Introduction
Substantive law and procedural law
Law can be defined as the rules which determine our relations and which regulate the behaviour of individuals. It may be substantive law or procedural law/adjective law.
The laws which prescribe our rights and duties are called substantive laws. The right to inheritance, the right under contract, etc are the rights which are contained in rules of substantive laws stating our rights, liabilities and duties.
For the enforcement of right and for compelling the other to perform his duty, there are rules prescribed by law. These rules are procedural in nature and the law which prescribes such rules is procedural law. It provides the rules for proceedings in matter before the authorities and judiciary. For example, the rules contained in Code of Civil Procedure, 1908 or Bhartiya Nagrik Suraksha Sanhita, 2023, etc. are procedural laws.
The law of Evidence is procedural law: The law of Evidence under the Bhartiya Sakshya Adhiniyam 2023 is a procedural law which lays down the following rules:
(a) What facts may be used in evidence,
(b) How such facts are to be proved,
(c) By whom and in what manner the evidence is to be produced.
Law of evidence, as a procedural law, deals with the ways in which the parties will show existence or non existence of facts and circumstances so as to establish the existence or non existence of rights and liabilities given under the substantive law. The law of evidence determines whether a particular fact is relevant or admissible or not. How is particular piece of evidence accepted or rejected, what is the role of judge etc.
Supreme Court in Ramesh Chandra Agarwal v. Regency Hospital Ltd., (2009) 9 SCC 709 held that law of evidence is designed to ensure that court considers only that evidence which enables it to reach a reliable conclusion.
Application of BSA
BSA applies to all judicial proceedings in or before any court including the courts of "Court Martial", It also does not apply to (i) Affidavits and (ii) Proceedings before Arbitrator.
There is a change in this provision. Section 1(2) of the BSA omitted the words 'convened under the Army Act, the Navy Discipline Act or the Indian Navy (Discipline) Act or the Air Force Act.'
The term "judicial proceedings" is not defined in the BSA but it has been defined under Section 2(1)(m) of BNSS. It means any proceeding in course of which the evidence is legally taken on oath. Proceedings in which only administrative duties are discharged are not judicial proceedings.
In Queen Empress v. Tulja, ILR (1888) 12 Bom 36, court held that any proceeding may be termed as a judicial proceeding only when its object is to determine legal relationship between persons or between him and community generally.
Supreme Court in Union of India v. T.R. Varma, AIR 1957 SC 882 held that the Act (now BSA) has no application to enquiries conducted by Tribunals even though they may be of judicial in charachter. The law required that such tribunals should observe the rules of natural justice in the conduct of enquiry. If these rules are satisfied, the enquiry is not open to attack on the ground that procedure laid down in the Evidence Act (now BSA) for taking evidence was not strictly followed.
Law of evidence is lex fori
The law of evidence is lex fori i.e law of the country or forum. It is governed by the law of the nation where the proceedings are taking place and not where the cause of action has taken place. It is matter of convenience. For example if an American citizen is tried in India for a breach of a contract which took place in USA, the law of evidence as in force in India will be applicable and not the law of evidence of USA.
Principle of fair trial and evidence
Supreme Court in Zahira Habibualla Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 observed that pricinple of fair trial is reflected in numerous rules and practices. The principle of fair trial manifests itself in virtually every aspect of our practice and procedure, including law of evidence. Application of these principles involve a delicate judicial balacing of competing interest in criminal trial. Interest of the accused, public and victim has to be weighed not losing sight of the public interest involved in prosecution of persons who commit offences.
Evidence
Section 2(1)(e) of Bhartiya Sakshya Adhiniyam defines the term 'Evidence'. The definition given in Section 2(1)(e) includes two kinds of evidence - (1) Oral evidence and (2) Documentary evidence. But is does not mean that there cannot be any other kind of evidence.
(a) Oral Evidence: All statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence.
(b) Documentary evidence: All documents including electronic or digital records produced for the inspection of the Court, such documents are called documentary evidence.
There is a change in this provision. Section 2(1)(e) of BSA, 2023 provides new definition of the term 'evidence'. Under this definition statements given electronically are to be treated as oral evidence. This also correspond to Section 530 of BNSS, 2023 which provides for the examination of complainant and witness in electronic mode by use of electronic communication or by audio-video electronic means. The definition of documentary evidence now includes electronic and digital records.
In Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, Supreme Court has held that the definition of evidence is exhaustive. It is exhaustive in the sense that every kind of evidence can ultimately be reduced to the category of either oral or documentary evidence.
Evidence signifies only the instruments by means of which relevant facts are brought before the court. It is different from proof which is the effect of evidence. According to Phipson evidence is a testimony whether oral, documentary or real which may be legally received in order to prove or disprove some fact or dispute.
Direct evidence
Direct evidence is evidence which proves the fact in dispute directly without any inference or presumption. The principle fact is proved directly by witnesses, documents or things. It is based on precise point in issue. For example, in case of murder if the witness saw the accused committing the offence then the evidence of the witness will be direct evidence.
Circumstancial evidence
Circumstantial evidence is not defined under the BSA. Circumstantial evidence is that which relates to a series of other facts than the fact in issue. It means the evidences of circumstances. When there is no direct evidence available then the courts look to the circumstances which can be linked to provide evidence. In case of circumstantial evidence the effort of the court is to find out whether the crime was committed by the accused and the circumstances as proved form themselves into a complete chain unerringly pointing towards the guilt of the accused.
Principles governing circumstantial evidence
Supreme Court in Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228, Ganpat Singh v. State of M.P., (2017) 16 SCC 353, state of U.P. v. Ravidra Praksh Mittal, AIR 1992 SC 2045, and in many other cases held that following are the priciples which must be kept in mind while dealing with the circumstantial evidence:-
1. The general principle is that the circumstances from which an inference of guilt is drawn must be cogently and firmly established.
2. Those circumstances should be definite and unerringly point towards the guilt of accused.
3. Circumstances should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused.
4. Such circumstances should be incapable of any hypothesis other than the guilt of accused and it should be inconsistent with the innocence of the accused.
Difference between direct and circumstantial evidence
1. Direct evidence is based on witness's personal knowledge or observation of a fact, whereas, circumstantial evidence is direct evidence of a fact which reasonably infers the existence or non-existence of fact in issue.
2. Direct evidence does not require any reasoning or inference to arrive at the conclusion which is to be drawn from the evidence, whereas, circumstantial evidence being an indirect evidence, requires that inferences be made between the evidence and the conclusion to be drawn from it.
3. Generally, direct evidence is given to prove a fact. Circumstantial evidence, on the other hand, comes into play when no direct evidence is available to prove a fact.
4. The court can rely on the direct evidence of a witness if he is worthy of credit and his evidence is reliable. But circumstantial evidence can form the basis of conviction only when the five golden principles as laid down in Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SSCC 228, Ganpat Singh v. State of M.P, (2017) 16 SCC 353, State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045 and various other cases are fulfilled, i.e., the circumstances must be fully established and the conclusive nature, it must be in conformity only with the hypothesis of guilt of accused and there must be a complete chain of circumstances supporting no other hypothesis that of guilt of the accused.
Real Evidence
Definition in Section 2(1)(e) does not refer to the 'real evidences'. Real evidences are material objects produced in court. For example blood stained cloth, weapons etc. This 'real evidence' is covered by Second Proviso to Section 55. It provides that if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if thinks fit, require the production of such material thing for its inspection. Such 'material thing other than document' is what we called 'real evidence'.
Affidavit as evidence
According to Section 1 of the BSA, the Bhartiya Sakshya Adhiniyam does not apply to affidavits presented to the courts. In Sudha Devi v. M.P. Narayanan, AIR 1988 SC 381, Supreme Court held that statements in affidavit do not constitute evidence within Section 3 (Now Section 2(1)(e) of BSA). The reason for exclusion in affidavits is that in affidavits there can be statements based on information which is hearsay. Affidavits can be used as evidence only when the court passes order under Order XIX, Rule 1 and 2 of CPC. When a court orders that a particular fact may be proved by an affidavit then it beocomes evidence. The Code of Civil Procedure (Amendment) Act, 2002 permits affidavit in the form of evidence.
Supreme Court in Ayyub Khan Noorkhan Pathan v. State of Maharastra, (2013) 4 SCC 465, has held that where the deponent can be available for cross examination and an opportunity is given to the other party to cross examine then the affidavit can be relied upon as evidence.
Evidence of tracker dog
Supreme Court in Abdul Razak v. State, AIR 1970 SC 283, held that discovery of a fact with the help of a tracker dog is scientific evidence.
