Evidence of good character of accused.
It contains EXPLANATION TO –SECTION 55,
SCOPE AND VALUE OF CHARACTER EVIDENCE IN CIVIL CASE: SECTION-52, SCOPE AND VALUE OF GOOD CHARACTER IN CRIMINAL CASES: SECTION 53 and RELEVANCY AND ADMISSIBILITY OF GOOD CHARACTER EVIDENCE OF ACCUSED.
Evidence of good character of accused.
It contains EXPLANATION TO –SECTION 55,
SCOPE AND VALUE OF CHARACTER EVIDENCE IN CIVIL CASE: SECTION-52, SCOPE AND VALUE OF GOOD CHARACTER IN CRIMINAL CASES: SECTION 53 and RELEVANCY AND ADMISSIBILITY OF GOOD CHARACTER EVIDENCE OF ACCUSED.
Evidence of good character of accused.
It contains EXPLANATION TO –SECTION 55,
SCOPE AND VALUE OF CHARACTER EVIDENCE IN CIVIL CASE: SECTION-52, SCOPE AND VALUE OF GOOD CHARACTER IN CRIMINAL CASES: SECTION 53 and RELEVANCY AND ADMISSIBILITY OF GOOD CHARACTER EVIDENCE OF ACCUSED.
PROJECT TOPIC: EVIDENCE OF GOOD CHARACTER OF ACCUSED
SUBMITTED BY:- ASHISH SHUKLA 2012 / B.A. LLB / 016 1 | P A G E TABLE OF CONTENTS
RESEARCH METHODOLOGY _______________________________________________ 2 INTRODUCTION____________________________________________________________ 3 CHARACTER 1: EXPLANATION SECTION 55 ______________________________________ 4 A. Character. ___________________________________________________________ 4 B. Good And Bad Character ________________________________________________ 5 CHAPTER 2: SCOPE AND VALUE OF CHARACTER EVIDENCE IN CIVIL CASE: SECTION-52___ 5 CHAPTER 3: SCOPE AND VALUE OF GOOD CHARACTER IN CRIMINAL CASES: SECTION 53 __ 8 CHAPTER 4: RELEVANCY AND ADMISSIBILITY OF GOOD CHARACTER EVIDENCE OF ACCUSED __________________________________________________________________ 9 A. Good Character of the Co- accused: ______________________________________ 10 CONCLUSION _____________________________________________________________ 12 BIBLIOGRAPHY ___________________________________________________________ 13
2 | P A G E RESEARCH METHODOLOGY
SCOPE AND OBJECTIVE The study presents the analytical study of the various theories on the scope and value of admissibility and reliability of the Good Character of Evidence and its applicability in different region.
RESEARCH QUESTION 1. Whether Good Character Evidence outweighs the other positive evidence? 2. Whether Good Character Evidence has similar scope in Criminal as well as in Criminal case.
HYPOTHESIS Good character evidence is only come into picture when other affirmative evidences are unable to bring the case at the conclusive end.
SOURCE The author of this project in his analysis has depended upon works, views and theories of various scholars and criminologists. A unique and uniform style of citation is followed.
3 | P A G E INTRODUCTION Evidence of character has long been at core of the law of evidence. The concept of evidence of character was developed at common law and later on deduced into several legislation including Indian Evidence Act, 1872. Character Evidence is produced into the court to describe the testimony or any report with the purpose of proving that the accused or party to the case acted in the particular way or not. Character Evidence is sought when there is a doubt which can't be cleared till the character evidence comes into the picture. In this research paper the main focus will be on the good character of accused. Research paper will also try to focus on the other issue like what is character evidence, its Scope, how far it is considered to be relevant, reliable, as well as admissible. The basic ground or philosophy behind the non-admissibility of the character evidence is that the one's character can't tell the probability or improbability of any conduct imputed on him/her. Character has been categorized into two forms one is "Reputation" and another is "Disposition" which has been discussed in detail further. Unlike in England, both reputation and disposition is admissible in India. Further the Character evidence. Further Character Evidence relevancy was bifurcated into two parts one is its relevancy in civil cases and second is its relevancy in criminal cases. In civil cases the role of character evidence is negligible as it is not admissible until and unless character of party/accused is in issue. But when we come towards the role and admissibility of character evidence in criminal cases the position is totally different. There are two faces of character one is bad and another is good. It is totally depend upon the context under which we are considering it. In one situation something which is good character of evidence may become bad character of evidence in some other situation. General good character evidence is admissible. The condition is not same for the bad character evidence as it can only be admitted if it is in fact in issue or in rebuttal to good character of evidence. Weight of the character evidence is very light as in comparison to other positive evidence. Character Evidence can't outweigh the positive evidence which would lead the judge to come to the conclusion of the case. Further it also discussed the good character evidence of co-accused.
