.

Law ofEvidence. 15. Author - Prof. Prakash K. Mokal.

PART-I • • •
. .

~'RELEVANCY OF FACTS''
(Sections 1 to 55) •
'
1) Preliminary (Sections 1 to 4);
2) Of the Relevancy of Facts (Sections 5 to 55).

CHAPTER - I
• •

''PRELIMINARY''
•
(Sections 1 to 4)
•
S. 1 : Short title, extent and commencement -
'~This Act may be called the Indian Evidence Act, 1872.
It extends to the whole ofIndia except the State o_[Jammu and Kashmir and applies to
all judicial proceedings in or be.fore any Court, including Court-martial, other than Court- • •

martial convened under the Army Act, 1934 or the Naval Discipline Act or the Indian Navy
· (Discipline) Act, 1934 or the ;4.ir Force Act but not to qffidavits presented to any Court or
O;{ficer, nor to proceedings be.fore an Arbitrator, and it shall come into .force on -the .first .
•
day o_[September, 1872.
•
. •

Note: .
1) This Act applies to whole of India except the State of Jammu and Kashmir;
••• 2) This Act applies to: ·
a) All judicial proceedings before any Court and, Court-martial:
•
b) This Act does not apply to: •
i) Affidavits presented to any Court or Officer, or
ii) Proceedings before an Arbitrator, or • . · .
· iii) Proceedings before a Court-martial convened under the Army Act, or the Indian Navy (Discipline)
Act, 1934 or the Air Force Act. · · · .

S. 2 : Repeal of enactments -
[This Section is Repealed by the Repealing Act 1938}

S. 3 : Interpretation Clause :
.(Definitions of the words/terms used in this Act) -
In this Act, the following words and expressions are used in the following senses, unless a
contrary intention appears from the context __;_ ·
.
''Court'' - · "Court" includes all Judges and Magistrates, and all persons except
arbitrators, legally authorized to take evidence.
''Fact'' - "Fact'' means, and includes -
y;;;;--=-~=iiiiiiiii------~=--------~-- ~ -~

_Law of Evidence. 16. Author - Prof. Prakash K. MokaL

(1) any thing, state o_(·things, or relation o_( things, capable o_[ being perceived by the
senses; ·
(2) any mental condition o_( which any person is conscious.
Illustrations:
a) That there are certain objects arranged in a certain order in a certain place, ~s a fact.
b) That a man heard or saw something,
- - .
is a fact.
-c) That a -man said certain words, _is a fact. _ ,
d) That a man holds a certain opinion, has ·a certain intention, acts· in good faith, or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified
• time conscious of a particular sensation, is a fact. _
•
(e) That a man has a certain reputation, is a fact.
''Relevant'' - One fact is said to be relevant to another when·the one is connected with the
other in any o_(the ways re,(erred to in the provisions o_[this Act relating to the relevancy o_[
•
facts .
''Fact in issue'' - the expression ''fact in issue" means, and includes, any fact from
•
which, either by itself or in connection with other facts, the existence, non-existence,
... nature, or .extent o_[ any right, liability or disability asserted or denied in any suit or
proceeding, necessari~y.follows.
Explanation - Whenever under the provisions of the law for the time being in force
relating _to Civil Procedure, any Court records an· issue of fact, the fact to be asserted or
denied in the answer to such issue, is a fact in issue. - -
Illustrations :
•
..• A is accused of the murder ofB . .
At his trial, the following facts may be in issue: -
•
That A caused B's death;-
That A intended to cause B's death;
That A had received grave and sudden provocation from B;
That A at the time of doing the act which caused B's death, was, by reason of
unsoundness of mind, incapable of knowing its nature .
•

