Evidence Act 1872

Introduction
 Derived from the Latin word evidens or evidere,
which means - to show clearly;
to make clear to the sight;
to discover clearly;
to make plainly certain;
to ascertain; to prove”.
Basic principles of evidence
1. Evidence must be confined to the matter in issue;
2. Hearsay evidence must not be admitted; and
3. Best evidence must be given in all cases.
 The law of evidence is part of the law of procedure, i.e. the procedure
court has to follow.
 This is expressed by saying that it is law of the forum( or court) or the lex
fori.
 The law of evidence is the same in civil and criminal proceedings
 ,
TYPES OF EVIDENCE:
(a) Best and oral evidence,
(b) Circumstantial evidence,
(c) Direct evidence,
(d) Hearsay evidence,
(e) Corroborative evidence,
(f) Documentary evidence,
(g) Primary and secondary evidence,
(h) Real evidence
(a) Best and oral evidence: Sec.60 requires in oral evidence that person who
has actually perceived something by that sense by which it is capable of
perception, should make the statement about it and no one else.
If it refers to a fact which could be seen, it must be the evidence of a witness who
says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that
sense or in that manner;
If it refers to an opinions or to the grounds in which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds.
(b) Real evidence: Second proviso of Sec 60 – “Provided also that, If oral evidence
refers to the existence or condition of any material things other than a document,
the court may, if it thinks fit, require the production of such material thing for its
inspection.” For e.g. weapons, scar of wounds or other injury like loss of leg or hand.
(c) Circumstantial evidence:
The evidence of circumstances and is sometimes referred to presumptive
evidence.
Illustration: A is charged with the murder of B. At the trial a witness C , on behalf of
the prosecution, gives evidence that he saw A running away from the murder
place, with blood stained knife in his hand, evidence given by C will be called
circumstantial evidence.
(d) Hearsay evidence:
 Testimony based on what a witness has heard from another person, of which
he has no personal knowledge or experience
 Unverified information acquired from another person, which is not part of
one’s own knowledge
 It is not admissible in court
The reasons why hearsay evidence is not admissible
(a) the person giving such evidence does not feel any responsibility.
(b) Truth is diluted and diminished with each repetition: and ,
(c ) if permitted, gives ample scope for playing fraud by saying,” some one told me
that..” It would be attaching importance to a false rumor flying from one foul lip
to another..
Corroborative evidence:
Sec 156 and 157 says: When a witness whom it is intended to corroborate gives
evidence of any relevant fact, he may be questioned as to any other
circumstances which he observed at place where such relevant fact occurred, if
the court is of opinion that such circumstances, if proved, would corroborate the
testimony of the witness as to the relevant fact which he testifies.
A sees B hit by a car and run over. The car does not stop but A notes the number He lodges
a complaint to police. Police arrests driver and put him for trial rash and negligent driving A
is the principle witness and when he gives oral evidence police shows complaint copy to him
and if he accept that complaint statement to be true, it is marked as exhibit, it is
corroborative evidence.
Documentary evidence:
Documents(paper) which has been deduced in writing and is presented in court
as an evidence during trial or hearing and is distinguished from oral testimony.
 When the document produced in the court, the court examines three things:
(i) is the document genuine,
(ii) what are its contents, and
(iii) are the statement in the document true?
 Documents are divided into two categories, public and private.
Public documents (Sec. 74)
(1) Document forming the acts or records of the acts-
of the sovereign authority
of official bodies and tribunal, and
of public officers, legislative, judicial and executive, of any part of India or of
the commonwealth, or of a foreign country;
(2) Public record kept in any State of private document. e.g. Registration
certificate, Will, Deed etc
(3) Certified copies of Public Documents (Sec. 76)
Private Documents (Sec. 75)
All other documents as provided under section 74 are private documents
Primary and secondary Evidence:
There is an original document; a photograph is taken and a manuscript is made
from the photograph, and compare either with the original or photograph. The
original is primary evidence. The photograph and copy is secondary evidence.
[Section 63(2)].
Section 63(2) requires that the first copy should have been made by a mechanical
process ensuring the accuracy of the copy.
Section 65 specifies in what cases secondary evidence will be received.
when a original is shown or appear to be in possession or power
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the court, or
of any person legally bound to produce it, and
when, after the notice mentioned in sec 66, such person does not produce it.
When the original document is lost or destroyed then secondary evidence of the
contents of the document is admissible.
Direct evidence:
Direct evidence is referred to sometimes as original.
A is charged with the murder of B by stabbing him. C,D.E,F,G and H are
witnesses. At the trial a witness C says he saw A stab B. D says he heard B
cry out that A was stabbing him. E says that A saw running with blood stained
knife. F says he saw A washing blood stained clothes. G, who is doctor says
that the knife found in A’s possession might be caused the wound. H says he
heard from C’s evidence is direct evidence
 Application of IEA, 1872
Section 1: Evidence Act
 whole of India except J&K
 To all judicial proceedings [Sec. 2(i)/CrPC in which court legally
authorise to take oath officially and its different from administrative
proceedings]
 Administrative Proceedings: An inquiry about the matter of fact
where there is no discretion to be exercised; no judgment to be
formed and there is duty to perform.
 Non judicial proceedings
 Where magistrate is not authorised to conduct inquiry
 Proceedings of preperation of inquest report by public officer
 Proceedings of conducting inquiry about any crime by district magistrate
 Proceedings u/s 176 CrPC (Inquiry by magistrate on cause of death or on
inquest report)
 Proceedings before Tribunals (Income, Service, Sales Tax Tribunal etc)
 Departmental & disciplinary proceedings [including contempt of Court
proceedings – Brijnandan Sinha vs Jyothi Narayan Air 1956 SC 66 –
Though the contempt proceedings are judicial in character but they are
outside the scope of Indian Evidence Act.]
 Court Martial Proceedings
excluding
 Army Act
 Indian Naval Disciplinary Act
 Indian Navy Act
 Air Force Avt,
 Does not apply
 To affidavits [not absolute rule
coz O19 R.1 / CPC (Power to order any point to be proved by affidavit)
provides that Any court may at any time for sufficient reason order
that any particular fact or facts may be proved by affidavit, or that
the affidavit of any witness may be read at the hearing on such
condition as the court thinks reasonable.
Provided that where it appears to the court that either party bona-
fide desires the production of witness for cross examination, and
that such witness can be produced, an order shall not be made
authorising the evidence of such witness to be given by affidavit.
 Proceedings before arbitrator
 Interpretation clause Section 3
Facts:
1) Any thing, state of things, or relation of things,
capable of being perceived by the senses.
2) Any mental condition of which any person is conscious
e.g. A has enmity for B
Illutration
a) That there are certain objects arranged in a certain order in a certain place, is
a fact.
b) That a man heard or saw something, is a fact.
c) That a man said certain words, is a fact.
d) That a man has a certain reputation, is a fact.
e) That a man holds a certain opinion is a fact.
f) Man has a certain intention is a fact.
g) Man acts in goods faith or acts fraudulently, or uses a particular word in a
particular sense, or is or was at a specified time conscious of a particulars
sensation, are all facts.
Relevant Fact
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. [Sections 5 - 55]
Section 5 – Evidence must be confined to Fact in Issue and Facts relevant to
fact in issue.
Facts in issue [Factum probandum – which is to be proved]
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.
Explanation.— Whenever, under the provisions of the law for the time being in
force relating to Civil Procedure, any Court records an issue of fact, the fact to
be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations A is accused of the murder of B.
At his 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.
Documents-
Means any matter expressed or described upon any substance by means of
letters, figures or marks or by more than one of those means used for
the purpose of recording that matter.
Illustration
A writing, words printed, lithographed or photographs, Map, plans, sketches,
engraving on metals or on stone etc are all documents.
Proved- After considering the matter the Court believes the facts to exist or
considers its existence so probable(most likely; expected) that a
normal man, under the circumstances of particular case assumes it to
exist.
Disproved- After considering the matter the Court believes that the facts do
not exist or considers its existence so probable that a normal man,
under the circumstances of particular case assumes it to not exist.
Not Proved- When a fact is neither proved nor disproved then it is said to be
not proved. [man of ordinary prudence neither believes that the fact exists
nor he believes that the fact does not exist.]
OF THE RELEVANCY OF FACTS

