Q. 2. Define and explain the following:
1. Fact, 2. Facts-in-issue, 3. Document, 4. Proved, not proved and disproved, 5. May presume, 6. Shall presume, 7. Conclusive proof.
Ans. 1. Fact
As a general concept, the term ‘fact’ means an existing thing. It does not refer to a mental condition of which a person is conscious. But the Evidence Act has enlarged the scope of expression “fact” Le, it is not limited to only what is tangible and visible, or is in any way, the object of senses. The statement, feeling, opinion and state of mind are as much fact as any other fact which is tangible and visible or any other circumstances of which, through the medium of senses, we become aware.
According to Section 3 of the Indian Evidence Act. “Fact” means and includes-
(1) Anything, state of things, or relation of things, capable of being perceived by the senses,
(2) Any mental condition of which any person is conscious.
Illustrations-(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man 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 certain reputation, is a fact. The fact may be classified in two categories-
(a) Physical & Psychological fact, and (b) Positive & negative fact.
2. Facts-in-issue
The expression “facts-in-issue” means the matters which are in dispute or which form subject of investigation-
“Facts-in-issue” are those facts which are alleged by one party and denied by the other in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case.
According to Section 3 of Indian Evidence Act: “The expression “Facts- in-issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding necessarily follows.”
Explanation-Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a “fact-in-issue”.
Illustrations-A is accused of the murder of B
In this 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.
Order XIV, Rule 1, C.P.C. also lays down that. “Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other
3. Document
In a general sense, the expression “Document” means any matter written on a paper in any of the languages. The language may be English, Hindi and so on.
But under Section 3 of Indian Evidence Act, the scope of expression document is wider.
According to Section 3 of Indian Evidence Act-
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means. intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations-(a) A writing is a document.
(b) Words printed, lithographed or photographed are documents.
(c) A map or plan is a document,
(d) An inscription on a metal plate or stone is a document.
(e) A caricature is a document
Exchequers tallies, a ring or banner with an inscription, a musical composition, a savage, tattooed with words intelligible to himself, letters or marks imprinted on trees and intended to be used as evidence that the trees have been passed for removal by a Ranger, are documents.
Document-How to prove. The contents of document may be proved in two ways-
(1) by primary evidence; or
(2) by secondary evidence in exceptional cases.
4. Proved, disproved and not proved
(i) Proved. According to Section 3, “A fact is said to be proved when after considering the matters before it, the Court either-
(a) believes it to exist, or (b) considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”.
All that a person has to do is to adduce such evidence so that the mind of the tribunal is satisfied regarding the facts of a case. The true question, therefore, in trials is not whether the testimony is true or false, but whether there is a sufficient probability of its truth.
The extent to which a particular evidence aids in deciding facts is called probative force. Therefore, it is essential that the probative force should be sufficient to induce a Court: firstly, to believe in the existence of the fact and secondly, to consider its existence so probable that a prudent man may act upon the supposition that it exists.
Hence, on the question of proof, there is only one rule of evidence applicable both to civil and criminal cases. The test is whether a prudent man after considering the matters before him would deem the fact-in-issue proved or disproved? (Pershady v. State, AIR 1955 All 443)
In M. Narshingha Rao v. State of A.P. AIR 2001 SC 318, the Supreme Court held that a fact is said to be proved when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under circumstances of particular case, to act upon supposition that it exists.
Matters before it. This phrase used in the section does not say the evidence before it, rather it says the ‘matter before it’. Thus, this expression also includes materials which do not fall in the domain of evidence within the definition of evidence as given in Section 3. For example, Commissioner’s report, results of local inquiry, confession etc.
Standard of Proof. In a civil case, a fact is said to be proved on the basis of preponderance of probabilities. It need not be proved beyond reasonable doubt but in a criminal case, the guilt of the accused is established when there is proof beyond reasonable doubt.
In State of M.P v. Dharkole, 2005 SCC (Cri.) 225, the Court held-The standard of proof in criminal cases is proof beyond reasonable doubt. It is never required to be absolute. So far as probability of commission and non- commission of a crime is concerned it could not be expressed with mathematical accuracy as it incorporates a series of subjective elements and ultimately depends on common sense.
The burden of proof in criminal trials never shifts. It is settled principle of criminal Jurisprudence that the more serious the offence, the strict degree of proof, since a higher degree of assurance is expected to convict the accused. (Movasam Singh Roy v. State of W.B., (2003) 12 SCC 375).
(ii) Disproved.-A fact is said to be disproved when after considering the matter before it, the Court either :
(1) believes that it does not exist, or
(2) considers its non-existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it does not exist.
Falsus in uno falsus in omnibus. This maxim means if a thing is false in respect of one, it must be taken to be false in respect of all. Sometimes it is argued that if a part of the evidence given by a witness has been disbelieved, the whole of it should be disbelieved as a rule of law. This maxim does not occupy the status of law in India. It is merely a rule of caution.
The definition of ‘proved as given above is the embodiment of a sound rule of common sense. It describes that degree of certainty must be arrived at before a fact can be said to be proved.
“Disproved” is converse of ‘proved’. When both the parties or even one party have or has given evidence to prove a fact but the Court considers that the fact is not established, the fact is said to be disproved.
A matter or fact is said to be disproved when the Court has examined it and has rejected its existence. In case the Court has not applied its mind, the fact cannot be said to have been disproved.
(iii) Not Proved. A fact is said to be not proved when-
(1) it is neither proved,
(2) nor disproved.
As seen above, the definition of the word ‘disproved’ is a converse of the definition of the word ‘proved’. However, the expression ‘not proved’ indicates a state of mind in between the above two, that is, when one cannot say whether a fact is proved or disproved. It negatives both proof and disproof.
In every case, one wants to prove his case and the other wants to disprove it. A Court of law has to decide the controversy. versy. In judicial proceedings, a Court has to fix its judgment on materials placed before it by the parties. Generally, a Court has nothing before it with the help of which it can be said to be sure of the reality. The Court has to depend on probability of the matter. In a proceeding, one party alleges one thing and the other tries to prove it to be false, That is, one wants to prove a thing and the other wants to disprove it. When a fact has not been proved by the party on whom the burden lies, that is to say, when the said party has given no evidence or has given evidence which is not sufficient to establish the fact. The fact is said to be not proved. In case of ‘disproved’, the Courts reject the evidence whereas in case of ‘not proved’, there is non production of evidence.
5. May presume
While deciding a case, no Court can place reliance on a fact unless and until it has been proved according to the rules laid down in the Evidence Act.
But the Law of Evidence provides that a Court can take into consideration certain facts even without calling for proof i.e., the Court may presume certain things.
The words ‘presumption’ means things taken for granted. In the Law of Evidence the word ‘presum ‘presumption’ is used to designate an inference, affirmative or negative, about the existence of some fact, drawn by a tribunal by a process of probable reasoning. A Court, where it ‘may presume’ a fact, has a discretion to presume it as proved, or to call for confirmatory evidence as the circumstances require. In such a case presumption is not a hard and fast presumption incapable of rebuttal, a presumption juris set de jure (conclusive presumption of law that can not be rebutted). Here the Court is free to presume any fact or not. Section 90 of the Indian Evidence Act provides that when a document purporting to be thirty years old is produced from a proper custody, the Court may presume that the document was signed and written by the person by whom it purported and is said to have been written and signed. If a document produced before a Court is thirty years old the Court may dispense with the proof of it and read the document in evidence without calling for the proof of it. The Court may also call for proof of it and order that the document will not be read in evidence without being proved.
Section 4 says that ‘Whenever it is proved by this Act that the Court may presume, a fact, it may-
(1) either regard such fact as provided, unless and until it is disproved;
(2) may call for proof of it.”
Illustrations-The Court may presume the following-
(1) That certified copies of foreign judicial records are genuine and accurate.
(2) The telegraphic message received corresponds with the message delivered for transmission.
The word ‘may’ under legal interpretation rules means directory where there is the decision which is to be based on discretion. The word ‘shall’ implies that the presumption is to be treated to be mandatory.
6. Shall presume
Section 4 says that, “whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved”.
Whenever there is a provision of the effect ‘that the Court shall presume a fact the Court cannot exercise its discretion. But in this case the Court shall be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the Court shall not presume the fact. Section 89 of the Evidence Act provides, that “the Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law”.
