CHAPTER 3

RELEVANCY OF FACTS

1. INTRODUCTION

Relevancy of facts is different from admissibility of evidence i.e. all that is relevant is not admissible and
vice versa.1 Primary duty of the courts is to ascertain facts about which parties are at issue. “Facts in
issue” means and includes any fact from which, either by itself or in conjunction with other facts the
existence, non-existence, nature or extent of any, right, liability, as per the definition in Section 3, Indian
Evidence Act. 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 the Act relating to relevancy of facts. Relevant means what is
logically probative. According to Stephen, the word relevant means that any two facts to which it is
applied are so related to each other that according to common course of events, one either taken by itself
or in connection with other facts prove or renders probable the past, present or future existence or non-
existence of the other. But this is relevancy in a logical sense. Legal relevancy requires a higher standard
of evidentiary force and the interconnection should not be misleading or remote. Fact as defined means
and includes (a) anything, state of things, or relation of things capable of being perceived by the senses,
and (b) any mental condition of which any person is conscious, that is, physical facts and psychological
facts. Inferences are not facts. Substantive law defines rights and liabilities of persons which are
vindicated or enforced by means of litigation has to establish all such facts as go to constitute such right
or liability. The necessary constituents of “right” or “liability” are called “facts in issue”. Every fact which
one party must prove in order to secure a favorable verdict in a litigation is a fact in issue, if the parties
are not agreed about the existence or non-existence of such fact. What are the “facts in issue” in a given
case depends on the substantive law governing the case and the procedural law which deals with framing
of issues or points of fact. Rules(1) and (2) of Order XIV C.P.C. may be seen. In criminal cases, all the
ingredients of the offences charged are “facts in issue”. When trying a case court must know: Evidence
must be confined to facts in issue and relevant facts, hearsay evidence is barred except in certain
specified cases, Best evidence must be given in all cases.

The means by which courts inform themselves of existence of facts is called “evidence”. Evidence means
and includes all statements which the court permits or requires to be made before it by witnesses in
relation to matters of fact under equity as also documents produced for inspection of the court. Evidence

1
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850.(IMPORTANT CASE)
is the instrument by means of which disputed facts are brought before the court and by which Court is
convinced of these facts. It is the medium of proof. 2

2. SECTION 5

2.1 SCOPE

 This Section excludes everything which is not covered by the purview of some other
succeeding section. The last four words of the section “and of no others” preclude a party from
proving any facts not in issue or not declared relevant by any of the remaining sections of this
Chapter. To establish the relevancy of any fact, it must be shown that it is a fact in issue or fact
such as is declared to be relevant. Evidence is to be confined strictly to the issue. Thus, evidence
of all collateral facts, which are incapable of affording any reasonable presumption as the
principle matters in dispute, is excluded to save public time. Therefore, it was held that post-
mortem report should be in corroboration with the evidence of eyewitnesses and cannot be an
evidence sufficient to reach the conclusion for convicting the accused.

 Relevancy and admissibility are not the same thing. Relevancy is what is logically probative;
admissibility is the fitness for being received in evidence. All that is relevant is not necessary
admissible. (for e.g. as being against public policy) and all that is admissible is not
necessarily relevant. (statements under Section 155 or 157).

 A fact is logically relevant to another, when it bears such casual relation with the other as to
render probable the existence or otherwise of the latter. The Act exhaustively enumerates the
kinds of casual connection which makes a fact legally relevant to another. The two facts must
be so related to each other that according to the common course of events, one, either taken by
itself or in connection with other facts, proves or renders probable existence of the other. No fact
which is not a fact in issue or a relevant fact under Chapter II of the Indian Evidence Act can be
allowed to be proved in the court of law.

2
Himachal Pradesh Administration v. Om Prakash, AIR 1972 SC 975.
  Therefore, the relevant facts are all other facts which are in the eye of the law so connected with
or related to the facts in issue that they render the latter probable or improbable or roughly throw
light upon them. Relevancy may indeed be considered as synonyms with “connexon”, a word
which frequently appears in discussions on the subject. Of course, both words must be taken in
their legal meaning, which is generally restricted. 3

 Question of relevancy is a question of law and can be raised at any time. It is the duty of the court
to exclude all irrelevant evidence, even if no objection is taken to it by the opposite party.
4
Provisions of C.P.C. also have a bearing as seen from illustration (b) to section 5.

 The Explanation appended to the section prohibits a party from claiming any relief upon facts or
documents not stated or referred to by him in his pleadings. in the event of a conflict between the
Civil Procedure Code and Section 5 of the Act, it is the former that prevails. For example, 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 a subsequent stage of the proceedings except in accordance with the conditions set out
in the Civil Procedure Code. The provisions of the Code referred to are Order VII, Rules 14 and
18 under which leave of the court is necessary to receive it in evidence if the document is
produced at a later stage.

 The object of this Chapter is to point out in what cases collateral facts are relevant and to restrict
investigation made by courts within bounds prescribed by general convenience.

 The Evidence Act is a special law dealing with the subject of evidence, including admissibility of
evidence. Hence no rule about relevancy of evidence in this Act is affected by any provision of
Criminal Procedure Code, 1973. Statement of a witness recorded during investigation of a crime,
being traceable to sections 161 and 162 Crpc, is governed by these provisions which restrict the
use of contradictions in such a statement for a specific purpose. Sections dealing with relevancy
enumerate specifically the different instances of the connection between the cause and effect
3
Page 674, ibid 6.
4
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 a subsequent stage of the proceedings, otherwise than in accordance with the
conditions prescribed by the Code of Civil Procedure.
 which arise commonly in judicial proceedings. They are worded widely and in such a way as to
overlap each other in some instances. Motive for a fact in issue (section 8)is a part of its effect
(section 7). Facts relevant under Section 11 may be relevant under some other sections. Sections
6 -16, 21-23, 27-29, 32 to 38, 41 to 55 set out what are relevant facts are.

 Though Section 5 of the Evidence Act clearly says that the evidence may be given, in any
proceedings, of such facts as are declared to be relevant and of no others, the principle of the
well-known maxim optima legume interpres est consuetude must not be lost sight of. It may be
safely laid down that all evidence which would be laid to be admissible by English Law would be
properly admitted under our Evidence Act.5

 The Act does not purport to lay down any rules for weighing evidence. Each case presents its own
peculiarities and common sense and shrewdness must be brought to bear on the facts elicited in
every case. In criminal proceedings the necessity is stronger, if possible than in civil of strictly
enforcing the rule that the evidence is to be confined to the point in issue. 6 Court should decide
questions regarding the admissibility of document in evidence at the time when they are tendered
and not reserve them till the judgment in the case. 7

5
Page 673. Ibid 6.
6
Lord Advocate v. Lord Blantyre, L.R. 4 App. Cas. 72.
7
Page 674 Law of Evidence C.D. Field’s Commentary on Law of Evidence, 13th edition.
2.2 HOW FACTS IN ISSUE TO BE ASCERTAINED?

 The litigant must remember that his case at the trial will be restricted in evidence which bears
directly on the matters in issue and to matters which lead up to and explain that evidence. What
are the points in issue can be ascertained from the pleadings or whatever process takes the place
of pleadings? No evidence can be received to prove facts alleged by a party to be material but not
stated or referred to in his pleading. It is an “absolute necessity that the determination in a cause
should be founded upon a case either to be found in the pleadings or involved in or consistent
with the case made thereby”. 8

 Unless, therefore, a fact tendered in evidence has direct connection with the facts in issue, it is
irrelevant and will be excluded. Every fact then is relevant which directly tends to prove or
disprove any fact in issue, and also, within certain limits, every fact which indirectly and
circumstantially tends to prove or disprove any such fact. 9

2.3 EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE AND RELEVANT FACTS

 The evidence must be confined to the points in issue. The law will not permit the parties to
wander off into collateral issues, they must keep to the matters in dispute. Anything that either
party said or did in the transaction which has caused the dispute in admissible against him, but
what he said or did in some other transaction which is, as a rule, inadmissible and the word
“transaction” has been defined as a group of facts so connected together as to be referred to by a
single legal name, as a crime, a contract, a wrong, or any other subject-matter of enquiry which
may be in issue. 10

 Evidence of other transactions may, however, always be given when its reception will assist the
11
Court by throwing material light upon the transaction in issue. What is irrelevant cannot be

8
Eshanchunder Singh v. Shamachum Bhutto, 11 M.I.A. 20.
9
Powell on Evidence, 10 Ed, p.30-31.
10
Ibid,8.
11
Ibid 8.
 admitted in evidence by the Court. It is the duty of the Court to disallow the evidence which is
not relevant as under the provisions of the Evidence Act. 12

 Therefore, a fact in issue is necessary ingredient of a right or liability. But a relevant fact is
not. It merely renders probable the existence or non-existence of any component fact of a
right or liability. Hence, a fact in issue is principle fact while a relevant fact is evidentiary fact
e.g. In a murder charge facts in issue to be proved by the prosecution may be that A caused B’s
death with knife and he intended to cause B’s death. The evidence of eye-witnesses would be the
direct evidence and in addition to it or in its absence murder may be proved by the indirect or
circumstantial evidence, e.g., it may be proved against A that he had motive and opportunity to
kill B, that he made preparation by buying a knife or that after the murder he was seen running
with the blood-stained knife in hand etc. Now this collateral facts is declared to be relevant under
provisions of the Act and considered relevant since they afford convincing material for the
inference that the fact in issue viz. A killed B did exist. 13

2.4 CREDITABILITY OF WITNESS AND EVIDENCE

Again, evidence of other transactions will be taken into consideration when it assists the Tribunal to judge
of the creditability of a witness called before it. A witness is always liable to be cross-examined, not only
as to the facts of the case but also as “to credit” (that is, as to matters not material to the issue) with a view
to impugning his credibility and thus shaking his whole testimony. But, in order to prevent the case from
thus branching out into irrelevant issues, it is wisely provided that on such matters, the answer of the
14
witness must be accepted as final; no evidence can, as a rule, be called to contradict it.

