Articles, Criminal Jurisprudence

RE-THINKING SIMILAR FACT EVIDENCE IN THE CONTEXT OF INDIA

-By Shailendra Shukla*

INTRODUCTION

Section 14 of the Indian Evidence Act encompasses within its confines a rule known as ‘similar fact evidence’, understood to come within the facet of “character evidence”. As a concept, it states that evidence of facts similar to the fact directly in issue is admissible if it is logically probative, subject to two exceptions[1] where evidence is not admissible:

  1. Of similar acts done by himself if they do no more than show a general disposition, habit or propensity to commit such acts and a consequent probability of his having committed the act or possessed the state of mind in question;
  2. Of similar acts done by others similarly circumstanced to himself to show that he would be likely to act as they did.

The principle essentially states that evidence related to the past conduct of the accused must not have a bearing on the hearing in the present, because it erodes or adversely affects the presumption of innocence by presenting a prejudicial viewpoint, unless it has some relevance or similarity to the present issue.

Talking about similar fact evidence, Lord Herschell saidit is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that he is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.”

THE RULE

This principle was observed to be a deeply rooted and jealously guarded principle of criminal law and fundamental in the law of evidence[2], and was discussed in numerous cases like Noormoahamed v. R[3], Hariss v. DPP, Kuruma v. R., R. v. Cook[4], Boardman v. DPP etc,

After considering the ratios of all these cases, Phipson noted[5]

The admission of similar fact evidence is exceptional and requires a strong degree of probative force. It is for the judge to decide, firstly as a matter of law and then as a matter of discretion whether the evidence should be admitted. Two questions have to be answered: (i) is the evidence of similar fact relevant i.e. relevant apart from merely showing a disposition to commit the offence charged; (ii) if so should the judge refuse to admit it as a matter of discretion, i.e. does the prejudicial effect of the evidence outweigh its probative force?…To be admissible and gain necessary probative force the evidence as to the ‘similar facts’ and as to the main fact in issue must display such a close or striking similarity or such an underlying unity that, if accepted, it would in common sense be inexplicable on grounds of coincidence.”

Over time, several tests across jurisdictions were propounded, and none could fully satisfy the objective set out for them. The Canadian courts adopted an approach where evidence which tends to show that bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character; and (2) the probative value outweighs the prejudicial effect[6]. However, since it was a combination of earlier applied principles, the test was seen as the exercise of discretion rather than the application of a fledged out principle.

Effectively, discretion rather than a cemented test is used to decide the admissibility of the evidence. And similar fact evidence was accepted when the evidence had more to it than simply proving a disposition to commit crime, as decided by English courts.

In India, Melville in R. v. Prabhudas[7] held that the Indian Evidence Act does not go beyond the Law of Evidence regarding the principle of this section. The rule and the rationale has been transplanted from the UK legal system as it is.

However, in India, past conduct has also been accepted under similar fact evidence. When a man was arrested for making speeches promoting enmity and hatred, previous speeches made by him were admissible to show his intent[8]. In Amritalal v. Emperor, it was held that evidence of similar facts may be received to prove a party’s knowledge of the nature of the main fact or transaction or his intent with respect thereto.

THE GENERAL PERILS OF SIMILAR FACT EVIDENCE AND A NEED FOR REFORM

If we critically examine the root of similar fact evidence, its cogency stems from the fact that it places the accused in a limited class of persons who have a behavioural capacity to engage in the relevant conduct, thereby increasing the probability that the accused committed the offence charged. This is more relevant for crimes of a higher degree, like murder or robbery as opposed to normal theft or assault. In essence, it means that those who have formerly committed such heinous crimes are the ones who are capable of doing it again, or recidivism, which at a level is true. However, the application of the principle regarding similar fact evidence extends to all kinds of crimes with no classification made so far, which means that a person with a former conviction is seen as someone who may likely be involved or implicated in the current scenario, with no distinction in the degree of offence in both cases in India.

Legal scholars aren’t the only ones highlighting problems with accepting similar fact evidence. In Pfennig v. The Queen, McHugh J delineated several points in this regard.

“One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence…..Functional reasons also play a part in excluding evidence of bad character. Trials would be lengthened and expense incurred, often disproportionately so, in litigating the acts of other misconduct; law enforcement officers might be tempted to rely on a suspect’s antecedents rather than investigating the facts of the matter; –”

What stands out from his concerns is that the probative effect of similar fact evidence on a convict can make the law enforcement comparatively lax in their approach; after all, it is quite likely that the person who has previously engaged, or alleged to have engaged in crime is the one who has repeated it. This is especially problematic in the context of India.

