Law of Evidence

By Nizam Azeez Sait,

MODULE No. 2

INTERPRETATION CLAUSE – “FACT” “FACT IN ISSUE”, “ISSUE OF FACT” and “PROVED”, “DISAPROVED” “NOT PROVED”

Introduction

This is the 2nd Module of the subject ‘Law of Evidence’, which covers a few definitions in the Interpretation Clause of the Bhartiya Sakshya Adhiniyam 2023.

In this module we will take you through the Interpretation/Definition clauses in the Bhartiya Sakshya Adhiniyam, explaining the meaning and scope of the relevant words and phrases defined therein, such as “fact” “fact in issue”, and “proved”, “disproved” “not proved”.

We will also explain the phrase “Matters Before the Court” appearing in the definition of “proved”

We will deal with the difference in the required Standards of Proof between Civil Cases and Criminal Cases

First of all let us examine the definitions of the terms “Fact”, “Facts in issue” and the meaning of “issue of Facts”

The terms “Fact”, “Facts in issue” and “issue of Facts”, are defined / explained in Section 3 of the Indian Evidence Act.

MODULE INDEX

1. “Fact” – Meaning
2. Physical Facts and Psychological Facts
I. Physical Facts
II. Psychological Facts
III. Events or State of things
IV. ‘Positive facts’ and ‘Negative facts’

3.“Facts in issue” and “issue of Facts”
I. “Issue of Facts”
II. “Issue of Facts”
4.”Proved” “Disproved” and “Not Proved”
5. “Matters Before the Court”
a. Presumptions
b. Facts of which judicial notice can be taken Under Section 51 of the Bhartiya SakshyaAdhiniyam(Section 57 of the Indian Evidence Act)
c. Commissioner’s Report
d. Result of local investigations
e. Observations of demeanour
f. Inspection of Material objects
g. Statements/answers of the accused under section 351 the Bharatiya Nagarik Suraksha Sanhita 2023 (u/s 313 CrPC)
h. Pleadings
i. Charge
6. Difference in the required Standards of Proof between Civil Cases and Criminal Cases

7. Doctrine of Reasonable Doubt in Criminal Cases

8. The Doctrine of Proof beyond Reasonable Doubt Applies in the Inference of Guilt of the Accused Person and Not on all Primary facts –Proposition in M.G Agarwal v. State of Maharashtra
9. Proof of Mensrea

10. Facts showing existence of state of mind, or of body, of bodily feeling

1. “Fact” – Meaning

Section 2 (f) of the Bharatiya Sakshya Adhiniyam 2023, corresponding to S.3 of the Evidence Act 1872, states:

“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.

Clarifying the above, the section provides the following Illustrations(i) to (iv):

(i) That there are certain objects arranged in a certain order in a certain place, is a fact.

(ii) That a man heard or saw something, is a fact.

(iii) That a man said certain words, is a fact.

(iv) 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.

In the Indian Evidence Act 1872 the following was also included among the illustration, which is seen omitted in the new Act.

Illustration (e) That a man has a certain reputation is a fact.

As we have gone through the definition of the word ‘fact’ now we will see different classifications/types of ‘facts’

2. Physical Facts and Psychological Facts

“Facts” may be broadly divided into physical facts and psychological facts.

2.1 Physical Facts

Physical facts mean the facts perceived by senses ie sight, hearing, smell, touch and taste.

Clause (1) and illustrations (i), (ii) and (iii) of the Bharatiya Sakshya Adhiniyam refer to physical facts.

Clause 1, which we have already seen, reads as:  anything, state of things, or relation of things, capable of being perceived by the senses…

As seen before, illustrations (i), (ii) and (iii) read as:

(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.

2.2 Psychological Facts

Psychological facts generally relate to mental conditions, such as a particular intention entertained by a person, knowledge, feeling of fear, feeling of excitement etc. They are not subject to perception by bodily senses but they are subject of consciousness. They are incapable of rendering direct proof but have to be inferred from the proved surrounding physical facts.

Clause (2) and illustrations (iv) of the Bharatiya Sakshya Adhiniyam refer to psychological facts.

Clause (2) reads/says: “any mental condition of which any person is conscious.”

As seen before, illustration (i) reads as:

(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.

2.3 Events or State of things

Physical facts may again be classified as events and state of things. For example, the fall of a tree is an event whereas the existence of a tree is a state of thing. Still, both are facts.

2.4 ‘Positive facts’ and ‘Negative facts’

Yet another distinction recognized by Bentham is that of ‘Positive facts’ and ‘Negative facts’. Existence of certain state of things is a positive fact and nonexistence of it is a negative fact. Non availability of an alternate accommodation to a tenant is an instance of negative fact and it is not to be misread as an ‘absence of a fact’.

