The article has been written by Samiksha Singh. This article deals with the relevance of motive, preparation, and conduct for the purpose of the law of evidence. Before delving into a detailed discussion of Section 8, the article firstly defines certain important terms that are necessary for understanding this Section. Further, the article also highlights the court’s interpretation of Section 8 of the Indian Evidence Act, 1872.

Introduction

“Evidentia”, the Latin term for “evidence” means to prove or show something clearly. Deriving thereby, it can be said that evidence law is chiefly based on one fundamental premise, this is either proving or disproving the very existence of any alleged fact. Thus, depending upon what the party intends to prove, he may either be required to show the existence of some disputed fact or the non-existence of that disputed fact. 

However, just because one considers a particular fact to be relevant as evidence does not necessarily mean that the law also perceives that fact to be relevant as evidence. Accordingly, the Indian Evidence Act, 1872 (hereinafter referred to as“IEA, 1872”), provides what are those facts that would be considered relevant, thereby allowing parties to furnish evidence of these “relevant facts”. In this article, a detailed description is given about Section 8 of the IEA, 1872, which mentions that “motive”, “preparation” and “conduct” would also be considered “relevant facts.” Thus, as per Section 8, evidence may be given of the aforestated three aspects in order to prove/disprove either the existence/non-existence of any “fact in issue” or a “relevant fact.”

Important definitions 

Before delving into a detailed discussion of Section 8 of the IEA, 1872, it is important to understand what the terms “fact”, “facts in issue” and “relevant” imply. These terms are defined under Section 3 of the IEA, 1872.

Fact 

The term “fact” has been given a very broad connotation under the law of evidence. Under Section 3 of the Indian Evidence Act, the term “fact” has been understood to mean not just those things which are physically perceivable, but also those aspects which are psychological in nature and exist in the person’s mind. Thus, it encapsulates both a physical and a mental state of affairs. 

For example, one S, shoots one Y. Here, the fact that this person S shot Y is a physical fact. However, the fact that this person S intended to shoot Y is a mental or a psychological fact. For the purposes of this Section, both of these aspects are included within the meaning of the word “fact.” Thus, it is safe to say that the legal understanding of this word is distinct from the general or popular understanding of the term inasmuch as in the legal realm, a fact for the purpose of evidence law also includes a mental condition. 

Facts in issue

The term “facts in issue”, as the very phrase implies, are those facts which are in issue or  simply those facts or set of facts which form the subject matter of the enquiry in the case at hand. It is these very facts on which the court needs to come to a decision. Considering the previously mentioned example, S is accused of shooting Y and is now charged with the murder of Y. In this illustration, the following facts may be considered to be the “facts in issue”

• First, S caused Y’s death;
• Second, S possessed the intention of causing Y’s death;
• Third, Y died;
• Fourth, Y’s death is not a case of suicide. The case is one of homicide;
• Fifth, S had previously received grave and sudden provocation from Y.

It is these disputed facts that are in issue before the court, and the court has to determine these questions in order to come to a decision. Hence, the term “facts in issue.”

Relevant

The term “relevant” has been defined in the context of the term “connected.”  So, let’s say that there are two facts, Fact 1 and Fact 2, then Fact 1, would be considered “relevant” to Fact 2, if Fact 1 is so linked or “connected” with the Fact 2, that when Fact 1 is either taken independently or it is considered in light of certain other facts, then Fact 1 proves/disproves or has the probability to prove/disprove the very existence or non-existence of Fact 2. Thus, in simple terms, if the test of relevancy (as understood by the interpretation clause-Section 3 titled “relevant”) is applied to any two given facts, then one fact would be construed relevant to another when they are so intertwined or linked to each other, that the first fact can either prove/disprove the existence/non-existence of the second fact. 

Explanation of Section 8 of Indian Evidence Act, 1872

According to Section 8 of the IEA, 1872, the following facts are construed as relevant facts:

• Firstly, if there is some fact which exhibits either motive or preparation.
• Secondly, any fact that exhibits conduct. “Conduct”, herein includes, conduct of any party, the party’s agent, and the victim. However, for conduct to be considered “relevant”, such conduct must either influence or be influenced by any relevant fact or fact in issue. 

Additionally, there are two explanations under Section 8 of the IEA, 1872.

Explanation 1 provides that the term “conduct” would not include mere “statements” within its ambit. For a statement to be relevant under Section 8, such statement must follow and provide an explanation of other acts. However, just because a statement may not be considered relevant under Section 8, does not necessarily mean that it would not be relevant for any other Section of the IEA, 1872.

Explanation 2 additionally makes two kinds of statements relevant. In cases where the conduct of any person is considered relevant, then firstly, statements made to such a person or secondly, statements made in that person’s presence where he can hear it, would also be relevant if any of the abovementioned statements has the power to affect the conduct of the person.

Principle and scope of Section 8 of Indian Evidence Act, 1872

Section 7 of the IEA, 1872 provides that those facts which exhibit aspects like “cause”, “effect”, “occasion” of the “facts in issue” would also be construed to be “relevant facts.” Section 8 of the IEA, 1872, in effect, essentially widens the scope of Section 7, by bringing aspects like “motive”, “preparation” and “conduct” within the meaning of “relevant facts”. Thus, while taking into account aspects like the “cause” or “effect” of the “facts in issue”, it may equally be important to know facts like, why would the accused have committed the offence (or what was the accused’s “motive”), did the accused take any previous actions to carry out the offence (or was there any “preparation” on the part of the accused)? It is important to ascertain these facts because these facts may help both the prosecution and the court to infer the “mens rea” (or “guilty mind”), and provide a link in establishing the commission of the offence.  

If the prosecution is able to show these facts be it the motive of the accused, or the preparation before the commission of the offence, or a conduct exhibiting the presence or absence of guilt, then, these facts would ultimately help in proving/disproving the issues that are in dispute before the court.