Electronic evidence
In Indian Evidence Act the term "Electronic record" was inserted in the defintion of 'evidence' by Act 21 of 2000. Now, in BSA the term 'electronic or digital record' is used.
Section 2(1)(f) of IT Act 2000 defines 'electronic record'. It states that 'electronic record means date, record or data generated, image, or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
Section 62 of BSA provides that the contents of electronic records may be proved in accordance with the provisions of Section 63.
In Anvar P.V. v. P.K Basheer (2014) 10 SC 473 Supreme Court held that admissibility of secondary evidence of electronic record epends upon satisfaction of conditions as prescribed under Section 65-B (Now Section 63 of BSA). If the electronic record is used as primary evidence i.e. original electronic record produced in court then the same is admissible in evidence without compliance with conditions in Section 65-B (Now Section 63 of BSA). This view was approved by Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
Evidence in departmental inquiry: Supreme Court in SBI v. National Housing Bank, (2013) 16 SCC 538, held that statements made in a departmental enquiry do not constitute evidence. The findings cannot be used in courts and conclusions do not bind the courts.
Evidence obtained in other investigation: Supreme Court in Ronny v. State of Maharashtra, (1998) 3 SCC 625 held that evidence obtained in investigation of other crime can also constitute good evidence in any other case provided it is a relevant.
Illegally obtained evidence: In Umesh Kumar v. State of A.P., (2013) 10 SCC 591, Supreme Court held that it is a settled legal position that even if the evidence is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If evidence is relevant, it does not matter how it is obtained.
FIR as evidence: Supreme Court in Utpal Das v. State of West Bengal, (2010) 6 SCC 493, held that FIR is not a substantive piece of evidence. It may only be used for corroborating and contradicting the complainant.
Evidence through video conferencing: Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, held that 'evidence' can be oral, documentary or electronic. Insertion of word 'electronic' suggests that the evidence through video conferencing.
Appreciation of evidence
The analysis of the evidence by the court to ascertain the reliability and genuineness of the evidence is called appreciation of evidence. It is the duty of the court to ascertain which part of the evidence represents the truth and which part of it is false. In Ganesh & Gulve v. State of Maharastra, AIR 2002 SC 3068, Supreme Court held that it is the duty of the court to separate the grain from the chaff.
In R. Jayapal v. State of Tamil Nadu, (2019) 8 SCC 342, Supreme Court observed that where the chaff can be separated from the grain it would be open for the court to convict the accused, However, if the grain and chaff cannot be separated then the prosecution verson has to be rejected in toto.
In Shyamlal Ghosh v. State of West Bengal, (2012) 7 SCC 646, Supreme Court observed that the statements of witnesses are not to be taken into account in parts of in solation. They have to be taken along with the evidence of other witnesses for the purpose of arriving at a reasonable conclusion
Falsus in uno,falsus in omnibus: It means false in one one thing thing it in false in all others in maxim sugggests that if the part of evidence by a witness is false the whole testimony is regarded as false and it must not be taken into consideration by court. In other words thiệ
Supreme Court in Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433, has held that the maxim falsas in uno, falsus in omnibus is not applicable in India. Minor contradictions and omissions in the evidence are to be ignored if there is ring of truth in the testimony of witness.
In Mahendran v. State of Tamil Nadu, (2019) 55 SCC 67, Supreme Court reiterated that the maxim falsas in uno, falins in amnibus is not applicable in India.
Supreme Court in Khurshid Ahmed v. State of J&K, (2018) 7SCC 429 held that while analyzing the evidence on record the court should not adopt a hyper technical approach. The court should not reject the evidence on minor contradictions.
Document
The term "Document" is defined in Section 2(1)(d). It means any matter expressed or described upon any substance by means of letter or by any other means or by more than the of those means, intended to be used, or which may be used for the purpose of recording that matter and includes electronic and digital records.
- For example
- Writing a document
- A map or a plan is a document
- An inscription on a metal plate or stone is a document
- A Caricature is a document
- Words printed, lithographed or photographed are documents
- An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, website, locational evidence and voice mail messages stored on digital devices are documents.
