Report No. 69
II. The Restriction
8.123. Restrictions.-
We now come to that part of the section which lays down an important restriction in regard to its application.
8.124. First Explanation.-
The first Explanation to the section emphasizes that the state of mind must exist in reference to the particular matter in issue. Thus, for example, in a charge for rash driving, evidence regarding similar previous occurrences resulting from rashness of the accused is not admissible, as it must be proved that the rashness existed in relation to the particular incident.1 To illustrate the first Explanation, we may state that if the charge was of belonging to a gang of dacoits, evidence as to habitual commission of thefts (as opposed to dacoity) is inadmissible. But, as was held in a Patna case2, in order to prove the association of an accused with a gang of dacoits-association in the abstract-evidence of previous convictions may be relevant.
1. 1929 Mad WN 395 (397), cited in the Digest.
2. Lalchand v. State, AIR 1961 Pat 260 (266), para. 16 and Bhima Shaw, AIR 1956 Ori 777.
8.125. Character evidence-similar facts.-
One of the exclusionary rules of the law of evidence relates to evidence of character and previous convictions-a rule primarily designed to avoid undue prejudice. Where the object of evidence of character is to persuade the court that it is likely or unlikely that a party acted in a particular way, then, as a general rule, such evidence is excluded if it relates to bad character. This general rule was, however, on proper grounds, modified, and evidence allowed to go in of previous occurrences ("similar facts"), even though, incidentally, it might reveal bad character.
In section 14, we are concerned with that aspect of character which reveals a state of mind, if the state of mind is itself of relevance in the facts of the case. Evidence might have rational probative value in other respects, and may indirectly reveal bad character; but we are not concerned with that aspect. Nor are we concerned with the question of character as establishing identity.1 The field of reception of evidence within section 14, so far as it relates to similar facts, is limited. But, even in this limited field, the section is not an easy one to administer.
1. See discussion as to section 9.
8.126. To borrow an illustration from the facts of an English case,1 if a person is charged with the murder of a child and takes up the defence of insanity (sudden mania), evidence of a voluntary confession by the accused as to how the accused killed another child, is receivable, in rebuttal to show the state of mind.
1. R. v. Wells, 123 CCC Sessional Paper 1203 (Collins, J.), cited by Phipson.
8.127. On the other hand, if the question is merely of the factum of the offence, the fact that the accused had committed similar other crimes, would be irrelevant. In England, in the Brides in the Bath case,1 the accused was charged with the murder of his wife, who was found dead in her bath. Evidence that subsequently to the wife's death, two other women with whom the accused had contracted bigamous marriages had also been found dead in the baths under very similar circumstances, and that in all the three cases the accused had benefited by their death, was held admissible, to rebut the plea of accident or innocent intent. This case is also relevant with reference to section 15: but, in so far as it relates to intent, it belongs to the field covered by section 14.
1. R. v. Smith, (1915) Cr App R 259.
8.128. Sexual offences.-
Cases relating to sexual offences often present problems in this context. Where a question of intent or passion or guilt is not materia1.1 the evidence of prior sexual assaults cannot be admitted under section 14. For example, A is charged with house-breaking with intent to commit rape on B; evidence that an hour later, he entered another house down the chimney and had connection with another woman with her consent, is inadmissible.2-3 It would make no difference that his intercourse with the other woman was without her consent.
1. Paras. 8.129, infra.
2. R. v. Rodley, (1913) 3 KB 468.
3. Compare section 14, illustrations (n) and (o).
8.129. On the other hand, where a person is charged with carnal knowledge of a girl under 16 years, evidence that he had sexual connection with that same girl seven months prior to the charge, would be admissible, not to prove that he committed the second offence, but to show sexual passion1 for the particular girl.
1. R. v. Shellaker, (1914) 1 KB 414 CCC followed in R. v. Rogers, (1914) 10 Cr App R 276.
8.130. Illustration (a) and Explanation 2.-
Upon the trial of a person charged with being in dishonest1 possession of stolen property, evidence could be given of a previous conviction of the accused for attempting to receive stolen property, and of the same person knowing it to be stolen, under sections 511 and 411 of the Indian Penal Code.
1. Cf. section 14, illustration (a) and Explanation 2.
8.131. Previous conviction-Explanation 2.-
There was not, in the law of this country, any such special provision1 as was made in England in 1871, relating to the admission in evidence, against a person charged with having received stolen goods knowing them to be stolen, of previous conviction of such person, for any offence involving fraud or dishonesty. The question was, however, answered in the affirmative, because section 54 (as it then stood) made previous conviction relevant in every case. By the amendment of 1891, the scope of section 54 was severely restricted, but, in section 14, Explanation 2 was added. The amendment also made a verbal change in section 14, Explanation 1, but that change is not material for the present purpose.
1. Prevention of Crimes Act, 1871, (34 and 35 Vict., C. 112), section 19.
8.132. Second Explanation-Scope of.-
Explanation 2 to the section, if properly construed, has a very limited scope. It does not provide that the previous conviction is always a relevant fact-not even where the state of mind is in issue. If, however, the previous commission by the accused of an offence is relevant within the meaning of the section-i.e., as showing the state of mind when relevant-then the previous conviction of such person (of that offence)1 is also a relevant fact under the Explanation.
In order at the Second Explanation may apply, the prosecution must establish, from, that state of mind is relevant, and secondly, that in order to show that the state of mind, the previous commission of an offence is relevant. These two things being established, the Explanation clears the way for giving evidence of a previous conviction. The Explanation thus makes the conviction relevant where previous commission is relevant.
1. These words do not occur in the Explanation, but are implied.
8.133. Evidence of the previous conviction of the accused person amounts to evidence of bad character and is not admissible under section 54, unless and until the accused produces evidence of good character nor are convictions admissible to show the state of mind of accused. As Sultan Ahmed J. said:1 "the whole principle of British criminal jurisprudence condemns the prejudice which may be caused to the accused by the admission of previous conviction before he has been found guilty of the offences on which he has been arraigned." This general rule is modified by Explanation 2.
1. Teka Ahir v. Emp., AIR 1920 Pat 351 (353).
8.134. Under the law before 1891, evidence of previous conviction was admissible in evidence both to show the reputation and disposition of the accused, however unconnected it may be-to the present trial .1 This2 was altered in 1891, as already stated.
1. 1887 ILR 14 Cal 721 (729) (FB).
2. See section 54 before 1891.
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