The theory of relevancy

This theory provides an idea as to what are those aspects of which evidence may be given. It is pertinent to mention that not everything may be adduced as evidence before the court. This theory is encapsulated in Section 5 of the IEA, 1872. According to this Section, a party may be allowed to give evidence of only two types of facts. Firstly, the party may give evidence of “every fact in issue” in order to show that it either exists or it does not exist. Secondly, the party may provide evidence of any fact which is construed to be a “relevant fact”, again to show that it either exists or does not exist. Accordingly, by applying the theory of relevancy to Section 8 of the IEA, 1872, it is clear that evidence may be given of those aspects which reveal “motive”, “preparation” or “conduct” of the parties since these three aspects constitute “relevant facts” in accordance with Section 8.

Essential elements under Section 8 of Indian Evidence Act, 1872

The following elements are said to be ‘relevant’ facts as per Section 8 of IEA, 1872:

• Motive
• Preparation
• Conduct, either previous or subsequent

Motive under Section 8 of Indian Evidence Act, 1872

Although all the perceivable actions of a human being are physical in nature, any voluntary physical or perceivable act cannot exist without an internal feeling or driving force that compels us humans to act the way we act. Simply put, behind every perceivable physical/external act of a sane individual, there is always an inherent internal emotion or reason that compels us to do or act in a particular way. This internal reason behind our actions is termed as “motive”. 

Now, in law, motive per se is not unlawful or punishable. This is because “motive” no matter how loathsome or hateful is only an “internal” act. Until and unless a person’s despicable motive subsequently turns into an external act or conduct that the law regards as punishable, that person would not be guilty only because his motive was pure evil. In fact, it is not even possible for one to know what is running through the mind of another person unless he does something perceivable or external. Conversely, just because a person’s motive behind committing an unlawful act is extremely commendable, does not mean that the motive itself would justify the commission of the crime. 

Now, one cannot generally establish the “motive” of a person for committing a crime ‘directly’, therefore, “direct evidence” is barely of much relevance when it comes to establishing “motive.” Again, this is simply because it is not possible to know what is running through the other person’s mind, which is only best within the knowledge of that person. Thus, in cases where ‘motive’ has to be established, it must be done through circumstantial evidence, say the conduct of the person. We have, many a time, watched on television or witnessed it in real life, wherein the first question asked before the commencement of an investigation is to see who is that person who would profit most from the commission of the crime. 

Intention and motive

Generally, the terms “motive” and “intention” are oftentimes used interchangeably as if they connote the same meaning. However, these two terms have a distinct understanding. The term “motive” denotes the driving or compelling force behind our actions. As opposed to this, intention simply implies what it is that one must do in order to achieve the motive. Let’s understand this with the help of an illustration. 

For example, Y is a beggar and during the normal course of his day, Y comes across a starving child D. Now since Y himself has nothing to offer to the child yet because he wants to feed the starving child, Y runs to the supermarket and steals bread. Here, while Y’s motive behind stealing the bread is to feed the starving child, however, Y’s intention here is simply to steal. Put another way, how or what a person does in order to achieve his motive, is his intention. Thus, it can be said that a person’s motive is his “why”, and his intention may be “to do” or “by doing what”. Therefore, while motive is the cause behind an action, what the person does in order to achieve his  motive, in fact, the very choice whether to carry out the action or not in itself constitutes one’s intention. 

Importance of motive

As already discussed above, evidence may only be given of two types of facts, one being “facts in issue”, and the second one being “relevant fact.” Section 8 of the IEA, 1872 widens the scope of what may be construed as relevant by incorporating within its ambit, “motive” of the accused. Now, it is an established principle that the law of crimes is built upon the existence of two elements: 

• Actus reus (a guilty act); and 
• Mens rea (a guilty mind).

Motive is important because it goes on to disclose a person’s guilty mind. However, if the prosecution does not put forth any other strong or reliable evidence in addition to showing motive, merely presenting the motive would not assist the prosecution’s case. More than motive, the prosecution has to show the intention of the accused to commit the crime. For example, Y may have a strong animosity towards a person thereby possessing a strong motive to commit murder in order to exact revenge, but Y may not necessarily possess the intention to carry out the act. Meaning thereby, Y may have many reasons (or motive) to kill someone, yet he may not intend to commit murder. 

Sampath Kumar v. Inspector of Police, Krishnagiri (2012)

In the case of Sampath Kumar v. Inspector of Police, Krishnagiri (2012), an important observation regarding the scope of motive was made by the Supreme Court. In this case, the appellants were convicted of murder and sentenced to imprisonment for life by the trial Court, which was subsequently upheld by the Madras High Court on appeal. In this case, there were three appellants, Velu, Shanmugam and Sampath Kumar. Velu’s sister Usha was in love with the deceased Senthil Kumar. Previously, Velu had asked Senthil (the deceased) to stay away from his sister and had threatened Senthil (the deceased) that he would hurt the deceased if the deceased failed to stay away from Usha. However, later, Velu himself had agreed to marry off his sister to the deceased. Further, it was not known, but the other appellant, Shanmugam, was in a one sided love affair with Usha, and he had once seen the deceased and Usha in a romantic embrace. The trial Court convicted the appellants on the basis of the presence of strong motive on the part of both Velu and Shanmugam to murder the deceased. 

The Supreme Court, herein, observed that the fact that the appellants possessed a strong motive to kill the deceased may be an important factor, however, even such strong motive to commit the crime cannot substitute the need for the presence of a conclusive proof. Thus, in the absence of a “conclusive proof” that is “beyond reasonable doubt”, the existence of a strong motive, no matter how strong, would not sustain. The Apex Court thereby acquitted the appellants for want of “proof beyond reasonable doubt.”

