Prof.

Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Study Material
Law of Evidence- I
B.A.LL. B (HONS) V SEMESTER
Unit-2
RELEVANCY OF FACTS
Section 8; Motive, preparation and previous or subsequent conduct: Any fact is relevant
which shows or constitutes a motive or preparation for any issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference
to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and
the conduct of any person an offence against whom is the subject of any proceeding, is relevant,
conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1:
The word “conduct” in this section does not include statements, unless those statements
accompany and explain acts other than statements; but this explanation is not to affect the
relevancy of statements under any other section of this Act.
Explanation 2:
When the conduct of any person is relevant, any statement made to him or in his presence and
hearing, which affects such conduct, is relevant.
Illustrations:
(a) A is tried for the murder of B.
The facts that A murdered C, that В knew that A had murdered C, and that В had tried to extort
money from A by threatening to make his knowledge public, are relevant.
(b) A sues В upon a bond for the payment of money. В denies the making of the bond.
The fact that, at the time when the bond was alleged to be made, В required money for a
particular purpose is relevant.
(c) A is tried for the murder of В by poison.
The fact that, before the death of B, A procured poison similar to that which was administered
to B, is relevant.
(d) The question is, whether a certain document is the Will of A.
The facts that, not long before the date of the alleged Will, A made inquiry into matters to which
the provisions of the alleged Will relate, that he consulted vakils in reference to making the
Will, and that he caused drafts or other Wills to be prepared of which he did not approve, are
relevant.
(e) A is accused of a crime.

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
The facts that, either before or at the time of, or after the alleged crime, A provided evidence
which would tend to give to the facts of the case an appearance favourable to himself, or that
he destroyed or concealed evidence, or prevented the presence or procured the absence of
persons who might have been witnesses, or suborned persons to give false evidence respecting
it, are relevant.
(f) The question is, whether A robbed B.
The facts that, after В was robbed, С said in A’s presence—“the police are coming to look for
the man who robbed B,” and that immediately afterwards A ran away, are relevant.
(g) The question is, whether A owes В rupees 10,000.
The facts that A asked С to lend him money, and that D said to С in A’s presence and hearing—
“I advise you not to trust A, for he owes В 10,000 Rupees,” and that A went away without
making any answer, are relevant facts.
(h) The question is, whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was being made for
the criminal and the contents of the letter, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession
of property or the proceeds of property acquired by the crime, or attempted to conceal things
which were or might have been used in committing it, are relevant.
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been ravished is not relevant
as conduct under this section, though it may be relevant as a dying declaration under section
32, clause (1), or as corroborative evidence under section 157.
(k) The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
The fact that he said he had been robbed, without making any complaint, is not relevant, as
conduct under this section, though it may be relevant as a dying declaration under section 32,
clause (1), or as corroborative evidence under section 157.
Principle:
Section 8 deals with the relevancy of three principal facts, namely, motive, preparation and
conduct. According to this section the presence or absence of motive, evidence of preparation
and previous or subsequent conduct of the parties are relevant and are very important elements
in Civil and Criminal proceedings. Whereas Section 7 concerns with occasion, cause or effect
of opportunity, Section 8 has wider application. It lays down:

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
1. Fact which shows the motive or constitute motive.
2. Fact which shows preparation.
3. Fact which shows the previous or subsequent conduct of any party provided it is influenced
by the fact in issue or relevant fact.
4. Statements accompanying and explaining act are relevant (Explanation 1).
5. Statements made in the presence and hearing of a person whose conduct is in issue, are
relevant provided the statement affects such conduct (Explanation 2).
1. Motive:
A motive is that which moves a man to do a particular act. It is an inducement to do an act.
Motive is the reason or ground of an action. By motive is meant anything that can contribute
to, give birth to, or even to prevent, any kind of action. Motive in correct sense is the emotion
supposed to have led to the act.’ It is the emotion which impels a man to do particular act. In
other words, it is the feeling which prompts anyone to translate his will into an action. It is a
psychological fact that can be proved by conduct of a person.
There is hardly any act done without motive and, again adequacy of motive is not in all cases
necessary in doing an Act. The evidence of injured witnesses is to be accepted, presence of
motive is hardly relevant, where the evidence is found truthful, motive assume a secondary
role. Motive by itself is not a crime, but when crime is committed it becomes important. Feature
to mention motive in FIR cannot be the ground to acquit the accused.
Motive is relevant in all criminal cases whether based on testimony of eyewitness or
circumstantial evidence. It provides fundamental material. Absent of motive is not of much
consequences when chain of proved circumstances is complete. In respect of land dispute
murder was committed. Prosecution witnesses stated that Panchayati was held in the village
where the accused appellant and his brother did not attend, rather, they had given threat to kill
the deceased. No infirmity was pointed out in the evidence. Motive for communication of
murder stands proven. In Swarup Singh v State of Punjab the evidence proved the participation
of accused. In view of the aforesaid evidence it would not be necessary to prove motive on part
of the appellant. It was held that the connection of the accused was proper.
Hence, “motive is the emotion which impels to do particular Act, such impelling cause need
not necessarily be proportionately grave to do grave crimes, the mere fact that prosecution
failed to translate that mental disposition of accused into evidence does not mean that no such
mental condition existed in the mind of assailants.”
Difference between motive and intention:
In ordinary sense the motive and intention are used interchangeably. In law they have different
meanings and the motive should not be confused with intention. Motive is the reason of an
action whereas intention is the volition or active desire to do an act. Intention is an operation
of the will directing a man to do an overt act, but motive is an emotion prompting the operation
of the will. For instance, if A kills B, the intention is the state of mind which causes death, the
motive is the object which a person had in view viz. satisfaction, vengeance and the like.
Motive is not the basis of criminality.

