Law of Evidence

By Nizam Azeez Sait.

MODULE No. 7

RELEVANCY UNDER SECTIONS 9 TO 14 OF THE BHARATIYA SAKSHYA ADHINIYAM (SECTIONS 11 TO 16 OF THE EVIDENCE ACT)

This is the 7th Module of the subject ‘Law of Evidence’, which deals with Sections 9 to 14 of the Bharatiya Sakshya Adhiniyam in Chapter II Part II titled “Of the Relevancy of Facts”, under the subheading ‘closely connected facts.

Here, in the 7th Module of the ‘Law of Evidence’, we shall take you through Sections 9 to 14 dealing with:

  1. Facts which are inconsistent / consistent with other relevant facts, in Section 9 (Section 11 of the Evidence Act),
  2. Enabling facts to determine damages in Section 10 (Section 12 of the Evidence Act)
  3. Facts relating to the existence of a right or custom in dispute in Section 11(Section 13 of the Evidence Act)
  4. Facts showing existence of state of mind, or body or bodily feeling in Section 12 (Section 14 of the Evidence Act)
  5. Facts bearing on question whether act was accidental or intentional in Section 13 (Section 15 of the Evidence Act)
  6. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact as per Section 14 (Section 16 of the Evidence Act)

MODULE INDEX

1.Facts Inconsistent / Consistent with Other Relevant Facts
1.1 Plea of alibi
1.2 Burden of Proof of Alibi
1.3 Inconsistency Between Medical Evidence and Ocular Evidence
1.4 Absence of Entries in the Account Books
1.5 Omissions in the First Information Statement
2. Facts That Enable Determination of the Amount of Damages Under Section 10
3. Facts Relevant When Right or Custom is in Issue (Section 11)

3.1 Scope and Ambit of Section 11(Section 13 of the Evidence Act)
3.2 Transactions which are not inter-partes are made Relevant
3.3. Mere Recital in a Document not a Claim or Assertion of Right
3.4 Examples of Transactions or Instances Covered by Section 11
3.5 Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11
4. Facts Which Show the Existence of State of Mind – Section 12 of the Bharatiya Sakshya Adhiniyam
4.1 Facts showing state of mind
4.2 Proof of State of Mind
4.3 Proof of state of body and bodily feeling
5. Facts bearing on question whether act was accidental or intentional Section 13 of the Bharatiya Sakshya Adhiniyam
6. Existence of course of business – Section 14 of the Bharatiya Sakshya Adhiniyam.

Now we will start with facts relevant under section 9 (Section 11 of the Evidence Act)

1. Facts Inconsistent / Consistent with Other Relevant Facts

The section reads as follows:

Facts not otherwise relevant 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 probable or improbable.

 Illustrations.

(a) The question is, whether A committed a crime at Chennai on a certain day. The fact that, on that day, A was at Ladakh 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.

The language of this section is apparently very wide. It makes fact which either proves or tends to disprove the claim in dispute relevant. But the section does not cover collateral or remote facts which have practically no connection with the main fact.

This provision is in the nature of a residuary provision with respect to the relevancy of facts contained in sections 4 to 8 and 10 to 50. As per this section, facts not covered under other sections in chapter 2 are relevant if they fall within clause (1) or clause (2) of this section.

According to John Henry Wigmore’s Treatise on Evidence (section 135 – 3rd Edition), five common examples of inconsistencies referred in clause (1) could be of the following nature:

  • Presence of accused in another place at the time of occurrence (alibi)
  • Absence of the husband (non-access) (at the relevant time) in a dispute about paternity,
  • That the person allegedly killed is really alive,
  • The commission of the crime by a third person,
  • The self-infliction of the harm by the injured himself.
a. Plea of alibi

Now we will have a look at the “plea of alibi”. Alibi is a Latin term which literally means ‘elsewhere’. In criminal cases sometimes the accused takes the plea that at the time of commission of the crime he was somewhere else and thereby having his involvement in the crime impossible.

b. Burden of Proof of Alibi

Section 106 (Section 103 of the Evidence Act) reads as under:

“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

 Illustration(a) to the section 106  reads as:

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

 Burden to prove the plea of alibi lies heavily on the accused who takes up such a plea.