There is a change in this provision The new definition of document specifically includes "digital records" within the definition of the term 'document'. Section 2(1)(d) of BSA, 2023 introduces sixth illustrations which clarifies that an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, website, locational evidence and voice mail messages stored on digital devices are documents. Under the new provision in order to qualify as 'document' or 'documentary evidence', it is not necessary that the matter must be expressed or described upon any substance by means of letters, figures or marks only. Any matter 'otherwise recorded upon any substance by any other means' will also qualify as 'document' or 'documentary evidence'.
Proved, Disproved and Not proved
Proved
Section 2(1)(j) of the Bharatiya Sakshya Adhiniyam defines proved. According to this Section, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon supposition that it exists.
In M. Narsimha Rao v. State of A.P, AIR 2001 SC 316 Suprem Court held that proof does not mean proof to rigid mathematical demonstration but such evidenc as would induce a reasonable man to come to a conclusion. It depends upon degree of possibility of having existed.
'Matters before it': Section 2(1)(j), while defining the term 'proved' used the expression 'matters before it' instead of evidence which shows that the court can consider all other matters than evidence such as demeanour of witnesses, local inquiry conducted by the court, etc. for reaching to the conclusion.
In Rajesh Yadav v. State of U.P., 2022 (3) SCALE 135 Supreme Court held that definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the hear and soul of the entire Act (now BSA). This clause, consciouly speaks of proving a fact by considering the "matter before it". The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence.
Disproved
Section 2(1)(c) provides that a fact is said to be proved when, after considering the matters before it, the court either believes that it does not exist or considers its non existence so probable that a prudent man ought (to act upon a supposition that it does) not exist. Thus, this standard of proof should be of ordinary prudence in person who will judge its existence or non-existence from the standard of circumstances before him. The definition of the term 'disproved' is only the converse proposition of 'proved'.
Chaturbhiug Panday v. Collector of Raigad, AIR 1969 SC 225 Supreme Court held that under Section 3 of IEA (now Section 2(1)(c) and (m) of BSA) the proof or disproof of a fact is to be tested on the touchstone of belief of the court or the probability or otherwise of a prudent man. There is no standard by which the weight of the evidence of the parties can be ascertained.
Not Proved
Section 2(1)(i) provides that a fact is said to be not proved when it is neither proved nor disproved. In other words, the man of ordinary prudence neither believes that the fact exists nor he believes that it does not exist.
There is difference between 'disproved' and 'not proved'. The word 'disproved' is akin to 'false'. What is disproved may normally be taken to be false thing. When a fact is said to be disproved, a person arrives at the firm and fixed decision after considering the matters before it. On the other hand, a fact which is 'not proved' may be true or false. A doubt lingers about its truth. The phrase 'not proved' is the result of careful scrutiny of the person of ordinary prudence that the fact neither exists with certainty nor its non-existence is proved with certainty. Thus, 'not proved' is a provision existence and non-existence of the fact in the mind of a man of ordinary prudence.
In Kuna v. State of Odisha, (2018) 1 SCC 296, Supreme Court held that the expression 'proved', 'disproved' and 'not proved' lays down the standard of proof, namely about the existence or non-existence of the circumstances from the point of view of a prudent man. While adopting the said requirement as an appropriate concrete standard to measure 'proof', full effect has to be given to the circumstances or conditions of probability or improbability.
Proof
In State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418 Supreme Court held that proof is the effect of evidence. It is considered with establishement of material facts in issue in each particular case by proper legal means to the satisfaction of the court by evidence, admissions, presumptions, judicial notice, etc. Such proof does not mean rigid mathematical demonstration but it must be such as would induce a man ordinary prudence to come to a conclusion.
Standard of Proofs
The standard of proof in civil and criminal cases are different. In a civil case a mere preponderance of probability is sufficient basis of decision, on the other hand, in criminal cases a much higher degree of proof is needed before a person is convicted and his guilt must be proved beyond reasonable doubt. In criminal cases the accused is always presumed to be innocent until the prosecution proves him guilty and the evidence must exclude every reasonable doubt of the guilt of the accused.
In Ashish Batham v. State of M.P. (2002) 7 SCC 317, Supreme Court held that in civil cases a matter is said to be proved when the balance of probability suggests it but in criminal cases the court requires the proof beyond reasonable doubt. Mere suspicion, howsoever strong, is no substitute of proof.
In Mousam Singha Roy v. State of W.B, (2003) 12 SCC 377, Supreme Court held that the more serious the offence, the stricter the degree of proof since higher degree of assurance is required to convict the accused.
