NATIONAL LAW UNIVERSITY ODISHA

A PROJECT REPORT ON

BAD CHARACTER OF THE ACCUSED

NATIONAL LAW UNIVERSITY

Prepared under the guidance of:

Prof. Keshava Rao

(Assistant Law Professor)

(School of Law)

Submitted by:

Avilash Kumbhar (2012/BBALLB/015)

5TH SEMESTER

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Contents INTRODUCTION .................................................................................................................................. 3

RESEARCH METHODOLOGY ............................................................................................................ 4

HYPOTHESIS: ....................................................................................................................................... 4

OBJECTIVE: .......................................................................................................................................... 4

RESEARCH QUESTION: ........................................................................................................................ 4

GENERAL PRINCIPLE AND ITS APPLICABILITY ......................................................................... 5

EXCLUSION OF EVIDENCE OF BAD CHARACTER .................................................................................. 5

EVIDENCE OF BAD CHARACTER NOT RELEVANT ..................................................................... 8

OTHERWISE RELEVANT ......................................................................................................................... 11

BAD CHARACTER, A FACT IN ISSUE............................................................................................ 12

PREVIOUS CONVICTION RELEVANT AS EVIDENCE OF BAD CHARACTER ....................... 13

CONCLUSION ......................................................................................................................................... 14

BIBLIOGRAPHY: ................................................................................................................................ 15

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Cases

Amrita Lal Hazra v. Emperor, ILR (1915) 42 Cal 957 ............................................................................... 6

Babulal v. State, AIR 1959 Cal 693. ....................................................................................................... 7

Bhima Shaw v. State, AIR 1956 Ori 177 ................................................................................................ 10

Chacko v. State, 1970 ker LT 358 ............................................................................................................ 5

Devbrata Shastry v. Krishna Ballabh, AIR 1954 pat 84. ......................................................................... 10

Emperor v. Alloomiya, (1903) 5 Bom LR 805 ........................................................................................ 10

Emperor v. Duming, (1903) 5 Bom LR 1034 .......................................................................................... 10

Emperor v. Gangaram. (1920) 22 Bom LR 1274...................................................................................... 5

Eswarappa v. State of Karnataka, (1977) 1 Kant LJ 52 ............................................................................ 5

Gopal v. The Crown, AIR 1950 HP 18 ...................................................................................................... 9

In re : Pernne Maila Rai, AIR 1938 Mad 591 ........................................................................................... 9

Kamal Kanto V State AIR 1959 Cal 342. .................................................................................................. 7

Kandur Kasta v. State, (1962) 28 Cut. L.T. 185 ........................................................................................ 7

Khilawan v. Emperor, 29 Cr.LJ 1009 ........................................................................................................ 9

Lakmandas v. State AIR 1968 Bom 400 ................................................................................................... 8

M. Myir v. Kign Emperor , (1908) 5 LBR .................................................................................................. 5

Makin V. Attorney General New South Wales, (1894) A.C. 57 ............................................................... 7

Mohan Singh v.. Gopal Singh, AIR 1961 Mani 43 : (1961) 2 CrLJ 787 ..................................................... 8

Nimoo Pal Majumdar v. State, 1955 Cal 559. ........................................................................................ 6

Noor Mohammad v. King., 1949 P.C. 161. .............................................................................................. 9

Prithvi Singh v. State of U.P., 2001 CrLJ 4424 ......................................................................................... 9

Queen v. Rewton, (1865) 34 LJ (MC) 57. .............................................................................................. 4

Ramlakhan Singh v. State of U.P., AIR 1977 SC 1936 .............................................................................. 5

Saroj Kumar Chakrabarti v. Emperor, ILR (1932) 59 Cal 1361 : AIR 1932 Cal 474 .................................. 9

Shyama Charam Sriramsaran v. State, AIR 1969 All 61 .......................................................................... 5

State of Orissa v. Nirupama Panda, 1989 CrLJ 621 (ORI). ....................................................................... 6

Teka Ahir v. The King Emperor, (1920) 5 CrLJ 706 ................................................................................ 10

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INTRODUCTION

“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.”1

Character is a combination of peculiar qualities impressed by nature or by habit of person,

which distinguish him from others.2 The relevance of character of a concerned person is laid

down under section 52 to 55 of Indian Evidence Act.

In respect of the character of a party, two distinction must be drawn, namely between cases

When the general character of a party is in issue, whether civil or criminal, proof must

necessarily be received of what general character he is or is not. But when general character

is not in issue but is tendered to some other issue is excluded. Where character is in issue or

character not in issue and when the cause is civil and criminal.3 When the general character

of a party is in issue, whether civil or criminal, proof must necessarily be received of what

general character he is or is not. But when general character is not in issue but is tendered to

some other issue is excluded. So, in civil proceeding evidence of character is not relevant4

and in criminal proceeding evidence of good character is relevant, but the fact that the party

is of bad character is not relevant, except in certain specified cases, irrelevant5 6.

