[I.] ABSTRACT
This article is divided into four parts. The first part deals with the question “what are character, reputation and disposition & relations between them. Character includes both reputation and disposition. What is thought of a person by others is ‘reputation’. It is constituted by public opinion. ‘Disposition’ denotes the whole frame and texture of mind and the springs and motives of actions.The second part deals with the relevancy of character evidence in civil cases.Character cannot be a factor to establish that what is did or what is not did by a party in civil actions. The exclusion of evidence of character of a party as a basis of inference as to his conduct is practically absolute in civil cases. The third part deals with the relevancy of character evidence in criminal cases. In criminal proceedings the accused may adduce the evidence of good character, as testimony, probably, to induce to the doubt whether the other evidence is correct, and not to discard that evidence brought by other side. Last but not least, the fourth part analyse the confinement of evidence of character produced as only of a general reputation and general disposition, not of particular acts by which reputation or disposition were shown. It also analyse exceptions to this rule,where the other evidence establish association for the purpose of habitually committing theft. Previous conviction as a particular trait of bad character, not as an evidence of character but as an evidence of habit is relevantin such offences.
[II.] CHARACTER, REPUTATION & DISPOSITION
Character – Character is a combination of the peculiar qualities impressed by nature or by habits of aperson, which distinguish him from others.[1]The evidence of character relates either (a) to character of witness, or (b) to character of parties. Character as to relevant to the parties to the suit has been defined under explanation of the section 55 of the Indian evidence Act, 1872, it includes both reputation and disposition. ‘It is a combination of quality distinguishing a person, the individuality of which is the product of nature, habits and environment.’[2]‘Is a man honest, is he good natured, is he of a violent temper, is he modest or retiring or imprudent and forward. These all constitute traits of character.[3]
Good Character – A person having uniformly pursued an honest and upright course of conduct is known as a person of good character. It is proved as a general rule by the common observation and experience. It creates a general rule of presumption against the commission of crime. It is common experience and observation that, it is improbable that such man will depart from its conduct and do an act inconsistent with it. Such a person may be overcome by temptation and fall into crime, and cases of that kind may occur.
Bad Character – The meaning of bad character was explained in an Australian case[4]. The question was whether this evidence tended to show that he was of bad character. The Court said; “The expression bad character in relation to a witness has no technical or legal meaning. Bad character may be regarded as contrary of good character. But as a separate or independent fact or matter it can be proved on a criminal trial only in answer to answer adduced of the accused’s good character.” It is excluded as matter of policy and humanity to arrive at justice.
Reputation – ‘Reputation’ means what is thought of a person by others and is constituted by public opinion. It is the general credit which a man has obtained in that opinion. Reputation does not include character, as a man with good reputation may be of bad character and vice versa. Explaining the difference between character and reputation Lord Denning has observed that, “a man’s character, it is sometimes said, is what he in fact is whereashis reputation is what other people think he is.” When the character of a party or of a witness is to be evidenced by the reputation, the reputation must itself be proved by a witness qualified by an opportunity to obtain knowledge of it[5]. The principle is that a witness must expressly appear to have had the means of knowledge, before his testimony can proceed.[6] The knowledge must be based on residence in the place of repute, not on mere inquiry. It is the sum of all that is said or not said for or against him. Admissible evidence must be build up in the neighbourhood of a man’s domicile or in the circle where his livelihood is followed it is of slow formation[7], not by a mere visit of inquiry. Evidence of those, who do not know the man but have heard of the reputation, is inadmissible hearsay evidence[8].
Disposition – Disposition implies the whole frame and texture of the mind and comprehends the springs and motives of the actions. It issettled and permanent. Disposition is the own personal experience and observation or own individual opinion of a man about the accused. If an accused is charged with theft, a witness to character might be asked to either (1) what was the general reputation of the accused for honesty, or (2) was the accused generally of an honest disposition?The witness would answer the first question from what was generally known about the accused in the vicinity where he lived. But he would answer the second question from his own personal knowledge of the accused. The first answer is the reputation and the second one is the disposition.
[III.]RELEVANCY OF CHARACTER EVIDENCE IN CIVIL CASES
In civil cases to prove the probability or improbability of any conduct imputed to party, evidence of the character of any party to the suitis irrelevant[9]. The main principle behind the exclusion is that the business of Court is to try the case, and not the man; and a very bad man may have a righteous cause. This provision does not affect the following two exceptional civil proceedings-
1.Evidence of character is of substance in issue – When the character is of the substance in issue[10], Although no evidence can be given as to character of a party to a suit yet the Court may form its own conclusion as to the character of a party to a suit as exhibited from by the relevant facts proved in the case. The court is competent to draw, from the opinion it has so formed about the character of a party, an inference that he might probably have been guilty of the conduct imputed to him or that he might not be worthy of credit.
