Indian Evidence act 1872 that is now known in the name of Bhartiya saksha adhiniyam 2023. CPC CRPC AND EVIDENCE ACT, are 3 one of the important major law subject.
In this blog it’s about the important section of indian evidence act that is from section 3 to 11 and now in BSA 3 to 9.
Evidence may be given of facts in issue and relevant fact
Section 3 of the Bhartiya sakshya adhiniyam 2003, Evidence may be given in any suit or proceeding of the existence of every fact.
Or non existence of every fact in issue and of such other fact as are hereinafter declared to be relevant and of no others.
This section is enabling and restricting also as it’s explanation states that this section shall not enable any person to give evidence of fact which he is disentitled to prove.
Disentitled to prove by any provision of the law for the time being in force relating to Civil procedure.
In one hand enable to produce evidence or fact in issue and relevant fact on other hand it bars the producing of irrelevant fact.
It clearly declare that evidence may be given by the Party of fact in issue and relevant fact and no others.
Thus this section is enabling as well as restrictive. For EXAMPLE section 23(1) & 2 and section 112( privilege communication). Where in even if any fact is relevant evidence is not allowed proof.
Fact in issue – documentary- order 7 rule 14 CPC
Where in cpc order 7 rule 14, order 8 rule 1(A), order 41 rule 27, order 3 rule 1. Where evidence will not be allowed to be proved of a fact in issue or relevant fact.
Thus despite the related provision evidence will not be allowed to be proved in certain cases. The section is also restrictive there the party is allowed to proof the evidence in order to impeach the credit of witness under Section 158 of BSA. Even though the credit of witness is not directly a fact in issue or relevant fact.
Relevancy of fact forming part of same transaction
Section 4 of BSA 2003 closely connected facts of the formation of same transaction.
Facts which though not in issue, are so connected with a fact in issue or relevant fact 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.
Transaction is continuing of events where in a series of events take place in continuing upon the nature of transaction.
As to where the transaction is limited to one place at particular time or whether it may spread over a long duration upon different places.
Concept of res Gestae section 4 of BSA 2003
Section 4 is a concept res Gestae as applicable in english law, according Taylor res Gestae means a fact or transaction which is so fairly connected with the main event.
That it appears that the said fact has an automatic and natural connection with main fact.
For the purpose of section 4 it is essential to proof that the fact in question was such as can be considered to be a part of the same transaction in which the fact in issue took place.
There should a spontaneous connection of that fact which the fact in issue. That fact should appear to be automatic natural and design, unplanned and un fabricated.
- Case , savar das vs state of Bihar 1978 sc.
- Women fired in a house, smoke art of house.
- Case, R vs Andus 1987
- Rattan vs R 1971
- kapoor singh rana vs nct of DELHI 2006.
Fact which are occasion, cause or effect of facts in issue or relevant
Section 5 of BSA 2023 Facts which are the occasion, cause or effect, immediate or otherwise of relevant facts.
Or facts in issue, or which constitute the state of things under which they happened.
Or which afforded an opportunity for their occurrence or transaction, are relevant.
Occasion, opportunity evidence act
Occasion is a particular circumstance existing at particular point of time which creat a backdrops for a commission an offence.
Opportunity is carried out from the occasion by the wrong doer.
Example: An isolated home of A and M come and say that his car was damaged seeks for help and A say that come and stay here, given some liquor and at morning A seem to be looted and loosed by A.
- Occasion: A, M presence in same place.
- Opportunity: Sleep and M made opportunity from occasion, there has to existing set of circumstances existing artificially or existing over a period of time.
- Cause: Clash of 2 thoughts notice which is created by clashing by few thoughts, the seen by cause is occasion and carried out of moment from the occasion is opportunity.
- Cause: I basically incident which may push a person from doing a fact in issue or relevant fact. Cause is that fact which pushes a person toward the commission of the wrong.
- where as notice is something which attach or pull a person for doing some thing, cause it is ingredients of making motives.
- Effect: Any consequence of the act formed in the place is called effect.
- Example, to sink a person in a pond to kill him with in water in lungs is the effector person who killed.
- State of things: set of circumstances in a particular place.
Motive, preparation and previous or subsequent conduct
Section 6 of the Bhartiya sakshya adhiniyam 2023, Any fact is relevant which shows or constitute a motive or preparation for any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person, an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Adhiniyam.
Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Motive, Intention, preparation
Motive is the object or the goal which is to be short to be attend by doing of that particular act. The Motive attracted a person to do a particular act.
Intention means desire to act in a particular manner, it may be positive or negative.
Preparation- In it’s second stage in the commission of crime creation of platform to do the act is preparation. Is creation of certain circumstances which give a platform to a person to affecting commits the offence.
Difference between Motive and Intention
- Intention is desire to work in particular manner how, you do the act, and motive what attract you.
- Unlike motive Intention has to be examine from conduct of the person concerned that, whether his conduct was such as manifested the desire to produce the consequences with certainty.