The law defines the nature and the amount of evidence which is sufficient to establish a prima facie case and to throw burden of disproof on the other party and if no opposing evidence is offered, the Court shall presume. In other words, the Court will be bound to find in favour of the presumption.
Illustrations-The Court ‘shall presume’ the following:
(1) That a properly certified copy is genuine.
(2) That proper records of depositions and confessions are genuine.
(3) That Gazettes are genuine, etc.
Thus presumptions help the Court in avoiding the evidence to be led on which presumption is there. Presumptions under this head can be refutable also.
7. Conclusive proof
According to Section 4 of the Evdence Act, when one fact is declared by this Act to be ‘conclusive proof of another, the Court shall on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. According to Section 4, irrebutable presumptions of law are called ‘conclusive proof.” When one fact is declared by law to be ‘conclusive proof of another, the Court cannot allow evidence to be given in rebuttal.
Irrebuttable presumptions of law are inferences which the law accepts the things as they are presumed that it will not allow them to be overturned by any contrary proof, however strong. This is the strongest of all presumptions.
Whenever it is mentioned that a fact is a ‘conclusive proof of another fact, the Court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. A well-known instance of irrebuttable presumption of law can be found in Section 82 of IPC which provides: “Nothing is an offence which is done by a child under seven years of age”.
To take another illustration of irrebuttable presumption, Section 41 of the Evidence 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.
Illustrations-To take one more illustration under Section 112 of Indian Evidence Act, birth during marriage is conclusive proof of legitimacy. Section 112 provides:
“Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
Reason for the rule. The reason for adoption of these rules is that they generally occur when it is against the public policy of the Government or the interests of the society that a matter should be further open to dispute.
Q. 3. What is the meaning of ‘Hearsay Evidence’? What are the reasons for not admitting ‘Hearsay as Evidence’? When ‘Hearsay Evidence’ is admissible?
(OR)
What is ‘Hearsay Evidence’? Why is such evidence generally not admitted? State the exceptions, if any.
(OR)
‘Hearsay Evidence’ is no evidence, comment. State the reasons for rejection of ‘Hearsay Evidence’. Mention the exception, When it is admitted and give reasons for its admissions. if any.
Ans. ‘Hearsay Evidence’-Meaning of
The expression ‘Hearsay’ can be used in various senses According to Stephen, sometimes it means whatever a person is heard to say, sometimes it means whatever a person declares on information given by someone else.
The term ‘hearsay’ has not been defined in the Evidence Act. ‘Hearsay Evidence’ means derivative or second hand evidence.
Taylor defines hearsay evidence as “all the evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity and competence of some other person.”
According to Best, hearsay evidence is “that which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily sense but what he had learnt respecting the fact through the medium of a third person.”
According to Section 60, “Oral evidence must, in all cases, be direct”. It means only a direct evidence of a fact which can be preceived by senses can be given. Technically, it may be said that hearsay evidence cannot be allowed to be given and thus are not admissible.
Hearsay evidence has been applied in a wide sense to include-
(1) oral or written statements made by persons who are not parties and not called as witnesses; and
(2) statements contained in any book or document proof of which is not admissible on other grounds.
The general rule. The general rule is that hearsay evidence, that is, all statements oral or written, the probative force of which depends wholly or in part on the credit of an unexamined person, is inadmissible in evidence.
Illustrations (i) A witness told the Court that the officers, who were present on the spot, told him that one ‘J’ was driving the bus, was held to be not direct and, therefore, inadmissible. (Jaddo Singh v. Malti Devi AIR 1983 All 87).
(ii) A police officer testified that he was informed by a person about the movement of a truck carrying liquor, the informant was not examined, held that the evidence was not admissible. (Bhugdamal Jangaram v. State of Gujarat, AIR 1983 SC 906).
Exceptions.- Exceptions are to be found in Sections 17 to 39 wherein hearsay evidence can be given. Hearsay evidence is admissible in the following cases as a matter of expediency:
(1) Admissions and confessions (Sections 17 to 31).
(2) Certain statements, made by persons dead or who cannot be called as witnesses which include dying declarations, statements made in due course of business, statements against interest, statements giving opinion as to public right or custom, statements relating to pedigree (Section 32).
(3) Previous deposition of a witness who is dead or cannot be called as a witness (Section 33).
(4) Entries in books of account, kept in the course of business (Section 34).
(5) Entries in public registers or record (Section 35); maps and charts and plans (Section 36).
(6) Statement as to fact of public nature contained in certain Acts or notifications (Section 37).
(7) Statement as to any law of any country contained in a law book purporting to be printed or published under the authority of the Government of such country (Section 38).
Reasons for not admitting Hearsay as evidence:
The word ‘hearsay’ being rather vague and used in different senses it has not been used in the Indian Evidence Act. But Section 60 of the Act lays down the general principle underlying the rule. It says that “Oral evidence must, in all cases, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be, the evidence of a witness who says he heard it”. Hearsay evidence is not being the observation of a person’s own bodily senses but being what he was learnt respecting the fact through the medium of a third person is inadmissible in evidence as a general rule.
Grounds for non-admissibility of Hearsay evidence:
Hearsay evidence as a general rule, is not admitted in evidence for the following reasons-
(1) The irresponsibility of the original declarants-Because the evidence is not given on oath or under personal responsibility.
(2) It cannot be tested by cross examination.
(3) It supposes some better testimony and its reception encourages the substitution of weaker, for stronger proofs.
(4) Its tendency to protract legal investigation to an embarrassing and dangerous length.
(5) Its intrinsic weakness.
(6) Its incompetence to satisfy the mind as to the existence of the fact, for truth depreciates in the process of repetition.
(7) The opportunities for fraud in its admission would open.
Of all the grounds mentioned above, the most important ground for the exclusion of such evidence is the irresponsibility of the original declarants because the statements are unsworn and the matter is not before the Court. Best observes that, “the foundation of the rule lies much deeper than want of opportunity to cross examine or delivery without sanction of an oath Instead of stating the maxim that law requires of all evidence to be given on oath, we should say that law requires of all evidence to be given under personal responsibility, i.e., every witness must give his testimony under such circumstances as to expose him to all the penalties of falsehood which may be inflicted by any of the sanctions of truth.”
Basis of exceptions to the general rule that hearsay evidence is not admissible
To the general rule that hearsay evidence is not admissible, there are certain exceptions each one of which is based on some justification.
The exceptions are mainly based on two considerations:
(1) A necessity for evidence, that is, in the cases wherein no better evidence can be had; and
(2) A circumstantial guarantee for trustworthiness.
The probability of the statement being true depends upon the safeguard which are mentioned in the eight clauses of Section 32.
If the general rule is observed strictly it may be impossible or it may cause unreasonable expenses or delay to procure attendance of a witness, who, if present before the Court, could give direct evidence on the matter in question; and it may also be, that this witness has made a statement, either written or verbal, with reference to such matter under such circumstances that the truth of this statement may reasonably be presumed. In such case, Section 32 dispenses with direct oral evidence of the fact, the safeguard for truth being the circumstances in which the statement was made against the proprietary interest of the person making it.
Q. 4. “Relevancy and Admissibility are not co-extensive terms.” Comment on this statement.
(OR)
Whatever relevant is not necessarily admissible but all whatever admissible is relevant. ‘Explain.’
(OR)
What do you understand by Relevancy of facts? What is distinction between Relevancy and Admissibility of Facts? Explain.
Ans. Relevancy: Logical and Legal.-Relevancy has been said by the Act to mean the connection of events as cause and effect.
‘Legal’ relevancy is based for the most part on logical relevancy but it is not correct to say that all that is logically relevant is necessarily legally relevant but every fact which is legally relevant is logically relevant.
A fact is said to be ‘logically’ relevant to another, when it bears such a casual relation with the other as to render probable the existence or non- existence of the latter.
Section 5 of the Evidence Act excludes everything which is not declared relevant under any of the Sections 6 to 55. [R. v. Panchu, ILR 47 Cal 671 (FB)]
A fact is said to be legally relevant to another only when the one is connected with the other in any of the ways referred to in Sections 5 to 55 of the Indian Evidence Act.