In State of Maharashtra v. Narasingrao Gangaram Pimple, reported in AIR 1984 SC 63, the Supreme Court observed:

“It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.”

In Binay Kumar Singh and another v State of Bihar AIR 1997 SC 322, the Supreme Court speaking through Justice K.T Thomas, held as follows:

“The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”.

c.  Inconsistency Between Medical Evidence and Ocular Evidence

Sometimes cogent medical evidence can render the evidence of the eye witnesses improbable.

In State of M.P v. Surbhan, reported in AIR 1996 SC 3345, the Supreme Court upheld the acquittal based on the inconsistency between the eye witness version and medical evidence. The court observed as follows:

“A reading of the medical evidence clearly indicates that three incised wounds were inflicted upon the deceased, one on the nape of the neck, another on the left side of mandible and third on the left side of the elbow joint. In other words, there are three separate injuries inflicted upon the deceased, by three separate blows but PW 2 does not speak of the accused having inflicted those three injuries. Prosecution case is that the accused respondent had inflicted the injury only once and that too from behind. The single blow cannot cause three incised injuries of different dimensions at three different places. Under these circumstances, the High Court had not placed implicit reliance on the evidence of PW 2. If the evidence of PW 2 is excluded from consideration, we do not find any other evidence to support the prosecution case.”

(For more on Conflict between Ocular Expert Evidence refer Module 14)

d. Absence of Entries in the Account Books

Where the disputed fact is whether payment of a sum of money was made to a person, the absence of entries in the account books of the payee would be inconsistent with the receipt of the amount and hence is a relevant fact.

In State of Andhra Pradesh v. Cheemalapati Ganeswara reported in AIR 1963 SC 1850, the Supreme Court held as follows:

“There is S.11 of the Evidence Act (S. 9 of the new Act) which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities. These are relevant facts. Absence of entries in their account books would be inconsistent with the receipt of the amounts and would thus be a relevant fact which can be proved under S.11. The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the fines or who were in charge of the accounts of these firms. For the purpose of showing that no amounts were received by the ‘firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary.”

e. Omissions in the First Information Statement

Omissions of important facts in the FIR may affect the veracity of the prosecution case.

In Ram Kumar Pandey v. State of Madhya Pradesh, reported in AIR 1975 SC 1026, the Supreme Court accepted serious contradictions and significant omissions in the First Information Statement affecting the probabilities of the case as relevant under Section 9. The court observed as follows:

“No doubt an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under S.11 of the Evidence Act in judging the veracity of the prosecution case.”

2. Facts That Enable Determination of the Amount of Damages Under Section 10

Section 10 (Section 12 of the Evidence Act) reads as follows:

“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.”

The applicable Substantive law determines the circumstances under which damages can be claimed. Generally, damages are claimed in actions under contract or tort. When it is found that damages are awardable the question arises as to the fixing of the quantum of damages. In every suit for damages, the amount of damages is a fact in issue also. Factors mitigating or aggravating damages are relevant.

In a personal injury case, the percentage of disability caused, loss of income, medical expenses, pain and suffering etc would be factors in determining the damages.

3. Facts Relevant When Right or Custom is in Issue (Section 11)

Now we will move on to section 11(Section 13 of the Evidence Act), which reads as follows:

 Facts relevant when right or custom is in issue.-

“Where the question is as to the existence of any right or custom, the following facts are relevant:–

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence:

 (b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.”

 Illustration to the section reads as:

The question is whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.

This section makes relevant transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence and instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

Right

The term “right” referred in section 11 includes rights to ownership, possession, and every right known to law including incorporeal rights.  The section covers public and private rights.