Sec-5: Evidence may be given of facts

in issue and relevant facts
Section 5:
• Evidence may be given in any suit or proceeding of the existence or 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”.
• ‘Relevant facts’ have been defined in s.3 & s.5 is a general section
declaring that evidence may be given of
• 1. the existence or non-existence of facts in issue and
• 2. of such other facts hereinafter declared to be relevant and of no others
• Item.1: points to facts which directly tend to prove or disprove any fact in
issue and
• Item.2: refers to collateral facts which are so inseparably connected with
the facts in issue that they indirectly and presumably tend to prove or
disprove any fact in issue
 of every fact in issue and of such other facts
• In any suit or proceeding evidence may be given to prove the existence or
non-existence of every fact in issue or of such other facts which are
declared to be relevant by some one or other of the remaining sections of
this chapter
• Facts relevant to the issue (res gestae) have been arranged in the Act in
the following manner:
1) Secs.6-16 deal with the relevancy of facts connected with the facts in
issue
2) Secs.17-31 deals with the relevancy of admissions and confessions
3) Secs.32-33 deal with the relevancy of statements made by persons
who cannot be called as witnesses
4) Secs.34-39 deal with the relevancy of statements made under special
circumstances
5) Secs.40-44 deal with the relevancy of judgments of the courts
6) Secs.45-51 deal with the relevancy of the opinions of witnesses
7) Secs.52-55 deal with the relevancy of character of the parties in civil
proceedings and of the accused in criminal proceedings
 and of no others
• “and of no others”- clearly preclude a litigant from proving any facts not in
issue, that is, any facts which are not the principal matters in dispute, or
which are not declared relevant by any of the remaining sections of the
chapter
• Thus it excludes all evidence of collateral facts, which are incapable of
affording any reasonable presumption as to the principle matters in
dispute; and the reason is, that such evidence tends needlessly to
consume the public time
 RES Gestae
Sec.6: Relevancy of facts forming a 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:
• Single transaction
• (a) 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 transaction, is a relevant fact
• Multiple transactions
• (b) 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 goals are broken open. The occurrence of these facts is
relevant, as forming part of general transaction, though A may not have
been present at all them
• (c) A sues B for libel contained in a letter forming part of 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.
• (d) 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