Reasonable doubt: Supreme Court in Rajesh Dhiman v. state of H.P., (2020) 10 SCC 740 explained that the term 'reasonable doubt' does not mean that the proof be so clear that no possibility of error exists. It means that the evidence must be so conclusive that all reasonable doubts are removed from the minds of ordinary person. It refers to the degree of certainty required by the court before it so that it can make valid determination of the guilt of the accused. Reasonable doubt is not an imaginary, trivial or merely possible doubt. In Ramakant Rai v. Madan Rai (2003) 12 SCC 395, Supreme Court held that any doubt about the matter should be actual and substantial arising out of evidence in the case.
May Presume, Shall Presume and Conclusive Proof
Parties are required to give evidence to prove a fact in the court of law. However, there are certain facts which are not required to be proved by the parties by giving evidence. These are:
1. When the court takes judicial notice of a fact under Section 51.
2. When a fact is admitted before the court under Section 53.
3. When the court presumes a fact.
Meaning of "Presumption"
The term "Presumption" is not defined in the BSA. In M.S. Narayana v. State of Kerala, AIR 2006 SC 3366 Supreme Court held that presumption is any inference drawn from a proved fact. It is a rule a law which allows the court to make inference by process of probable of probable reasoning drawn from the facts judicially noticed by the court or admitted before it or legally proved to the satisfaction of the court. It is not a piece of evidence but only absolves a party from proving any fact by giving evidence.
In Pratap Singh v. Shiv Ram, (2020) 11 SCC 242, Supreme Court held that presumption makes a prima facie case for a party in whose favour it exists. The rules of presumption are deduced from enlightened human knowledge and experience. They are drawn from connection, relation and coincidence of facts and circumstances.
Kinds of Presumption
Three kinds of Presumtion
1. Presumption of fact
2. Presumption of law
3. Mixed presumption of fact and law.
However, the BSA recognizes only presumption of fact and presumption of law. Furthermore, such presumptions may either by rebuttable or irrebuttable.
Section 2(1)(h), (l) and (b) of the Adhiniyam deals with these kinds of presumptions which are discussed as under:
1. Presumption of fact [May Presume]: Presumption of fact or presumption HOMINIS, is based on human logic relation of things and law of nature. According to Section 2(1)(h), where the Adhiniyam declares that the court 'may presume' a fact, the court may either:-
a. Presume the fact and regard it as proved unless and until it is disproved, or
b. Call for the proof of it.
Thus, Section 2(1)(h) clarifies that presumption of fact is rebuttable in nature and the other party may adduce evidence to disprove it. Further, by using 'may', the legislature has made it clear that the court is not bound to presume a fact but this power is discretionary. If the court finds that it is fit case for raising presumptions, such facts stand proved unless and until they are disproved by other side. In case the court refuses to exercise the discretion to presume a fact it will call upon the parties to prove the fact by leading evidence.
For example, Presumption raised under Section 119 of BSA is presumption of fact. In it the court may presume the existence of any fact which it thinks likely to have happened. The other instances where court may, presume a fact are given under Section 88, 89, 90, 92, 93 of the BSA.
2. Presumption of law [Shall presume]: BSA further divides presumption of law into:
(i) Rebuttable Presumption of law
(ii) Irrebuttable presumption of law or conclusive proof.
(i) Rebuttable Presumption of law: Under Section 2(1)(L), it is provided that where the Adhiniyam declared that the court 'shall presume' a fact, court shall presume that fact unless and until it is disproved. Thus, by using the word 'shall', no room for discretion is left to the court and it is mandatory for it to raise such presumption unless it is disproved by the other party. The court is bound to take the fact as proved until evidence is adduced to disproved it. The party interested in disproving the fact must produce the evidence.
For example under Section 118 of BSA, where the question is whether a person committed dowry death of a woman, the court shall presume that such person has caused the death if it is shown that soon before her death she had been subjected to cruelty. Other provisions relating to such presumption are contained under Section 78-87, 91 and 108 of the BSA.
(b) Irrebuttable Presumption of law or conclusive proof: According to Section 2(1)(b), where the BSA declares any fact to be conclusive proof of other, the court shall, on the proof of such fact, regard the other fact as proved and the other party will not be allowed to disprove such fact. Thus, once presumption is raised, it cannot be rebutted by the other party and the latter will be barred to adduce evidence to the contrary.