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
The criminal law only takes into account man’s intention. Motive is something which prompts
a man to form an intention. In criminal trial, in absence of direct evidence, the evidence of
Motive becomes important when there is only circumstantial evidence, whereas burden lies
upon the prosecution to prove guilty intention where the intention is expressly stated.
Consistent statements of prosecution witnesses proved that land dispute was going on between
appellant and deceased. They further stated that Panchayati was also held in the village which
was not attended by appellant and his brother rather they had given out threats to kill the
deceased ‘No infirmity was pointed out in their evidence. Motive for communication of murder
stands proven. There was clear and convincing ocular evidence and the role of the accused
persons in the crime was clearly established; failure to offer proof of motive was immaterial.
Relevancy of motive:
Under section 8 of the Evidence Act motive may be relevant when a case depends upon the
circumstantial evidence. In a case based on circumstantial evidence motive assumes a great
significance as its existence is an enlightening factor in the process of presumptive reasoning.
Evidence of incidents took place sometime ago are relevant. Evidence of injured witnesses is
to be accepted presence of motive is hardly relevant.
Illustration:
A sues В upon a bond for the payment of money. В denied the making of the Bond. The fact
is that at the time when the bond was alleged to be made, В required money for particular
purpose is relevant
Adequacy of motive:
It is very difficult to prove motive. There are crimes which are committed with a slightest
motive. It is not essential to prove motive when any heinous crime is committed. When
offences are committed by habitual criminal or immoral person adequacy of motive is of little
importance. Sometimes, the pleasure and adventure might be the reasons of motive. It can be
said that there cannot be one rule for every case as regards adequacy of motive. The adequacy
of motive to commit a crime depends upon the character of a man. However, if the prosecution
case is proved by cogent evidence the motive is immaterial. Evidence of motive is important
when ocular evidence is suspect.
Proof of motive:
As stated earlier the motive by itself is no crime, but evidence of motive is always relevant.
Proof of motive is not essential when direct evidence establishes crime. Evidence of motive
helps the court to find out the guilt of the accused, particularly in view of circumstantial
evidences the question of motive has been vital. This proof of motive leads support when the
positive evidence is “clear, cogent and reliable.” Proof of motive or inducement for the
commission of the offence is not necessary when there is clear evidence that a person has
committed an offence. Similarly, where an eye-witness account of the happening of a fact is so
clear and truthful that it establishes the connection of the person accused as the perpetration of
that fact, the evidence of motive puts into insignificance. When a new story was introduced
which was averse to the prosecution case, it created doubt about motive for the crime. Benefit
of doubt was given to the accused. Thus, a motive may not always prove the guilt of the
accused.