''Document'' - Document means; any matter expressed or described upon a~y substance
by means o_fletters, _figures or marks, or by more than one o_(those·means, · intended to be
used, or which may be used, _for the purpose o_[recording that matter.
Illustrations : · ·
. A writing is a qocument; _
Words printed, lithographed, are documents;
A map or plan:is a docqment;
An inscription on n:ietal plate or stone, is ~ docume~t;
•
A caricature is a document.
''Evide,,ce'' Evidence means and includes, -

•
 Law of Evidence. 17. Author - Prof. Prakash K. MokaL
_.<
1. all statements which the Court permits or requires to be made before·it by witnesses, in
relation to matters offact under inquiry, such statements are called oral evidence,· f
2. · all documents including electronic records produced for the ·inspection of the Court,
.......... Such documents are called documentary evidence .
Case law :
Sudha Devi vis. M. P. Narayanan, AIR 1988, SC 1381 -
Affidavit : Affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and
can be used in evidence only if the Court permits it to be so used for sufficient reasons.
Ganesh K. Gulve vis. State of Maharashtra, AIR 2002 SC 3068 : (2002) 7 SCC 71 -
Appreciation of Evidence : In order·to appreciate the evidence, the Court is required to bear in· mind the
set up and environment in which the crime is committed. The level of understanding of the witnesses. The
over jealousness of some of near relations to ensure that everyone even remotely connected with the crime
be also convicted. Everyone's different narration of same facts. These are only illustrative istances.
Thus, the Indian Evidence Act, 1872, classifies evidence into two. They are -
I) Primary and II) Secondary evidence;
a) Documentary evidence; and b) Oral evidence;
c) Original and Hearsay evidence.
d) Presumptive evidence.

I : Primary and Secondary evidence -: .

Primary evidence: Primary evidence may be, a) oral or b) documentary.
a) Primary oral ~vidence - It is the evidence of what a witness has personally seen or heard or
under_stood or gathered by his senses. It is called direct evidence as opposed to hearsay evidence (Section ·
60).
Secondary oral evidence or indirect· evidence - As a rule, hearsay evidence is not admissible,
but there are some exceptional cases of hearsay evidence which are admissible. Such exceptional cases of
hearsay evidence are examples of secondary oral evidence or indirect evidence (Sections 32, 33).
. b) Primary documentary evidence - It is the evidence of the original documents (Section 62).
Secondary documentary evidence is the evidence of copies, photocopies, etc. of documents which are
admissible under certain circumstances (Sections 63, 65, 65A, 65B).
Best evidence or Original evidence is also called as'primary evidence'.

II : Direct Evidence :
Direct Evidence :
· Direct evidence is.a testimony of a witness ·to the existence or non-existence of the fact or facts in
issue. It is the evidence about the real point in controversy or disputed point. It is termed as positive
evidence also. It is any evidence of a fact actually perceived by a witness with one of his own senses or of
an opinion actually held by himself. The evidence of an eye witness can be trustworthy if corroborated by
other relevant evidence to the fact in issue. ·
The word 'direct' is used in two senses - a) as opposed to 'hearsay evidence' and b) as opposed to
'circumstantial evidence'. In the first sense, direct evidence is the evidence of a fact actually perceiv~d by
a- witness with his own senses or an opinion held by him, while hearsay evidence is, what someone else
had told the witness to have seen or heard by him. In Section 60, the word 'direct' is used in contradiction
with 'hearsay' evidence. Thus, eye-witness to a murder is direct evidence; and if there is no eye-witness to
·a murder, the fact that A had the motive to murder B, or the fact that A was seen running away with a
blood-stained knife from B's room where B was fo und dead immediately after B's cries were heard, would
be circumstantial evidence as a_gainst A. · ·
 ,

Law o(Evidence. 18. Author - Prof. Prakash K. Mokal.