4 | P A G E CHARACTER 1: EXPLANATION SECTION 55 A. CHARACTER. Character is a combination of the peculiar qualities impressed by nature or by habit of the person, which distinguish him from others 1 . The term character as used in section 52-55 which basically talk about character evidence has been defined in the explanation to section 55. Reputation includes both character and disposition, and the disposition is not the less proven because it appears on the face of the facts deposed to by the plaintiff, or is a proper inference from those facts 2 . Except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition was shown. Disposition means inherent qualities of a person while reputation means of general credit of the person among the public 3 . In a very famous case R v. Rowton 4 majority judgment was that the disposition should be excluded but later on, in the case R v. Davidson 5 it was overruled and the reasoning was taken from the dissenting opinion of the former case. Now the current position under the concerned evidence act is that the both reputation and disposition have been included in the definition of the Character 6 . Good character in this section presumably includes good reputation which a man may bear in his own circle as well as his real disposition as distinct from what his friends and neighbours may think of him 7 . A person with a good reputation in a certain public domain may have the bad disposition. Perspicacity alone of a witness cannot determine the disposition of a man. Witness who is adducing the character evidence must have the opportunities to observe the man. Evidence of a witness with regard to a particular trait of a man with which he is familiar may be of use. There are two classes of cases where evidence of character is very much important 1) where the act is equivocal, or criminal, as in these kind of cases character of the accused explains conduct and the rebut the presumption
1 Webster 2 Devbrata Shastry v. Krishna Ballabh, AIR 1954 Pat 84. 3 Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682 4 (1865) 34 L.J.M.C. 57. 5 31 How. St. Tr. 99. 6 Fields Law Of Evidence, 11 th Edn., Page: 2592. 7 Stirland v. Director of Public Prosecutions, 60 TLR 461. 5 | P A G E which may arose in case of absence of any such evidence. 2) When a charge rests on the direct testimony of a single witness and on the bare denial of it by the person charged 8 . B. GOOD AND BAD CHARACTER What is good or bad is to some extent determined by the context in which the issue arises. Thus in R v Bracewell, 9 evidence that the accused was a cool professional burglar was regarded as evidence of good character when the issue was whether he, or an inexperienced accomplice, was more likely to have panicked and killed the victim of the burglary. CHAPTER 2: SCOPE AND VALUE OF CHARACTER EVIDENCE IN CIVIL CASE: SECTION-52 In respect of the character of a party, two distinctions must be drawn, namely, between the cases when the character is in issue or is not in issue, and the cause is civil or criminal. The two exceptions to this rule are, that, in civil proceedings, evidence of character as affecting damages, is admissible (s. 55); and in criminal proceedings, the fact that the person accused is of a good character, is relevant, but the fact that he has a bad character is, except in certain specified cases, irrelevant (ss. 53 and 54) 10 . Though section 52 of IEA said character of any person but its essence is only for the party in the issue. Evidence of character of parties is irrelevant and inadmissible in civil cases as the business of the court is to try the case, and not the man; and a very bad man may have a very righteous cause 11 unless character is in issue 12 . In a suit for damages for defamation the character of the plaintiff will is also relevant for determination of quantum of damages 13 . Evidence of character may be relevant in civil proceedings in a number of different ways. Quite apart from its possible relevance as similar fact evidence, it may itself be in issue, as in defamation cases, or it may be used to impugn the credibility of a party witness. The rule of exclusion of evidence of character does not apply when, according to the rule of substantive law applicable to the case, the character of party is a fact in issue. Under the general law of defamation the truth or otherwise of an imputation of bad character is a fact in issue; and
8 STEPHEN in his introduction (pp.167, 168) (See also commentary to the explanation in section 155) 9 (1978) 68 Cr App Rep 44. 10 Woodroffe And Ameer Alis Evidence, 10 th Edn., Vol. II, P.718. 11 Wigmore,135. 12 Jagannath Prasad v Ram Chandra AIR 1952 All 408: 1952 Cr LJ 786. 13 Devi Dial v The Crown AIR 1923 Lahore 225: 24 Cr LJ 693. 