As has been reported numerous times, India’s police force is understaffed, poorly trained and politicised. Neither are there enough policemen to carry out a dedicated investigation, nor are the current ones skilled enough to properly perform their duties. It is therefore practically impossible for the existing police force to diligently and adequately carry out investigations within a stipulated time frame and in an efficient manner guaranteeing results. With little being done in the field of police reform, it would not be a distant possibility for the police to shift the culpability of a crime on any accused with a criminal record accompanied by readily accepted similar fact evidence to secure convictions, given that they neither have the resources nor any additional incentive to dutifully conduct the investigation.. This is not accounting for the fact that policemen have biases of their own. In fact, half of India’s police force believes Muslims are more likely to commit crimes. A consideration of this information may give us some insight into the prison statistics in India; 15.8 % of the prisoners and 20.9% of the under-trials are Muslims whilst only being 14.2% of the Indian population.

As stated before, similar fact evidence has been previously accepted to prove intent or bodily feeling. Eventually, the evolution of this principle has led evidence relating to past conduct being employed to prove “intent” in criminal cases citing elements of recidivism and narrowing the class of suspects by looking at prior convictions, essentially starting with an assumption that the accused ‘may’ have done it, then working backwards. Simply put, the suspect is chosen based on his/her past conduct, rather than objective facts arising from investigation.

While it is ostensible that such prejudices should not be much of a problem before an impartial judge, who can identify and label the remarks about an accused’s character and past conduct as “propensity evidence” and evaluate it on its merits, the inception of the problem still lies in the previous stage of investigation; for as long as similar fact evidence is acceptable in courts for conviction, the understaffed law enforcement has little reason to investigate outside such limits because arrests made on basis of character evidence which is admissible are legal, their antecedents reason enough to take in police custody. An easy arrest will more or less bring a normal investigation to slow down, and the police does not have incentive to pursue all possible leads. Furthermore, the judiciary is also limited in the sense that the evidence in front of them is largely what the police has gathered.

The manner in which similar fact evidence normally operates is by confining the suspect or accused to a small subset in the community who are willing to engage in the type of conduct which is alleged. While this is logically sound, it also means that in a country with a demonstrably prejudiced law enforcement, those who have been formerly convicted of a crime will always be on the radar of the police in the event a crime is committed regardless of the type of offence. A rule like this would be more logically and scientifically coherent for extreme or violent crimes, as research shows high recidivism rates in those arrested for crimes like murder. However, there is no scientific backing to the idea that there is high rate of recidivism in case of general un-classified crime. Given the fact there is no distinction of classes of crime in the way similar fact evidence is employed or utilised in cases, the logical premise of the concept of similar fact evidence is stretched thin and therefore often lacks probative value. And since investigation is the job of the police, they need not look beyond easily available similar fact evidence given its admissibility. Therefore, similar fact evidence is submitted without prejudice to the category of crime, even when there is scientific basis for a distinct category of crime (like murder, manslaughter etc.) but none for non-violent crime. In fact, accepting such evidence can also lead to an inescapable cycle of court and custody visits for former convicts – they will be the first suspects for law enforcement when a crime is committed.

CONCLUSION

Guidelines with respect to evaluating character evidence during investigation, before the trial would help immensely. The judiciary has previously laid down benchmarks for the police to follow about FIR registration in Lalita Kumari like the mandatory registration of FIR in case the information discloses commission of a cognizable offence, necessity to conduct a preliminary investigation to conclude commission, the categories of disputes where the preliminary inquiry is to be made, and so on. These guidelines are unambiguous and impel the police force to be proactive. Similar guidelines for investigation would go a long away in ensuring due diligence, because they would leave no room for shortcuts and make it easier to check compliance. For example, the very first thing to be done in a crime scene should be to contain it, to secure the area and prevent contamination of finger-prints. The collecting and packaging of evidence should be further done by an expert, or someone trained in the field so as to maximise the aid from forensics. Every significant or decisive action should be recorded in writing with reason. It would also be better for any police staff currently investigating a crime to not be employed in law-and-order duty to streamline the investigation. Not only are these steps simple and easy to follow, they will also allow the police to backtrack every move and find out what goes wrong in a particular investigation, then improve on that area. A distinction of offences for the operation of the rule is also a prudent option, about which class of offences would entail similar fact evidence to secure a conviction. Lastly, judicial discretion should be at the forefront of decision making.


[1] Sidnye Lovelly Phipson, Phipson on Evidence, p. 184, 13th Edition (2005)

[2] R v. Thompson 1918 AC 221, at 232.

[3] Noormoahamed v. R. 1949 AC 182

[4] R v. Cook (1959) 2 All ER 97

[5] Phipson, supra note 1 at 195

[6] B (FF) (1993) 1 SCR 697 at 730-1; W(DD) (19971114 CCC (3d) 524.

[7] R. v. Prabhudas, 11 BCHR 91

[8] Jagannath  Prasad v. R, AIR 1942 Nag 62

The author* is a 3rd year student at Gujarat National Law University, Gandhinagar.

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