- Evidence of character as affecting damages –In civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant[11]. Definitely, here the person is the plaintiff and the character of plaintiff become relevant. In Scott v. Sampson[12], a journalist had sued a women drama artist who had said that he was abusing his position as a journalist for making money. Cave J. said: “he complains of an injury to his reputation, and seeks to recover damages for that injury, and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is a man of no reputation. To deny this would be to decide that a man of the worst character is entitled to the same measures of damages with one of unsullied and unblemished reputation. ………knowledge of the parties previous character is not only material, but also seems to be absolutely essential.”
[IV.] RELEVANCY OF CHARACTEREVIDENCEIN CRIMINAL CASES
Character evidence in criminal cases cannot outweigh positive evidence and consequently it is considered to be very weak evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused[13]. Evidence of character in criminal proceedings is either of the good character or the bad character.Good character evidence is relevant in criminal proceedings[14] and an accused may give evidence of his character to prove the innocence. Whereas the evidence of bad character is irrelevant in criminal cases for the purpose of raising a general inference that the accused is likely to have committed the offences charged. Such evidence is irrelevant and cannot be legally admitted in evidence whether elicited by the prosecution or by the defence[15]. A man’s guilt is to be established by proof of the facts alleged and not by proof of his character; such evidence might create prejudice but not lead a step towards substantiation of guilt.[16]
[IV.I.]RELEVANCY OF GOOD CHARACTER EVIDENCE IN CRIMINAL CASES
In criminal proceedings good character of the person accused is relevant[17]. In Habeeb Mohammad v. State of Hyderabad[18], it has been held that ‘in criminalproceedings a man’s character is often a matter of importance in explaining his conduct and injudging his innocence or criminality.’The principle upon which good character may be proved is that it affords a presumption against the commission of crime. Theimprobability, as a general rule as proved by common observation and experience, that a man who has uniformly pursued an honest and upright course of conduct will depart from itand do an act so inconsistent with it, creates such a presumption[19]. Such a person may be overcome by temptation and fall into crime, and cases of that kind occur; but they are exceptions. Dixon CJ in Attwood v. R.[20], explains on evidence of good character called on behalf of the defendant, “if the evidence which goes to the is sufficiently strong to convince you that the act of criminality which is imputed the accused was actually committed, then it is no more than weighting probability against the fact. If the scale are hanging even, and you feel a doubt whether the party is guilt or not of the act charged against him, then undoubtedly you will give him the full benefit of such testimony of general character which he may have earned by his previous conduct in life. You are to weight it not as direct evidence in the case, not as positive evidence contradicting any that has been brought on the other side, but as testimony, probably to induce you to doubt whether the other evidence is correct, and not to discard that evidence if you think it is so.”
[IV.II.]RELEVANCY OF BAD CHARACTER EVIDENCE IN CRIMINAL CASES
In criminal proceedings previous bad character is relevant in reply as against the good character. The fact that the accused person has a bad character is irrelevant[21]and cannot be proved for the purpose of raising a general inference that the accused is likely to have committed the offence charged, unless evidence has been given that he has a good character, in which case it becomes relevant.The basic principle behind exclusion is that, it is not excluded as irrelevant to prove of guilt, it is excluded as a matter of policy, policy deeply rooted in the principle. “The evidence is relevant to issue, but is excluded for reasons of policy and humanity; because although, by admitting it you might arrive at justice at in one case out of a hundred, you would probably do injustice in the other ninety- nine.[22]”
The prohibition does not in any way affect the evidences which is required in following four exceptional criminal proceedings–
1.To rebut the evidence of good character – where the accused has attempted to show his good character in his own aid under the section 54 of the Indian Evidence Act, 1872, the prosecution may in rebuttal offer evidence of his bad character. The accused gives a challenge to the prosecution by going into his own character. The prosecution, therefore, is at liberty to refute his claim that he has a good character; otherwise the Court would be misled. Where a murder accused had tendered no evidence to show that he was a person of good character, it was held that the prosecution could not be allowed to adduce evidence tending to show that he was a person of bad character[23].
- Evidence of bad character as a fact in issue– when bad character is in issue the evidence of bad character of accused can be given. Under section 110, Cr. P.C., 1973, if a person is by habit a robber, a house- breaker or is as desperate and dangerous as to render his being at large hazardous, the bad character came in issue. Under this section, the very character of the accused is in question and so the evidence to that effect is admissible. Therefore the evidence may be presented of particular trait of bad character which may be in issue.[24]
- Liability of enhanced punishment –In assessing punishment the Court may take into consideration the accused’s character and antecedents or the state of crime in the country or the locality[25]. A previous conviction is admissible in evidence against the accused where he is liable to enhanced punishment under section 75 of the Indian Penal Code, 1860,i.e.having been convicted of offences relating to coin and government stamps and of offences against the property is admissible as evidence of bad character.