6 | P A G E evidence on this point will therefore be received 14 . Thus, in an action for a libel, where the language, complained of stated that the defendant parted with the plaintiff "on account of her incompetency, and her not being lady like or good tempered; and where, in a similar action, the words charged the plaintiff "on account of her incompetency, and her not being lady like or good tempered," general evidence of her competency, good temper and manners was received: and where, in a similar action, the words charged the plaintiff generally with dishonesty and misconduct while in service, a witness, with whom she had previously lived, was allowed to testify to her antecedent general conduct 15 . Under the Punjab custom, the unchastity of a widow involves a forfeiture of her life interest in her husband's property 16 ; and, under Hindu, law a forfeiture of her right to maintenance 17 . Therefore, where the question is whether a widow governed by the Punjab custom has forfeited her life interest, or a Hindu widow her right to maintenance, by reason of her unchastity, evidence of bad character will be admitted without question. Similarly, a Mohammedan woman, otherwise entitled to the custody of boy or girl, is disqualified by gross and open immorality 18 and where her right to the custody of a minor is attacked on this ground, evidence of her immoral character will be admitted as a matter of course. When the character of a party is not in issue but the evidence of character is tendered for the purpose of rendering probable or improbable any conduct imputed to him, it will be rejected as inadmissible. If A sues B on a promissory note the execution of which is denied by B, evidence of the fact that A is a habitual forgerer of promissory notes will be inadmissible 19 . In a divorce case, the husband cannot, in disproof of a particular act of cruelty, tender evidence of his general character for humanity. As to the meaning of character ", see section 55, Explanation It seems that the general good character of a party may not be adduced, unlike that of the accused in criminal proceedings. This was clearly stated by Eyre CB in A-G v Bowman, 20 a suit for a penalty, and elaborated by Baron Martin in A-G v Radloff 21 . In criminal cases evidence of the good character of the accused is most properly and with good reason admissible in evidence,
14 Cockle's Cases & Statutes, 4th Edn., 111. 15 Taylor 355. 16 Gurdit Singh v. Khewan Singh, 1913 PWR 57: 19 IC 253. 17 Mulla Hindu Law, section 561. 18 Wilson's Anglo-Mohammadan Law, section 108. 19 Section 11 is inapplicable to evidence of this kind 20 1781 2 Bos & P 532n. 21 (1854) 10 Exch 84, 97. 7 | P A G E because there is a fair and just presumption that a person of good character would not commit a crime; but in civil cases such evidence is with equal good reason not admitted, because no presumption would fairly arise, in the very great proportion of cases, from the good character of the defendant, that he did not commit the breach of contract or of civil duty alleged against him. Hence the reason for general exclusion of character evidence is based on grounds of public policy and fairness, since its admission would surprise and prejudice the parties by raking up the whole of their careers, which they could not possibly come into court prepared to defend 22 . When a partys character, which in this context means his reputation, is not directly in issue in the proceedings, but evidence of it is tendered in proof of some other fact, it is generally excluded 23 . The principle of exclusion of evidence character mentioned in this section is based on the principle of law that the evidence adduced should alike, directed and confined to the matters which are in dispute, or which form the subject matter of the investigation 24 . To admit character evidence in every case, or to reject it in every case, would be equally fatal to justice 25 . The general rule is that the evidence as to the character of a person is irrelevant in a civil case 26 . In this section the expression the character of any person concerned is used. Therefore, it may appear to include persons who are called as witnesses, but the content of the section refers only to the parties to the proceedings. It does not appear prima facie that character evidence has any place in a civil action. Whether a party accused is of clean reputation or has a criminal record on first glance have no relevance on any issue which may arise. But there are basically two situation where such issue may emerge in the course of civil proceedings. 1. Character as a fact in issue- one of the most obvious examples regarding this situation is the case of defamation. If the claimant is suing as a result of being accused of being fraud, evidence of convictions for dishonestly would be admissible. 2. Character as relevant to a fact in issue- In normal situations evidence of the character of the parties in civil proceedings is irrelevant. In Attorney General v Bowman 27 the suit was for keeping false weights. Defendant in this case sought to adduce good character
