Criminal Evidence

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Criminal Evidence

Indian Evidence Act

In the context of Criminal Investigation, “Evidence” is the information which the Police Officer gathers during an investigation of a criminal case in the form of documents, oral submissions, etc. which can be used to prove an offense in the Court of Law.

Broadly there are two kinds of Evidence – Primary Evidence and Secondary Evidence.

Primary Evidence is what nails the culprits. Secondary Evidence is more to corroborate the Primary Evidence.

The various forms of Primary Evidence and Secondary Evidence are :

Oral submissions of witness: The oral submissions of suspected accused persons and all witnesses – both direct or indirect – gives their statement to the Police during an investigation. This is more or less for the Investigating Officer (IO) to understand how the crime was committed. A statement given to a Police Officer is not admissible in Court. That is the reason, many times the witness turns hostile in Court under the plea that the Police had extracted their statements under duress. A smart Police Officer identifies witnesses whose statement is very crucial to the outcome of the investigation and where the witness may, in all likelihood, turn hostile in Court at the time of Trial. Such witnesses are made to give their statement before a Magistrate under section 164 of the Criminal Procedure Code during the investigation itself, to prevent the witnesses from turning hostile at a later stage. In case such a witness turns hostile later on, he or she can be tried for perjury (lying under oath before a Magistrate).

Documentary Evidence: Any document which can prove the culpability of the accused person in the crime is termed Documentary Evidence. It can also prove the modus operandi (the method used to commit a crime), especially in cases of Economic Offence. The various types of Documentary Evidence are (1) Official Documents like marriage certificates, land agreements, etc. (2) Photographs, videos, CCTV clippings, Call Data Records, etc. (3) Correspondence with various departments, local authorities and the replies received from them (4) Medical Reports about injuries suffered, nature and age of injuries, etc. (5) Reports by Experts like Forensic Reports, Report from the Telecom companies regarding Call Data Records, Lie Detector Test Report, etc.

Electronic Evidence: Anything captured on video or photograph and any other electronic device including phones, computers, etc. which will help in the criminal investigation to prove anyone’s complicity in the crime can be classified as Electronic Evidence. It is for the IO to classify them as Primary or Secondary Evidence. Most of the time, they would be Secondary Evidence to corroborate the Primary Evidence. The reports from Experts of each of this Evidence will form part of the Documentary Evidence. Some of the findings of this Evidence would be inconclusive eg. CDR or Call Data Records. This report only shows the location of the Mobile phone based on the tower location and signals received by it, assuming that the phone would be with the owner. However, there is a possibility that the person might have left the phone at home while he or she might be present at the crime scene. Even reports of DDT (Deception Detection Tests) or Lie Detector Tests such as Polygraph, Narco-Analysis, and Brain-Mapping are not admissible in Court as Evidence. It can only help investigators to know the concealed information about the crime which is known only to the concerned person. At the most, it can be presented as Secondary Evidence in Court.

In some matters, the evidence is collected at the time of the crime itself, when the culprit is caught red-handed eg.

(i) A Trap Case - This is part of the PC Act Case (Prevention of Corruption Act). When the Police receive a complaint that someone has demanded a bribe, the Police lays a trap. The complainant is advised to give the bribe. The Police smear the currency notes with Phenolphthaline powder (which is colorless) and lay in wait near the place of the offense, incognito, along with at least two independent witnesses. As soon as the currency changes hands, the complainant signals the cops waiting outside, who comes, and then in the presence of independent witnesses, sodium carbonate solution is prepared and the accused is asked to dip his palms in that water. The Phenophthaline reacts with sodium carbonate and the water turns pink. The accused is then arrested, evidence collected and sealed, and the investigation is carried out to take it to its logical end.

(ii) Immoral Traffic (Prevention) Act - The Mumbai Crime Branch has a separate cell called the Social Service Branch (SS Branch) which deals specifically in cases under this Act. On receiving reliable information, the Police sends a decoy customer, and immediately after the deal is struck and the girls are brought in, the culprit is caught and charged with various sections of the Act. The whole conversation is secretly recorded in the presence of independent witnesses. The girls are considered victims and their family is contacted to send them back (only if they would be safe with their families). In case the family does not want them back, they are sent to women shelter homes for a specific period and rehabilitated with vocational training, etc.

In conclusion, we have discussed Primary & Secondary Evidence, Oral, Documentary, and Electronic Evidence. Primary Evidence is what the Court will take cognizance of, based on which judgments can be passed. Secondary Evidence can be produced to corroborate the Primary Evidence. These pieces of evidence can be in the form of Oral, Documentary, or Electronic Evidence.

We will talk about the "Lie Detector Test" in my next blog.