Comments:
• The doctrine of res gestae has been borrowed from English Law and
incorporated in Sec-6 of the Evidence Act
• Secs. 6, 7, 8 , 9 and 14 read together. They deal with the facts which are
relevant to the fact in issue
• Causes, Occasion and Effects [Sec 7]
• Motive [Sec 8]
• Identity [Sec 9]
• Intention [Sec 14]
• Stephen: transaction is a group of facts so connected together as to be
referred to by a single legal name, such as a crime, a contract, wrong or
any other subject of inquiry, which may be in issue
 Contd.
• Sec.6 is an exception to the rule of evidence that
hearsay evidence is not admissible
• TEST of applying the rule of res gestae:
1. The statement should be spontaneous and should form part of the same
transaction ruling out any possibility of concoction
2. Whether the statement made by a witness was a part of the same
transaction or not is to be considered in the light of the circumstances of
each case
3. The principle is that it should be so intimately connected with the fact in
issue as to be spontaneous utterance inspired by the excitement of the
occasion or a spontaneous reaction thereof, there being no opportunity
for deliberately fabricating the statement.
4. In other words, the statement which is a part of res gestae does not
narrate a past event, but it is the event itself speaking through a person
thus excluding the possibility of any design behind it
5. Statement must be a statement of fact and not an opinion
 Illustration
• So or shortly before or after it as to form part of the transaction:
• A person is in his room and he hears his servant crying out that A is killing
B. When the person rushes out B is unconscious and A has run away from
the scene; but his servant and others tell him what happened. He would
inform the police, who investigate, and finally bring A to trial for the
murder of B.
• If at the trial, the servant and others were not available as witnesses, but
the person who heard the cry is called as a witness, his evidence of what
he heard would be relevant under this section, though it is strictly hearsay.
That is because the cry of the servant was contemporaneous and
spontaneous with the event
• If in the same illustration no cry is heard by the witness, but he is told next
morning by his servant as to what happened, the witness will not be
allowed to give evidence in court, as to what his servant told him, because
it is hearsay and statement of the servant would not come under this
section, as it is not spontaneous one, because there was plenty of
opportunity for him to think it out
 Sukhar V state of UP, (1999) 9 SCC 507
• The victim was shot at by the
accused and he raised an alarm.
When a witness rushed to the
spot, the victim told him that it
was the accused who shot at him.
• The victim did not die so the
accused was charged with an
offence u/s.307 of IPC.
• However, during the pendency of
the trial, the victim died because
of some other cause
• On the question whether the
witness could give evidence of
what the victim told him
• It was held that, the statement
was almost contemporaneous
with the fact in issue and there
should not be any interval for
fabrication, so that it forms part
of the same transaction as the
fact in issue. Therefore, in this
case, the evidence of the witness
is admissible as res gestae
Gentela Vijayavardana Rao vs. State of AP, AIR 1996 SC 2791).
• The rationale in making certain statements on facts admissible under sec.
6 is on account of the spontaneity and immediacy of such statement, a
fact in relation to the fact in issue. But, it is necessary that such fact or
statement must be part of the same transaction.
• In other words, such statement must have been made
contemporaneously with the acts which constitute the offence or at least
immediately thereafter. But if there is an interval, however slight it may
be, which was sufficient enough for fabrication, then the statement is not
part of res gestae.
• Rattan Singh v State of H.P. AIR 1997 SC 768
• In this case A was charged for murder of B whose body was found in
courtyard. During victim identification eye witness statement that “the
appellant was standing with a gun and fired” are so intertwined with each
other by proximity of time and space that they formed the part of same
transaction and therefore relevant under Sec. 6.
 Sec.7 of Facts – Occasion, Cause or Effect of Fact in Issue
• Section 7:
• Facts which are the occasion, cause or effect of facts in issue.
• “Facts which are the occasion, cause or effect, immediate or
otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, or
which afforded an opportunity for their occurrence or
transaction, are relevant”.

Illustration
Illustration(a) indicates: of
facts which form the state
of things in which a fact in
issue, namely, that B was
robbed, happened
Illustration(b)indicates: of
facts which are the effects
of the fact in issue, namely,
that B died a violent death;
Illustration (c) shows how
facts which afford an
opportunity would be
relevant
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery B
went to a fair with money in his possession,
and that he showed it or mentioned the fact
that he had it, to third persons, are relevant.-
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle
at or near the place where the murder was
committed, are relevant facts.
(c) The question is, whether A poisoned B.
The state of B's health before the symptoms
ascribed to poison and habits of B, known to A,
which afforded an opportunity for the
administration of poison, are relevant facts.
 Comments
• The word “occasion” means cause as well as opportunity according to the
context
• Facts which constitute immediate cause and effect of the facts in issue,
constitute also part of the same transaction as the fact in issue
• Remote causes and effects of course do not form part of the same
transaction
• “Facts which constitute the state of things”-They are the circumstances in
which a fact in issue happened, and all such circumstances form a part of
the same transaction
• “facts which constitute opportunity”-They are also the circumstances in
which a fact in issue happened
• This section also makes relevant facts which are the
• Occasion,
• Cause, or
• effect of relevant fact, the state of things in which a relevant fact
happened, or
• Which afforded an opportunity for the happening of a relevant fact
 Cases
• Relevancy of Tape record
• The Supreme Court observed that, like a photograph of a relevant
incident, a contemporaneous tape record of a relevant conversation is a
relevant fact admissible under sec. 7 and 8.
• The imprint on the magnetic tape is the direct effect of the relevant
sources. Thus, if a statement is relevant, an accurate tape record of the
statement is also relevant and admissible (Yusuf Alli vs. State: AIR 1968 SC
147), R.M. Malkani vs. State AIR 1973 SC 157; Ziyauddin vs. Brijmohan, AIR
1975 SC 1788.
• R.M. Malkani vs. State of Mah. AIR 1973 157
• Tape recorded conversation is admissible, provided
first the conversation is relevant to the matters in issue,
secondly, there is identification of the voice by maker of record and
thirdly, the accuracy of the tape-recorded conversation is proved by
Fourthly, eliminating the possibility of erasing the tape-recorder.
• Ram Singh vs Ram Singh AIR 1996 SC 3
• Apart from above mentioned condition the record must be
a. Recorded in secure manner
b. Kept in sealed position in safe official custudy
c. Voice must be clear and audible
 Sec-8: motive or preparation and previous or
subsequent conduct
• “Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
• The conduct of any party, or of any agent to any party, to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any
fact in issue therein or relevant thereto, and the conduct of any person an
offence against whom is the subject of any proceeding, is relevant, if such
conduct influences or is influenced by any fact in issue or relevant fact,
and whether it was previous or subsequent thereto”