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Police constables allegedly committed offences of house-breaking by night and murdered of
deceased. Evidence of eye-witnesses including injured witness proved participation of accused.
In view of aforesaid evidence, it would not be necessary to prove motive on part of appellant.
Conviction of accused is proper.
2. Preparation:
Preparation is an inchoate Act. It means an arrangement, measures or design necessary for
commission of a crime or certain thing. Preparation by itself is not a crime except preparation
to wage war against the Government of India, preparation to commit dacoity and sedition.
Section 8 of the Evidence Act provides that the acts of preparation are relevant. Any fact that
shows that the preparation was being made for fact in issue or for any relevant fact, is relevant.
Once an offence has been committed, evidence in support of preparation produced becomes
very important. However, preparation and attempt are different. An attempt is direct active
towards the commission open act after preparation.
Where the question is whether A has committed an offence, the fact of his having procured
instruments used in its commission, is relevant. For example, A was indicted for murdering В
by poisoning him. It appears that shortly before murder A purchased poison. Thus, purchasing
poison being a preparation is relevant. Illustrations (c) and (d) refer to preparation. Preparation
includes to accomplish crime, to help in escaping, to prevent discovery etc. Evidence tending
to show that the accused made preparation to commit a crime is relevant and admissible.
Premeditated crime must necessarily be preceded by preparation. Absence of evidence of any
preliminary measure leads to presumption of innocence.
3. Conduct:
Conduct is the expression in outward behaviour of the quality or condition operating to produce
those effect. It is conscious attitude adjusted for doing an Act or series of Acts. The second
paragraph of the Section 8 makes the conduct of a person relevant when such person is a party
to a suit or proceeding or such conduct is referred to the facts in issue. A man’s conduct includes
what he does and what he omits to do. The conduct of the accused on being questioned
immediately after taking bribe is relevant.
The evidence of conduct of the party is to relevant: (i) in reference to the fact in issue or relevant
facts; (ii) that the conduct is such as influences or is influenced by the facts in issue or the
relevant facts.
(i) When evidence of conduct itself is fact in issue the Supreme Court held that his conduct
would be relevant to support or rebut his case. In this case the wife was pregnant at the time of
her marriage and the husband alleged that she had concealed it from him. The conduct of a man
is admissible only against him. The conduct of one accused is not relevant against a co accused.
When the conduct of a person is in question, the statements, oral or written, made to him or in
his presence or hearing which affect such conduct are relevant. Example – Illustrations (f), (g),
(h).
(ii) Secondly, conduct influences or is influenced by the fact in issue. In Queen Empress v
Abdullah, the question was whether the signs made by the deceased could be admitted as the
conduct and a dying declaration. It was decided that the signs made by the deceased can be
taken into consideration along with the questions put to her. The signs alone cannot be admitted

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
by way of conduct under sections 8 and 9 of the Act. Thus, conduct of the injured person is not
always relevant. According to Wig more a man’s conduct is always influenced by what he has
been doing before or after the act. The accused is charged with strangulating the victim; his
conduct is producing a watch of the victim before the police from his house is admissible.
Previous and subsequent conduct
Previous conduct:
A conduct to be relevant need not be only previous or subsequent. Both are relevant. Under
section 8 previous declaration of intention, threat or attempts to commit an offence are
instances of previous or antecedent Conduct and are relevant. In antecedent conduct there is
declaration of intention or threat. Such type of conduct may influence or is likely to influence
the fact in issue or any relevant fact.
A woman and her paramour were accused of murdering her husband. She had been heard to
say of her husband. “I live a most unhappy life with him. I wish his death. If he cannot die, I
will kill myself.” It is relevant.
Subsequent conduct:
Subsequent conduct of a party or person or his agent is relevant under the section. Sudden
change of life, silence on part of the accused, false statement, suppression of evidence, running
away after occurrence are instances of subsequent conduct. Illustrations (f), (h) and (i) explain
the same. Presence of accused at a place where ransom demanded was to be fulfilled and then
action of fleeing on spotting the police party is a relevant circumstance and is admissible under
this section.
Subsequent conduct in civil cases:
The following are instances of subsequent conduct in civil cases: (i) Failure to produce
evidence, (ii) Party’s failing to appear, (iii) destruction or non-production of document (iv)
conduct regarding document (v) sale or mortgage (vi) family settlement, (vii) partition and
(viii) adoption.
Current conduct:
Besides previous and subsequent conduct, the current or contemporaneous conduct is also
relevant under section 8. The conduct of a party interested in a proceeding at the time when the
facts occurred, out of which the proceeding arises is relevant. In terrorist attack in parliament
the accused has purchased ingredients from a shop used IED S and found in possession of
deceased terrorists. The name of the shop and address were already known to the police as
name and address of the shop was already mentioned on packets seized. It was held that the
conduct of accused in pointing shop and its properties was relevant under this section.
Statement explaining conduct:
Mere statement is not admissible according to Explanation 1 to Section 8. It lays down that the
conduct does not include statements. But the explanation is an exception to this rule. “The
statement and the Act which are explained and accompanied by such a statement both are
relevant as a composite whole.” Those statements which accompany and explain acts, other
than statements can be regarded as conduct.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
For example, a girl was raped and she made a complaint about it to her mother. The
circumstances under which and the terms in which the complaint was made, is relevant. It is
not necessary that a complaint to be relevant should have been made only to police station.
–
But false explanation of the accused is also conduct and relevant.
Similarly, the accused was charged with gross indecency with a boy of fifteen. Shortly after
the offence a complaint was made by the boy to his parents. The particulars of the complaint
were held to be relevant.
A distinction can be drawn between complaint and a statement. The evidence of complaint is
always allowed, but a statement is allowed in special circumstances, particularly when it is part
of res gestae.
First information report:
If the first information report is non-confessional statement, then the contents of it is relevant.
The fact of giving information by the accused is relevant against him as his conduct under
section 8 of the Act. Confessional Part of the F.I.R. of the accused is not admissible except to
the extent permissible under section 27 of the Evidence Act. But non-confessional part of the
F.I.R. can be used against the accused as evidence of conduct under section 8 of the Act.
Statements of third person affecting the conduct of a party to a proceeding. Explanation 2 states
that the statement of third person made to the accused, whose conduct is relevant, in his
presence and before the court is admissible if it affects his conduct. Illustrations (f), (g) and (h)
appended to Section 8 are relevant to Explanation. The statement of the investigating officer
revealed that the accused had been taken to ‘G’ who pointed out the accused. The statement of
G’ to that extent was relevant.
Facts reflecting upon common Intention (Sec.10)
Section 10, Things said or done by conspirator in reference to common design: Where
there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the persons believed to so
conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it.
Illustration:
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against
the Government of India.
The facts that В procured arms in Europe for the purpose of the conspiracy, С collected money
in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E
published writings advocating the object in view at Agra, and F transmitted from Delhi to G
at Kabul the money which С had collected at Calcutta, and the contents of a letter written by
H giving an account of the conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of
them, and although the persons by whom they were done were strangers to him, and although
they may have taken place before he joined the conspiracy or after he left it.