· III: Indir~ct evidence/Circumstantial evidence:

The statement made by a witness or the testimony of a witness as to the existence or non-existence of a ·
fact in issue is called oral evidence. For example, 'A' ~ho is the eye witness in a murder case s~ys, "I
saw Mr. X killing Y": This is the oral evidence. It is also called as direct evidence.
' '

The statement made by the witness may amount to a direct evidence or circumstantial evidence.
Circumstantial evidence means, the statement made by a witness or the testimony of a witness as to
other relevant facts, from which the facts in issue (i.e. fact or issue or point involved in a particular suit or
proceedings) may be inferred. · ·
For example -
'A' who is the witness in a murder ·case says, "I saw Mr. X (who was charged for killing Y)
running with blood stained-knife". This is the circumstantial evidence. It is also called as indirect
evidence.
Sharad Birdhichand Sharda vis:. State, AIR 1984, SC 1622:
For conviction on circumstantial evidence, the following conditions must be fulfilled-
(1) · The circumstances from which the conclusion of the gui}t is to be-drawn, should be fully
established;
(2) The facts so established should be consistent not only with the hypothesis except that the accused
is guilty; . ,
(3) The circumstances should be of conclusive nature and tendency; · .
(4) They should exclude every possible hypothesis except the one to be proved;
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion .consistent with the innocence of the accused and must show that in all human ·
probability, the act must have been done by the accused.
(For Oral evidence Refer Sections 59 and 60 given in this Book).
The statement made by a witne~s or the testimony of a witness as to the statements made by any
other person out of court which are offered as evidence, is called hearsay evidence. Fo·r example" 'A'
who is a witness in a murder case says, "I heard that X killed Y". This is called hearsay evidence.

Evidence of eye witness : . .

Having examined all ·the eye witnesses, even if other persons present nearby, not examined, the '
evidence of eyewitnesses cannot be discarded, courts are concerned with ·quality of evidence in a
criminal trial. Conviction can be based on. sole evidence if it inspires confidence [Sheelain Ramesh vis.
State ofAndhra Pradesh, AIR 2000 S.C. 718].
Where there are material contradictions creatin'g reasonable doubt in a re~sonable mi~d, such eye
witnesses cann.ot be relied upol\ to base their evidence in the conviction of accused. ·
.
Question : Clarify and distinguish between direct evidence and circumstantial
evidence. [November, 2013].

Answer:
Direct Evidence -
Direct evidence is the testimony of a witness.to the existence or non-existence of the fact or facts in issue.
It is the evidence about the real point in controversy. It is termed ·as positive evidence also. It is any
evidence of a fact actually perceivecl, by a witness with one of his OWJ:l senses or of an opinion actually
held by himself. .
 ..

Law ofEvidence. 19. Author - Prof. Prakash K. Mokal

The testimony of an eye witness cannot merely be distrusted only because he becomes hostile after giving
his statement earlier. The evidence of the eye -witness was worthy of e_vidence even if he made a
subsequent statement that the particular man was on the accidental spot - State of U. P. vis. Sahai and
Others, AIR 1981 SC 1442] . .
Following are the Examples ofDirect Evidence -
1. 'A' is tried for causing grievous hurt to ' B' with a club, 'C' deposes to the effect that he saw the
accused inflicting the blow which caused the grievous hurt.
. 2. 'A' is tried for setting frre to the house. 'B' deposes that he saw setting frre to the house.
3. 'A' files a suit against 'B' -0n the basis of an agreement. 'B' deposes that he was present when
the agreement was entered into and he witnessed it.. ·
4. · 'A' id indicted of murder of 'B', the apparent cause of death being a wound given by a sword.
'C' deposes that be saw 'A' kill 'B '· with a sword. ·
Identification by photo not admissible : .
There is the legal provision that identification by photo is not admissible in evidence.
Interested witness :
· It has been held regarding "interested witness" that the relationship is not a factor to affect credibility of
witness - [Rizan vis. State ofChattisgarh, AIR 2003 S.C. 976]. .
The evidence of a witness would be material and cannot be criticized on the ground that the witness was
knowing the father of the_accused, he is interested witness - [Sandeep vis. State ofHaryana, A.I.R. 2001
SC 1103 (c)]. . .

