Law of Evidence

Unit-I: Introduction and

Relevancy

By:Anant Singhal
Assistant Professor of Law
DME Law School
 • Course Objective:
This paper’s objective is to:
(i) orient students with importance of evidence
for establishment of claims and the related rules
and principles on contemporary basis;
(ii) enable students learn and understand the
basic nuances of evidence collection, assessment
of its nature and most importantly its
appreciation using practical approach; and
(iii)understand the difference between
quantitative and qualitative analysis of piece of
evidence for deciding a matter;
 • Course Outcome:
The course is designed:
(i) to develop reflective thinking among
students inculcating in them the critical
sensibility as to life experiences gathered from
societal interactions;
(ii) to prepare them for court room practice of
taking evidence on record, examination-in-chief,
cross-examination and qualitative analysis of the
evidences; and
(iii) overall personality grooming to be smart
lawyer capable of handling legal matters of all
concerns.
• Unit-I: Introduction and Relevancy
a. Evidence and its Relationship with the Substantive
and Procedural Laws
b. Definitions clause in Bharatiya Sakshya
Adhiniyam,2023
c. Principle of res gestae; Section 4 to 14 of Bharatiya
Sakshya Adhiniyam,2023; Relationship between proof
and evidence
d. Types of Evidence, Theory of Relevancy,
Admissibility, Reliability & Appreciation of Evidence in
Court of Law, factum probandum and factum probans,
Evidence procured through illegal means
e. Plea of Alibi, Test Identification Parade, Proving
Conspiracy
 • Objectives of Unit I
1. Explain the interplay between evidence and the substantive and procedural legal
frameworks in Indian law.
2. Clarify key definitions provided under the Bharatiya Sakshya Adhiniyam,2023 for
foundational understanding.
3. Illustrate the concept of Res Gestae and its application under Sections 4 to 14 of the
Bharatiya Sakshya Adhiniyam, 2023.
4. Analyze the distinction and connection between proof and evidence in legal proceedings.
5. Classify and describe the various forms of evidence and their roles in judicial processes.
6. Discuss the principle of relevancy and its significance in determining admissible
evidence.
7. Evaluate the criteria for admissibility, the reliability of evidence, and its assessment by
courts.
8. Differentiate between the ultimate fact to be proven (Factum Probandum) and the
evidentiary facts (Factum Probans).
9. Examine the legal considerations surrounding evidence obtained through unlawful
methods.
10. Define the plea of alibi and its evidentiary requirements in criminal cases.
11. Outline the purpose and process of Test Identification Parades in criminal
investigations.
12. Explore the evidentiary aspects of proving conspiracy under Indian law.
a. Evidence and its Relationship with the Substantive and
Procedural Laws
• INTRODUCTION:
1.The aim of every judicial proceeding is to determine a right or
liability. In criminal proceedings, the goal is to establish the accused
person's liability for the crime and potential punishment. In civil
proceedings, the objective is to determine rights related to property,
status, or other entitlements of individuals, as well as the liabilities of
involved parties.
2. To achieve the desired result, we need to set up rules for
determining rights and responsibilities, as well as the procedures for
proving them. For that purpose, we have two sets of law, known as
Substantive law and Procedural law.
3.Substantive law defines the rights and duties of individuals, while
procedural law governs the process by which those rights and duties
are enforced and disputes are resolved within the legal system. Both
are essential components of the legal framework, working together to
ensure justice is served in society.
4.Substantive law: These laws set the guidelines for rights and
responsibilities and lay down rules for determining them based on specific
sets of facts.
Illustration: Contract Act, Transfer of Property Act, Bharatiya Nyaya
Sanhita.
• Substantive law refers to the body of law that establishes and defines the
rights and obligations of individuals and entities.
It outlines the specific rights and duties of individuals in society, as well as
the consequences for violating those rights or duties.
• Substantive law governs various areas of law, including contract law, tort
law, property law, criminal law, and family law.
Procedural law: Procedural law encompasses the rules and regulations that
dictate the processes and methods used to determine rights and liabilities in
legal proceedings.
• Procedural law sets out the rules and processes that govern how legal
proceedings are conducted.
• It establishes the methods and steps to be followed in bringing and
defending legal actions, as well as the procedures for resolving disputes.
• Procedural law covers aspects such as jurisdiction,
pleadings, discovery, evidence, trial procedures,
appeals, and enforcement of judgments.
• Its primary objective is to ensure that legal
proceedings are fair, efficient, and consistent, thereby
safeguarding the integrity of the legal system.
• Procedural law does not determine the substantive
rights of the parties involved but rather regulates the
mechanisms through which those rights are enforced
and disputes are resolved.
The law of procedure may deal with
• Pleading (Civil Procedure Code, Bharatiya Nagarik
Suraksha Sanhita), or
• Evidence (Bharatiya Sakshya Adhiniyam).
• Substantive law and procedural law: Law
can be defined as the rules which determine
our relations and which regulate the behavior
of individuals. It may be substantive law or
procedural law/adjective law.
• The laws which prescribe our rights and duties
are called substantive laws. The right to
inheritance, the right under contract, etc. are
the rights which are contained in rules of
substantive law.
• For example : Bharatiya Nyaya Sanhita 2023,
Indian Contract Act, 1872 etc. are substantive
laws stating our rights, liabilities and duties.
• For the enforcement of right and for
compelling the other to perform his duty, there
are rules prescribed by law. These rules are
procedural in nature and the law which
prescribes such rules is procedural law.
• It provides the rules for proceedings in matter
before the authorities and judiciary. For
example, the rules contained in Code of Civil
Procedure, 1908 or Bharatiya Nagarik
Suraksha Sanhita 2023, etc. are procedural.
• The Bharatiya Sakshya Adhiniyam 2023 is
procedural law: which lays down the following
rules:
• (a) What facts may be used in evidence,
• (b) How such facts are to be proved,
• (c) By whom and in what manner the evidence is
to be produced.
• Law of evidence, as a procedural law, deals with
the ways in which the parties will show existence
or non existence of facts and circumstances so as
to establish the existence or non existence of
rights and liabilities given under substantive law.
• Law of Evidence: The Law of evidence governs the proceedings before
Courts, which expression includes all Judges, Magistrates, and all persons
legally authorized to take evidence, except Arbitrators. It provides the
procedure to be followed by the parties to convince the Court about the
existence of facts which give rise to right or liability according to the
provisions of substantive law.
• Illustration: 'A' sues 'B' on a Promissory Note for ₹ 1,00,000. But, 'B' says that
the execution of the Promissory Note was procured by coercion.
• The substantive law is that a Promissory Note executed under coercion cannot
be enforced.
• The law of procedure lays down the method to establish 'A's right to the
payment of Rs.1,00,000 and also the method to prove coercion.
• Before the law of evidence can be applied to any particular case, it is necessary
to know the substantive law which determines the rights of the parties.
Law of Procedure: With a view to ascertain individual rights and liabilities in
particular cases, the Law of Evidence as a part of the Law of Procedure prescribes,
(a) What facts may or may not be proved in such cases;
(b) What sort of evidence must be given of a fact which may be proved;
(c) By whom and in what manner the evidence must be produced by which any
fact is to be proved.
• Rules: The general rules of evidence are:
(a)Evidence must be confined to the matters in
issue.
(b) Hearsay evidence is not to be admitted.
(c) In all cases, the best evidence must be given.
In general terms, the law of evidence consists of
provisions upon the following subjects:
(1)The relevancy of facts.
(2)The proof of facts.
(3) The production of proof of relevant facts.
1. Relevancy of Facts.
Facts may be related to rights and liabilities of the parties in one of two
ways,
(a) Fact in Issue: Facts in issue are those, whose existence. determines the
establishment of rights or liabilities in the proceedings.
Illustration: 'A' caused the death of 'B' under certain circumstances and with
certain intention or knowledge.The facts, which leads to the inference that
'A' murdered 'B', are facts in issue.
(b) Facts relevant to the issue: The existence of these facts facilitates to
draw inferences as to the existence of the "facts in issue". These facts are not
themselves fact in issue, but may affect the probability of the existence of
facts in issue.
Illustration: 'A' is accused of causing the death of 'B' under certain
circumstances.
The fact that 'A' was not in the city on the date of the murder will impact the
likelihood of the existence of the fact in issue of 'B's murder.Therefore, the
fact of 'A's absence from the city is a relevant fact.
What facts are "facts in issue" in particular cases is a question to be
determined by the substantive law. In some cases, it is determined by the
law of procedure which regulates the forms of pleading, civil or criminal.
2. Proof of Relevant Facts:
The Court can draw no inference from fact in issue or a
relevant fact till it believes it to exist. The way in which a fact
should be proved depends on the nature of the fact. For example,
some facts are "known to all" facts which do not require any
proof and the Court will take judicial notice of such facts.
Illustration: Gestation period for the birth of a child, rules of
road, Evidence in words must be either (1) oral or (2)
documentary.
Illustration: Oral evidence: Statement in witness box
Documentary evidence: Promissory note produced in Court.
 Documentary evidence can be categorized as either
primary or secondary.
 Primary evidence refers to the document itself, presented in
Court for examination.
 Secondary evidence, on the other hand, refers to documents
permitted to be presented in proceedings under specific
Illustration: Agreement signed by the parties is produced-
Primary Evidence.
Where the original sale deed is lost in fire, certified copy of sale
deed is produced- Secondary evidence.
Another form of evidence is material objects, which are not
documents, presented in Court. Such evidences are proved
through oral testimony.Illustration : A knife used for murder,
stolen article.
3. The Production of Proof: The rules regarding production of
proof includes:
 Burden of proof -By whom the proof is to be given.
 Conditions to produce evidence.
 How are the witnesses to be examined, and how is their
evidence to be tested?
 The effect upon the subsequent proceedings.
The Indian Evidence Act, 1872
The Indian Evidence Act, 1872 (Act No. 1 of 1872) was enacted to consolidate,
define the law of Evidence. The law is mainly based upon the firm work by
Sir James Fitzjames Stephen. The Act came into force on 01-09. 1872.
The Bharatiya Sakshya Adhiniyam, 2023
• The Indian Evidence Act, 1872 had been governing the admissibility of
evidence in Indian Courts in respect of all legal proceedings, civil and
criminal. The Indian Evidence Act, 1872, was amended to accommodate
certain criminal reforms and technological developments.
• In 2000, the Indian Evidence Act, 1872, was amended to allow electronic
records as secondary evidence.
• In 2013, it was amended to include provisions on consent in rape cases. It
shifted the onus of proving of consent to the accused and held that the
victim's character and her sexual history were irrelevant when determining
consent.
• The Law Commission reviewed the Indian Evidence Act, 1872 several times
and recommended amendments on matters such as confessions made while in
police custody and cross-examination.
• With the aim of reforming the criminal laws, new laws were introduced to
replace the Indian Penal Code, Criminal Procedure Code and the Indian
Evidence Act.
 Highlights of this Act
The Bharatiya Sakshya Adhiniyam, 2023, the new Act introduces the following changes.
• Electronic Records: While the Indian Evidence Act, 1872 maintained a distinction
between documentary and oral evidence, the Bharatiya Sakshya Adhiniyam, 2023
continues this classification. However, the new Act introduces electronic records as a
category under 'documents'. Unlike the previous Act where electronic records were
treated as secondary evidence, the new Act elevates them to the status of primary
evidence. It acknowledges data stored in semiconductor memory or communication
devices like smartphones or laptops, allowing such information to be admissible as
evidence.
• Secondary Evidences: The revised legislation broadens the scope of secondary
evidence to encompass both oral and written admissions, as well as testimony from
experts who have examined the documents.
• Oral Evidence: An innovative provision of the Bharatiya Sakshya Adhiniyam, 2023,
allows for the submission of oral evidence electronically, enabling witnesses,
accused individuals, and victims to testify through electronic means.
• Joint Trials: In a joint trial, multiple individuals face prosecution together for the
same offense, and the confession or statement of one accused can affect others
involved. The Indian Evidence Act, 1872, states that if a statement is proven valid, it
applies to all parties in the trial.
• The Bharatiya Sakshya Adhiniyam, 2023, adds a clarification, stating that trials
involving multiple defendants where one is absconding or evading arrest will be