1 WIGMORE ON EVIDENCE , 135

2 WEBSTER ON EVIDENCE.

3 Supra note 2.

4 Indian Evidence Act. § 52 (1872)

5 Indian Evidence Act. § 53 &54 (1872)

6 WOODROFFE AND AMEER ALI’S EVIDENCE, 10

TH EDITION., VOLUME II , P. 718

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RESEARCH METHODOLOGY

HYPOTHESIS:

“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.”

OBJECTIVE:

The author of this paper has undertaken the task of understanding the concept of bad

character in a criminal trial. This paper is being written in order to analyze the admissibility

of bad character evidence under different circumstances.

RESEARCH QUESTION:

What are the general principles of admissibility of bad character evidence in criminal

trial?

Whether bad character evidence is admissible?

On what grounds is it excluded?

Under what circumstances bad character evidence is relevant?

Under what circumstances bad character evidence is not relevant?

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GENERAL PRINCIPLE AND ITS APPLICABILITY

Reliance is placed on character evidence primarily to estimate the probability of the

commission or non-commission of an act. Different authorities, therefore, attach varying

degrees of relevance to character evidence. For instance, while accounting for bad character

has been called a matter of common sense, it has also been considered inadequate for want of

‘reasonable connection between principal and evidentiary facts’. Consequently, there are

differing reasons behind its exclusion, relating to both standards of relevance. Bad character

evidence has ‘too much’ appreciable probative value in criminal cases, while it has none in

civil cases, since no moral quality is associated with the acts in question.

EXCLUSION OF EVIDENCE OF BAD CHARACTER

In general five arguments for exclusion has been identified:

That it carries little probative value;

It detracts from the merits of the case;

Prior misconduct acts as a handicap to the accused;

It undermines individual autonomy at every point in life;

Such exclusion is a ‘senseless product of history’.

Related to the aforementioned grounds is the issue of flawed reasoning. Phipson argues that

using character evidence compels employment of an ‘impermissible or forbidden mode of

reasoning’. The mere fact that the accused had acted in a certain manner, or possessed a state

of mind previously is insufficient to establish liability in the case at hand. In any matter, as a

rule, only that evidence which directly confronts the issues at hand is admissible. Further,

character evidence mostly flows out of hearsay. Based on this remoteness of reasoning,

character evidence is excluded.

Evidence of bad character, by its very nature, is of a kind that projects the accused in bad

light, reprehensible to the conscience of the judge/jurors. In that case, the law casts a

presumption of prejudice. Consequently, introduction of bad character of accused as evidence

carries the undeniable threat of conviction based purely on a tendency of misconduct.

Alternatively, conviction may be an act of vindication, wherein punishment is afflicted in the

case at hand, rooted in the belief that accused would have escaped punishment on a previous

occasion. These situations Wigmore labels as those affording undue prejudice to the accused.

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It is submitted that such prejudice, by placing undue reliance on the character of the accused,

may even have the devastating effect of undermining the presumption of innocence.

The issue of undue surprise is equally demonstrative of the pitfalls of admission of bad

character evidence. It is considered unjust to present the judge with overwhelming evidence

of prior misconduct, which the accused is unprepared to defend, and has adverse

consequences on the future of the accused as well.

Next, evidence of bad character is, at best, peripheral to the main issue. Therefore, attaching

undue relevance to such evidence leads to a confusion of the issues at hand, and necessarily

detracts attention from the main issues that require determination.

Thus, even if character evidence be logically relevant in establishing a high likelihood of

commission of an offence, or explaining the conduct of a person, it is excluded on public

policy considerations. It is to prevent matters of prejudice, undue surprise and inconvenience,

and detraction from the main issues, that character evidence is inadmissible. With such perils

associated with the system, unwarranted prolongation of litigation is inevitable. Further,

prevailing system of criminal jurisprudence emphasizes rights of accused persons, in the light

of which such prejudice is remarkably unwanted.