Indirect Evidence/Circumstantial Evidence :

Indirect evidence is also called circumstantial evidence. It is that evidence which relates to a series
of other facts than the fact in issue, which by experience have found so associated with the fact in issue in
•
relation to cause and effect, that it leads to a satisfactory conclusion. .
When foot-prints are found on sand, it is inferred some animal being has gone that way, and also
from the shape of the foot-prints, it can be asc.ertained as to whether, those are of a man or of an animal or
bird: From this circumstantial evidence, the fact in issue is inferred.
For example - Before killing 'X', the witness 'A' has seen 'B'. with_a knife in his hand. After
killing 'X', he saw 'B' running with a blood-stained knife. Here, though ' A' has not seen 'B' actually
killing 'X'. This circumstantial evidence is relevant to prove that 'B' has killed 'X'.
It may be noted
. that
. the circumstantial evidence must be strong and corroborated by other relevant

evidence to prove the fact in issue. In order to prove the fact by circumstantial evidence, the follo\ving
points become important -·
1. The circumstances from which the conclusion is drawn, must be fully established;
2. The circumstances relating to facts should be of a conclu.sive nature and tendency; -
3. The circumstantial evidence should be such as to lead to only possibility of the commission of the
offence, and no other possibility; .
4. The circumstantial evidence must be strong.and corroborated by other massive relevant evidence
and proof which is beyond reasonable doubt.
Case law :
Kalua vis. State of U. P. AIR 1958 SC 180 - .
.· In this case Kaula was charged with the murder of the deceased by shooting him with a revolver. There
was no eye-witness to see Kalua actually killing the deceased. But the circumstantial evidence which was
proved beyond reasonable doubt was as under - · .
1. A few days before the killing of the deceased, the accused Kalua had given a threat to kill the
deceased.
 Law o(Evidence. 20. Author -· Prof. Prakash K. Mokal

2. A cartridge was found near the coat of the deceased.

3. A revolver was recovered from the house of Kalua.
4. The forensic.ai;id frre arm expert gave his opinion that the cartridge found near the coat of the dead
body ·was frred from the same revolver produced by the accused.
In the above circumstances, it was held that there could be no possibility or room for thinking in
the circumstances established as above in this case, that anyone else other than the accused might
have shot the .deceased. And hence, the accused was convicted for the offence of murder.

Maixm ''falsus in uno,falsus in omnibus'': .

"False in one thing, is false in everything"

Triloki Nath vis. State of U.P., AIR 2006 s.9. 321 :

·"Falsus in uno, fa]sus in omnibus" is not a rule of evidence in criminal trail and it is duty of the court to
engage the truth from falsehood to shift grain from the chaff.
The maxim ''.falsus in uno, .falsus in omnibus" has not received general acceptance. nor has this maxim
come to occupy the status of rule of law. The maxim merely involves the question of weight of evidence
which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory
rule of evidence". ·
Gangadhar Behera vis. State o/Orissa (2002) 8 SCC 381: 2003 Cr L.J 41: .
The maxim
. '
"falus in uno falsus in omnibus" has no application in India and the witnesses
'
cannot be
branded as liars. Merely because some of the accused persons have been acquitted, though evidence •
as
against all .of them, so far direct testimony went, was the same, does not lead as a necessary·corollary
that those who had been convicted must also be acquitted, it is always open to a Court to differentiate
accused who had been acquitted from those who were convicted.
Natural witness :
Witnesses being close relation of deceased living opposite to house of deceased~are natural witnesses to
be believed.
Testimony : when to be relied :
Rejection of whole testimony of hostile witness is not proper.
The tes_timony of a single witness if it is straightforward, cogent and if believed, is sufficient to prove the
prosecution case. . · · ·
IV : Documentary evidence :
The expressions "certifying authority", "digital · signature", "digital signature .certificate",
"electronic
.
form",
.
"electronic records", "information",
. "secure electr9nic record", "secure digital
signature" and "subscriber" shall have the meanings, respectively, assigned to them in the Information
Technology Act, 2000.
Admissibility of contemporaneous tape-record :
A contemporaneous tape-record is admissible under Section 8, if-
i) the conversation is relevant to the matters in issue;
ii) there is identification of the voice;
iii) the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the
tape record. [R.M. Malkani vis. State ofMaharashtra, AIR 1973 S.C. 157] ·
Court to scrutinize evidence : '

