The Indian Evidence Act, 1872; Important Questions - CLAT PDF Download

All the above are facts in issue because they are in contention and they determine the liability of A. Their truth increases or decreases the probability that A murdered B. Prosecution will have to establish the facts that prove that A murdered B before A can be convicted. At the same time, the prosecution also has to disprove that any of the exceptions do not apply to A. A fact in issue is also known by its latin term – factum probandum, which means fact to be proved.

A fact will be considered as fact in issue only if the fact is such that by itself or in connection to other facts it is crucial to the question of a right or liability. To be a fact in issue, a fact must satisfy two requirements – the fact must be in dispute between the parties and the fact must touch the question of right or liability. The extent of rights and liabilities of parties depend on the ingredients of an offence. In criminal matters, the allegations in the charge sheet constitute the facts in issue, while in a civil case, it depends on the provisions of the substantive law.

What do you understand by relevancy of facts?

A relevant fact is also known by its latin term – factum probans, which means a fact that proves. Thus, if facts-in-issue are the facts to be proved or disproved in a trial, relevant facts are the facts that help prove or disprove facts-in-issue. A fact is relevant if belief in that fact helps the conclusion of the existence or non-existence of another.

Section 3 specifies that a Relevant fact is a fact is relevant to another when it is connected to the other in any of the ways referred to in the provisions contained in the act. Sections 6 to 55 contains provisions that define the relationships that make a fact legally relevant or not relevant to another. The relationship makes one fact more probable or improbable because of the other. For example, Fact A is that a person was given certain medication and he died. Fact B is that the person was suffering from TB. Here, fact B is relevant to fact A because it throws light on the possible causes of his death. Fact B makes is probable that he might have died because of TB instead of the given medication.

In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale has said, “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. A relevant evidence is evidence that makes the matter which requires proof more or less probable.”

As is evident from Section 5 stated above, only those facts that are related to the facts in issue through relationships defined in Section 6 to 55 are legally relevant and evidence can be given only for those facts in a trial. It must be noted, however, that a relevant fact may not necessarily be admissible.

Section 11 would be important to mention here. As per Section 11, in certain situations facts not otherwise relevant become relevant. This happens if they are inconsistent with any fact in issue or relevant fact or 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.
For example,
(a) The question is whether A committed a crime at Calcutta on a certain day – The fact that, on that day, A was at Lahore is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant. As is shown by these illustrations, an alibi is a very common example of an irrelevant fact becoming relevant.