• Comments
• Motive is that which moves, or influences the mind
• Motive is that which moves or induces the mind to act in a certain way
• Motive is that which stimulates and incites an action, and it is altogether
different from intention
• A person’s intention in his decision to do or not to do a particular act; his
motive is his reason for forming that decision
• First step in every investigation: “Look for him whom the crime profits”
 Illustrations(motive)
• (a) “ A is tried for the • (b) “A sues B upon a
murder of B. bond for the payment
• The fact that A of money. B denies the
murdered C, that B making of the bond
knew that A had • The fact that, at the
murdered C, and that B time when the bond
had tried to extort was alleged to be made,
money from A by B required money for a
threatening to make his particular purpose, is
knowledge public, are relevant”- To show B
relevant-To show that A borrowed money and
committed the murder executed a bond
 Illustration(preparation)
• (c) “ A is tried for • (d) “ The question is,
whether a certain
the murder of B document is the will of A.
by poison • The facts that, not long
before the date of the
• The fact that, alleged will, A made enquiry
into matters to which the
before the death provision of the alleged will
of B, A procured relate, that he consulted
Advocates in reference to
poison similar to making the will, and that he
that which was caused drafts of other wills
to be prepared, of which he
administered to B, did not approve, are
is relevant relevant”
 Conduct
• A fact can be proved by conduct of a party and by
surrounding circumstances
• Statements accompanying or explaining conduct
are also relevant as evidence as conduct
• The production of articles by an accused person is
relevant as evidence of conduct
• The conversation over telephone for settling
details for passing bribe-money was recorded by
secret instruments. This was held to be evidence
of conduct. It matters not how you get it, if you
steal it even, it would be admissible in evidence
(Malkani V state of Maharashtra, AIR 1973 SC
157)
Conduct….Accused’s complaint and pointing out various places
(e) A is accused of a crime.
The facts that, either before or at the
time of, or after the alleged crime, A
provided evidence which would tend
to give to the facts of the case an
appearance favourable to himself, or
that he destroyed or concealed
evidence, or prevented the presence
or procured the absence of persons
who might have been witnessed, or
suborned persons to give false
evidence respecting it, are relevant
(i) A is accused of a crime
The facts that, after the commission
of the alleged crime, he absconded,
or was in possession of property or
the proceeds of property
acquired by the crime, or attempted
to conceal things which were or
might have been used in committing
it, are relevant.
 Conduct…Analysis of Illus.(e)&(i) along with Explanation(1)

• Explanation-I says that a mere statement is not relevant. But

if the statement accompanies and explains the acts other
than statement, such statements would be relevant.
• Statements which accompany and explain acts other than statements are
(i) complaints, and (ii) the accused pointing out to the police during
investigation various places connected with the crime
• The conduct of pointing out places would be relevant u/s.8, but u/s.162 of
the Cr.P.C, evidence of it would be inadmissible, because it is a statement
made to the police during investigation. [This is instance inadmissible
relevant fact]
• If, however, any fact is discovered as a result of such information given to
the police, the relevancy of such a statement is covered by s.27 of the Act
• If, however, any statement is in the form of confessional statement is
inadmissible by the operation of s.25 except those statements, which are
covered u/s.27
 Analysis of Illus..(j)&(k) along with Explanation(1)
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime,
the circumstances under which, and the terms in which, the complaint was made, are
relevant.
The fact that, without making a complaint, she said that she had been ravished is not
relevant as conduct under this section, though it may be relevant as a dying declaration
under section 32, clause (1), or as corroborative evidence under section 157.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to the offence,
the circumstances under which, and the terms in which, the complaint was made, are
relevant.
The fact that he said he had been robbed without making any complaint, is not relevant,
as conduct under this section, though it may be relevant as a dying declaration under
section 32, clause (1), or as corroborative evidence under section 157.
• If a person affected is available as a witness, it makes no difference whether the
statement is a mere statement or a complaint, and such statement or a complaint will
be used merely to corroborate
• If, however, the person affected is not available as a witness, then if his statement
amounts to complaint, it would be relevant by itself
• If it is a mere statement, it would not be relevant, unless it comes u/s.32(1)
 Illus..(f), (g) and (h) illustrates the Explanation.(2)
• Explanation 2: When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which affects
such conduct, is relevant.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence - "the police are
coming to look for the man who robbed B," and that immediately afterwards
A ran away, are relevant.
If the words “ sub-inspector was coming to arrest the murderer” was said to
A is not proved, merely saying that A ran away will be meaningless.
(g) The question is, whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D said to C in A's
presence and hearing - " I advise you not to trust A, for he owes B 10,000
rupees," and that A went away without making any answer, are relevant facts-
Silent may amount to conduct and thus become relevant
(h) The question is, whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry
was being made for the criminal, and the contents of the letter, are relevant.
 Lakshmi V state, 1959 ALJ 287
The accused was addicted to smoking ganja and taking wine. He used to make
demands from deceased chhote lal who was opposed to this habit and
would not accede to his request to advance him money to enable him to
indulge in these activities. A few days before the incidence the accused
had also beaten his mother and wife. At that time deceased had
intervened and prevented him from doing so. On the accused refusal the
deceased had chained him.
The accused had run away after breaking the chains. The accused stopped
speaking to chotelal that “I will see you”. (the facts shows motive of the
murder)
on the evening of 6th oct 1954, chotelal was sitting at his door on a chabutra.
The accused took a pharsa and proceeded towards chote lal. He began to
assault chote lal with the pharsa. Chote lal raised an alarm. A number of
persons reached the spot on hearing the cry. On the arrival of several
persons the accused fled away outside the village with the pharsa.(the
contents of this para were admitted as the conduct of the accused,
before the incident, at the time of the incident and after the incident)
At the trial the accused took the plea that he was of unsound mind at the
time of the incident. (this para were admissible as conduct of the accused
during the trial in reference to the proceedings)
 Sec-9 Facts necessary to explain or introduce
relevant facts