It is a general rule that, whenever the state of mind in which a party did an act is material, anything which
that party said or did in any other transaction, previous or subsequent is admissible if it throws light on
the other transaction, previous or subsequent, is admissible if it throws light on the state of his mind when
he did the act in question. For example, evidence of other transactions is admissible to show guilty
knowledge, to show malice, to show fraudulent intent, to show that the act was done designedly and not

12
Lalpratapsing Shivsahaysing v. State, (1963) 4 Guj. L.R. 448 at p. 499.
13
Chief Justice M. Monir , Law of Evidence , 16th edition, universal law publishing co. Volume 1.
14
Page 674 Law of Evidence C.D. Field’s Commentary on Law of Evidence, 13th edition.
accidentally or by mistake. This applies even in criminal cases, thus creating an exception to the rule that
no evidence will be admitted of the prisoner’s bad character, or of other offences alleged to be committed
by him, or of other offences of which he has been convicted, until he has been found guilty of the crime
for which he is now charged.15

There are other matters which the court ordinarily excludes as irrelevant. Anything said or done by third
persons in the absence of a party cannot be put in evidence against him, unless it is necessary to explain
the transaction in issue. A man must not be prejudiced by the words or acts of a third person which he had
no opportunity of contradicting or resenting. But the case is different when the act or words which are
tendered in evidence were done or spoken in the presence or hearing of the party against whom they are
tendered. Such evidence is admissible, not indeed because it is of any great value itself, but because it
leads up to and explain what the party did or did not do thereupon. 16

2.5 RELEVANCY AND ADMISSIBILITY

 Although, however, legal admissibility is for the most part based upon logical relevancy, or that
connection between events which, in the ordinary course of experience, is found to render one
probable from the existence of the other, the two theories do not wholly coincide. Thus, certain
classes of facts (e.g., similar occurrence and the character of the parties) which in ordinary life are
relied upon as rendering other facts probable, the law (with certain exceptions) rejects, on
grounds of policy or precedent, either as being of too slight a value to form the basis of judicial
decisions, or as confusing the jury by a multicity of issues, or as infringing some safeguard of
public policy of personal privilege. On the other hands there are certain facts though admissible
yet having no logical relevancy. Numerous facts (e.g. that a witness was not sworn in a particular
way or that at the date of the trial, a hearsay declarant was dead, a document was thirty years old
or if lost was duly searched for) are legally admissible though they may have no logical bearing
on the issue.

 It is not correct, therefore, to say, as is sometimes done, that “without any exception, nothing that
is not logically relevant is admissible”. Therefore, to use the term “relevant” as meant
logically probative and “admissible” as meaning legally receivable whether logically

15

16
R v. Christie, (1914) A.C. 545.
 probative or not.17 Therefore, relevancy is to be decided by the provisions of the Act.
Further, logical relevancy is wider than legal relevancy i.e. every fact legally relevant will be
found to be logically relevant but every fact logically relevant is not necessarily relevant
under the Act. A judge might, in ordinary transactions, take one fact as evidence of another
and act upon it himself when in court he would rule that it was legally irrelevant.

 The court is to decide the question of admissibility of evidence (See Section 136). It should be
decided as it arises and should not be reserved until judgment in the case is given. The moment a
witness commences giving evidence which is inadmissible, he should be stopped by the court. A
party objecting to a question must do so as soon as it is stated and before the answer is given.
When an irrelevant document is tendered as objection should be made at that time. If it is not
taken in time, it is considered to be waived.

 A party filing a document cannot urge its inadmissibility when the opposite party seeks to
use it against him.
 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. 18
 Admissibility of new evidence after trial: When what is pleaded is proved or what is
stated in the evidence is contrary to the pleadings, the dictum that no amount of evidence,
howsoever cogent, can be relied upon if it is contrary to the pleadings, would apply.
 An issue which has been finally settled and therefore attracts the bar of res judicata, an
evidence led on such issue in a later part of the proceedings has been held to be not
admissible.19

2.6 RELEVANCY UNDER THE ACT

For all practical purposes, a fact in relevant to another and admissible, when the former is connected with
the other in any of the ways referred to in the provisions of the Act relating to relevancy of facts. The facts
declared relevant by these sections are as follows:-

17
Phipson, Manual of Evidence, 4th Edition, pp. 32-33.
18
Magraj Patodia v. RK Birla AIR1971 SC 1295.
19
Janak Dulari Devi v. Kapildeo Rai(2011).
(i) Every fact in issue.
(ii) Every fact which is relevant to the issue(Sec.5) are:-
(a) Facts which form part of the same transaction.(Section 6);
(b) Facts which are the cause and effect of facts in issue(Section 7);
(c) Motive, preparation and previous or subsequent conduct (Section 8);
(d) Facts necessary to explain or introduce relevant facts(Section 9);
(e) Things said or done by conspirator in reference to common design (Section 10);
(f) When facts not otherwise relevant become relevant (Section 11);
(g) Facts tending to enable court to determine amount of damages, in suits for
damages( Sec.12);
(h) Facts relevant when right or custom is in question (Sec.13);
(i) Facts showing existence of state of mind or of body or bodily feeling (Section 14);
(j) Facts bearing on question whether act was accidental or intentional (Section 15);
(k) Existence of Course of Business when relevant ( Section 16);
(iii) Admissions and Confessions (Section 17-131);
(iv) Statements by persons who cannot be called as witnesses (Section 32, 33);
(v) Entries in books of Account( Section 34);
(vi) Entry in public record made in performance of duty(Section 35);
(vii) Statements in maps, charts and plans (section 36);
(viii) Statements as to fact of public nature contained in certain Acts or notifications (Section 37);
(ix) Statements as to any law contained in law books (Section 38);
(x) Statements forming part of a conversation, document, book or series of letters or papers
(Section 39);
(xi) Judgments in other cases (Secs. 40-44);
(xii) Opinions of experts and other persons (sec. 45-51);
(xiii) Character in certain cases (Secs. 52-55);
 There is bound to be overlapping in these rules, in the sense that a fact could be relevant
under more than one section. That is because, with respect to the same fact, one English judge
might have received it as relevant because it constitutes preparation, another as conduct,
whereas in the Act we will find rules corresponding to both preparation and conduct as two
distinct rules. Facts which constitute preparation for the happening of the fact in issue or
relevant fact would be relevant; also facts which constitute the conduct would be relevant.
But what must be noted is that if a fact is logically relevant and there is no reason for
excluding it, it must be also legally relevant; and the fact that it is legally relevant under more
than one section or rule, does not matter. The anxiety is to make it relevant at least under one
section. It is only if you are not able to bring a fact under any of the sections, that it becomes
irrelevant.

 The best way of appreciating the difference between logical and legal relevancy is to
consider the attitude of judges in England and India. When a particular fact is offered as
relevant evidence, the English judge asks himself first: "Is it logically relevant? i.e. if I
believe it, will it help me to decide the matter in controversy?" If the question is answered in
the affirmative, he next asks himself: "Is there any rule of exclusion which prohibits me from
 looking into it?" If there is no such rule, the fact which was logically relevant, becomes
legally relevant. The next question he asks himself is: "Though the fact is legally relevant, is
there any rule Of admissibility affecting the admissibility in evidence of this fact?" If there is
no such rule, the fact becomes admissible and the judge can consider it. A judge in India,
however, would say when a fact is offered in evidence: "Under what section of the Evidence
Act is this fact relevant?" If it comes under one or more of the sections relating to relevancy,
then it is legally relevant, and the only question is its admissibility. The stages, therefore,
through which a fact passes are: I) logical relevancy (only in England)' 2) legal relevancy, and
3) admissibility. The court, by a process of argument connecting the various relevant facts
which are believed in by it, comes to a conclusion whether the facts in issue in the case are
proved or not. To the facts in issue thus proved the law is applied and the rights and liabilities
of the parties decided.

 The above discussion shows that though relevancy and admissibility loosely used as
synonymous with one another, in legal language they denote entirely different conceptions. In
fact, 1) facts which are relevant may not be admissible, and 2) facts which are admissible
may not be relevant. As examples of (1) we have all the prohibited communications set out in
Sections 122, 123, 126 and 127. As examples of (2) we have some of the facts set out in
Sections 146 and 155, and in Sections 156 and 157.

 Ramratan v State of Rajasthan(AIR 1962 SC 424.)—The accused was convicted on a

charge of murder. The evidence against him consisted of the evidence of a single witness and
the statement by another witness that the former witness told the latter immediately after the
incident that the appellant committed the murder. On the question whether the statement of
the latter witness was admissible under Section 157 in the absence of a statement by the first
witness in court that he told the names of the accused to the latter witness, the Supreme Court
held:

There are only two things which are essential for this section [157 of the Evidence Act] to
apply. The first is that a witness should have given testimony with respect to some fact. The
second is that he should have made a statement earlier with respect to the same fact at or
about the time when the fact took place or before any authority legally competent to
investigate the fact. If these two things are present, the former statement can be proved to
 corroborate the testimony of the witness in court. The former statement may be in writing or
may be made orally to some person at or about the time when the fact took place. If it is
made orally to some person at or about the time when the fact took place, that person would
be competent to depose to the former statement and corroborate the testimony of the witness
in court. There is nothing in Section 157 which requires that before the corroborating witness
deposes to the former statement the witness to be corroborated must also say in his testimony
in court that he had made that former statement to the witness who is corroborating him.

If this decision is correct then an FIR can be received in evidence without being put to the
maker, if it is proved by the investigating officer.

 Bhogilal Chunilal Pandya v State of Bombay(1959) appellant, who was a cashier in a

company, was charged with criminal breach of trust. After the employer discovered the
offence certain discussions took place between the accused, the employer and the solicitor of
the company. The solicitor made notes of the discussions and when he gave evidence in court,
sought to rely on them for the purpose of corroboration. On the question of their admissibility
the Supreme Court held:
The primary meaning of the word 'statement' is 'something that is stated' ... . Unless,
therefore, there is something in Section 157 or in the other provisions of the Act, which
compels us to depart from the primary meaning of the word 'statement', there is no reason to
hold that communication to another person is of the essence and there can be no statement
within the meaning of Section 157 without such communication. The word 'statement' has
been used in a number of sections of the Act. Sections 18 to 21, Illustration (b) to Sections 21,
32(2) and (6) and 39 and 145, in its primary meaning of 'something that is stated' and that
meaning should be given to it under Section 157 also unless there is something which cuts
down that meaning for the purpose of that section. Words are generally used in the same
sense throughout in a statute unless there is something repugnant in the context. ...We see no
reason why the word 'statement' [in Section 157] should not have been used in its primary
meaning. There is nothing in the section which in any way requires that an element of
communication to another person should be imported into the meaning of the word
'statement' used therein. It was urged that if we do not imply communication to another
person in the meaning of the word 'statement' in this section, it would result in a witness
corroborating himself by producing some writing made by him and kept secret and that this
 would be very dangerous. Now a distinction must be made between admissibility of such a
writing and the value to be attached to it. Section 157 makes previous statements even of this
type admissible; but what value should be attached to a corroboration of this nature is a
different matter to be decided by the court in the circumstances of each case. The witness
who is sought to be corroborated is produced in the witness box and is liable to cross-
examination. The cross-examiner may show that no reliance should be placed on such an
earlier statement.
 These two cases show that facts which may not be relevant under Sections 6 to 55, are
admissible under Section 157

2.7 RELEVANCY WHETHER AFFECTED BY CRIMINAL PROCEDURE CODE

The Evidence Act deals with the particular subject of evidence including admissibility of evidence and is
a special law within meaning of the Code of Criminal Procedure. It follows, therefore, that no rule about
the relevancy of evidence in the Act is affected by any provision of the Crpc unless it is specifically stated
in the later Code.20

RELEVANCY ADMISSIBLITY

1. Relevancy is based on logic and probability. Under 1. Based on strict rules of law.
Evidence Act terms “Relevant” or “the facts that
may be proved” are synonyms.