• Explain the doctrine of Res Gestae. Do you agree with the view that this doctrine is not only useless but is also harmful? / When does relevancy of facts form part of the same transaction?Doctrine of Res Gestae
  In a nutshell, Res Gestae means facts forming part of a transaction. This includes things done and things said in the course of a transaction. Acts and declarations accompanying a transaction are treated as Res Gestae and are admissible in evidence. As discussed above, a Court is interested only in such evidence that is bearing on a fact in issue or a relevant fact. This is important in limiting the scope of the trial to facts that are indeed important for the case so that justice can be done swiftly. However, in narrowing the scope of things that can be brought before the court, injustice should not be done. The things that are reasonably connected to the facts in issue are usually very important for a case and such facts must be allowed to be brought before the court whether they fall into any of the sections that categorize the facts as relevant or not. This concept is espoused by Section 6. It says: Section 6. Relevancy of facts forming part of same transaction – Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. What it means is that a fact in issue does not happen in isolation. It always has a factual story behind it. A fact in issue lies in a pool of other facts that gives birth to it. This section makes all such facts relevant. The important thing to understand here is the meaning of the term “transaction”. To be eligible under this section the fact must have occurred in the same transaction in which the fact in issue occurred. “Occurring in the same transaction” is a wide term that includes several kinds of things such as things that happened at the vicinity of the facts in issue, things that were done by the accused right after or before the facts in issue, things that lead to facts in issue, and so on. The following illustrations explain the kind of facts that are contemplated under this section: 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 is as to from part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. The principle that is highlighted by the above illustrations is that whenever “transaction” such as a contract or a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. According to Stephen, a transaction is a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong, or any other subject of inquiry which may be in issue. Although Section 6 does not use the words Res Gestae, the concept behind this section is often referred to by this term. This pool of facts in which facts in issue happened is the “Res Gestae” of the facts in issue. Res Gestae is the surrounding circumstances of the event to be proved. Res Gestae and Hearsay Evidence
  Res Gestae also refers to secondhand statements considered trustworthy for the purpose of admission as evidence in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event. Under the hearsay rule (Section 60 – Oral evidence must be direct), a court normally refuses to admit as evidence statements that a witness says he or she heard another person say. Traditionally, two reasons have made hearsay inadmissible: unfairness and possible inaccuracy. Allowing a witness to repeat hearsay does not provide the accused with an opportunity to question the speaker of the original statement, and the witness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel can object to a witness’s testimony as hearsay. The doctrine of Res Gestae is one of the many exceptions to this rule. Since certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other secondhand statements and therefore should be admissible as evidence. To be admissible, the statements must relate, explain, or characterize an event or transaction. They must be natural statements growing out of the event, as opposed to a narrative of a past, completed affair. Additionally, the statements must be spontaneous, evoked by the event itself, and not the result of premeditation. Finally, the original speaker must have participated in the transaction or witnessed the event in question. Thus, for example, a witness might testify that during a bank robbery, she or he heard another person shout, “That person is robbing the bank!” and the statement could be admitted as an exception to the ban on hearsay. Illustration (a) above is an example of such statement. Usefulness of Res Gestae
  As per Phillip’s Treatise on Evidence, the reason why the term Res Gestae has been avoided from Section 6 is because this doctrine has been productive of confusion. There can be numerous facts that surround the facts in issue. They can all be somehow linked with the same transaction. There is no clearcut rule that can demarcate a transaction. So it is entirely left to the experience and intuition of the Judges to determine whether a particular fact can be included in Res Gestae or not. This is evident from the following two cases. In the case of R vs Foster 1843, accused was charged with manslaughter in killing a person by driving over him. A witness saw the vehicle driven fast but did not see the accident. Immediately after, on hearing the victim groan, he went up to him and asked him what happened. The deceased then made a statement as to the cause of the injury. The court held that what the deceased said at the instant, as to the cause of the accident is clearly admissible.
  As a contrast, in the case of R vs Beddingfield 1879, a woman, with her throat cut, came suddenly out of a room, in which she had been injured. Shortly before she died, she said, “Oh dear Aunt, see what Beddingfield has done to me.” This statement was not accepted as Res Gestae. According to CJ Cockburn, anything uttered while the crime was being done would be admissible but here, what she said was said after the crime was all over. Thus, it can be seen that the doctrine of Res Gestae does not produce same results in very similar situations. This certainly causes confusion in the minds of novice lawyers and judges. My belief is that this principle should be applied when common sense dictates so. Like any other principle, this principle is also not a precise instrument to measure relevancy. It is only a guide that can help decide whether a fact is sufficiently relevant to a fact in issue. The final decision rests with the Judge, who should decide depending on the peculiarities of the case. I do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigid rule of law. It should be applied only when suitable.

• What facts are relevant under Indian Evidence Act?

Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant. These are as follows –

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

Section 7 – Facts which are the occasion, cause or effect of facts in issue – Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, which afforded an opportunity for their occurrence or transaction, are relevant.
For example – a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

Section 8 – Motive, preparation and previous or subsequent conduct – Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact –
For example – (a) A is tried for the murder of B – The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant –

Section 9 – Facts necessary to explain or introduce relevant facts – Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose –
For example, (a) The question is, whether a given document is the will of A – The state of A’s property and of his family at the date of the alleged will may be relevant facts –

Section 10 – Things said or done by conspirator in reference to common design – Where there is reasonable round to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it –