Existence of motive is not an absolute requirement

While motive is important in as much as it evidences a person’s guilty mind thereby making it ‘relevant’ yet “motive” alone is not an absolute requirement. This is because while it may always be desired, however, it is not always the case that the prosecution is successful in establishing the motive of the accused. Why? Simply because the prosecution cannot enter the mind of the accused. Thus, motive is always an ‘important’ or a ‘relevant’ factor, yet it should not be understood to be the ‘only’ factor. If the prosecution is able to suggest and establish motive, it may only serve the limited purpose of strengthening the prosecution’s case when the courts analyse the prosecution’s evidence to determine if the accused is guilty or not. Thus, an establishment of “motive” merely acts as an assurance to the other evidence presented by the prosecution to establish guilt of the accused. It is for this reason only that if the prosecution is not able to establish motive, that does not mean that the accused is without guilt and should thus be acquitted. 

Hence, it can be said that motive by itself is not sufficient to lead to conviction of the accused. Nor, does the absence of motive discredit the available evidence. If there is absence of motive but enough evidence to prove the guilt of the accused, he shall be convicted.  In fact, the Supreme Court in the case of Ranganayaki v. State by Inspector of Police (2005) elaboratively examined the question of motive and how difficult an area it is to be established. This is because motive, as the Supreme Court opined, is a psychological phenomenon. It is not possible for the prosecution to enter into the mind of the accused. Consequently, it was noted that merely for the sole reason that the prosecution was unsuccessful in ascertaining and establishing the motive of the accused does not imply that there was no such mental condition. Further, even if there is an absence of motive, that also does not help the accused. In this case, while no substantive motive to commit murder was established, there was also no other practical evidence to support abetment to murder. Hence, the appellant was acquitted of the offence.

Proof of motive  

As has already been discussed in the previous heading, a proof of motive is only an assisting factor to the prosecution’s case and not the determining factor. Many a time, we come across situations, wherein the most heinous crimes are committed with the most insubstantial motive. In the case of Ravi v. the State of Maharashtra (2019) the Apex Court observed that an absence of motive would not mean death to the prosecution’s case. This is because human beings at times act without much thought and in the spur of the moment. Thus, if there is strong evidence against the accused like the presence of a reliable eye-witness, then it is not necessary that the motive be definitely determined.

So, in cases where the prosecution is able to show “motive”, then, considering the other evidence on record pointing towards the guilt of the accused, a corroboration of ‘motive’ may be a strong case against the accused. Yet, merely because the prosecution finds itself in a position where it is not able to ascertain and establish motive does not necessarily mean that a contrary inference can be drawn. Thus, in cases where there is clear evidence that points towards the guilt of the accused, let’s say the presence of an eye witness, then the question of presence or absence of motive becomes irrelevant. 

In the case of Balram Singh v. State of Punjab (2003), wherein the question of relevance of motive arose, the Apex Court noted that in an altercation between 2 families, if there were three persons, where one of them lost his life and the other two were severely injured, then the evidence of the injured witnesses if admitted and taken into consideration, would render the question of presence of motive irrelevant.

Adequacy of motive

Adequacy of motive, even if extremely strong, is not enough to sustain a criminal charge if there is no other clear evidence that points towards the guilt of the accused. This is chiefly because there are many instances where heinous crimes are committed yet the motive behind the commission of the crime is too slight. This is because a person’s motive to commit a criminal act need not necessarily be proportionate to the crime committed. Crimes are oftentimes committed in the heat of the moment or momentary outrage. In fact, they may even be committed in need. For example, a poor person, in extreme poverty and starvation may be led to commit an offence for gaining some monetary advantage. Thus, whether the motive behind the commission of crime is adequate or not is hardly of any importance or relevance.

Nathuni Yadav v. State of Bihar (1996)

The case titled Nathuni Yadav and Ors v. State of Bihar and Anr (1996) is relevant for answering whether the prosecution has to ascertain an adequate motive for them to infer guilt on the part of the accused. The Apex Court answered this question in negative. In this case, appellants were convicted for the murder of Mrs. Sona Devi, the wife of Mr. Bhagelu Singh. In this case, the appellant had attempted to kill both Mr. Bhagelu and his wife. However, Mr. Bhagelu, since he had not sustained injury in any vital organ, was able to survive the injury.  

In this case, the prosecution suggested that the motive behind murdering Mrs. Sona Devi was because Mr. Bhagelu gifted away his landed property to his wife. Thus, according to the prosecution’s case, the murder of Mrs. Sona Devi was out of spite since the appellant was the cousin of Mr. Bhagelu. To this suggestion of motive, the appellant’s counsel argued that the motive suggested by the prosecution was too weak a motive for the appellant to commit such a brutal crime. 

In this light, the Apex Court observed that it is not possible to ascertain what runs through the mind of the accused when he thinks of committing a crime. Only for the reason that the prosecution finds itself in a position where it cannot establish a motive or the motive proposed is weak, does not signify that there was no motive at all. In the opinion of the Apex Court, thus, it is not necessary that the cause behind the commission of an offence be proportionate to the offence itself. Citing the case of R v. Palmer (1856), the Hon’ble Court, thus, noted that adequacy of motive is not a criteria and is hardly important.

Importance or significance of motive in circumstantial evidence

In instances where the case of the prosecution relies heavily on circumstantial evidence, then the presence of motive gains an increased significance. This is because unlike in cases where there is strong ocular evidence like the presence of a reliable eye-witness, in cases of circumstantial evidence, “motive” in itself is a link in the chain of events upon which the prosecution may argue and rest his case. Thus, in situations where the prosecution seeks to base its entire or major part of the case on circumstantial evidence, motive assumes an even greater significance. This is because in instances where reliance is placed on an eye witness (the one who has actually seen the commission of the crime), the only question that the court majorly has to decide is whether that evidence of the eye witness is to be believed or not. However, in situations where the court has to make a decision only on the basis of circumstantial evidence, absence of motive actually works in favour of the accused. Again, this is primarily because in such situations, the central or pivotal part of the prosecution’s argument is the accused’s “why” (or motive) behind the commission of the crime.