2. The rules of relevancy are described under Section 2.The rule of admissibility means that the court can
5-55 of Evidence Act, 1872 and declare what is permit the evidence to be given of a fact only if it is
relevant to be proved. relevant. Admissibility is dealt under Section 56 and
onwards.

3. They may or may not be admissible. 3.Admissibility is the means and method to prove relevant
facts and to keep the evidence limited to the relevant fact.
The facts which are admissible are necessarily relevant.

2.8 “AND OF NO OTHERS”

The section excludes everything which is not covered by the purview of some other section which follows
in the Statute. There must be a specific provision before facts can be treated as relevant and facts must

20
Ramesh Naresh v. Emperor, AIR 1939 All.242.

 NOTE ON LOGICAL AND LEGAL RELEVANCY

Whenever an incident happen there is always some proceeding or

subsequent act when it is logically connected with incident. Whenever a
also be proved as laid down in the Act. Anyone who wants to give evidence on a particular fact must
show that it is admissible under someone or other of the following sections. The words “and of no others”
impliedly impose a duty on the court to exclude evidence of irrelevant facts, irrespective of objections by
the parties. In criminal proceedings this duty was expressly imposed by the Code of Criminal Procedure
under Section 298(omitted) and in civil proceedings OXIII, rule 3 CPC. 21

21
Stokes’ Anglo Indian Codes, Vol II, p 854.
This act does not give any definition of word "relevant". It only lays down that a fact becomes relevant only when it is
connected with other facts in any of the ways referred to, in this Act relating to the relevancy of facts. Under Chapter II,
section 5 to 55 deal with the relevancy of facts. A fact in order to be relevant fact must be connected with the fact in issue or
with any other relevant fact in any of the ways referred to in Sections 5 to 55. A fact not so connected is not a relevant fact.
The scheme of the Act seems to make all relevant facts admissible. The main problem in this regard is deciding which fact is
legally relevant as well as logical in nature. A fact may be logically relevant to a particular case but there is no guarantee
that it will be legally admissible in the courts. So all the evidences that are to be produced in the courts have to pass two
hurdles it has to be both: 1.logically relevant and 2.legally admissible at the same time.

When a fact is connected with another fact, it is logically relevant but it is relevant if the law declares it to be relevant. If it is
not declared by the law to be relevant, it is not admissible in evidence. "Every fact that is legally relevant is also logically
relevant but every logically relevant fact may not be necessarily legally relevant." Under the Evidence Act, a fact is said to
be relevant to another when it is relevant under the provisions of Sections 6 to 55 of Evidence Act. In Chamberlayne's
Modren Law of Evidence, relevant, as applied to evidence, must be understood as touching upon issue which parties have
made by their pleadings so as to assist in getting at the truth of the disputed facts. Whatever evidence will withstand this text
should not be objected to. Example in this regard would be the case of "State of UP v. Raj Narain" where it was shown that
not all relevant facts are admissible .The case of "Ram Bihari Yadav v. State of Bihar"is a very important case which helps
us to understand the concept of clearing the two hurdles and the distinction between relevancy and admissibility. The force
of the section lies in the last four words where it is meant that relevancy is actually the test of admissibility. The Supreme
Court in this case said that in most cases the two words admissibility and relevancy are used interchangeably with each
other but their legal implication are very different because often relevant facts such as communication between the spouses
in marriage is important but not legally admissible.

Facts which are Legally not admissible but Logically Relevant : These are the most important for the purpose of the solving of a
case because they seem very logically connected to the issue however due to some reason they are not legally admissible under the
Indian Evidence Act. Section 24 under the Indian Evidence Act is very important in this regard. It is related to confession made due
to threat, inducement or a promise. Confession has been defined as “it is an admission made at any time by a person charged with a
crime stating or suggesting the inference that he committed that crime”. So there are two conditions which need to be fulfilled when
a confession is made either the confession must be direct with the accused stating explicitly that he has committed the crime or an
inference can be made from his statements about his involvement in the crime. Since confession is a very important piece of
evidence it is very important to examine whether the confession has been made out of free will or it has been made through
coercion. Only confessions made out from free will can be accepted. The evidence will be admissible only after the court is totally
satisfied that the accused was a free man at the time of confession and that his movements were not controlled by the police or any
other investigative agency for the purposes of securing the confession. Also the case where the accused makes a confession thinking
that the authorities would soften their attitude towards him then that confession is said to be non voluntary. Another section which
deals with the logically relevant but legally inadmissible facts is section 25 which deals with the confession made to a police officer.
The main principle behind rejecting the confession made under the police officer is that the evidence is considered to be
untrustworthy. As for the timing of the confession is concerned all confessions made to the police before or during the investigation
are considered to be invalid. It is important to note that only confessions made in presence of police are not admissible however all
the statements that the accused has given to the police can be proved and used against the accused. However confessions made to
the magistrate under section 164 CrPC which is admissible in the court. Section 52 also talks about facts which are logically relevant
but not legally admissible. It deals with the prior conduct and character of the accused. The main example of this section is cases of
rape where the defense side in most cases tries to blame the victim by questioning the character of the victim. The prior conduct
might seem logically relevant but it is not legally admissible. However according to section 53 in criminal cases the previous good
conduct does become relevant. Section 122 also is of this type. The communication between the spouses is logically relevant but not
legally admissible.

Facts which are Legally admissible and relevant but not Logically Relevant This is completely different to the previous section
where legally relevant facts are not legally admissible. Here the facts are legally admissible but not logically relevant. Section 146
of the Indian Evidence Act is the section relevant here because it talks about the questions in the cross examinations of the witness.

Facts Evidence
 1. Facts are those things which 1. Evidence are those means
are in existence of which a (witness or document) by which
man is conscious of. the relevant facts are brought
2. Facts can be positive or before court.
negative. 2. Evidence can be oral or
3. Facts can be physical or documentary.
psychological. 3. Evidences are only expressed
4. All facts are not evidences facts. Psychological facts are
unless they are not allowed to be evidence only when they are
produced before court in any expressed by means of
legal proceedings. expression.
4. All evidence are facts in some
way or the others.

3.SECTION 6

3.1 SCOPE AND PRINCIPLE OF RES GESTAE

Res gestae has been defined as “Things done, or liberally speaking, the facts of the transaction
explanatory of an act or showing a motive for acting; a matters incidental to a main fact and explanatory
of it; including acts and words which are so closely connected with a main fact as will constitute a part of
it, and without a knowledge of which the main fact might not be properly understood, even speaking for
themselves though the instinctive words and acts of participants not the words and acts of participants
when narrating the events, the circumstances, facts and declaration which grow out of the main fact, and
contemporaneous with it and serve to illustrate its character or these circumstance which are the atomic
and undersigned incidents of a particular litigated act and are admissible when illustrative of such act. 22

This section admits those accompanying acts and statements the admissibility under the name res geste.
The term res gestae may be defined as those circumstances which are the undersigned incidents of a
particular litigated act and which are admissible when illustrative of such act. It may be stated generally
that in any particular case submitted to judicial investigation, the nature of the right or liability asserted
involves consideration by the Tribunal of a certain number of principle facts, the happening of which
extends over a definite period of time and directly determines the existence of the right of liability. This
collection of primary facts constituting the necessary and immediate field of a judicial enquiry may be

22
Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22.
designated as res gestae within this filed of immediate enquiry the court will receive evidence of all the
facts. 23

3.2 What is a transaction?

A transaction, as the term used in this sec. is defined by a single name, as a crime, a contract, a wrong or
any other subject of enquiry which may be in issue. It include both immediate cause and effect of an act
or event, and also its collection of relevant circumstances, the other necessary antecedents of it
occurrence, connected with it, at a reasonable distance of the time, pace and cause and effect. 24 From the
very nature of evidence admitted as part of res gesate, there must be main principle act which may
however be either the ultimate fact to be proved or some fact evidentiary of that fact.

The term, res gestae has, however, frequently have been given a greatly extended application and has
been defined as “those circumstances which are the undersigned incidents of a particular litigated act and
which are admissible when illustrative of such act”. The rule embodied in Section 6 is usually known as
the rule of res gestae. What it means is that a fact which, though not in issue is so connected with the fact
in issue “as to form part of the same transaction” become relevant by itself. To form particular
statement as part of the same transaction utterances must be simultaneous with the incident or substantial
contemporaneous that is made either during or immediately before or after its occurrence. If there is an
interval, which is sufficient enough for fabrication then the statement is not part of res gesate. Hence,
Section 6 of the Act has an exception to the general rule where under hearsay evidence becomes
admissible. But as for brining such hearsay evidence there should not be any interval and the statements
said to be admitted as forming part of res gesate must have been made contemporaneously with the act or
immediately thereafter. It can be laid that the test to be applied in deciding whether a hearsay statement
made by a bystander or victim indicating the identity of the attacker is admissible can be put succinctly.

1. Was the identification relevant?

2. Was it spontaneous?

3. Was there an opportunity for connection?

4. Was there any real possibility of error?

In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event
which has excited the statement, that it can be fairly stated that the mind of the declaring was still

23
Ibid 12 page 785-780.
24
R vs Ring A 1929 B 296.
dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger
mechanism for the statement, was still operative. 25

It is sometimes said that the statement and act must be by the same person. But this rule is not so strictly
observed. There could the statements of victim as also of accused. In transaction consisting of both
physical acts and the words accompanying such physical acts, whether spoken by the person doing such
acts or any other persons( bystanders, eyewitnesses, witness who rushed to the spot immediately after the
26
occurrence), such words are relevant and admissible as part of the same transaction.