It is the duty of court t9 scrutinize the evidence carefully and to see that acceptable evidence is accepted.
Court should adopt cautious approach for basing conviction on circums~ntial evidence.
 Law of Evidence. 21. Author - Prof. Prakash K. Mokal
. . .
· ''Proved'' - A fact is·said to be proved when, after considering ·the matters before it, the
• a • u

Court either believes it to exist or considers its existence so probable that a prudent man
ought, under the circumstances o_f the particular case, to act upon the suppositzon that it
exists.
. . .

''Disproved'' - A _fact
.
is said to be disproved when, q{ter considering the matters be_[ore it,
.
the Court either believes that. it does not exist,
.
or considers its non-existence so probable .
that a prudent man ought, under the circumstances o_{ the particular case, to act upon the
supposition that it does not exist.
'.fhe· expression "matters before it" means, the matters before the Court· which do not fall within the
definition of the term "evidence". Therefore, the definition of "evidence" !:Ilust be read with the definition
of "proved". In other words, certain matters which· the Court is bound to consider before establishing the
~ilt of the accused, though they may not amount to an.oral evidence or direct or indirect evidence, they
are said to be "matters before the Court"·.
For example, 'A' who is the eye witness in a murder case says, "I saw Mr. X ·killing Y". In such a case,
. the Court may consider some other matters e.g. whether the light was sufficient so that A can see clearly
X killing Y; or what was the distance between A and X, etc.

''Not Proved'' -A.fact is said not to be proved when it is neither proved nor disproved.
"lnc;lia" - "India " means, the territory o_(India excluding the State o[Jammu and Kashmir.

-· (Important University Examination _Questions)

Q. 1 : Write short notes on :
a) Fact. (April 2003; Apr. 2005; April 2007).
b) Facts in issue. (April 2004; April 2005; Nov. 2007).
c) Evidence. (April 2005). ·
d) 'Proved', 'Disproved' and 'Not Proved' . (Oct., 2009; April 2010; Nov., 2012).
e) Primary Evidence an~ Secondary Evidence. (April, 2012).
t) Documentary evidence and how it is proved. (November, 2012)
.
Q. 2 : ''The definition of the term 'Evidence' in the Indian Eviden·ce Act recognizes only
· two classes of evidences, namely, oral and documentary evidence" - Discuss . .
[Answer : Sections 3 - Definition of 'Evidence'; - Sections 59, 60 - Oral evidence;
Sections 61 to 73A - Documentary evidence]. (Nov. 2007). ·
or
Discuss the kinds of evidence and the evidential value of each of them. (November, 2010; ~
November, 2011).
or
What is meant by direct and indirect evidence ? Distinguish between the direct evidence
and circumstantial evidence. (Noveniber, 2004) . . ·
or
"The provisions of the Indian Evidence Act are intended to separate the grain from the
chuff and secure for the consideration of the Court the best evidence~'. - Discuss. (April,
2006).
 Law of Evidence. 22. Author - Prof. Prakash K. Mokal.
. .
or
Explain in detail _what is evidence, and kinds of evidence. (November, 2012).
Q. 3 : The definitions of ''proved'' and ''disproved" speak of ~'matters before the Court" -
Discuss in the light of the definition of "evidence" under The Indian Evidence Act, 1872.
(November, 2003).