Munish Mubar v. State of Haryana (2012)

This case of Munish Mubar v. State of Haryana (2012) is relevant in as much as it highlights the Apex Court’s interpretation of the importance and sufficiency of motive in a case based on circumstantial evidence. In this case, the appellant, one Munish Mubar was convicted for the murder of the deceased. Here, the appellant was in an intimate relationship with the co-accused, one Shivani, who allegedly was also in an intimate relationship with the deceased, her boss. The appellants argued that Munish was falsely incriminated, and that in a case based on circumstantial evidence, the motive of the accused is of great importance which in this case could not be established by the prosecution. 

The Apex Court opined that even though motive is extremely important when the prosecution rests its entire or major part of the case on circumstantial evidence, yet, motive being an internal act can only originate, exist and be known to the accused. In fact, the Hon’ble Court further observed that even the victim may be unaware as to why the accused is committing that offence against the victim. Therefore, if the evidence placed is able to only “suggest sufficient motive”, that suggestion based on the evidence on record would be sufficient to construe that the accused was the one who committed the crime. 

Preparation under Section 8 of Indian Evidence Act, 1872

Section 8 of the IEA, 1872 also makes “preparation” a relevant fact. As was observed by the Supreme Court in Malkiat Singh & Anr v. State of Punjab (1968) preparation implies the measures or actions that are taken for the commission of any offence. 

Stages of a crime

There are generally 3 stages which occur before the commission of any crime. These are:

• First, a person’s ‘intention’ to commit a crime;
• Second, that person’s ‘preparation’ to commit that crime;
• Third, that person’s ‘attempt’ to commit the crime; and
• Finally, the actual ‘commission’ of crime.

What is preparation

When a person commits a crime after premeditation or a calculated and well crafted plan, it is safe to say that there must have been some level of preparation that must have been done by the person before the actual commission of the crime. For example, if Y intends to kill D by poisoning, Y necessarily has to procure poison before carrying out his plan. Section 8, thus, makes any type of preparation on the part of the accused, whether to commit the crime, hide any discovery, prevent any suspicion and so on a ‘relevant’ fact in inferring guilt.

However, again, while preparation has been made a relevant fact, still, preparation alone does not infer guilt in situations where such preparations may have been innocently done or such culpable actions for which preparations were made, were not carried out. Let’s consider the previous example again. Assuming that, D dies of poisoning and Y is charged with poisoning D. Upon investigation, it is found that Y had purchased some quantity of rat poison. Then, there may be an inference that Y poisoned D. However, it is later found that Y was troubled with too many rats at his residence and had actually purchased rat poison to get rid of those rats. In such a scenario, the previous inference against Y would have to be done away with. Alternatively, suppose Y actually procures rat poison to kill D, however, after self reflection, Y is filled with regret and decides to do away with the thought of poisoning D altogether and gets rid of the poison that he had procured. Here again, the inference drawn from the procurement of poison would have to be discarded.  

Is mere preparation punishable

Is merely preparing for the commission of a crime, a crime? No, while preparation may be a ‘relevant’ fact as per Section 8 IEA, 1872, preparation alone is not punishable under the Indian Penal Code (hereinafter “IPC, 1860”). However, there are certain special cases, where mere preparation to commit the crime is per se an offence and is thus punishable. These special circumstances include:

• Section 399 IPC, 1860- Under this Section, mere preparation to commit dacoity is punishable with rigorous imprisonment up to 10 years and fine.
• Section 122 IPC, 1860- Under this Section preparation for waging war against the Government of India is punishable with either life imprisonment or imprisonment up to 10 years and fine.

Otherwise, even if a person prepares to commit a crime, which generally is not moral, mere preparation is not legally punishable unless the person’s preparation subsequently reaches the stage of ‘attempt’ to commit the crime. 

Conduct of a party under Section 8 of Indian Evidence Act, 1872

The scope of relevancy of facts also includes the conduct of a person. Now, it is important to understand when, what and whose conduct is made relevant by Section 8.

Whose conduct is relevant

The conduct of the following persons are made relevant by virtue of Section 8:

• Any party;
• If there is any agent of any party; or
• The victim of the crime.

What conduct is relevant

The conduct of these persons is relevant if:

• First, such conduct is in connection with such suit or proceeding
• Second, it is in connection with any “fact in issue” 
• Third, it relates to a relevant fact
• Fourth, that conduct is in itself influenced, or it influences either any ‘fact in issue’ or any ‘relevant fact’

When should that conduct take place

Section 8 specifies two timelines regarding the relevancy of conduct. ‘Whose’ conduct and ‘what’ conduct, as discussed above, is relevant when it takes place either: 

• Previously; or
• Subsequently 

While the bare text of Section 8 only specifies these two timelines, yet those conduct which take place “at the same time” as the “facts in issue” or “relevant fact” are also relevant under this Section. This interpretation may be drawn from Illustration (e) to Section 8 IEA, 1872. Let’s consider a similar illustration. If a person Y is accused of a crime, and if Y provides any evidence either favourable or unfavourable by destroying or concealing evidence, then any of the facts that take place before, at the time or after the commission of the crime would be relevant. 

It is only logical to also make such conduct relevant that takes place at the same time as the commission of the crime because there has to be a proximity in the time frame. This is because according to Section 8, it is not any conduct of a person that is relevant. Any such conduct must have the capacity to either “influence” or “be influenced” by either a “fact in issue” or a “relevant fact”. If there is a close connection between the conduct of those persons with any “fact in issue” or a “relevant fact”, only then it would be relevant. It must be borne in mind that the purpose of a relevant fact is that it must aid in either proving or disproving, or at least have the probability to prove or disprove the existence of any “fact in issue”. A conduct that is too remote or has no bearing on the “fact in issue” or a “relevant fact” would be of no relevance to the prosecution’s case or the court itself in coming to a decision. 