3.3 Role of other attendant circumstances

Statement made after some times may be admissible under S. 157 as corroborative evidence but not
under S. 6.27 A contemporaneous tape record of a relevant conversation is a relevant fact and is
admissible under section 7 but such evidence must be received with caution. 28

In State of Andhra Pradesh vs Gentela Vijayavardhan Rao 29, the appreciable interval between the act of
carnage and magistrate’s recording the statement the statement recorded by the magistrate was found
inadmissible under res gestae.

In Bishna vs State of West Bengal 30, where the two witnesses reached the place of occurrence
immediately after the incident had taken place and found the dead body of Prankrishna and injured Nepal
in an unconscious state. One of them found the mother of Prannkrishna and Nepal weeping and heard
about the entire incident from an eye-witness and the role played by each of the appellants, their
testimony was held to be admissible under section 6 of the Evidence Act.

In Uttam Singh vs State of Madhya Pradesh31 the child witness was sleeping with the deceased father at
the relevant time of incident and was awakened by the sound of the fatal blow of the axe on the neck of
the deceased. Seeing it, the child shouted to his mother for help by naming the accused as assailant. On
hearing the sounds the mother and sisters of the child and other witnesses gathered at the spot. This
evidence was held to be admissible as a part of the same transaction as such shout was the natural and

25
Ibid 12.
26
Lectures on The Evidence Act by Justice U.L. Bhat 2015 Edition page 30-34.
27
Rameshwar vs S AIR 195 C 54.
28
Yusufalli vs The state, (1967) 70 Bom LR 76 (SC)
29
1996 INDLAW SC 2361
30
AIR 2006 SC 302 at p. 309 para 27
31
2002 INDLAW MP 79
probable as per the facts of the case. In this case if child witness failed to react on the spot but spoke later,
it could still be admissible under sec. 6.

When the health or feelings are material to be proved, the usual expression of such feelings made at the
particular time may be given in evidence; though not statements as to their case, and also not as to past
conditions. So in proving knowledge, the acts and declarations of the party manifesting this condition are
admissible but not his bare assertions of the fact. 32

3.4 Analysis of examples under Section 6

(i) Illustration (b) indicates that acts done at different places and times may form part of the
same transaction. Thus, a transaction consists both of the physical acts and the word
accompanying such physical acts whether spoken by the person doing such acts, the person to
whom they were done or any other person or persons. Such words are admissible in evidence
as parts of transaction.
(ii) The expression “bystanders” used in illustration (a) means the persons who are present at the
time of occurrence and not those who gather on the spot after the occurrence. The remarks
made by persons other than those the eyewitnesses could only be hearsay because they must
have picked up the news from others. The statement in Illustration (a) is relevant only if it
is that of a person who has seen the actual occurrence and who uttered it simultaneously
with the incident or so soon thereafter as to make it reasonably certain that the speaker
is still under the stress of the excitement caused by his having seen the incident. Thus, an
FIR lodged soon after incident by person who witnessed it becomes a part of the happening. 33
The statement uttered or done must be a spontaneous reaction of the person witnessing the
crime and forming part of the transaction bystanders' declaration must relate only to that
which came under their observation. The declaration must be substantially contemporaneous
with the fact and not merely the narration of a prior event. 34 Applying this to the facts of a
case before it in which the witnesses rushed to the scene of the crime on hearing the sound of
an explosion and heard from the mouth of the bystanders as to what had happened, the Kerala
High Court has held that the statement was not a part of the transaction. 35 What is admissible
under this section is a fact which is connected with the fact in issue as ‘part of the same
transaction’. A transaction may consist of a single incident occupying a few minutes or it may
32
Phipson’s Manual of Evidence, 4th edition, pp 36-37.
33
Shayam Nandan Singh v. State of Bihar, 1991 Cr LJ 3359.
34
Bhaskaran v. State of Kerala(1985).
35
Rajan v. State of Kerala(1992).
 be spread over a variety of facts, etc., occupying a much longer time and occurring on
different occasions or at different places. Where the transaction consists of different acts, in
order that the chain of such acts may constitute the same transaction, they must be connected
together by proximity of time, proximity or unity of place, continuity of action and
community of purpose or design. Where the witness deposed that immediately after the
occurrence, his niece told him that his wife was shot by 'the accused, it was held that his
statement was admissible under section 6, Illustration (a) and so also his statement that the
accused was threatening persons on the spot that he would kill them too. 36

Explaining this aspect of the doctrine of res gestae in Rattan v Reginam(important case for
prelims also), and trying to lay down a more rational formula, Lord Wilberforce said: "The
test should not be the uncertain one whether the making of the statement was in some sense
part of the event or transaction. This may often be difficult to establish; such external matters
as the time which elapses between the events and the speaking of the words (or vice versa)
and differences in location being relevant factors but not, taken by themselves, decisive
criteria. As regards statements made after the event in the judge to satisfy himself that the
statement was so clearly made in circumstances of spontaneity or involvement in the event
that the possibility of concoction can be disregarded. Conversely, if he considers that the
statement was made by way of a detached prior event so that the speaker was disengaged
from it as to be able construct or adapt his account, he should exclude it". In this case a man
was prosecuted for the murder of his wife. His defense was that the shot went off
accidentally. There was evidence to the effect that the deceased telephoned to say: "Get me
the police please". Before the operator could connect the police, the caller, who spoke in gave
her address and the call suddenly ended. Thereafter the police came to the house and found
the body of a dead woman. Her call and the words she spoke were held to be relevant as a
part of the transaction which brought about her death. Her call in distress showed that the
shooting in question was intentional and not accidental for no victim of an accident could
have thought of getting the police before the happening.

Lord Wilberforce said: There was ample evidence of the close and intimate connection
between the Statement ascribed to the deceased and the shooting which occurred very shortly
afterwards. They were closely associated in place and in time. The way in which the
statement came to be made (in a call for the police) and the tone of voice used, showed

36
Mohd. Islam v. State of U.P.(1993).
 intrinsically that the statement was being forced from the deceased by an overwhelming
pressure of contemporary event. It carried its own stamp of spontaneity.

This aspect of the doctrine was applied by the Supreme Court in Rattan Singh v State of
HP37 The accused intruded into the courtyard of the victim's house at night and inflicted gun-
shot injury on her. She was able to identify him. She stated before her death that the accused
was standing with a gun before her. She explained the time and space, proximity between her
and the assailant. The statement was held to be a part of the transaction and relevant as such
under section 6.
The eye-witness spontaneously told the persons reaching the place immediately after the
occurrence that the accused killed the deceased, Such persons derived knowledge about the
incident spontaneously with the happening from the eye-witness. Their evidence was, held to
be relevant under section 6 as forming part of the same transaction. 38
A transaction in its, ordinary sense is some business or dealing which is carried on or
transacted between two or more persons. This and the following sections deal with
circumstantial evidence. Sections 7, 8 and 9 explain and illustrate this section.

 Relation between Section 5 and Section 6. 7, 9,11

 The section 5 starts with saying "Facts not otherwise relevant are the facts which
though logically relevant are not legally relevant? They are the facts coming under
the two rules of exclusion, relating to relevancy: 1) Facts which would come under
hearsay, and 2) facts which would come under res inter alios acta alteri nocere non
debet, which means a transaction between two parties ought not to operate to the
disadvantage of a third. Under (2) are usually included a) statements made behind the
back of the person against whom they are sought to be used as evidence, b) similar
unconnected transactions, and c) opinions of third parties. Facts coming under the
hearsay rule or under res inter alios acta, though logically relevant are legally
irrelevant. Everybody says, for example, that a particular officer is corrupt. It is
logically relevant for coming to the conclusion that the officer is corrupt—in fact,
lots of easy chair judgments are given thus by people indulging in gossip and scandal
—but, in a court of law it is totally irrelevant.

37
AIR 1997 SC.
38
Om Singh v. State 1997 Cr LJ 2419 (Raj).
 Section 6 provides that if a part of the transaction is a fact in issue then evidence can
be given of every other part of the transaction either because such other part is also in
issue and therefore evidence of it is permissible under Section 5, or because such
other part is relevant under Section 6, and therefore, under Section 5 evidence can be
given of it. The question then that arises is how to find out whether a fact forms part
of the same transaction as the fact in issue.
 Suppose A is tried for the murder of B by beating him with a club. Here the
transaction is the crime of murder. That A beat B with a club, that A caused B's death,
that A had an intention of causing B's death are all in issue and form parts of the same
transaction, and evidence can always be given of such facts in issue under Section 5.
But the words uttered by A at or about the time of beating, or words uttered by B or
by persons standing by, at or about the time of beating are not in issues. But they also
form parts of the same transaction. No one beats silently, nor would the person beaten
be silent while he was being would persons standing by watch silently. transaction all
these utterances and, though not in issue, form part of the of murder, which is the
subject of enquiry, and therefore are under this section. This is Illustration (a) to the
section.

 What Section 11 says is this: Facts, which come under these two rules are otherwise
irrelevant. They would however become relevant, if they are inconsistent with the fact
in issue or make the existence of the fact in issue highly probable or improbable.

 An Indian court should look into any fact however remotely connected with the
matter in controversy, choose out of them those facts which make the existence of the
fact in issue highly probable or improbable, that is, which are relevant to the fact in
issue, consider them all together and come to a conclusion on facts. The section was
deliberately left elastic to include facts which form hearsay or res inter alios acta if
they make the existence of the facts in issue highly probable or improbable. The kind
of hearsay where A says that he heard B commit a crime, can never make the fact in
issue that B committed the crime highly probable. Such hearsay is naturally
excluded; but if an item of hearsay evidence makes the existence of the fact in issue
highly probable or improbable, it could be received as relevant evidence under the
Section. A fact, before it can be considered by a court, should be relevant under some
section of the Evidence Act. If however that is res inter alios acta or hearsay, and
 hence not otherwise relevant then it has also to satisfy the additional test in Section
11, namely, it should make the existence of the fact in issue highly probable or
improbable.