Admissibility how decided. The question of admissibility is ‘a question of law’ to be decided by the Judge. The question of admissibility should be decided when raised and should not be reversed until the date of the judgment in the case. Where a Court is in doubt as to the admissibility of a particular piece of evidence, it should declare in favour of admissibility (R. v. Ram Chandra, 19 Bom. 749). The moment a witness commences giving evidence which is inadmissible, he should be stopped immediately by the Court. A party objecting to a question of admissibility must does as soon as it is stated and before the answer is given. When an irrelevant document is tendered an objection should be made at that time. If it is not taken in time, it is considered to be waived; where no objection is taken in the Court of first instance to the reception of a document in evidence, it is not within the province of the Appellate Court to raise or recognize it in appeal [Ghimanji Govind Godbole v. Dinkar Dhondev Godbole, (1886) 11 Bom 320).
‘Relevancy’ and ‘Admissibility’ not Co-extensive. According to Woodroffe and Amir Ali, relevancy and admissibility are not co-extensive and interchangeable terms. Public policy, considerations of frames, the particular necessity for reaching speedy decisions and certain other similar reasons cause constantly the necessary rejection of such evidence seemingly relevant. All admissible evidence is relevant, but all relevant evidence is not admissible. The question of relevancy strictly so-called presents, as a rule, little difficulty. Any Any educated person, whether lay or professional, can say whether a circumstance has probative force, which is the meaning of relevancy. This is an affair of logic and not of law. It is otherwise with the question of admissibility which must be determined according to the rules of law. A fact may be relevant but it may be excluded on the grounds of public policy as already noted. A communication to a legal adviser may be in highest degree relevant, but other consideration excludes its reception as a ‘privileged’ communication and is not admissible.
The rules of relevancy declare certain facts relevant, rule of admissibility lays down as to whether a certain form of evidence about relevant fact may be allowed or excluded. What is the material fact which may be produced before a Court in a case is a first question. Relevancy means what facts may be proved before a Court.
The admissibility is the means and the methods of proving the relevant facts.
Thus, ‘relevant’ means the fact which is logically probative. Admissibility is founded on law and not on logic. Section 5 of the Indian Evidence Act provides:
“Evidence may be given in any suit or proceedings of the existence or non-existence:
(i) of every fact-in-issue, and
(ii) of such other facts as are hereinafter declared to be relevant and of no others (Section 5).
Hence, relevancy is a wider term than admissibility and it is not necessary that all relevant facts may also be admissible. Therefore, the two are not co-extensive.
Distinction between Relevancy and Admissibility
Relevancy
1. Relevancy means what is probative or which makes the existence or non-existence of fact-in- issue or relevant fact highly probable or highly improbable.
2. Relevancy is dealt with under Sections 5 to 55 of Indian Evidence Act, 1872.
3. All relevant facts need not be admissible.
4. Relevancy is based on logic and probability.
5. The rule of relevancy declares what is relevant to be proved.
6. The sphere of relevancy is wider.
Admissibility
1. Admissibility means what is to be admitted by the Court or what is accepted by the Court for consideration in particular case.
2. The rules of admissibility are not described under Sections 5 to 55 of the Evidence Act, 1872.
3. All admissible facts are relevant occurring in Evidence Act.
4. Admissibility is not based on logic but on strict rules of law.
5. The rule of admissibility lays down as to whether a certain form of evidence may be allowed or excluded.
6. The sphere of admissibility is narrower and restricted by provisions of Evidence Act, 1872.
Q. 5. Comment on “Fact-in-Issue” and Relevant fact, and state the differences between both of them.
Ans. “Fact-in-issue”. – Section 3 of the Act defines “fact-in-issue” as follows-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 of any right, liability or disability, asserted or denied in any suit or proceeding necessarily follows.
Explanation. Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a “fact-in- issue”.
The Court has to draw an inference for delivering justice. Thus, the facts which are not disputed require no consideration or evidence. But the facts which are not accepted by the parties are to be settled through evidence. These disputed facts form the “fact-in-issue”.
The “fact-in-issue” may by themselves or in connection with other facts constitute such state of things that the existence of the disputed right or liability would be a legal inference from them. The expression ‘fact in issue’ means the matter which are in dispute or which form the subject of investigation.
“Facts-in-issue” are those facts which are alleged by one party and denied by the other in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case.
Two things are relevant for determining whether a fact is in issue or not.
(i) The fact should be in dispute between the parties.
(ii) The fact should touch the question of right or liability.
What facts are in issue in a particular case is a que question to be determined by the substantive law or in some cases by that branch of the procedure which regulates the Law of Pleadings, Civil or Criminal.
The existence of facts-in-issue has to be proved before the Court to its satisfaction before a Court pronounces its judgment on the basis of those facts. In civil cases, Courts frame the issues on “fact-in-issue”, whereas in criminal cases, it frames the charge on disputed issues.
Illustration-A is accused of the murder of B. At this trial, the following facts may be in issue, viz (i) that A caused B’s death; (ii) that A intended to cause B’s death; (iii) that A had received grave and sudden provocation from B; (iv) that A at the time of doing the act, which caused B’s death, was by reason of unsoundness of mind, incapable of knowing its nature.
Criminal cases. As regards criminal cases, the charge constitutes and includes the “fact-in-issue”.
Civil cases. As regards civil cases, “facts-in-issue” are determined by the process of framing issues. (Order XIV, Rules 1-7, Civil Procedure Code)
The Act defines the term ‘Fact’ and ‘Relevant’ separately. Section 3 defines ‘Fact’ as follows:
Fact means and includes (a) Physical & Psychological facts, (b) Positive & Negative facts.
Physical fact-Physical fact means anything, state of things, or relation of things, capable of being perceived by the senses.
Psychological fact-Psychological fact means any mental condition of which any person is conscious of.
Positive fact Positive fact is that by which the existence of facts is confirmed positively.
Negative fact-Negative fact is a fact through which non-existence of a fact is asserted. In other words, existence of facts are denied.
Certain examples of ‘facts’ are given in this definition-
(a) that a man heard or saw something, is a fact,
(b) that a man said certain words, is a fact,
(c) that a man has a certain reputation, is a fact.
Relevant fact. Section 3 defines the word ‘relevant’ fact as follows: “One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.” (Chapter II, Section 5-55). The word ‘relevant’ means the facts which are 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 the existence or non-existence of the fact in issue.
‘In short, relevant facts are facts so connected with each other as to prove or disprove the facts in issue. Relevant facts are not themselves facts in issue but are foundations of inferences regarding them.”
The word relevant means ‘connected’. According to Stephen ‘relevancy’ means connection of events as cause and effect. What is really meant by relevant fact is a fact that has a certain degree of probative force. The Evidence Act instead of giving an actual definition of ‘relevant’ only lays down that a fact becomes relevant only when it is connected with other fact in any of the ways referred to in this Act relating to the relevancy of facts. A fact in order to be relevant fact must be connected with the “facts-in-issue” or with any other relevant fact in any of the ways referred to in Section 5 to 55. A fact not so connected is not relevant fact. The scheme of the Act seems to be to make all relevant facts admissible.
The General rule. Of all rules of evidence, the most universal and the most obvious is that the evidence adduced should be alike, direct and confined Ito the matters which are in dispute, or which form the subject of investigation. The theoretical propriety of this rule can never be a matter of doubt whatever difficulties may arise in its application. Evidence may be rejected as irrelevant for the following one or two reasons:
(1) That the connection between the principal and evidentiary facts is too remote and conjectural,
(2) That it is excluded by the state of the pleadings, or which is analogous to the pleadings; or is rendered superfluous by the admissions of the party against whom it is offered.
One has to keep in mind the distinction between relevancy and admissibility. All relevant facts may not be admissible and also admissible facts need not always be relevant.
Distinction between Facts-in-Issue and Relevant Facts
Fact-in-Issue
1. Facts-in-issue are those facts on which the rights and liabilities of the party to the proceeding rest.
2. Facts-in-issue or those facts upon which the judgment of Court is to be based.
3. A fact-in-issue is necessary ingredient of a right or liability.
4. Fact-in-issue is called principal fact or factum probandum.
5. Fact-in-issue is the fact denied by one party and asserted by other party.
6. Facts-in-issue are facts which are matters of contestation or which are at issue.
Relevant Facts
1. Relevant Facts are those which make the existence or non-existence of facts in issue or other relevant facts highly probable or highly improbable.