3. “Facts in issue” and “issue of Facts”

Now we will pass on to the meanings of “Facts in issue” and “Issue of Facts”

3.1 “Facts in issue”

The expression “facts in issue” as defined in S. 2 (g) of the Bharatiya Sakshya Adhiniyam 2023, (corresponding to Section 3 of the Evidence Act 1872) , 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.

To put it in different words, Facts in issue are those disputed facts which a party to a civil or criminal litigation must prove in order to succeed in his claim or defense or to show his entitlement to a relief (in a civil case) or to obtain a conviction (in a criminal case) or to have defense raised by the defendant or accused, as the case may be, upheld by the court.

In the above sense the words “Fact in issue” are employed /used in sections 3 to 7, 9, illustration (d) of section 19, section 30 and 37 of the the Bharatiya Sakshya Adhiniyam.

Illustration annexed to the provision enumerates the ‘facts in issue’ in a charge of committing murder which reads as:

  1. That A caused B’s death; (ie Actus Reus)
  2. That A intended to cause B’s death; (ie Mens Rea)
  3. That A had received grave and sudden provocation from B; (this relates to Explanation 1 to section 300 IPC -corresponding to Section 101 of Bharatiya Nyaya Sanhita)
  4. 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. (ie defence under Section 84 IPC – corresponding to Section 22 of Bharatiya Nyaya Sanhita)

In the above illustration it is discernible that the prosecution alleges that A committed murder of B. The accused ‘A’ raised following contentions in his defence (a) denial of causing death, (b) exception 1 to Section 300 IPC (S.101 of Bharatiya Nyaya Sanhita) ie the death was caused owing to grave and sudden provocation and (c) that the accused was suffering from insanity ie defence under section 84 IPC (Section 22 of the Bharatiya Nyaya Sanhita).

To succeed in the trial the prosecution has to prove its allegation and to get the benefit of his defence as to sudden provocation or insanity accused has to prove the facts constituting such grave provocation or insanity.

As per Section 3 of the of the Bhartiya Sakshya Adhiniyam (Corresponding to Section 5 of the Evidence Act, Evidence may be given only of Facts in Issue and Relevant facts.

(We will deal with the definition and meaning of ‘relevant’ in  module No. 3 )

3.2  “Issue of Facts”

Explanation to the definition of facts in issue reads as follows — “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”.

For instance, in a suit for recovery of money due under a promissory the defendant denies execution of the promissory note and also the passing of the consideration. In such a case the Court would frame issues (of fact) in the following lines.

  • Whether the defendant executed the Promissory Note in favour of the Plaintiff?
  • Whether the Promissory Note is not supported by consideration? (Here by virtue of the presumption u/s 118 of the Negotiable Instrument Act the burden is on the defendant to prove the absence of consideration)

The following are “fact in issue” in the said suit:

That, the defendant executed the Promissory Note in favour of the plaintiff.

That, the Promissory Note is supported by consideration.

In such a suit, to succeed, the Plaintiff must prove by adducing evidence that the defendant executed the Promissory Note.

When the Plaintiff proves the execution of the Promissory Note, the defendant will have the opportunity to prove that the Promissory Note was not supported by consideration and if he fails to do so, the Plaintiff will get a decree in his favour. If the defendant succeeds in proving that there was no consideration the suit will be dismissed on that ground.

4. “Proved” “Disproved” and “Not Proved”

Now, we will move on and have a look at the meanings of the terms “Proved” “Disproved” and “Not Proved”

We will also examine the meaning of the phrase “Matters before the Court”.

We will also see the difference in the required standards of proof between civil cases and criminal cases.

The duty of the Court is to ascertain the existence or non-existence of the disputed facts and to adjudicate upon the rights and liabilities of the parties. The Evidence Act governs the process of adducing evidence before a Court of law and the evaluation of such evidence and other matters which could be considered by the Court. As regards such evaluation/appreciation, the Evidence Act employs the terms “Proved” “Disproved” and “Not Proved”. The standard of evaluation is prescribed to be from the point of view of a ‘prudent man’.

The expression “Proved” is defined in Section 2 (j) of the Bhartiya Sakshya Adhiniyam (S.3 of Evidence Act) as under:

“Proved”–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 the particular case, to act upon the supposition that it exists.

The expression “Disproved” is defined in a similar way in Section 2 (c), except that the court’s belief or probability is that the disputed fact does not exist as under:

“Disproved”.–A fact is said to be disproved 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, under the circumstances of the particular case, to act upon the supposition that it does not exist.