Who is a “party” for the purpose of conduct

In terms of Section 8, the conduct of “any party” is made relevant. The term “any party” here denotes the plaintiff/defendant in the case of a civil suit, and the accused in any criminal case. 

Explanation 1 to Section 8 IEA, 1872

The first explanation to Section 8 clarifies what the term “conduct” does not incorporate. According to this clarification, mere “statements” would not be relevant facts to show conduct of a person. In order for such statements to be construed as conduct, it is pertinent that those statements either, one, accompany certain acts, or, two, they act as an explanation or justification of certain acts. This is simply because mere statements need not be reflective of any conduct of a person, unless that statement actually leads to something or explains some actions of the same person. 

Statements can be made just for the sake of making it. It may not necessarily mean that the person making that statement is actually intending to follow that statement with some subsequent conduct, or has made that statement after some action. It is for this reason that mere statements would not be construed as conduct for the purpose of this Section.  

Relevance of statement under other provisions of IEA, 1872

Now, since mere statements have no role to play under Section 8 of IEA, 1872, does that mean it is completely irrelevant? The answer is no. While mere statements without an impact on conduct would not be relevant for the purpose of Section 8 that does not mean that the statement itself may not be relevant at all under any of the Sections of the IEA, 1872.  If such statements are otherwise admissible, then for the mere fact that it is not relevant under Section 8 does not mean that such statements would lose relevance under the other provisions of the evidence law. Like, if admissible, a statement could be useful under:

• Section 6 IEA, 1872 – If spontaneous, unfabricated statements are made during the transaction, they may be admissible under Section 6 of the IEA, 1872. Thus, when a statement made by a witness is such that it is closely linked to other facts in issue, such statements may be used under Section 6 to show that a fact “forms part of the same transaction.”
• Section 155 IEA, 1872 – To contradict a former statement. As per Section 155 of the IEA, 1872, the credit of a witness may be impeached by showing some previous statements that were inconsistent with his evidence. 
• Section 32(1) IEA, 1872 – When such statement amounts to a dying declaration. Illustrations (j) and (k) to Section 8 also provide the same. Thus, either oral or documentary, a statement by a person regarding the cause of his death would be admissible under Section 32 of the IEA, 1872.
• Section 157 IEA, 1872 – For the purpose of corroboration of a previous statement, if the person who has made the statement appears in the capacity of a witness. Illustrations (j) and (k) to Section 8 also provide the same. Accordingly, when the witness makes a statement to either any person regarding “the time when a fact” occurred or to a competent authority with the power to investigate, such statement may be used for the purpose of corroboration. 

However, it is pertinent to note that the use of these statements under the aforementioned Sections would only be useful if they are not excluded as per:

• Section 162 of the Code of Criminal Procedure, 1973 – which provides for the ‘use of statement’ as evidence. This section provides that statements made in the presence of a police officer during any investigation need not be signed by the maker if those statements are reduced to a written format.  
• Section 25 IEA, 1872 – where statements made to a police officer should not be proved against the accused. This section provides that any confession made by the accused to a police officer would not be proved against him.
• Section 26 IEA, 1872 – where an accused’s confession made in police custody would not be proved against the accused except if such confession is made in the “immediate presence” of the Magistrate.

Explanation 2 to Section 8 IEA, 1872

Explanation 2 further goes on to make certain “statements” relevant when considered in the light of the “conduct” of a person. Accordingly, if there is a person whose conduct is already considered relevant for the purpose of Section 8, then certain “statements”  made to him would also be relevant. Explanation 2 offers two types of “statement” that would be relevant:

• First, statements that are made “to” the person whose conduct is of relevance, and 
• Second, statements that are made in the “presence and hearing” of the person whose conduct is of relevance. 

It is important to note, however, that these statements would only be considered relevant if it has an impact on the party whose conduct is relevant under Section 8 of the IEA, 1872. This would be better understood with the help of an illustration.

For example, Y is charged with murder and some conduct of Y is also relevant under Section 8 of the IEA, 1872. According to Explanation 2, the following “statements” which are made “to Y” and “in Y’s presence and hearing” would also be relevant. 

• Y shot D. During the commission of this act, a bystander S, witnessed Y while he was shooting D. In this scenario, if S starts shouting something like, “Someone call the police, Y shot D dead.” If upon hearing this, Y runs away, then this statement would be relevant, since this statement was made “in Y’s presence (whose conduct is relevant) and hearing”. Furthermore, S’s statement affected Y’s conduct. 
• Now, in this same scenario, Y shot D. Y’s neighbour, one S, made a phone call to Y stating that upon hearing a gunshot coming from Y’s house, S called the police to check up on Y’s house. Upon learning this, Y runs away. Here, S made a statement ‘to’ Y which affected Y’s conduct. This statement of S too would be relevant since it affected the conduct of Y (whose conduct is already relevant).

Y’s conduct was already relevant under Section 8 of the IEA, 1872. In both the above mentioned situations, the statements made “to Y” and “in Y’s presence and hearing” would also be relevant because these statements had an impact on Y’s conduct. 

When is a statement relevant in determining conduct

Thus, according to Explanation 1 and 2, the following is clear

• Only statement = Not relevant
• Statement + some influence on conduct or relevant person = relevant

Against whom is the conduct admissible

Under this Section, the “conduct” as a relevant fact is only admissible against the accused himself. The conduct of an accused would not be used to admit the conduct of any co accused. 

Conduct of accused

The conduct of the accused is extremely determinative in a criminal proceeding. If the accused actually committed the crime of which he has been charged, then how he committed the crime, why he did it, what he did before and after the commission of crime, did he destroy evidence or fled from the scene after the commission of the crime, assumes great importance. This is because based on these factors only, the court has to determine the both, first, the guilt of the accused, and second, the extent of punishment to be awarded to the accused person. 

