, however, owing to any circumstances, she is not a witness, section 157 would not apply. The statement should not, however, be made in answer to question.5

1. Sorsalal v. Emperor, AIR 1925 Nag 74 (76).

2. Sreehari v. Emperor, AIR 1930 Cal 132 (133).

3. AIR 1930 Cal 132 (133).

4. AIR 1963 Ori 58 (59).

5. (a) AIR 1926 Pat 58 (60); (b) (1961) 2 Cr 14 137 (138, 139).

7.78. Reason for making a distinction between mere statement and complaint.-

We have stated that illustrations (j) and (k) make a distinction between (i) complaints, and (ii) other statements. The reason for regarding the former as relevant is that they are influenced by a fact in issue (namely, by the offence alleged).

7.79. Position in England.-

It may be noted that the position under the section is, in some respects, wider than the English law on the subject. In England, complaints are (according to the usually accepted view), admissible only in sexual cases and in matrimonial proceedings based on adultery. They are admissible to confirm the story of the complainant to prove its intrinsic credibility, and also to prove non-consent. They need not, however, be literally contemporaneous. According to one English writer1-

"Complaints are admissible, though not made at the very first opportunity, provided they are made at the first reasonable opportunity, but, unlike statements admitted as part of the res gestae, they are admissible only to show the consistency of conduct of the complainant, or the absence of consent if in issue.

Thus, in charges of rape and similar sexual offences against women, and children of either sex (even though they consented, where consent is no defence), evidence may be given that the victim made a "spontaneous complaint on the first opportunity which reasonably offered itself after the offence. This need not be to the first person she saw.2 In this case, the words said may be given in evidence.3 Such evidence is given to show the consistency of the conduct of the victim with the story told by him or her in the witness box."

In India, the section is not confined to sexual offences.

1. R.N. Gooderson Res Gestae in Criminal Cases, (1956) Cambridge LJ 198 (209).

2. R. v. Cummings, (1948) 1 AER 551.

3. (a) R. v. Osborne, (1905) 1 KB 551.

(b) R. v. Camelleri, (1922) 16 CAR 162.

(c) R. v. Wannell, (a boy of 19), (1922) 17 Cr App R 53, all cited in Codedington's Laws of Evidence: Constable's Guide, (1962), pp. 11-12.

7.80. Use in evidence-Purpose.-

If it be held that those statements were in the nature of a complaint and are thus relevant and admissible under section 8, the next point for consideration will be as to what would be the value of those statements; could they be used as the basis for conviction of the appellant? In this connection, it would be useful to refer to the observations of Lord Porter in Gilhe v. Posho Ltd: AIR 1939 PC 146 : (1939) 2 All 196 (200) (PC).

"In certain cases as, e.g., in the cases of sexual offences against 'women, statements made to third parties are in some circumstances admissible. But the careful limits placed upon the admissibility of such statements is evidence of the jealousy with which their admission is regarded. They must be complaints made voluntarily and at the earliest convenient moment, and even then they are received not as evidence or corroboration of the facts complained of, but as evidence of the credibility of the complainant's testimony to the fact alleged, and where consent is a defence, to negative consent. They are inadmissible in any other class of cases".

A similar view was expressed by the Madras High Court in the case of Kappinaiah v. Emperor, AIR 1931 Mal 233(2). It was held in that case that-

"If the conduct of a woman who has been ravished is such that she lodges a complaint, then that conduct is relevant and the terms in which the complaint was made are relevant as conduct but they are not relevant as direct proof of the act".

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