“Not Proved” is defined in Section 2 (i) as under:

“Not proved” A fact is said not to be proved when it is neither proved nor disproved.

In, Krishna@Chandrakanth v State , reported in 2012 CriLJ 3374, a Division Bench of the High Court of Kerala, observed:

“The section theoretically contemplates two levels of satisfaction. The consideration of matters before it must induce in the mind of the Court either the satisfaction that it can believe the fact to exist or that it can, adopting the standards of a prudent man, consider its existence so probable as to proceed on the supposition that the fact exists….This is not to say that there is no overlapping at all. Both parts of the definition must substantially cover the same area. The Judge must also be a prudent person and before he believes a fact to exist or not to exist, he would certainly have considered the matters before him as a prudent person. It appears to us that the Legislature obviously wanted to recognize that the trained, experienced and qualified Judge can safely be attributed with something more than the mere faculties of a prudent person. To accommodate that additional faculty of the Judge – of his trained intuitions, (which every Judge is assumed or deemed to possess), it appears, that the two levels of satisfaction are specifically recognized in the expression “proved” and “disproved” in S.3 of the Evidence Act”

5. “Matters Before the Court”

Evidence is defined in the Evidence Act as follows: – “Evidence” means and includes–(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.

The definition of evidence in the Evidence Act refers only to oral evidence and documentary evidence.

The phrase used in the definitions of “Proved” “Disproved” is “Matters before the Court” and it is wider in import than the term ‘evidence’ and would include within its ambit in addition to ‘evidence’ all facts or aspects which could be legally considered by the Court. I shall refer some of the examples of such “Matters before the Court”, other than what is covered in the definition of Evidence in the Evidence Act/ Bhartiya Sakshya Adhiniyam:

  • Presumptions: –Law of evidence in certain circumstances allows the courts to draw certain inferences as to the existence of a fact when some other fact or facts are shown to exist and the party need not adduce evidence to prove such facts until the presumption is rebutted by the other side.
  • Facts of which judicial notice can be taken Under Section 51 of the Bhartiya Sakshya Adhiniyam (Section 57 of the Indian Evidence Act) (we will in another module deal in detail what all facts could be taken judicial notice of , by the Court).
  • Commissioner’s Report: – As per Order 26 Rule of the Civil Procedure Code, Commissioner’s Report forms part of the record.
  • Result of local investigations: – As per Section 347 of Bharatiya Nagarik Suraksha Sanhita 2023 (S. 310 of the Criminal Procedure Code, 1973) memorandum of local inspection prepared/recorded by the Judge shall form part of the case record.
  • Observations of demeanour: – As per Section 215 of the Bharatiya Nagarik Suraksha Sanhita 2023 (S. 280 of the Criminal Procedure Code, 1973) the Judge shall record remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.
  • Inspection of Material objects:- As per 2nd proviso to Section 55 of the Bharatiya Sakshya Adhiniyam ( 60 of the Indian Evidence Act)  oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
  • Statements/answers of the accused under section 351 the Bharatiya Nagarik Suraksha Sanhita 2023 (u/s 313 CrPC): – Such statements may be taken into consideration by the Court in such inquiry or trial.
  • Pleadings: – In civil cases the parties cannot adduce evidence with respect to matters which are not in their pleadings ie plaint and written statement.
  • Charge:- Generally, In criminal cases courts frame charge and the trial proceeds on the basis of such charge. Court will look into such charge as a ‘matter before it’

6. Difference in the required Standards of Proof between Civil Cases and Criminal Cases

Now let us evaluate the Difference in the required Standards of Proof between Civil Cases and Criminal Cases

The definitions and the general provisions in the Evidence Act apply equally to civil and criminal cases. The standard of proof is the degree or level of proof required in a specific case such as “beyond reasonable doubt” or “preponderance of probability”. It is a very well settled proposition of law that civil cases may be proved by a mere preponderance of probability while in criminal cases the prosecution must prove the charge beyond reasonable doubt.

To understand the difference in the Standards of Proof between Civil Cases and Criminal Cases, we shall go through some of the observations in this regard by English Judges and the Supreme Court of India:

The observations of Lord Denning in Bater v. Bater (reported in 1950 All England Law Reports 458 – Vol.2) are very relevant to understand the different levels of satisfaction insisted by the Courts as prudent men for the proof of facts under various circumstances, Lord Denning opines that:

“It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great Judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A Civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a Criminal Court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce Court should require a degree of probability which is proportionate to the subject matter.”