Totality principle in awarding sentence 

The conduct of the accused is important not just in inferring and finding his guilt, but also in determining the appropriate punishment and sentence. The “totality principle” is considered by the courts in determining the punishment of the accused, that is, the sentence of the accused. Totality principle implies that while passing an order regarding the sentence, the court would consider all the facts in totality, like the nature and gravity of the offence, conduct and all the circumstances surrounding the commission of the offence. 

In the case of Nathu Ram Bansal v. State of Haryana (1996), it was observed by the Punjab and Haryana High Court that in determining what sentence should be awarded to the accused and whether the sentences should run concurrently or consecutively, the court would have to consider the “totality of” circumstances. It is only after the court considers the facts and circumstances in toto that it would come to a conclusion as to whether the accused’s sentence would run concurrently or consecutively in instances where the accused has committed and is convicted of multiple offences. 

The De Simoni principle 

The De Simoni principle, propounded in the Australian case of R v. De Simoni (1981), made an important observation regarding conviction and punishment based on the conduct of the accused. The Australian High Court, in appeal, noted that while convicting the accused, the accused should not be convicted for a crime or a conduct that he has not been charged with. Consequently, his punishment should also not be for something for which the accused was not convicted. 

In this case, one Mr. Simoni was charged with robbery. It was undisputed that during the course of the robbery, Mr. Simoni had inflicted a blow on the back of the head of an aged woman. A pertinent fact to be noted here is that he was charged with robbery only. However, at the time of awarding the sentence, the trial judge took the blow on the aged woman into consideration and stated that a substantial punishment should be awarded. The trial Court, thus, taking this “wounding” into consideration, sentenced Mr. Simoni for an offence more serious than the one Mr. Simoni had been charged with, which in this case was only robbery. The High Court, while overturning the sentencing on appeal, observed that the accused cannot be convicted for something that he had not been charged with.

What amounts to conduct under Section 8 of Indian Evidence Act, 1872

Complaint as conduct

Now, as we have seen under Explanations 1 and 2 to Section 8 IEA, 1872, mere “statement” is not conduct. However, what about a complaint made by the victim? Would that be considered as a mere statement, irrelevant to determine the complainant’s conduct under Section 8? The answer is “no”. This Section further increases the scope of what may be considered as conduct by including within its ambit ‘complaint’ as conduct. This can be deduced from a perusal of Illustration (j) to Section 8, IEA, 1872. In this illustration, the moot point was whether A was ravished. From an understanding of the illustration, it can be interpreted that soon after the alleged rape, the fact that the woman makes a complaint then the circumstances and the terms of the complaint are relevant. Further, if the woman, without a formal complaint, states that she had been ravished, such a fact would not be relevant for the purpose of Section 8 of the IEA, 1872. 

This illustration essentially makes a distinction between ‘statement’ and ‘complaint’. Accordingly, a statement merely being a sort of verbal communication expressing only knowledge cannot be construed as “conduct.” A “complaint”, on the other hand, expressing emotion and seeking redressal signifies “conduct” and is, thus, relevant under Section 8.

Does silence amount to conduct

In the case of Hadu v. State (1950), it was observed by the Orissa High Court that ‘silence’ may also be construed as ‘conduct’ under Section 8 of the IEA, 1872. However, even in the light of such an observation, a guilt cannot necessarily be presumed just because the accused is silent. It is well established that an accused has the right to remain silent. Thus, if conduct has to be construed just from the accused’s silence, the approach of the courts must be very careful and vigilant, and an adverse inference must not be drawn unless circumstances are such wherein the accused’s silence itself would be incriminating.

Whether “signs” amount to conduct

Yes, even signs and gestures may also amount to conduct for the purpose of Section 8 of the IEA, 1872. The only condition is that those signs or gestures must either have an “influence” or they themselves should “be influenced” by a “fact in issue” or “relevant fact”.  In the case of Bhagwat Putalya Pawar v. The State of Maharashtra (2020), the Bombay High Court observed that the accused’s gesture to show where the deceased’s dead body was buried amounted to “conduct” for the purpose of Section 8 of the IEA, 1872

Previous conduct

As already discussed, previous conduct is considered to be a relevant fact as per Section 8. Before the actual commission of the crime, the accused’s behaviour, be it his preparation to commit the crime, falls within the purview of this Section and has been understood to be a relevant fact.

The doctrine of “last seen together”

According to this doctrine, if the accused is in the “company of the deceased”, and is the “last” one to be seen in the “company of the deceased”, such conduct too assumes relevance under Section 8. However, for this doctrine to be operative, ‘time’ is of great essence. This is because if there is too big a time gap between the time when the accused was “last seen” in the company of the deceased prior to his death, and when the deceased was actually found dead, it may be possible that some other person met the deceased in between and committed the offence. This observation was also made by the Apex Court in S K Yusuf v. State of West Bengal (2011). Here, the Hon’ble Court observed that for the “last seen together” doctrine to have any relevance, essentially, the time gap between the time when the accused was “last seen” in the company of the deceased and the time when the deceased’s dead body is found must be so little that there is no chance or possibility of a third person to have stepped in and committed the crime except the accused. 

Generally, the burden of proof is on the prosecution to make a case against the accused. However, in cases where the evidence in support of the “last seen” doctrine is strong and reliable, Section 106 of the IEA, 1872 casts a burden on the accused, that is, to show to the satisfaction of the court how and when he left the company of the deceased. As was observed by the Supreme Court in the case of State of Rajasthan v. Kashi Ram (2006), if the accused is able to satisfactorily offer an explanation to the court, the accused would be relieved of the burden cast upon him by the mandate of Section 106 of IEA, 1872. However, if the accused fails to discharge this burden, then it would weigh against the accused. Since these cases are essentially established by means of circumstantial evidence, a failure on the part of the accused to discharge the Section 106 of IEA, 1872 burden, would be a strong link in the chain of events. 