 One objection may be raised to this interpretation of Section 11. It may be said if
Section 11 includes hearsay also, what is the necessity for Section 32? In fact what is
the necessity for Sections 7 and 9 also? The answer is, under Sections 7 to 9 and 32,
facts which are covered by them are relevant and no question as to whether they are
such as to make the existence of the fact in issue highly probable arises. If the fact
comes under those sections it is automatically received in evidence and considered
whether or not it makes the fact in issue highly probable or improbable at the end of
the trial. But if the fact is exclusively brought under Section 11 then before it is
received as a relevant fact, it must also satisfy the test laid down in the section,
namely, it should make the existence of a fact in issue highly probable or improbable.

 In Ram Kumar Pandey v State of M.P.,(1975), it was held that important

omissions would be relevant under this rule.

MOST IMPORTANT CASES FOR PRELIMS BASED ON RES GESTAE

1. Sawal Das v. State of Bihar
2. Teper v The Queen [1952]
All spontaneous statements in some way
connected with the transaction under investigation
are not admissible. It must be shown that the
statement is a part of the transaction. The
statement is not admissible only because it is
uttered in the course of the transaction. To be
admissible it must be a part of the transaction. If
'A' assaults 'B' on the neck with a knife and this is
seen by bystanders who exclaim, 'A' is killing 'B',
the exclamation is as much part of the transaction
of murder as the gushing out of the blood from the
wound inflicted on the neck with the only
difference that the latter is a physical reaction to
the act whereas the former is the psychological
reaction through perception. While no doubt the
spontaneity of the statement is guarantee of the
truth the reaction for its admissibility under
Section 6 is that it is part of the transaction and
not merely because it is spontaneous.
The rule that in a criminal trial hearsay evidence
is admissible if it forms part of the res gestae is
based on the propositions that the human
utterance is both a fact and a means of
communication and that human action may be so
interwoven with words that the significance of the
action cannot be understood without the
correlative words and the dissociation of the
words from the action would impede the
discovery of the truth. It is essential that the words
sought to be proved by hearsay should be, if not
absolutely contemporaneous with the action or
 event, at least so clearly associated with it that
they are part of the thing being done, and so an
item or part of the real evidence and not merely a
reported statement.

3. R v. Foster The witness had seen only a speeding vehicle, but

not the accident. The injured person explained
him the nature of the accident. He was allowed to
give evidence of what the deceased said, although
it was only a derived knowledge, it being a part of
res gestae.? Similarly, collateral facts are res
inter alios actae (i.e. transactions between others,
for example, statements made behind the
accused's back and to be used as evidence against
him), and included in res gestae.

4. G. Vijayavardhan Rao v State If the statement is made after the act is over and
ofA.P(1996) its maker has had the time for reflection and
deliberation (fabrication); and/or it is a mere
narration of past events, then it is not relevant.
The statement should be an exclamation "forced
out of a witness by the emotion generated by an
event".

5. R v. Lillyman (1896) A statement made by a raped woman after the

ravishment was held to be not part of the res
gestate on account of some interval of time
lapsing between making the statement and the act
of rape.

6. R v. Regina The caller a woman giving her address in distress

requested the telephone operator to connect the
police but call could not be completed as it ended
suddenly. When the police came to her house, she
was found there dead. Her husband, who was
charged of killing her by shooting, took the plea
that the fire was accidental but it was held to be

7. Agassiz v London Tramways Co. (1872)
8. R v. Bedingfied, 1979
9. Shyam Nandan Singh v. State of Bihar
(1991)
10. Genetela Rao v. State of Andhra
intentional on the basis of her call to the operator
to connect the police as no victim of accident
would think of getting the police prior to the
incident. The call by the woman and whatever she
said was held to be res gestae.
There was a tram collision and an action was
brought against the tramway Co. in respect of
injury to a passenger. A remark by another
passenger to the effect that the driver ought to be
reported and the conductor's reply, "He has
already been reported for he has been off the line
5 or 6 times to-day" were rejected, the transaction
being over, and as the remarks referred not to the
res, but to the past acts of the driver.
A woman with a throat cut came out of the room
suddenly and said to the witness "Aunt see what
Bedingfied has done to me". C.J. Cockburn held
it to be not admissible as res gestae because the
statement was made after the incident was over.
The Supreme Court has also considered FIR
lodged by an eyewitness to be part of the same
transaction.
If a witness is present at the scene of occurrence
sees the whole occurrence from beginning to end,
makes cry about the offence being committed
when people from vicinity reach he tells the story
of occurrence and then after some time goes to
police station and makes first information report.
The making of the report is part of the transaction
and so it amounts to res gestae. The fact that some
time has elapsed between the occurrence and
report is immaterial.
The rule of res gestae is an exception to the
 Pradesh(1996) & Sukhar v. State of U.P.
(1999)
11. R.M. Malkani v. State of Maharashtra,
AIR 1973 SC 157
12. Ratten v. Queen, 1971
general rule that hearsay evidence is not
admissible. The rationale in making certain
statement admissible or fact admissible under
Section 6 is on account of the spontaneity and
immediately of such statements or facts in relation
to the fact in issue.
For bringing hearsay evidence within the
provision of Section 6 it must be established that
the act was contemporaneous with fact in issue
and there should not be an interval which would
allow fabrication.
Tape-recorded conversation is relevant under
Sections 6, 7 and 8 of the Evidence Act, it is res
gestae. It is also comparable to a photograph of
relevant incident. Tape-recorded conversation is
therefore a relevant fact and is admissible under
Section 7 of the Evidence Act. The tape-recorded
conversation is relevant provided first the
conversation is relevant to matter in issue,
secondly, there is identification of voice and,
thirdly, the accuracy of tape-recorded
conversation is proved by eliminating the
possibility of erasing the tape-recorded
conversation.
The act may not have occurred at the same place.
Lord Wilberforce said: “Evidence would have
been admissible as part of the Res Gestae because
not only was there a close association in place and
time between the statement and the shooting, but
also the way in which the statement came to be
made, in a call for the police and the tone of voice
used showed intrinsically that the statement was
being forced from the wife by an overwhelming
pressure of contemporary events”.
13. Nasir Din V. Emperor(1945)
14. Queen Empress v. Abdullah (1885)
15. Chhotka v. State (1958)
The court has clarified the word bystander in
illustration (a). It means persons present at the
time of incident and not persons who gathered on
the spot later.
Being Silent or giving answers through signs and
gestures was considered to be statement instead of
conduct. Such statement may be relevant under
Section 6 as part of the same transaction, under
Section 21 as admission or confession or Section
32 as dying declaration or corroborative evidence
under Section 157. However silence may form
part of conduct under Section 8 if it accompanies
an act and explains it.
Section 6 of the Evidence Act and the succeeding
sections embody the rule of admission of evidence
relating to what is commonly known as res gestae.
Acts or declarations accompanying or explaining
the transaction or the facts in issue are treated as
part of the res gestae and admitted as evidence.
They are, roughly speaking, exceptions to the
hearsay rule. Section 6 provides that facts which
though not in issue are so connected with the facts
in issue as to form part of the same transaction are
relevant whether they occurred at the same time
or place or at different times and places.
Illustration (A) attached to the Section is
instructive. 'A' is accused of the murder of 'B' by
beating him. Whatever was said or done by A or B
or by the bystanders at the beating or so shortly
before or after it as to form part of the transaction
is a relevant fact.
 4. SECTION 7
Facts, which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in
issue or which constitute the state of things under which they happened or which afforded an
opportunity for their occurrence or transaction are relevant. The section deals with five instances
of causal connection or res gestae when it goes to the root of the matter concerning the
commission of crime.

Section 7 provides for admission of several kinds of facts, which though not forming part of the
transactions are yet connected with it in particular modes as provided in the section i.e. Occasion ,
Cause, Effect, Giving opportunity, constituting the state of things under which they happened and
they are relevant when the transaction itself is sought to be proved.

Physical presence of accused within a specific time and place is relevant. Proof of “occasion”
excludes or negatives a number of hypotheses and reduces the number of person who might have
possibly committed the crime to a limited number. This is important in case of poisoning. That
the victim had money and exhibited or mentioned it provides “occasion” for the subsequent
robbery. Marks on the ground caused due to a struggle have relevance. “Last seen alive in the
company of the accused” theory is an indication of “occasion” and “opportunity”. A
contemporaneous tape record of a relevant conversation is relevant under Section 7. 39 Where the
voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable and
proper identification of the voices must be proved by a competent witness. The recording of the
voice of a witness for the purpose of a comparison with and identification of his earlier recorded
voice can therefore, be allowed by the court and such comparison is neither expressly nor
impliedly prohibited under any statue.40
This section renders relevant a large category of facts which may not form part of the transaction.
Certain types of collateral facts are rendered relevant when such facts, if proved, will lead to a
reasonable inference regarding a fact in issue. Such collateral facts must be connected with the
main fact in any one or more of the following ways41:-
(i) A fact being the occasion of a relevant fact or fact in issue in issue.
(ii) A fact being the cause of a relevant fact or fact in issue.
(iii) A fact being the effect of a relevant fact or fact in issue.

39
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
40
Nirmala vs. Ashu Ram, 2000 Cri LJ 2001
41
Page 35 universal
 (iv) A fact which constitutes the state of things under which a relevant fact or fact in issue
happened.
(v) A fact which afforded an opportunity for the occurrence or transaction of a relevant fact or
fact in issue.

7.1 Terms “Occasion”, “Cause”, “Effects”, ”Opportunity”, “State of things” explained

Evidence can always be given of the set of circumstances which constituted the occasion for the
happening of the principal fact. In case of R.V. Richardson42 the fact that the deceased girl was alone
in her cottage at the time of the murder is relevant as it constituted the occasion for the murder.

When an act is done and a particular person is alleged to have done it (not through an agent but
personally), it is obvious that his physical presence, within a proper range of time and place forms
one step on the way to the belief that he did it. If it be asked whether the mere possibility invoked in
opportunity is not too slender and whether something more than mere opportunity i.e. opportunity
alone and not exclusive opportunity, is a sufficient showing for admissibility.

The reason for the admission of state of things is to decide whether a thing occurred or not almost the
first natural step is to see whether a thing occurred or not, almost the first natural step is to see
whether there were facts at hand calculated to produce or afford opportunity for its occurrence or
facts which its occurrence was calculated to produce. 43 Hence in case of Ratten v. Reginam, where
the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact
that the accused was unhappy with his wife and carrying an extra-marital affair was held to be
relevant.

In the above case of Richardson, he left his fellow workers at about the time of the murder under the
pretension of going to a smith’s shop was relevant as this gave the accused his opportunity. Hence, if
an act is attributed to a person, it is obvious that he should have had an opportunity to do it.