2. Relevant facts have probative value.
3. A relevant fact is not necessary ingredient of right or liability
4. A relevant fact is called the evidentiary fact or factum probandi.
5. A relevant fact is the fact which is advanced by the party to prove the existence or non-existence of a fact in issue.
6. Relevant facts are not themselves in issue but they are foundation of inference regarding facts-in issue.
Q. 6. Discuss fully the doctrine of ‘Res-gestae’ and give examples. Do you agree with the view that Res-gestae is not only entirely useless but even positively harmful?
(OR)
“Facts forming parts of the same transaction are relevant.” Explain.
(OR)
“Facts” which are 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 different time and place”. Explain the statement with the help of examples.
(OR)
Discuss the limits within which the rule of Res gestae works. How far the ambiguities involved in this rule have been removed under the Indian Law? Explain.
Ans. Res Gestae-Defined
Every facts in the Evidence Act is a part of other facts. There is no fact which is unconnected with other facts. Section 6 lays down, “Facts which are so connected with a fact-in-issue that they form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.” The principle underlying Section 6 is sometimes termed as res gestae. This phrase as explained means simply a transaction, i.e., “things said or done in course of the transaction.” Res gestae of any case properly consists of portion of that actual world’s happenings out of which the right or liability, complained or asserted in the proceeding, necessarily arises. The term has been used in two senses. In the restricted sense, it means world’s happenings out of which the right or liability in question arises. In the wider sense, it covers all the probative facts by which the res gestae are reproduced to the tribunal where the direct evidence of witness or perception by the Court are unattainable.
Woodroffe defines the term ‘res gestae’ as those circumstances which are the automatic and undersigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. A transaction may last for weeks. The incident may consist of sayings, and doings; they may comprise things left undone as well as the things done. They may be necessary incidents of the litigated act in the sense that they are not produced by the calculated policy of the actors. They are the acts talking for themselves, not what people say when talking about the acts. In other words, they must stand on an immediate causal relation to the actual relation not broken by the interposition of voluntary individual witness seekig to manufacture evidence for itself. The test of admissibility of evidence as part of res gestae is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal facts or event which it characterizes to be regarded as a part of the transaction itself and also whether it negatives any premeditation for the purpose to manufacture testimony.
Circumstantial facts are declared relevant and admitted in evidence, though they are not in issue if 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 time and places. Such facts are admitted as forming part of res gestae, i.e., being part of the original proof of what has taken place. Thus, if the question is whether certain goods ordered from B were delivered to R, the fact that the goods were delivered to several intermediate persons is a ‘relevant fact’. If the question is whether A waged war against the King by taking part in armed insurrection in which property was destroyed and troops were attacked, the happening of these mediate events may be proved though A may not have been personally present at all of them.
Transaction defined. According to Stephen: “A transaction is a group of facts connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue.” A transaction may consist of physical acts as also words accompanying such physical acts. Thus, where A is accused of the murder of B by beating him-whatever was said or done by A or B or by the by- standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact and forms part of the same transaction.
A transaction may be truly known when all its relevant parts are known not in isolation with each other. Thus in O’ Leary v. Regem, (1946) 73 CLR, evidence was admitted of assaults, prior to killing committed by the accused during what was said to be a continuous orgy.
Explanation of res gestae. The best explanation of the principle which admits evidence of res gestae is this that the affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other.
Each owes its birth to some proceeding circumstance, each in turn becomes the prolific present of others; each during its existence, has its inseparable attributes, and its kindred facts, material affecting its character, and essential to be known, in order to a right understanding of its nature.
Illustrations-(a) The deceased and many other were celebrating Holi. The accused fired at the deceased. Some of the witnesses arrived at the scene of occurrence immediately after occurrence. The by-standers informed the witnesses that the accused fired at the deceased. The evidence of the witnesses to the effect that the accused fired at the deceased, is relevant. (Jetha Ram v. State of Rajasthan, AIR 1979 SC 22).
(b) The accused dragged the deceased from his house to chowk area and began to beat him. Z, who was present when the beating, began ran to the village police Patel, namely, Lakshman, while the beating was in progress, and told him that the deceased was being beaten by the accused. The statement of Patel before the Court that Z told him that the accused were beating the deceased was held relevant. (Badruddin v. State of Maharashtra, AIR 1981 SC 1223).
Thus, as is apparent from the above cases that the statement of the by- standers can be regarded as parts of the transaction. In application of this principle, the Courts have been very strict and cautious because of the reason that statement can easily be concocted.
The evidence of the statement in R. v. Christic was excluded by the Court. This was a case of an indecent assault upon a young boy. Shortly after the incident, the boy made certain statement to his mother by which he described the offence and the man who assaulted him. The Court excluded the statement of the boy from the evidence because the statement was so separated by time and circumstances from the actual commission of the crime that it was not admissible as part of the res gestae. However, it has been held by the Supreme Court in R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 477, that a contemporaneous tape record of a relevant conversation is a relevant fact. It is res gestae.
In the case of Basanti v. State of H.P., (1987) 3 SCC 227, the Supreme Court of India held that where the wife of the deceased was suspected of murdering him while asleep. The evidence that she misled the villagers including her brother-in-law that the deceased had gone away from the village and not returned, was such suspected of murder statement as to be treated to be a part of the transaction hence a res gestae. Her subsequent conduct was relevant.
According to Section 6-“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.”
Analysis- The provision of Section 6 of the Indian Evidence Act is based on the English Principle of res gestae. This section makes the following facts relevant-
1. The facts, not in issue, are relevant, if by their connection with the facts in issue they form part of the same transaction.
2. Such fact may have occurred at the same time and place as the fact-in- issue have occurred at different times and places.
1. Part of the same transaction. A transaction is a group of facts so connected together as to be referred to by single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue. (Stephen). Section 6 lays down that facts, which form part of the same transaction are relevant.
2. Proximity of time and place. 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. The test of admissibility of evidence as part of res gestae is whether the act, declaration or transaction is so intimately interwoven or connected with the principal facts as to be regarded as part of the transaction itself and also whether it negatives any pre-meditation or purpose to manufacture testimony.
Reason of the rule. If facts form part of the transaction which is the subject of inquiry, evidence of them ought not to be excluded. Moreover, such facts, forming part of res gestae in most cases can not be excluded without rendering the evidence unintelligible, for every part of a transaction is connected with every other part as cause or effect. The reason behind this rule is that the affairs of men consist of complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and each in turn becomes the prolific parent of others; each during its existence, has its inseparable attributes, and is kindred to facts materially affecting its character, and essential to be known, in order to a right understanding of its nature. According to some jurists, the rule ‘res gestae’ evidence is embodied in Sections 6 to 9 and 14 of the Indian Evidence Act.
Illustrations-(i) To prove that the defendants were common cheats the facts that they falsely represented themselves to be persons of property on several occasions and to different persons, are admissible (R. v. Roberts).
(ii) A is robbed and murdered. In this case, evidence of robbery e.g., possession of stolen property, will be relevant for proof of murder as well. Queen v. Sami, 13 Mad 426).
Sections 7, 8, 9 and 14 of Indian Evidence Act.-
Under Section 7 the facts are relevant which-
(a) are occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or
(b) which constitute the state of things under which they happened, or
(c) which afford an opportunity for their occurrence or transaction;
Under Section 8,-
(i) any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact is relevant.
(ii) 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-matter of any proceeding, if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or susequent thereto.
Under Section 9, the following facts are relevant-
(a) Facts which are necessary to explain a fact-in-issue or relevant fact.
(b) Facts which are necessary to introduce a facts-in-issue or relevant fact.
(c) Facts which support an inference suggested by a fact-in-issue or relevant fact.
(d) Facts which rebut an inference suggested by a fact-in-issue or relevant fact.
(e) Facts which establish the identity of anything or person whose identity is relevant.
(f) Facts which fix the time or place at which any fact-in-issue or relevant fact happened.
(g) Facts which show the relation of parties by whom any such facts was transacted.
Under Section 14, facts which show the existence of state of mind, or of body or bodily feeling are relevant.