Supreme Court in Somawanti v. State of Punjab, AIR 1963 SC 151 clarified that there is no difference between 'conclusive proof' and 'conclusive evidence'. The aim of both the expression is to bring finality to the establishment of the existence of a fact from the proof of another.
For example if any child is born within 280 days after dissolution of marriage between man and wife and wife remained unmarried, it will be conclusive proof that the child is legitimate son of the man unless non-access is shown [Section 116, BSA] Thus, once the presumption is raised, it cannot be rebutted by any evidence.
There are only two instances of such presumption under the BSA which is provided under Section 35 and 116. However, even if the fact is conclusively proved, it can still be rebutted on the ground of fraud practiced upon the court. For instance, Section 38 of the BSA provides that the party is allowed to show that the judgement relevant under Section 35 is as proved by the adverse party who obtained by fraud or collusion.
Fact
Law of evidence deals with evidence of 'facts' and it is important that the evidence must be confined to facts only. Only in certain circumstances opinion is taken into consideration. According to Section 2(1)(f), 'Fact' means and includes:-
Any thing, state of things, relation of things, capable of being perceived by the senses;
Any mental condition of which, any person is conscious.
Bentham has classified facts into
(i) Physical facts (external) and
(ii) Psychological facts (internal).
Physical or external facts are those facts which are capable of being perceived through senses. For example, a man heard or saw something, is a fact. A man heard or saw something, is a fact. Psychological facts or internal facts are mental conditions of which a person is conscious. For example, a man has a certain reputation is a fact.
Facts in issue
Section 2(1)(g) defines 'facts in issue'. It means any fact which, either by itself or in connection with some other facts, the existence, non-existence, nature, extent of any right, liability or disability, asserted or denied by the parties in suit or proceeding, necessarily follows.
For example 'A' is tried for murder of 'B'. In this case, the following are facts in issue:
(i) Whether A murdered B?
(ii) Whether A had intention to kill B?
(iii) Whether A had received sudden and grave provocation from B?
Thus, a fact in issue is any disputed fact in a case the adjudication upon which determines the rights and liabilities of any parties in a suit or proceeding. From the definition of 'fact in issue' it is clear that a fact will qualify to be 'fact in issue' only when that fact (by itself or in connection with other facts) is crucial to determine the question of right and liability. Thus it can also be stated that all facts which are essential for determining right, duty, disability, liability in question and asserted by one party and denied by other is called facts in issue.
In civil matters 'facts in issue' are ascertained by framing issues while in criminal matter allegations in police report constitute the facts in issue.
'Fact in issue' and 'issue of fact'
Explanation to Section 2(1)(g) of the BSA defining fact in issue further clarifies that where any issue of fact is recorded between the parties under Order 14 Rule 1 of the CPC, 1908, the answer given by the parties in response to such 'issue of fact' is called 'fact in issue'.
An 'issue of fact' is framed when a material proposition of law or fact is asserted by one party and denied by the other [Order 14 Rule 1(1)]. Thus, a fact in issue is the fact which the plaintiff proves to support his claim and the defendant proves to defend his case.
For example "A" sue "B" for breach of contract. 'A' asserted existence of contract which was denied by 'B'. So, the court recorded an issue of fact 'whether there was a contract between A and B? Here, the assertion of A that the contract existed and of "B" that there was no contract as such constitute fact in issue as per Section 2(1)(g) of the BSA.
Relevant fact
Section 2(1)(k) provides that one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts. According to Section 3 evidence can only be given of existence or non-existence of facts in issue and relevant facts. The list of facts which are the relevant can be found from Section 4-50. Thus, parties are allowed to adduce evidences only on these facts and all others facts will not be relevant and admissible.
The definition of the term 'relevant fact' does not give clear definition of the term but it merely states that one fact is relevant to other when one is connected to the other in the manner provided under Section 4 to 50 of the Adhiniyam. In general, relevant facts are those facts which are not themselves in issue but they are so connected with fact in issue or disputed fact so as to assist in getting at the truth or falsehood of fact in issue. According to Stephen, it has a certain degree of probative value in it.
For example facts which are occasion, cause or effect of fact in issue is declared relevant under Section 5 of the Adhiniyam and thus where the question is whether "A" murdered "B", marks on the ground produced by struggle at or near the place where murder was committed are relevant facts [Illustration (b) to Section 5].
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