INTRODUCTION
The Law Commission of India submitted its 185th Report in the March 2003 on the review of the Indian Evidence Act, 1872. Law of Evidence is one of the most important laws administered by our civil and criminal courts. The 185th Report of the Law Commission was exclusively on the review of the Indian Evidence Act. It looked into all the major emerging concerns in the administration of evidence law and figured out many suggestions so as to bring it in conformity with present day's scenario. This research paper will extensively deal with recommendations made by the Commission with regard to the Sections 27 and 112.
The Commission proposed amendment to Section 27 to conform to the several judgments of the Courts. Section 27 is now proposed to be an exception to Sections 25 to 26. By the introduction of the word 'or' it applies to facts discovered from statements by those in custody and not in custody. The words 'distinctively' and 'so much of such information', are proposed to be under Section 27, it is further proposed that facts discovered from statements can be admitted in evidence only if the statements have not been made under threats, cruelty, violence or torture. Facts discovered by inducement or promise will still be relevant. As regards Section 27, which deals with relevancy of information leading to discovery and is said to be one of the crucial provisions in the Act, there were several issues, which were discussed by the Commission. The following conclusions were brought forth after an exhaustive evaluation of the authorities on this aspect; Section 27 was a proviso to section 26;Section 27 is an exception to Section 25 also. [2] The most important issue is whether scope of Section 27 can be extended to cover protection under Section 24.
With reference to proof of paternity, in Section 112, apart from the sole exception of 'non-access', other exceptions by way of blood-group tests, DNA test have been proposed but subject to very stringent conditions. Further, the benefit of the presumption as to paternity in case of those born during the continuance of a marriage or within two hundred eighty days of
dissolution, is now extended not only to children of voidable marriages which are avoided but to children of void marriages where a declaration of nullity is obtained, provided such children are, under their respective personal laws, treated as legitimate. [3] In a few decisions the Supreme Court of India has refused to rely on DNA evidences.
The primary focus of this paper will be on the above-mentioned propositions only. The researcher will try to figure out whether the scope of Section 27 should be extended to cover Section 24 also and about the Section 112, what relevancy should be granted to the DNA evidences.
RESEARCH METHODOLOGY
AIMS AND OBJECTIVES
The main aim of this research paper is to study 185th Report of the Law Commission of India. The objective, which the researcher seeks to achieve through this paper, is to find out whether the suggestions and amendments proposed by the Commission are necessary or not; if yes then in what way they can be implemented.
SCOPES AND LIMITATIONS
The scope of this paper is to give special reference to Sections 27 and 112 of the Indian Evidence Act. However, due to giving special reference to these particular sections, this paper will be limited to them only.
RESEARCH QUESTIONS
What is the importance of section 27 of the Indian Evidence Act?
Can the scope of Section 27 be extended to cover Section 24 as well?
How is DNA test relevant in figuring out the paternity of the father?
To discuss the "non access" in this regard.
METHOD OF WRITING
The researcher has used an analytical form of writing throughout the course of this research paper.
SOURCES OF DATA
The sources used in this research paper are mainly secondary. Secondary sources such as books by prominent authors, articles and internet-based information have been used to look in to the matter of the subject.
MODE OF CITATION
A uniform mode of citation has been followed throughout the course of this research paper.
185th LAW COMMISSION REPORT AND SECTION 27
Section 27 has been one of the most important but at the same time one of the most controversial sections in the Evidence Act. Sections 27 partially tries to remove the ban placed on the reception of confessional statements made under the Sections 24, 25 and 26. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by an accused whilst in custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given to him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore, declared provable in so far as it distinctly relates to the fact thereby discovered. [4]
There are many questions, which fall for consideration under Section 27 but the most important and relating to this paper is whether Section 27 is a proviso to Sections 25 and 26 only or its scope can be extended to cover Section 24 as well so as to make facts discovered from statements under all those sections admissible. The 185th Report says that Section 27 is no doubt is proviso to Section 26 but is it also applicable to Section 25 where the accused is not in custody? In Pakala Narayanswami' v Emperor [5] , the Privy Council observed that the Section 27 seems to be intended to be a proviso to Section 26. The question whether a statement made to a police officer as one under Section 25 which is wholly inadmissible under Section 162 of Cr.P.C could, if led to a discovery, make the statement to the extent it related to the discovery, relevant under Section 27, was not decided by the Privy Council at that time but however, the Supreme Court of India, in the case of Udai Bhan v. State of UP [6] , held that Section 27 is a proviso to Section 26.
Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. If the statement is made voluntarily to the police officer it may in certain cases amount to surrender to the police under Section 46 as arrest and in that case if the person is deemed to be under arrest then Section 27 would apply but if he writes a letter to the police officer then it will be inadmissible under the Section 162 of the Cr.P.C. [7]
Another significant questions arising in this series is whether facts discovered by statement of persons not in custody under Section 25 are admissible for the purpose of Section 27. In this regard we find that there is considerable authority for making them relevant. In Chinnaswamy v State of Andhra Pradesh [8] , the Apex Court said that the Section 27 is an exception to Section 25. That means that discoveries made pursuant to statements falling under Section 25 by persons not in custody are also admissible. In this way, Section 27 is a proviso not only to Section 26 but also to Section 25.
The 185th Report not only approves it but it even goes a step further so far as Section 27 is concerned that in order to avoid the police authorities in using Section 27 indirectly violating Sections 25 and 26, it will be advisable to confine Section 27 to the facts discovered alone and says "the facts so discovered may be proved but not the information whether it amounts to a confession or not. Provided that the facts discovered by using threat, coercion, violence or torture shall not be admissible. [9] Coerced confessions are unreliable but the fruits posed no problem. To exclude these fruits simply in order to prevent a suspect being made the instrument of her own conviction would be novel in theory, dangerous in practice and repugnant to the general principles of criminal law. [10]
In the case of State of UP v Deoman Upadhyaya [11] , it was held by Justice Hidaytullah that the discoveries from statements were all admissible under Section 27 even if the statements as to confession were inadmissible because they were made by threats, inducements or promise, even fell out of Section 24. It was finally held that the information obtained in cases falling under Section 24 was admissible. Section 27, which are framed, as an exception has rightly been held as an exception to Sections 24 to 26 and not only to 26 alone. If what is discovered is true and a fact independently in existence, the fact that it was discovered pursuant to a confession made under threat, inducement or promise was relevant, according to the above finding of the Court. If the fact discovered existed, it existed even without and induced confession. [12]
But, as a matter of policy, the question arises whether a confession caused by an undesirable inducement, threat or promise and hence inadmissible under Section 24, should become admissible under section 27, because a fact was discovered in consequence thereof. The view is that the paramount rule of policy embodied in Section 24 must override Section 27. Section 24 enacts a rule, which should have universal application. [13] That rule is not based on any artificial or peculiar considerations relatable to the supposed excesses of the police. It is intended to discourage the "tendering of hopes or promises or the exercise of coercion", in order to induce or compel the making of confessions. These considerations weigh against Section 27 overriding Section 24. Section 24 is not based merely on the criterion of truth. It is intended to discourage coercion in the wide sense for securing confessions. [14] So if such facts were part of the statements made in circumstances stated in Section 24 like threat, coercion or inducement that would encourage police to set arbitrarily. Hence facts revealed from statements falling under Section 24 are not being made admissible.
The Law Commission has already in the 69 Report referring to this issue felt that if such facts were admissible, it would definitely encourage third degree methods being employed by the police. It may even be felt by the police that Section 27 indirectly permits use of threats, inducement or promises. It agreed for Section.25 and 26 facts' to be admissible but not to 'Section 24 facts'. Here, on the one hand, we have the prisoner's human right under Section 24 that he should not be subjected to any threats or physical violence. In its view a right balance must be struck between the right of the accused on the one hand and the public interest involved in making such facts relevant. [15]
Section 27 is a proviso to Sections 25 and 26 and statements even by way of confession which distinctly relates to the facts discovered is admissible as evidence against the accused in the circumstances stated in Section 27. But the Commission finally said that circumstances under Section 24 must be excluded.
185th LAW COMMISSION REPORT AND SECTION 112
The Section 112 of the Indian Evidence Act says that if a child is born from a woman after the dissolution of the marriage and within the two eighty days of its dissolution, the wife has not remarried then it will be a conclusive proof that that child is begotten from the father. However, there is only one exception of non-access. If the husband proves that he could not access his wife then that child will not be considered from him.