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Conspiracy:
Section 10 deals with the admissibility of evidence in a conspiracy case. It is based on the
“theory of implied agency.” The special feature of the section is that anything said or done or
written by any member of conspiracy is evidence and admissible against the other if it relates
to the conspiracy. This section has to be read with Section 120A of the Indian Penal Code.
When any conspirator has assumed to do any act of conspiracy in furtherance of common
design, it is a part of res gestae. All conspirators must have “common intention” at the time
when the thing was said, done or written. Confessions by accused made after the object of the
conspiracy is carried out are not relevant as the common intention was not then existing.
The first condition for applying Section 10 is that the conspirators have conspired together.
The conspiracy is, therefore, an unlawful combination of two or more persons to do an unlawful
act or a lawful act by unlawful means. There must be reasonable ground to believe that two or
more persons have conspired together to commit an offence. However, a conspiracy is not
actionable act giving rise to cause of action.
Ingredients:
(1) There must be an agreement between two or more persons who are alleged to conspire,
and
(2) The agreement should be to do or cause to be done:
(i) An illegal act, or
(ii) An act which is not illegal but by illegal means.
Test of conspiracy:
The conspiracy is an inchoate crime. The gist of it is bare engagement and association of
persons to break the law in furtherance of common object. The conspiracy itself is not an
ingredient of an offence that all parties have agreed to do a single act, rather, in course of
carrying out the conspiracy, the commission of a number of illegal acts is done to that effect.
The law does not take notice of the intention or state of mind of the offender and there must be
some overt act to give expression to the intention. The test is to establish: (i) there is reasonable
ground to believe that a conspiracy existed, and (ii) such act was done and the statement made
or writing exchanged between conspirators. Thus, “before bringing on record anything said,
done or written by an alleged conspirator the court has to bring on record some evidence which
prima facie proves the existence of the conspiracy.” All acts and statements of a conspirator
can only be used for the purpose of proving the existence of the conspiracy or that a particular
person was a party to it. It cannot be used in favour of the other party or for the purpose of
showing that such a person was not a party to conspiracy. The common concern and agreement
which constitute the conspiracy serve to unify the acts done in pursuance of it.
Relevancy of conspiracy:
This has been the rule of conspiracy under section 10 that anything said, done or written by
any one of the conspirators against each other is believed to be cons-pirating and is relevant.
Once there was sufficient material to reasonably believe that there was concert and connection
between persons charged with common design, it is immaterial as to whether they were