- Showing motive and existence of any state of mind, or body, or bodily feeling – when previous conduct of any party influences or is influenced by any fact in issue or relevant fact constitutes motive is relevant for any fact in issue or relevant fact.[26]Previous conduct becomes relevant when the existence of any state of mind, or body or bodily feeling, is in issue or relevant[27]. When ‘A’ is charged with theft and with having been previously convicted of theft, the previous conviction is relevant as a fact in issue[28].
[V.] EVIDENCES OF GENERAL REPUTATION & OF PARTICULAR TRAIT
The principle is that the Evidence to be confined to general reputation and general disposition.Evidence of particular acts, as of honesty or benevolence or the like are not receivable. For it is improbable to presume that the party has uniformly pursued an honest and upright course of conduct will forfeit that character by commission of dishonest or cruel acts.
But in exceptional cases where the other evidence has established association for the purpose ofhabitually committing theft, evidence of previous convictions whether for offences against propertyor for bad livelihood, has always been admitted, not as evidence of character, but as evidence of habit[29]. It has been observed that; such evidence must of course be weighed. But there must be at least two or more cases against the same individual to show habit.. Impliedly, therefore, even in thiscase it was held that in the case Under Section 401, I.P.C evidence of bad character is not admissible;but it was held that in a case under section 401 I.P.C.previousconvictions may be admissible to prove habit of committing offences of theft because habit has to be proved. In cases under section 400 or 401 IPC the general badcharacter of the accused is not a fact in issue but only a particular trait of bad character namelyassociation with others for the purpose of habitually committing offences of dacoity or robbery ortheft. So, to prove thepurpose of association of the gang or habit of committing thefts, evidence can be given ofprevious conviction of other thefts, as given under explanation 2 to Section 54 of Evidence Act, 1872[30].
[VI.] CONCLUSION
Evidence of character involves technicality for its relevancy in civil and criminal cases. From a party’s character his liability cannot be presumed. So in civil cases party’s character is excluded to form the evidentiary fact.. But in criminal cases an accused may prove good character. A person uniformly pursued an honest and upright course of conduct may be overcome by temptation and fall into crime. Although it is weak evidence and may vary from case to case and cannot outweigh with the positive evidence in regard to guilt of person and the prosecution may rebut it with the evidence of bad character. Evidences of character must be in general but the cases where evidence of habit is adduced a particular trait of bad character may be given.
[1]Shakil Ahmed Khan, Ratanlal&Dhirajlal : The Law of Evidence, 387, ( 26th ed., Lexis Nexis, 2017).
[2]BatukLal, The Law of Evidence, 52,( 21st ed., Central Law Agency, 2016).
[3]Id.
[4]Attwood Re, (1960) 102 CLR 353.
[5]Shakil Ahmed Khan, supra note 1, at 393.
[6]Teese v. Huntington, 23 How.2 (1859).
[7]Shakil Ahmed Khan, supra note 1, at 563.
[8]BasoRao v. Emperor, AIR 1948, Patna 84 (India).
[9]The Indian Evidence Act, 1872, No. 01, Acts of Parliament, 1872 (India) § 53.
[10] L. Jagannath v. Ramchandra, AIR 1952 All. 408.
[11]Supra note 9, § 55.
[12](1882) 8 QBD 49.
[13]BhagwanSwarup v. State of Maharastra, AIR 1965 SC 682( India).
[14]Supra note 9, § 53.
[15]MiMiyan v. King- Emperor, (1908) 5 LBR 4.
[16] Amrita Lal Hazra v. Emperor, (1915) 42 Cal 957.
[17]Supra note 9, § 53.
[18]AIR 1954 SC 5.
[19]Shakil Ahmed Khan, Supra note 1, 387.
[20](1960) 102 CLR 353.
[21]Supra note 9, § 54.
[22] Attwood Re, (1960) 102 CLR 353.
[23]Prithvi Singh v. State of U.P., 2001 Cr LJ 4424 (All).
[24]Bai Chaturi v. State of Gujrat, AIR 1960 Guj 5.
[25]King Emperor v. Naga Ba Shein, (1928) 6 Ran 391 FB.
[26]Supra note 9, § 8.
[27] Emperor v. Alloomiya Husan, (1903) 28 Bom 129.
[28]Supra note 9, § 43, illustration ( e).
[29]Bonai v. Emperor, ILR 38 Cal 408.
[30]Emperor v. Tukaram Malhari, 14 Bom LR 373.