The general exclusion of evidence of character is based upon the 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 come into court prepared to defend.7 “In certain circumstances,

evidence of reputation is admissible for the purpose of establishing a person’s good or bad

character. The admission of evidence of reputation is now largely confined to defamation

action, where what is relevant will depend upon the terms of the pleadings. Where damages

are at large, the bad character of the plaintiff in such action may be proved in chief, in

mitigation of damages, irrespective of the right to cross examine. “Exclusion of evidence of

character is bases on the principle of law, that the evidence adduced should be alike, directed

and confined to the matter are dispute, or which form the subject matter of the trail”.8 “To

admit evidence in every case, or to reject it is every case, would be equally fatal to justice;

7 Queen v. Rewton, (1865) 34 LJ (MC) 57.

8 BEST ON EVIDENCE (8

TH ED.), § 251 , P. 241

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that to draw a line or to define with precision where it ought to be received and where it

ought to be rejected.”9

“Evidence of character is , generally speaking a makeweight, though there are two classes of

cases of case in which it is highly important :

1. Where conduct is equivocal, or even presumably criminal. In these cases, evidence of

character may explain conduct and rebut the presumption which it might raise in the

absence of any such evidence. A man is found in possession of a stolen property. He

says, he found them and took them in possession to give them to the owner. If he is a

man of high reputation it may be believed.

2. Where a charge rests on direct testimony of a single witness and on the bare denial of

it by the person charged. A man is accused of an indecent assault by a woman with

whom he was accidentally left alone. He denies it. Here a high character for morality

on the part of the accused would be of great importance.”10

9 BEST ON EVIDENCE (8

TH ED.)., § 256 , P. 245

10 STEPHEN ON EVIDENCE P. 167 , 168

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EVIDENCE OF BAD CHARACTER NOT RELEVANT

Evidence of bad character of the accused person (of whose bad character evidence has not

been given) is not relevant under this section, for the purpose of raising a general inference

that the accused is likely to have committed the offence. Such evidence is irrelevant and

cannot be legally admitted in evidence whether elicited by the prosecutor or by the defense.11

In criminal cases bad character of the accused is irrelevant unless evidence was given that he

was of bad character.12

The description of the accused as a law-breaker amounts to evidence

of character. The Supreme Court excludes it.13

A man’s guilt is to be established by way of

proof of facts alleged and not by evidence of his bad character; such evidence might create

prejudice but not lead a step towards substantiation of guilt.14

In a case, where the accused

caused the death of a person, when the deceased tried to rape her, it was held that she was

entitled for an acquittal as she had every right to save her honor even by causing death, under

self-defense, and her alleged immoral character is of no consequences.15

“It is not, in general,

permissible, in a criminal proceeding, for the prosecution to adduce evidence that the accused

either bears a bad general reputation in the community, or has a natural deposition to commit

crime of the class charged. The accused, nevertheless, is permitted to adduce evidence of his

good character; and if he thus puts his character is issue, the prosecution may attack it.”16

If a

man has been punished for his previous crime, it is manifestly unfair that in every future trail

his previous conviction should be raked up.17

In criminal trial, to prove that the accused

committed the offence charged, evidence may not be given on either of these

circumstances18

:

1. When he bore a bad reputation in the community

2. Has a disposition to commit crime of that kind or;

3. Had no other occasion committed particular acts of the same class evincing such a

disposition?

11

M. Myir v. Kign Emperor , (1908) 5 LBR ; Emperor v. Gangaram. (1920) 22 Bom LR 1274. 12

Ramlakhan Singh v. State of U.P., AIR 1977 SC 1936; Shyama Charam Sriramsaran v. State, AIR 1969 All 61; Eswarappa v. State of Karnataka, (1977) 1 Kant LJ 52; Chacko v. State, 1970 ker LT 358: 1970 Ker LJ 193. 13

Supra note 16 14

Amrita Lal Hazra v. Emperor, ILR (1915) 42 Cal 957. 15

State of Orissa v. Nirupama Panda, 1989 CrLJ 621 (ORI). 16

HALSBURY ON EVIDENCE (4TH

ED.) PARA 51 P 38 17

PHIPSON ON EVIDENCE (13TH

ED.) (PARA 13-07). 18

Supra note 21.

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At common law, evidence in rebutted must be of same kind and subject to the same limit as

that to which it is an answer, i.e. it must not relate to specific instances and must relate to the

general reputation of the accused.19

Where the bad character is not in issue, the constant reference to the accused as a goonda, is

entirely irrelevant, and if it is allowed, it is bound to adversely affect the accused so far as the

charge against him is concerned.20

To call the accused a goonda is surely prejudicing the

jury against him. If the court pointedly drew the jury attention pf the jury in summing up the

case at more than once place that the accused was a goonda the jury’s verdict is vitiated.21

The history sheet of the accused kept in police station, is not admissible is proof of a man’s

character, as it based on hearsay.22

It is the court’s paramount duty to see that inadmissible

evidence, especially about the previous bad character of the accused is not brought out, even

though; the defense lawyer may have overlooked the rule of evidence on this subject.23