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
strangers to each other, or ignorant of actual role of each of them, or that they did not perform
any one or more such acts by joint efforts.
The question is whether the statements made or act done by others before the accused joined
the conspiracy is relevant or not. According to the expression “in reference to their common
intention” the statement made or act done by other is a relevant fact and is admissible. In
Ghulam Din Bitch v State of J. & K. it was held that in a trial of government employees who
were carriage contractors, when there is a finding that there was a close relationship between
the carriage contractors and the government employees who had acted in consent, absence of
a charge of conspiracy between the two was not material.
The statements by one conspirator to another during the period of conspiracy relating to the
implementation of that conspiracy and the evidence as to the acts done by him disclosing
participation of the other conspirator are relevant. Retracted confession of a co-accused unless
corroborated by any evidence circumstantial or otherwise which can connect the accused with
the crime, can be basis for conviction of the accused.
But any statement or act made or done after the conspiracy is a very different matter. Once it
is shown that a person is out of conspiracy and statement made to the police officer during
post-arrest period, whether such statement is a confession or otherwise touching his
involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence
Act. The burden of proving the commission of offence by the accused remains on the
prosecution and would not be lessened by the mere fact that the accused had pleaded alibi.
In State of Gujarat v Mohammed Atik the Supreme Court held that any statement by an accused
after arrest, whether a confession or otherwise, had not to fall within the ambit of this section.
Confession was made by the accused after common intention of parties was no longer in
existence, Section 10 cannot be invoked against co-accused.
Principles of Conspiracy:
The essence of Section 10 lies within the expression “common intention.” The words “common
intention” signify a common intention existing at the time when the thing said, was or written
by one of them.2 Any narrative, or statement or confession made to a third party after the
common intention or conspiracy was no longer operating and had ceased to exist is not
admissible against the other party. Therefore, the statement of woman to the Magistrate was
not admissible, as the conspiracy was already completed.” This principle was approved by the
Supreme Court in Sardul Singh v State of Bombay where it held that “principle underlying the
reception of evidence under section 10 of the Evidence Act, the statements, Acts, and writing
of one co-conspirator as against the other is on the theory of agency.” The ‘theory of agency’
has also been referred to by the Supreme Court in Badri Rai v State of Bihar where it stated
that the offering of bribe along with the statement was admissible not only against the first
appellant but also against the second appellant on the basis of “theory of agency” in pursuance
of the object of the conspiracy. It is a principle of common sense that one person alone can
never be held guilty of criminal conspiracy for the simple reason that he cannot conspire. The
House of Lords in the famous case of Mulcahy v R. made the following observation:
“A conspiracy consists not merely in the intention of two or more but in the agreement of two
or more to do an unlawful act by unlawful means. So long as such a design rests in intention
only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself

SFA
Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
and the act of each of the parties promise against promise actus contra actum capable of being
enforced it lawful, punishable if for a criminal object or for the use of criminal means.”
The application of the doctrine laid down in Section 10 is strictly based on “reasonable ground”
that two or more persons have conspired together to commit an offence. “Once reasonable
ground, to believe that several persons have conspired to commit an offence, exists, the acts
and declarations of a particular person in reference to the common intention are relevant facts
although that person may not so much as even to know of the existence of many others engaged
in the conspiracy or where utter strangers to him.” Regard must also be had to the limits within
which this class of evidence can be used. There must be reasonable ground to believe that two
or more persons have conspired together to commit an offence. When confession was made by
the accused after common intention of the parties was no longer in existence Section 10 cannot
be invoked against co-accused.
Facts not otherwise relevant when become relevant (Sec.11)
Section 11, When facts not otherwise relevant become relevant: Facts not otherwise
relevant are relevant—
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) 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 Calcutta on a certain day.
The fact that, on that day, A was at Lahore 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 circumstance is such that the crime must have been committed either by А, В, С or D,
every fact which shows that the crime could have been committed by either В, С or D, is
relevant.
Scope:
Section 11 of the Evidence Act is very wide in its application and it does not impose any
restriction on facts that can be admitted even these facts are highly inconsistent or improbable
with fact in issue or relevant fact. The facts which ordinarily tend to render the existence of
fact in issue or relevant fact probable or improbable are relevant. But, under this section there
are collateral facts which by way of contraction, inconsistent with the fact in issue or relevant
fact are also relevant. It is only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant. The section is described as
“residuary section” dealing with relevancy of facts which are logically admissible.
Example:

