Report No. 69

Chapter 7

Relevant Facts-the General Provisions: Sections 5 to 11

7.1. Facts in issue.-

Under section 5, evidence can be given only of facts which are in issue or which are relevant to a fact in issue. Sections 6 to 55 deal with facts which may be relevant to a fact in issue. For this reason, sections 6 to 55 constitute an important group of provisions.

7.2. Grouping.-

The facts treated as relevant under these sections fall into a few broad groups. The first group includes a few sections (sections 6 to 11) containing general provisions which could apply to all cases; the next group comprises a few sections (sections 12 to 16), which deal with facts which may be relevant in particular cases. These are followed by provisions as to the admissibility of statements, opinions and character. Thus, we have five broad groups under which the provisions as to relevant facts can be placed, namely-

(1) Facts in general1;

(2) Facts in particular case2;

(3) Statements (of facts)3;

(4) Opinions4; and

(5) Character5.

1. Sections 6 to 11.

2. Sections 12 to 16.

3. (a) Sections 17 to 31;

(b) Sections 32, 33;

(c) Sections 34 to 39;

(d) Sections 40 to 44.

4. Sections 45 to 51.

5. Sections 52 to 55.

7.3. Sub-divisions.-

These could be sub-divided, according to the nature of the facts, as follows:-

Facts in General

(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).

Facts in Particular Situations

(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 course of business (section 16).

Statements

Evidence is also admissible, under certain circumstances, of the following statements:-

(1) Admissions (sections 17-23).

(2) Confessions (sections 24-31).

(3) Statements by persons who cannot be called as witnesses (sections 32-33).

(4) Statements under special circumstances (sections 34-35).

(5) Judgments of courts (sections 40-44).

Opinions

Opinions of third parties (sections 45-51).

Character

7.4. Section 5.-

Section 5, which may be regarded as the basic section of the Act, lays down the fundamental rule that evidence may be given of (1) facts in issue, and (2) relevant facts, and of no others. The Explanation to the section goes on to provide that the section shall not enable any person to give evidence of a fact which he is "disentitled to prove" by any provision of "any law for the time being in force relating to civil procedure". Illustration (b) puts, in this context, the case of the plaintiff not bringing with him (and not having in readiness for production at the first hearing) a document on which he relies.

The Explanation had obviously in mind, provisions corresponding to present Order 7, rules 14 and 18, Order 13, rule 1 and Order 41 rule 27, of the Code of Civil Procedure, 1908. The words "law for the time being in force relating to civil procedure" in this Explanation should, however, be made more precise by mentioning the Code of Civil Procedure, 1908. As regard areas where that Code is not in force-areas referred to in paragraphs (a), (b) and (c) and proviso to section 1(3) of the Code-suitable words can be added to cover cases of the corresponding laws in force in such areas.

7.4A. Recommendation to amend section 5, Explanation.-

We recommend an amendment of section 5, Explanation, on the above lines.

7.5. Section.- Facts forming part of the same transaction.-

With section 6 begins the group of provisions enumerating the facts declared by the Act as "relevant". According to section 6, facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

There are four illustrations to the section. Illustration (a) puts these facts. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

That the accused need not be present, is illustrated by another illustration. A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

Illustrations (c) and (d) deal with civil cases. They read:

"(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."

7.6. Principle of section 6.-

The principle of section 6 is clear. If the connected facts form part of the same transaction as the fact which is the subject of enquiry, manifestly evidence of those facts ought not to be excluded, because, to view a fact in isolation would be to have only a partial or incomplete view1. Moreover, such facts-i.e. facts forming part of the same transaction,-could not often be excluded without rendering the evidence unintelligible.

1. See Norton Evidence, 101, referred to in Woodroffe Evidence (1941), Comment on section 6.

7.6A. Formulation in other countries.-

There have been several attempts to formulate the1 exceptions recognised under the head of res gestae. The phrase itself has been criticised as a "bubble of verbiage2". But the concept is fairly intelligible. The California Evidence Code3deals with the matter under the head of "spontaneous statement" and "contemporaneous statement" in these terms:

"1240. Spontaneous statement.

1240. Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

(b) was made spontaneously while the declarant was under the stress of excitement caused by such perception."

"1241. Contemporaneous statement

1241. Evidence of a statement is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement:

(a) purports to narrate, describe or explain an act, condition, or event perceived by the declarant; and

(b) was made while the declarant was perceiving the act, condition, or event."