Q. 4 ·: "Oral evidence must in all cases be direct'' - Discuss, stating exceptions if. any.
[Answer : Sections 3, 59, 601 (April, 2007).
Q. 5 : "Oral Evidence and D-0cumentary Evidence <1:re the f~undation stones of any_trial".-.
.Comment. (April, 2011).
· Q. 6 : Explain in full "oral evidence is excluded by documentary evidence.". (May, 2012). ·
. . .
. .

Q. 7 : Explain and distinguish between - Direct Evidence and Circumstantial Evidence ..

(April, 2011).

S. 4 : ''May presume''; ''Shall pre·sume''; Conclusive proof' - •

Presumption rrieans, a rule of law that, Courts shall draw 'a particular inference from a
particular fact or from a particular evidence, unless and until the truth of s1;1ch inference is
disproved.
.
''May Presume'' -
Whenever it is provided by this Act that, the Court may presume a .fact,. it may either .
.

regards such.fact as proved, unless and until it is disproved, or may call.for proo_fofit.

f It means, the Court has discretion to presume a fact i.e. consider_a fact as proved, unless and until
it is disproved; or the Court may call for a proof of such f~ct. ] _ · .
For instance, . .
i) under S. 88, the Court may presume that a message forwarded from a telegraph office is
the same as that message which is delivered to the person concerned;
ii) ·under S. 86, the Court may presume that, a certified copy of a foreign judicial records is
genuine and accurate. But in either of these two . cases (i.e. under S. 88 or. S. 86), the
Court .can also call for further proof .or. evidence of it.
iii) under S. 114 (a), a person found in possession of stolen property soon after the theft, is
either the thief or has received. the goods kno,wing them to be stolen, is a presumption
of fact. Presumptions of fact are always rebuttable, as their evidentiary value may be
negatived by contrary proof.

Presumptions of fact or natural presumptions are inferences which 'the mind naturally and logically
. draws from given facts without ·the· help of legal directions. Such inferences are drawn not by virtue of
any rule of Jaw, but by the spontaneous operation of our reasoning faculty: These presumptions fall more
properly within the province of logic and do not constitute a branch of jurisprudence.
 Law ofEvidence. 23. Author - Prof. Prakash K. Mokal
''Shall Presume'' -
'
Whenever it is directed b.v this Act that; the Court shat/presume a _fact, it shall regard such
-fact as proved,· unless and until it is disproved. .
·
Presumptions of law are always obligatory; and.a Judge cannot refuse to draw the presumption.
Such presumptions are either i) rebuttable or ii) irrebuttable. Rebuttable presumptions of law are indicated
by the expression 'shall presume'. They hold good unless and until there is contrary evidence, for example,
the Court shall presume the genuineness of every Government publication (S. 84, also Sections 79 to 85,
89 and 105). ·
'
What is presumption ? .
The Court shall presume means, the Court is bound to take a fact as proved, unless and until it is
disproved. li1 other words, the Court has no discretion in the matter or other option in the matter but to
consider or presume the fact as proved. Thus, shall presume means, must presume.
''Conclusiv.e Proof' -
When one.fact.is declared by this Act to be conclusive proo_fo_fanother, the Court shall, on
proo,fo,fthe one.fact, regard the other as proved, and shall not allow evidence to be given
_for the other purpose ofdisproving it.
Conclusive proof means, a final proof. Under certain circumstances, the Court can consider a
proof to be a conclusive proof (i.e final proof). For example, -
S. 112 of The Indian Evidence Act, 1872 lays down that, if a child is born during .the continuance of a
valid marriage between h_is mother and any man, or within 280 days after the dissolution of the marriage
the mother remaining unmarried, then, it is a conclusive proof of the legitimacy of the child. And
therefore, the Court cannot allow any other evidence for disproving the legitimacy of such child.
The Court, in this case has no discretion at all and cannot call upon a party to prove that fact i.e. ·
legitimacy of the child. Section 41 of the Act provides, inter alia, that a ·final judgment, order or decree-of
a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character:.

