Section 8 of the Indian Evidence Act, 1872

Motive, preparation and previous or subsequent conduct:

Any fact is relevant which shows or constitutes a motive or preparation for any issue or relevant fact.

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The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1:

The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2:

When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations:

(a) A is tried for the murder of B.

The facts that A murdered C, that В knew that A had murdered C, and that В had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues В upon a bond for the payment of money. В denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, В required money for a particular purpose is relevant.

(c) A is tried for the murder of В by poison.

The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the Will of A.

The facts that, not long before the date of the alleged Will, A made inquiry into matters to which the provisions of the alleged Will relate, that he consulted vakils in reference to making the Will, and that he caused drafts or other Wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime.

The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B.

The facts that, after В was robbed, С said in A’s presence—“the police are coming to look for the man who robbed B,” and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes В rupees 10,000.

The facts that A asked С to lend him money, and that D said to С in A’s presence and hearing— “I advise you not to trust A, for he owes В 10,000 Rupees,” and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime.

The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal and the contents of the letter, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that he said he had been robbed, without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

Comments:

Principle:

Section 8 deals with the relevancy of three principal facts, namely, motive, preparation and conduct. According to this section the presence or absence of motive, evidence of preparation and previous or subsequent conduct of the parties are relevant and are very important elements in Civil and Criminal proceedings. Whereas Section 7 concerns with occasion, cause or effect of opportunity, Section 8 has wider application. It lays down:

1. Fact which shows the motive or constitute motive.

2. Fact which shows preparation.

3. Fact which shows the previous or subsequent conduct of any party provided it is influenced by the fact in issue or relevant fact.

4. Statements accompanying and explaining act are relevant (Explanation 1).

5. Statements made in the presence and hearing of a person whose conduct is in issue, are relevant provided the statement affects such conduct (Explanation 2).

1. Motive:

A motive is that which moves a man to do a particular act. It is an inducement to do an act. Motive is the reason or ground of an action. By motive is meant anything that can contribute to, give birth to, or even to prevent, any kind of action. Motive in correct sense is the emotion supposed to have led to the act. ’ It is the emotion which impels a man to do particular act. In other words, it is the feeling which prompts anyone to translate his will into an action. It is a psychological fact that can be proved by conduct of a person.

There is hardly any act done without motive and, again adequacy of motive is not in all cases necessary in doing an Act. The evidence of injured witnesses is to be accepted, presence of motive is hardly relevant, where the evidence is found truthful, motive assume a secondary role. Motive by itself is not a crime, but when crime is committed it becomes important. Feature to mention motive in FIR cannot be the ground to acquit the accused.

Motive is relevant in all criminal cases whether based on testimony of eye­witness or circumstantial evidence. It provides fundamental material. Absent of motive is not of much consequences when chain of proved circumstances is complete. In respect of land dispute murder was committed. Prosecution witnesses stated that Panchayati was held in the village where the accused appellant and his brother did not attend, rather, they had given threat to kill the deceased. No infirmity was pointed out in the evidence. Motive for communication of murder stands proven. In Sarup Singh v State of Punjab the evidence proved the participation of accused. In view of the aforesaid evidence it would not be necessary to prove motive on part of the appellant. It was held that the connection of the accused was proper.

Hence, “motive is the emotion which impels to do particular Act, such impelling cause need not necessarily be proportionately grave to do grave crimes, the mere fact that prosecution failed to translate that mental disposition of accused into evidence does not mean that no such mental condition existed in the mind of assailants.”

Difference between motive and intention:

In ordinary sense the motive and intention are used interchangeably. In law they have different meanings and the motive should not be confused with intention. Motive is the reason of an action whereas intention is the volition or active desire to do an act. Intention is an operation of the will directing a man to do an overt act, but motive is an emotion prompting the operation of the will. For instance, if A kills B, the intention is the state of mind which causes death, the motive is the object which a person had in view viz. satisfaction, vengeance and the like. Motive is not the basis of criminality.