22 Queen v. Rowten ,1865 34 LJ (MC) 57. 23 Naracott v. Narracott and Hesketh, 1864 33 LJPM and A 61 at 62. In general, evidence cannot be led in chief to bolster up the credibility of witnesses; see R V Turner (1975) 1 All ER 70 at 75: (1975) 2 WLR 56, 61, CA, per LAWTON LJ; cf. Lowery V R (1974) AC 85: (1973) 3 AII ER 662, PC. 24 Best Of Evidence, 8 th Edn., Section 251, P.241. 25 Best Of Evidence, 8 th Edn., Section 256, P.245. 26 Jagannath Prasad v. Ram Chandaran, AIR 1952 AII 408. 27 (1791) 2 Bos. &P. 532n. 8 | P A G E evidence which was denied by the court on the basis that it was not in the relevancy of the issue. In another case namely Secretary of State for Trade and Industry v Coulthard 28 , court denied the admissibility of the good character evidence of the accused on the basis that it was not probative of any issue. The key factors in civil cases are again the relevance and probative weight. In Mood Music Publishing v De Wolfe Publishing Ltd 29 , the claimant accused that the defendant has infringed their copyright. For this claimant adduced the evidence that defendant had previously also involved in these kind of activities, to this court of appeal upheld the decision to admit the evidence. CHAPTER 3: SCOPE AND VALUE OF GOOD CHARACTER IN CRIMINAL CASES: SECTION 53 In criminal proceedings a mans character is often a matter of importance in explaining his conduct, improbability and probability of the conduct imputed on him and in judging his innocence or criminality. If vicious intention is an ingredient of the offence charged against the accused, evidence of good character is useful in showing the improbability of the existence of that intention 30 . Many acts of accused person would be suspicious or free from all suspicion when the court comes to know the character of the person by whom they are done 31 . A man's character is often a matter of importance in explaining his conduct and in judging his innocence or criminality 32 . In all cases, when, evidence is admitted touching the general character of the party, it ought manifestly to bear reference to the nature of the charge against him; as for instance if he be accused of theft, that he has been reputed an honest man; if of treason, a man of loyalty. It should also relate to the same period as the supposed offence; for, as Lord Holt once remarked, "a man is not born a knave; there must be time to make him so; nor is he presently discovered after he becomes one 33 Court has to consider whether or not there is reasonable doubt as to the guilt of such accused person 34 . Fact that the accused is of a good character is relevant in
28 (1997)1 B.C.L.C. 329. 29 (1976) 1 AII E.R. 763. 30 A man is found in possession of stolen goods. He says he found them and took charge of them to give them to the owner. If he is a man of very high character, this may be believed 31 Habeeb Mohammad v State of Hyderabad AIR 1954 SC 51, 58: 1954 Cr LJ 338. 32 Habeeb Mohammad v. State of Hyderabad, 1954 SC 51. 33 Taylor 351. 34 Emperor v Khurshid Hussain AIR 1947 Lahore 410: 48 Cr LJ 882. 9 | P A G E weighing probabilities in doubtful case 35 . Presently defendants can adduce the evidence of their own good character either by witnesses or testifying themselves. In the case of Redgrave 36 judge ruled that the evidence will be inadmissible if it referred to any particular facts, particular disposition that made it unlikely that they had committed the offence. And it was also said that the scope of the evidence of character is limited taking public interest in consideration. Character evidence is very weak evidence. It cannot outweigh positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favor of the accused 37 . CHAPTER 4: RELEVANCY AND ADMISSIBILITY OF GOOD CHARACTER EVIDENCE OF ACCUSED The principle on which good character may be proved is that it affords a presumption against the commission of crime. It is logical that the one person who performed his duty honestly throughout his whole life may overcome by temptation, depart from the path he followed and committed a crime in his last days of office and there are several cases present of these kinds but they are considered as exception in our law. The rule is totally otherwise. The influence of this presumption from character will necessarily vary according to the circumstances of different cases 38 . Character evidence is very weak evidence; it cannot outweigh positive evidence in regard to the guilt of a person 39 . The opinion expressed by the witnesses does credit the accused but the face of positive evidence cannot turn the scale in his favor 40 . General evidence of bad character is not admissible against the prisoner but the good character evidence is always admissible 41 . The accused is permitted to adduce or give evidence of his good reputation 42 , and if he thus puts his character in issue, the prosecution may attack it 43 . In all truly criminal trials, however, the defense is entitled to lead evidence of the good character of the defendant, subject
35 Data Xiva v State AIR 1967 Goa 4. 36 (1981) 74 Cr. App. R. 10. 37 Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682: (1965)1 Cr LJ 608: (1964)2 SCR 378. 38 Wigmore 123. Affidavit of a senior lawyer certifying previous good character of accused, an Assistant Public Prosecuter, of no use in circumstances of case, Kasam Abdulla Hafiz v. State of Maharashtra, AIR 1998 SC 1451: 1998CrLJ 1422. 39 Uday Kumar v. State of Karnataka, 1998 CrLJ 4622 (SC). 40 Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682: (1965)1 Cr LJ 608: (1964)2 SCR 378. 41 Fields Law Of Evidence, 11 th Edn., Vol. 3, P. 2570. 42 Criminal Law, Vol. II, para. 368. 