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
A has written a defamatory statement against B. This is a fact.
A is illiterate, this is another fact. Both the facts are inconsistent but both facts are relevant and
admissible.
Nature of facts:
The Section 11 consists of two clauses, viz.,
1. Facts in consistent with fact in issue or relevant fact, and
2. Facts highly probable or improbable.
1. Facts inconsistent with fact in issue or relevant fact:
One fact is inconsistent with the other when it cannot co-exist with the other. Under this clause
facts are relevant only because they cannot co-exist with fact in issue or relevant fact. Above
example shows that A is illiterate. A cannot write a defamatory letter to B. These two facts
cannot co-exist. “The usual theory of essential inconsistency is that a certain fact cannot co-
exist with the doing of the act in question, and, therefore, that if that fact is true of a person of
whom the fact is alleged, it is impossible that he should have done the act.”
Under the clause there are at least six classes of cases which show inconsistency, viz.;
(a) Alibi:
Alibi is a Latin word, which means elsewhere. It is used when the accused takes the plea that
when the occurrence took place he was elsewhere. In such a situation the prosecution has to
discharge the burden satisfactorily. Once the prosecution is successful in discharging the
burden it is incumbent on the accused who takes the place of alibi to prove it with absolute
certainly. An alibi is not an exception envisaged in the IPC or any other law. It is a rule of
evidence recognized by Section 11 of the Evidence Act that facts inconsistent with fact in issue
are relevant [Illustration (a)]. However, it cannot be the sole link or sole circumstance to bare
conviction. When one fact is necessary to the hypothesis of the guilt of the accused, but
strikingly absent in the chain of circumstantial evidence, the prosecution case certainly will
fail. Because, an alibi the relevancy of which is totally inconsistence with hypothesis that the
accused had committed an offence.
When the accused took the plea of alibi the burden of proof lies on him under section 103 of
this Act. If a person is charged with murder, he is to prove that he was elsewhere. The plea of
alibi has to be taken at the earliest opportunity and it has to be proved to the satisfaction of the
court. When an accused was discharged from hospital situated 180 km. away from the place of
occurrence.
11/2 hrs. earlier from time of occurrence the plea of alibi was established. Strict proof is required
for establishing the plea of alibi. The plea of alibi must be proved with absolute certainty as
said in Rajesh Kumar v Dharamin. Plea of alibi was rejected when no material showing that
accused was present in jail for purpose of identification at point of time when occurrence took
place.
The plea of alibi taken by the party on the basis of certificate issued by a hospital not filed at
the stage of filing objections but during course of agreements in execution proceedings being

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
an afterthought was found not tenable and rejected’ while weighing the prosecution case and
defence case, if the prosecution case fails the accused would be entitled to benefit of the
reasonable doubt which would emerge in the mind of the Court.
(b) Non access of husband to show illegitimacy of the child:
Since legitimacy of the child implies a cohabitation between husband and wife. For disproving
the legitimacy, the husband has to prove that he had no cohabitation with his wife during the
probable time of begetting as he was in abroad.
(c) Survival of the alleged deceased:
A is accused of murdering В on 10th August 1996 at Delhi. But A tried to prove and led
evidence to show that В was alive on 25th December 2004. Both the facts are relevant under
section 11 only because these are not consisting with each other.
(d) Commission of an offence by a third person:
A is charged with the murder of B. A leads evidence that В was murdered by C. This is
admissible being inconsistent with fact in issue.
(e) Self-infliction of harm:
A is charged with the murder of B. A proves that В had committed suicide. The evidence is
admissible.
(f) Non-execution of document:
A file a suit for recovery of possession against В alleging that he has purchased the land. В
leads evidence that the deed of sale was not executed as yet. The fact is relevant.
2. Facts highly probable and improbable:
Under the second clause the fact which by itself or in combination with other facts make the
existence and nonexistence of the fact in issue or relevant fact highly probable or improbable.
The words “highly probable” indicate that the court has to go by the prohibits of the
circumstances as regards the existence or non-existence of fact in issue or relevant fact. It also
indicates that the connection between the facts in issue and the collateral facts sought to be
proved must be immediate as to render the co-existence of the two highly probable. The
collateral facts can be admitted in evidence if they make the existence of the fact in issue highly
probable or improbable.
It is well settled that it is not a mere reasonable probability but carries great weight in bringing
the court to conclusion whether facts exist or non-exist. In order to make a collateral fact
admissible, the collateral facts must be established by conclusive evidence and when
established these must afford a reasonable presumption as to matter in dispute. When a person
is charged with forging a particular document, evidence is afforded to prove that a number of
documents apparently forged or held in readiness for the purpose of forgery were found in
possession of the accused. It can be said as per Reg. v Prabhudas that in a charge of forgery,
the evidence offered to prove that a number of documents apparently forged or held in readiness
for the purpose of forgery found in possession of the accused is not admissible. This section