Section 11 – When facts not otherwise relevant become relevant – Facts not otherwise relevant are relevant – (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable –
For example, (a) The question is whether A committed a crime at Calcutta on a certain day – The fact that, on that day, A was at Lahore is relevant –

Section 12 – In suits for damages, facts tending to enable Court to determine amount are relevant – In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant –

Section 13 – Facts relevant when right or custom is in question – Where the question is as to the existence of any right or custom, the following facts are relevant:-
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence:
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from –
For example – The question is whether A has a right to a fishery – A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbors, are relevant facts –

Section 14 – Facts showing existence of state of mind, or of body, of bodily feeling – Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant –
For example, (a) A is accused of receiving stolen goods knowing them to be stolen – It is proved that he was in possession of a particular stolen article – The fact that, at the same time, he was in possession of many
other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen –

Section 15 – Facts bearing on question whether act was accidental or intentional – When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant –
For example, (a) A is accused of burning down his house in order to obtain money for which it is insured – The facts that A lived in several houses successively each of which he insured, in each of which a fire occurred, and after each of
which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental –

Section 16 – Existence of course of business when relevant – When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact –
For example, (a) The question is, whether a particular letter was dispatched – The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant –

Sections 17 to 31 – Admission of facts by particular persons is relevant.

Sections 32 and 33 – Statements by persons who cannot be called witness in specified circumstances are with definite conditions are relevant.

Sections 34 to 38 – Statements made in an extra ordinary circumstance, any statement made on any law which is inserted in some books, is relevant.

Sections 40-44 – Judgments of courts are relevant in certain situations.

Sections 45-51 – Opinion of third person is relevant in certain situations.

Sections 52-55 – Character of a person is relevant in certain situations.

• Are those facts also relevant which are the occasion, cause, or effect of facts in issue?

Yes, facts because of which facts in issue take birth, or facts which take birth because of facts is issue are also considered relevant fact. Evidence can be given for the set of circumstances under which the principle facts occurred. As per 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, which afforded an opportunity for their occurrence or transaction, are relevant.

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

This section include following types of facts –
1. Occasion – Occasion means the circumstances in which an event occurred. Evidence of such circumstance is eligible to given. For example, in the case of R vs Richardson, where a person was charged with the rape and murder of a girl, the fact that the girl was alone in her cottage at the time of her murder is relevant because it provided the occasion in which the crime happened.

2. Cause – Facts that form the cause of facts in issue are relevant. For example, A is charged of criminal misappropriation of funds from a bank. The fact that A was hugely in debt at the time of committing the crime is a relevant fact because it indicates a possible cause of the commission of the crime. This is similar to motive as given in Section 8. However this may not always be the case. For example, in the case of Indian Airlines vs Madhuri Chaudhury AIR 1965, the report of an Inquiry Commission relating to an air crash was held relevant under Section 7 as establishing the cause of the accident.

3. Effects – Every act causes some effect that leads to some other happening. These effects not only record the happening of the main act but also throws light upon the nature of the act. For example, where a person is poisoned, the symptoms produced are effects of the fact in issue and so are relevant.

4. Opportunity – Circumstances which provide an opportunity for the happening of a fact in issue are relevant. For example, a break from the daily routine of a person may be the opportunity that is used the person to commit the crime. For example, in R vs Richardson, the fact that Richardson left his fellow workers at about the time of murder under the pretense of going to a smith’s shop is relevant because it provided an opportunity for the fact in issue, namely her rape and murder, to happen.

5. State of Things – Facts which constitute the state of things under which or in the background of which the principle facts happened are relevant. For example, in the fact ore Rattan vs Reginum, AIR 1971, a person shot his wife and his plea was that it was an accident. The fact that he was unhappy with his wife and was having an affair with another woman, was held to be a relevant fact.

“Any fact is relevant which shows or constitutes a motive or preparation and conduct of any fact in issue or relevant fact”. Explain.