treated as joint trials.
 • Part I
• PRELIMINARY[Chapter I, Sections 1-4]
• Short Title, Applicability, Commencement and Object
 Short Title : THE BHARATIYA SAKSHYA ADHINIYAM, 2023
 Applicability and Commencement of Bharatiya Sakshya Adhiniyam, 2023
 Section 1(2) of BSA applies to all judicial proceedings in or before any Court,
including court- martials, but not to affidavits presented to any court or officer, not to
the proceedings before an arbitrator)
 BSA does not apply to -➤ Affidavits presented to any Court or an officer, ➤
Proceedings before arbitrator;
 The Bharatiya Sakshya Adhiniyam, 2023 received Presidential assent on 25.12.2023
and will come into force from 01.07.2024.
 Judicial inquiry: An inquiry is judicial if the object is to determine a jural relation
between the parties.
 Judicial proceedings: A judicial proceeding is one in the course of which evidence is
or may be legally taken on oath. [Section 2(i) of Code of Civil Procedure]
 The Act does not apply to affidavits because deponent's assertion of facts on the
basis of his personal knowledge does not constitute 'evidence’.
 Arbitrators have to follow the principles of natural justice but they are not bound by
law of evidence.
• Law of evidence is lex fori: The law of evidence is lex fori
ie. the law of the country or forum. It is governed by the law
of the nation where the proceedings are taking place and not
where the cause of action has taken place. For example if an
American citizen is tried in India for a breach of contract
which took place in USA, the law of evidence as in force in
India will be applicable and not the law of evidence of USA.
• Object: The Preamble of the Adhiniyam states that it is to
consolidate and to provide for general rules and principles
of evidence for fair trial.
• Law of evidence is a lex fori which governs the courts.
[Bain & White Raven and Furness Junction]
• The law of evidence does not affect substantive rights of the
parties but only lays drown the law for facilitating the
course of justice.
 b. Definitions clause in Bharatiya Sakshya Adhiniyam, 2023
• Definitions [Section 2]
• Scheme: The Bharatiya Sakshya Adhiniyam, 2023 is divided into 170
Sections and 12 Chapters.
• Court:The term 'Court' is defined in Section 2(1)(a). The word 'Court'
includes all Judges and Magistrates and all persons, except arbitrators,
legally authorized to take evidence.
• Section 2(1)(b): "Conclusive proof": "Conclusive proof" means when one
fact is declared by this Adhiniyam 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.
• What the section says:
• "Conclusive proof" means a fact is declared to be "Conclusive Proof of
another. If a statute declares a fact as conclusive evidence, it restricts
production of further evidence to establish the fact. The Court is bound to
presume the existence of that fact.
• For instance, Section 116 presumes that a child born out of wedlock is the
legitimate child of the mother's husband. The continuous validity of the
marriage between the child's mother and any man, serves as conclusive proof
of the child's legitimacy.
• In certain exceptional cases, the law permits parties to rebut the presumption.
Section 116 stipulates that it is Conclusive Proof, if it is not shown that the
parties to the marriage had no access to each other at any time when he could
have been begotten.
• Further, various statutes, such as Section 12(7) of the Companies Act, 2013,
Section 381 of the Indian Succession Act, 1925, and Section 61 of the
Christian Marriage Act 1872, declare certain facts as conclusive evidence of
another fact.
• Conclusive evidence and Conclusive proof: Supreme Court: Smt. Somvanti
v. The State of Punjab (1963 AIR 151)
• Once the law says that certain evidence is conclusive, it shuts out any other
evidence which would detract from the conclusiveness of that evidence.
• In substance, there is no difference between conclusive evidence and
conclusive proof. Statutes may use the expression 'conclusive proof where
the object is to make a fact non- justiciable. But the legislature may use some
other expression such as 'conclusive evidence' for achieving the same result.
• There is thus, no difference between the effect of the expression 'conclusive
evidence' from that of 'conclusive proof, the aim of both being to give
finality to the establishment of the existence of a fact from the proof of
another.
• Section 2(1)(c): "Disproved": "Disproved" in relation to a fact,
means 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;
In short,:
• The Court believes that the Fact does not exist, or
• The Court assumes that a prudent man, in the circumstances of
the particular case, would consider that it does not exist.
• When a fact is Disproved, the Court will not decide the rights
and responsibilities of the parties on the basis and leave the
matter as such.
• Illustration: 'A' claimed that he has a right over a land in
possession d 'B'. He filed a Will. It was proved to be a
fraudulent Will. 'B' has now proved that A's claim is false. Court
will not pass a decree in favour of 'A'.
Section 2. (1) In this Adhiniyam, unless the context otherwise requires,—
(a)"Court" includes all Judges and Magistrates, and all persons, except arbitrators,
legally authorized to take evidence;
(b)"conclusive proof" means when one fact is declared by this Adhiniyam 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;
(c) "disproved" in relation to a fact, means 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;
(d) "document" means any matter expressed or described or otherwise recorded upon
any substance by means of letters, figures or marks or any other means or by more than
one of those means, intended to be used, or which may be used, for the purpose of
recording that matter and includes electronic and digital records. Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on computers, laptop or
smartphone, messages, websites, locational evidence and voice mail messages stored on
digital devices are documents;
Section 2. (1) (d) "document" means:
(i) any matter expressed or described or otherwise recorded upon any
substance.
(ii) It may be by means of letters, figures or marks or any other means or
by more than one of those means,
(iii)It is intended to be used, or which may be used, for the purpose of
recording that matter and
(iv)It includes electronic and digital records.
Illustrations.
(v)A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on
computers, laptop or smartphone, messages, websites, locational
evidence and voice mail messages stored on digital devices are
documents;
• The word "Evidence' is derived from Latin term 'evident or
evidere which means to prove, to ascertain, to make clear.
• Section 2(1)(e) "Evidence": "Evidence" means and
includes- (i) all statements including statements given
electronically which the Court permits or requires to be
made before it by witnesses in relation to matters of fact
under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records
produced for the inspection of the Court and such
documents are called documentary evidence.
• According to Bentham :- evidence can be defined as any
matter of fact, the effect of which is to (produce in a mind a
persuasion, affirmative or disaffirmative, of existence of
some other fact. The fact sought to be proved is the
principal fact, and the fact which tends to establish it, is
evidentiary fact.
• Phipson says:'Evidence means the testimony whether oral,
documentary or real, which may be legally received in order
to prove or disprove some fact in dispute.
• ‘Evidence' definition under this Act:
• The definition of this Act says that 'Evidence' includes both
oral evidence and documentary evidence. Evidence
constitutes any material that compels the Court to believe in
the existence or non-existence of something else.
• Oral evidence: All statements permitted or required by the
Court to be made by witnesses, in relation to matters of fact
under inquiry.
• It includes statements made electronically.Such statements
are called oral evidence.
• Documentary evidence:- All documents produced for the
inspection of the Court.It includes electronic or digital
records.Such documents are called documentary evidence.
• Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4
SCC 601, held that the words 'means and includes' suggest that the
definition of evidence is an exhaustive one.
• In Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, Supreme Court
has held that the definition is exhaustive. Evidence signifies only the
instruments by means of which relevant facts are brought before the
court.
• Electronic Record:The electronic data is defined in Section 2(t) of the
Information Technology Act, 2000. It states that"electronic record"
means data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer generated micro
fiche.
• Illustrations: computer printouts, CDs, and pen drives.
• Digital Record: Neither this Act nor the Information Technology Act,
2000, define digital records.
• A record maintained in coded numeric format, accessible solely through
a computer system converting numbers into text or images,
comprehensible to the human eye, is termed as a digital record.
• Illustrations: Invoices received via email, certificates scanned and
converted into images.
• Real evidence: Apart from the oral and documentary evidence, there a third kind
of evidence which has been called by some authors as ‘real evidence. Material
exhibits such as weapons of assault or stolen properties come in this category.
• But the framers of the Indian Evidence Act and also this Act intentionally
restricted evidence to the first two categories for the reason that 'real' evidence
cannot be used against an accused unless someone makes an oral statement
thereto.Example: Oral evidence is necessary to identify and prove the fact knife
was used in the crime.
• Affidavit as evidence: According to Section 1 of the Act, the Indian Evidence
Act does not apply to affidavits presented to the courts. In Sudha Devi v. M.P.
Narayanan, AIR 1988 SC 1381, Supreme Court that statements in affidavit do
not constitute evidence within definition.
• The reason for exclusion of affidavits is that in affidavits there can be statements
based on information, which is hearsay, Affidavits can used as evidence only
when the court passes order under Order XIX, Rule 1 and 2 of Code of Civil
Procedure When a court orders that a particular fact may be proved by an
affidavit then it becomes evidence.
• The Code of Civil Procedure (Amendment) Act, 2002 permits affidavit in the
form of evidence. Supreme Court in Ayaaub Khan Noorkhan Pathan v. State
of Maharashtra, (2013) 4 SCC 465, has held that where the deponent can be
available for cross examination and an opportunity is given to the other party to
cross examine then the affidavit can be relied upon as evidence.
• Evidence of tracker dog: Supreme Court in Abdul Razak v.
State, AIR 1970 SC 283, held that discovery of a fact with
the help of a tracker dog is scientific evidence.
• TYPES/ KINDS OF EVIDENCE
1. Direct evidence: Direct Evidence is evidence which
directly proves or disproves the fact. Such evidence is real,
tangible, or clear evidence of a fact which does not require
any further consideration to prove its existence.
Illustration: 'A' murdered 'B'. An eye witness to the incident is
a direct evidence. The only question is whether the witness is
telling the truth.
2. Circumstantial evidence: Circumstantial or indirect evidence
refers to evidence which proves the facts in issue by providing
other facts. Indirect facts associated with the facts in issue and
have a cause-and-effect relation are considered to arrive at a
conclusion.
• Difference between direct and circumstantial evidence: (Imp.)
1. Direct evidence is based on witness's personal knowledge or observation of a
fact, whereas, circumstantial evidence is direct evidence of a fact, which reasonably
infers the existence or non- existence of fact in issue.
2.Direct evidence does not require any reasoning or inference to arrive at the
conclusion which be drawn from the evidence, whereas, circumstantial evidence
being an indirect evidence, t quires that inferences be made between the evidence
and the conclusion to be drawn from it.
3. Generally, direct evidence is given to prove a fact. Circumstantial evidence, on
the other comes into play when no direct evidence is available to prove a fact.
4.The Court can rely on the direct evidence of a witness if he is worthy of credit and
his evidence is reliable, But circumstantial evidence can form the basis of
conviction only when the five golden principles as laid down in Umedbhai
Jadavbhai v. State of Gujarat, (1978) 1 SSCC 228, Ganpat Singh v. State of
M.P., (2017) 16 SCC 353, State of U.P. v. Ravindra Prakash Mittal, AIR 1992
SC 2045 and various other cases are fulfilled, ie, the circumstances must be fully
established and of conclusive nature, it must be in conformity only with the
hypothesis of guilt of accused and there must be a complete chain of circumstances
supporting no other hypothesis that of guilt of the accused.
• Exclude every hypothesis: Supreme Court: Hanumant v.
The State of Madhya Pradesh (1975 AIR 1083)
• The circumstances should be of a conclusive.In other words,
there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with
the innocence of the accused, and it must be such as to show
that within all human probability, the act must have been done
by the accused.
Suspicion: Pradeep Kumar v. State of Chhattisgarh: (2023
Live Law SC 239)
• Suspicion, howsoever grave or probable it may be, cannot
substitute the evidence, be it circumstantial or direct in nature
in establishing the guilt of the accused beyond
reasonable doubt the onus of which, at the first instance, is to
be discharged by the prosecution.
• The cardinal principle in the administration of criminal
justice in cases where heavy reliance is placed on
circumstantial evidence, is that where two views are
possible, one pointing to the guilt of the accused and the
other towards his innocence, the one which is favourable
to the accused must be adopted.
• Illustration: 'A' heard a gunshot. When he arrived on
the scene seconds later, he saw the accused standing