The criminal law only takes into account man’s intention. Motive is something which prompts a man to form an intention. In criminal trial, in absence of direct evidence, the evidence of Motive becomes important when there is only circumstantial evidence, whereas burden lies upon the prosecution to prove guilty intention where the intention is expressly stated. Consistent statements of prosecution witnesses proved that land dispute was going on between appellant and deceased. They further stated that Panchayati was also held in the village which was not attended by appellant and his brother rather they had given out threats to kill the deceased ‘No infirmity was pointed out in their evidence. Motive for communication of murder stands proven. There was clear and convincing ocular evidence and the role of the accused persons in the crime was clearly established; failure to offer proof of motive was immaterial.

Relevancy of motive:

Under section 8 of the Evidence Act motive may be relevant when a case depends upon the circumstantial evidence. In a case based on circumstantial evidence motive assumes a great significance as its existence is an enlightening factor in the process of presumptive reasoning. Evidence of incidents took place sometime ago are relevant. Evidence of injured witnesses is to be accepted presence of motive is hardly relevant.

Illustration:

A sues В upon a bond for the payment of money. В denied the making of the Bond. The fact is that at the time when the bond was alleged to be made, В required money for particular purpose is relevant

Adequacy of motive:

It is very difficult to prove motive. There are crimes which are committed with a slightest motive. It is not essential to prove motive when any heinous crime is committed. When offences are committed by habitual criminal or immoral person adequacy of motive is of little importance. Sometimes, the pleasure and adventure might be the reasons of motive. It can be said that there cannot be one rule for every case as regards adequacy of motive. The adequacy of motive to commit a crime depends upon the character of a man. However, if the prosecution case is proved by cogent evidence the motive is immaterial. Evidence of motive is important when ocular evidence is suspect.

Proof of motive:

As stated earlier the motive by itself is no crime, but evidence of motive is always relevant. Proof of motive is not essential when direct evidence establishes crime. Evidence of motive helps the court to find out the guilt of the accused, particularly in view of circumstantial evidences the question of motive has been vital. This proof of motive leads support when the positive evidence is “clear, cogent and reliable.” Proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a person has committed an offence. Similarly, where an eye-witness account of the happening of a fact is so clear and truthful that it establishes the connection of the person accused as the perpetration of that fact, the evidence of motive puts into insignificance. When a new story was introduced which was adverse to the prosecution case, it created doubt about motive for the crime. Benefit of doubt was given to the accused. Thus, a motive may not always prove the guilt of the accused.

Police constables allegedly committed offences of house-breaking by night and murdered of deceased. Evidence of eye-witnesses including injured witness proved participation of accused. In view of aforesaid evidence it would not be necessary to prove motive on part of appellant. Conviction of accused is proper.

2. Preparation:

Preparation is an inchoate Act. It means an arrangement, measures or design necessary for commission of a crime or certain thing. Preparation by itself is not a crime except preparation to wage war against the Government of India, preparation to commit dacoity and sedition. Section 8 of the Evidence Act provides that the acts of preparation are relevant. Any fact that shows that the preparation was being made for fact in issue or for any relevant fact, is relevant. Once an offence has been committed, evidence in support of preparation produced becomes very important. However preparation and attempt are different. An attempt is direct active towards the commission open act after preparation.

Where the question is whether A has committed an offence, the fact of his having procured instruments used in its commission, is relevant. For example, A was indicted for murdering В by poisoning him. It appears that shortly before murder A purchased poison. Thus purchasing poison being a preparation is relevant. Illustrations (c) and (d) refer to preparation. Preparation includes to accomplish crime, to help in escaping, to prevent discovery etc. Evidence tending to show that the accused made preparation to commit a crime is relevant and admissible. Premeditated crime must necessarily be preceded by preparation. Absence of evidence of any preliminary measure leads to presumption of innocence.

3. Conduct:

Conduct is the expression in outward behaviour of the quality or condition operating to produce those effect. It is conscious attitude adjusted for doing an Act or series of Acts. The second paragraph of the Section 8 makes the conduct of a person relevant when such person is a party to a suit or proceeding or such conduct is referred to the facts in issue. A man’s conduct includes what he does and what he omits to do. The conduct of the accused on being questioned immediately after taking bribe is relevant.

The evidence of conduct of the party is to relevant: (i) in reference to the fact in issue or relevant facts; (ii) that the conduct is such as influences or is influenced by the facts in issue or the relevant facts.