The Privy Council dealt with a case where couple was tried and charged with the offence of

murder of an infant child whose body was found buried in the garden. There was no evidence

that either the husband or the wife has killed the child. Before the Trail Court, evidence of

finding bodies other than that of the child was given beside the evidence of others who had

entrusted their children to that couple in the past and the children were thereafter not heard

of. The Privy Council observed “It 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 the accused

is person likely from his previous criminal conduct to have committed the offence for which

he is being tried. On the other hand, the mere fact that the evidence adduced tends to show

the commission of other crimes does not render inadmissible, if it be relevant to an issue

before the jury, and it may be so relevant if it bears upon the question whether the acts

alleged to constitute the crime charged in the indictment were designed or accidental, or to

rebut a defense which would otherwise be opened to the accused.”24

19

PHIPSON ON EVIDENCE (13TH

ED.) (PARA 13-17). 20

Nimoo Pal Majumdar v. State, 1955 Cal 559. 21

Babulal v. State, AIR 1959 Cal 693. 22

Kamal Kanto V State AIR 1959 Cal 342. 23

Kandur Kasta v. State, (1962) 28 Cut. L.T. 185 24

Makin V. Attorney General New South Wales, (1894) A.C. 57,

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Accepting the principle of Makin’s case Supreme Court said “It is well settled that the

evidence in rebuttal of a very likely and probable defense on the question of intention can be

let in by the prosecution as a part of its case. To anticipate a likely defense in such a case, and

to give evidence in rebuttal of such defense, is in substance nothing more than the letting in

of the evidence by the prosecution of the requisite criminal intention beyond reasonable

doubt.”25

Prima facie section 54 cannot be given overridden effect; the section itself is not so

worded as to be directly contradictory to section 7, 8, 9, 11, 14, and 15. What is made

inadmissible is the evidence of bad character…..If the evidence of bad character is relevant

under section 14 and 15, merely because it might show previous misconduct of the accused; it

is not inadmissible because of section 54. In other words section 54 would not control other

sections.”26

Where the question is about the dishonest intention of the accused, it was held that the

previous judgment convicting the accused for the same offence is relevant and admissible to

prove such an intention.27

25

AIR 1957 SC 747 26

Lakmandas v. State AIR 1968 Bom 400. 27

Mohan Singh v.. Gopal Singh, AIR 1961 Mani 43 : (1961) 2 CrLJ 787.

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OTHERWISE RELEVANT

Character evidence is also admissible when it is relevant under the provisions of the Act,

from ss.6-55. This evidence will not be held inadmissible merely because it incidentally

comments on the bad character of the accused. For instance, evidence to indicate state of

mind of the accused, or motive behind an offence, relevant under ss.14 and 8 respectively are

admissible, regardless of their prejudicial effect. In such case, this exception strictly follows

the rule of relevance argued above.

This rule was discussed at length in the case of Lakshmandas. Overruling the contention of

the defense that s.54 permeates through the entire Act, and therefore no evidence may be

adduced to any purpose in case it shows the accused to be of bad character, the Court held

that other provisions of the Act are not ‘controlled’ by s.54. Any fact, otherwise relevant, is

not rendered inadmissible only by virtue of showing the bad character of the accused.

This seems justified since in such cases, evidence is adduced not of the bad character of the

accused, but as facts indicating motive or subsequent conduct, of which bad character is

merely incidental. Such evidence is not of the kind that shows only character and nothing

else, but presents significant links to prove or disproves the commission of the offence.

If evidence otherwise relevant, it is not rendered inadmissible under this section, merely

because it shows bad character or the commission of the offence other than the offence with

which the accused is charged.28

28

Saroj Kumar Chakrabarti v. Emperor, ILR (1932) 59 Cal 1361 : AIR 1932 Cal 474

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BAD CHARACTER, A FACT IN ISSUE

Evidence on bad character is admissible where the character of the accused is itself in issue.29

Evidence of reputation or disposition must be confined to the particular traits which the

charge is concerned about. Thus it would be useless to offer evidence of a prisoner’s

reputation for honesty on a charge of cruelty, or of his mind disposition on a charge of theft.

Reputation for honesty would be relevant on a charge of theft, and a merciful disposition on a

charge of cruelty.30

“Before an issue can be said to be raised, which will permit the

introduction of evidence obviously prejudicial to the accused, it must have been raised in

substance, and the issue so raised must be one to which the prejudicial evidence is relevant.