over the corpse with a smoking pistol in his hand. The
evidence is circumstantial.
• There are chances that the accused might have shot at
the escaping killer, or
• he might have been a bystander who picked up the
weapon after the killer had dropped it.
• Five golden principles: Sharad Birdhi Chand Sarda v. State of
Maharashtra (1984 AIR 1622)
• In this landmark case, the Supreme Court had stated essential
conditions that must be fulfilled before an accused can be convicted in
a case revolving around circumstantial evidence.
(1) The circumstances from which the conclusion of guilt is to be drawn
should be fully established.
(2) The facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be explainable
on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be
proved, and
(5) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that, in all human probability, the act must have
been done by the accused.
• The Supreme Court observed that these five golden principles
constitute the 'panchsheel' of the proof of a case based on
circumstantial evidence.
• Last seen theory: Ram Gopal v. State of M.P. (2023 SCC
OnLine158): Though the last seen theory as propounded by the
prosecution in a case based on circumstantial evidence may be a weak
kind of evidence by itself to base conviction solely on such theory,
when the said theory is proved coupled with other circumstances such
as the time when the deceased was last seen with the accused, and the
recovery of the corpse being in very close proximity of time, the
accused does owe an explanation under Section 106 of the Evidence
Act (Section 109 in this Act) with regard to the circumstances under
which death might have taken place.
• Last seen theory: It is a settled legal position that law presumes that it is the
person, who was last seen with the deceased, would have killed the deceased.
The burden to prove that the accused has not committed the crime lies on the
accused. However, such evidence alone cannot discharge the burden of
establishing the guilt of the accused beyond the reasonable doubt and it
requires corroboration [Navaneethakrishnan v. State, (2018) 16 SCC 161).
• Supreme Court in Umedbhai Jadavbhai v. State of Gujarat,
(1978) 1 SSCC 228, Ganpat Singh v.State of M.P., (2017) 16
SCC 353, State of U.P. v. Ravindra Prakash Mittal, AIR 1992
SC 2045, and in many other cases held that following are the
principles which must be kept in mind while dealing with the
circumstantial evidence:-
1. The general principle is that the circumstances from which an
inference of guilt is drawn must be cogently and firmly
established.
2. Those circumstances should be definite and unerringly point
towards the guilt of accused.
3. Circumstances should form a chain so complete that there is no
escape from the conclusion that within all human probability the
crime was committed by the accused.
4.Such circumstances should be incapable of any hypothesis
other than the guilt of accused and it should be inconsistent with
the innocence of the accused.
• Evidence in departmental inquiry: Supreme Court in SBI v. National
Housing Bank, (2013) 16 SCC 538, held that statements made in a
departmental enquiry do not constitute evidence. The findings cannot be used
in courts and conclusions do not bind the courts.
• FIR as evidence: Supreme Court in Utpal Das v. State of West Bengal,
(2010) 6 SCC 493, held that FIR is not a substantive piece of evidence. It may
only be used for corroborating and contradicting the complainant.
• Interested witness: A witness may be called an 'interested witness' only when
he or she derives some benefit from the result of the litigation. Therefore,
'related witness' is not equivalent to 'interested witness' [Ganapathi v. State
of Tamil Nadu, (2018) 5 SCC 549]. The testimony of a witness cannot be
rejected only on the ground that he was 'interested witness’.
• In Girja Prasad v. State of M.P., (2008) 7 SCC 625, Supreme Court held
that credibility of witness should be adjudged on the touchstone of
truthfulness and reliability. It should not be rejected merely because it is an
"interested witness’
• Evidence through video conferencing: Supreme Court in State of
Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, held that 'evidence' can
be oral, documentary or electronic. Insertion of word 'electronic' suggests that
the evidence can be given by way of electronic records also. Hence, it would
include evidence through video conferencing.
• Hostile witness: Hostile witness is one who tends to give evidence against
the party who calls him in the court. Supreme Court has held that the
testimonies of hostile witness are to be considered with caution. However,
their testimonies should not be out rightly rejected they must be preferably
corroborated. [Ramesh Harijan v. State of U.P.. AIR 2012 SC 1979]
• Injured witness: In Suresh Sharma Surve v. State of Maharashtra, AIR
2003 SC 344, Supreme Court held that evidence of an injured witness
cannot be discarded on the ground that he will bear an bostile attitude
towards the accused.
• False witness: False witness is a person who makes false claims or takes
false position. Supreme Court in State (Delhi Administration) v. V.C.
Shukla, AIR 1980 SC 1382, held that a witness who intentionally makes
false statement cannot be relied upon for the purpose of convicting the
accused.
• Appreciation of evidence: The analysis of the evidence by the court to
ascertain the reliability and genuineness of the evidence is called
appreciation of evidence. It is the duty of the court to ascertain which part of
the evidence represents the truth and which part of it is false. In Ganesh K.
Gulve v. State of Maharashtra, AIR 2002 SC 3068, Supreme Court held
that it is the duty of the court to separate the grain from the chaff.
3. Oral Evidence: Section 54 requires that all facts, except the
contents of documents electronic records, may be proved by oral
evidence. Section 55 mandates that Oral evidence must be
direct.Oral evidence is the evidence which the person giving has
himself sees or heard. Such evidence is direct in its nature.
4. Documentary Evidence: Section 55 states that all facts, except
the contents of documents may be proved by oral
evidence.Section 56 states that the contents of documents may be
proved eithe by primary or by secondary evidence.
Document is defined in Section 2(1)(d) of this Act. The Bharatiya
Sakshya Adhiniyam, 2023, explicitly recognizes electronic and
digital record as Documents, along with any matter expressed or
described upon any substance.
5. Primary Evidence: Primary evidence means the document
itself produced for the inspection of the Court. (Section 57).
Primary evidence is the most superior kind of
evidence.Illustration: Agreement in Original produced before the
Court.
6. Secondary Evidence: Secondary evidences are admissible in
cases where the primary evidence cannot be produced in the Court.
Section 58 of this Act deals with secondary evidence. These
evidences are inferior to the primary evidence and in case of a
conflict, the primary evidence prevails.
Illustration: Copies made from or compared with the original.
7. Real Evidence: Real evidence or physical evidence is material,
tangible evidence such as an object, a tape recording, a computer
printout or a photograph. The Court can examine evidence by itself.
Generally, the Court will hear evidence from a witness for getting
an explanation of the significance or the relevance of the real
evidence.
Illustration: Blood samples, a knife, a gun, and other physical
objects.
Karan Singh v. State of Uttar Pradesh (2022 6 SCC 52)The Court
is not supposed to give undue importance to omissions
contradictions and discrepancies which do not go to the heart of the
matter, and shake the basic version of the prosecution witness.
8. Hearsay Evidence: Hearsay evidence is evidence by a person who has
not seen himself th event or is not involved in the happening of that
event; but got the knowledge from someone else. This kind of evidence
does not derive its value solely from the witness himself. It depends
upon the veracity and competence of some other person.
• Illustration; 'A' murdered 'B'. This was seen by 'C’.
• Later, 'C' told 'D' that 'A' murdered 'B’.
• 'D's statement is hearsay evidence as he has not seen the event and he
heard about the murder from 'C’.
• 'C's statement is direct evidence as he has seen the event of murder.
Exclusion of hearsay evidence: This kind of evidence is the weakest
kind of evidence. Section 55 excludes the hearsay evidence by stating
that Oral evidence, in all cases, must be direct.
Hearsay evidence is excluded in the interest of justice for the following
reasons:
i. The person giving such evidence does not feel any responsibility,
unlike a witness in the the Court, who will be liable to the penalties for
making false statements.
ii. The person making the statement is not making it on oath.
iii. The accuracy and trustworthiness of the evidence cannot be tested by cross-
examination.
iv. Truth is diluted and diminished with each repetition and
v. If permitted, gives ample scope for playing fraud by saying "someone told
me that...
"Hence, statement of witnesses based on information received from others is
inadmissible.
9. Judicial Evidence: Judicial evidence is the means by which facts are proved.
These are the evidences received by the Court in proof or disproof of facts
before it. Judicial evidence does not include facts not proved.
The statements provided by the witnesses in the Court are also termed as
judicial evidence. This is the evidence produced directly in front of the
Magistrate.
10. Non-judicial Evidence:Non-judicial evidence refers to statements
made outside the presence of a magistrate. This evidence is admissible
only if it could be proved in the Court later as judicial
evidence.Illustration: Dying declaration made to a doctor.
Best and Inferior Evidence:The best evidence among the available and
possible evidence should be presented to the Court. For example, in the
case of a breach of contract, a party should present the original contract.
Any other document such as photostat or carbon copies, if submitted is
inferior evidence.
Admission of Evidence: Bombay High Court: Pandappa
Mahalingappa v. Shivalingappa Murteppa [(1945) 47 Bom LR 962]
• Where evidence is admitted in the Trial Court without any objection
to its reception, and the evidence is admissible and relevant, then no
objection will be allowed to be taken to its reception at any stage of
the litigation on the ground of improper proof.
• But if the evidence is irrelevant or inadmissible, as for instance
owing to want of registration, omission to take objection to its
reception does not make it admissible, and the objection may be
raised even in appeal for the first time.
• Falsus in uno, falsus in omnibus: It means false in one thing is false in all others. In
other words this maxim sugggests that if the part of evidence by a witness is false the
whole testimony is regarded as false and it must not be taken into consideration by
court.
• Supreme Court in Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433, has held
that the maxim falsus in uno, falsas in omnibus is not applicable in India. Minor
contradictions and omissions in the evidence are to be ignored if there is ring of truth
in the testimony of witness. When analyzing the evidence on record the court should
not adopt a hyper technical approach. The court should not reject the evidence on
minor contradictions. [Khurshid Ahmed v. State of J&K, (2018) 7 SCC 429
• Section 2(1)(f): "Fact": "fact" means and includes-
(i) any thing, state of things, or relation of things, capable of being perceived by the
senses;
(ii) any mental condition of which any person is conscious.
Illustrations: i. That there are certain objects arranged in a certain order in a certain
place, is a fact.
ii. That a person heard or saw something, is a fact.
iii. That a person said certain words, is a fact. (Physical)
iv. That a person 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.(Psychological)
• A fact may be positive fact or negative fact,
• 'A' saw 'B' killing 'C'-It is a positive fact
• Knife used for killing 'C' is not found-It is a negative fact.
• Section 2(1)(g): "Facts in issue": "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 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:-
(i) That 'A' caused 'B's death.
(ii) That 'A' intended to cause 'B's death.
(iii) That 'A' had received grave and sudden provocation from 'B’.
(iv) That 'A', at the time of doing the act which caused 'B's death, w by
reason of unsoundness of mind, incapable of knowing nature.
Fact in issue means the matters which are in dispute or which form
subject of investigation.
In a civil case, it is a fact alleged by one party and denied by the other.
Illustration: 'A' borrowed money from 'B'. Once the fact of 'money was
borrowed' is proved, 'B's right is established.
In criminal case, it is a fact alleged by the prosecution and denied by
the accused.
Illustration: 'A' murdered 'B'. Once the fact of 'murder' is proved, 'B's
liability for punishment is established.
Illustration: In the following illustration, 'B' is liable for punishment for
committing murder. All facts which may lead to his punishment
(Example: B's intention to kill) or all facts which helps 'B' to avoid
punishment (Example: 'B' was of unsound mind) are Fact in issue.
• As regards criminal cases, the charge constitutes and includes 'facts in
issue'. Chapter XVIII of the The Bharatiya Nagarik Suraksha Sanhita, 2023
deals with Charge.
• As regards civil cases, 'facts in issue' are determined by the process of
framing of issues. (Order XIV, Rules 1-7, Code of Civil Procedure.)
• Distinction between Fact in Issue and Relevant fact
1. A fact in issue is a necessary ingredient of a right or liability. The existence
or non-existence of a right or liability necessarily follows the fact in issue.
• But a relevant fact is not a necessary ingredient of a right or liability.
Illustration: Fact in issue: 'A' shot 'B' dead by using a gun.
Relevant fact: Prior enmity, purchase of gun are relevant facts to prove fact in
issue.

