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Indian Evidence Act, 1872

Indian Evidence Act, 1872
Indian Evidence Act (Introduction)

Meaning of Certain Key Terms
Facts
Law of evidence is all about the facts. Therefore, we must begin with the meaning of facts. Facts are defined by s. 3 of the Indian Evidence Act, 1872. According to s. 3,

Fact means and includes:

  1. Anything, state of things, or relation of things, capable of being perceived by the senses;
  2. Any mental condition of which any person is conscious.

 

  1. That there are certain objects arranged in a certain order in a certain place, is a fact.
  2. That a man heard or saw something, is a fact.
  3. That a man said certain words, is a fact.
  4. That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is, or was at a specified time conscious of a particular sensation, is a fact.
  5. That a man has certain reputation, is a fact.


From the reading of s. 3, it is clear that fact is anything which can be perceived by senses. Thus, anything which is claimed to be in existence will not be treated a fact within the meaning of s. 3 if it cannot be perceived by senses. S. 3 in defining a fact adopts a scientific approach as anything which cannot be seen, heard, touched or perceived by any other senses will not be treated a fact. The true meaning is that if the existence of anything cannot be publicly verified will not be treated as fact. Since, in a sense, evidence is nothing but a fact which is presented before a court in order to prove or disprove a fact in issue.

A further point to note in this context is that the definition of fact as given above does not only include physical facts but also mental conditions. Illustrations (d) & (e) are about psychological facts while illustration (a) to (c) are about physical facts. Under s. 3, the meaning of fact is not limited to physical facts i.e. tangible or visible things but also any mental condition of which any person is conscious.

Facts in Issue
Facts in issue means facts which are in dispute. In a suit or proceeding, normally one party alleges the existence of certain facts and the opposite party denies their existence. In this situation, such facts which are alleged by one party but denied by the other are called facts in issue. In other words, facts in issue are facts which are in issue or dispute. For example, where prosecution alleges that A committed murder of B. But A in his defence denies that he committed the murder. Therefore, the question—whether A committed murder of B or not is a fact in issue. Take another example, suppose A alleges before a court that B took money from him which he refuses to repay. But B denies that he borrowed any money from A. In this situation, the issue—whether or not B borrowed money from A will be fact in issue.

It is in this sense that the Evidence Act defines a fact in issue. S. 3 reads as follows:
The expression facts in issue means and includes—any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding necessarily follows.

Illustrations
A is accused of the murder of B.

At this trial the following facts may be in issue:
That A caused B's death;
That A intended to cause B's death;
That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B's death was, by reason of unsoundness of mind, incapable of knowing its nature.

Relevant Fact
According to s. 3, one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

Relevant facts are different from facts in issue. They are those facts which are not in issue but are connected with facts in issue. But the connection must be real or logical. In other words, it is not every kind of connection which makes a fact relevant. In order to be relevant, the fact in question must be logically connected with the fact in issue. For example, facts which are cause or effect of facts in issue will be treated relevant facts.

The meaning is that in the absence of the evidence of fact in issue, the fact in issue can be proved by the evidence of relevant fact. S. 5 of the Act categorically says that the fact in issue may be proved either by the evidence of fact in issue itself or by the evidence of relevant facts. The real importance of relevant facts is that where we do not have the evidence of fact in issue, we can present the evidence of relevant fact to prove the fact in issue. In fact, relevant facts are also known as the circumstantial or indirect evidence. Circumstantial evidence means the evidence of all the circumstances surrounding the facts in issue. But the Act does not use the terms circumstantial evidence or indirect evidence for the sake of clarity.

Under the Evidence Act, in order to be relevant a fact must be connected with a fact in issue in a manner referred to in ss. 6-55 of the Act. Thus, under the scheme of the Act, it is the legal relevancy of a fact, as opposed to the logical relevancy, which is adopted. Ss. 6-55 describe various situations under which a fact may be said to be connected with another so as to be treated as relevant under the Evidence Act.

Evidence
Evidence means and includes:

  1. all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
  2. all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.


According to the definition of evidence given under the Act, evidence consists of (a) oral testimony/statements to be made before the court; and (b) documentary evidence including electronic records. In this way, the definition does not cover what is called real evidence in certain jurisdictions. Real evidence means objects which are not documents. There may be many such things which are tangible objects but are not documents. For example, murder weapon, jewellery collected from the crime scene are certainly not documents and thus not covered by the definition of evidence, but they are real evidence which are taken into considered by the court.

Here, it may also be noted that although real evidence is not covered by the definition of evidence under the Act, this deficiency is compensated by the definition of proved which clearly says that a court, after considering the matters before it, decides whether a fact exist or does not exist.

Document
As already noted, a document is evidence under the Evidence Act. Hence, the definition of evidence is of key importance.
Document:
Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations
A writing is a document;
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.

Traditionally, document is understood to mean any information recorded on any substance including a piece of paper. But the important thing is that after the amendment of the definition of evidence by the information Technology Act, 2000 now electronic records are also document. The effect of the amendment is that now communication or storage of information through electronic or modern means such as through data messages are recognized by law as included within the scope of document.

