9. Suppression of Evidence

In respect of this crime as also in respect of the crime of false accusation and false testimony, a time honoured precaution which the English Common Law of Evidence imposed in prosecutions for perjury and which the Perjury Act, 1911, perpetuated, is also contained in our Code. By Sec. 635 no person can be convicted of false accusation, false testimony or perjury on the bare testimony of a single witness contradicting the fact previously stated on oath by the accused. Otherwise, there would be but one man’s oath against another's, the statement originally sworn to by the accused and, on the other hand, the contradiction of it now sworn to by the witness for the prosecution. But it is sufficient if the evidence of the single witness is confirmed in some fact material to establish the alleged crime by other evidence duly adduced.

9. Suppression of Evidence

Section 110 lays down:

“Whosoever shall hinder any person from giving the necessary information or evidence in any civil or criminal proceedings, or to or before any competent authority, shall, on conviction, be liable to imprisonment for a term from four months to one year or to a fine (multa).

(ii) Whosoever, in any case not otherwise provided for in this Code, shall knowingly suppress, or in any other manner destroy or alter the traces of, or any circumstantial evidence relating to an offence, shall, on conviction, be liable -

(a) if the offence is a crime liable to a punishment not less than that of hard labour or imprisonment for a term of one year, to the punishment laid down in subsection (i) of this section,

(b) in the case of any other offence, to imprisonment for a term not exceeding three months or to detention or to a fine (ammenda) of not less than one pound.

As Jameson pointed out159:

“The administration of justice may also be obstructed and the interests of individuals injured by the suppression of evidence as well as by its fabrication. The Criminal

159 Report, pg. 86

Courts in some countries have been in use to punish this offence as contempt of judicial authority but it seems more proper to include the offence underneath the head of obstructions to the public administration, than leave it to the unknown and ambiguous class of contempt."

The first species of this offence consists in deterring a person from coming forward to give the necessary information or evidence in a civil or criminal cause or to the competent authority.

“Egli e’ evidente”, Falzon wrote concerning this offence, che tra i principali requisiti di questo reato sia la coazione fisica o morale di una persona a non dare la necessaria prova in una causa, dimodochà risultando non esservi stato un atto bastevole ad iraperdire la prova o non essendo neccessaria la prova che si volesse impedire per la giusta definizione della causa sia civile che criminale, non ci ‘sara’ luogo a procedimento per tale reato"160 .

The second species of the same offence consists in knowingly suppressing, destroying or altering the traces or the factual evidence of an offence. This offence is a variety of that known in Italian law under the name of "Favoreggiamento". The provision dealing with this offence in our Code as amended in 1909 literally corresponds to part of art. 225 of the Italian Code of 1889.

This offence arises when the fact does not constitute some other offence under other provisions of the Code. In fact, the suppression or destruction of the evidence of an offence may be, for instance, in pursuance of a promise given by the agent to the principal offender previous to the commission of the offence, in which case we would have an act of complicity in the principal offence, also, the suppression of the evidence may consist in the concealing of the body of a person whose death was caused by a crime: in which case the provision which would be applicable would be sec. 253 (Notice the anomaly in the punishment there prescribed as compared with the punishment prescribed in sec. 110).

The subject of this offence can, according to the said Sec. 110 of our Code, be "Whosoever", that is any person but according to the best accepted authorities this generalisation does not include the parties themselves to the principal offence. In other

160 Op. cit., pg. 238

words, if a person who has himself committed an offence, suppresses or destroys the traces or evidence thereof he would not be guilty also of this further offence: his action in any such case would but be a continuation of his principal offence161 .

There need not be, to constitute this offence, any agreement with the principal offender.

"Può, infatti darsi aiuto ad alcuno senza intendersela con lui, per un impulso tutto subitaneo o per un concerto preso con parenti od amici del carcerato: anzi spessissimo accade che arrestato improvvisamente qualcuno, gli amici accorrono a visitare la sua camera per sottrarne carte o armi o altri oggetti compromettenti: e in questi atti vi sono gli elementi tutti del favoreggiamento”162 .

Indeed, in our law it does not seem even necessary that the agent shall have the idea or the desire to help the principal offender or other particular person. The mere suppression or destruction or alternation of the traces or material evidence of the offence is sufficient to constitute the offence.

But such suppression, etc. must be done knowingly that is to say the agent must have full consciousness that an offence has been committed, whether or not he knows who is the particular offender, and he does the act not by mistake or ignorance or through negligence but intentionally to obstruct or frustrate the action of Justice. And the offence is complete without requiring that the officer of justice should have been in fact deceived or put off. The mere possibility, of such injury to the administration of justice is sufficient.

But it does not follow, according to Carrara, that this offence is always a formal offence and does not therefore admit of an attempt. The ultimate result desired or hoped for by the agent will not be necessary: but the completion of the fact constituting the material element of the offence is necessary. Therefore, a person who, with the requisite intent, conceals the dagger with which the murder was committed, and which was left on the spot, is guilty of the complete offence of suppression of evidence, even though such dagger is soon afterwards discovered by the police Officers, who could apprehend the murderer in spite of the act of the said, person. But if that person is

161 v. Carrara "Opuscoli di Diritto Penale" Vol. VII, pp. 48 & 49; Impallomeni op. cit., Vol. II pg. 283 162 Carrara, Opuscoli, Vol. III, pg. 54