Custom

Custom is a particular rule, which has existed from time immemorial and has obtained the force of law, in a particular locality or a society.

In Hindu succession Act 1956, Custom is defined as under:

“The expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and

Provided further that; in the case of a rule applicable only to a family it has not been discontinued by the family”

It is a fundamental proposition that for a custom to be valid it must not be immoral, or opposed to public policy or forbidden by any enacted law.

Custom referred in section 11 could be a family custom, a local custom, general/public custom, a special custom, a trade custom or usage.

 3.1 Scope and Ambit of Section 11 (Section 13 of the Evidence Act)

This section relates to cases in which existence of any custom or right is in issue. In such cases, as per clause (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence is relevant.  So also, as per clause (b) particular instances in which the right or custom was claimed recognized or exercised, or in which its exercise was disputed, asserted or departed from is relevant.

“Transaction by which” and “particular instances in which”

Clause (a) employs the phrase “Transaction by which” and clause (b) employs “particular instances in which”

A “transaction” is a group of acts so connected together as to be referred to by a single name as a crime, a wrong or a contract or any other subject of enquiry which may be in issue. Litigation between two persons is a transaction, though the plaint or written statement within the suit are not generally referred as a transaction. Instance of assertion or a claim could be through pleading that is plaint or written statement. Sale deeds and mortgage deeds are transactions and also be instances in which rights are asserted and recognised and therefore could be relevant under section 13. Likewise, a ‘Will’ is a transaction.

3.2 Transactions which are not inter-partes are made Relevant

The importance of the section is that it renders relevant transactions which are not inter-partes (parties to the suit), though, will not be binding on the opposite party nevertheless they are relevant.

3.3 Mere Recital in a Document not a Claim or Assertion of Right

A mere recital of a right in a document is not a “claim” or “assertion” of a right hence such a recital of a right in a document is not relevant under section 11. Such a mere recital is in the nature of gratuitous self-serving statement and is expressly made not provable and irrelevant under section 19 (section 21 of the Evidence Act). It is in the nature of an assertion as contemplated in section 11 only when the transaction concerned is itself entered into in exercise of that right for example such as transfer of interest in the property like mortgage or lease.

3.4 Examples of Transactions or Instances Covered by Section 11

Now Let us see some examples of transactions or instances covered by Section 11 and hence relevant

  1. In Harihar Prasad Singh v. Deo Narain Prasad, AIR 1956 SC 305, the Supreme Court held that the description in a mortgage deed by the mortgagor of the mortgaged land as belonging to him or in his possession is not an admission by the mortgagee, but is relevant under this section as containing an assertion of title.
  2. In Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah, reported in AIR 1976 SC 2403, the Supreme Court held that Previous Judicial determination of market value of similarly situated land is relevant in the assessment of market value under 11 and 13 of the Evidence Act ( Sections 9 and 11 of the Bharatiya Sakshya Adhiniyam).
  3. In Shrinivas Krishna Kango v. Narayan Devi Kango , reported in AIR 1954 SC 379 held that pleadings and judgments are relevant to show assertion of a right under section 13 of the Evidence Act ( Section 11 of the Bharatiya Sakshya Adhiniyam).
3.5 Conflict of Views on the Question of Admissibility of Judgments as Assertion of Right under section 11

Now we will examine the conflict of judicial views on the question of admissibility of Judgments as assertion of right under section 11 (Sections 13 of the Evidence Act).

Sections 34 to 38 (Sections 40 to 44 of the Evidence Act) deal with the relevancy of judgments:

Section 37 of the Evidence Act reads as follows:

“Judgments, orders or decrees, other than those mentioned in Ss.34, 35 and 36, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Adhiniyam.”