Proved
Definition of proved is as follows:
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

The definition of proved may be contrasted with the definition of disproved or not proved given below.

Disproved:
A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not proved:
A fact is said not to be proved when it is neither proved nor disproved.

Section 4 of the Act deals with the meaning of three kinds of presumptions. Presumption of fact, referred to in the Act by the term, may presume; rebuttable and irrebuttable presumptions of law referred to in the Act by the term, shall presume and conclusive proof respectively.

4. May presume:
Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

Shall presume:
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

Conclusive proof:
When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Examples of presumption of fact are provided by ss. 114 and 113 A of the Act. See below.

Illustrations
The Court may presume:

  1. that a man who is in possession of stolen goods soon, after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
  2. that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
  3. that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
  4. that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
  5. that judicial and official acts have been regularly performed;
  6. that the common course of business has been followed in particular cases;
  7. that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
  8. that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
  9. that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:
as to illustration:

  1.  a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
    A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
  2. a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
  3. A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence;
  4.  it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
  5. a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
  6.  the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
  7. a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
  8. a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
  9. a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.


113A. Presumption as to abetment of suicide by a married woman:
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Examples of presumption of law are provided by ss. 79-85. 85 A. 85 B, 85 C and 113 B of the Act. Provisions of some of these sections are produced below:

79. Presumption as to genuineness of certified copies:
The Court shall presume 8 to be genuine every document purporting to be a certificate, certified copy or other document, which is by Law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer 9[of the Central Government or of a State Government, or by any officer 10 in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government:

113B. Presumption as to dowry death:
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

For conclusive proof, see the provision of s. 112 which is as follows:
112. Birth during marriage, conclusive proof of legitimacy:
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Relevancy of Facts
Section 5
Relevancy of facts are dealt with under ss. 5-55 of the Evidence Act. S. 5 declares that evidence may be given of fact in issue and all other facts declared relevant by ss. 6-55. S. 5 reads as under:
5. Evidence may be given of facts in issue and relevant facts:
Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation:
This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At As trial the following facts are in issue––
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.

S. 5 is the cornerstone of the chapter II dealing with relevancy of facts. According to this section, the fact in issue can be proved by either the evidence of fact in issue itself or relevant facts (dealt with by ss. 6-55). For example, where it is alleged that B was murdered by A and an eyewitness C appearing before the court clearly says that he saw A causing the death of B with the intention of causing death. Here, the C's oral testimony is an evidence of fact in issue (in this case, fact in issue is: whether A murdered B?).

But where there is no evidence of fact in issue, the fact in issue can be proved by producing before the court evidences of relevant facts. But when we do not have the evidence of fact in issue or the evidence of fact in issue is not sufficient, evidence may be given of facts which are declared relevant on the basis of the rules contained in ss. 6-55. S. 5 states:

Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Ss. 6-55
As already noted, in the absence of the evidence of fact in issue, the issue can be decided on the basis of relevant facts. Relevant facts are determined on the basis of the provisions of ss. 6-55. In other words, the question, when a fact is relevant or when it is not relevant, is to be decided on the basis of ss. 6-55. These sections enumerate various kinds of relationships between two facts on the basis of which one fact is declared relevant to another. Here, ss. 6-55 may broadly be divided into following categories.

  • Ss. 6-16 ( connected facts)
  • Ss. 17-39 ( relevancy of statements)
  • Ss. 40-44 (relevancy of judgments)
  • Ss. 45-51 (relevancy of opinions including expert opinions)
  • Ss. 52-55 (relevancy of character)


As shown above, ss. 6-16 make those facts relevant which are connected with one another in any of the ways refereed to in these sections. For example, facts which are related to each other in a manner that one fact is cause of another fact or one fact is the effect of another fact. Similarly, facts which are explanatory or introductory to a fact in issue or relevant facts, facts which support or rebut the inference drawn from a fact in issue or relevant fact, facts which establish the identity of a thing or person, facts which fix time and place for happening of a fact in issue or relevant fact and finally, facts which show the relationship between the parties to a transaction are declared relevant under s. 9 of the Act.

As a further example of the relationship between facts to make them relevant the provision of s. 11 may be cited. According to s. 11, facts which are not otherwise relevant are relevant:

  1. if they are inconsistent with any fact in issue or relevant fact;
  2. if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.


S. 6 Facts forming part of the same transaction
6. Relevancy of facts forming part of same transaction- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations:

  1. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
  2. A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
  3. A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
  4. The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
    According to s. 6, facts which are not in issue become relevant when they are connected with a fact in issue in such a manner that they form part of the same transaction of which the fact in issue is a part. In other words, where a transaction consists of several facts and one of those facts is facts in issue, then, all other facts which are part of the same transaction become relevant. Illustrations attached this section clearly bring home the point.

Thus, all facts which are contemporary to the facts in issue or which occur so shortly before or after the fact in issue so as to be taken as part of the same transaction are relevant under s. 6 of the Act.

S. 6 is based on the principle that things said or done, which though not in issue, are relevant if the are said or done under the influence of the fact in issue. Here, illustration (a) is instructive.