• 9. Facts necessary to explain or introduce relevant

facts:
 Facts necessary to explain or introduce a fact in issue or
relevant fact, or
 which support or rebut an inference suggested by a fact in
issue or relevant fact, or
 which establish the identity of any thing or person whose
identity is relevant, or
 fix the time or place at which any fact in issue or relevant fact
happened, or
 which show the relation of parties by whom any such fact
was transacted,
• are relevant in so far as they are necessary for that purpose
 Illustrations
1). Facts which explain a relevant fact would also be relevant
Illustration (c)
A is accused of a crime
• The fact that, soon after the commission of the crime, A absconded from
his house, is relevant under section 8, as conduct subsequent to and
affected by facts in issue.
• The fact that at the time when he left home he had sudden and urgent
business at the place to which he went, is relevant, as tending to explain
the fact that he left home suddenly.
• The details of the business on which he left are not relevant, except in so
far as they are necessary to show that the business was sudden and
urgent.
 Contd.
2). Facts which introduce a fact in issue
• Illustration (b)
• A sues B for a libel imputing disgraceful conduct to A; B affirms that the
matter alleged to be libellous is true.
• The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.
• The particulars of a dispute between A and B about a matter unconnected
with the alleged libel are irrelevant, though the fact that there was a
dispute may be relevant if it affected the relations between A and B.

3). Facts which support or rebut an inference suggested by the fact in

issue
• Illustration (a)
• (a) The question is, whether a given document is the will of A.
• The state of A's property and of his family at the date of the alleged will
may be relevant facts.
 Test Identification parade
4). Facts which establish the identity of any thing or person
whose identity is relevant, or

• Harnath Singh V state of M.P., AIR 1970 SC 1619:

Purpose: T.I parade during investigation is held for the purpose of enabling the
witnesses to identify the properties which are the subject-matter of the
offence or the persons who are concerned therein.
• Its objects is,
• (1) to satisfy the investigating authorities that a certain person not previously
known to the witnesses was involved in the commission of the crime or a
particular property was the subject-matter of the crime
• (2) to furnish evidence to corroborate the testimony which the witnesses
concerned tendered before the court
• Other objectives:
• The purpose of T.I parade is to test the veracity of a witness on the question of
capability of a witness to identify an unknown person whom the witness might
have seen only once
• To test the substantive evidence of identification in the box with reference to
corroborative evidence of T.I parade
 Procedures and precautions
• Hasib v state of Bihar, AIR 1972 SC 283: The value of the T.I parade depends on the
effectiveness of precautions taken to prevent the opportunity of seeing the suspects
and to prevent the investigating authority to adopt unfair means
• (a) T.I parade should be preferably held by a Magistrate
• (b) It should be held in the jail compound
• (c) Suspects should be mixed up with as many under trial prisoners/outsiders as
possible
• (d) U.T prisoners/Outsiders and suspects should be similarly dressed and should be
similar social status, age and religion
• (e) they should resemble in features
• (f) After each of identification by the identifying witness the order of suspects and U.T
prisoners/outsiders in the row should be changed
• (g) Other identifying witnesses should be kept in a place beyond the sight and hearing
of the witness identifying
• (h) After identification the witness should be and kept in a place beyond the sight and
hearing of the witness identifying
• (i) No police personnel should remain present in the identification ground
• (j) The statement of witnesses relating to the suspect made in course of identification
should be recorded by the magistrate.
 Sec-10
Things said or done by conspirator
in reference to common design
 Sec-10
Things said or done by conspirator in reference
to common design:
Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the
time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that
any such person was a party to it.
 Illustration
Reasonable ground exists for believing that A has joined in a
conspiracy to wage war against the Government of India.
 The facts that B procured arms in Europe for the purpose of the
conspiracy
 C collected money in Calcutta for a like object,
 D persuaded persons to join the conspiracy in Bombay,
 E published writings advocating the object in view at Agra, and
 F transmitted from Delhi to G at Kabul
 the money which C had collected at Calcutta, and
 the contents of a letter written by H giving an account of the conspiracy,
are each relevant, both to prove the existence of the conspiracy, and to
prove A's complicity in it,
 although he (A) may have been ignorant of all of them, and
 although the persons by whom they were done were strangers to him(A),
and
 although they may have taken place before he(A) joined the conspiracy
or
 after he(A) left it.
 Comments
• The conspiracy has not been defined in the Evidence Act