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
renders inadmissible the evidence of one crime to prove the existence of another unconnected
crime, even though it is cogent.
Facts showing state of mind, or of body or bodily feeling (Sec.14)
Section14. Facts showing existence of state of mind, or of body or 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. 2[(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 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

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
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 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 affected. 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.
Scope
This section is applicable in cases where the offence alleged to have been committed by the
accused is culpable on the basis of the state of mind or feeling of the accused. This includes
offences such as slander, false imprisonment, etc. in which malice is the primary requirement
for culpability. However, the applicability of the section must not be extended to those cases
which are supposed to be decided upon actual facts and not any state of mind or bodily feeling.
For instance, in order to prove that a man has committed an offence such as that of theft on one
occasion, the fact that he committed similar offences on other occasions is not relevant.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
(Empress v. M.J. Vyapoory Moodeliar, (1881) 6 Cal 655, 659, 660; Gandhi v. The King, (1941)
Ran 566.)
In Sardul Singh Caveeshar v. State of Bombay, the Supreme Court held that the acts,
writings and statements of an individual co-conspirator may be used by the prosecution under
this section to rebut a probable defence that the participation of the co-conspirator was
innocent. Thus, the section may also be invoked when the state of mind has not become a fact
in issue or relevant fact but there is high probability of it being such a fact in the course of the
proceedings of the case.
Specific state of mind
Per Explanation 1 to the section, the evidence must be pertaining to the specific state of mind
that pertains to the case at hand and not that of general reputation. Thus, anything that has a
distinct and immediate connection to the case at hand is admissible. [ Emperor v. Debendra
Prasad, (1909) 36 Cal 573.] In R v. B, [4] the accused was convicted of assaulting his
grandsons on the basis of pornographic magazines found in his possession and his sexual
proclivities. The subsequent appeal filed by him was allowed and the Court observed that the
evidence of pornographic magazines and the subsequent cross-examination of the accused
showed a mere tendency and had no probative value due to which it should not have been
admitted as evidence in the first place.
Previous Convictions
Per Explanation 2 to the section, in a case where the previous commission of an offence is
relevant, the fact that the accused was previously convicted for the said offence would be
relevant under the section. However, the question of previous convictions being used in
subsequent cases is often debated under various provisions of the Evidence Act. For instance,
in Emperor v. Alloomiya Husan, the accused was arrested and convicted under the Bombay
Prevention of Gambling Act for keeping a common gaming house. The conviction by the
Magistrate was based upon the fact that the accused was previously convicted on multiple
occasions under the Gambling Act. Upon appeal, the decision was upheld and the fact
pertaining to previous convictions was held to be relevant and admissible under section 14 of
the Evidence Act.
The legality of the decision is often doubted by many who argue that the previous conviction is
simply evidence showing bad character and is therefore inadmissible under section 54 of the
Evidence Act. Thus, the relevancy of previous convictions under section 14 might conflict, on
certain occasions, with the rules of exclusion of evidence showing bad character under section
54.
The proof of the existence of a particular state of mind is of extreme importance in certain
cases. The overall scope of the section extends beyond questions of previous convictions.
However, the section is mostly called for interpretation in cases where it is tendered that the
previous conviction of the accused is relevant in deciding upon the case at hand. This might be
because the other aspects of the section are already covered by the rest of the provisions of the
Evidence Act.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Facts having a bearing on the question whether an act was accidental or intentional
(Sec.15)
Section 15, 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 В 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.
General Principle:
Section 15 lays down the rules of admissibility of evidence in cases, where the question is
whether a particular act was accidental or done with particular intention or knowledge. The
section raises two questions viz.,
(i) Whether the act with which a person is charged, is accidental or intentional, and (ii) whether
the act was done with a particular knowledge or intention. It is important to note that in cases
showing the existence of any state of mind which proves and disapproves of intention for doing
an act being necessary are regulated by the Section 14 of the Act. Section 14 is a general section
dealing with all cases in which state of mind is involved. Section 15, on the other hand, provides
specifically for allowing evidence of similar occurrences. It is not an exception but an
application of general rule laid down in Section 14. It picks out only those cases where the
question is whether a particular act is accidental or intentional. In order to prove intention, the
section is to apply to the act of similar nature, because Section 15 is particular application of
the general rule laid down in the Section 14. An act is said to be similar to another when it is
similar to a fact in issue only.
For example, if a person is prosecuted for theft, a similar act had to be committed by him on
other occasion. Since the general principle laid down in Section 14 is to exclude the evidence