This statement is taken from Section 8 of Indian Evidence Act, which is as follows –

Section 8 – Motive, preparation and previous or subsequent conduct – Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1 – The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2 – When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations
(a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant.

(c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A. The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate, that he consulted vakils in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime. The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A’s presence- “the police are coming to look for the man who robbed B,” and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend him money, and that D said to C in A’s presence and hearing- “I advise you not to trust A, for he owes B 10,000 rupees,” and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

This section provides for the relevancy of three principal facts which are very important in connection with any case, namely, Motive, Preparation, and Conduct.

Motive – Motive is the power that impels one to do an act. It is a kind of inducement for doing the act. Motive by itself is not a crime but is helpful in establishing guilt. Evidence of motive helps the court connect the accused with the deed and is so very relevant. For example, on the murder of an old widow, the fact that the accused was to inherit her wealth was held as relevant as it showed that the accused had the motive to kill her. In another case, a woman who a good swimmer had drown and the fact that the accused, her husband, was having an affair with another woman was held relevant as it explained the motive behind the murder.

Preparation – The acts of preparation for a crime are relevant. Preparation by itself is not a crime (except in certain offenses such as waging a war against Govt. of India) but the facts that show the preparation tie the preparer to the actual crime and so are relevant. For example, act of purchasing a poison shows the preparation of the murder by administering poison.

Conduct – The state of mind of a person is often reflected in his conduct and so conduct of a person is a relevant fact. This section makes the conduct of any party to a civil suite or their agents relevant. In a criminal case, the conduct of the accused before, while, or after doing the act is deemed relevant. However, two conditions must be fulfilled for the conduct to be relevant –
1. The conduct must be in reference to the facts in issue or the facts related to them.
2. The conduct is such as influences or is influenced by the facts in issue or relevant facts.

When do facts not otherwise relevant become relevant?

A fact, which does not have any such relation as defined in Section 6 to 55 to the fact in issue is not a relevant fact and ordinarily evidence cannot be given for such a fact. 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 : Section 11 – Facts not otherwise relevant, are relevant.
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if, by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore, is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

As given in illustrations above, an alibi is a very common example of an irrelevant fact becoming relevant. Indeed, if a person is proved to be not at the location of the crime at the time of the crime, he cannot have committed the crime. However, the burden of proof is on the accused and strict evidence is required to establish such pleas For example, in case of Mithilesh Upadhyaya vs State of Bihar, 1997, the accused stated that he was in the hospital at the time of crime but did not give any supporting documents. His plea was not accepted.