2. A fact in issue is called the "principal fact" or factum probandum. A

relevant fact is called the "evidentiary fact" or factum probans.
3. Fact in issue is asserted by the plaintiff or prosecutor and denied by the
opposing party. These are the matters in dispute.
The relevant facts are produced to prove the fact in issue. They support the
inference to be made in the disputed matter.
• Section 2(1)(h): "May presume": "may presume" Whenever it is
provided by this Adhiniyam 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.
• Section 2(1)(l): "Shall presume": “shall presume" Whenever it is
directed by this Adhiniyam that the Court shall presume regard such fact
as proved, unless and until it is disproved.
• What the section says: As per the Act, all presumptions must come under
one or the other class of the three classes mentioned in the Act, namely,
• "may presume" (rebuttable),"shall presume" (rebuttable) and "conclusive
presumptions" (irrebuttable).
• A presumption is a legal or factual assumption drawn from the existence
of certain facts.
• They are raised in terms of the Evidence.
• The term 'presumption' is used to designate an inference, affirmative or
disaffirmative, of the existence of a fact by a process of probable
reasoning from some matter of fact.
• It may be based on facts, either judicially noticed or admitted or
established by legal evidence to the satisfaction of the Court.
• Illustration: 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.
• "May presume" and "Shall presume":
• In the case of "May presume", the Court has an option to raise
the presumption or not.
• In the case of "Shall presume", the Court must necessarily raise
the presumption.
• Whenever the word "may presume" is used in the Act, then, it
has to be taken as a discretionary and not mandatory. But,
whenever the word "shall presume" is used, it has to be taken
as mandatory.
• May presume: Under Section 119, the Court may presume 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.
• Shall presume: As per Section 120 of this Act, in the case of rape, where
sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman and such woman states in her
evidence before the Court that she did not consent, the Court shall presume
that she did not consent.
• Section 2(1)(i): "Not proved": "not proved"- A fact is said to be not
proved when it is neither proved nor disproved.
• What this section says : Not proved: If both the parties could not make
the Court to believe the existence or non-existence, then the fact is not
proved. The Court will require parties to produce further evidence. In the
absence of such evidence, Court will decide on the merit of the case with
the available evidences.
• • Illustration: 'A' claimed right over land in possession of 'B'. He has not
produced any valid evidence. The fact of existence of 'A's right over the
property is not proved. The Court may require further evidence to prove
the fact.
• Section 2(1)(j): "Proved": "proved"- 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.
• What this section says - Proved: When a relevant
fact is shown to exist and if the Court is satisfied
about the existence, it is proved.
• The Court will decide on the rights and liabilities of
the parties on the basis of such facts.
• It is a positive act. The Court will decide the case in
his favour.
• Illustration: 'A' claimed right over land in possession
of 'B'. He produced a Will and proved the Will to be
genuine. Now 'A' has proved the fact of existence of his
right over the property. The Court will pass decree in
favour of 'A'.
• Section 2(1)(k): "Relevant": "relevant"-A fact is said to be relevant to
another when it is connected with the other in any of the ways referred to
in the provisions of this Adhiniyam relating to the relevancy of facts.
• What the section says: Neither The Indian Evidence Act nor this Act, give
any specific definition of 'relevancy' or 'relevant fact'. Under the Act, a fact
is relevant if the fact is connected with the other fact in any of the ways
referred to in provisions of the Act relating to the relevancy of facts.
• The definition just says, one is connected with the other as referred to in
the provisions of this Act.
• Sections from 4 to 50 of this Act provide several instances where one fact
may be connected with the other fact.
• Illustrations'A' is accused of committing a crime of murder at Calcutta on
certain day. The fact that 'A' was at Chennai on that day is relevant The fact
that, near the time when the crime was committed, 'A’ was at a distant
place from the place of offence, would render commission of offence as
highly improbable, though not impossible is a relevant fact.
• One fact can be said to be relevant to another in the following ways:
1) Common course of events: Any two facts which are so related to each
other according to the common course of events. Illustration: 'A's beating 'B'
with the stick and 'A's causing 'B’s death by such beating.
2)Proves or renders probable: One fact either taken by itself or in
connection with other facts proves or renders probable.Illustration: The fact of
entry in the marriage register proves the fact of marital relationship between
the parties.
3) Past or Present: The past, present, or future existence or non-existence of
the other.Illustration:Previous judgments relevant to bar a second suit or trial.
Thus, a fact is relevant if it proves or disproves the existence or non- existence
of the other fact either by itself or in connection with other facts.
Relevant facts may be acts and omissions. It may be isolated or contiguous
But the relevant fact should form a part of the transaction in question.
Section 2(2): Words and expressions used herein and not defined but defined
in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha
Sanhita, 2023 and the Bharatiya Nyaya Sanhita, 2023 shall have the same
meanings as assigned to them in the said Act and Sanhitas.
"FACTUM PROBANDUM" AND "FACTUM PROBANS"
Introduction
1. Facts play an important role in any legal proceedings as any given
case is decided on the basis of the facts available before the court.
2. There are usually two kinds of facts in a legal proceeding, the
disputed facts or the 'facts in issue' and evidential or 'relevant
facts’.
3. The two Latin maxims "factum probandum" and "factum probans"
are of great significance while adjudicating a case.
4. The maxim "factum probandum" refers to the facts in issue or the
disputed facts while the maxim "factum probans" refers to the
relevant or evidential facts.
5. Both these facts are generally interconnected with each other but
the facts in issue are given primary consideration while the
relevant facts play a secondary role. It is essential to understand
the similarities, differences and interconnection between the two
to have a better understanding of any legal proceeding.
What is factum probandum?
• Factum probandum refers to the facts in issue or the disputed facts that are
contested or raised in a legal dispute, whether civil or criminal proceedings.
• Factum probandum is a legal maxim derived from Latin which can be
defined as any principal or main fact that needs to be proven by a counsel in
a legal proceeding before the Court.
• It can be any principal fact that possesses the burden of proof in a suit or
trial and needs to be proved. It refers to the core facts of a case or a legal
dispute.
• The burden of proof to establish the principal facts or the factum
probandum is generally upon the party initiating the legal dispute or the
party that would fall in a suit if it fails to provide appropriate evidence. But
it may be the opposite in certain cases, such as the Protection of Children
from Sexual Offences (POCSO) cases which is called the reverse burden of
proof.
• The concept of factum probandum also rules out allowing to produce the
irrelevant facts as the maxim refers only to the facts in issue which limits
the proceedings to relevant evidence preventing the case from becoming
complicated or affected due to the non- relevant evidence.
• It will also result in never-ending judicial proceedings as takes too much of
the courts' time once it starts allowing to hear irrelevant facts.
What is factum probans?
• Factum probans is another legal maxim derived from Latin which refers to the
evidential or the relevant facts which are connected to the facts in issue or
factum probandum.
• These are the facts which are not principal in nature but are subordinate to the
original facts.
• The relevant or evidential facts are usually used to support or prove the facts in
issue.
• These facts are in the nature of material supporting the disputed facts.
Difference between factum probandum and factum probans
1. The maxims factum probandum and factum probans are of great significance
in the legal proceedings. The main difference between both is the nature of
facts. While the former refers to the principal facts, the latter refers to the facts
that are subsidiary facts.
2. Factum probandum refers to the main facts that are contested in a legal
proceeding and factum probans refers to the facts that are evidential in nature
and which are essential to prove or establish the main facts.
3. For example, A and B are two rivals. A and B fight on a particular day and A
threatens to kill B. B is found dead the next day. Here, whether. A has killed B
is the principal fact or the fact in issue and whether A had threatened B the
previous day and whether A and B were rivals are the evidential facts.
What is factum probans?
• Factum probans is another legal maxim derived from Latin which refers to the
evidential or the relevant facts which are connected to the facts in issue or
factum probandum.
• These are the facts which are not principal in nature but are subordinate to the
original facts.
• The relevant or evidential facts are usually used to support or prove the facts in
issue.
• These facts are in the nature of material supporting the disputed facts.
Difference between factum probandum and factum probans
1. The maxims factum probandum and factum probans are of great significance
in the legal proceedings. The main difference between both is the nature of
facts. While the former refers to the principal facts, the latter refers to the facts
that are subsidiary facts.
2. Factum probandum refers to the main facts that are contested in a legal
proceeding and factum probans refers to the facts that are evidential in nature
and which are essential to prove or establish the main facts.
3. For example, A and B are two rivals. A and B fight on a particular day and A
threatens to kill B. B is found dead the next day. Here, whether. A has killed B
is the principal fact or the fact in issue and whether A had threatened B the
previous day and whether A and B were rivals are the evidential facts.
RELATIONSHIP OF FACTUM PROBANDUM AND FACTUM PROBANS
• Both factum probandum and factum probans form a significant part of legal
proceedings. They are like the two sides of the same coin. Both can be said to
be interconnected to each other and interdependent too to some extent. The
former requires the assistance of the latter to support or challenge itself while
the latter is limited only to the preposition laid down as the former.
• For example, the fact in Issue is whether A has committed theft. And the
relevant fact is that A has criminal antecedents of committing theft or
robbery. In such a case the fact in issue is dependent upon the relevant fact,
which is of great value to prove the possibility of theft having been
committed by A. Similarly, the relevant fact is of no value in the absence of
the aforementioned fact in issue. Therefore, both factum probandum and
factum probans are interrelated with each other.
Case laws surrounding factum probandum and factum probans
The Indian judiciary, especially the Hon'ble Supreme Court of India has made
various observations from time to time with regard to factum probandum (fact in
issue) and factum probans (relevant fact). The Supreme Court, in various
judgments, has noted the role of circumstantial evidence in proving the facts in
issue. The following are some of the significant rulings of the Hon'ble Supreme
Court.
Vilas Pandurang Patil v. State of Maharashtra (2004)The accused in the
instant case was arrested for committing offences under Sections 302 and 404 of
the Indian Penal Code, 1873 (Sections 101 and 313 of BNS) and was
subsequently acquitted by the Trial Court. The order of the Trial Court was
reversed by the High Court of Bombay which convicted the accused and
sentenced him to life imprisonment and imprisonment for two years for the
aforementioned offences respectively.
The accused has, therefore, challenged the judgement passed by the High Court
of Bombay before the Hon'ble Supreme Court.The Apex Court, in this case,
noted that in order to prove that any crime is committed, it is not necessary for
that offence to be seen while it is being committed or to be proved by direct
evidence. The Court noted that the commission of the offence can also be
proved by circumstantial evidence. It was observed that the principal fact or
factum probandum can be proved indirectly by drawing inferences from the
relevant facts or the factum probans.
The Court clarified that circumstantial evidence is not direct evidence
but it consists of other facts that may be related to the fact in issue or the
principal fact that helps in drawing legal conclusions from the chain of
circumstances formed by the evidentiary facts.
Gambhir v. State of Maharashtra (1982)
The instant case is a criminal appeal filed before the Hon'ble Supreme Court
against the judgement of the Bombay High Court where it had convicted the
appellant for committing an offence under Section 302 of the Indian Penal Code,
1873 and sentenced him to life imprisonment.
The Apex Court, in this case, noted that the case completely had to be decided
upon the circumstantial evidence (factum probans) as there was no direct
evidence in the case.
The Court observed that the law with regard to circumstantial evidence is well-
settled and noted that, if a case rests upon circumstantial evidence, the evidence
must qualify following tests.
1. The circumstances pointing towards the guilt of the accused must be
convincingly and firmly established.
2. The circumstances must be of a definite nature and must certainly point
towards the guilt of the accused.
3. The circumstances must collectively form a chain which provides no scope to
escape from the conclusion that the crime has been committed by the accused
no other person.
4. The circumstances must be incapable of any other hypothesis other than the
guilt of the accused and must not only prove the guilt of the accused but also
be inconsistent in proving the accused’s innocence in order to sustain the
conviction.
 Theory of Relevancy
It has been noted that two fundamental rules on which the law of evidence is
based are:
1) no facts other than those having rational probative value should be admitted
in evidence, and
2) all facts having rational probative value are admissible in evidence unless
excluded by a positive rule of paramount importance. These two ideas are
expressed in Section 3 of the Adhiniyam, which says:
Section 3 . Evidence may be given of facts in issue and relevant facts. –
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.
llustrations.: (a) 'A' is tried for the murder of 'B' by beating him with a club with
intention of causing his death.
At 'A's 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
(b) A suitor does not bring with him, and have in readiness for production at the
first hearing of the case, a bond on which he relies. This section does not enable
him to produce the bond or prove its contents at subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by the
Code of Civil Procedure, 1908.
What the section says:
• Section 3 of the Act permits that 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 declared to be relevant by the Act.
• Sections 4 to 50 declare some facts as relevant under certain
circumstances.
• Fact in issue and such other relevant facts mentioned in Sections 4 to 50 may
be produced as evidence. This section specifically says no other evidence is
permitted.
• Under section 168 of this Act, a judgment must be based upon facts declared
by this Act to be relevant and to be duly proved.
The following are the conditions prescribed in the Section:
1. Fact in issue: This section permits production of evidence to prove the
existence or non-existence of Fact in issue.
2. Relevant fact: Further production of evidence to prove facts which are declared to
be relevant facts by the Act is also permitted. Sec. 4 to Sec. 50 of this Act provides
several instances where one fact may be connected with the other fact. Such relevant
facts may be proved by giving evidence.
3. No others: This section expressly excludes the evidence of irrelevant facts, that is
found in the phrase "and of no others". A party is precluded from proving any 'fact'
which is not declared relevant by the Act. Thus, evidence of all collateral facts is
excluded.
Admission with consent: Gujarat High Court: Modi Nathubhai Motilal v.
Chhotubhai Manibhai (AIR 1962 Guj 68)
Parties can admit matters relating to the proof of documents. But they cannot admit
by consent irrelevant evidence as relevant.
Erroneous omission to object to irrelevant evidence does not make the evidence
relevant. Further evidences which are not relevant to the principal matter in dispute
are excluded to save public time.
4. Civil Procedure Code: By way of explanation, this section prohibits any person
from giving further evidence to prove facts when he is disentitled to prove by any
provision of the law relating to Civil Procedure.
There must be a specific provision in this Act to treat the facts as relevant and such
facts must also be proved as laid down in the Act. It is only those facts which are
declared to be relevant and duly proved that can be the basis of a judgment as
provided by Section 168 of this Act.
Illegal means: Supreme Court: Magraj Patodia v. R. K. Birla(1971 AIR 1295)• The
fact that a document was procured by improper or even illegal means will not be a bar to
its admissibility, if it is relevant and its genuineness proved.
But while examining the proof given as to its genuineness, the circumstances, under
which it came to be produced into Court, have to be taken into consideration.
Relevancy and Admissibility
Relevancy: Relevancy means a connection of event as cause and effect. 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.
Admissibility: Admissibility refers to all the relevant facts that an acceptable by the
Court.
More often the expressions 'relevancy and admissibility' are used a synonyms but their
legal implications are distinct and different.
The fundamental difference between the two lies in the following basic feature:
admissibility decides whether relevant evidence has to be admitted not.
relevancy declares whether the evidence is logically relevant to the facts of the given
case.
There are some facts which are relevant, but not admissible and there are some facts
which are admissible but relevant.
Illustration:Certain communications enjoy privileged status and are no admissible in
court, despite their relevance. These include conversations between spouses during
marriage, professional communications between an advocate and their client, and
• Questions allowed during cross-examination to challenge the truthfulness
or credibility of witnesses, even if not direct relevant, are admissible.
• Facts which are Legally not admissible but Logically Relevant
• There are some facts which are logically relevant, however due to some
reason they are not legally admissible under this Act.
• Further the Act consider some facts as relevant even though they are
logically not relevant.
• The following are a few examples:
a. Logically relevant but legally inadmissible
1. Section 23 states that the confession made to a police officer is not
admissible. The fact is logically relevant but legally inadmissible.
2. As per Section 46, in civil cases prior conduct and character of any person
concerned is irrelevant. It is logically relevant but legally inadmissible.
b. Logically irrelevant but legally admissible
3. Section 47 says in criminal cases previous good character is relevant
Logically, it may be considered irrelevant because prior good conduct
does not guarantee that the accused will not commit an offense.
4. Section 128 does not permit admissibility of communication between the
spouses even though it is logically relevant.
Difference between Relevancy and Admissibility
1. When the facts are so related as "cause and effect"
they are called relevant. When facts have been
declared to be legally relevant under the Act, they
become admissible.
2. Relevancy pertains to the significance of facts,
while admissibility determines which facts can be
presented in court and which cannot.
3. The relevancy is based on logic and human
experience. Admissibility is based on legal provisions.
4. The Court may apply its discretion to decide
relevancy. But the Court has no discretion with regard
to admissibility.
 Admissibility Relevancy
1. Admissibility is not based on logic but on strict 1. Relevancy is based on logic and probability.
rules of law.