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
of similar facts, this principle devised by the Section 15 will apply only when there is a striking
similarity between the fact on which the case is based and the fact of which evidence is offered.
The two facts possess a common characteristic.
Section 15 has also laid down another principle that “all the acts should form parts of a series
of similar occasion,” Under the section the similar occurrences must be many. One single
instance cannot constitute a series of similar occurrence and it is not admissible. Where the
question was whether the accused had forged signature upon a bill of exchange, the fact that
he had forged signatures upon other bills were hold to be inadmissible. A solitary act is not
relevant.
Essence of the section:
It is necessary that all acts should form part of a series of similar occurrence. The reason is that
if the act was not accidental, it must have been done intentionally or with knowledge.
The accused Panchu Das introduced himself to a rich prostitute as a Maharaja and another man
as his darwan (doorkeeper). Both of them regularly visited the house of the prostitute and
suddenly they disappeared. The woman was found dead in her room and her valuables had
gone. No trace of the man could be found and police closed the file. After two years the two
men were arrested in another city when they were playing similar trick with another rich
prostitute. It was held by a majority that evidence of murder and robbery of the first woman
was not relevant under any of the provisions of the Act. Referring to Section 15 it was also
held that they were likely persons who had committed the crime because their modus operandi
was similar and “there was no room for any doubt that the acts with which the accused were
charged were identical.” Similarly, the same principle was followed in Noor Mohammed v The
King. In this case the accused was tried for the murder of a woman named Ayesha by poisoning
her. Evidence was given to show that the accused had previously murdered another woman by
similar trick.
The evidence was held inadmissible as there was no direct evidence. If the accused was proved
to have administered poison to Ayesha in circumstances consistence with accident, the proof
that he had previously administered poison to any other in similar circumstances might well
have been admissible. It has been regarded that “the relevancy of similar fact not as a rule of
law but of practice.
Section 15 applies to such type of act which was only particular in nature and the modus
operandi was also the same. Secondly, the similar act formed parts of a series of occurrence
and the act was done with the state of mind (intention, knowledge etc.). It is not accident but
intentional. The words of the section make if quite clear that it is not necessary that all acts
should form parts of one transaction. But it is similar acuteness.
“The question under this section will always be for the discretion of the judge, to determine
whether there is sufficient and reasonable connection between the factum probans (fact to be
proved) offered and the factum probandum (evidentiary fact) or whether they are too remote
from each other for the factum probans to be received. If there is no common link, they cannot
form a series, and this is the gist of the section.”

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Cases on Similar Nature:
Arson:
In a case the accused was tried for arson with intent to defraud an insurance company. The
evidence that the accused had made claim on two other insurance companies in respect of fires
which had occurred in two other houses and which he had occupied previously and in
succession was admitted to show that the fire which was the subject of trial was result of design
and not accident.
Abortion:
The accused was charged with using an instrument for procuring abortion. Evidence that the
accused did the same thing to cause abortion, was held admissible.
Breach of Trust:
On charge of misappropriation of money under section 408, 1.P.C. where the defence has
inability to credit an account of pressure of work, another subsequent instance of omission to
enter a payment was held inadmissible.
Fraud:
On charge of fraudulent evasion of purchase tax containing six accounts, evidence of similar
transaction in which the accused took part, although it was not the subject of charge was
admissible.
Murder:
Where a woman was charged with murder of her child by poison, and where the defence was
that the death was the result of accident, evidence to prove that two other children of hers and
lodger in her house had died previously to the present charge from the same poison, was held
admissible.

Suggested Readings:
1. Indian Evidence Act, 1872 (Relevant Statutory Provisions)
2. Monir: Law of Evidence
3. Batuk Lal: Law of Evidence
4. Ratan Lal & Dhiraj Lal: Law of Evidence
5. Avtar Singh: Principles of Law of Evidence
6. Tandon: Indian Evidence Act
7. R. Dayal: Indian Evidence Act
8. Dr. Satish Chandra: Indian Evidence Act

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