This section is based on the maxim pater est quem numtioe demonstrant, which means 'he is the father whom the marriage indicates'. This section lays down a rule of 'conclusive proof' as to legitimacy of a child born. The only exception provided in the section is where 'it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten'. The section requires the party disputing paternity to prove non-access in order to dispel the presumption. In the case of Venkateswarlu vs. Venkatnarayana [16] , it was held that the presumption is conclusive and can only be displaced by proof of non-access at the relevant time. There must be positive proof of non-access.
The most important question, which is also thesis of this paper, is whether any other exceptions, other than non- access should be introduced in this Section such as impotency or sterility, proof that the person is not the father as per blood test or DNA tests. Section 112, as already observed, uses the words, "conclusive proof" and refers to 'non-access' as the sole exception. Therefore, as the language of the section stands, no other evidence is permissible except non-access, to prove that a person is not the father. This was what was held in several decided cases and also recently by the Supreme Court in Kanti Devi vs. Poshi Ram [17] where the case concerned DNA evidence but the Supreme Court refused to permit the evidence on the ground that except 'non-access' no other evidence is permissible to prove that a person is not the father. Even the Apex Court has not achieved a unique approach in this regard. The 185th Law Commission recommended a few more exceptions which if pleaded might avoid illegitimate paternity of the father.
The Law Commission in the Section 112 recommended the following exceptions;
IMPOTENCY OR STERILITY
Even though the position of law in this regard is very rigid but a few High Courts have held that impotency of the father is a valid ground for avoiding the paternity of the child. The exception of impotency was confirmed by the High Courts. But in the case of Kushnayya v. Mahopatra [18] , which was decided by the Privy Council, related to a husband who was too young and immature. It was argued that the person was too young and was 'physically incapable'. The Privy Council rejected the plea and held that all possibility of premature virility should also be excluded. They said that according to some medical books, it could not be said that a boy of 13 years was incapable of sexual intercourse.
The English law permits 'impotency' to be proved. [19] Even in US impotency is a permissible plea. [20] In India, under several marriage laws, 'impotency' is a valid ground for avoiding marriage. The Supreme and several High Courts have dealt with 'impotency' as a valid ground for dissolution of marriage. Of course, 'impotency' may be physical or may be a mental-state vis-à-vis a particular person, who is either a husband or a wife. The fact that 'impotency' is ground for divorce under our marriage laws is a factor to be taken into account while deciding whether 'impotency' can be an additional ground under our law. It is time to include 'impotency' of the husband in Section 112 but the 'impotency' must be conclusively established, i.e. beyond all reasonable doubts, by medical tests. Mere preponderance of probabilities will not suffer. While 'non-access' can be proved by very strong evidence, as decided by the Supreme Court in several cases, the proof required to prove 'impotency' must be a conclusive one, leaving no other choice to the Court.
BLOOD TESTS
As a scientific principle, a child will inherit the blood group of one or other of his parents. If O is the blood group of the mother and A is that of the child, a person with blood group B cannot be the father. But, if the blood of the male in question is also A, like the child's, it is not possible to say that the person is the father. So far as blood tests are concerned, American statutes require that, where more than one expert is examined there must be total unanimity. Where the blood tests show on an analysis of blood groups, that the husband is not the father, such a result is today accepted as conclusive and that the husband is not the father. The exclusion test is definite but the inclusive test is equivocal.
DNA TESTING
The 185th Report figured out that due to the developments in science today, DNA tests could result in proving definitely that a person is not the father, where the samples do not match. But where the samples match, the controversy remains. It is now settled that where samples match, the probability about the identity of the person depends on the probability of there being similar matches in the male population of the country about whom DNA records are available. If the DNA data is less and does not cover the whole population of a country, the matching is weak evidence. [21] Where the DNA data is available for a larger population or for the whole country, naturally, the probability will be far less than in a smaller population. Several countries have permitted DNA evidence even if the samples match; they permit expert evidence so that the Court may take them into account. As in the case of blood-group tests, science has progressed to this extent that where the samples of the male and the child do not match, it is certain that the male is not the father. But, where they match, it leads us to a theory of probability. So the Commission proposed that as in the case of blood tests, there could be evidence by way of DNA tests to prove that a person is not the father. But DNA evidence cannot be used to say that a person is the father. [22]
The Commission also suggested that a person refusing to consent to medical tests for proving his plea of impotency or refusing to allow blood tests or DNA tests will be compelled to waive his defense that he is not the father. DNA evidence involves comparison between genetic materials thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match that does not mean the identity is conclusively proved. DNA testing is substantially based on molecular biology involving major scientific research, so it falls under the category of expert opinion in the Section 45.
