Report No. 185

Section 11

This section mentions 'when facts not otherwise relevant become relevant'. It reads as follows:

"Section 11: Facts not otherwise relevant are relevan.-

(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."

[There are two illustrations below the section.]

"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 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.

Illustration (a) refers to a plea of 'alibi' and explains meaning of both clauses (1) and (2): If A committed a crime at Calcutta, the fact that he was at Lahore is relevant under clause (1) of section 11 and if he was at a distant place from Calcutta, that would render his presence at Calcutta highly improbable, though not impossible and that fact is relevant under clause (2) of section 11. Illustration (b) refers to facts which show that among the four accused, three could not have committed the offence, would be relevan.- making clause (1) of section 11 apply.

There is no controversy with reference to clause (1) of section 11. A fact not relevan.- may be called a collateral fact, can become relevant if it is inconsistent with a relevant fact. Illustration (a) first part, referring to alibi, is a clear example.

There has been lot of controversy regarding clause (2) of section 11 and it has been stated that the section is very wide and has to be curtailed by adding an Explanation that the 'other facts' which make existence of any fact in issue or relevant fact highly probable or improbable, must be admissible under some other provision of the Act such as section 32. Such a view was expressed by Sir James Stephen himself.

In this context, we shall refer to what Sir James Stephen stated:

"It may possibly be argued that the effect of the second paragraph of s. 11 would be to admit proof of such facts as these (viz statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts). It may for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime. This makes highly probable that B did commit that crime.

Therefore, A's declaration is a relevant fact under s 11. This was not the intention of the section, as is shown by the elaborate provision contained in the following part of Ch. II (ss 31-39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got. The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved.

Some degree of latitude was designedly left in the wording of the section (in compliance with a suggestion from the Madras Government) on account of the variety of matters to which it might apply. The meaning of the section would have been more fully expressed if words to the following effect had been added to it:- "No statement shall be regarded as rendering the matter stated highly probable within the meaning of the section unless it is declared to be relevant fact under some other section of this Act." (Stephen, Intro, pp 160, 161).

A similar view was expressed by an eminent Judge Sir S. Varadachariar in Sevugan Chettiar v. Raghunatha (AIR 1940 Mad 273).

The learned Judge observed:

"As regards section 11, it seems to us that section 11 must be read subject to the other provisions of the Act and that a statement not satisfying the conditions laid down in section 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or relevant fact".

A similar view was expressed by Sulaiman J earlier in Naima Khalim v. Basant Singh AIR 1934 P 409 and by Sir Ashutosh Mookerjee in Emperor v. Panchu Das (1920) ILR 47 Cal 671 and West J. in R v. Parbhudas(1874) : 11. Bom.HCR 90.

The above decisions which held that the other facts must be relevant under other provisions of the Act, have reasoned that 'statements' are not 'facts' and section 11 cannot apply to statements. Some other cases say that section 32 must apply.

As against this, we have the criticism of Field who criticized the views of Stephen. He said:

"The section can hardly be limited, as has been suggested, to those facts which are relevant under some other provisions of the Act, for this would render the section meaningless."

In other words, according to Field, if in order to make such other facts relevant under clause (2) of section 11, it has to be held that those other facts must be relevant under some other provisions of the Act, it would obviously render clause (2) of section 11 otiose.

Similarly Desai J in State v. Jagdeo 1955 All LJ 380 has explained the position, in our view, correctly. He said:

"There is no connection between the provisions of sections 11 and 32 and there is no justification for saying that one section is dependent on the other. As a matter of fact, each section creates new relevant facts; if a fact is relevant under section 11, evidence about it can be given as permitted by section 5 even though it may not be relevant under section 32. If there is one provision under which a fact becomes a relevant fact, it can be proved regardless of whether it is made relevant under some other provision or not.

If a fact is relevant under section 32, it can be proved notwithstanding that it is not relevant under section 11 and to say that a fact relevant under section 11 cannot be proved unless it is covered by the provisions of section 32 is nothing short of striking out section 11 from the Evidence Act. When section 32 itself is sufficient to allow a fact to be proved, it would have been futile for the legislature to enact section 11, if a fact made relevant by that section would not be proved unless it was also relevant under section 32."

