Report No. 69

4.9. Important relevant facts.-

Of the various relevant facts under the Act, the most important are the following:-

(1) Facts which form part of the same transaction as a fact in issue (section 6).

(2) Facts which are the occasion, cause or effect of relevant facts or facts in . issue (section 7).

(3) Facts relating to motive, preparation or conduct with reference to a fact in issue or relevant fact (section 8).

(4) Explanatory or introductory facts (section 9).

(5) Statements and actions referring to common intention (section 10).

(6) Facts inconsistent with, or affecting the probability of, facts in issue or relevant facts (section 11).

(7) Facts affecting the quantum of damages (section 12).

(8) Facts affecting the existence of any right or custom in question (section 13).

(9) Facts showing any state of mind or feeling when the existence of such state of mind or feeling is in issue or is relevant (section 14).

(10) Facts showing a system (section 15).

(11) Facts showing a course of business (section 16).

4.10. Materials by which facts can be proved.-Having laid down the facts which can be proved, the Act proceeds to deal with the materials by which they can be proved.

4.11. The topic of proof of facts in issue and relevant facts is dealt with in sections 56 to 100 of the Act. Certain facts are judicially noticed and need not, therefore, be proved.1 Facts which require to be proved may be proved by oral evidence,2 or they may be proved by documentary evidence.3

1. Chapter 3, sections 56 to 58.

2. Chapter 4, sections 59-60.

3. Chapter 5, sections 61-90

4.12. Oral evidence must be direct.1 This is the general rule, but exceptions thereto are found in a few sections.2

The inter-relationship of oral and documentary evidence is dealt with in ten sec tions.3

Documentary evidence, in its turn, may be-

(a) primary or secondary,4

(b) attested or unattested 5

(c) public or private,6

(d) sometimes presumed to be genuine,7

(e) exclusive or not exclusive.8

1. Section 60.

2. E.g., sections 21-31 and 32-33.

3. Sections 91 to 100.

4. Sections 61 to 66.

5. Sections 67 to 73.

6. Sections 74 to 78.

7. Sections 79 to 90.

8. Sections 91 to 100.

4.13. Burden of proof.-

The Act then deals with the party who has to produce proof. The proof may, and must, be produced by the parties on whom the burden of proof lies,1 but, in certain cases, the party may be estopped from doing so.2 If the proof is given through witnesses,3 they must testify in court in accordance with the rules as to examination, cross-examination and re-examination.4These are the detailed rules, but they have to be administered in a liberal spirit. Hence, the effect of mistakes in the reception and rejection of evidence on the result of the trial is dealt with by a specific provision135of the Act.

1. Chapter 7.

2. Chapter 8.

3. Chapter 9.

4. Chapter 10.

5. Section 167.

4.14. Sources of the sections.-

The Act contains 167 sections in all. Their source is heterogenous. Some of the sections are taken from the earlier Indian legislation-the most important being the Evidence Act, 1855 (2 of 1855)141 Some of the sections,152as was pointed by West, J., in a Bombay case,16 3re suggested by Taylor's Book on Evidence. Some of the sections are taken from the Code of Criminal Procedure, 1861,4 which was the Code then in force.

1. For example, sections 9 and 13, sections 18 and 37, and section 57, clauses 1, 2, 7, 13, sections 81, 83, 84, 118, 120, 123, 124, 126, 129, 131 and 162.

2. E.g. section 92.

3. 1LR 4 Born 581 (West, J.).

4. Sections 25 to 27, corresponding to sections 148 to 150 of the Code of Criminal Procedure, 1861.

4.15. Other Acts relating to rules of evidence.-

The Evidence Act does not contain all the rules of evidence which are recognised in the Indian legal system. In the first place, the two Codes of Procedure Civil and Criminal-contain ruleson particular matters which pertain to evidence. In the second place, there are Central Acts-such as the Bankers' Books Evidence Act and the Commercial Documents Evidence Act-which contain a few rules of evidence.

In the third place, other Central Acts (special laws) or local laws, while dealing with substantive law, incidentally provide rules of evidence in the nature of presumptions or otherwise, and these are now a familiar feature of modem legislative measures. Therefore, while the Evidence Act repealed various rules of evidence, it was not intended to affect special laws. This is clear from section 2 of the Act which stood thus1:-

"2. Repeal of enactments.-On and from that day2, the following laws shall be repealed:

(1) all rules of evidence not contained in any statute, Act or Regulation in force in any part of British India;

(2) all such rules, laws and regulations as have acquired the force of law under the 25th section of the Indian Councils Act, 1861 (24 & 25 Vict, C. 67), in so far as they relate to any matter herein provided for; and

(3) the enactments mentioned in the Schedule hereto to the extent specified in the third column of the said Schedule.

But nothing herein contained shall be deemed to affect any provision of any Statute; Act or Regulation in force in any part of British India and not hereby expressly repealed."

1. Section 2 has since been repealed.

2. The date of commencement of the Act.

4.16. Oaths.-

Before closing this Chapter, we may state that the subject of oath is dealt with by a separate Act-the Oaths Act1. It is allied to evidence. The Constitution,2 in the entries dealing with the distribution of legislative powers, (in entry 12, Concurrent List), mentions evidence and oaths together.

1. The Oaths Act, 1963.

2. Constitution, Seventh Schedule, Concurrent List, entry 12, "Evidence and Oath".

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