Thus, in the recent case of Pappu v. State of Uttar Pradesh (2022), where a seven year old girl child was sexually assaulted, and she subsequently met her death, the accused’s failure to offer satisfactory explanation, coupled with other evidences on record like medical evidence and accused’s knowledge of the location of the dead body of the child, the Supreme Court came to the conclusion that the accused was the last person to be seen when the deceased was still alive. Therefore, the Supreme Court observed that the Trial Court and the Allahabad High Court had rightly convicted the appellant for the offence.

Subsequent conduct

Not just the previous conduct, but what the parties do subsequent to the commission of the crime, is also relevant for the purpose of Section 8. Here, the accused may, subsequent to the commission of the crime, try to destroy evidence, mislead the police, shield himself, abscond or disappear. All of these conduct, subsequent to the commission of the crime, is made relevant.

Abscondence by the accused 

After the commission of the crime, a natural response of the accused may be to flee away or abscond. In the case of Durga Burman Roy v. State of Sikkim (2014), the act of absconding was defined by the Apex Court as the “secret, illegal and hurried escape” to avoid either “custody or arrest”. However, a pertinent question would be whether a mere abscondence or fleeing away on the part of a person would weigh negatively on the person’s case and infer guilt? The answer to this is negative. This is because a person may also hurriedly flee owing to fear that he may falsely be apprehended. It is not necessary that just because a person is absconding, his act speaks for itself and that the person is guilty and also that the absconding person was the one who committed the crime. Fleeing could also be for self-preservation. Thus, in the case of Sunil Kundu v. State of Jharkhand (2013), the Supreme Court stated that only because a person absconded does not mean that any negative inference be drawn. 

For this reason, the Apex Court in Durga Burman Roy v. State of Sikkim (2014), where the accused after informing others that they were going home from their place of work, went to their respective homes from where they were subsequently taken into custody in a murder trial, observed that such actions does not necessarily mean that the accused persons were absconding. 

Sekaran v. State of Tamil Nadu (2023)

In a very recent case of Sekaran v. State of Tamil Nadu (2023), on the question of whether abscondence amounts to guilt, the Supreme Court made a very important observation. In this case the appellant was convicted of culpable homicide not amounting to murder under Section 304 of the IPC, 1860 by the Madras High Court and the appellant was awarded with a 5 year sentence. On an appeal to the Supreme Court, the Apex Court did not find the appellant guilty. For this reason, he was acquitted. Though it was not argued, the Apex Court noted that in this case, despite there being an FIR which was lodged way prior to the accused’s apprehension, the appellant could only be apprehended three years after the alleged incident took place. In this regard, the Apex Court observed that merely because it took a good amount of time in apprehending the appellant owing to the fact that the appellant had absconded does not point to a guilty conduct. In fact, the court noted that in instances where an FIR has already been lodged, it is all the more logical for the appellant to have absconded for the ‘fear’ of being apprehended. Therefore, such abscondence does not merit a negative inference. 

Case laws on Section 8 of Indian Evidence Act, 1872

Yunis Alias Karia v. State of Madhya Pradesh (2002)

Facts

In this case, there were eight accused who had attacked a boy named Zuber in broad daylight, leading to his death. In these eight accused, only six could be arrested. The six accused were convicted under Section 302 read with Section 149 of the IPC, 1860. Their conviction and sentence pronounced by the Trial Court were subsequently upheld by the Madhya Pradesh High Court. Four convicts challenged their conviction before the Supreme Court. The main argument of the appellants was that the evidence of the eye witnesses was not to be relied upon since the entire incident took place hardly under a minute and the witnesses could not possibly have observed what transpired in such a short time. Further, the appellants argued that there was a discrepancy in the testimony of the eyewitness and the medical evidence of the Autopsy Surgeon. It was also observed that the prosecution had failed to establish motive in the instant case. 

Held

It was firstly observed by the Supreme Court that since the evidence of the eye witnesses were consistent with each other, there was no reason to doubt it. Further, regarding the discrepancy in the medical evidence and the testimony of the eye witnesses, the Supreme Court observed that since at least three of the injuries supported by the medical evidence was common to that of the testimony of the eye witnesses. Since these three injuries in themselves were sufficient to cause death, the discrepancy, if any, would not defeat the prosecution’s case. On the question of motive, the Supreme Court opined that in cases where there is a presence of reliable eyewitnesses, the presence or absence of motive is of no relevance. Motive is not an indispensable requirement. Since the guilt of the accused can be determined on the basis of reliable ocular evidence, it is irrelevant that the motive of the appellants could not be established. 

Ranganayaki v. State by Inspector of Police (2005)

Facts

In this case, the appellant faced trial alongside a man named Selvam. The appellant was convicted under Section 302 read with Section 109 of the IPC, 1860. She was convicted on the ground of instigating Selvam to commit the murder of the deceased. It was the prosecution’s story that Selvam had invited the deceased to have some brandy. Further, the prosecution alleged that Selvam had mixed some white material which appeared to be camphor in the brandy. Selvam also offered the deceased some plantain. Upon the consumption, the deceased immediately felt giddy, fainted and subsequently found to be dead when taken to the hospital. The appellant herein was the first wife of the deceased and had left the deceased after some time. According to the prosecution story, the deceased had subsequently entered into another marriage, but the appellant came back and again stayed with the deceased and their child for some time. The evidence against the appellant was her motive to commit the crime and some recovery material based on her confessional statement. Further, the deceased and the appellant’s child, Gopi, alleged that the appellant had instigated Selvam to beat the deceased. It was also submitted that the appellant had motive to kill the deceased, since in the past also there were various incidents where the deceased was assaulted by various persons engaged by the appellant. 