Q. 7. Are facts which are the occasions, cause and effect of facts in issue relevant? Illustrate your answer.
Ans. Facts which are the occasion, cause or effect of facts in issue- According to Section 7 of the Evidence Act, those facts which are either occasion, or cause or effect of fact-in-issue are relevant. In fact, Section 7 is based on induction, where the relevancy of facts is to be determined by human experience. Those facts which are connected to the fact-in-issue are relevant in the following situations:
(a) The facts being occasion or cause of some relevant fact or fact-in- issue;
(b) Facts which show the effects;
(c) Facts which provide opportunity for their occurrence;
(d) Facts constituting the state of things under which they happened.
These modes of action mentioned above are in truth the different aspects of causation.
Causation- Such relations make it possible when the existence of the fact in the chain of causation is asserted to test the truth of the assertion by an inquiry as to existence of those facts, with which, had it existed, it would have been so connected as to make their own existence, necessary, or atleast highly probable.” (Batuk Lal: The Law of Evidence.)
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 person, 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.
Tape recorded conversation has been declared to be relevant under Section 7 of the Act provided:
(a) the conversation is relevant to the matter in issue.
(b) The voice is identifiable.
(c) The chances of erasing the conversation are eliminated (R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157).
Q. 8 (a). “Any fact is relevant which shows or constitutes a motive or preparation of any fact-in-issues or relevant fact.” Comment on this statement.
Ans. Motive, Preparation or conduct-Section 8 provides for the relevancy of three principal facts which are of importance in connection with Civil and Criminal cases.
They are-
(1) Motive;
(2) Preparation;
(3) Conduct.
It lays down that-
(1) a fact which shows or constitutes a motive for any facts-in-issue or relevant fact is relevant,
(2) a fact which constitutes or shows preparation for any fact-in-issue or relevant fact is relevant,
(3) previous or subsequent conduct of any party or any agent to any party to any suit or proceeding, in reference to any facts-in-issue therein or relevant thereto and the previous or subsequent conduct of any person an offence against whom is the subject of any proceeding is relevant provided such conduct influences or is influenced by any facts-in-issue or relevant fact.
The absence or presence of motive and evidence of preparation, previous attempt, previous or subsequent conduct of the parties are relevant as they help in proving or disproving a fact in controversy.
1. Motive. Section 8 says that facts which shows a motive for any fact-in-issue or relevant fact are relevant.
Motive is that which moves a man to do a particular act. It is that which is in the mind of a man and which moves him to act. There can be no action without a motive which must exist for every voluntary act. Generally speaking, the voluntary acts of some persons have an impelling emotion or motive. Motive in the correct sense is the emotion supposed to have led to the act. In Com v. Webster, 5 Cutch 295, it was laid down “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.
Motive is generally proved by two sorts of circumstantial evidence, namely, (1) conduct of the person, and (2) by events about that person which could incite that emotion.
If there is motive in doing an act, the adequacy of that motive is not in all cases necessary. Heinous offences have been committed from very slight motive. Evidence of motive is material in criminal cases.
In Babulodhi v. State of U.P., AIR 1987 SC 1268 and State of A.P. v. Chandraroiah, AIR 1986 SC 1899, the Supreme Court has held that where there is direct evidence of acceptable nature, question of motive becomes irrelevant.
In Munish Mubar v. State of Haryana, AIR 2013 SC 912, the Supreme Court has held that in a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the Court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place thereof.
Existence of a motive for committing a crime is not an absolute requirement of law but it is always a relevant fact. [Algupandi v. State of T.N., AIR 2012 SC 2405]
Motive-judicial proof of. In judicial proof, three aspects of the motive have greater importance, the first two of which receive little emphasis from the psychologists:
(1) External stimulus;
(2) Expression;
(3) Opposition of impulses.
(1) External stimulus. Whether an emotion was excited at all is the first important question. For this purpose, the facts constituting the supposed stimulus are offered, e.g., lack of money, as evidencing desire to obtain it by means of theft or loot, etc.
(2) Expression. On the same question, the existence of an emotion may be evidenced by conduct or words alleged to express it. Whether they do express it may become an important issue.
(3) Opposition of impulses. Assuming that the emotion is established and that from its existence is to be inferred a consequent act, still this evidence may be explained away by the cessation or counter action of the emotion, e.g., by y fear or by lapse of time. This is the other most frequent aspect in judicial proceedings.
There cannot be one rule for every case regarding adequacy of motive; it must depend on the moral character of the person accused in each case. In the case of debauch and an immoral man, the slightest motive may induce him to commit a crime. The cases are not rare where the murders have been committed where motives are quite inadequate. An honest man, whatever his circumstances may be, is not induced to commit a crime. Thus, it is seen that adequacy of motive to commit crime depends upon the character of a man.
Evidence of motive or preparations becomes important when a case depends upon circumstantial evidence only.
Illustrations-(i) A was tried for the murder of a young woman by cutting her throat with a knife. The evidence that a week before the murder,the woman had turned down A’s proposal to her for marriage is admissible to show A’s motive for the murder.
(ii) A sues B upon a bond for the payment of money. B denied 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 (Motive) [Subhash v. State of U.P., AIR 1987 SC 1222).
(iii) Similarly in R. v. Richardson (Wills pp. 224-229), the fact that the accused was a father of the child of which the deceased was pregnant at the time was held to be relevant, as he might have killed the girl to save his character.
Absence of motive or inadequacy of motive is of comparative unimportance where there exists absolutely absolutely cogent evidence that a crime has been committed by a particular person (Narayan v. State of Maharashtra, AIR 1971 SC 1656).
Evidence of motive is not sufficient by itself to lead to conviction nor absence of it to discredit other evidence. (State of Haryana v. Harpal Singh, AIR 1978 SC 1530].
The proof of motive alone cannot be sufficient to convict the accused as it is not substantive evidence but only corroborative in nature. [State of Punjab v. Bittu, AIR 2016 SC 146]
2. Preparation defined.- Preparation consists in devising or arranging the means or measures necessary for the commission of a crime. Preparation on the part of accused to accomplish the crime charged, or to prevent its discovery, or to aid his escape, or to avert suspicion from himself are relevant on the question of his guilt. Where the question is whether A has committed an offence, the fact of his having procured the instrument, which are used in its commission, is relevant.
But no inference of guilt will arise where the preparations may have been innocent, 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 frustrated or voluntarily abandoned.
For example, A is indicted for murdering B by poisoning him. It appears that shortly before, murder, 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 overthrows the inference of guilt. To take another illustration, A procures poison with which he intends to kill B. Before he uses it, he repents of his crime and abandons the idea of killing B. This overthrows the inference arising from the purchase of poison.
Preparation relevant.- Evidence tending to show that the accused made preparation to commit a crime, is always admissible. Preparation only evidences a design or plan to do a certain thing as planned. It is not always carried out but is more or less likely to be carried out. The existence of the plan is always used in daily life as the basis of inference to the act planned.
Pre-meditated crime must necessarily be preceded not only by impelling motives, but by appropriate preparations. Possession of the instruments or means of crime, under circumstances of suspicions as of poison, carrying instruments, house-breaking instruments, dark lanterns, or other destructive, criminal or suspicious weapons, materials or instruments and any other acts of apparent preparations are important facts in the judicial investigation of imputed crime and, therefore, evidence tending to show that the accused made preparations to commit the crime is always admissible.
Illustration-A was tried for the murder of B by administering poison. The fact that, before the death of B, A procured a poison similar to that which was administered to B, is relevant being the preparation of the offence committed.
Absence of proof of preparation. As preparations must necessarily precede the commission of pre-meditated crime, some traces of them may generally be expected to be discovered and if the evidence of guilt leaves no room for doubt the absence of any evidence of such preliminary measures is a circumstances strongly presumptive of innocence.
3. Conduct relevant. The conduct is the expression in outward behaviour of the quality or condition operating to produce those effects. These results are the traces by which we may infer the moving cause. The second paragraph of Section 8 makes relevant the conduct of any person who is a party to a suit or proceeding or his agent in reference to such suit or proceeding or in reference to any fact-in-issue therein or relevant thereto. The conduct of any person an offence against whom is the subject of any proceeding is also relevant. The conduct of a party interested in any proceeding at the time when the facts out of which the proceeding arise, occurred is relevant, if two conditions are fulfilled-
(a) the conduct must be in reference to the fact-in-issue or the facts relevant to them or the conduct of any person an offence against whom is the subject of any proceeding;
(b) the conduct is such as influences or influenced by the facts-in-issue or the relevant facts.