• How far is character relevant and admissible in evidence in civil and criminal cases? A character of a person is a very vague and subjective aspect. It is at best imprecise and at worst dangerous to draw an inference about the liability of a person from his character. Therefore, the general rule is that character of a person is not relevant for establishing guilt. However, there are certain exceptional situations where character of a person is important for the case. Provisions regarding the relevancy of character are specified in Sections 52, 53, 54, and 55. There are different rules about relevancy of character in civil and criminal cases. Relevancy in Civil CasesSection 52 lays down a general principle for civil suits that the evidence of a party’s character cannot be given to show that the conduct attributed to the party is probable or improbable. This means that a defendant cannot show his good character as evidence to prove that his would not have said defamatory things about the plaintiff and similarly the plaintiff cannot show previous bad character of the defendant as evidence to prove that the defendant must have said defamatory things about the plaintiff. This principle was laid down in a very old case of Attorney General vs Bowman, 1771. In this case a man was tried for a penal action, and not for a criminal prosecution, for carrying false weights and offering to corrupt an officer. He called a witness to testify that he was a man of good character and conduct. This was not admitted by the court. Further, as held in Hollington vs Hewthorn & Co ltd, 1943, which is also known as rule in Hollington vs Hewthron, previous criminal conviction cannot be given to show the bad character of a person in a civil suit. In this case, an action was brought against the defendant for damages caused by the defendant’s negligent driving of a motor car. The defendant had also been prosecuted for the same accident and convicted. The plaintiff sought to give evidence of this conviction in proof of the fact that he was guilty of careless driving. However, the evidence was not accepted as admission on the ground that conviction by a criminal court is at best an opinion of that court that the defendant was guilty and such opinion is not admissible. Exceptions –
  1. When character appears from other relevant evidence – Second part of Section 52 provides that if a fact is otherwise relevant to the case then the conclusion about a party’s character may be drawn from such fact. An otherwise relevant fact cannot be excluded from evidence merely because it incidentally throws light upon a party’s character. For example, a journalist is described as an exploiter and he sues for damages for defamation and the defendant takes the defense that whatever the defendant has said is true. Now, the defendant will have to give evidence to prove the exploitation which the plaintiff has been practicing. Such evidence will also bring to light the real character of the plaintiff and the court can take note of this. 2. When character itself is in issue – Section 54 says that previous bad character is not relevant, except in reply. However, Explanation 1 to this section specifies that this rule does not apply when character itself is a fact in issue. For example, in a divorce case on the ground of cruelty, the cruel character of the defendant is a fact in issue and evidence can be given in support of that previous bad character. 3. Determination of damages – Section 55 allows the character of the plaintiff to be considered as relevant for determining the amount of damages that he ought to receive. An early English case on this aspect is of Scott vs Sampson, 1882. In this case a journalist was suing the defendant for libel. The defendant tried to show the character of the plaintiff but the trial judge refused to admit it. Upon appeal for retrial, J Cave, held that the evidence should have been allowed to be admitted. He remarked that if the plaintiff claims an injury to his reputation, the jury should know whether he is a man of reputation or not before awarding any damages. If evidence about the character of the plaintiff is not allowed then there will be no difference between an honorable person and a cheat. A virtuous woman will be kept at the same level with a prostitute. To enable a jury to estimate the quantum of injury sustained, the knowledge of party’s character is relevant. Relevancy in Criminal CasesSection 53 lays down the general principle that in criminal proceedings the fact that the person accused is of a good character is relevant and Section 54 lays down that the fact that the accused is of a bad character is irrelevant in criminal proceedings. Thus, every accused is at a liberty to show that he is a person of good character. As J Cockburn has observed, the fact that a man has unblemished reputation leads to a presumption that he is incapable of committing the crime for which he is being tried. On the other hand, the prosecution cannot submit evidence to show bad character of the accused. However, as per Section 54, if a person gives evidence of his good character then the opposite party is allowed to give evidence of his bad character as a reply. Opposite party cannot give evidence of bad character in its original case. It can do so only as a reply. Exceptions –
  1. Evidence for bad character can be given by the prosecution but only as a reply to the evidence of good character.
  2. When character itself is in issue, evidence of bad character may be given.
  3. When a fact is otherwise relevant, it can be submitted even if incidentally reveals the character of the accused.
  4. The prosecution is allowed to cite a previous conviction as evidence of bad character of the accused. Regarding this provision, Lord Denning has observed in the case of Goody vs Oldham Press Ltd, 1967, that previous convictions are a class in itself. They are the raw material upon which bad reputation is built up. They have taken place in an open court and are of public knowledge. They are very different from previous misconducts that are not tried in a court and which therefore might lead to dispute. But previous convictions offer not possibility of such disputes and so are relevant and admissible.

• What facts need not be proved?

Generally, if a fact is alleged by any party to a suit or criminal case, that party has to provide proof of the truthfulness of that fact to the court. However, Indian Evidence Act allows the court to accept certain kinds of facts without any necessity to be proven by any party. These kinds of facts are specified in Section 56, 57, 58, and 114.
The provisions in these sections are as follows –
Section 56 – Facts judicially noticeable need not be proved –No fact of which the Court will take judicial notice need be proved. This means that if the court is bound to take notice of a particular fact, the parties do not have the burden of proving that fact. It is part of the judicial function to know that fact. For example, the court is bound to know the various laws and customs of the country. A party does not need to provide any proof when stating any law. Facts for which a court will take judicial notice are specified in Section 57. These include Laws in force in India, Public Acts of Parliament, Local, and person acts declared by it to be judicially noticed, Articles of War for Indian armed forces, the rule of the road, land, or sea, that vehicles in India must keep to the left of a road etc, the territories under the dominion of Govt. of India. In all these case, the court may resort appropriate books or documents of reference for its aid. Also, the matters enumerated in this section are not exhaustive. The section merely provides that the court must take judicial notices of the facts enumerated in this section. It does not prohibit the court from takings judicial notice of any other facts. To understand this point, we need to look at the meaning of judicial notice –