2. The rules of admissibility is described 2. The rules of relevancy is described

after section 56 of the Evidence Act, 1872. from sections 5 to 55.

3. The rule of admissibility declares 3. The rules of relevancy declares what

whether certain type of relevant is relevant. evidence are admissible or are to be excluded.

4. Admissibility is means and of modes 4. Under the Evidence Act, the rules of

for admissibility of relevant evidence. relevancy means where evidence are admissible.

5. The facts which are admissible are 5. The facts which are relevant and not

necessarily relevant. necessarily admissible.

6. In admissibility court has no discretion. 6. In relevancy, the Court has discretionary power.

7. Statements are not admissible in 7. However, statements are relevant in

evidence. evidence.
 Closely connected facts
Section 4. Relevancy of facts forming part of the same transaction.
Facts which, though not in issue, are so connected with a fact in issue or a relevant
fact 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.
(a) 'A' is accused of the murder of 'B' by beating him. Whatever was said or done
by 'A' or 'B' or the bystanders at the beating, or so shortly before or after it as to
form part of the transaction, is a relevant fact.
(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 jails
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.
(c) '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.
(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.
 • Res Gestae
• The principle or law embodied in Section 4 of this Act is usually known as
the rule of Res Gestae recognised in English Law.
• The term Res Gestae has not been used in the Indian Evidence Act, 1872
or The Bharatiya Sakshya Adhiniyam, 2023.
• The essence of the doctrine is that a fact, even if not directly in issue or
relevant, becomes relevant if it is so connected with the fact in issue or
relevant fact as to "form part of the same transaction".
• Res Gestae is a Latin word which means "things done". It is spontaneous
declaration made by a person immediately after an event a before the mind
had an opportunity to conjure a false story. This is a rule evidence. It is an
exception to the hearsay rule.
• Under this doctrine, hearsay statements are considered trustworthy the
purpose of admission as the act of the witness was spontaneous a
concurrent with an event. The rationale for making certain statement or f
admissible under Section 4 of this Act is on account of the spontaneity an
immediacy of such statement or fact in relation to the fact in issue
Relevant Fact. But it is necessary that such fact or statement must be a par
of the same transaction.
• Same transaction: The essential condition is that fact should form part of the same
transaction. This includes things done and things said in the course of a transaction.
Acts and declarations accompanying a transaction are treated as Res Gestae and are
admissible in evidence.
• The term 'transaction' used in this section is defined as a crime contract, wrong, or
any other subject of inquiry that may be in question by single name.
• A transaction is a group of facts so connected together and referred a single legal
name, such as a crime, a contract, a wrong or any other subject of inquiry which
may be in issue.
• It includes both the immediate cause and effect of an act or event.
• Rattan Singh v. The State of Himachal Pradesh (1997 4 SCC 161)
A neighbour intruded into a woman's house when she was sleeping She cried that the
appellant was standing there with a gun. This was followed by the sound of a
gunshot. Later she died.
The Supreme Court held that that statement of deceased can be admitted under Section 6 of
the Evidence Act (Section 4 of this Act) on account of its proximity of time to the act of
murder.The Court observed that act of the assailant intruding into the Courtyard during dead
of the night, victim's identification of the assailant, her pronouncement that appellant was
standing with a gun and his firing the gun at her, are all circumstances so intertwined with
each other by proximity of time and space that the statement of the deceased became part of
the same transaction and hence it is admissible under Section 6 of the Evidence Act (Section
4 of this Act).
• Different times and places: The time and place of occurrence are not
considered as essential factors to determine the relevancy of facts. The
statement must have been made contemporaneous with the acts which
constitute the offence or at least immediately thereafter. But if there was an
interval, however slight it may be, which was sufficient enough for
fabrication, then the statement is not part of res gestae.
• Gentela Vijayvardhan Rao v. State of Andhra Pradesh: Supreme
Court: (1996 6 SCC 241)
• A bus was set on fire which resulted in the death of 23 passengers.
Statements of two seriously injured passengers were recorded by the
Magistrate under Section 32 of the Act (Section 26 of BSA) (dying
declaration). But they survived.
• It was held that there was appreciable interval between the criminal act and
the recording of their statements by the Magistrate and as such the statements
could not be relied upon under Section 6 (Section 4 of this Act).
• Vasa Chandrasekhar Rao v. Ponna Satyanarayana: Supreme Court
(2000 CriLJ 3175)
The accused murdered his wife and daughter. A telephone call was received
by the father of the victim, from the father of the accused. He intimated to him
that the accused had killed his wife and daughter. On reaching the place of
occurrence, father saw the dead bodies of the deceased persons as well as the
knife stained with blood lying nearby.
It was held that in the absence of a finding as to,
• Whether the information was conveyed either at the time of commission of
the crime or immediately thereafter, so as to form the same transaction,
• Such utterances cannot be considered as relevant under Section 4 of this
Act.
The conditions for applicability of Section 4 of this Act:
1. Must relate to Fact in issue or Relevant Fact: The declarations (oral or
written) must relate to the act which is in issue or relevant thereto. They are
not admissible merely because they accompany an act.
Moreover, the declarations must relate to and explain the fact they accompany,
and not independent facts, previous or subsequent thereto, unless such facts
are part of a transaction which continuous.
2.Contemporaneous: The declarations must be substantially
contemporaneous with the fact and not merely the narrative of past.
3. Same person: The declaration and the act may be by the same person, or
they may be by different persons.
Illustrations: The declarations of the victim, assailant and bystanders.
In conspiracy and riot, the declarations of all concerned persons are
admissible.
4. Corroborate or to understand: Though admissible to explain corroborate,
or to understand the significance of the act declarations are not evidence of
the truth of the matters stated.
The section provides for the admission of several classes of facts whic are
closely connected with the transaction under inquiry.
Expansion of The Doctrine:The Courts have slowly broadened the scope of
this section by giving liberal meaning to the word 'transaction' in cases like
domestic violence child witness, rape etc.
• Section 5. Facts which are occasion, cause or effect of facts issue or
relevant facts.
Facts which are the occasion, cause or effect, immediate or otherwi of
relevant facts, or facts in issue, or which constitute the state of thin under
which they happened, or which afforded an opportunity for the
occurrence or transaction, are relevant.
Illustrations.
(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
showed it, or mentioned the fact that he had it, to third persons,
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 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
which afforded an opportunity for the administration, of poison, relevant
facts.
1. Occasion: This section permits facts as relevant if such facts show the
circumstances which constituted the occasion of happening of fact in issue or
relevant fact.
Illustration: The facts that 'A' borrowed money from 'B' and on the day of murder 'B'
had gone to 'A' to demand money back are relevant facts showing occasion.The threat
in the morning formed part of the occasion to the event of murder at night.
2. Cause: Something that constitutes the event is caused.
Illustration: An accident happened due to negligent driving. The accused was
intoxicated when he was driving is relevant as it is the cause of the accident.
3. Effect: Effect is everything which have been left behind as a result of the happening
of the act. These are the records of the event and clarifies the nature of the act.
Illustration: 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.
4.Opportunity: Evidence to show that the fact in issue or relevant fact would not have
happened but for that particular cause, is relevant.
Illustration : The circumstances that the accusedand the victim werealone and stayed
together at the house during the night suggest an opportunity for the alleged offence,
making this fact relevant to the case.
• Evidence of alibi shows evidence of no opportunity.
5. State of things: The circumstances or context in
which the fact in issue or relevant occur elucidate the
physical conditions associated with the main facts.
• Illustration: The question was regarding the
consent of sexual intercourse preceding the
murder. The disarray in the room, defensive
wounds on the deceased, and her position on the
floor with a bleeding face suggest a struggle
between the deceased and the accused, indicating
that intercourse was not consensual.
Section 6. Motive, preparation and previous or subsequent conduct.
(1) Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact.
(2) 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
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.
Explanation 1-The word "conduct" in this section does not in
statements, unless those statements accompany and explain acts other
statements; but this explanation is not to affect the relevancy of statem
under any other section of this Adhiniyam.
Explanation 2-When the conduct of any person is relevant statement
made to him or in his presence and hearing, which affects conduct, is
relevant.
• Illustrations.
(a) 'A' is tried for the murder of 'B'. The facts that 'A' murdered 'C 'B'
knew that 'A' had murdered 'C', and that 'B' had tried to extort m
from 'A' by threatening to make his knowledge public, are
relevant.
(b) 'A' sues 'B' upon a bond for the payment of money. 'B' denied
making of the bond. The fact that, at the time when the bond was
alleged to be made, 'B' required money for a particular purpose, is
relevant.
(c) 'A' is tried for the murder of 'B' by poison. The fact that, before
death of 'B', 'A' procured poison similar to that which was administer
'B', is relevant.
(d) The question is, whether a certain document is the will of ‘A facts
that, not long before, the date of the alleged will, 'A' made inquiry
into matters to which the provisions of the alleged will relate; that he
consulted advocates in reference to making the will, and that he
caused drafts of other wills to be prepared, of which he did not
(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 witnesses, or suborned persons to give false evidence
respecting it, are 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 person who robbed 'B", and that immediately
afterwards 'A' ran away, are relevant.
(g) The question is, whether 'A' owes 'B' ten thousand rupees. 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' ten thousand rupees", and that 'A' went away without making any answer, are relevant facts.
(h) The question is, whether 'A' committed a crime. The fact that 'A' absconded, after receiving a
letter, warning 'A' that inquiry was being made for the criminal, and the contents of the letter, are
relevant.
(i) 'A' is accused of a crime. The facts that, after the commission of the alleged crime, 'A'
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.
(j) The question is, whether 'A' was raped. The fact that, shortly after the alleged rape, 'A' 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, 'A' said that 'A' had
been raped is not relevant as conduct under this section, though it may be relevant as a dying
declaration under clause (a) of section 26, or as corroborative evidence under section 160.
• Motive: "Motive" is the moving power for a definite result. It incites or
stimulates a person to do an act in a certain way. Motive is a psychological
fact. It cannot be shown directly. It has to be inferred by the external
manifestation of conduct of accused.
• Often the accused expresses his int design through threat and declaration.
Any such threat or declaration before the commission of the offence is
indicative of the probable motive of accused. Section 6 makes such
conduct relevant.
• Motive is a relevant factor in all criminal cases. The prosecution is bound
to prove motive in a criminal case as it is known only to perpetrator of the
crime and may not be known to others. If the motive proved by
prosecution, the Court has to consider it and see whether it adequate.
• Where a crime is proved beyond reasonable doubt, it is not necessary
consider the evidence of motive. In cases based on circumstantial evidence
motive assumes great significance as an enlightening factor in the process
presumptive reasoning.
• Illustration: 'A' is accused of murdering of 'B'. The facts that A 'murdered
'C' which was known to 'B'.'B' threatened 'A' to make his knowledge
public to extort money from 'A' are relevant.
• Preparation: Preparation entails organizing or devising the necessary
means for carrying out a crime.
• Every criminal act inherently involves preceding phase of preparation.
• Illustration: 'A' is accused of murder by poisoning 'B'.• The fact that,
before the death of 'B', 'A' procured poison similiar to that which was
administered to 'B', is relevant to show that he made necessary
preparation for committing the crime.
• Previous conduct & Subsequent conduct: The conduct, in order be
admissible, must be such that it has close nexus with a Fact in issue
Relevant fact.
• Illustration: The facts that, after the commission of the alleged crime, b
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.It is well settled that
only that piece of conduct for which accused has no reasonable
explanation except the hypothesis that he is guilty can be held
inculpatory.
• Statements 'accompany and explain' acts: The Explanation 1 makes it
clear that the mere statements as distinguished from acts do not constitute
'conduct' unless those statements 'accompany and explain acts, other than
statements. Such statements accompanying the acts are considered to be
evidence of res gestae.
• Illustration: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.
• Statement made to him or in his presence and hearing:
• By way of explanation, this section states that 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.
• Illustration: The question is, whether 'A' owes 'B' Rs. 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' Rs.
10,000", and that 'A' went away without making any answer, are relevant
facts.
 • Judicial decisions on Section 6 of BSA
• Aghnoo Nagesia v. State of Bihar: Supreme Court: (1966 AIR 119)The
first information was given by the accused himself. It was held that the fact of
his giving the information is admissible against him as evidence of his
conduct under sec. 8 of the Indian Evidence Act (Section 6 of this Act)
• Prakash Chand v. State (Delhi Admn): Supreme Court (1979) CriLJ
329)• The evidence of circumstance that an accused led a police officer and
pointed out the place where the weapon was found hidden, would be
admissible as conduct, under Section 8 (Section 6 of this Act),irrespective of
whether any statement made by him contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 (Proviso to Section 23 of
this Act).
• Uttam Singh v. State of M.P.: Madhya Pradesh High Court: (2003) CriLJ
560)The deceased and his minor son aged about 11 years, were sleeping in the
verandah of their house. The deceased was hit by an axe by the appellant. The
child witness had shouted instantaneously for help naming the appellant as the
assailant.• The Court held that such shouts being natural and probable in the
facts of the case are admissible in evidence as a part of the same transaction
as res geste under Section 4 of the BSA, Conduct of the witness is also
relevant under Section 6 of the same Act .
• State (N.C.T. Of Delhi) v. Navjot Sandhu Afsan Guru: Supreme Court: (2005 11 SCC
600)
• Certain chemical packets were recovered from the premises. The address of the seller was
written in packets. Later the accused identified the shop and owner. The Supreme Court
held that as the name and address of the shop was already known to the Police, the
evidence was not admissible under Section 27 (Proviso to Section 23 of this Act).
• However, the conduct of accused in pointing out the shop and its proprietor would be
relevant under Section 8 of the Evidence Act (Section 6 of this Act).
• Divorce proceedings: Deepti Kapur v. Kunal Julka: Delhi High Court: (2020 SCC
OnLine Del 672):
• The conversation between the wife and her friend was recorded on a CD. In that CD, she
had spoken about the husband and his parents.
• It was held that it was a 'relevant fact' as understood in law, upon a combined reading of
sections 5, 7 and 8 of the Evidence Act (Section 3, 5 & 6 of this Act). To that extent, the
contents on the CD were held as relevant for purposes of the divorce proceedings.
• Harvinder Singh @ Bachhu v. The State of Himachal Pradesh, Supreme Court: (2023
LiveLaw (SC) 889)
• A subsequent conduct would be a relevant fact under Section 8 of the Evidence Act (Section
6 of this Act). However, such a fact has to be proved.
• Mere absconding by itself cannot constitute a sole factor to convict person. It may be because
an accused may abscond as he might fer an illegal arrest.
• Tape recorded conversation: (Supreme Court) R.M.
Malkani v. State of Maharashtra (1973 AIR 157):
• The tape itself becomes the primary and direct evidence of
what has been said and recorded.
• Tape recorded conversation is admissible provided first the
conversation is relevant to the matters in issue; secondly,
there identification of the voice; and thirdly, the accuracy of
the tap recorded conversation is proved by eliminating the
possibility erasing the tape record.
A contemporaneous tape record of a releva conversation is a
relevant fact and is admissible under section 8 the Evidence
Act (Section 6 of this Act).
• Section 7. Facts necessary to explain or introduce fact
in issue or relevant facts.
Facts necessary : (i)to explain or introduce a fact in issue
or relevant fact, or
(ii) which support or rebut an inference suggested by a fact
in issue or a relevant fact, or
(iii) which establish the identity of anything, or person
whose identity, is relevant, or
(iv) fix the time or place at which any fact in issue or
relevant fact happened, or
(v) 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.