• Sec-120A of the IPC lays down that: “when two or more

persons agree to do, or cause to be done, an illegal act or an
act which is not illegal by illegal means, such an agreement
amounts to criminal conspiracy. Provided that no agreement,
except an agreement to commit to an offence, shall amount
to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such an
agreement in pursuance thereof.

• Explanation:- It is immaterial whether the illegal act is the

ultimate object of such agreement or is merely incidental to
that object
 Mirza Akbar V King-Emperor, (1940) 67 Pc 336
• Mirza Akbar, the accused, Mehr Laqa, the wife of Ali Asgher, the deceased
and Omer sher, a hired assassin were prosecuted for the cospiracy to
murder Ali Asghar. Omer sher who shot at Ali Asghar was caught while
running away with a gun in his hand.
• One of the items to prove conspiracy was a statement made by the wife
before magistrate after she had been arrested and in the appellant’s
absence implicating him.
• There was other evidence of conspiracy between Mehr Laqa and Mirza
Akbar certain letters.
• The letters and statements of Mehr Laqa were admitted by the trial court
in evidence against Mirza Akbar as being things said, and written by a
conspirator in reference to their common interest
• Privy council held that, the letters of correspondence between the
accused was relevant u/s.10 but the statement of Mehr Laqa to the
magistrate was not relevant u/s.10 as it was made after the object of
conspiracy had already been carried out.
 In Re N. Ramaratnam, AIR 1944 Mad 302
• The first accused agreed to supply to the second accused a packet of
gelignite, an explosive, for the purpose of blowing up a bridge.
• The second accused along with others utilized it for that purpose, but the
attempt proved abortive. The next day the second accused wrote to the
first, describing the unsuccessful attempt and asking for a further supply
of the explosive.
• In the trial of the two accused and six others for the offence of conspiracy
to blow up the bridge, the question arose whether the letter written by
the second accused would be relevant against the first accused.
• If the wide interpretation is put on the section, it would be relevant, but it
was held, putting only the restricted interpretation on the section, that it
would not be relevant. The first accused agreed to supply one packet,
which he supplied and was utilized. The common intention of the
conspirator had been carried out, and when a letter was written the next
day, there was no conspiracy to further or to execute
 Sec-11
• 11. When facts not otherwise relevant become relevant:
• Facts 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
Illustration
(a) The question is whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a
distance from the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either
by A, B, C or D. Every fact which shows that the crime could have been
committed by no one else and that it was not committed by either B, C or D,
is relevant:
 Clause(1)
• (1) facts inconsistent with any fact in issue or relevant facts:-
• One fact is said to be inconsistent with the other when it cannot co-exist
with the other.
• Ex: In Illustration(a) the fact that A was at Lahore on that day is relevant as
they cannot co-exist.
• Ex.2: The fact that A wrote a defamatory article damaging the fame of B is
one fact, A is an illiterate is another fact, they cannot co-exist.

• There are generally five classes of cases that arise for consideration under
this clause:
• (a) alibi
• (b) Non-access of husband to show illegitimacy of issue
• (c) Survival-of the alleged deceased
• (d) commission-of an offence by a third person
• (e) self-infliction-of harm
 Alibi: Analysis
• The Latin word alibi means elsewhere. An alibi is not an exception
envisaged in the IPC. It is the rule of evidence recognised by Sec.11 of the
Evidence Act
• Jayanthilal Bhaankar bhai V state of Gujarat, (2002) 8 SCC 165
• The plea of alibi taken by the accused needs to be considered only when
the burden which lies on the prosecution has been discharged
satisfactorily.
• If the prosecution failed in discharging its burden of proving the
commission of crime by the accused beyond any reasonable doubt, It may
not be necessary to go into the question whether the accused has
succeeded in proving alibi.
• But once the prosecution succeeds in discharging its burden then it is
incumbent on the accused taking the plea of alibi to prove it with certainty
so as to exclude the possibility of his presence at the place and time of
occurrence.
• The burden of the accused is undoubtedly heavy. However, while weighing
the prosecution case and the defence case against each other the balance
tilts in favour of the accused.
• Dudh Nath Pandey V state of U.P., AIR 1985 SC 911
• It was held that the plea of alibi postulates the physical impossibility of the
presence of the accused at the scene of offence by reason of his presence
at another place.
• It should be shown that the accused was so far away at the relevant time
he could not be present at the place where the crime was committed
• Alibi is based on the theory that fact of presence elsewhere is essentially
inconsistent with the presence of the accused at the place and time of the
alleged occurrence, and the participation in it
• (b) Non-access of husband
• Since the legitimacy of child implies a begetting by the husband, in
disproving legitimacy, it would be relevant to prove that the husband had
no access to the wife at the probable time of begetting.
• (c) Survival of the alleged decease: A is accused of murdering B on the 6th
of August, 1951, A tries to prove the B was alive till 31st August, 1951. This
fact is relevant u/s.11, clause(1), only because this is inconsistent with the
fact in issue that A murdered B on 6th of August 1951.
• (d) Commission of crime by 3rd person
A is charged with the murder of B. A can prove that one C murdered B.
Because the fact C murdered B is inconsistent with the fact that A
murdered him.
• (e) Self-infliction of harm- A charged with the murder of B. Here A can
lead evidence u/s11(1) to prove that B committed suicide.
Clause(2): Highly probable or Highly improbable.
 SECTION 12