Question : Distinguish between ''may presume'' and ''shall .presume''.

Answer: •

''May Presume'' :
According to S. 4 of the Indian Evidence Act, 1872, the court 'may presume' fact, means that, 1) a court ·
either regards such fact as proved unless and until it is disproved, or 2) a court may call for proof.of it.
Whenever it is provided that, the court.may presume'a fact, it has discretion to presume it as proved or to
call for confirmatory evidence of it, as the circumstances of rebuttal. Thus,
1) th~ court may presume that a message forwarded from telegraph office corresponds with the
message delivered for transmission at the office; or the court may presume that a.certified copy of
foreign judicial records is genuine and accurate or,
2) in either case, the court can call for further evidence.
Whether it is provided by this Act that the court may presum.e a fact, it may either regard such fact
as proved unless and until it is disproved or may c&ll for proof of it. ·
''Shall Presume'' :
According to Section 4 of the Indian Evidence Act, 1872, the court 'shall presume' fact, means that, it
shall regard such fact as proved unless and until it is disproved. When it is provid~d that the court shall
presume a fact, _it has to take a fact as proved unless and until .it is disproved. ·
In such a case, the court has no option, but it is bound to take the fact as proved unless the party interested
in disproving it, produces sufficient evidence for that purpose. Thus, the court has to presume the
 Law ofEvidence. 24. Author-Prof. Prakash ,K. MokaL
.
genuineness of every document purporting to be the London Gazette (Section 81 of the Indian Evidence
Act, 1872). Similarly, _83 of this Act lays down that, the court shall presu.me the accuracy of maps and
plans made by Government authority; Section 85 of this Act lays down that, the <;ourt shall presume that,
a power of attorney purporting to be executed before proper authority, was so executed.

(Important University Examination Questions)

Q. 1 : Distinguish between ''may presume'' and "shall presume".
(April, 2006).
. or . .
Discuss ''may presume", 'shall presume', and 'conclusive proof. (April, 2007)
or ·
Discuss the provisions giving appropriate illustrations relating "may presume",
"shall presume" and ''conclusive proof' in the Indian Evidence Act. (November,
2006).
Q. 2 : Write short note on: Conclusive proof. (April, 2006; 2011).

CHAPTER-II

''OF THE RELEVANCY OF FACTS''

(Ss. 5 to 55)
. . .
S. 5 : Evidence may be given ~f facts in issue and relevant facts -
. Evidence may be given in any suit or proceedings of the existence or non-existence gf
everyfact in issue and o_fsuch other.facts as are-hereinafter declared to be relevant, and o_[
no others.
Explanation - This Section shall not enable any person to give evidence of a fact which he •

is disentitled to prove by any provision of the law for the time being in force relating to
Civil Procedure. •

. . .
Illustrations:
(a) A is tried for the murder of B by beating him with a club with the intention of causing
his death. . ·
At A's trial, the following facts are in issue :- •

A's beating B with the club;

A's causing B's death by such beating;
· A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for production at the first ·
hearing of the case, a bond on which he relies. This Section does not enable him to
Law ofEvidence. 25. Author-Prof. Prakash K. MokaL
.
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.
. '. .

Thus, under S. 5, the evidence can be given of that fact which is a fact in issue or a fact which is
declared to be relevant under this Chapter (i.e. Chapter ID.
.
Section 3 of The Indian Evidence Act, 1872 defines the: terms ''Relevant" and "Facts in
issue" as under -
''Relevant'' -
One fact is said to be relevant
. .
to another when the one is connected with the other in any
.

o.f the ways r~(erred to in the provisions o.f this Act relating to the relevancy o.lfacts.
''Fact.in issue'' -
The expression ''fact in ·issue "-means and includes, any fact from which, either by itself or
in connection with other facts," the existence, non-existence, nature, or extent o.f any right
liability or disability asserted or denied in any suit or proceeding necessari~y_(ollows.
Explanation -
Whenever under the provisions of the law for the. time being in force relating to Civil .