Held

The Supreme Court made an important observation on the question of motive. It was observed that since one cannot actually enter the mind of another person, it is generally difficult for the prosecution to establish motive in such cases. Thus, even if the prosecution is unable to ascertain and establish motive, it does not necessarily mean that there was no motive at all. Further, even if a motive suggested by the prosecution is construed as a “weak motive”, that also does not defeat the prosecution’s case. Alternatively, just because no motive can be found, that too does not help the accused. It has to be independently determined in accordance with the facts of the case. In this case, the court found that not only was there no substantive motive, there was also no evidence to show abetment to murder. For this reason, the appellant was acquitted and her conviction and sentence were set aside. 

Conclusion

This Section, thus, essentially widens the scope of what may be construed as relevant fact by bringing acts such as motive, preparation, and conduct of the parties within the scope of this relevancy. It must be borne in mind however that such acts only assume increased relevance wherein the prosecution intends to establish a case against the accused based on circumstantial evidence. While these acts may also be relevant where there is an availability of direct evidence. However, its relevance in cases where there is an availability of direct evidence is for the limited purpose of providing strength to the prosecution’s case. 

In cases of circumstantial evidence, it is an “important” factor because it forms a link in the chain of events, yet, it is not the “only” determinative factor. In the absence of other clear, and reliable circumstantial evidence, pointing towards the guilt of the accused, the mere factor that there is a “strong motive” would imply the accused’s conviction. 

Frequently Asked Questions (FAQs)

What is meant by circumstantial evidence?

Circumstantial evidence means a proof of circumstance. An evidence of a fact or set of facts through which the existence or non-existence of the facts in issue may be inferred can be termed as circumstantial evidence. For example, if a person R is brutally murdered with a knife and a person S is charged with murdering R. If during his trial a witness F, states that he saw S running away from the scene of the crime with a knife covered in blood, this evidence by F would classify as circumstantial evidence. 

What is conclusive proof where motive is of relevance?

While motive is an important link in the prosecution’s case, the Supreme Court in Sampath Kumar v. Inspector of Police, Krishnagiri (2012) has opined that motive alone, no matter how strong, cannot replace the need for “conclusive proof.” Conclusive proof, here, implies proof of guilt beyond reasonable doubt. Meaning thus, if apart from motive, there is not enough evidence to conclusively prove beyond reasonable doubt that the accused concerned was actually the one who committed the crime, the accused would not be convicted on the basis of a strong motive alone. There has to be a “conclusive proof” that points towards the guilt of the accused.

Is the conduct of the party of any relevance when the court is interpreting a document?

No, a five judge bench of the Supreme Court in the case of Ramkishore Lal v. Kamal Narayan (1962) , observed that in cases where the court is interpreting a document, and that document itself is clear and unequivocal, the conduct of the party is irrelevant.

When is the presence or absence of “motive” not indispensable?

The Supreme Court, in numerous judgments like Yunis alias Karia v. State of Madhya Pradesh (2002), has observed that “motive” though important, is not indispensable when there is a presence of a reliable eye-witness. In cases where the eye-witnesses’ account of the commission of the offence is credible, the mere fact that the prosecution was not able to establish the presence or absence of “motive” would not dilute the prosecution’s case. 

In what instances can the testimony of the eye-witness be discarded?

Even the testimony of an eye witness is liable to be discarded by the court on the ground that the “conduct” of such a witness is “unnatural”. Such a view was expressed by the three judge bench of the Supreme Court in the case of Bhagchandra v. State of Madhya Pradesh (2021). 

What is the weight of hearsay evidence in determining the conduct of a witness?

If any aspect or conduct of the witness could be explained by that hearsay evidence, then that too would be admissible under Section 8 of the IEA, 1872. The Supreme Court in Balram Prasad Agrawal v. State of Bihar (1996) affirmed this view. 

Is absconding for a long time a determinant to infer guilt?

No, abscondence, no matter for how long, cannot be a ground to infer guilt on the part of the accused as was observed by the three judge bench of the Supreme Court in the case of Sekaran v. State of Tamil Nadu (2023).

What is the status of admissibility and relevance for the purpose of finding the accused’s guilt, when recovery of the weapon used for the commission of the offence is made on the basis of the accused’s evidence?

If any weapon used for the commission of the crime is recovered on the basis of the evidence that has been provided by the accused, such recovery would be admissible under Section 8 of the IEA, 1872. However, just because such a weapon has been recovered because of the accused’s evidence, would not mean that such a fact alone would be sufficient to find guilt. An inference and finding of guilt would depend upon other evidence on record. Yet, such a fact would be taken into account by the court when it is making a final analysis. The same view was held by the Supreme Court in the case of Hari Om v. State of Uttar Pradesh (2021). 

What “conduct” is admissible under Section 8?

Only those “conduct” which portray a close connection or link with either any “fact in issue” or a “relevant fact” would be admissible in accordance with Section 8 of IEA, 1872, as observed by the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu (2005).

Is spreading false accusations regarding who committed the crime, a factor to infer the guilt of the accused?

Yes, if the accused goes out of his way to spread false news regarding the fact that it was someone else who carried out the commission of the crime, then, such “conduct” further goes on to point a finger towards the guilty mind of the accused. The Supreme Court in State of Rajasthan v. Kheraj Ram (2003) observed that the accused’s attempt to divert attention from himself is a relevant fact in determining “conduct.”

References

• https://blog.ipleaders.in/basics-of-law-of-evidence/
• https://ijtr.nic.in/Evidence%20Act.pdf
• Textbook on The Law of Evidence by Chief Justice M Monir (12th edition)
• The Indian Evidence Act, Dr. V Nageswara Rao (3rd edition)
• Textbook on the Indian Evidence Act, KD Gaur (2nd edition)