In suits for damages: facts enable the

Court to determine amount are
relevant
 Sec-12
• In suits for damages, facts tending to enable Court to
determine amount are relevant:
• In suits in which damages are claimed, any fact which will enable the
Court to determine the amount of damages, which ought to be awarded,
is relevant.

• Comments
• The word damages is plural, which means a compensation in money for a
loss or damages caused by another’s act.
• In case of Breach of Contract Sec-73 of Contract Act deals with the facts
which are relevant for purpose of fixing the amount of damages which are
to be awarded by the court only relevant. [Mode and manner of breach,
intention, riches, mental pain or suffering caused by breach of contract]
• In case of Tort: Motive Malice and Intention of the wrongdoer.

• Sec-55 of Evidence Act, states that 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
• While granting damages, the courts assess the following four types of
damages
• (1) the damages suffered should be as near as possible, to the sum which
will put the injured party in the same position as he would have been if he
had not sustained the wrong for which he is awarded damages or
compensation
• (2) Damages are usually assessed on the basis of actual loss suffered and
are called general or ordinary damages
• (3) where the plaintiff has not suffered any real damages by reason of
breach of contract, normally, nominal damages are awarded
• (4) Special damages can be awarded for personal inconvenience or
physical discomfort caused by the other party. Where malice, fraud or
defamation is involved, causing damage to the reputation of the
individual, then exemplary damages can be awarded for the wrongful act
of the defendant
 SECTION 13

Relevancy of Facts when right or

custom is in question
 Right and Custom
Facts relevant when right or custom is in question:
Where the question is as to the existence of any right or custom, the
following facts are relevant: -
(a) any transaction
 by which the right or custom in question was created, claimed,
modified, recognized, asserted or denied, or
 which was inconsistent with its existence:
(b) particular instances
in which the right or custom was claimed, recognized or
exercised, or
in which its exercise was disputed, asserted or departed from.
Illustration:
The question is whether A has a right to a fishery. A deed conferring
the fishery on A's ancestors, a mortgage of the fishery by A's father, a
subsequent grant of the fishery by A's father, irreconcilable with the
mortgage, particular instances in which A's father exercised the right,
or in which the exercise of the right was stopped by A's neighbors, are
relevant facts.
• Essentials of a custom:
• Immemorial in origin
• Continuous, unaltered,
• uniform and constant
• Reasonable and peaceful
• Must not be opposed to morality or public policy
• Must not be expressly forbidden by the legislature

• Whether judgment is transaction

• Tirupathi Devasthanams V K.M Krishnaiah, AIR 1998 SC 1132
• Judgments of the courts are deemed as transaction in which the rights of
parties are recognized and can be proved u/s.13
• It was held that a previous judgments not interparties is admissible in
evidence u/s.13 of the Act as transaction in which a right of property was
asserted and recognized.
• Evidence of the previous Judgments can also given u/s.40 as res judicata,
u/s.41 as judgments in rem and u/s.42 as relating to matters of public nature
• The judgments which do no fall within the purview of secs.40-42 can only be
admitted u/s.43 if the existence of such judgments is a fact in issue in a case
 SECTION 14
Facts showing existence of state of mind,
or of body, or bodily feeling
 Sec-14
Facts showing existence of state of mind, or of
body, or bodily feeling:
Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or
good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant,
when the existence of any such state of mind or body or bodily
feeling is in issue or relevant.
Explanation 1: A fact relevant as showing the existence of a
relevant state of mind must show that the state of mind exists,
not generally, but in reference to the particular matter in
question.
Explanation 2: But where, upon the trial of a person accused of
an offence, the previous commission by the accused of an
offence is relevant within the meaning of this section, the
previous conviction of such person shall also be a relevant fact.
 Illustration (i) and (j) deal with intention

• (î) A is charged with shooting at B with intent to kill him. In

order to show A's intent the fact of A's having previously shot
at B may be proved.

• (j) A is charged with sending threatening letters to B.

Threatening letters previously sent by A to B may be proved,
as showing the intention of the letters
 Illus.(a), (b),(c) and (d) deal with knowledge
• (a) A is accused of receiving stolen goods knowing them to be
stolen. It is proved that he was in possession of a particular stolen
article.
• The fact that, at the same time, he was in possession of many other
stolen articles is relevant, as tending to show that he knew each
and all of the articles of which he was in possession to be stolen.
• The fact that, he has purchased the goods at normal market price is
relevant to show that he has purchased in good faith.

• (b) A is accused of fraudulently delivering to another person a

counterfeit coin which, at the time when he delivered it, he knew to
be counterfeit.
• The fact that, at the time of its delivery, A was possessed of a
number of other pieces of counterfeit coin is relevant.
• The fact that A had been previously convicted of delivering to
another person as genuine a counterfeit coin knowing it to be
counterfeit is relevant.
• (c) A sues B for damage done by a dog of B which B knew to
be ferocious.
• The facts that the dog had previously bitten X, Y and Z, and
that they had made complaints to B, are relevant.