In Srinivas Krishna Rao Kango v. Narayan Devji Kango, reported in AIR 1954 SC 379AIR 1954 SC 379, a three judges bench of the Supreme Court held that the judgments are admissible under S. 13 of the Evidence Act ( Section 11 of the Bharatiya Sakshya Adhiniyam) as assertions and are recognised. It was held that such judgments are admissible as instances in which there was a claim and assertion that certain properties belong to joint family in a subsequent suit for partition for which very same properties are claimed as self – acquired properties.

In Sital Das v. Sant Ram, reported in AIR 1954 SC 606, a 4 judges bench reiterated the above view, in para 20, it is held thus:

“……But the judgment itself, we think, can be received in evidence under S. 13 of the Evidence Act (S 11 of the Bharatiya Sakshya Adhiniyam) as a transaction in which Kishore Das, from whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree…..”

Both the above decisions were considered and followed in Tirumala Tirupati Devasthanams v. K. M. Krishnaiah reported in AIR 1998 SC 1132 where similar question came up for consideration. The Court held thus:

“In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under S. 13 of the Evidence Act (S.11 of the Bharatiya Sakshya Adhiniyam) as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under S.40 to 44 of the Evidence Act ( Sections 34 to 38 of the Bharatiya Sakshya Adhiniyam were not admissible in evidence was expressly rejected. Again B. K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, AIR 1954 SC 606 held that a previous judgment not inter parties, was admissible in evidence under S. 13 of the Evidence Act ( S 11 of the Bharatiya Sakshya Adhiniyam) as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini 1902 ILR 29 Cal 190 (198) (PC) that a previous judgment, not inter parties was admissible in evidence under S. 13 (S 11 of the Bharatiya Sakshya Adhiniyam) to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh 1895 ILR 22 Cal 533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act 1931 p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ramsunder, reported in AIR 1934 PC 157 : 61 IA 286.”

But a contra view was taken by a three judges bench in State of Bihar v. Radha Krishna Singh, reported in AIR 1983 SC p.684. Wherein the court held as under:

“Some Courts have used S.13 ( S.11 of the Bharatiya Sakshya Adhiniyam) to prove the admissibility of a judgment as coming under the provisions of S. 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of Ss.40 to 42 ( Ss 34 to 36 of the Bharatiya Sakshya Adhiniyam,) it must fulfil the conditions of S. 43 ( S 37 of the Bharatiya Sakshya Adhiniyam), otherwise it cannot be relevant under S. 13 of the Evidence Act ( S11 of the Bharatiya Sakshya Adhiniyam,). The words “other provisions of this Act” cannot cover S. 13 ( S.11) because this section does not deal with judgments at all.

It is also well settled that a judgment in rem like judgments, passed in probate, insolvency, matrimonial or guardianship or other similar, proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and, therefore, they do not fulfil the conditions mentioned in S. 41 of the Evidence Act (S. 35 of the Bharatiya Sakshya Adhiniyam,).”

The above view in “Radha Krishna Singh” is ‘perincurium’ and not a binding precedent as it was rendered without noticing the earlier larger bench decision of 4 judges in Sital Das v. Sant Ram.

However, In, Parvathamma v  S Krishnoji Roa and Others AIR 2020 Kar. 55 Karnataka High Court held that:

“Reading of the judgments in Mahant Sital Das v. Sant Ram and others, AIR 1954 SC 606 and Shrinivas Krishnarao Kango v. Narayan Devji Kango and others, AIR 1954 SC 379, shows that in those cases though the judgments relied on were not inter – partes they were between the parties through whom the litigating parties claimed. Therefore, they are not applicable. Whereas the three Judges Bench of the Supreme Court in State of Bihar and others v. Sri. Radha Krishna Singh’s case (Air 1983 SC 684) relied upon by the first appellate court had the occasion to consider the mutual effect of S.13 and S.43 (S.11 and 37) of the Act and the effect of the judgments, which are not inter – partes. Examining all earlier case laws and the provisions of S.13 and S.43 of the Act (S.11 and 37) in the said case, the Hon’ble Supreme Court held as follows:

‘ 121. Some Courts have used S.13 (S 11) to prove the admissibility of a judgment as coming under the provisions of S.43 (S 37), referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the Court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of S.40 to 42 (34 to 36), it must fulfil the conditions of S.43 otherwise it cannot be relevant under S.13 of the Evidence Act (S.11). The words ‘other provisions of this Act’ cannot cover S.13 (S.11) because this section does not deal with judgments at all.”