Wigmore (as quoted in Sarkar) deals with the same aspect (i.e. the content of clause (2) of section 11) in so far as American Law is concerned and says (Wig. Sec 135) in regard to "essential inconsistency" as follows:-

"Its usual logic 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 act is alleged, it is impossible that he should have done the act. The form sometimes varies from this statement; but its nature is the same in all forms. The inconsistency, to be conclusive in proof, must be essential, i.e. absolute and universal; but since in offering evidence, we are not required to furnish demonstration but only fair ground for inference, the fact offered need not have this essential or absolute inconsistency but merely a probable or presumable inconsistency; and its evidentiary strength will increase with its approach to absolute or essential inconsistency".

Norton (as quoted in Sarkar) also says (p. 124):

"Any fact material to the issue which has been proved by the one side may be disproved by the other, whether the contradiction is complete, i.e. inconsistent with a relevant fact under clause (1) or such as only render the existence of the alleged fact highly improbable under clause (2). Again facts may be put in evidence under clause (2), in corroboration of other relevant facts if they render themselves highly improbable."

In a recent Full Bench decision of the Kerala High Court in C. Narayanan v. State of Kerala 1992 Cr. LJ 2868, Thomas J (as he then was) observed on a review of the case law.

"There is nothing in section 11 of the Act to suggest that it is controlled by any other section. On the other hand the words used in section 11 indicate that the provision is an exception to other general provisions."

Thus, the view of Sir James Stephen and other Judges that under section 11(2), the facts must be relevant under some other provisions, has not been accepted by other jurists and Judges for good reasons.

We finally come to the elucidation of the law by Sri Vepa P. Sarathi in the 'Law of Evidence' (5th Ed. 2002). He says: (p. 41)

"The section starts by saying "Facts not otherwise relevant......" What are the facts which though logically relevant are not legally relevant? They are the facts coming under the two rules of exclusion, relating to relevancy: (a) Facts which would come under hearsay, and (b) facts which would come under res inter alios acta alteri nocere non debet, which means a transaction between two parties ought not to operate to the disadvantage of a third. Under (b) are usually included :

(i) statements made behind the back of the person against whom they are sought to be used as evidence,

(ii) similar unconnected transactions, and

(iii) opinions of third parties.

Facts coming under the hearsay rule or under res inter alios acta, though logically relevant are legally irrelevant. What section 11 says is this: Facts, which come under these two rules are otherwise irrelevant. They would however become relevant, if they are inconsistent with the fact in issue or make the existence of the fact in issue highly probable or improbable."

In other words, though legally irrelevant, they become relevant because of section 11.

The author Sri Sarathi further says: (p. 42)

"A fact, before it can be considered by a court, should be relevant under some section of the Evidence Act. If however that is res inter alios acta or hearsay, and hence not otherwise relevant, then it has also to satisfy the additional test in section 11, namely, it should make the existence of the fact in issue highly probable or improbable."

We are in entire agreement with this exposition of the meaning and purpose of section 11.

The view of Field, Sri Sarathi and of the High Courts of Kerala and Allahabad taking the same view are, in our view, further supported by two judgments of the Supreme Court.

In Ram Kumar v. State of M.P. (AIR 1975 SC 1026) adverting to section 11 and an omission of important facts in an FIR, the Supreme Court observed:

"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 section 11 of the Evidence Act in judging the veracity of the prosecution case."

The second case is the one in Satbir v. State of Haryana AIR 1981 SC 2074 where the Supreme Court specifically referred to section 11(2). There, the appellant, Satbir was convicted by the High Court,- while the co-accused Dayanand was acquitted. The High Court had relied upon the recovery of the stolen article on 29.7.73 when Satbir was arrested.

The Supreme Court referred to an application filed on 27.9.73 by Dayanand before a Magistrate stating that Satbir was already arrested (i.e. on or before 27.9.73) and that he (Dayanand) was also apprehending arrest. This statement was made at a time when there was no warrant against Dayanand. The Supreme Court observed that the above statement probablised Satbir's arrest before 27.9.73 and the recovery of the stolen item at the accused's instance was doubtful.