Meaning of “Taking Judicial Notice” – It means recognition of something as existing or as being true without having any proof. Judicial notice is based upon reasons of convenience and expediency. Certain things are so commonly known that any ordinary person is aware of it and it is a waste of time to seek any proof for such things. For example, it is a commonly known fact that certain parts of MP, Bihar, and AP are naxalite affected or that J&K is a terror striken area. A court does not need to spend time in looking for its proof. Thus, judicial notice is the cognizance taken by the court itself of certain matter which are so notorious or clearly established that the evidence of their existence is unnecessary.

For example, in the case of Managing Committee of Raja Sidheshwar High School vs State of Bihar, AIR 1993, the court took judicial notice of the fact that education in the state was virtually crumbled. In another case, court took judicial notice of the fact that several blind persons have acquired great academic distinction. If the court is called upon by a person to take judicial notice of a fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The basic requirement for taking judicial notice is that the fact has to be of a class that is so generally as to give rise to the presumption that all persons are aware of it. However, a judge cannot bring his personal knowledge into judicial notice if that knowledge is not public knowledge. Just because a judge knows something does not make it a thing of common knowledge.

J Chandrachud observed that a court does not operate in ivory tower. It can take cognizance of facts that are happening all around it. Shutting judicial eye to the existence of such facts and matters is in a sense an insult to common sense and would reduce the judicial process to a meaningless and wasteful trial. No court therefore need to insist upon a formal proof of notorious facts such as date of polls, passing away of an eminent person, or events that have rocked the nation.

Section 58 – Facts admitted need not be proved – No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or
which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

This basically means that if a fact has been admitted by a party, the other party need not provide proof of that fact. For example, admissions made in written statements, or things said before and accepted to be said in the trial need not be proved. in averments made in a petition that have not been controverted by the respondent carry the weight of a fact admitted.
However, an admission may not necessarily constitute conclusive evidence of the fact admitted. Therefore, this section allows the court to ask for some other proof of the admitted fact. This is a discretionary power of the court.

Section 114 – Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. For example, a person may be presumed to be dead if his whereabouts are not known for seven years. Such facts need not be proven.

• What do you understand by Admission?

General Concept of Admission –
In general, Admission is a voluntary acknowledgment of a fact. Importance is given to those admissions that goes against the interests of the person making the admission. For example, when A says to B that he stole money from C, A makes an admission of the fact that A stole money from C.This fact is detrimental to the interests of A. The concept behind this is that nobody would accept or acknowledge a fact that goes against their interest unless it is indeed true. Unless A indeed stole money from C, it is not normal for A to say that he stole money from C. Therefore, an admission becomes an important piece of evidence against a person. On the other hand, anybody can make assertions in favor of themselves. They can be true or false. For example, A can keep on saying that a certain house belongs to himself, but that does not mean it is necessarily true. Therefore, such assertions do not have much evidentiary value.Admission as per Indian Evidence Act –
Section 17 of Indian Evidence Act defines Admission as thus – An admission is a statement, oral or documentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

As per this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in Section 18 to 20 as follows –

Section 18 – Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived – Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.
By suitor in representative character – Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by –
(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or
(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.