1. See rules 512-513 of the Model Code and rule 63(4) and 63(12) of the Uniform Rules.

2. Pollock in Pollock-Holmes Letters (Cambridge, 1942), Vol. II, pp. 284-85 (Letter dated 23rd April, 1931).

3. Sections 1240-1241, California Evidence Code.

7.7. Position in England.-

In England, acts, declarations and circumstances which constitute or accompany, and explain the fact or transaction in issue, are admissible as forming part of the res gestae1. The section deals with a substantial2 part of this topic. The point for decision under the section will always be whether the facts sought to be adduced do form part of the same transaction, or are too remote to be considered really part of the "transaction" before the Court.

1 As to the history of this "catch all" phrase, see Phipson in 19 LQR 435.

2 See discussion as to "English Law and Section 6", infra.

7.8. Significance of illustrations to the section.-

The illustrations to the section bring out a few important aspects. Illustration (a) makes it clear that the facts relevant under the section could include acts and declarations, not only of the parties involved in a crime, but also those of by-standers, provided they are part of same transaction as the fact in issue.

Illustration (b) indicates that the nature of a crime may be such that the acts of several other persons could be relevant as parts of the same transaction, even though the person charged as the principal offender was not present at any of them. The illustration relates to waging war-an offence which usually, if not invariably, requires the participation of numerous persons. In fact, these occurrences are part of the waging of war-a fact in issue. Incidentally, the facts are reminiscent of a celebrated English treason trial1.

Illustration (c), relating to a suit for tort, is useful as making it clear that the section applies as much to documents as to acts and declarations and also that it is not confined to criminal proceedings2. The correspondence is admissible, because the letter cannot be viewed in isolation. Illustration (d) also pertains to a civil suit-this time a suit on contract. The various deliveries have to be viewed cumulatively. They are part of the fact in issue-Did the goods pass from A to B?

In an English case3, the question was whether A sold goods to B personally, or to B as C's agent, the sale being made subject to inquiry from D, B's referee. A letter written by A to his own agent, asking him to "inquire from D as to the credit of C and also of B, who is making large purchases for C", was held admissible for A as part of the transaction and in corroboration of other evidence, though there was no proof per se that B's purchase was for C. In that case also, the transaction was the cumulative result of a number or arrangements.

1 R. v. Lord George Cordon, 21 Howard ST 535.

2 See K.N. Singh v. Karntapara Dev Co. Ltd., AIR 1950 Pat 134 (166).

3 Milne v. Leisler, (1862) 7 H&N 786; the action was by A, who gave evidence, against a third party to whom B had pledged the goods.

7.9. English law.-

According to Cross and Wilkins1-

"1. Statements connected with, and made substantially contemporaneously with, the occurrence of the facts to which they relate are often said to be received as part of the res gestae (part of the happenings or part of the story). Statements received as part of the res gestae are sometimes received by way of exception to the rule against hearsay, but they can now only be so received in criminal cases; on other occasions they constitute original evidence, i.e. they are not proved in order to establish the truth of that which was asserted.

2. Statements proved as conduct are sometimes said to form part of the res gestae.

3. Facts forming part of the transaction under investigation are also said to form part of the res gestae.

4. The doctrine of the res gestae is inclusionary, allowing for the reception of evidence by way of exception to a number of exclusionary rules."

1. Cross and Wilkins Outlines of Evidence, (1971), pp. 139, 140, Article 51.

7.10. English law and section 6.-

The phrase "res gestae" has often been criticised in England. In Homes v. Newman, (1931) 2 Ch 112: 1931 All Er Reprint 8587, Lord Tomlin, sitting as an additional Judge in Chancery, suspected that "the phrase 'res gestae' had been adopted to provide a respectable legal cloak to a variety of cases to which no formula of precision can be applied."

The word "res gestae" has been used in several senses, that is, as meaning the transaction itself, or the events constituting the transaction, or the surrounding circumstances accompanying the transaction, or the transaction together with the accompanying circumstances. However, the principal idea sought to be conveyed, namely, the idea of a whole in relation to its constituents or its constituent parts, is intelligible enough, and the principle of admission of such evidence is also sound. Of course, section 6 does not exhaust the field of res gestae. Some of the later sections-for example, section.-also deal with matters which are usually dealt with in English text books under the topic of res gestae. But, in practice, most of the cases under res gestae are of declarations falling or alleged to be falling within section 6.

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