(corresponding sections in the new Act are given within the brackets)

4. Facts Which Show the Existence of State of Mind – Section 12 of the Bharatiya Sakshya Adhiniyam.

Now we will move on to section 12 (Section 14 of the Evidence Act).

This section makes relevant facts which show the existence of state of mind when such state of mind is fact in issue or relevant.

The section also makes state of body or bodily feeling also relevant when such state of body or bodily feeling is fact in issue or a relevant.

Facts showing the state of mind may be of following nature:

Intention, knowledge, Good faith, Negligence, Rashness, Ill-will or Good-will.

As we have seen in a previous module facts could be:

  1. Physical facts or
  2. Psychological facts

This section generally relates to psychological facts.

Section 12 along with explanations and illustrations reads as follows:

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.

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 currency 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 currency is relevant. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit currency 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 fact 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 the 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 car 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 car is relevant. The fact that B was habitually negligent about the cars 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.

4.1. Facts showing state of mind

As we have seen section 12 (Section 14 of the Evidence Act) has two explanations and eleven illustrations which make clear the intent and purpose of the section.

By the first explanation to Section 12 a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists in reference to the particular matter in question.

The position can be understood with the help of illustration (P) to the provision which reads thus: “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.

The rejection of the “general fact” or “disposition” in the first explanation is on the basis that general collateral matters have only remote connection to the fact in issue and would be dangerous and risky to rely on that.

When an accused is tried for forging promissory note, evidence of his possession of other forged Promissory note or previous making of forged promissory notes in other cases will not be relevant in the case in hand. This evidence will only show a general disposition to commit such crimes but not the guilty mind to commit the particular offence under trial which has to be independently proved.

The second explanation reads as:

“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.”

This explanation represents a particular application of the general rule embodied in the section. It does not extend the scope of the provision. If in a given case previous commission of an offence is relevant, conviction in that case is also relevant.

In certain cases previous conviction may be relevant for enhanced punishment. Bad character of the accused is not relevant in a trial so previous conviction cannot be proved to show the character of the accused. Previous commission of the crime could be proved for the restricted purpose of establishing with what state of mind the accused has committed the act /crime in question. Section 15 is also relevant in this context.

State of person’s mind can be ascertained either by his own admission /confession or by presumptive inference from the surrounding physical facts. This section applies when the criminality of the act or the civil liability depends on the state of mind or the feeling of the person who did the act.

In Habeeb Mohammed v. State of Hydrabad reported in AIR 1954 SC 51, the charge was that as Subedar of Warangal within the State of Hyderabad the accused out of hatred towards a particular community ordered the policemen to open fire on the unarmed and inoffensive villagers causing death of 2 persons.

The Supreme Court held that he was entitled to adduce evidence to show that his behaviour towards members of that community throughout his career was good and he could not have attacked them as alleged. The court observed that such evidence was relevant under section 12 as showing his state of mind and also as evidence of good character under section 53 of the Evidence Act.

4.2 Proof of State of Mind

The Offences under the Indian Penal Code/Bharatiya Nayaya Sanhita generally require Mensrea or guilty mind.

The Indian Penal Code/ Bharatiya Nayaya Sanhita 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 motive, previous and subsequent conduct, 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.

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.   Negligence is the failure to exercise the care, which the circumstance demand.

Fraud / deceit 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.

Knowledge may be inferred from the fact that a person had reasonable means of knowledge or information. When can Notice/ Knowledge of a fact can be attributed to a person including actual knowledge and constructive is dealt with in section 3 of the Transfer of Property Act.