There is also the other controversy that section 11 refers to 'facts' and not to statements. This view was expressed in some cases including Royjappa v. Nilakanta Rao AIR 1962 Mysore 53. But the Kerala Full Bench in C. Narayanan's case above referred to, rightly referred to Ram Bharose v. Diwan AIR 1938 Oudh 26 wherein it was stated:

"It seems to us that the statements in question are relevant under cl.(1) of section 11 Evidence Act, because they are inconsistent with the fact in issue."

It was said that section 11, Evidence Act, related to facts and not to statements, but 'fact' includes "anything, state of things, or relation of things capable of being perceived by the senses (section 3) and a statement is thus included in the definition of 'fact', as is clear from illustration (a) to section 6 also."

We shall now refer to the 69th Report of the Commission. After a detailed review of the view of jurists and the case law, the Commission stated that four principles can be gathered. The fourth one was as follows (see para 7.180):

"The fourth view is that statements can be admissible under section 11 even when they are not admissible under section 32."

The Commission stated (see para 7.181):

"This question.- i.e. the question whether statements made by a third person can be relevant under section 1.- is, thus, a difficult one. In our opinion, on the present wording, the fourth view is the most cogent. No doubt, the court must exercise a sound discretion and see that the connection between the fact to be proved and the fact sought to be given under section 11 to prove it is so immediate as to render the coexistence of the two highly probable.

But it is legitimate to read sections 11 and 32 independently of each other. The section, it should be remembered, makes admissible only those facts which are of great weight in bringing the Court to a conclusion one way or the other as regards the existence or the non-existence of the facts in question. The admissibility under this section must, in each case, therefore, depend on how near is the connection of the facts sought to be proved with the facts in issue when taken with other facts in the case."

Having said all this, the Commission in the 69th Report, abruptly concludes (see para 7.188) that though this is the position in law, in as much as courts, and in particular eminent Indian Judges (Sir S. Varadachariar and Mookerjee JJ) have thought that some limitations must be imposed on section 11, the Commission would accept the recommendation of Sir James Stephen to add an Explanation as framed by him but in a modified form. Sir James Stephen recommended an addition to section 11 as follows:

"No statement shall be regarded as rendering the matter stated highly probable within the meaning of this section, unless it is declared to be a relevant fact under some other section of the Act."

The 69th Report recommended an Exception as follows in slight modification of Sir Stephen's suggestion: (see 7.191)

"Exception: Evidence shall not, by virtue of this section, be given of a statement, whether by a party or by any other person; but nothing in this Exception is to affect the relevance of a statement under any other section."

In other words, the proposal requires the statement, though relevant and section 11, to be relevant also under another section to be relevant as held by Sir James Stephen, Varadachariar J. and others.

We have elaborately dealt with the opinions of Field, Norton Sri Sarathi and to rulings of the Allahabad High Court of 1955 and to judgments of the Supreme Court of 1975 and 1981. In our view, when the 69th Report itself says that the fourth principle arising out of the reading of the section and out of the case law is correct, there is no reason to give it up merely because the contrary view was held in a few decisions by the Judges, Varadachariar J., Mookerjee J., Sulaiman J. and West J. in separate cases.

We are of the view that the reasons given by Field, Norton, Sri Sarathi, Justice Desai of Allahabad High Court and the principle laid down in the two judgments of the Supreme Court flow from sound principles. It is one thing to say that while accepting such statements court must be careful in weighing the probability or improbability carefully and it is another thing to require 'relevant' facts to be also relevant under other provisions of the Act and in particular section 32.

We, therefore, with great respect, differ from the recommendation made in the 69th Report.

Question then arises whether, in order to see that a wrong principle in certain decisions which require the facts to be further relevant under other provision.- do not hold the field, we should amend or add an Explanation below section 11?

After considerable thought over the matter, we are of the view that the matter be put beyond doubt and controversy in as much as justice may suffer where a fact relevant under section 11 is treated as totally inadmissible. It may, in a criminal case, indeed lead to conviction of an accused who is otherwise entitled to acquittal (viz. AIR 1981 SC 2074 referred to above).

We, therefore, recommend insertion of an Explanation after clause (2) and before the illustrations in section 11 as follows:

"Explanation : Facts not otherwise relevant but which become relevant under this section need not necessarily be relevant under some other provision of this Act but the degree of their relevancy will depend upon the extent to which, in the opinion of the Court, they probabilise the facts in issue or relevant facts."

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