ACKNOWLEDGEMENT

It is my proud privilege to release the feelings of gratitude to several

persons who helped me directly or indirectly to complete this
assignment work. I express my heart full indebtness and owe a deep
sense of gratitude to my Professor Miss Shweta Chaturvedi , for her
sincere guidance and inspiration in completing this project.

I am extremely thankful to the Prof. R.P Rai Sir., Head & Dean,
Faculty of Law, Banaras Hindu University; Dr. C.P Upadhayay Sir.,
Course Coordinator B.A. LL.B. (Hons.) Course and all the other faculty
members for their kind cooperation and encouragement.

I also want to thank to my family and friends who have more or

less contributed to the preparation of this assignment work. I will be
always indebted to them.

The study has helped me to explore more knowledgeable avenues

related to my topic and I am sure that it will help me in future.

Thank You.

Aishwarya singh

B.A. LL.B. (Hons.)

6th Semester.
INDEX

SL.No. TOPIC Pg No.

1 Introduction
2 Section 5 of Indian Evidence Act
3 What is Fact?
4 What is Fact in issue?
5 What is Relevant Fact?
6 What is Relevancy?
7 What is Admissibility?
8 Difference between relevancy and
admissibility
9 What the facts relevant but not admissible?
10 What are the facts admissible but not
relevant?
11 Bibliography
INTRODUCTION

Evidence in legal and common parlance means proving a certain event/fact by

production of documentary or oral deposition, that is to say by making of oral
statements by persons who happened to have witnessed the occurrence of such
events and/or by producing documents in support of facts and pleadings. Simply
put, procuring evidence is the process of using everything that is helpful in arriving
at a reasoned judgment.
Evidence is a fundamental foundation of any juridical system. The Indian Law of
Evidence broadly describes evidence as (1) Relevant, which is concerned with
facts in an issue, in any proceeding. (2) Admissible, which after being found
relevant and also having passed the test of sufficiency, are capable of being
admitted in a judicial forum.

However, any evidence which though not connected with the fact in issue but is
otherwise relevant to prove the existence of something which is relevant to the fact
in the issue has to be deemed as relevant which in legal language is known as
circumstantial evidence

The expressions ‘relevancy’ and ‘admissibility’ are often taken to be synonymous.

But they are not the same. Their legal implications are different. All admissible
evidence is relevant but all relevant evidence is not admissible. Relevancy is the
genus of which admissibility is the species. While relevancy is based on logic,
admissibility only relies on lawful pertinence, i.e., whether a fact can be permitted
in court on the basis of the Evidence Act.

Naturally, relevancy must be established before admissibility can be dealt with or

we can say that relevancy is the first step and admissibility is the second step. For
the sake of brevity, courts only let in the facts which have a high degree of
probative value, affording clarity to the case.

Section 5 of The Indian Evidence Act, 1872

5. Evidence may be given of facts in issue and relevant facts.—Evidence may

be given in any suit or proceedings of the existence or non-existence of every fact
in issue and of such other facts as are hereinafter declared to be relevant, and of
no others.

Explanation.—This section shall not enable any person to give evidence of a fact
which he is disentitled to prove by any provision of the law for the time being in
force relating to Civil Procedure.

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of
causing his death. At A’s trial the following facts are in issue:— A’s beating B
with the club; A’s causing B’s death by such beating; A’s intention to cause B’s
death.

(b) A suitor does not bring with him, and have in readiness for production at the
first hearing of the case, a bond on which he relies. This section does not enable
him to produce the bond or prove its contents at a subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by the
Code of Civil Procedure.

Scope of this section: This section declares that in a suit or proceeding evidence
may be given of the existence or non existence of :

1.Facts in issue, and

2.Of such other facts as are declared to be relevant in the following sections
(sections 6 to 55).

Before going to further discussion in detail, we need to ascertain properly

what is fact, what is fact in issue and what is relevant fact.

What is ‘Fact’?
‘Fact’ means an existing thing, event or action. The event or fact which is likely to
occur in future and which neither occurred in the past nor is occurring at present,
do not amount to ‘fact’ within the meaning of I.E.Act.
As per I.E.Act, the fact is divided into two categories as following:-
1.Physical Facts (External facts) - (i) Any thing, state of things or relation of
things, capable of being perceived by the senses.
For example
a) A, a man, saw something, it is a fact
b) B, a woman, said some words, it is fact.
c) C, a man, is riding on a horse, it is a fact.
d) Some chairs are arranged in a certain order in a certain place, it is a fact.

2.Psychological facts (Internal facts) - Any Mental condition of which any

person is conscious.
For example-
a) A has a good reputation in his locality.
b) A fraudulently sold his car to B.
c) A has a bad opinion about B.
The feelings, opinions etc. can’t be perceived by the senses but can be felt by the
mind, so these are psychological facts.
Psychological facts can further be divided into two categories, namely, positive
facts and negative facts.
Positive or affirmative facts:- These facts are those facts whose existence are
positive or affirmative. For example,
a) A killed B. There are blood strains on the floor. There is a knife in the hand of
A.
b) Parliament of India is situated at New Delhi.