In case of Dr. Jai Nand v. Rex44, the facts that the accused had taken money and ornaments from the
deceased and that the deceased had, on the day of his murder, gone to the accused to demand the
money and ornaments are relevant facts showing occasion, cause or effect of the fact in issue.

42
Wills, p.225. Stephen’s Introduction to the Law of Evidence, p. 93.
43
Yusufalli Esmail Nagree v. Maharshtra AIR 1968 SC 147.
44
AIR 1949 All 291
 Further, cause often explains why a particular act was done. It helps the court to connect a person
with the act. Cause more or less means the same thing as done the word motive. The act in question
must have been done by the person that may have cause for it. Every act leaves behind certain effects
such as a person with the act in question is the footprint on the scene of the crime and the finger
impressions upon the objects that he might have touched. Therefore, in case of Richardson the fact
that the shoes corresponded exactly with the Impressions in dimensions, shape of the foot, form of the
sole and the number and positions was held relevant. 45

5. SECTION 8

Under this section the motive which induces a party to do an act, or the preparation which he makes
in its commission, will be taken into account. Evidence of motive or preparation becomes important
when a case depends upon circumstantial evidence only.

This section embodies the rule that the testimony of res gestae is allowable when it goes to the root of
the matter concerning the commission of a crime. Consequently, a verbal statement to a police officer
during the time of recovery of articles upon the information of an accused in custody is admissible in
evidence.

Section 8 provides for the relevancy of three principal facts which are very important in
connection which are very important in connection with every kind of civil or criminal case.
They are:

A. Motive
Motive is that which moves a man to do a particular act. There can be no action without a motive,
which must exist for every voluntary act. Generally speaking the voluntary acts of sane persons

45
Page 34-35 universal.
 have an impelling emotion or motive. Motive in the correct sense is the emotion supposed to have
led to the act. It is often proved by the conduct of a person. "The ordinary feelings, passions and
propensities under which parties act, are facts known by observation and experience; and they are
so uniform in their operation that a conclusion may be safely drawn that, if a party acts in a
particular manner, he does so under the influence of a particular motive . Previous threats,
previous altercations, or previous litigations between parties are admitted to show motive. The
mere existence of motive is by itself not an incriminating circumstance. Motive, however strong,
cannot take place of proof and motive for commission of an offence is of particular importance
only in cases of purely circumstantial evidence for, in such cases, motive itself would be a
circumstance which the court would have to consider." However, absence of motive is not
sufficient to disregard circumstantial evidence.
The conduct of the accused and the statement which affected or influenced that conduct is
admissible under Section 8 of the Indian Evidence Act. Evidence of conduct admissible under
Section 8 is of the conduct of a person, who is a party to the action. It is thus reasonably clear,
that evidence even if it of the conduct of the deceased conspirator would not be admissible under
Section 8 on the very terms of Section 8. Section 8 says that facts which show a motive for any
facts in issue or relevant facts are relevant. Motive is the moving power and inducement for doing
the act. Motive by itself is no crime, however heinous it may be. But once a crime has been
committed, the evidence of motive becomes important. Motive is different from intention and
motive could lead to preparation and both could be succeeded by the actual commission of the
crime. This could be regarded as part of res gestae. Preparation is an instance of previous conduct
influencing the fact in issue or a relevant fact. Where Section 27 may not strictly be applicable
this section may apply. 46
Knowledge of a situation leads to a motive which produces intention and deliberation of choice of
means to achieve an end; in other words, preparation. This is followed by an attempt, which, if
successful, amounts to commission of an offence. Motive as also preparation by themselves, do
not prove the crime alleged but they are steps in proof of the commission of crime.
Where certain lands were inherited by the deceased along with his brother but the accused got
them transferred into their names and criminal and revenue cases were pending between them at
the time when the deceased was killed. It was held by the Supreme Court that those facts
constituted a sufficient evidence of motive. 47

46
Page 37 law of evidence, eastern law house
47
Awadesh v. State of U.P. AIR 1995 SC 375.
 B. Preparation

Preparation may be in devising or arranging means necessary for commission of an offence e.g. purchase
of a knife. An attempt, on the other hand, is the direct movement towards the commission after
preparation is made. The test for determining whether an act constitutes an attempt or merely preparation
is whether the overt act already done is such that if the offender changes his mind and does not proceed
further in its progress, the act already done would be completely not proceed further in its progress the act
already done would be completely harmless. Preparation consists in arranging means necessary for the
offence. Mere preparation is not an attempt. 48 Where the question is whether A has committed an offence,
the fact of his having procured the instruments, which are used in its commission, is relevant. Illustration
(c) and (d) refer to preparation.

Mohan Lal V. Emperor49: The accused was charged with cheating for importing goods in Karachi port
without paying the proper custom duty. Evidence was adduced of previous visit of the accused to the port
of Okha, where it was said he tried to make some arrangements with the customs whereby he could
import other goods without payment of proper duty. The evidence was held to be admissible as they were
the preparation being made out by the accused in order to do the wrongful act.

No inference of guilt will arise where the preparations may have been or for the execution of something
different, though illegal; or where the crime for the execution of which the preparations were made may
have been subsequently or voluntarily abandoned. A is indicted for murdering B by poisoning him It that
shortly before A purchased a quantity of poison. This raises an inference of guilt. But it appears that A had
purchased the poison to kill vermin. This inference of guilt. A prepares poison with which he intends to
kill B. Before he it he repents of his crime and abandons of poison the idea of killing B. This overthrows
the inference arising from the purchase.

The following are instances under IPC which punishes preparation of offences:-

Section 122(Waging war), Section 126, Preparation to commit dacoity(Section 399 and 402, offences
against counterfeit coins and stamps 233-235, 256-257IPC, false weighs and forged documents (S. 242,
243,259,266))

C. Conduct

Conduct made relevant by Section 8 is conduct which is directly and immediately influenced by a fact in
issue or relevant fact does not include actions resulting from some intermediate causes. Preparation and
48
Page 36-37 universal.
49
AIR 1937 Sind 293.
previous attempts to commit the offences are instances of previous conduct, influencing the fact in issue
or relevant fact. Conduct does not include, unless those statements accompany and explain acts other than
statements, subject to other sections of the Act. What is relevant is that the statement and act must be so
blended together as to form part of a thing observed by the witnesses and sought to be proved. A
statement is not relevant if there is no conduct to be explained. The statement must really explain the act
and must relate to and explain the act it accompanies and not previous or subsequent act, unless the
transaction is of continuous nature. 50Conduct of accused relevant only against him and not against his co-
accused. Conduct of an accused must have nexus with the crime charged. 51

Bhamara Vs State of M.P52: In this case a person X was cultivating his land. Another person Y was
passing by the land. He called X to chat with him. During the interaction some hot words were exchanged
and altercation ensued. X battered in the head to Y. Two bystanders namely A & B rushed to that place.
Seeing other people coming to that spot X tried to escape but was caught by C. The conduct of escaping
of the accused was held a very relevant subsequent conduct.

Emperor Vs Moti Ram53: In this case one Moti Ram and Rai Singh were tried for the murder of a lady
called Sita. The witness soon after the incident found that the lady was lying in the floor with her throat
cut and she was bleeding greatly. When the witnessed asked her as to who did this she tried to utter the
word Moti. When after she was again asked as to by Moti whether she meant Motiram or not, she nodded
her head in a positive manner. She was later transferred to hospital and when the magistrate asked, she
explained the incident and pointed the accusation towards Motiram. All these facts were held to be
admissible as conduct of the person an offence against whom an inquiry was going on under section 8 of
the Act.

5.2 Relevancy of statements and Statements affecting conduct

The first Explanation to Section 8 declares that for the purposes of S.8 the word “conduct” does not
include statements. Thus what is relevant under Section 8 is the conduct of the parties and not their
statements. The reason is that it is too easy to make false statement, but it is not so easy to put false
conduct, unless one is a gifted actor. It is for the same reason court have repeatedly reaffirmed that only
such statements shall be received in evidence as are so completely involved with the main event that the
maker had no time for deliberation before making his statement. But this rule have two exceptions i.e.
statements accompanying or explaining conduct. A person who was suspected of murder was asked as

50
Alok Mohamad v. State of West Bengal AIR 1974 SC 889.
51
Vikramjit Singh v. State of Punjab AIR 2006 SC 6197.
52
AIR 1953 Bhopal 1.
53
AIR 1936 Bom. 372.
to where the deceased was and she explained it away by saying that he had left the village. This conduct
was held to be clearly admissible as part of res gestae, evidence of conduct immediately after the
occurrence.54

5.3 Statements affecting conduct

The second explanation says 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. Thus evidence can be given of
statements which influence or affect the conduct of a person whose conduct is otherwise relevant. Such
statements are admitted because without their help the conduct may be unintelligible. Where shortly after
a robbery, a person says to another that the police are coming after the man and on hearing this the other
runs away, the statement and the conduct is running away are relevant. They amount to an admission of
guilt. 55

 Suresh Chandra Bahari v. State of Bihar (1995)—when to know prosecution has fulfilled the
case beyond reasonable doubt
 Sometimes motive plays an important role and becomes a compelling force to commit a
crime and therefore motive behind the crime is a relevant factor for which evidence may be
adduced.
 A motive is something which prompts a person to form an opinion or intention to do certain
illegal act or even a legal act but with illegal means with a view to achieve that intention.
 In a case where there is clear proof of motive for the commission of the crime it affords
added support to the finding of the court that the accused was guilty of the offence charged
with. But it has to be remembered that the absence of proof of motive does not render the
evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because
most often it is only the perpetrator of the crime alone who knows as to what circumstances
prompted him to a certain course of action leading to the commission of the crime.
 In a case of circumstantial evidence, motive may be considered as a circumstance which is
relevant for assessing evidence.

6. SECTION 9—Explanatory, Introductory, Supportive, Rebuttive

 Section 54A of Code of criminal procedure introduced with Amendment 2005 has been added in
which the court can direct the person arrested to present for identification parade on the request of
the investigating police officer.
54
Basanti v. State of H.P, AIR 1987 SC 1752.
55
Dr. Asis Mallick law of evidence Eastern Law House Page 40.
  Further, Section 291A of the Crpc makes report of TIP by Executive Magistrate per se admissible
without calling him as witness to prove the report subject to the order of the court.
 Where such report contains a statement of any suspect or witness to which the provisions of S.21,
S.32, 33, 155 or 157 apply, such statement shall not be used under this Sub-Section except in
accordance with the provisions of those sections.
 TIP is held in criminal cases to identify the persons living or dead, known or unknown; articles
including fire arms, handwriting, photographs, finger and foot prints, DNA, facts establishing
age, foot or shoe prints, passing of train, conduct of Aarti, Azaan etc.