In the opinion of the Commission, the DNA test has got a limitation. It can be conclusively said when samples of both the father and son do not match that he is not the father of that child but the converse is not always true. So, due to this it can be used to prove that he is not father but not to prove that he is father. So, if samples match, then it cannot be concluded that he is the father. However, this can be avoided by proving only that he is not father. In this way, the Commission suggested a few more exceptions to Section 112 in order to disprove the paternity. Earlier it was confined only to non- access they are;
Impotency or sterility
Blood sample test
DNA identification
CONCLUSION
The Law Commission in its 185th Report elaborately did an overall review of the Indian Evidence Act. The Commission figured out many changes in the Act keeping the present needs in the mind. All the suggestions and changes made by the Commission are of utmost importance for present day scenario. With respect to Section 27, the approach of the courts is that it is a proviso to Section 25 and 26. Section 27 removes partially the ban imposed by these two Sections. However, the scope of Section 27 cannot be extended to cover Section 24 because wherever the confession is given by an accused due to threat, undue influence or promise, such a confession shall be inadmissible even though it may lead in the discovery of certain relevant facts. It is urged that Section 27 should not remove even the bar of Sections 25 and 26 as it violates the Article 20(3) of the Constitution but the courts have not held such thing. So, in this way the scope of Section 27 is up to Sections 25 and 26 only and in no condition it can be extended to 24 so as to cover confession made by promise, threat or undue influence.
With regard to Section 112, the Commission's suggestion of including sterility, blood test and DNA test for the determination of paternity is welcomed. It is because the Section as of now provides only one exception that is non-access to wife. However, circumstances may arise where the couple is staying together and the child born may not be from that father, but according to rule laid down in this Section that man will be held to be the father of that child. In this case we must rely on some other methods for the determination of paternity. So, the suggestion of referring the matter to DNA test or blood test may bring some kind of conclusive proof. For example, if the DNA of the father and the son do not match, then it can conclusively be said that child is not born from that father. However, the converse is not true. In the same way blood samples can be used for the same purpose. But the Supreme Court did not rely on DN evidences in a case. So, it is recommended to the Courts to take DNA and blood samples evidence into consideration while deciding the question of paternity.
ANNOTATED BIBLIOGRAPHY
ARTICLES: -
P. R. Parthasarathy, The Plight of the Indian Evidence Act, (Criminal Law Journal, August 2004, Issue 8).
This article is on a review of 185th Report of the Law Commission of India. This essentially talks about the plighting arising out of non-implication of the recommendation. For example, it emphasizes on the need of inclusion of sterility or impotency, blood tests and DNA tests in the exception category of the Section 112. It says that it will expand the scope this Section. It also looks on the over-all review of the Report. This article is important for this paper because it provides basic framework for the evidential infirmities. However, the article is not much exhaustive but still a good piece of information.
BOOKS: -
M. Monir, Principles and Digest of the Law of Evidence, (11th Edition, 1997) The University Book Agency, Allahabad.
Halsbury' s Law of England, (Volume 1, 4th Edition).
Wigmore Evidence, (Volume. IX, Para. 2527).
CASES: -
PAKALA NARAYANA SWAMI v. EMPEROR: - It's a murder case. The appellant was convicted for murder and sentenced to death. He and his wife were accused but only he was prosecuted. The accused made a few statements when he was not in custody and also no discovery was made in consequence of his statement. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. The Court held that Sections 25, 26 and 27, Evidence Act, 1872 are in conformity. Section 25 provides that no confession made to a police officer shall be proved against an accused. Section 26 No confession made by any person whilst he is in the custody of a police officer shall be proved as against such person. Section 27 is a proviso that when any fact is discovered in consequence of information received from a person accused of any offence whilst in the custody of a police officer so much of such information whether it amounts to a confession or not may be proved. This case is important for this paper as it gives grounds for making Section 27, a proviso to Section 25 and 26.
UDAI BHAN V. STATE OF UTTAR PRADESH: - The accused broke open a shop when nobody was there and stole some money and boxes. On the returning of the shopkeeper, he was told by a few eyewitnesses that the accused just now left with a few boxes and then a complaint was registered. The Accused was arrested and after interrogation he took the police officer to a pond and brought the box out and handed over a key, which was used to open the lock of the shop. After this he was convicted for extortion. In the appeal he raised a question that case is covered by Sections 25 and 26 of the Evidence Act as the accused's handing over the property amounts to a confessional statement made to a police officer and the production therefore is inadmissible in evidence. The argument was put in this way that when an accused person in the custody of the police just produces an article, which is stolen he must be taken to have made a statement of a confessional nature to the police and not the statement in consequence of which the police discovers a fact. In order to consider this question we have to see what exactly was stated to the police by the appellant.