Negative facts:- These facts mean non-existence of positive facts. For example,
a) A and B are not seen together since last 30 days.
b) Nothing is heard from B.
c) No weapon is found in the house of A.

What is ‘Fact in issue’?

As per Sec.2 of Indian Evidence Act, the expression ‘fact in issue’ means and
includes-
Any fact from which -
(i) By itself or
(ii) In connection with other facts
the existence, non-existence, nature or extent of -
a) any right or
b) any liability or
c) any disability
whether asserted or denied in any suit or proceeding, necessarily follows.
Illustration:-
A is accused of the murder of B.
At his trial the following facts may be in issue:—
a) That A caused B’s death;
b) That A intended to cause B’s death;
c) That A had received grave and sudden provocation from B;
d) 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.

Fact in issue means the matters which are in dispute or which form the subject of
investigation.
When a case comes before the court, it is most important that the facts in
controversy should first be determined as because the evidence tendered must be
relevant and pertinent to the points in issue. Evidence of collateral facts which
have no connection with the principal transaction must be excluded.
Facts in issue are those facts which are-
a) alleged by one party and denied by the other in the pleadings in a civil case or
b) alleged by the prosecution and denied by the accused in a criminal case.

What is ‘Relevant fact’?

As per Sec.2 of Indian Evidence Act, One fact is said to be relevant to another
when one is connected with the other in any of the ways referred to in the
provisions of I.E.Act relating to relevancy of facts.
I.E.Act does not give any specific definition of ‘relevancy’ or ‘relevant fact’. It
simply describes when one fact becomes relevant to another fact.

Sec.5 to Sec.55 of Indian Evidence Act provides several ways in which one fact
may be connected with the other fact and therefrom the concept of relevant fact can
be meted out. One fact is relevant to another fact if they are connected with each
other in any of the ways as described in Sec.5 to Sec.55. If a fact is not so
connected, it is not a relevant fact.
All facts are relevant which are capable of affording any reasonable presumption
as to fact in issue or the principal matter in dispute.

What is Relevancy?

Sir Stephen opines that the ‘relevancy’ means connection of events as cause and
effect. According to Janab’s Key to Evidence, relevancy refers to the degree of
connection and probative value between a fact that is given in evidence and the
issue to be proved. Relevancy of facts had been provided from Section 5 to 55 of
Evidence Act 1950. A fact is relevant when it is so related to the fact in issue, that
they render the fact in issue probable or improbable. Relevancy means any fact
which is not fact in issue but connected to the fact in issue and its evidence may be
given. Relevancy is determined by logic and common sense, practical or human
experience, and knowledge of affairs.

Relevancy can be logical as well as legal. A fact is said to be logically relevant to

another -when it bears such casual relation with the other as to render probable the
existence or non-existence of the latter. All facts logically relevant are not,
however, legally relevant. The Act exhaustively enumerates the kinds of casual
connections which make a fact legally relevant to another. Hence relevancy under
the Act is not a question of pure logic but of law, as no fact, however logically
relevant, is receivable in evidence unless it is declared by the Act to be relevant.
Whatever is legally relevant is logically relevant but not vice-versa.

In R v. Richardson1 it was held that circumstantial evidence is the evidence of

relevant facts.

1
[1994] 1 S.C.R. 155
What is Admissibility?

Admissibility involves the process whereby the court determines whether the Law
of Evidence permits that relevant evidence to be received by the court. The
admissibility of evidence, depends first on the concept of relevancy of a
sufficiently high degree of probative value, and secondly, on the fact that the
evidence tendered does not infringe any of the exclusionary rules that may be
applicable to it. On the other hand, admissibility is the duty of the court to decide
whether an evidence should be received by the court according to Augustine Paul
JC in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim2. The
admissibility is the means and method of proving the relevant facts.

Admissibility also means that the facts which are relevant are only admissible by
the Court.

According to section 136 of the Indian Evidence Act, 1872, however, the final
discretion on the admissibility of evidence lies with the judge. Section 136 states
that:

“When either party proposes to give evidence of any fact, the Judge may ask the
party proposing to give the evidence in what manner the alleged fact, if proved,
would be relevant; and the Judge shall admit the evidence if he thinks that the fact,
if proved, would be relevant, and not otherwise. If the fact proposed to be proved is
one of which evidence is admissible only upon proof of some other fact, such last-
mentioned fact must be proved before evidence is given of the fact first- mentioned,
unless the party undertakes to give proof of such fact, and the Court is satisfied
with such undertaking. If the relevancy of one alleged fact depends upon another
alleged fact being first proved, the Judge may, in his discretion, either permit

2
CRIMINAL TRIALS NO 45–51 OF 1998 AND NO 45–26 OF 1999
evidence of the first fact to be given before the second fact is proved, or require
evidence to be given of the second fact before evidence is given of the first fact.” 3

“The essential ingredients of the above section are:

1. It is the judge who decides the questions of relevancy and admissibility.

2. When a party proposes to adduce evidence of any fact, the judge may ask the
party to clarify ‘in what manner’ the fact would be relevant.