This section renders relevant the following:-

(i)Facts necessary to explain or introduce fact in issue or relevant fact.

Rahan Lalu v. Emperor56

The prosecution case was that Rahan Lalu killed his wife on one morning with an axe. Their son a child
of 5 years was beside them. He made a cry and his cry attracted the witnesses who found Rahan with an
axe in his hand and his deceased wife near him. The child’s evidence was not recorded. The witnesses
deposed as to what the child has said when they reached. It was held that the witnesses could speak to
nature of the events and even to what the child said so far as to explains their conduct. If the child had not
said that this father was killing his mother the witnesses would not have gone there. So the cry and the
words of the child explain as to why witnesses went there.

Evidence is always allowed of facts which are necessary to introduce the main or relevant fact. For
example, where the question is whether a given a document is a “will made by a certain person”, evidence
may be given of the state of his property and of family at the date of the alleged will as it may be
necessary to introduce the circumstances in which the will became necessary. 57

(ii)Facts which support or rebut an inference suggested by a fact in issue

In case of Matru v. State of U.P58., the accused was present all the time with the complainant till the FIR
was lodged. Thereafter he felt that he was himself being suspected. He then kept out the way and evaded

56
AIR 1938 Sind 97.
57
Ibid 51 page 42.
58
AIR 1971 SC 1050.
arrest. It was held that evidence of his conduct previous to the report was relevant to contradict the
inference suggested by the subsequent evading.

(iii)Facts which establish the identity of anything or person whose identity is relevant

Test identification parade is not substantive evidence but is only corroborative evidence but has relevancy
and evidence is the identification made in the Court. T.I.P need be resorted to only cases where the
witnesses had no previous acquaintance with the accused. 59 In a rape case60, the victim woman was able to
see clearly the outrages and her relatives who apprehended him on cries also became fully acquainted
with his identity. The Supreme Court said that a test identification parade was not necessary. But this
depends upon facts and circumstances of the case. In another case of SC 61, the rape was committed at
night in the room of the victim where there was no light. The court said that even if it was accepted that
the victim had a fleeing glimpse of the accused when they lighted a torch in her room, it was not enough
for image formation when there was no acquaintance with the attackers earlier to the incident. It was
incumbent on the prosecution to hold a TI parade. Failure to do so was fatal to the prosecution case.

In case of Bibhawati Devi v. Kumar Ramendra sta Roy 62The evidence of mother identifying as her child
and of wife failing to identify as her husband of persons who should have known him was relevant.

63
In case of Ram Lochan v. State of West Bengal The superimposed photograph of the deceased over the
skeleton of a human body (skull) recovered from a tank was admissible to prove the fact that the skeleton
was that of the deceased.

(iv)Facts which fix the time or place at which any fact in issue or relevant fact happened

Whatever facts will help the court to fix the time or place of happening of the relevant fact can be
admitted in evidence. To fix the time of murder and the marks of struggle on the ground, a report of an
expert is relevant to fix the place of the crime and in case of alibi.

(v)Facts which show the relation of parties by whom any such fact was transacted- insofar as they
are necessary for the purpose

Pre-existing relations, undue influence and of libel, defamation etc.

59
Ram Nath Mahto v. State of Bihar AIR 1996 SC 2511.
60
Dastagir Sab v. State of Karnataka AIR 2004 SC 2669.
61
Devinder Singh v. State of H.P. AIR 2003 SC 3365.
62
AIR 1942 Cal 498.
63
AIR 1963 SC 1074.
IMPORTANT CASE FOR PRELIMS RELATED FOR TEST IDENTIFICATION PARADE
1. Kathi Kalu v. State
Maharashtra(1961)and Pyarelal
Union of India
2. Rameshwar Singh v. State of J & K
(1972) & Ram Kishan v. State of
Bombay (1955)
3. L. Chaurasia v. State of Maharashtra,
1968; Saumya v. State of Mysore,1979;
Lalli v. State of Rajasathan, 2005.
4. Shri Ram v. State of (1975);
5. Pammi v. Govt of MP(1998) & Jadunath
Singh v. State of UP(1971)
6. Abdul Waheed Khan v. State of A.P.
(2002)
7. Har Nath Singh v. State of MP (1970)
8. Surendra Narain v. State of U.P. AIR
1998 SC 3031.
9. Amar Nath Jha v. Nand Kishore Singh
(2018); Sukhpal Singh v. State of
of Identification parade does not contravene the
v. “Right against self-incrimination” provided under
Article 20(3) of the Constitution.
Identification parade conducted by the panchas of
a village was held to be admissible.
Before conducting an identification parade, the
witness must not be shown the photo of the
accused or the accused himself as it lends to
lessen or destroy the value of the parade.
TIP serves as a weak evidence and the conviction
of a person cannot be based solely on such parade.
Holding test identification parade is not
compulsory. Failure to hold it is not fatal to the
prosecution case where the accused persons were
previously known to the witness.
It is desirable that identification parade should be
conducted soon after the arrest of the accused.
There are two-fold object of TIP: first, to satisfy
the investigating authorities that a certain person
not previously known to the witnesses was
involved in the commission of the crime or a
particular property was the subject of the Crime. It
is also designed to furnish evidence to corroborate
the testimony which the witness concerned
tenders before the court.
Holding of identification parade is not
compulsory even when the accused demands it.
Prosecution is not bound to do so.
Non-conduct of TIP is not by itself fatal to the
 Punjab(2019)
10. Laxmi Raj Shetty v State of T.N. AIR
1998; Umar Abdul v. Intelligence officer
Narcotic Buerau(1999)
11. Ramkishan Mithanlal Sharma v. State
of Bombay(1955)
prosecution case.
The inability of the prosecution to establish
motive in a case of circumstantial evidence is not
always fatal to the prosecution case.
Where the evidence against an accused person is
evidence of identification alone, the Magistrate
must hold the parade of the accused. Whenever
the accused person disputes the ability of the
prosecution witnesses to identify him, the court
should direct parade to be held. TI parade should
be taken by a Magistrate and the police should not
be present at that time. However, it could also be
done by the police and any citizen. Identification
through a 'photograph' can take the place of a
formal TI parade.
(i) Where TIP is got conducted by police
itself, the same is hit by S.162 CrPC
and it will be used for purposes stated
in S. 162 Cr.P.C. i.e. for the purpose
of contradiction of the identifying
witness when he appears in the court
to record his deposition. Thus, in that
eventuality, it can be used only for
contradiction and not for
corroboration and therefore such
statements will be considered under
Section 161 of Crpc.
(ii) However, if police has only arranged
the test identification parade but same
was got conducted by independent
witnesses/persons or executive or
judicial magistrate, it can be used
both for corroboration and
 contradiction as S. 162 Cr.P.C. would
not be applicable in such situations,

12. Sidharth Vashist v. State of Delhi 2010
To say that a photo identification is hit by section
162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of section 9 of the
Evidence Act that the same i.e. the act of
identification becomes admissible in Court. The
logic behind TIP, which will include photo
identification lies in the fact that it is only an aid
to investigation, where an accused is not known to
the witnesses, the IO conducts a TIP to ensure that
he has got the right person as an accused. The
practice is not born out of procedure, but out of
prudence. At best it can be brought under Section
8 of the Evidence Act, as evidence of conduct of a
witness in photo identifying the accused in the
presence of an IO or the Magistrate, during the
course of an investigation.

13. Brij Mohan v. State of Delay in conducting TIP would not have any
Rajasathan(1994)& Daya Singh v. State effect on it and will have due weigh.
of Haryana (2001)

14. Ramnath v State of T.N. (AIR 1978 SC It was held that identification of the accused by
1201), the witnesses in the court, when no TI parade has
been held before, will be useless evidence.

15. Lajjaram v. State (1955) Accused cannot demand TIP as a matter of right
but if demanded should be considered if required.

7. SECTION 10
  The conditions of relevancy under the section are:-

1. There must be a reasonable ground to believe that two or more persons have entered into a
conspiracy.
2. The act in question must have been done after the time when the intention to conspire was first
entertained by any of them
3. The act must have been done in reference to their common intention.

 The evidence of such an act given for the following two purpose:

1. To prove the existence of the conspiracy.

2. To show that a particular person was a party to the conspiracy.

The term “ conspiracy” means combination of two or more persons for unlawful purposes. Conspiracy is
the corrupt agreeing together of two or more persons to do, by converted action, something unlawful
either as a means or as an end. Section 120 A of the IPC lays down when two or more person agree to do
or cause to be done (1) an illegal act or (2) an act which is not illegal but illegal by means. It is not
necessary in order to constitute a conspiracy, that the acts agreed to be done should be acts which if done
should be criminal. It is enough if the acts agreed to be done although not criminal are wrongful i.e.
amount to civil wrong. The expression “against each of the persons” is intended to prove the existence of
a conspiracy. Everything said or done by anyone of them in furtherance of the common object is evidence
against each and all the parties concerned, whether they were present or not.

The words “in reference to their common intention” are very wide and comprehensive and give wider
scope than the words “in furtherance of”. Common intention must exist at the time when the “thing” was
64
said, done or written by one of them. Strict proof of conspiracy is not necessary before Section 10 is
invoked as prime facie evidence and reasonable ground to believe is sufficient. An agreement and Joint
evil is intent is necessary to be proved. Section 10 refers to “in furtherance to their common intention”.
These words are deliberately used to give a wide scope with the result that anything said, done or written
by a co-conspirator after the conspiracy is formed will be evidence against the other before he entered in
the conspiracy field or after he left it. 65

64
Mirza Akbar v. Emperor AIR 1940 PC 176.
65
Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682.
A confession by a conspirator to a Magistrate after arrest, disclosing the existence of a conspiracy, its
objects and the names of its members is not relevant under Section 10 against the co-conspirators jointly
66
tried with them, though It can be considered under Section 30. Confession of co-accused is not
substantive evidence against other accused and can be used when the Court is inclined to accept other
evidence and feels the need for an assurance in support of the conclusion deductible from the said
evidence. 67But confessional statement made by a deceased conspirator, after he had rendered himself
liable to criminal prosecution, is admissible in evidence against a co-conspirator when general evidence
68
of the existence of the existence of a conspiracy has already been given.