Agreeing with this statement of law, Hodson, LJ said

“Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” (Hornal v. Neuberger P. Ltd., 1956 (3) All ER 970, 977).

(See R.V.E Venkitachala Gounder v Arulmigu Vishveshvaraswami And V. P. Temple and Another, 2003 (8) SCC 752: AIR 2003 SC 4548 (R. C. Lahoti; Ashok Bhan, JJ.))

7. Doctrine of Reasonable Doubt in Criminal Cases

SIR WILLIAM SCOTT explained the term ‘reasonable doubt’ in Loveden v. Loveden as under:

The degree of probability which a reasonable and just man would require to come to a conclusion–and likewise the degree of doubt which would prevent him from coming to it–depends on the conclusion to which he is required to come. It would depend on whether it was a criminal case or a civil case, what the charge was, and what the consequences might be and if he was left in real and substantial doubt on the particular matter, he would hold the charge not to be established. He would not be satisfied about it.

What is a real and substantial doubt? It is only another way of saying a reasonable doubt, and a “reasonable doubt” is simply that degree of doubt which would prevent a reasonable and just man from coming to a conclusion. So the phrase “reasonable doubt” gets one no further. It does not say that the degree of probability must be as high as ninety – nine per cent, or as low as fifty – one per cent. The degree required must depend on the mind of the reasonable and just man who is considering the particular subject matter. In some cases fifty – one per cent would be enough, but not in others. When this is realised, the phrase “reasonable doubt” can be used just as aptly in a civil case or a divorce case as in a criminal case, and, indeed, it was so used by BUCKNILL, L.J., in Davis v. Davis and Gower v. Gower. The only difference is that, because of our high regard for the liberty of the individual, a doubt may be regarded as reasonable in the Criminal Courts which would not be so in the Civil Courts.”

In this regard, the Supreme Court observed as under in C.H Razil Ram v. J. S Chouhan and Others, (reported in AIR 1975 SC 667):

“It is true that there is no difference between the general rules of evidence in civil and criminal cases, and the definition of “proved” in S.3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainly amounting to demonstration is rarely to be had in the affairs of life, Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. ‘Proof’ means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance end judicial certitude is requisite for a conviction. The same is largely true about proof of a charge by a mere balance of probabilities and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt – not being the doubt of a timid, fickle or vacillating mind – to the veracity of the charge, it must hold the same as not proved.”

In C.H Razik Ram v. C.H Jaswant Singh , reported in AIR 1975 SC 667, the Supreme Court observed as follows:

“It is true that there is no difference between the general rules of evidence in civil end criminal cases, and the definition of “proved” in S.3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainly amounting to demonstration is rarely to be had in the affairs of life, Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. ‘Proof’ means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charged by a mere balance of probabilities and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt – not being the doubt of a timid, fickle or vacillating mind – to the veracity of the charge, it must hold the same as not proved.”

It is often said that the idea of “absolute certainty”, “perfect evidence” etc are alien to the law of “standard of proof” for in an imperfect world such standards are unattainable or unavailable.  Proof beyond reasonable doubt is not akin to absolute certainty of the guilt of the Accused.

8. The Doctrine of Proof beyond Reasonable Doubt Applies in the Inference of Guilt of the Accused Person and Not on all Primary facts – Proposition in G Agarwal v. State of Maharashtra

In M.G Agarwal v. State of Maharashtra AIR 1963 SC 200, a 5 judges Constitutional bench of the Supreme Court speaking through Justice Gajendragadkar, elucidated that the doctrine of benefit of doubt would apply only when dealing with the aspect of guilt of the accused and not in the appreciation of evidence in respect of the proof of basic or primary facts. In this regard the Court observed as under:

 “It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons’ conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved; the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.”

The illustrious Judge Justice U. L Bhat after an in-depth analysis of the subject has opined that “The element of “proof beyond reasonable doubt” is not comprised in the definition (in the Evidence Act). This element regarding proof of “facts in issue” in criminal cases, that is to say, guilt of the accused of the crime or offence was introduced by judges in England and India.”

(In page.27, Lectures on the Indian Evidence Act 1st edition, (Justice U.L Bhat))

In a trial of an accused for an offence punishable under section 118 of the Bharatiya Nyaya Sanhita (section of 326 I.P.C) by using a deadly weapon and defence is one of denial, the following are facts in issue:

  1. That accused caused grievous hurt to the victim
  2. That the hurt was caused using a deadly weapon
  3. That the hurt was caused “voluntarily”.