43 Criminal Law, Vol. II, (paras 369, 388) 10 | P A G E to the right of the prosecution to call evidence in rebuttal 44 . In the very famous case of English law Rowten, certain principles were laid down regarding the admissibility of the evidence of the good character of accused which have never been expressly doubted and which have, from time to time, been explicitly applied or endorsed 45 . They are summarized below- 1. The character witness called on behalf of the accused can give evidence of the general reputation of the accused for good character, but not of his individual opinion as to the accuseds disposition 46 . 2. The witness may also give negative evidence instead of positive or affirmative i.e. witness can also say that he has never heard anything wrong or bad about the accused, that will be also admissible and will have the same effect as if it was the positive one. 3. Witness who is asked to give testimony cant be examined in chief as to any particular facts. 4. The character proved must be of the specific kind impeached, e.g., honesty where dishonesty is charged, good character in other respects being irrelevant 47 . Good character is not a defense, for no one would then be convicted, as everyone starts with a good character. 48 If there is any kind of room left for the doubt then accused good character may be thrown in his favor. The accused was enabled to give evidence on his own behalf by section 1 of the Criminal Evidence Act, 1897 49 . The fact that the accused is of good character is relevant in weighing the probabilities in a doubtful case, but it can be dispensed with in cases where the prosecution case has not been proved 50 . A. GOOD CHARACTER OF THE CO- ACCUSED: It will be extremely rare for one co-accused to seek to adduce evidence of the wholly good character of his co-accused. It is very much more common for the accused to adduce evidence of his own good character, in particular by comparison with that of his co-accused in a situation in which each is alleging that the crime was committed solely by the other, often described in the
44 Phipson , 13 th Edn., page236, paras 13-07 45 1865 Le and Ca 520: 34 L.J.M.C. 46 R. v. Shrimpton, 1851 3 C.&K. 373, CCR. 47 R. v. Turner, 1817 32 St. Tr. 957, 1007-1008. 48 Phipson On Evidence, 13 th Edn. Page 241, paras:13-12. 49 Phipson On Evidence, 13 th Edn. Page 241, paras: 13-14. 50 Data Xivae Naigue Desai v. State, AIR 1967 Goa 4 (FB). 11 | P A G E vernacular as cut-throat defense. Just occasionally, this may involve stressing some qualification of the bad character of the co-accused 51 .
51 Thus in R v Bracewell (1978) 68 Cr App Rep 44, the accused testified to the inexperience as a burglar of his co- accused so as to show that he was more likely of the two to have panicked. 12 | P A G E CONCLUSION It can be concluded from this paper that Good Character evidence of an accused play vital role in deciding cases. Although it has very limited scope and area of application, it has its own place in evidence law. The value of the character evidence depend upon the availability of positive evidence, if there is no positive evidence which can bring the court to any conclusion in that case the character evidence will come into picture. If there is any doubt regarding the case in absence of affirmative evidence and to tilt the case in the direction of result then reliability and admissibility of the character evidence plays a deciding role. General good character evidence is accepted but general bad character is not accepted, it will only be accepted in rebuttal or if it is in fact in issue. As we know this concept has came from the principle of common law but it has different application in India and in England. Unlike in England, In Indian Evidence Law, disposition and reputation both are considered for the character evidence. Despite this minor variation most of the principles and rules of English Evidence Act and Indian Evidence Act are similar. The admissibility of Good character evidence in cases of civil matter is more limited and restricted as compared to the Criminal cases. This difference lies because of the concept that in civil matters hardly the character of the accused has any impact on the conduct of that person but the case is not same in the criminal cases. We have accepted this concept as we follow adversarial form of justice where law presumes accused an innocence person until and unless contrary is proved. But many a times accepting good character of accused leads to the miscarriage of justice. It is always a first time for every criminal to commit crime and that first time has no previous bad character to rebut the good character that the accused is going to produce. In a doubtful case where no positive or affirmative evidence is present, the accused that is actual a culprit will be freed. Hence it is very difficult but important for the judge that how much he should rely on and admit the previous good character of evidence of the accused.
13 | P A G E BIBLIOGRAPHY
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SIR JOHN WOODROFFE AND SYED AMIR ALL- LAW OF EVIDENCE, KESHAV RAO, (ED. 18TH) VOL
THE LAW OF EVIDENCE, RATANLAL & DHIRAJRAL, (ED. 21ST, 2009) WADHWA NAGPUR.
LAW OF EVIDENCE, DR. ASIS MALLICK, EASTERN LAW HOUSE.
BASUS LAW OF EVIDENCE, BY P.M. BAKSHI, INDIAN LAW HOUSE, 7TH EDITION VOL 3
PHIPSON ON EVIDENCE, HODGE M MALEK (ED. 15 TH )
LAW OF EVIDENCE, SUDIPTO SARKAR & V. R. MANOHAR, (ED. 17TH, 2010) VOL 1.)