Difference between Relevancy and Admissibility

Relevant means, that which is logical probative . Adimissibility is not based on

logic but on law and strict rules. Many facts having no bearing on the facts to be
proved are admissible. The rules of relevancy declare certain facts are relevant ,
rules of admissibility lay down as to whether a certain form of evidence about
relevant fact, may be allowed or excluded.

In the recent case of Ram Bihari Yadav v. State of Bihar4, the Supreme Court
observed that “More often the expressions ‘relevancy and admissibility’ are used
as synonyms but their legal implications are distinct and different because more
often than not facts which are relevant are not admissible; so also facts which are
admissible may not be relevant

Distinction between Relevancy and Admissibility

No.
Relevancy Admissibility

3
Law of Evidence 1872 s 136.
4
[1998] AIR 1859 (SC)
1) Relevancy is based on logic and Admissibility is not based on logic but on
probability strict rules of law.

2) The rules of relevancy are The rules of admissibility is described

described from Section 5 to after Section 56 of Evidence Act, 1872.
Section 55 of Evidence Act,
1872.

3) The rules of relevancy declare The rule of admissibility declares whether

what is relevant. certain type of relevant evidence are
admissible or are to be excluded.

4) Under Evidence Act the rules of Admissibility is means and of modes for
relevancy means where admissibility of relevant Evidence.
evidence are admissible.

5) The facts which are relevant The facts which are admissible are
may not be necessarily necessarily relevant.
admissible.
What are the Facts which are Relevant but not admissible?

In general, a relevant fact given in evidence under Section 5 to 55 is admissible in

the court. However, a relevant fact under Section 5 to 55 may not be admissible if
the other sections of the Act do not permit it to be received by the court.

1.Hearsay Evidence- Hearsay Evidence is generally excluded even though

relevant. For example, Siti saw that Ahmad had killed Vinnie with a knife.
Then Siti told what he saw to Amirul. Here, Amirul cannot become a witness as he
did not see the incident himself. The fact that Amirul heard
from Siti that Ahmad had murdered Vinnie with a knife is relevant as it is based on
logic and common sense. However, such evidence generally is not admissible in
the court as it is forbidden by the Law of Evidence. Section 60 stated that oral
evidence must be direct. The witness who testifies in court must be the person who
perceived the facts with his own sense.

2.Confession under section 245, 256 and 267 - For instance, a confession obtained
by any inducement, threats or promise is not admissible under Section 24. A
confession to the police officer below the rank in Inspector is not admissible
5
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession
made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the
Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain
any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.—A confession
made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the
Court to have been caused by any inducement, threat or promise,2 having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain
any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
6
25. Confession to police officer not to be proved.—No confession made to a police officer1, shall be proved as
against a person accused of any offence.—No confession made to a police officer1, shall be proved as against a
person accused of any offence."
7
26. Confession by accused while in custody of police not to be proved against him.—No confession made by any
person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate1,
shall be proved as against such person.—No confession made by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."
under Section 25. Confession by accused while in custody of police is also not
admissible under Section 26 even though it is logically relevant. For example
where the thief had already admitted to the police officer that he had stolen the
hand phone, such confession cannot be tendered as an evidence in the court and it
is not admissible in the court as it had been forbidden by Section 26 of Evidence
Act 1950. In the case of Eng Sin v. Public Prosecutor8, Gill J held that the
admission by the accused to a doctor that he had killed a man is not admissible as
he is still under the custody of a police officer.

3.Communication made by one spouse leally wedded to another-

Communication made by one spouse leally wedded to another though relevant but
not admissible in the court. Section 122 of Indian Evidence Act states
Communications during marriage.—No person who is or has been married,
shall be compelled to disclose any communication made to him during marriage by
any person to whom he is or has been married; nor shall he be permitted to disclose
any such communication, unless the person who made it, or his representative in
interest, consents, except in suits between married persons, or proceedings in
which one married person is prosecuted for any crime committed against the other.

4.Communication made between advocate and client under certain

circumstance- Communication made between advocate and client under certain
circumstance are the professional communication and though relevant are not
admissible. Section 126 of IEA talks about Professional communications.—No
barrister, attorney, pleader or vakil shall at any time be permitted, unless with his
client’s express consent, to disclose any communication made to him in the course
and for the purpose of his employment as such barrister, pleader, attorney or vakil,
by or on behalf of his client, or to state the contents or condition of any document

8
[1998] 2 S.L.R.(R.) 489
with which he has become acquainted in the course and for the purpose of his
professional employment, or to disclose any advice given by him to his client in
the course and for the purpose of such employment.

What are the Facts which are Admissible but not Relevant?

An irrelevant fact is not admissible in the court. However, in certain cases,

evidence, which is not relevant under Section 5 to 55 may nonetheless be
admissible.

1.The facts or questions permitted to be asked in cross examination to test the

veracity or impeach the credit of a witness- Evidence of character is not relevant
but as per section 155 of IEA though it is not relevant but for the beliefness of
witness in cross examination evidence of character is admissible. The same was
held in the case of Arjun Singh v. Hazara Singh.9

9
Air 1980 SCC 613.
BIBLIOGRAPHY