Procedure, any Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue, is a fact in issue. ·
Illustrations:
A is accused of the murder ofB.
At his trial
.
the following facts. may be in issue : -
That .A caused B's death;
That A intended to cause B's death;
That A had received grave and sudden provocation from B; .
.That A at the· time of doing the act which caused B's death, was, by/ reason of
unsoundness of mind, incapable ofkno~ing its nature.
S. 6 : Relevancy of facts forming part of same transaction - .
Facts which, though not in issue, are so connected with a _fact in issue as to _form part o.f
the same transaction, are relevant, whether they occurred at the same time and place ·
or at d~fferent times and places.

Illustrations:
(a)A is accused of the murder of B by beating him. Whatever was said or done by A or
·B or the by-standers at the beating, or so shortly before or after it, as to form part of
the transaction, is relevant fact. .
·{b)A is accused· of waging war against the Government of India by taking part in an
armed insurrection in which property is destroyed, troops are attacked, arid goals are
. broken open. The occurrence of.these facts is relevant, as formingpart of the general
· transaction, though A may not have been present at_all of them.
(c)A sues B for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the· subject out of which the libel arose, and forming
 Law of Evidence. · 26. Author - Prof. Prakash K. MokaL
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part of the correspondence in which it is contained, are relevant facts, though they
do not contain the libel itself.
(d)The question is, whether certain goods ordered from B ·were delivered to several
intermediate persons successively. Each delivery is a relevant fact.
From the above illustrations, it can be seen that, the conduct of any party to any suit or proceeding in
reference to such suit or proceeding or in reference to any fact ·in issue therein, and the conduct of any
person accused is. relevant, if such conduct influences any fact in issue, and whether it was previous or
subsequent thereto.

b4, Principle of Res Gestae: · . . · _ ·

~ Section 6 above, lays down that, there are certain facts which though not in issue, but they are so I
connected with facts in issue and become part of the same transaction. Such facts said to be relevant facts.
It is immaterial whether such facts happened at the same time and place or at different times and places.
Transaction means, a series of facts or group of facts. For example, when a crime, say a murder is
committed, it may be committed by a single person in a single incident (i.e. single fact) happening at one
place and at one time; or a fact of crime may run into several stages, several acts, incidents happening at
different places and at different times. ·
Illustrations (a) to (d) provided under Section 6 are the examples of such facts which become
I •

part of the same transaction. ·They are called res gestae i.e. things done in the course of a transaction.
They can be said to be circumstantial facts which become relevant and can be admitted in evidence,
though they are no_t in issue. Because, they are so connected with the fact in issue, as to form part of the
same transaction, whether they occur at the same time·and place, or at different times and places. Thus,
. illustrations (a) to. (d) of Section 6, are the examples
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of res gestae.

S. 7 : Facts which are the occasion, cause or effect of facts

'
in issue -
Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts,
or facts in issue, or which constitute the sate of things under which they happened, or
which afforded an opportunity for their ·occurrence or transac(ion, are relevant.

Illustrations: · ·
(a) The question is, whether A robbed B. .
· · The fact that shortly before the robbery, B went to fair with money in his possession, and
that he showed it, or mentioned the fact that he had it, to third persons, are ·relevant. ·
(b) The question is, whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the murder w~s
committed, are relevant facts. ·
(c) The question is, whether A poisoned B. _. _
.The state of B's health before the symptoms ascribed to poison, and habits of B, known to
A, which afforded an opportunity for the .administration of poison, are relevant facts.

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(Important University Examination Questions) •

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Q. 1 : ''Evidence may be given of facts in issue and relevant facts" - Discuss with
• ..
reference to the theory of relevancy. (April, 2003).
or