(i) When evidence of conduct itself is fact in issue the Supreme Court held that his conduct would be relevant to support or rebut his case. In this case the wife was pregnant at the time of her marriage and the husband alleged that she had concealed it from him. The conduct of a man is admissible only against him. The conduct of one accused is not relevant against a co accused. When the conduct of a person is in question, the statements, oral or written, made to him or in his presence or hearing which affect such conduct are relevant. Example – Illustrations (f), (g), (h).

(ii) Secondly, conduct influences or is influenced by the fact in issue. In Queen Empress v Abdullha the question was whether the signs made by the deceased could be admitted as the conduct and a dying declaration. It was decided that the signs made by the deceased can be taken into consideration along with the questions put to her. The signs alone cannot be admitted by way of conduct under sections 8 and 9 of the Act. Thus conduct of the injured person is not always relevant. According to Wig more a man’s conduct is always influenced by what he has been doing before or after the act. The accused is charged with strangulating the victim; his conduct is producing a watch of the victim before the police from his house is admissible.

Previous and subsequent conduct

Previous conduct:

A conduct to be relevant need not be only previous or subsequent. Both are relevant. Under section 8 previous declaration of intention, threat or attempts to commit an offence are instances of previous or antecedent Conduct and are relevant. In antecedent conduct there is declaration of intention or threat. Such type of conduct may influence or is likely to influence the fact in issue or any relevant fact.

A woman and her paramour were accused of murdering her husband. She had been heard to say of her husband. “I live a most unhappy life with him. I wish his death. If he cannot die I will kill myself.” It is relevant.

Subsequent conduct:

Subsequent conduct of a party or person or his agent is relevant under the section. Sudden change of life, silence on part of the accused, false statement, suppression of evidence, running away after occurrence are instances of subsequent conduct. Illustrations (f), (h) and (i) explain the same. Presence of accused at a place where ransom demanded was to be fulfilled and then action of fleeing on spotting the police party is a relevant circumstances and is admissible under this section.

Subsequent conduct in civil cases:

The following are instances of subsequent conduct in civil cases: (i) Failure to produce evidence, (ii) Party’s failing to appear, (iii) destruction or non-production of document (iv) conduct regarding document (v) sale or mortgage (vi) family settlement, (vii) partition and (viii) adoption.

Current conduct:

Besides previous and subsequent conduct, the current or contemporaneous conduct is also relevant under section 8. The conduct of a party interested in a proceeding at the time when the facts occurred, out of which the proceeding arises is relevant. In terrorist attack in parliament the accused has purchased ingredients from a shop used IED_S and found in possession of deceased terrorists. The name of the shop and address were already known to the police as name and address of the shop was already mentioned on packets seized. It was held that the conduct of accused in pointing shop and its properties was relevant under this section.

Statement explaining conduct:

Mere statement is not admissible according to Explanation 1 to Section 8. It lays down that the conduct does not include statements. But the explanation is an exception to this rule. “The statement and the Act which are explained and accompanied by such a statement both are relevant as a composite whole.” Those statements which accompany and explain acts, other than statements can be regarded as conduct.

For example, a girl was raped and she made a complaint about it to her mother. The circumstances under which and the terms in which the complaint was made, is relevant. It is not necessary that a complaint to be relevant should have been made only to police station.^– But false explanation of the accused is also conduct and relevant.

Similarly, the accused was charged with gross indecency with a boy of fifteen. Shortly after the offence a complaint was made by the boy to his parents. The particulars of the complaint were held to be relevant.

A distinction can be drawn between complaint and a statement. The evidence of complaint is always allowed, but a statement is allowed in special circumstances, particularly when it is part of res gestae.

First information report:

If the first information report is non-confessional statement, then the contents of it is relevant. The fact of giving information by the accused is relevant against him as his conduct under section 8 of the Act. Confessional Part of the F.I.R. of the accused is not admissible except to the extent permissible under section 27 of the Evidence Act. But non-confessional part of the F.I.R. can be used against the accused as evidence of conduct under section 8 of the Act.

Statements of third person affecting the conduct of a party to a proceeding. Explanation 2 states that the statement of third person made to the accused, whose conduct is relevant, in his presence and before the court is admissible if it affects his conduct. Illustrations (f), (g) and (h) appended to Section 8 are relevant to Explanation. The statement of the investigating officer revealed that the accused had been taken to ‘G’ who pointed out the accused. The statement of G’ to that extent was relevant.