According to this section, statements made a persons who are directly or indirectly a party to a suit are admissions. Thus, statements of an agent of a party to the suits are also admissions. Statements made by persons who are suing or being sued in a representative character are admissions, only if those statements were made by the party while being in that representative character. Similarly, statements made by persons who have a pecuniary interest in the subject matter of the proceeding and statements made by persons from whom such interest is derived by the parties in suit, are also admissions if they are made while the maker had such an interest. For example, A bought a piece of land from B. Statements made by B at the time when B was the owner of the land are admissions against A.

Section 19 – Admissions by persons whose position must be proved as against party to suit- Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.

Illustration –
A undertakes to collect rent for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Section 20 – Admission by persons expressly referred to by party to suit – Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
Illustration –
The question is, whether a horse sold by A to B is sound A says to B “Go and ask C. C knows all about it” C’s statement is an admission.

To be considered an admission, it is not necessary for a statement to give a direct acknowledgment of liability. It is sufficient even if the statement suggests an inference about the liability. For example, A is charged with murder of B by giving poison. The statement by A that he purchased a bottle of poison is admission because it suggests the inference that he might have murdered B using that poison, even though it does not clearly acknowledge the fact that A murdered B. In the case of Chekham Koteshwara Rao vs C Subbarao, AIR 1981, SC held that before the right of a party can be taken to be defeated on the basis of an alleged admission by him, the implication of the statement must be clear and conclusive. There should not be any doubt or ambiguity.Further, it held that it is necessary to read all of his statements together. Thus, stray elements elicited in cross examination cannot be taken as admission.

• Discuss the law regarding proof of admissions against persons making them and by or on behalf of them. “Admission cannot be proved by or on behalf of any person who makes it”. Are there any exceptions? Discuss.

It is important to note that Indian Evidence Act does not require that an admission be of statements that are against the interests of the maker. All that is necessary is that the statement should suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in the interest of the maker of the statement. Self serving prior statements are also admissions. For example, A person can say to B that he did not steal money from C. This is a self serving statement and is a valid admission. Does this mean that a person can make self serving statements and escape from his liability? The answer is no because such self serving admissions are governed by the provisions of Section 21, which says the following –

Section 21 – Proof of admissions against persons making them, and by or on their behalf – Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases –
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.
(b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2).
(c) A is accused of a crime committed by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because,
if A were dead, it would be admissible under section 32, clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skillful person to examine the coin as he doubted whether it was counterfeit or not, and that that
person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last preceding illustration.

From the above illustrations it is clear that the general rule is that a person is not allowed to prove his own admissions. Otherwise, as observed in R vs Hardy, 1794, every man, if he were in difficulty, or in view of one, might make declarations to suit his own case and then lodge them in proof of his case. This principle, however, is subject to some important exceptions, which allow a person to prove his own statements. These are as follows –

Exception 1 – When the statement should have been relevant as dying declaration or as that of a deceased person under Section 32. Section 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favor of or against the person making the statement. In circumstances stated in Section 32 such a statement can be proved by the maker himself if he is still alive. In the situation described in Illustration (b), in a case between the shipowner and the insurance company, the contents of the log book maintained by the captain would have been relevant evidence if the captain were dead under Section 32. Therefore, the captain is allowed to prove the contents of the log book even in the case involving him and the shipowners.

Exception 2 – Statements as to bodily feeling or mind – It enables a person to prove his statements about his state of mind or body if such state of mind or body is a fact in issue or is relevant fact and if the statement was made at the time when such state of mind or body existed and further if the statement is accompanied with his conduct that makes the falsehood of the statements improbable. In Illustration (d), the statements of A that show that he refused to sell them below their value, are self serving admissions. However, it is acceptable because they reflect A’s state of mind and were associated with a conduct of refusing to sell that makes their falsehood improbably.

Exception 3 – The last exception allows a person to prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own statements. These cases are covered by the following sections –

Section 6 – When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same transaction. For example, immediately after a road accident, if the victim has made a statement to the rescuer about the cause of the accident, he can prove that statement because it is part of the same transaction.

Section 8 – A statement may be proved by or on behalf of the person make it under Section 8 if it accompanies or explains acts other than statements