The above “facts in issue” constitute the essential elements of the above referred offence under section 118 of the Bharatiya Nyaya Sanhita (section 226 of IPC) and are the ‘Actus reus’ and ‘Mens rea’. No doubt these essential elements of crime are to be proved beyond reasonable doubt.

What we could discern from the 5 judges bench Judgment in M.G Agarwal v. State of Maharashtra AIR 1963 SC 200 is that the higher standard of proof beyond reasonable doubt is not required in regard to the proof of basic or primary facts, that is to say other admissible Relevant facts under Section 5 for instance any fact which shows or constitutes a motive or preparation for any fact in issue, the conduct previous or subsequent of the accused if such conduct influences or is influenced by any fact in issue which are relevant under Section 8 of the Evidence Act.

As stated above the Supreme Court in M.G Agarwal v. State of Maharashtra, enunciated the above proposition in the following words:

“In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not.”

But at the same time, the doctrine of ‘benefit of doubt’ and requirement of ‘proof beyond reasonable doubt’ will vigorously and uncompromisingly apply in the evaluation as to whether the proved facts lead to the inference of guilt of the accused person or not.

(For commentaries ob Reverse Burden and Statutory Presumptions in Special Criminal Statutes See Module 23 on Burden of Proof)

9. Proof of Mensrea

Now we shall briefly see how ‘mensrea’/guilty mind could be proved.

The maxim “Actus non facitreum nisi mens sit rea” embodies a very cardinal principle of law of crimes. It means “an act does not amount to crime unless it is done with a guilty mind”. In modern era certain statutes make certain acts offences irrespective of whether it is done with ‘mensrea’ or guilty mind. Often referred instances of such crimes are offences under the Food safety Act and offence of dishonor of cheques under the Negotiable Instruments Act.

The Offences under the Indian Penal Code generally require Mensrea or guilty mind.

The Indian Penal Code does not define or use the phrase ‘‘mensrea’. But every offence under the Code includes in it an element of guilty mind which are indicated by the words like voluntarily, intentionally, knowingly, dishonestly, fraudulently, rashly, negligently etc.

The above terms generally relate to mental conditions and are psychological facts. They are not subject to perception by bodily senses but they are subject of consciousness. They are incapable of rendering direct proof but have to be inferred from surrounding physical facts. For instance, in a case of murder the intention to kill of the assailant has to be inferred from the evidence of preparations made, the manner in which the killing was done like the weapons used, whether the blow was on the vital parts of the body etc etc.

Likewise in a case of negligent driving the way in which the driver drew the vehicle such as over speed, zig-zag manner of driving, wrong side driving etc will render proof of his negligence by the process of inference.

Fraud is rarely capable of being proved directly as it is basically a mental element. Generally, only circumstantial evidence will be available in proof of fraud and in overcoming the natural presumption of honesty.

In this context it may be noted that, facts showing state of mind is specifically made relevant under Section 12 of  the Bhartiya Sakshya Adhiniyam  (Section 14 of the Evidence Act).

Section 12 Reads as under:

10. Facts showing existence of state of mind, or of body, of bodily feeling

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant.

[Explanation 1.–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.– But where, upon the 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.]

 Illustrations.(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

[(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit.

The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant.

The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.]

(c) A sues B for damage done by a dog of B’s which B knew to be ferocious.

The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.

(d) The question is whether A, the acceptor of a bill of exchange, knew that the name of a payee was fictitious.

The fact 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.

(e) 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.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was 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.

(g) 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.

(h) 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 reason to believe, that the notice was given fraudulently by C, who had heard of 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.

 (i) A is charged with shooting at B with intent to kill him, In order to show A’s intent the fact of A’s having previously shot at B may be proved.

 (j) 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.

 (k) The question is, whether A has been guilty of cruelty towards B, his wife.

 Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts.

 (l) The question is whether A’s death was caused by poison.

 Statements made by A during his illness as to his symptoms are relevant facts.

 (m) The question is, what was the state of A’s health at the time when an assurance on his life was effected.

 Statements made by A as to the state of his health at or near the time in question are relevant facts.

 (n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that B’s attention was drawn on other occasions to the defect of that particular carriage is relevant.

The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.

(o) 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.

(p) A is tried for a crime.

The fact that he said something indicating an intention to commit that particular crime is relevant.

The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Define “fact”, “fact in issue”, and “issue of fact”.
  2. Distinguish “Physical fact” and Psychological fact.
  3. What is meant by “Proved” “Disproved” and “Not Proved”?
  4. Explain, the term “Matters before the court” in the Evidence Act.
  5. What is the difference in the standards of proof between civil cases and criminal cases?