Hence the value of the evidence of conduct will depend on the circumstances of the case. In Sat Paul v. Delhi Administration, AIR 1976 SC 303, the evidence cited was that the accused on being charged by a senior officer with taking bribe kept mum. The Court held that its value in the circumstances was nil.
Antecedent conduct. Under this head some motive to commit the offence, means and opportunities of committing it, preparation for the commission of the crime, and previous attempts to commit it, declarations of intention and threats to commit it are witnesses of antecedent conduct. For example, a son is accused of murdering his father. He has been heard to say that “he hated his father since six or seven years”. It is relevant. A woman and her paramour were accused of murdering her husband. She had been heard to say of her husband that “she lived a most unhappy life with him and she wished him dead or if that could not be, she wished herself dead.” It is relevant.
Contemporaneous conduct- Conduct need not be contemporaneous. It may be antecedent or subsequent to fact-in-issue or relevant fact.. Contemporaneous conduct would include the pleadings of parties, their behaviour as such, and their demeanours as witnesses.
Subsequent conduct. Subsequent conduct of party or his agent is relevant. Sudden change of life or circumstances silences, suppression or fabrication of evidence, giving of false name and address, false or evasive statements made by accused, suppression or elopement of evidence and evasion of justice by flight are subsequent conducts relevant to the case. Suppose A is charged with the murder of C. The facts given as under are relevant as subsequent conduct-
(a) Footprints corresponding with the impression made by A’s foot were traceable near the lodging of B.
(b) A’s shoes were left near the body of B.
(c) After the crime, A absconded from his house.
(d) A gave inconsistent accounts of his whereabouts on the day of murder.
In an adoption case deed of adoption found not to be clinching but as evidence of subsequent conduct of the parties is relevant. [Bishwanatha v. Dhapu Devi, AIR 1960 Cal. 494]
The conduct of accused- The conduct of an accused is relevant under Section 8. The immediate reaction of the accused having some bearing of the issue is relevant. [Maha Singh v. State of Delhi, AIR 1976 SC 449]
The conduct of the complainant against whom an offence is alleged to have been committed is also relevant under this section.
Such conduct may be both previous or subsequent. Suppose A, B, C and D are tried for a conspiracy of murdering M. Before his murder, M made a written complaint to a Sub-Divisional Magistrate stating that he apprehended danger of his life from A, B, C and D. At the trial of the abovementioned accused, the complaint of M is admissible under Section 8 as evidence of conduct of the deceased, an offence against whom was the subject of trial.
The conduct of any party to a proceeding in order to be relevant must be-(1) in reference to any fact-in-issue or relevant thereto, (2) to any suit or proceeding.
In Emperor v. Mancha Khan, (1932) 34 Bom. L.R. 108, some months before his murder, the deceased wrote a letter to the Commissioner of Police, Bombay, asking for protection and stating that he apprehended injury from accused No. 2 and was in fear of his life. At the trial of the accused No. 2 for abetting the murder of the deceased by accused No. 1, the letter was offered in evidence for the prosecution. Held-The letter was admissible in evidence under Section 8 of the Evidence Act.
Relevancy of statements. The Explanation to Section 8 declares in the first instance, that word ‘conduct’ does not include statements. The reason is that it is too easy to make false statement, but it is not so easy to put up false conduct. Thus the statements are not admissible, but the explanation to Section 8 further recognize two exceptions in which even statements may be admitted under the section.
(a) Statement accompanying or explaining conduct e.g.- A person is seen running down a street in a wounded condition calling out the name of his assailant, and the circumstances in which the injuries were inflicted. Here what is being said and what is being done by the injured person may be taken together and proved as a whole.
Complaints. The act of an injured person in making a complaint or F.I.R. about the offence done to him is a conduct and the words in which the complaint is made is a statement accompanying that conduct and hence both are relevant.
(b) Statements affecting conduct. When the conduct of any person is relevant, any statement made to him or in his presence or hearing which affects such conduct is relevant. In Queen Empress v. Abdullah, for example, the conduct of press the deceased girl in nodding her hand in reply to questions put to her as to who had committed crime was held to be relevant in the light of the question leading upto the signs of the hand.
Q. 8 (b). Discuss the relevancy of introductory and explanatory facts.
Ans. Facts necessary to explain or introduce relevant facts.- Section 9 provides that tha “facts necessary to explain or introduce a fact in Section 9 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 anything 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 fact was transacted, are relevant in so far as they are necessary for that purpose.”
The aforesaid can be grouped as follows-
(1) Facts necessary to explain a fact in issue or relevant fact.
(2) Facts necessary to introduce a fact in issue or relevant fact.
(3) Facts supporting an inference suggested by a fact-in-issue or relevant fact.
(4) Facts rebutting an inference suggested by a fact in issue or relevant fact.
(5) Facts establishing the identity of anything or person whose identity is relevant.
(6) Facts fixing the time or place at which the facts-in-issue or relevant facts happened.
(7) Facts showing the relation of parties by whom any such fact was transacted.
Illustrations given to section explain the points-
Illustrations-(a) The question is, whether a given document is the will of A.
The state of A’s property and of his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant, under Section 8 as conduct subsequent to and affected by facts in issue.
The facts that at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A. C on leaving A’s service, says to A-“I am leaving you because B has made me a better offer.” This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue”.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it-“A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.”
(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of that transaction.
At the time of killing of his wife by the accused, their son who was besides him and only five years old cried that his mother was being killed. Thereupon, the witnesses hearing the cry reached the place of occurrence and saw the accused holding an axe in his hand. In this case, if the child had not said that his father was killing his mother, the witnesses would not have gone there. Therefore, the cry and the words of the child explained as to why witnesses went there. (Rohan Lalu v. Emperor, AIR 1938 Sind 97).
For the letting value of a building, the evidence of assessment of the neighbouring building as per return of the accepted assessment is admissible in evidence. (Corporation of Calcutta v. Province of Bengal, AIR 1940 Cal. 47).
Test Identification parade. The test identification parade is an investigative step. The identification in the Court is an evidence. The test identification parade assumes importance if held within a reasonable time after the commission of the offence. (Girja Shankar v. State of U.P., AIR 1993 SC 2618).
Neither the investigating agency is obliged to hold nor the accused has a right to claim test identification parade. The question of identification arises only when the accused is not known to the witness. (Simen v. State of Karnataka, (2004) 2 SCC 694).
If the accused is not known previously to the witness, his identification in the Court is substantial piece of evidence. For this purpose, test identification parade is also held. It must be held at the earliest opportunity with necessary safeguards. If the accused has been seen quite a number of times before by the witness, test identification parade is not necessary. (Suresh Chand Bahri v. State of Bihar, AIR 1994 SC 2420).
There was no specific provision in the Indian Evidence Act or the Code of Criminal Procedure regarding the identification of the accused till 2005. By the amendment of Cr.P.C. in 2005, a new Section 54-A was inserted for identification of person arrested. Section 54-A is as follows:
“Identification of person arrested. Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer-in- charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.”
This provision enables the police to seek permission of the Court for identification of the accused and the Court may determine the manner of identification. The manner of identification includes ‘identification parade’.