The Section is intended to admit evidence of communications between different conspirators while the
conspiracy was going on with reference to the carrying out of the conspiracy but it is not intended by this
section to admit in evidence the confession of a co-accused and put it on the same footing as a
communication passing between conspirators or between a conspirators and other persons, with reference
to the conspiracy. 69

The case of Kehar Singh v State {Delhi Admn.), shows that the Supreme Court considered a mere act of
two people isolating themselves at the house top and subsequently avoiding questions about the content of
their conversation as enough reason to believe that they were conspiring about something.

However, it must be kept in mind that Sec. 10 only makes some facts relevant, appreciation of evidence
and giving due weight to it is the function of the court. Where certain evidence has been admitted under
reasonable belief of the existence of a conspiracy, but subsequently it appears that the belief was
unfounded, the evidence can be struck out.;

Sec. 10 is nevertheless considered a "necessary evil". Explaining the reasons which necessitated the
relaxation of the ordinary rules in cases of conspiracy. B.P. Sinha, J. said: "Sec. 10 has been deliberately
enacted in order to make such acts/statements of a co-conspirator admissible against the whole body of
conspirators, because of the nature of the crime. A conspiracy is hatched in secrecy and executed in
darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act/statement
of one accused with the acts/statements of the others, unless there is a common bond linking all of them
together (Badri Rai v State of Bihar AIR 1958 SC 953).

66
Rex v. Hadwen (1902)
67
Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184.
68
Kunjalala Ghose v. E, 1935 C 26.
69
Pritam Hariomal v. E, AIR 1939 SC 185.
 MOST IMPORTANT CASES FOR PRELIMS UNDER SECTION 10

1.Mirza Akbar v. King Emperor (1940) It was held that any narrative or statement or
confession made to. a third party after the common
Common law important case: Queen v. black(1844)
intention or conspiracy was no longer operating and
it was held that documents not created in the course
had ceased to exist is not admissible against the
of carrying out transaction but made by one of the
third party.
conspirators after fraud was completed not
admissible against other.

2.Sardul Singh Caveeshar v State of Bombay (AIR
1957 SC 747)
It was held that the rule in Sec. 10 confines the
principle of agency in criminal matters to the acts of
the co-conspirator within the period during which it
can be said that the acts were in reference to their
common intention i.e. 'things said, done or written,
while the conspiracy was on foot' and 'in carrying
out the conspiracy'. It would seem to follow that
where the charge specified the period of conspiracy,
evidence of acts of co-conspirators outside the
period is not receivable in evidence.
3. CBI v. VC Shukla 1998
4. Emperor v Vaishampayan ('Lamington
Road shooting conspiracy case') (AIR
1932 Bom. 56),
Ordinarily a person cannot be made responsible for
the acts of others, unless they have been instigated
by him or done with his knowledge or consent. Sec.
10 provides an exception to this rule, by laying
down that an overt act, committed by one of the
conspirators is sufficient - on the principles of
agency - to make it the act of all. But such concept
of agency can be availed of only after the court is
satisfied that there is reasonable ground to believe
that they have conspired to commit an offence or an
actionable wrong. It is only when such reasonable
grounds exist, that anything said, done or written by
any one of them in reference to their common
intention thereafter is relevant against the others,
not only for proving the existence of the conspiracy
but also for proving that the other is also a
conspirator.
A police officer and his wife were wounded by
revolver shots, fired by some persons. After several
persons were arrested, evidence was sought to be
given of a statement of an absconding accused to
the approver, that the conspirators had shot a police
officer, and that a pamphlet should be printed and
distributed to start a propaganda in furtherance of
the objects of conspiracy. Held that the statement
regarding 'shot' is a narration of past event and thus
inadmissible, but that about pamphlet would be
relevant because it furthers the object of conspiracy.
8. SECTION 11

However, when an irrelevant fact is such that it makes the existence or non-existence of a fact in issue
highly probable or improbable, it becomes very important for the case because it helps the court to
determine the truth. Such a fact ought to be brought before the court. This is the concept embodied in
Section 11. It says the following :-

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.

Section 11 declares the relevancy of a class of facts which in themselves are not relevant, but which
acquire relevancy by reason of their connection with some relevant fact on which the prosecution relies
for the purpose of proving its case against the accused. Collateral facts which, by way of contradiction
are inconsistent with a fact in issue or another relevant fact i.e. which make the existence of a fact in issue
or a relevant fact impossible or highly improbable or which by way of corroboration, are consistent with
the existence of a fact in issue or a relevant fact i.e. tend to render the existence of fact in issue or a
relevant fact highly probable are themselves made relevant by the present section. 70

70
Khaver Sultan v. Rukhia Sultan, 6Bom LR 983.
Evidence of bad character cannot make highly probable that one has committed any offence(section 54),
Transactions similar to but unconnected with the fact in issue are in general inadmissible but where a
previous felony is connected with the one under inquiry or throws light on a relevant state of mind
e.g.intention , knowledge, etc it becomes admissible for the purpose of Section 14 and 15. Further, as a
general rule opinion evidence is inadmissible having exceptions under Section 45 to 55. Therefore,
opinion which is not admissible under those section which deal specifically with the relevancy of opinion
cannot be made admissible under Section 11 on the ground that it makes the existence or non-existence of
a fact in issue or relevant facts highly probable and improbable. 71

There are five classes of cases that arise for consideration under this clause:-

(a) Alibi

(b) Non-access of husband to show illegitimacy of issue

€ Survival- of the alleged deceased

(d) Commissions-of an offence by a third person

(e) Self-infliction –of harm(plea of suicide in case of murder)

It is basic law in the criminal case in which the accused is alleged to have inflicted physical injury to
another person, the burden is on prosecution to prove that the accused was present at the scene and has
participated in the crime. The burden would not be lessen by mere fact that the accused has adopted the
plea of alibi. The plea of the accused in such cases need be considered only when the burden has been
discharged by the prosecution satisfactorily. When the presence of the accused has been established
satisfactorily by the prosecution through reliable evidence, normally the court will be slow to believe any
counter evidence to the effect to the effect that he was else where when the occurrence happened. It
follows, therefore, that strict proof is required for establishing the plea of alibi as it could not be an
72
impossibility that one could be present at both the places more or less simultaneously.

9. OTHER FACTORS TAKEN INTO CONSIDERATION TO DETERMINE THE RELEVANT

FACTS

71
Page 274-275 law of evidence by CJ m.monr volume 1
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Binay Kumar Singh v. State of Bihar AIR 1997 SC 322.
9.1 Relevancy of fact to quantify damages: Section 12

In suit for damages, any fact which will enable the Court to quantify the damages which ought to be
awarded, is relevant. That is because amount of damages is a fact in issue, unless the defendant admits the
quantification made by plaintiff. “Bad Character” of Plaintiff assumes relevance in suit for damages for
defamation, for breach of promise to marry and in suits for damages against adulterer. Plaintiff’s good
character and reputation may also be relevant under this section, even without recourse to Section 12.
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Factors affecting mitigation or aggravation of damages are relevant and hence provable.

9.2  Facts relevant when right or custom is in question : Section 13

This section relates to cases in which existence of any right or custom is in issue. In such cases, any
transaction by which the right or custom was created, claimed, modified, recognized, asserted, or denied,
or was inconsistent with its existent is relevant. So also, particular instance in which the right or custom
was claimed, recognized or exercised or in which its existence was disputed, asserted or departed from, is
relevant.

9.3 Existence of any state of mind, intention, knowledge, state of body or bodily feeling, good-faith,
negligence, rashness, ill-will or goodwill towards any particular person, accidental: Section 14 and
15.(Section 15 supplementary to Section 14).

Classification of illustrations to Section 14

Facts from which mental or bodily state or feeling may be inferred are relevant. If the main fact has been
established, evidence of similar acts committed by the accused can be looked into to decide the state of
mind of the person who did the acts, that is, whether it was done accidentally or with a particular

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Universal page 50.
knowledge or intention. E.g. Fraud, Negligence etc. Malice in the doing of an act is generally proved by
the previous or subsequent conduct and relationships of the parties.

9.4 Existence of course of business when relevant(Section 16)

When the ordinary course of a particular business is proved the court is asked to presume that on the
particular occasion in question, there was no departure from the ordinary general rule. For instance, of
letters properly directed to a gentleman be left with servant it is only reasonable to presume prime facie
that they reached his hands. Section 114, illustration (f), lays down that the court presume that the
common course of business has been followed in particular cases. This presumption is an application of
the general maxim omnia prosemuntur rice acta (all acts are presumed to be rightly done) and is
based on the fact that the conduct of men in official and commercial matters is, to great extent
uniform. In such cases there is strong presumption that the general regularity will not, in any
particular instance, ne departed from. This, however, is a rebuttable presumption.

The expression “course of business” must mean the ordinary course of a professional avocation and
mercantile transaction or trade or business. The section covers both private and public offices. A person
refusing a registered letter sent by post cannot afterwards plead ignorance of its contents. 74Similarly, if a
letter is put into a post office, that is prime facie evidence, till rebutted, that the addressee received it in
due course. The post marks on letters are considered as evidence of the dates and places mentioned
therein.

MOST IMPORTANT CASES FOR PRELIMS (Sections 11-16)

Dudhnath Pandey v. State of U.P. (1981)
Jayantibhai Bhenkarbhai v. State of Gujarat
Surajmani v. Durga Charan Hansda (2001)
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Loolf Ali Meah v. Pearce Mohun Roy(1871).
In order to establish the plea of alibi the
accused must lead evidence to show that he
was so far off at the moment of the crime
from the place of occurrence that he could not
have committed the offence. There should be
physical impossibility under Section 11 by
reason of his presence at another place.
It is a rule of evidence recognized in Section
11 and burden of proving commission of
offence is on prosecution, would not lessen by
mere fact that accused has taken plea alibi.
Section 13 declares only a transaction
indicating a right or custom or a particular

Jones v. Williams
Sheetal Das v. Sant Das(1954)
Brides in the bath case
Eddington v. Fitz Maurice, Lord Bowen
Illustration (a) of Section15 is based on case
R v. Greg and ill. (b) of Section 15 based on
R v. Richardson; Queen Empress v. KC Das
based on Explanation 2 of Section 14.
instance to be relevant and not the facts
indicating existence in a crime.
Section 13 based on this case
Claiming customary right and the court’s
decision on that may be relevant under this
section.
Based on Section 15
Based on Section 14, the state of mind of a
man is a fact just like his digestion power.
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