To prove guilty knowledge of an accused, that he committed similar offences is relevant.

Where the question is whether A voluntarily shot at B is relevant to show guilty mind, evidence that A previously or subsequently shot at B is relevant to show such state of guilty mind. But evidence that A killed or shot at other persons is not relevant.

In civil cases generally the state of mind of the Executors of conveyances and agreements and makers of Wills assume importance.

Facts showing state of mind is specifically made relevant under Section 12 (Section 14 of the Evidence Act).

As indicated in the section, the Facts showing the state of mind may be of following nature:

Intention, knowledge, Good faith, Negligence, Rashness, Ill-will or Good-will

Illustrations (a), (b), (c) and (d) relates to ‘knowledge’. Illustrations (e), (i), and (j) relates to ‘knowledge’, Illustrations (f), (g), and (h) to “good faith”, Illustration (n) to “negligence”, Illustrations (l), and (m) to “mental and bodily feeling, Illustrations (n) (o) and (p) relates to the application of the explanation.

4.3 Proof of state of body and bodily feeling

Whenever the state of person’s body or bodily feeling is in issue evidence can be given of every fact from which an inference can be drawn as to such state of body or bodily feeling. For the purpose of proving such facts the statement made by the person/party to the proceeding as to his state of body or bodily feeling can be proved. In view of the specific provision in section 12 the bar to self-serving statement in section 19 (Section 21 of the Evidence Act) is not applicable.

Illustrations (l), and (m) to section 12, relates to this aspect and the said illustrations reads as:

(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.

In the English Case, Aveson v. Lord Kinnaird, in a case for enforcement of Life Insurance policy of Plaintiff’s wife, the Insurance Company tendered in evidence proof of a statement made by the wife to a visitor immediately prior to the subscription of the policy to the effect that she was in a very bad state of health, the statement was held relevant as showing the state of body.

5. Facts bearing on question whether act was accidental or intentional Section 13 of the Bharatiya Sakshya Adhiniyam

Now we will move on to section 13 (Section 15 of the Evidence Act). The section along with illustrations reads as:

Facts bearing on question whether act was accidental or intentional.

When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The facts that A lived in several houses successively each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B. It is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether this false entry was accidental or intentional.

 The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit rupee.

The question is, whether the delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

When there is a question whether an act was accidental or intentional, [or done with a particular knowledge or intention,] the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

This section is an application of the principle underlying in the previous provision that is section 12 (Section 14 of the Evidence Act). In an anticipatory rebuttal of a defence of accident, mistake or such innocent condition of mind, evidence may be given to prove that the accused has been concerned in a systematic course of conduct of the same specific kind as that in question. This section must be read subject to Section 12 with respect to proof of knowledge and intention.

In Srinivas Mall v. Emperor, reported in AIR 1947 PC 135, on a charge of having sold an article at a price exceeding the controlled price, it has been held by the privy council that, the evidence of similar sales under forged challans/bills to other persons shortly before or after the period covered by the charge was held admissible to prove the guilty intention.

In Rama Warrier v. State of Kerala, reported in 1965 KLT 121, High Court of Kerala in a case for misappropriation, in reply to a contention that prejudice has been caused by the prosecution adducing evidence of other acts of misappropriation, held as under:

“Under S.15 of the Evidence Act ( S.13 of the Bharatiya Sakshya Adhiniyam) the prosecution may adduce evidence of criminal acts other than those charged without waiting for the accused to set up the specific defence calling for rebuttal and defence of similar acts to show intention. When the act in question forms part of a series of similar occurrence, evidence of similar facts is admissible to prove intention or knowledge of the person and to rebut the defence of accident, mistake, etc. The principle on which evidence of similar acts is admissible is not to show that because the accused has committed one crime, he would, therefore, be likely to commit another, but to establish the animus of the act, and rebut by anticipation, the defence of ignorance, accident, mistake or other innocent states of mind.”