Constitutionality of test identification parade- A Magistrate’s order requiring a person to attend test identification parade does not violate his fundamental right under Article 20(3) of the Constitution. The identification of an accused at test identification parade by some one is not the accused’s own act. His mere attendance or the exhibition of body cannot be regarded as furnishing any positive volitional evidentiary act. [Peare Lal Shaw v. State of W.B., AIR 1961 Cal 531]
Where the Magistrate, in a dacoity with murder case, conducted test identification parade and prosecution witness recognized the accused but he denied to recognise him before the trial Court rather he trembled when the accused stared at him, the Magistrate testified the identification parade as successful one. The evidence of witness in identification parade was held to be a substantive evidence more so when the trial Court remarked demeanour of identifying witness. (Ram Nath Malito v. State of Bihar, AIR 1996 SC 2511)
The admissibility of the identification of the accused in the Court is not affected for want of evidence of earlier identification in the test identification parade. [George v. State of Kerala, AIR 1996 SC 1376]
Where in a rape case prosecutrix deposed that the accused was shown to her by her father and police and she was also tutored by them, the identification by her was held to be not acceptable. [Prahlad Singh v. State of M.P., AIR 1997 SC 3442]
Identification parade belongs to the stage of investigation and if adequate precautions are ensured, the evidence with regard to Test Identification Parade may be used by the Court for the purpose of corroboration. The purpose of Test Identification Parade is to test and strengthen trustworthiness of substantive evidence. It is for this purpose that Test Identification Parade is to test and strengthen trustworthiness of the substantive evidence of a witness in Court. [Ram Babu v. State of U.P., AIR 2010 SC 2143]
Evidence of Sniffer dogs. The evidence of dog tracking is admissible but it is not of much weight [Abdul Razak v. State of Maharashtra, (1969) 92 Bom LR 646 (SC)), but the possibility of misunderstanding between dog and its master is close to heels. [G. Lakshmi Man Raju uv. State of A.P., AIR 2001 SC 2672]
Pointing by the dog may lead to a misguided suspicion. [Surinder Paul Jain v. Delhi Adm., AIR 1993 SC 1723]
Q. 8 (c). Under what circumstances things said or done by conspirator in reference to common design are relevant?
Ans. Things said or done by conspirator in reference to common design- Under Section 10 of Indian Evidence Act, things said or done by conspirator in reference to common design are relevant. It provides-
“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”
Illustration-Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
Conspiracy is defined in Section 120-A of the Indian Penal Code as follows-
“When two or more persons agree to do or cause to be done an illegal act or an act which is not illegal but by illegal means, such agreement is designated as criminal conspiracy; provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides an agreement is done by one or more parties to such agreement in pursuance thereof.”
For the relevancy of the evidence of conspiracy, Section 10 of the Evidence Act requires-
(i) reasonable ground of belief of conspiracy between two or more persons to commit an offence or actionable wrong,
(ii) anything should be said, done or written by anyone of such persons in reference to their common intention,
(iii) after the time when such intention was first entertained by anyone of them.
The word “intention” means that the act intended is in the future. Thus, the words said or written or the act done must be in reference to what was intended irt future. The statements made by the persons regarding that past act cannot be said to be in reference to their past acts.
In Mirza Akbar v. Emperor, AIR 1940 PC 176, the prosecution case was that Mirza Akbar and Mehar Laqa (wife of Ali Askar) were in love with each other. To get rid of Ali Askar, they got him murdered by a hired assassin, Umar Sher. Mehar Laqa made certain statements before the Court implicating Mirza Akbar. The statements made by her were held to be not relevant to prove conspiracy as they were in reference to past acts. Things said, done or written were held to be relevant while the conspiracy was on foot and in carrying out the conspiracy. When the conspiracy is over, evidence of co- conspirator is not relevant.
Once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention is admissible against the others. [Mukesh v.
State for NCT of Delhi, AIR 2017 SC 2161]
Q. 9 (a). What are the circumstances in which facts not otherwise relevant become relevant?
(OR)
What do you understand by the relevancy of facts? When facts not otherwise relevant become relevant? Illustrate your answer with decided cases.
Ans. When facts not otherwise relevant become relevant- According to Section 11 of the Evidence Act, the object of a trial is to prove or disprove, by evidence, a particular claim or charge, therefore, any fact which either disproves or tends to disprove that claim or charge is relevant.
Section 11 of the Indian Evidence Act lays down that facts not otherwise relevant are relevant :
(i) if they are inconsistent with any fact-in-issue or relevant fact,
(ii) 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.
Under this section any fact which either proves or tends to prove or disprove any claim or charge in a case is made relevant. The effect of this and the previous section is to make every relevant fact admissible as evidence. In Reg v. Parbhudas, (1874) 11 B.H.C. 90, 91 West J., said, “Section 11 of the Evidence Act is, no doubt, expressed in terms so extensive that any fact which can, by a chain of ratiocination, be brought into connection with another, so as to have a bearing upon a point in issue, may possibly be held to be relevant within its meaning. But the connections of human affairs are so infinitely various and so far-reaching, that to take the section in its widest admissible sense, would be to complicate every trial with a mass of collateral inquiries limited only by the patience and the means of the parties.” This section renders inadmissible the evidence of one crime (not reduced to legal certainty by a conviction) to prove the existence of another unconnected crimes, even though it be cognate.
The words ‘highly probable’ point out that the connection between the fact-in-issue and the collateral facts sought to be proved under Section 11. must be so immediate as to render the co-existence of the two highly probable.
Illustration-A was charged with having obtained money from B by falsely representing that he was servant of Akbari Begum, a wealthy lady of Rampur, who was anxious to lend money on easy terms. B tried to lead evidence that at about the same time, A made such a representation to others It was held that this was admissible only because of the fact that A at the same time made the same representation to others makes the fact “that A made such a representation to be highly probable. [Emperor v. Yakub, 15 ALJ 241]
There are generally five classes of cases that arise for consideration under these clauses:
(1) Alibi,
(2) Non-access of husband to show illegitimacy of issue,
(3) Survival of the alleged deceased.
(4) Commission of a crime by a third person, and
(5) Self infliction of harm.
(1) Alibi- The plea of absence of a person, charged with an offence from the place of occurrence at the time of the commission of the offence is called the plea of alibi.
The Supreme Court in Dudhnath Pandey v. State of U.P., (1981) 2 SCC 166, defining alibi stated-The plea of alibi postulates “the physical impossibility of the presence of the accused at the scene of the offence by reason of his presence at another place Applying this to the facts of the case, the Court held that the plea of alibi was not established as the gap between the factory, where he was present at 8.30 A.M. and the place of murder which took place at 9 A. M. was very short and easily approachable.
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 crime that he could not have committed the offence. (State of Maharashtra v. Nar Singh, AIR 1984 SC 63).
Where the accused set up a plea of alibi that he was on duty at another town on the date of occurrence, the burden of proof lies on him under Section 103, Evidence Act to establish the plea and it is not for the prosecution to prove that the accused was absent from duty on the date of occurrence of course. If there were anything on the record to support the allegation of the prosecution having tampered with the defence witnesses, that taken along with the other fact and the circumstances, of the case might have raised a doubt that after all the plea of alibi may be well founded and in that case the defence would be entitled to the benefit of that doubt but a mere allegation in an application without evidence in support of that allegation is of no consequence whatsoever. (Satyavir v. State, AIR 1958 Alld. 746)
Accused claimed that on night of incident he had gone to Indore and was not present in the village. Though the accused claimed that his friend met with accident in Indore, it was found that such accident occurred before two months there was no material on record of hospital or doctor who examined friend of the accused. Even injured friend of accused was not examined. In these circumstances, the Apex Court held that the learned Trial Judge has rightly disbelieved the plea of alibi raised by the accused and conviction of the accused was proper. [Phool Singh v. State of M.P., AIR 2022 SC 222]
When the accused fails to establish plea of alibi, it does not help the prosecution and it cannot be held that the accused was present at the scene of crime. The presence of accused must be proved by the prosecution by positive evidence, (Shankar Lal v. State of Maharashtra, AIR 1981 SC 765). The above stated view was further reiterated by the Supreme Court in Dasari Siva Prasad Reddy v. Public Prosecutor, High Court A.P., AIR 2004 SC 4383 where the Court made it clear that mere failure on the part of the accused to establish alibi shall not lead to an inference that the accused was present at the scene of occurrence.
In Darohan Singh v. State of Punjab, AIR 2016 SC 253, the allegation was of P that the parties of the inant and the accused had gone complainant to attend the Court proceedings under Sections 107 and 151 of Cr. P.C. At about 11 a.m. both the parties started quarrelling and in a heated exchange of words, the appellant took out his Siri Sahib (Small Kripan, a sharp edged weapon) and gave blow to the deceased. He took the plea of alibi stating that he was attending his duty as laboratory assistant in a senior secondary school at the time of incident. It was proved on the record that in the proceedings under Sections 107/151 of Cr.P.C. before the Executive Magistrate, he was to be present in the said case on that day. The injured eye-witness narrated in detail his presenc presence and role. He had moved an application for casual leave in the school one day before the incident. The Court held it hard to be believed that after moving application one day before for casual leave be attended the school next day in the first half and sought half day leave thereafter. The attendance register was not seized immediately after the incident. His plea of alibi was vacillating.