(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.
(b) 'A' sues 'B' for a libel imputing disgraceful conduct to 'A'; 'B' affirms that the
matter alleged to be libelous 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’.
(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 6, as conduct subsequent to and
affected by facts in issue. The fact that, at the time when he left home, 'A' 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.
(d) 'A' sues 'B' for inducing 'C' to break a contract of service made by him with 'A'.
'C', on leaving 'A's service, says to 'A'-"I am leaving you because 'B' has made me a
better offer".
This statement is a relevant fact as explanatory of 'C's conduct, which is relevant as a
fact in issue.
a. Facts to explain or introduce a fact in issue or relevant fact
Illustration: Facts to explain or introduce age, career, a police report to
introduce the fact in issue of crime committed.
b. Facts which support or rebut an inference suggested by a fact in issue or
relevant fact: Illustration: An accused went away to attend a business meeting,
but not to run away from police. The fact of attending business meeting is
relevant to rebut the inference of guilty mind and absconding from residence
c. Which establish the identity of anything or person whose identity is
relevant:The person to be identified can either be the victim, the accused perse
or any third party who is related to the facts in issue or relevant fact.
Illustration: Victim's blood stains in accused person's shirt, finger print, CCTV
recording.
Identification parade: The evidence of mere identification of the accused
person at the trial for the first time, is from its very nature inherently of a weak
character. The purpose of a prior test identification therefore, is to test and
strengthen the trustworthiness of that evidence. Further it enables the
investigating agency to ascertain the correctness otherwise of the claim of those
witnesses who claimed to have seen th offender of the crime as well as their
capacity to identify him.
• Not substantive evidence: N.S. Jain v. the State:
Delhi High Court (ILR 1978 Delhi 327)• Section
9 of the Indian Evidence Act (Section 7 of this
Act) makes test identification parade relevant 'to
establish the identity of anything or person whose
identity is relevant'. No doubt, the identification an
accused in a test identification parade is a useful
piece of evidence.
• However, it is not substantive evidence and it can
be used only to corroborate the witness when he
correctly identifies an accused in the Court. The
evidence given by a witness in Court is
substantive evidence.
• Other type of evidence:
Supreme Court: Sampat Tatyada Shinde v. State of Maharashtra (1974 CriLJ 674):
The test identification is not the only type of evidence that can be tendered to confirm the
evidence of a witness regarding the identification of the accused in Court, as the
perpetrator of the crime. The identity of the culprit can be fixed by circumstantial
evidence also.
Identification Parade:
General Guidelines: Supreme Court: Rajesh v. State of Haryana (2020 SCC OnLine
SC 900) In this case, the Supreme Court has laid down the following principles regarding
parade of identity.
i. The purpose of conducting an Identification Parade is that persons who claim to have
seen the offender at the time of the occurrence identify them from amongst the other
individuals without tutoring or aid from any source. An identification parade, in
other words, tests the memory of the witnesses, in order for the prosecution to
determine whether any or all of them can be cited as eye-witness to the crime;
ii. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872
(Now The Bharatiya Nagarik Suraksha Sanhita, 2023 and The Bharatiya Sakshya
Adhiniyam, 2023) which lends statutory authority to an identification parade.
Identification parades belong to the stage of the investigation of crime and there is no
provision which compels the investigating agency to hold or confers a right on the
accused to claim an Identification Parade.
iii. Identification parades are governed in that context by the provision of Section 162
of the CrPC (Section 181, The Bharatiya Nagarik Suraksha Sanhita, 2023)
iv. An Identification parade ordinarily be conducted soon after the arrest of the
accused, so as to preclude a possibility of the accused being shown to the witnesses
before it is held;
v. The identification of the accused in Court constitutes substantive evidence;
vi. Facts which establish the identity of the accused person are treated to be relevant
under Section 9 of the Evidence Act (Section 7 of this Act).
vii. An Identification parade may lend corroboration to the identification of the
witness in Court, if so required;
viii. As a rule of prudence, the Court would, generally speaking, look for
corroboration of the witness' identification of the accused in Court, in the form of
earlier identification proceedings. The rule of prudence is subject to the exception
when the Court considers it safe to rely upon the evidence of a particular witness
without such, or other corroboration;
ix. Since an Identification parade does not constitute substantive evidence, the failure
to hold it does not ipso facto make the evidence of identification inadmissible;
x. The weight that is attached to such identification is a matter to be determined by
the Court in the circumstances of that particular case;
xi. Identification of the accused in an Identification parade or in Court
is not essential in every case where guilt is established on the basis of
circumstances which lend assurance to the nature and the quality of
the evidence; and
xii. The Court may, in the context and circumstances of each case,
determine whether an adverse inference should be drawn against the
accused for refusing to participate in an Identification parade.
However, the Court would look for corroborating material of a
substantial nature before it enters a finding in regard to the guilt of the
accused.
d. Fix the time or place at which any fact in issue or relevant fact
happened
Illustration: CCTV recording, witness to state the time
e. Show the relation of parties: Illustration: DNA test, Car
registration to identify the owner.
Section 8. 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 State.The facts that 'B'
procured arms in Europe for the purpose of the conspiracy, 'C'
collected money in Kolkata for a like object, 'D' persuaded persons to
join the conspiracy in Mumbai, 'E' published writings advocating the
object in view at Agra, and 'F' transmitted from Delhi, 'G' at Singapore
• the money which 'C' had collected at Kolkata, 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 may have been ignorant of all of them,
and although the persons by whom they were done
were strangers to him, and although they may have
taken place before he joined the conspiracy or after
he left it.
• Sardar Sardul Singh Caveeshar v. (AIR 1965 SC 682): State of
Maharashtra:The Supreme Court analysed the Section as follows:
(1) Prima facie evidence: There shall be prima facie evidence
affording a reasonable ground for a Court to believe that two or
more persons are members of a conspiracy;
(2) Evidence against the other: If the said condition is fulfilled,
anything said, done or written by any one of them in reference to their
common intention will be evidence against the other;
(3) After the intention: Anything said, done or written by him should
have been said, done or written by him after the intention was formed
by any one of them;
(4) Before or after he entered the conspiracy: It would also be
relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the
conspiracy or after he left it; and
5) Not in his favour: It can only be used against a co-conspirator and
not in his favour.
• Illustration: Reasonable grounds exist for believing that 'A' has
joined in a conspiracy to wage war against the Government of India.
'B' procured arms in London 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,
'F transmitted money collected by 'C' to 'G' at Chennai from Delhi’
H' wrote a letter giving an account of the conspiracy
All are relevant, both to prove the existence of the conspiracy, and to
prove 'A's complicity in it, although
• he may have been ignorant of all of them, and
• the persons by whom they were done were strangers to him, and
• they may have taken place before he joined the conspiracy or after
he left it.
• Section 9. 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.
Illustrations.
a. The question is, whether 'A' committed a crime at Chennai on a certain day.
The fact that, on that day, 'A' was at Ladakh 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 b either 'B', 'C' or 'D', is relevant.
The admissibility of irrelevant facts as relevant depends upon the proximity
between the facts and what degree they can make the facts in issue probable or
improbable.
• Illustrations
(a) The question is, whether 'A' committed a crime at Calcutta on a certain day.
• The fact that, on that day, 'A' was at Chennai 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.
• Relevant subject to other provision: Allahabad High Court: Musammat Bela
Rani v. Mahabir Singh (1912 14 Ind Cas 116)• The terms of Section 9 in this
Act are, no doubt, wide but they must be read subject to the other sections of the
Act, and, therefore, the fact relied on must be proved in accordance with the
provisions of the Act. If that fact is a statement made by a person who is not
called or cannot be called, the statement cannot be admitted unless it comes
within the purview of subsequent sections of the Act, for example, Section 26 &
27 in this Act.
 • Alibi
• Alibi is the plea of absence of the accused person from the
place of occurrence at the time of the commission of the
offence. The term "Alibi "is a Latin word which means
'elsewhere".
• There are certain facts which cannot be said to have co-existed
with another fact. If one fact is proved to be true, the other fact
automatically stands disproved. This is the principle behind
the concept of Alibi.
• Alibi is governed by Section 9 of this Act and the burden to
prove an alibi is always on the accused and he must prove it to
the satisfaction of the Court; This burden cannot be discharged
by showing merely a preponderance of probabilities in his
favour. As envisaged by Section 9 he has to show a high
degree of probability in his favour.
• General Principles: Supreme Court: Kamal Prasad Vs The State Of
Madhya Pradesh (Now State Of Chhattisgarh) (2023 INSC 895):
Based on various decisions of the Supreme Court, in
this case, Supreme Court listed the following, as
general principles regarding the plea of alibi:
1. It is not part of the General Exceptions under the Indian Penal Code (The
Bharatiya Nyaya Sanhita, 2023) and is instead a rule of evidence under
Section 11 of the Indian Evidence Act, 1872 (Section 9 of this Act).
2 This plea being taken does not lessen the burden of the prosecution to prove
that the accused was present at the scene of the crime and had participated
therein.
3. Such plea is only to be considered subsequent to the prosecution having
discharged, satisfactorily, its burden.
4. The burden to establish the plea is on the person taking such a plea. The
same must be achieved by leading cogent and satisfactory evidence.
5. It is required to be proved with certainty so as to completely exclude the
possibility of the presence of the accused at the spot of the crime. In other
words, a standard of 'strict scrutiny' is required when such a plea is taken.
• Section 10:Facts tending to enable Court to determine amount
are relevant in suits for damages
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.
R/W Section 50: 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.
For example, in a suit for libel the defamatory statements made
before or after the commencement of the suit can affect the amount
of damages.
 Section 11: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, recognised 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 neighbours, are relevant facts.
• What the section says:This section permits evidences of transactions and
instances as relevant for judicial consideration to enable the Court to decide
on the disputed matter.
• Transaction: Clause (a) of the section deals with any transaction by which
the right or custom in question was,(i) created (ii) claimed (iii) modified
(iv) recognized (v) asserted or (vi) denied or (vii) which was inconsistent
with its existence.
• Instances: Clause (b) of the section deals particular instance in which the
right or custom was:(i) claimed or (ii) recognized, or (iii) exercised or in
which its existence was (iv) disputed (v) asserted, or departed from,
• Rights: This section applies to all kinds of rights, absolute rights,
easements rights and so on. Further, a right may be public or general or
private. A right may be incorporeal like a right of way or corporeal like
right of ownership.
• Custom: Custom is a rule followed for a long time in a particular family or
a class or community or in a district. A custom becomes a binding force by
long usage and obtains the force of law. It is an established practice at
variance with the general law.
• A custom may be a general, local, tribal or family custom.
• The expression "general custom or right" includes customs or rights
common to any considerable class of persons.
• A custom which is applicable to a locality, tribe, sect or a family is
called a special custom.
Transaction: In the ordinary sense, transaction means some business
or dealing transacted between two or more persons. The term
'transaction' is not confined to dealing with property between the
parties, but includes a testamentary dealing with the property. Example:
property sale
Illustration: The question is, whether 'A' has a right to a fishery.
i. 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, are relevant facts.
ii. Particular instances in which 'A's father exercised the right, or in
which the exercise of the right was stopped by 'A's neighbours, are
relevant facts.
 Section 12. 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 goodwill 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.
Illustrations.(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.
(b) 'A' is accused of fraudulently delivering to another persona counterfeit currency
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 t number of other pieces of counterfeit
currency is relevant. The fact that had been previously convicted of delivering to
another person as genuine counterfeit currency knowing it to be counterfeit is
relevant.
(c) 'A' sues 'B' for damage done by a dog of 'B's, which 'B' knew to ferocious. The
fact that the dog had previously bitten 'X', 'Y' and 'Z', and the they had made
complaints to 'B', are relevant.
• State of mind: No person can make out the state of mind of another person.
The Courts have to determine the state of a person's mind for variou
purposes. The Courts can only do so by deducing the existence of a
particular state of mind from the facts of a case.
• 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.
• In a trial for an offence, if the previous commission of an offence by the
accused is relevant, then, the previous conviction of such person shall be
relevant.
• Mens rea or Intention: Section 12 assumes importance as it permits mental
or bodily feelings as relevant. Mens rea or intention is an important element
of a crime. The provision of Section 12 plays a vital role determining the
extent of liability of an accused.
• Intention: '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.
• Knowledge: 'A' sues 'B' for damage done by a dog of 'B's, which 'B' knew to
be ferocious. The fact that the dog had previously bitten 'X', 'Y' and 'Z', and that
they had made complaints to 'B', are relevant.
Good faith: '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 neighbours and by
persons dealing with him, is relevant, as showing that 'A' made the representation in good
faith.
• Negligence: 'A' sues 'B' for negligence in providing him with a car 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 car is relevant. The fact that 'B' was habitually negligent about the
cars which he let to hire is irrelevant.
• Rashness: '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.
Ill-will or good-will: The question is, whether 'A' has been guilty of cruelty towards 'B', his
wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty
are relevant facts.
• State of body or bodily feeling: 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.
Emperor v. Chaturbhuj Narain Choudhury: Patna High Court (1935 164 Ind Cas 74)•
The evidence as to the history and the dealings between accused and his employer is relevant
under Section 14, Evidence Act, (Section 12 of this Act) for the purpose of showing the
accused's state of mind to deduce whether the intention of the accused was dishonest. But if
there is room for reasonable doubt, the accused is to get the benefit of it.
• Section 13. Facts bearing on question whether act was accidental
or intentional.
• When there is a question whether an act was accidental or
intentional, or done with a particular knowledge or intention, the
fact 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 different insurance company, are relevant, as tending
to show that the fires were not accidental.
• (c) 'A' is accused of fraudulently delivering to 'B' a counterfeit
currency. The question is, whether the delivery of the currency was
accidental. The facts that, soon before or soon after the delivery to
'B', 'A' delivered counterfeit currency to 'C', 'D' and 'E' are relevant,
as showing that the delivery to 'B' was not accidental.
• Section 14. 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.
• Illustrations.(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 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 Return Letter Office, are relevant.
 Relationship between proof and evidence
 Evidence and proof are fundamental concepts in legal proceedings. While they
are often used interchangeably, they have distinct meanings in legal parlance.
 Evidence refers to the material, testimony, or documents presented before a
court to establish facts. Proof, on the other hand, is the conclusion or judgment
derived from the evidence presented. The strength and quality of the evidence
determine whether a fact is sufficiently proven in the eyes of the law.
 The Bhartiya Sakshya Adhiniyam (BSA) governs the law of evidence in
India. It defines evidence and establishes rules for proving facts in judicial
proceedings. The word ‘evidence’ in its relation to law includes all the legal
means exclusive of mere arguments which tend to prove or disprove any fact the
truth of which is submitted to judicial investigation.
 Proof is the establishment of a fact through legally admissible evidence.
The relationship between proof and the law of evidence is crucial
in legal proceedings. The law of evidence governs the admissibility
and presentation of proof in court. It sets out rules and standards for
what evidence can be presented, how it should be presented, and the
weight it carries in proving or disproving facts.