In Gopinathan v. The State of Kerala reported in 1963 (2) CriLJ 92, in a case of misappropriation, the evidence regarding the non-entry in the banks accounts of other items by the accused was held to be admissible. The court said:

“It would throw a flood of light on the working of the mind of the first accused and would falsify the case put forward by him that the omission to enter was not because monies were misappropriated, but a pure accidental or inadvertent omission. No prejudice has, therefore, been caused by the admission of this evidence.”

6. Existence of course of business – Section 14 of the Bharatiya Sakshya Adhiniyam.

Now we will move on to Section 14, which along with illustrations reads as:

Existence of course of business when relevant.

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations (a) The question is, whether a particular letter was despatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant.

(b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

This provision makes relevant regular course of business when there is a dispute as to whether a particular act was done, which is generally done in the course of such business.

In this context we may refer to Section 119 (e) and (f) (section 114 (e) and (f) of Evidence Act) . As per section 119(e) the Court may presume:

“That judicial and official act have been regularly performed”

As per section 119(f) the Court may presume:

“That the common course of business has been followed in particular cases.”

Section 14 relates to Relevancy and evidence could be adduced of the existence of such regular course of business.

Section 119 relates to presumption of fact. The Court may presume that the common course of business has been followed in particular cases presumption

Presumptions under section 119 are permissive and not mandatory.

The expression “course of business” is not defined in the Evidence Act. It generally connotes regular, professional, usual course of doing a transaction. Section relates to public and private offices and course of businesses thereof.

The Supreme Court in Mst. L. M. S. Ummu Saleema v. B. B. Gujral and Another, reported in AIR 1981 SC 1191 has held that:

Neither Section 16 nor Section 114 of the Evidence Act (Section 14 nor 119 of the Bharatiya Sakshya Adhiniyam) compels the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand, the presumption may be drawn initially but on a consideration of the evidence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed.

In Mobarak Ali Ahmed v. State of Bombay, reported in AIR 1957 SC 857, the Supreme Court, observed:

“It is urged that the proof of mere posting of a letter is not presumptive evidence of the receipt thereof by the addressee unless there is also proof that the original has not been returned from the Dead Letter Office.

Illustration (b) to S.16 of the Indian Evidence Act, 1872, (S 14 of the Bharatiya Sakshya Adhiniyam) is relied on for the purpose and it is urged that a combination of the two facts is required to raise such a presumption. We are quite clear that the illustration only means that each one of these facts is relevant. It cannot be read as indicating that without a combination of these facts no presumption can arise. Indeed that section with the illustrations thereto has nothing to do with presumptions but only with relevance.”

In the matter of service of notice through registered post section 27 of the General Clauses Act is also significant. In C. C. Alavi Haji v. Palapetty Muhammed and Another, 2007 (6) SCC 555  the Supreme Court has reiterated that, S.27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.

A notice returned with endorsement ‘refused’ is presumed/ taken as validly served unless rebutted by evidence.

In Commissioner of Income Tax, Delhi v. Woodward Governor India Private Limited, reported in 2009 (13) SCC 1, the Supreme Court observed: –

“One more principle needs to be kept in mind. Accounts regularly maintained in the course of business are to be taken as correct unless there are strong and sufficient reasons to indicate that they are unreliable.”

Where it is shown that a document has been registered before and by a duly authorised Registrar under the Registration Act, all necessary endorsements and signatures found on the document and all necessary acts required for the completion of the registration could be presumed to be duly done and in order subject to strong evidence of fraud in rebuttal.

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. What is “Plea of alibi”? Comment on the burden of proof of “Plea of alibi”
  2. Discuss Relevancy under section 11 of the Bharatiya Sakshya Adhiniyam (S 13 of the Evidence Act). Comment on the admissibility of Judgments as assertion of right under section 11, in the light of decided cases.
  3. Discuss Relevancy of Facts showing state of mind