Report No. 69

7.81. Limits to the rule.-

In England, the Court has a discretion to exclude prejudicial evidence which may influence the jury. In R. v. Parker, (1961) 45 Cr App Rep 1. the accused was charged with wounding his wife by shooting.1 A neighbour testified for the prosecution that after the shooting, the wife had come to him, showed him her face which was bleeding, and complained that her husband had shot her. The judge directed the jury to attach no weight to the words of the neighbour. Nevertheless, the jury convicted the accused. The Court of Criminal Appeal allowed the appeal against the conviction, on the ground that the evidence was prejudicial and likely to influence the jury. In India, under section 8, the evidence would be relevant and the court has no discretion to exclude it.

1. For earlier cases, see Cross Scope of Rule against hearsay, (1956) 72 LQR 91.

7.82. Position in England.-

In England, it is now well settled1 and held that in prosecutions for rape and offences of similar character, the statement in the nature of a complaint made by the prosecutrix to a third person, need not be in the presence of the accused, provided such statement is shown to have been made at the first opportunity which reasonably afforded itself after the commission of the offence. The particulars may be so given in evidence in this class of cases-but only in this class-not as being evidence of the truth of the charge against the accused, but as evidence of the consistency of conduct of the prosecutrix with the story told by her in the witness-box and as negativing consent on her part.2

It was, at one time, thought that this evidence was only admissible in cases where non-consent was a material element.3 But that is not so. But the complainant must be called. Thus, if the victim of indecent assault is unable to give any evidence of it, evidence by another witness of a complaint made to her by the alleged victim shortly after the incident becomes inadmissible4-5 in England.

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

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

(b) R. v. ',Wyman, (1896) 2 KB 167;

(c) R. v. Rowland, (1898) 62 JP 459.

3. R. v. Kingham, (1902) 66 JP 393.

4. R. v. Osborne, (1905) 1 KB 551; R. v. Lillyman, (1896) 2 QB 167.

5. R. v. Waliwork, (1958) 42 Cr App R 153.

7.83. Matrimonial cases.-

Corroboration may be required in England in some civil cases also, e.g. matrimonial proceedings based on adultery and the like. Although Lord MacDermott, in Preston Jones v. Prestone jones, 1951 All ER 124 (138) expressly recognised that the jurisdiction of the Divorce Division must be regarded as entirely distinct from that of a Criminal Court and declared that his conclusions in this respect were not based on any analogy drawn from the criminal law, it is clear that, where adultery is relied on in support of a petition for divorce, the fact that this is a quasi-criminal offence cannot be overlooked.

Asking himself what could be the reason why strict proof and corroboration of the adultery were required, Vaisey J., in Ginesi v. Ginesi, (1948) 1 All ER 373 (376) observed: "the finding that the offence has been committed may be far more serious in its consequences both to the individual and to society than conviction of a crime. That is true even in these days when its gravity is not so widely appreciated and accepted as it used to be."1

1. See Note "Corroboration in Civil Cases", (1954) 218 LT 182.

7.84. History of rule requiring corroboration.-

History of the rule permitting such evidence is intimately connected with the history of criminal procedure. The rule could, in its ultimate origin, be traced to the doctrine of hue and cry. It is a survival of the ancient requirement that the woman should raise "hue and cry" as a preliminary to an "appeal" of rape, the "appellee" being allowed, in defence, to deny that hue and cry had been raised.

In its origin, the process of accusation which the common law evolved was a private one. The accusation could be made either by a single individual, or by a group. Accusation by a single individual was known as an appeal (of treason or felony, as the case may be), and when the accused appeared before the Court and answered to the charge, the appropriate method of trial was by battle. These "appeals" of treason and felony had largely become obsolete in England by the end of the 16th century, but their formal abolition took time. In a case reported in 18181 an abortive effort was made to revive these proceedings, and this led to the formal abolition of "appeals".

1. Ashford v. Thorton, (1818) 106 England Reports 149.

7.85. As society began to develop, some more effective means of bringing persons suspected of crime to trial had to be found. This led to the practice of the Kings' Justices, when visiting various countries and in hundreds, assembling men from the locality who would be sworn to state what persons were, to their knowledge, suspected of crime.1

In the beginning, the trial was by ordeal, but later-somewhere between the 13th and 15th century-it developed into the procedure of indictment. An "indictment" was a written charge of crime made by a body of men known as the grand jury. If the grand jury found a prima facie case, they could present a "true bill" (billa vera) which provided the formal accusation upon which a court of appropriate jurisdiction would try the charge. It was in the above context that "hue and cry" had an importance.

1. Assize of Clarendon of King Henry the 2nd (1166).

7.86. Afterwards, "appeals" became obsolete, and rape was dealt with on indictment. The woman was then an admissible witness, and her testimony was corroborated or not, according as she made, or failed to make, fresh complaint and pursuit of the offender. At this period, when rules of evidence were in their infancy, it was generally allowable to corroborate all witnesses by proof of their prior similar statements;1 but, later on, the rule permitting corroboration by proof of former statements was reversed.2 Complaints, however, survived as an exception to the changed rule.3

1. Lutterell v. Reynell, 1670 Mod 282 (283).

2. R. v. Parker, (1783) 3 Doug 242.

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

7.87. Statements by victims.-

At this stage, it would be convenient to sum up the position regarding statements by victims of offences in India, in the form of a table as follows:-

(a) Statements as to the offence, other than complaints-

Admissible under

(i) section 6, if forming part of the same transaction;

(ii) section 32, if amounting to a dying declaration;

(iii) section 157, for corroboration, if the maker of the statement is called as a witness, and if the other conditions of that section are satisfied;

(iv) section 159, to refresh the memory, if the maker is called as a witness and if the other conditions of that section are satisfied;

(v) section 145, for contradicting the maker when called as a witness. But the statement may be excluded by virtue of section 162 of the Code of Criminal Procedure, 1973 or some other specific provision of the law.

(b) Statements as to offence when amounting to complaint. Admissible under

(i) section 6, if forming part of the same transaction;

(ii) section 8, as showing conduct influenced by a fact in issue (regarding the alleged offence);

(iii) section 9, as negativing consent where consent is material;

(iv) the other sections mentioned in (a)(ii) to (a)(v) above, where applicable-including section 32.

But the complaint may be excluded if it falls within section 162 of the Code of Criminal Procedure, 1973 or some other exclusionary provision.

7.88. No change needed.-

The above discussion reveals no need for a change in the law as enacted in section 8.

Section 9

7.89. Introductory.-

Under section 9, "facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue, or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."

There are 6 illustrations appended to the section, which we shall discuss later.

7.90. Grammatical error in opening word.- Amendment recommended.-

The opening 13 words of the section-"Facts necessary to explain or introduce a fact in issue or relevant fact", are not in symmetry with the subsequent full clause beginning with "or which". The proper form should be-"Facts which are necessary to explain or introduce a fact in issue or relevant fact or which support" etc.

The quoted words should be so amended, and we recommend accordingly.

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