Proof refers to the evidence presented in court to establish the

truth of a fact. It can be in the form of witness testimony,
documents, physical evidence, or expert opinions. The standard
of proof required varies depending on the type of case (civil or
criminal) and the specific issue being proved.
 The law of evidence provides the framework for how proof is presented and
evaluated. It includes rules regarding the admissibility of evidence, such as
relevance, reliability, and fairness. It also governs the burden of proof,
which determines which party is responsible for proving a particular fact.

 In summary, the law of evidence guides the process of presenting and

evaluating proof in legal proceedings, ensuring that only reliable and
relevant evidence is considered in reaching a decision.
 1.Evidence is the means, and proof is the result – Evidence consists of the material
presented in court, whereas proof is the degree of certainty the court arrives at after
evaluating the evidence.

2.Burden of Proof and Role of Evidence – The burden of proof lies on the party that
asserts a fact, and evidence is used to discharge this burden. (Section 101, Indian Evidence
Act; now Section 104, BSA, 2023 )

3.Standard of Proof – Different standards of proof apply depending on the nature of

the case:

• Criminal cases – Proof beyond a reasonable doubt (State of U.P. v. Krishna Gopal,
1988).

• Civil cases – Preponderance of probabilities (M.S. Narayan Menon v. State of Kerala,

2006).
 Landmark Judgments on the Justification of Evidence and Proof:

1. State of U.P. v. Krishna Gopal (1988): The Supreme Court held that in
criminal
• cases, proof must be beyond reasonable doubt and not just based on probability.

2. M.S. Narayan Menon v. State of Kerala (2006): This case explained that in
civil cases, the standard of proof is based on the preponderance of
probabilities, meaning a fact is proven if it is more likely to be true than false.

3. R.M. Malkani v. State of Maharashtra (1973): The Supreme Court ruled

that illegally obtained evidence is admissible if it is relevant and credible,
though procedural violations may affect its weight.

4. Shivaji Sahabrao Bobade v. State of Maharashtra (1973): The court

emphasized that circumstantial evidence can be sufficient to establish proof
if it forms a complete chain leading to the guilt of the accused.
1(d) Theory of Relevancy, Admissibility,
Reliability & Appreciation of Evidence in Court
of Law
 Section 3 of the BSA, 2023, succinctly encapsulates the principle of relevancy and
admissibility.
 “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.”

 This provision underscores that evidence must pertain exclusively to the “facts in
issue” or other “relevant facts” as defined under the Act. Relevance, therefore, serves as
the threshold criterion for evidence to be admitted in court. This fundamental doctrine
ensures that only pertinent evidence is presented, maintaining the focus and integrity of
judicial proceedings.
Why is this Important?
 Admissibility of facts and relevancy of facts are neither co-extensive nor
synonymous, the former being based on probative force and logical
reasoning and the latter is based on legal policy or legal rules.

 All admissible facts are relevant but all relevant facts are not admissible.

 Relevancy is the genus of which admissibility is a species. Thus, oral

statements which are hearsay may be relevant, but not being direct evidence, are
not admissible.

 Distinguishing between relevancy and admissibility helps in understanding legal

proceedings properly. Knowing what evidence is relevant and admissible
helps in presenting the case in accordance with legal standards, which can
significantly impact the result of the case.
• Theory of Relevancy
 The concept of relevance requires a direct connection between the evidence
and the central issues of the dispute, whether in criminal cases—such as
determining the commission of an offense—or in civil disputes—such as
establishing a breach of contract or harm caused.
 The concept of relevance is one criterion that governs the admission and use of
evidence in a judicial inquiry. If the evidence does not relate directly or
indirectly to the case at hand, it should not be regarded or admitted as proof for
either the prosecution or the defence.
 Relevant Evidence is evidence that makes a fact more or less likely to be true
than it would be without the evidence.
 Irrelevant evidence may be excluded for unfair prejudice, confusion, or waste
of time. Relevant evidence is generally admissible and irrelevant evidence is
never admissible.
The two leading principles on relevance are:

1)that nothing is to be received which is not logically probative

of some matter requiring to be proved; and
2)that everything which is thus probative (The probative
value of the evidence is the weight to be given to it which has to be
judged having regards to the fact and circumstances of each case)
should come in, unless a clear ground of policy or law excludes it.
Relevancy exists as a relation between an item of evidence and a
proposition sought to be proved.
Logical Relevancy vs. Legal Relevancy

‘Logical Relevancy’ means a logical connection between the two facts. For eg:
In Santosh Singh (Priyadarshini Matto) case, the fact that the helmet had a visor in
the morning & it was missing in the evening & the fact that pieces of visor were
found on the spot & apparently the victim had been hit with a heavy object
show a logical connection with the causation of death.
 A fact is said to be logically relevant to another when it bears such a causal
relation with the other as to render probable the existence or non-existence of the
latter.
 All facts which are logically relevant are not legally relevant.

 One fact is said to be legally relevant to another, only when the one is
connected with the other in any of the ways referred to in Sections 4 to 50 of the
BSA.
 Logical relevancy is broader than legal relevancy.

 Nexus: All facts which are legally relevant is logically relevant, but every fact which
is logically relevant may not necessarily be legally relevant. Thus, a confession
made to a police officer may appear to be logically relevant, but such a confession is
not legally relevant, for Section 23 declares that it cannot be used as evidence against the
person making it.
 Very often, public considerations of fairness and the practical necessity for reaching
speedy decisions necessarily cause the rejection of much of the evidence which may
be logically relevant.
 Certain classes of facts which, in ordinary life, are relied upon as logically
• relevant are rejected by law as legally irrelevant.
 Cases of exclusion of logically relevant facts by positive rules of law are:

(i) Exclusion of oral by documentary evidence: Ss. 94-102.

(ii) Exclusion of evidence of facts by estoppel: Ss. 121-123.

(iii) Exclusion of privileged communications, such as confidential communications

with a legal adviser, communication during marriage, official communications, etc.: Ss.
Theory of Admissibility: Relevant Provisions

S. 168 (Proviso 1) - Judge's power to put questions or order production


S. 3 - Evidence may be given of facts in issue and relevant facts.


S. 158 - Impeaching credit of witness.


S. 141 - Judge to decide as to admissibility of evidence.


S.107 - Burden of proving fact to be proved to make evidence

• admissible.
 Evidence must satisfy the following conditions for admissibility:

1. Relevance: The evidence must legally relate to the facts in issue or other

• relevant facts.

2. Legal Standards: Evidence must comply with procedural and substantive

• requirements of the Act.

3. Exclusion of Unlawful Evidence: Evidence obtained through illegal means is inadmissible unless overriding
public interest necessitates its inclusion.

 Admissibility of facts is based on strict legal rules rather than logical

reasoning. It relates to the permissibility of the evidence to prove a particular fact in any proceeding.
Theory of Admissibility: Case Laws

 State of U.P. v. Deoman Upadhyaya, 1960 SCC OnLine SC 8: The Hon’ble Supreme Court reiterated
that evidence must logically relate to the facts in issue to be admissible.

 State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118, the Supreme Court held that documentary evidence
is admissible only if it directly pertains to the facts in issue or any relevant facts as defined under the Indian Evidence
Act, 1872. The Court also provided guidelines to assess the relevance and admissibility of such evidence in
accordance with Section 35 of the Act (now Section 29, BSA).

Theory of Reliability of Evidence

 Reliability is the third and final stage of evidence. In context of evidence, reliability is meant by the evidences
which are considered by the Judge while delivering the Judgment.

 After the stages of relevancy and admissibility, as per Section 165 proviso, ( now Section 168, proviso)
the judge shall consider the duly proved and relevant facts as the basis of his judgment and prepare a
balance sheet in his mind of the Mitigating and Aggravating evidences on which judgment relies
 Reliability of Evidences is a process where it is seen if an evidence given to prove a relevant fact is
sufficient to the satisfaction of the court.

 There is no mechanism given as such to prove it but various other provisions assist in this such as:

– Examination-in-chief

– Cross Examination

– Re-examination
– Confession

– Contradiction
• Types of Evidences and their Reliability
• A. Oral Evidence (Sections 54-55): Defined under Section 59 as statements made by witnesses.

•Reliability Factors:

o
Direct evidence is preferred over hearsay.

o
Witness credibility, consistency, and absence of coercion.
•Case Law:

1.State of UP v. Krishna Gopal (1988) –

Supreme Court emphasized that minor
contradictions do not affect reliability.

2.Rameshwar v. State of Rajasthan

(1952) – Established that
corroboration is not always necessary if the
testimony is credible.
•B. Documentary Evidence (Sections 56-93): Includes written, printed, or
digital documents presented in court.