• (d) The question is, whether A, the acceptor of a bill of

exchange, knew that the name of the payee was fictitious.
• The fact that A had accepted other bills drawn in the same
manner before they could have been transmitted to him by
the payee if the payee had been a real person, is relevant, as
showing that A knew that the payee was a fictitious person.
 Illus (f),(g) and (h) deal with Good faith
(f) A is sued by B for fraudulently representing to B that C was
solvent, whereby B, being induced to trust C, who was insolvent,
suffered loss.
The fact that at the time when A represented C to be solvent, C
was supposed to be solvent by his neighbors and by persons
dealing with him, is relevant, as showing that A made the
representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house

of which A is owner, by the order of C, a contractor.
A's defence is that B's contract was with C. The fact that A paid C
for the work in question is relevant, as proving that A did, in
good faith, make over to C the management of the work in
question, so that C was in a position to contract with B on C's
own account, and not as agent for A.
(h) A is accused of the dishonest misappropriation of property
which he had found, and the question is whether, when he
appropriated it, he believed in good faith that the real owner
could not be found.
The fact that public notice of the loss of the property had
been given in the place where A was residing, is relevant, as
showing that A did not in good faith believe that the real owner
of the property could not be found.
The fact that A knew, or had reason to believe, that the notice
was given fraudulently by C, who had heard of the loss of the
property and wished to set up a false claim to it, is relevant, as
showing that the fact that A knew of the notice did not disprove
A's good faith.
 Illus..(n) refers to negligence
(n) A sues B for negligence in providing him with a carriage for
hire not reasonably fit for use, whereby A was injured.
• The fact that B's attention was drawn on other occasions to
the defect of that particular carriage is relevant.
• The fact that B was habitually negligent about the carriages
which he let to hire is irrelevant.
 Illust..(e) refers to ill-will
(e) A is accused of defaming B by publishing an imputation
intended to harm the reputation of B.
• The fact of previous publications by A respecting B, showing
ill-will on the part of A towards B is relevant, as proving A's
intention to harm B's reputation by the particular publication
in question.
• The facts that there was no previous quarrel between A and
B, and that A repeated the matter complained of as he heard
it, are relevant, as showing that A did not intend to harm the
reputation of B.
 Illus..(l) and (m) deal with the state of body and
bodily feeling
(l) The question is whether A's death was caused by poison.
• Statements made by A during his illness as to his symptoms are
relevant facts.

(m) The question is, what was the state of A's health at the time
when an assurance on his life was effected.
• Statements made by A as to the state of his health at or near the
time in question are relevant facts.
 Illus..(o) and (p) explain the scope of the first
explanation
(o) A is tried for the murder of B by intentionally shooting him
dead.
• The fact that A on other occasions shot at B is relevant as
showing his intention to shoot B.
• The fact that A was in the habit of shooting at people with
intent to murder them is irrelevant.

(p) A is tried for a crime.

• The fact that he said something indicating an intention to
commit that particular crime is relevant.
• The fact that he said something indicating a general
disposition to commit crimes of that class is irrelevant
 Illus…(b) refers to explanation.2
(b) A is accused of fraudulently delivering to another person a
counterfeit coin which, at the time when he delivered it, he
knew to be counterfeit.
• The fact that, at the time of its delivery, A was possessed of a
number of other pieces of counterfeit coin is relevant.
• The fact that A had been previously convicted of delivering to
another person as genuine a counterfeit coin knowing it to be
counterfeit is relevant.
 SECTION 15
When there is a question whether an act
was accidental or intentional
 Sec-15
• When there is a question whether an act was
accidental or intentional, [or done with a particular
knowledge or intention], the act that such act formed
part of a series of similar occurrences, in each of which
the person doing the act was concerned' is relevant.
• Illustrations
• (a) A is accused of burning down his house in order to
obtain money for which it is insured.
• The facts that A lived in several houses successively
each of which he insured, in each of which a fire
occurred, and
• After each of which fires ‘A’ received payment from a
different insurance office, are relevant, as tending to
show that the fires were not accidental.
 Contd.
(b) A is employed to receive money from the debtors of B. It is
A's duty to make entries in a book showing the amounts received
by him. He makes an entry showing that on a particular occasion
he received less than he really did receive.
• The question is, whether this false entry was accidental or
intentional.
• The facts that other entries made by A in the same book are
false, and that the false entry is in each case in favour of A,
are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit
rupee.
The question is, whether the delivery of the rupee was
accidental.
• The facts that, soon before or soon after the delivery to B, A
delivered counterfeit rupees to C, D and E are relevant, as
showing that the delivery to B was not accidental
 SECTION 16
Existence of course of business when
relevant:
 Sec-16
Existence of course of business when relevant:
• When there is a question whether a particular act was done,
the existence of any course of business, according to which it
naturally would have been done, is a relevant fact.

(a) The question is, whether a particular letter was dispatched.

• The facts that it was the ordinary course of business for all
letters put in a certain place to be carried to the post, and that
that particular letter was put in that place are relevant.

(b) The question is, whether a particular letter reached A. The

facts that it was posted in due course, and was not returned
through the Dead Letter Office, are relevant.