- Intention is examined by question as to how did the person do the act.
Section 7 evidence act test identification parade
Fact necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or a 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 such fact was transacted are relevant in so far as they are necessary for that purpose.
Parliament case test identification parade
- Duration for which the witness saw accused.
- The Light That was available at that point of time.
- The distance from which the witness shaw the accused.
- Time gap between the incident and identification made in court.
If all collaborative evidence is not then there Test identification parade TIP may apply.
Case:. Malkhan singh vs state of Mp 2003, women were rape at evening it was quit dark, TIP is not necessary because there was close identity.
Case: Machhi singh vs state of punjab, in this case, collaborative evidence reliable.
Munshi singh gautam vs state of Mp 2005 Test identification parade guidelines by SC
- If TIP is to be conducted the police should Insure that the accused is not seen in public.
- It is essential that witness shall identified directly on the basis of memory of the crime scene.
- If he identifies the accused on bases of the site of the accused after the crime, the authenticity of the identification will be lost.
- TIP should be conduct after the arrest of the accused as soon as possible by the memory of the witness is fresh.
- It should be conduct in the absence of the police officer.
- The accused shall be mixed with some other people of the stature कदकाठी in 9 is to 1.
- There shall not be any mark or tag on the accused at the time of identification.
- If the accused Beard then the TIP shall be conduct twice in the same sequence.
- The photo should be attached that the witness has identified the person.
Purgative of Investigative officer to test identification parade
- TIP conduction is purgative of the investigation office the accused can not demand the TIP as the matter of right.
- If accused did not corporate in conducting the TIP the court can draw adverse inference regarding the accused.
- The court may even raise a presumption against the accused under Section 114 of Evidence Act.
- Under section 54 of crpc the IO officer may after order of the magistrate to conduct TIP.
- The police IO has to insure that he must get TIP conduct as soon as possible After the arrest of accused.
Test identification parade not ground of rejection of bail
- And if the court decide to grant bail to accused then merely the fact the TIP has not been conducted can not be the ground to refuse the grant of bail. ection 437(1) of crpc proviso 3 clearly state that TIP cannot be the ground for the refusal of bail, the court may grant conditional bail.
Test identification parade is not an evidence
TIP is not an evidence only used for as device for collaboration of evidence ( draw inference) If the witness has identified accused in TIP. But later on he retracted in court then general rule is, since the TIP is not substantive piece of evidence.
The TIP will not directly admissible and therefore the identification is not proved but court under the exceptional case may admit the Evidence.
And may use against witness to contradict the denial as if you have admitted, practically in very rare circumstances the court contact the denial of the witness on the basis earlier identification. And after contradicting it’s deems that the witness identified the accused.
Doctrine of mutual agency, conspiracy section 8 of BSA 2023
Conspiracy- Theory of representation & agency, There should be a reasonable ground that 2 or more person have conspired together.( Then should be prima facie).
- Anything said, done, or written in reference common Intention.
- After the time when such Intention was first entertained by one of them.
- It will be relevant in reference to common Intention.
- Against each of the person believed to be conspiracy.
- For proving the existence of conspiracy for showing any such person was party to it.
Concept of relevancy
The concept of relevancy under section 8 of BSA 2023 in Civil and criminal conspiracy is based upon the doctrine of agency or Theory of representation it is essential that.
- There should be prima facie case regarding existences of the conspiracy and all the accused should be a part to trial for offence or trial for tort of conspiracy.
- The thing said done or written by either of the accused after the Intention was entertained by one of them and before conspiracy got over will be relevant under Section 8.
- If it referred to intention the fact will be relevant not only to proof to the existence of conspiracy rather also to proof the particular person was member of that conspiracy.
Afgal & other vs NCT of Delhi 2005 Sc
It was held in case Afgal & other vs NCT of Delhi 2005 Sc, commonly known known as parliament attached case. That in order to be relevant in section 8 the statement or conduct should have be done before the conspiracy got over.
Case State of Tamil Nadu vs Nandu 1994 ( Rajiv ji case).
Mirza akbar vs Privy council, Test identification parade case
In this case Mirza akbar vs Privy council, in order to be relevant the statement.
Or the conduct that the person may have done while he was member of the conspiracy will be relevant with respect to himself.
And other who were also the member and against those who were not a member at that time but become the member later on. Or those whoever a member earlier had left the conspiracy at that time.
The person who is not presently a member of conspiracy the statement or conduct made by him at that time will not be relevant.
Res juri section 9 BSA 2023 evidence Act
When fact not otherwise relevant become relevant section 9 of BSA 2023. Facts not otherwise relevent are relevant-
- If they are inconsistent with any fact in issue or relevant fact.
- 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 probables or improbable.
Section 10 of BSA 2023 evidence act
Facts standing to enable Court to determine amount are relevant in suits for damages.
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.