The police officer in the presence of a few people prepared a memo of the articles. The Court said that the handing over of the key is not a confessional statement but the confession lies in the fact that with that key the shop of the complainant was opened and, therefore, that portion will be inadmissible in evidence and only that portion will be admissible which distinctly relates to the fact discovered like the finding of the key. Similarly the recovery of the box is provable because there is no statement of a confessional nature in that memorandum. This case is important because it says that it appears that Section 27 does not nullify the ban imposed by Section 26 in regard to confessions made by persons in police custody but because there is the added guarantee of truthfulness from the fact discovered the statement whether confessional or not is allowed to be given in evidence out only that portion which distinctly relates to the discovery of the fact. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. In this way, the evidence in regard to the discovery of the key as well as the box is evidence in the present case.
K. CHINNASWAMY REDDY v STATE OF ANDHRA PRADESH: - This case on housebreaking. A house was burgled and some ornaments were stolen. A few ornaments were recovered from the information given by the appellant. The appellant told the police that he would take them to the place where the ornaments have been kept. These ornaments were then recovered. On this information he was convicted Sub-divisional Magistrate but was acquitted by the Session Court on an appeal. The High Court ordered for a retrial. The prime contention raised by the appellant was that his statement "he had hidden the ornaments and pint out the place where they were" amounted to confession so its totally inadmissible in the light of Section 27 of the Indian Evidence Act. The Court came to the conclusion that it is only that part which distinctly relates to the discovery, which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature.
Section 27 makes that part of the statement, which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession, or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement namely, that he would show the place would be completely meaningless. The whole of this statement relates distinctly to the discovery of ornaments and is admissible under Section 27. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible, as they would amount to an admission by the accused that he was in possession. In the first place, Section 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellants would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, the prosecution will have to show that they are stolen property. The Court was of the opinion that the entire statement of the appellant would be admissible in evidence. This case was important since it made a distinction between the facts known and facts discovered.
STATE OF UP v DEOMAN UPADHYAYA: - Deoman killed one woman for some dispute with a Gandasa and then threw it in tank and absconded. On his arrest he said that he had thrown the Gandasa in a tank and that was recovered from there. The question was whether this piece of information could be used as evidence against him. The Session Court sentenced him but the High Court acquitted him. The Supreme Court on the appeal said that a confession made by a person not in custody is therefore admissible in evidence against him in a criminal proceeding unless it is procured in the manner described in s. 24, or is made to a police officer. A statement made by a person, if it is not confessional, is provable in all proceedings unless it is made to a police officer in the course of an investigation, and the proceeding in which it is sought to be proved is one for the trial of that person for the offence under investigation when he made that statement. Whereas information given by a person in custody is to the extent to which it distinctly relates to a fact thereby discovered is made provable, by Section 162 of the Code of Criminal Procedure, such information given by a person not in custody to a police officer in the course of the investigation of an offence is not provable. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. But by the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time when he made it otherwise it is not. This case also decided that Section 25 does not discriminate the persons who are in custody and who are not in custody so does not violate Article 14 of the Constitution.
KANTI DEVI v POSHI RAM: - The marriage between the appellant and the respondent resulted in no child for almost 15 years and during this period the wife did not conceive. The wife was living separately from her husband in her father's home. After fifteen years she gave birth to a child. The respondent said that this child is not his child, as he had no access of his wife for more than two years when the child would have been begotten. The Civil Court did not accept his contention and declared him the father but however, the first appellate court reversed the decree. The only exception provided under Section 112 is the non-access. If a husband firmly proves that he had no access to his wife, then he can displace the paternity of the child in question. In this case DNA evidence was also given but the Apex Court refused to accept it. The Court said that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Deoxyribonucleic Acid (DNA) test were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, for example if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as stated in Section 112 only. The proof of DNA test is not admissible. Here, one thing is to be noticed, that is if the DNA's of both the father and the child do not match, then it's a conclusive proof that he is not the father, but if they match then it cannot be said that he is the father.