•Reliability Factors:

o
Authenticity and proper execution.

o
Should be original or certified copies (Sections 57-58).

•Case Law:

1. Murarka Properties Pvt. Ltd. v. Bina Kumari (1978) – A document

must be proved as per law for admissibility.

2. Ramji Dayawala & Sons v. Invest Import (1981) – Mere production

of documents is insufficient; they must be proven.
•C. Electronic Evidence (Sections 61 and 63): Includes digital records such as
emails, CCTV footage, and call recordings.

•Reliability Factors:

o
Must be accompanied by a certificate under Section 63(4).

o
Courts rely on forensic authentication.

•Case Law:

1. Anvar P.V. v. P.K. Basheer (2014) – Established mandatory compliance with

•Section 65B (now, Section 63 of BSA) for electronic evidence admissibility.

2.Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) –

Reaffirmed the need for a certificate under Section 65B (now, Section 63(4) of
BSA).
 D.Expert Evidence (Sections 39-45): Includes forensic, medical, and
handwriting analysis reports.

•Reliability Factors:

o
Expert credibility and qualifications.

o
Cross-examination and scientific backing.

•Case Law:

1. Kishan Chand v. Sita Ram (2005) – Courts should not rely on expert
• opinions alone unless corroborated by other evidence.

2. Selvi v. State of Karnataka (2010) – Narco-analysis and polygraph tests

• without consent are inadmissible.
E. Circumstantial Evidence: Indirect evidence proving guilt
inference.
• Reliability Factors:

o
Should form a complete chain leading to only one conclusion.

o
Gaps or multiple interpretations weaken its reliability.

•Case Law:

1. Sharad Birdhichand Sarda v. State of Maharashtra (1984) – Laid down

five golden principles (Panchsheel Test) for reliance on circumstantial
evidence.

2. Bodhraj v. State of J&K (2002) – Circumstantial evidence should be

• conclusive and not speculative.
Factors Affecting Reliability of Evidence
1. Witness Tampering & Hostility: Witness protection is crucial (Zahira
• Habibullah Sheikh v. State of Gujarat, 2006).

2. Forensic Limitations: Lack of proper forensic facilities can lead to

• wrongful conclusions (Nirbhaya Case, 2012).

3. Judicial Discretion: Courts must assess the relevance and credibility of each
piece of evidence (Manu Sharma v. State, 2010).

 The Law of Evidence in India provides a robust legal framework to

determine the reliability of evidence. However, issues like manipulation,
technological advancements, and judicial interpretations affect its
effectiveness. Courts emphasize scientific methods and corroborative
evidence to enhance reliability and ensure fair justice.
Appreciation of Evidence
 The analysis of the evidence by the court to ascertain the reliability and
genuineness of the evidence is called appreciation of evidence.
 It is the duty of the court to ascertain which part of the evidence represents the
truth and which part of it is false.
 In Ganesh K. Gulve v. State of Maharashtra, AIR 2002 SC 3068,
Supreme Court held that it is the duty of the court to separate the grain from the
chaff.
 Judiciary has played vital role in clarifying the rules of appreciation of
• evidences on the points where statutes were silent.
 This following Rules of appreciation of evidences laid down by judiciary does
not have universal application but needs to be applied in the light of facts and
circumstances of the case:
 A)The first and foremost rule of evidence is that an accused person can be
convicted only if his guilt could be proved beyond reasonable doubt. Benefit of
doubt is always given to the accused person.

B)Rule of Probability: Section 2 defines three ingredients of rule of

probability i.e. proved, disproved and not proved.

1. A fact is said to be proved when after considering a matter before it, the
court either believes it to exist, or consider its existence so probable that
a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exist.
2. A fact is said to be disproved when, after considering the matter before it,
the court either believes that it does not exist or consider its existence
so probable that a man of ordinary prudence ought under the circumstances
of the particular case, to act upon the supposition that it does not exist.
3. A fact is said not to be proved when it is neither proved nor disproved.
C). Rule of presumption: Section 2 defines the
ingredients presumption i.e. may presume, shall presume and conclusive proof.
•Where it is provided 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.

•Similarly, whenever it is directed that the court shall presume a fact, it shall
• regard such fact as proved, unless and until it is disproved.

•When one fact is declared 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.

•D). Falsus in uno falsus in omnibus means false in one particular thing, false in
all. This rule is a rule of caution and has not acquired the status of rule of law in
India.
 E)Evidence to be weighed not to be counted is
a rule under Section 139 of BSA, 2023 which
provides that it’s the quality of the evidence or
the evidentiary value of the evidence which
matter and not the quantity of the evidence.

F)Best Evidence Rule: It provides that best

evidence of the content of the document is the
document itself. This is the rule provided under
Section 94 of BSA, 2023.
 In a criminal cases, appreciation of evidence is one of the first and foremost tests to
consider the credibility and reliability of the prosecution version both oral and
documentary.
 The finding of the facts, the question of law and the conclusion of the Judges of the Court
culminating into the judgments in a criminal case mainly based on the appreciation of
evidence. Right from setting the law in motion in a criminal case by preferring FIR
and after completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of evidence
both oral and documentary and the admissibility and reliability of such evidence should
be considered by the Court on the basis of the facts and law for arriving at the just decision
of the case.
 Therefore appreciation of evidence is the heart and soul of the dispensation
• of justice delivery system in criminal law.
  Appreciation of Evidence
 State of Gujarat Vs Bharwad Jakshibhai and others,1990 CrLJ 2531 “For
appreciating the evidence of the injured witnesses the Court should bear in
mind that:

(1) Their presence at the time and place of the occurrence cannot be doubted.

(2)They do not have any reason to omit the real culprits and implicate falsely
the accused persons.

(3)The evidence of the injured witnesses is of great value to the prosecution and
it cannot be doubted merely on some supposed natural conduct of a person
during the incident or after the incident because it is difficult to imagine how a
witness would act or react to a particular incident. His action depends upon
number of imponderable aspects.

(4)If there is any exaggeration in their evidence, then the exaggeration is to be

discarded and not their entire evidence.
 In appreciation of evidence under section 3 of Indian Evidence Act, the Hon'ble
Supreme Court has illustrated some instances in Ganesh K. Gulve vs. State of
Maharashtra AIR 2002 SC 3068 in following words; “In order to appreciate
the evidence, the Court is required to bear in mind the setup and environment in
which the crime is committed. The level of understanding of the witnesses, The
over jealousness of some of near relations to ensure that, everyone even
remotely connected with the crime be also convicted.
 Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209: “The
time-tested rule is that acquittal of a guilty person should be preferred to
conviction of an innocent person. Unless the prosecution establishes the guilt of
the accused beyond reasonable doubt a conviction cannot be passed on the
accused. A criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of certainty that the
appellants were the real culprits.”
State of U.P. V. Ram Veer Singh and Another, 2007: "The golden
thread which runs through the web of administration of justice in
criminal cases is that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the
accused should be adopted. The paramount consideration of the
Court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is
no less than from the conviction of an innocent. In case where
admissible evidence is ignored, a duty is cast upon the appellate
Court to re-appreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any of the
accused really committed any offence or not."
• Appreciation of Evidence Through Electronic
Media
Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal
11) Sections 65A and 65B of Evidence Act, 1872
were analyzed. The court held that the physical
presence of person in Court may not be required
for purpose of adducing evidence and the same
can be done through medium like video
conferencing. Sections 65A and 65B provide
provisions for evidences relating to electronic
records and admissibility of electronic records,
and that definition of electronic records includes
video conferencing.
• Appreciation of Evidence Through Electronic Media
State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) involved the
question whether a witness can be examined by means of a video
conference. The Supreme Court observed that video conferencing is an
advancement of science and technology which permits seeing, hearing and
talking with someone who is not physically physically present with the same
facility and ease as if they were physically present. The legal requirement for the
presence of the witness does not mean actual physical presence. The court
allowed the examination of a witness through video conferencing and concluded
that there is no reason why the examination of a witness by video conferencing
should not be an essential part of electronic evidence.
 Evidence procured through illegal means
 Illegality in obtaining evidence may be due to varied reasons and causes. For
example, if the evidence has been obtained in violation of a statutory
prohibition governing procuration of such evidence, the evidence shall be said
to be "illegally obtained".
 The Judicial Committee of the Privy Council in Kuruma v. R (1955) dealt
with the conviction of an accused on the charge of being in unlawful possession
of ammunition which had been discovered in consequence of a search of his
person by a police officer below the rank of those who were permitted to
make such searches. The Judicial Committee held that the evidence was
rightly admitted. The reason given was that if evidence is admissible, it
matters not how it is obtained.
 There is, of course, always a word of caution. It is that the judge has a
discretion to disallow evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused. That caution is
the golden rule in criminal jurisprudence.
 In Magraj Patodia v. R.K. Birla (1970), the Supreme Court held that an
otherwise relevant document shall be admissible notwithstanding the fact that it
was obtained illegally in violation of the manner of search and seizure
prescribed by the statute.

 Again, the Supreme Court in Pooran Mal v. Director of Inspection (1974),

followed the proposition laid down by Privy Council and said that in India, the
test of admissibility of evidence lies in its relevancy and not the manner in
which the evidence has been obtained unless the Constitution or some
other statute specifically or impliedly bar admission of such evidence.
 The legal position regarding the question of admissibility of tape-recorded
conversation illegally collected or obtained was considered in R.M. Malkani v.
State of Maharashtra, (1973) where the Supreme Court clarified that a
contemporaneous tape-record of a relevant conversation is a relevant fact and is
admissible as res gestae under Section 7 IEA even if Section 25, Indian
Telegraph Act, 1885, is contravened.
 Similarly, in Umesh Kumar v. State of A.P., (2013) it was held that it is a
settled legal proposition that even if a document is procured by improper or
illegal means, there is no bar to its admissibility if it is relevant and its
genuineness is proved. If the evidence is relevant, it does not matter how it has
been obtained. More so, the court must conclude that it is genuine and free from
tampering or mutilation.
 In Birla Corpn. Ltd. v. Adventz Investments and Holdings Ltd. (2019), the
appellants had filed certain documents in company petition, by making copies
of those documents by temporarily removing them from lawful custody for
the purpose of extracting information contained therein. In judicial
proceedings, the Supreme Court held that neither the act of the appellants
amounted to theft, nor the documents are inadmissible. Even if the court would
have found the act of the appellants amounting to theft, the documents so
obtained would still have been admissible.
 Interestingly, the law that has emerged regarding admissibility of illegally
obtained evidence in the context of certain special statutes has treaded a
somewhat different path.
 A Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh (1996),
has held that even if contraband is recovered from the person of the accused, the
same is not admissible in evidence if the procedure for search prescribed under
Section 50, Narcotic Drugs and Psychotropic Substances Act, 1985, is not strictly
complied with.
 In Than Kunwar v. State of Haryana, (2020) it has been held that in view of the
Baldev Singh case conviction may not be based "only" on the basis of possession of an
illicit article recovered from person search in violation of the requirements of
Section 50, Narcotic Drugs and Psychotropic Substances Act, 1985, but if there
be other evidence on record, such material can certainly be looked into.
 Notably, the Law Commission of India, in its 94th Report (1983), has advocated
giving the courts absolute discretion in admitting or rejecting illegally
obtained evidence by adding a new Section 166-A to IEA in this regard.
Evidence procured through illegal means: Status in India

 In India, the admissibility of evidence obtained through illegal means is a

complex issue, primarily governed by the Indian Evidence Act, 1872 (Now,
BSA, 2023) and judicial precedents.
•Key Aspects:
 Illegally Obtained Evidence is Admissible if Relevant: Indian courts
follow the principle that relevance prevails over the method of
procurement. Even if evidence is obtained illegally (e.g., without a
warrant), it may still be admissible if it is relevant to the case.
•Case Law: Pooran Mal v. Director of Inspection (1974) – The Supreme Court
ruled that illegally obtained evidence is admissible as long as it is relevant.
•Key Aspects:
 Violation of Fundamental Rights May Render Evidence Inadmissible:

•If evidence is obtained in a manner that violates fundamental rights,

especially under Article 20 (protection against self-incrimination) or
Article 21 (right to life and personal liberty), courts may exclude such
evidence.
•Case Law: State of Punjab v. Baldev Singh (1999) – The Supreme Court held
that confessions obtained in violation of constitutional protections under Article 21
and the NDPS Act are inadmissible.
•Key Aspects:
 Tainted Evidence and Judicial Discretion: Courts may refuse to rely on
tainted evidence if it is obtained through methods like coercion,
entrapment, or custodial torture.
•Case Law: Selvi v. State of Karnataka (2010) – Involuntary narco-analysis,
•polygraph tests, and brain mapping were deemed unconstitutional.

 Doctrine of Fruit of the Poisonous Tree (Limited Application in India): This

doctrine (which bars evidence derived from illegal means) is not strictly
followed in India. Courts generally balance public interest with the legality of
obtaining evidence.
• Conclusion
 In India, illegally obtained evidence is generally admissible if it is
relevant and does not violate fundamental rights.
 However, courts exercise discretion and may exclude evidence if its
procurement involved serious constitutional violations.