The prosecution cannot credit the accused with fancy defense, in order to rebut them at the

outset with some damning piece of prejudice. If the evidence of bad character is introduced in

order to establish a relevant fact which cannot be proved aliunde, then the evidence is

admissible.” 31

In cases binding over proceeding u/s 109, 110, Cr.P.C., the fact that a person is a habitual

offender u/s 116, Cr.P.C has to be proved. The general reputation of the person involved is

such proceeding u/s 110, Cr.P.C. can be allowed.32

In a charge u/s 400 of IPC., it must be

established:

1. That there was a gang associated for the purpose of habitually committing dacoity;

and

2. That the accused belonged to the gang, that is to say, the association of the accised

with gang was not causal but was intended to be habitual. Hence, “habit” is a fact in

issue, to be proved of the offence and is equivalent to character, it may be reasonably

said that the character of the accused is itself a fact in issue for proving the charges.33

In cases of defamation, the reputation is not at all necessary fact to be proved in a charge u/s

500 of IPC, and hence it does not become a fact in issue.34

29

Khilawan v. Emperor, 29 Cr.LJ 1009: AIR 1928 Oudh 430. See also Prithvi Singh v. State of U.P., 2001 CrLJ 4424. 30

Gopal v. The Crown, AIR 1950 HP 18. 31

Noor Mohammad v. King., 1949 P.C. 161. 32

In re : Pernne Maila Rai, AIR 1938 Mad 591. 33

Bhima Shaw v. State, AIR 1956 Ori 177. 34

Devbrata Shastry v. Krishna Ballabh, AIR 1954 pat 84.

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PREVIOUS CONVICTION RELEVANT AS EVIDENCE OF BAD CHARACTER

A previous conviction is not admissible in evidence against the accused, except where he is

liable to enhanced punishment u/s 75 of IPC, on account of previous conviction, or unless of

good character is given, in which case the fact that the accused has been previously convicted

of an offence is admissible as evidence of bad character.35

It may also become relevant within

the meaning of S. 14, Examination 2, when the existence of any state of mind, or body, or

bodily feeling, is in issue.36

Only after conviction of the accused, the charge for the previous

conviction has to be framed for giving enhanced punishment.37

In such cases, the prosecution

has to prove the previous conviction of the accused.38

35

Emperor v. Duming, (1903) 5 Bom LR 1034 ; Teka Ahir v. The King Emperor, (1920) 5 CrLJ 706. 36

Emperor v. Alloomiya, (1903) 5 Bom LR 805 37

In re: Kamya , AIR 1960 AP 490 38

Supra note 41

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CONCLUSION

Through the course of this paper, it was observed that character evidence may be adduced in

two forms: either as evidence of character per se, or as evidence to resolve another issue in

determination. An example of the former is to emphasize the good nature of a respectable

man in society, thereby imputing improbability of commission of an offence by him. While

evidence of this kind is normally admissible, character evidence per se which projects the

accused in bad light is inadmissible. This standard rule is perceivably subject to five

exceptions. Bad character of the accused/defendant may be adduced in rebuttal when he/she

adduces his/her good character. It may also be introduced when the character itself is in issue,

or for the determination of damages. Evidence of bad character may also be incidental, while

attempting identification of person or design, or as part of another relevant fact.

It is thus possible to divide the above situations in two categories: first, in which resolving the

character question is not important, and the second in which character evidence is pertinent

for the disposal of case, The crucial distinction lies in the relevance of the latter and the

irrelevance of the former as facts presented before the Court. The example quoted above,

along with the first exception, falls in the first category, while the remaining four fall in the

second category. Based on this categorization, it is possible to conclude that whenever

evidence is adduced to prove only the bad character of the accused, it is inadmissible, subject

to one exception, of admissibility in rebuttal. All other scenarios grant the status of relevance

to evidence of bad character, either as the substance in issue directly, or as incidental to

another relevant fact. Such evidence is not evidence of character, as much as evidence to

resolve the issues at hand. Thus, when bad character evidence proves something more than

just character, it is admissible.

It was further submitted that while evaluating admissibility of character evidence, contrary to

the prevailing Common Law test of probative versus prejudicial value, the simple test of

relevance must be employed. This is because, inter alia, prejudice being merely incidental

when a fact is relevant, it must not be allowed to trump its probative value which is crucial to

the determination of the issue.

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BIBLIOGRAPHY:

BOOKS:

WIGMORE ON EVIDENCE

WEBSTER ON EVIDENCE

WOODROFFE AND AMEER ALI’S EVIDENCE, 10TH

EDITION. VOLUME II

BEST ON EVIDENCE 8TH

EDITION

STEPHEN ON EVIDENCE

HALSBURY ON EVIDENCE 4TH EDITION