(2) Non-access of husband to show illegitimacy of issue- Since legitimacy of a child implies a begetting by the husband in disproving legitimacy, it would be relevant to prove that the husband has no access to the wife at the probable time of begetting. The fact-in-issue is whether B is a legitimate son of A. Suppose, 8 was born on 3rd December 1949, at Allahabad, that A was in Africa from November, 1948 till January, 1950 and never came to India during the period. And the evidence is led to show that the mother of B (wife of A) remained in India throughout. The fact that A had no access to mother of B for 280 days before the birth of B is inconsistent with the fact that B is a legitimate son of A and so relevant under Section 112 of the Evidence Act to prove B’s illegitimacy.
(3) Survival of the alleged deceased.- A is accused of murdering B on the 6th of March, 1958. A tries to prove and leads evidence to show that B was alive till 1st July 1958. This fact is relevant under Section 11, clause (1) only because this is inconsistent with the fact-in-issue that B was murdered on 6th of March, 1958.
(4) Commission of a crime by a third person.- A is charged with the murder of B. A leads evidence that B was murdered by C. This is admissible being inconsistent with the fact-in-issue.
(5) Self infliction of harm. A is charged with the murder of B. Here A can led evidence under Section 11 (1) to prove that B committed suicide.
The admissibility under this section in each case must depend on how near is the connection of the facts sought to be proved with fact-in-issue, to what degree do they render fact-in-issue probable or improbable; when taken with other facts in the case and to what extent would the admission of the evidence be inconsistent with principles enunciated elsewhere in the Act. (Htin Gyaw v. King Emperor, (1927) Rang 6, 14).
Where the accused was charged with having entered into a conspiracy to t bring false evidence against a certain person, his previous acts of having instituted unfounded prosecutions against that person are admissible in evidence.
In order that a collateral fact may be admissible as relevant under this section, there are two requirements
(1) that the collateral fact must itself be established by reasonably conclusive evidence, and
(2) that it must, when established afford a reasonable presumption or inference as to the matter in dispute.
Highly probable or improbable words point out that the connection between the facts-in-issue and the collateral facts sought to be proved must be so mediate as to render the co-existence of the two highly probable.
In a case of election petition on ground of malpractice, the evidence that the truck drivers who were carrying the voters for a candidate were convicted, is relevant under Section 11. (Pratap Singh v. Rajendra Singh, AIR 1975 SC 1145).
Q. 9 (b). What facts are relevant to determine amount of damages?
Ans. Facts relevant to determine amount of damages- Section 12 of the Evidence Act provides, “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.”
Damages are claimed either for breach of contract or for tort. Damages are claimed under the provisions of a particular law. As to what would be the amount of damages for it that fact is relevant which enables the Court to determine it. The evidence throwing light on increasing or decreasing damages is a relevant fact. Thus, in an action for libel the defamatory statements made by the defendant are relevant facts whether made before or after the commencement of the suit for enhancement of damages. In an action for defamatory statement made against a woman imputing bad character to her, and truth is pleaded in defence, the statements made by the woman herself to a number of persons is relevant in defence.
Q. 9 (c). What facts are relevant to determine right or custom in question?
Ans. Facts relevant when right or custom is relevant-Under Section 13 of the Evidence Act, “Where the question is as to the existence of my right or custom, the following facts are relevant :-
(a) any transaction by which the right or custom, in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistamt with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.”
Illustration-The question is, whether A has a right to a fisnery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevanı facts.
Custom.- A custom is a particular rule which has existed from time immemorial and has obtained the force of law in a particular partic locality (Subramaniam Chettiar v Kamnappa Chettiar, AIR 1957 Mad 145).
In Maha Manga Devi v Haridas, ILR 42 Cal. 455, it was held that for a valid custom, the following attributes are essential-
(1) It must be immemorial; (2) It must be reasonable; (3) It must be continued, unaltered, uninterrupted uniform and constant: (4) It must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to operate and the persons to whom it is alleged to affect. (5) compulsory and not optional to every person to follow or not, (6) It must not be immoral, it must not be opposed to morality or public policy.
Where the trust-deed did not provide the manner of appointment and tenure of the President, the Court held that as per custom the seniormost trustee would be appointed as President of the trust. (Homi P. Ranina v. Enich B. Desai AIR 1996 Bom. 141).
Right- It is almost settled that Section 13 applies to all kinds of rights whether right of full ownership or falling short of full ownership ie, the right of easement. A right may be a public or private, a corporeal or incorporeal (Rangayan v. Invasimuthu, AIR 1959 Mad. 226).
Transaction. Transaction denotes something that has been concluded between persons by a cross or reciprocal action as it were. (Channo Mahto v Jang Bahadur Singh, AIR 1957 Pat 293) A transaction contemplated by Section 13 is a genuine and bona fide transaction.
A statement in a Will that the property dealt with thereunder was the property of the testator was held to be admissible as a transaction (Peryasami Kachirayer v. Verdappa Kachirayer. AIR 1950 Mad 486).
Instance. “Instance” means examples or something that has once or more happened. The section requires particular instances to be given to prove the right or custom. The instances in which the right or custom was claimed recognised, exercised etc. must be instances prior to the suit in question.
Q. 10 (a). How far are the facts showing the existence of the state of mind, of body or bodily feeling relevant?
(OR) “A fact is relevant in showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.”
Comment on the above statement.
Ans. Facts showing existence of state of mind, or of body or bodily feeling-Section 14 of the Evidence Act states-Facts showing the existence of any state of mind, such as intention, knowledge, good faith negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body or bodily feeling is in- issue or relevant.
In order to prove an offence in some cases, state of mind is required to be proved. Thus, such facts become relevant to prove the offence.
According to Explanation I of Section 14, a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists not generally, but in reference to the particular matter in question.
Explanation 2 provides But where upon trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.
Thus, Section 14 makes the facts relevant which shows-(1) State of mind, such as: (a) intention, (b) knowledge, (c) good faith, (d) negligence, (e) rashness, (f) ill-will or goodwill.
(2) Existence of any state of body.
(3) Existence of bodily feelings.
(1) State of mind. The evidence of the state of mind cannot be given by any direct proof. No body can state as to what is the intention of another man at a particular time. Such state of mind can be proved by the circumstances around them and by the actions and words spoken by such person. Thus, facts showing the existence of such state of mind or body or bodily feeling are relevant. But a facts-in-issue cannot be proved by showing that facts similar to it, but not part of the same transaction have occurred at other times.
State of mind can be proved by collateral facts. These may fall as under-
(i) proof of mental condition by evidence of person concerned.
(ii) by evidence of other persons.
(iii) by contemporaneous manifestations.
(iv) by similar acts.
Illustrations-(a) Intention. (i) A is tried for the murder of B by intentionally shooting him dead. The fact that A on other occasions shot at B is relevant as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
(ii) A is accused of defaming B by publishing an imputation intended to harm the reputation of B
The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant as proving A’s intention to harm B’s reputation by the particular publication in question.
The facts that there was no previous quarrel, between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.
(b) Knowledge-Each fact which goes to prove guilty knowledge may be proved.
(i) A is accused of receiving stolen goods knowing them to be stolen.
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.
(ii) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew it to be counterfeit.
The fact that A has been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit coin is relevant.
(iii) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious.
The facts that A had accepted other bills drawn in the same manner, before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person.
(c) Good faith. A person’s good faith in doing an act may generally be inferred from any fact which would justify its doing. In such cases the information on which he acted will often be material.
(i) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who is insolvent, suffered loss.
The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons, dealing with him, is relevant, as showing that A made the representation in good faith.
(ii) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A’s defence is that B’s contract was with C.
The fact that A paid C for the work in question, is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account, and not as agent for A.
(iii) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found.
The fact that A knew, or had a reason to believe that the notice was given fraudulently by C, who had heard the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A’s good faith.
(iv) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.
(d) Negligence. A sues B for negligence in providing him with a carriage for hire not reasonably fit, for use, whereby A was injured.