ADMISSIBILITY

OF FACTS AND
EVIDENCE
LAW OF EVIDENCE

SANDEEP CHAWDA SUBMITTED TO -GAURAV GUPTA SIR

BALLB (HONS.) 4 YEAR TH

JAMIA MILLIA ISLAMIA

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TABLE OF CONTENTS

ACKNOWLEDGEMENT....................................................................................2

INTRODUCTION................................................................................................3

RELEVENCY AND ADMISSIBILITY OF FACTS............................................5

Relevancy of Facts...........................................................................................6

Admissibility of Fact:......................................................................................6

Relevancy and Admissibility.......................................................................... 7

ADMISSIBILITY OF EVIDENCE......................................................................9

Admissibility of Scientific Evidence............................................................ 12

CONCLUSION.................................................................................................. 14

BIBLIOGRAPHY.............................................................................................. 15

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ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help and guidance of some respected

persons, who deserve my deepest gratitude. As the completion of this assignment gave me

much pleasure, I would like to show my gratitude to Mr. Gaurav Gupta, for giving me

guidelines for assignment throughout numerous consultations. I would also like to expand my

gratitude to all those who have directly and indirectly guided me in writing this assignment.

Many people, especially my classmates have made valuable comment suggestions on my

work which gave me an inspiration to improve the quality of the assignment

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OVERVIEW
The law in most of the democratic countries is based on the principle, “Innocent until proven

guilty”. It is the duty of the prosecution to prove beyond any reasonable doubt that the

accused has committed the offence. Circumstantial evidence, even though it is allowed in

certain cases, it is not enough to prove a case beyond any reasonable doubt. The prosecution

has to rely on the material evidence to get a conviction. The material evidence must also be a

one which is legally obtained to be considered as an admissible evidence. Section 101 to 166

of the Indian Evidence Act,1872 explains about the production of evidence and the burden of

proof. It applies to material Documentary and evidence and also witnesses. There are some

evidences which are inadmissible such as the hearsay evidence except in few circumstances.

It is the duty of both the parties to provide the best evidence possible to win the case.

Evidences obtained through improper means are inadmissible and has hindered many

criminal investigations throughout the years. Thus, it is important to know the Collection and

producing of evidence to utilize it to the utmost effect.

The Court is under the bounden duty and obligation to deal with the evidence as it is. No

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improvement or rewriting of evidence is permissible.

Admissibility means that only the facts which are relevant are admissible in the court of Law.

Section 136 of the Indian Evidence Act,1872 explains which all evidence are admissible.

“When either party proposes to give evidence of any fact, the Judge may ask the party

proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;

and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,

and not otherwise. If the fact proposed to be proved is one of which evidence is admissible

only upon proof of some other fact, such last- mentioned fact must be proved before evidence

1 Dhanpal v. State by Public Prosecutor, Madras, 2009 CrLJ 4647 (4650) : (2009) 10 SCC 401

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is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the

Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon

another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of

the first fact to be given before the second fact is proved, or require evidence to be given of the

second fact before evidence is given of the first fact.” The above section states that the it is the

discretion of the Judge to decide whether an evidence is admissible or not. The presiding officer

may ask the party to clarify how the particular fact or evidence is relevant under the provisions

Section 6 to 55 of the Indian Evidence Act, 1872. if he is not convinced of its relevance. So,

technically the question of relevance comes first and then the question of admissibility. The

presiding officer has the full power in deciding whether an evidence is admissible or not in a

particular case. So, with this power comes ultimate responsibility to the Judge to make sure that

every relevant evidence which is obtained legally is made admissible, so that the parties can

obtain justice without undue advantages to one side.The main aim of the study is to analyse

whether the Law of Evidence is suitable for the present age.

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RELEVENCY AND ADMISSIBILITY OF FACTS

The legal concept of Evidence is neither static nor universal The past methods followed like

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the trial of ordeal would be alien to the present methods followed today. Nothing which is

not relevant may be adduced as evidence as per the law Evidence helps in establishing guilt

or innocence of a person(Ho). The evidence law has evolved recently, and even scientific

evidences are being made admissible in courts The challenges faced by evidence law are

timeless. No matter what the evidence is, the common method of discovering the truth plays

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an important role in modernisation of evidence (Goodison).

The Indian Evidence Act is unique. It has not been amended for a long time. India follows the

Due Process Model, which is contrary to the crime control model where the police and other

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authorities play an active role in solving the crimes. In the Due Process, the burden of proof lies

on the parties to prove their case. Thus, having a guideline for admissibility of evidence is

important. The Act not only lays down procedure for admissibility of evidence but also explains

which evidence is relevant and which is not. The discretion of the Judge is very high in the due

process model. Some set of guidelines for relevancy and admissibility are put in place to make

sure that the Judge does not use his power arbitrarily since corruption has taken a new shape all

over the world. The two important terms in the Indian Evidence Act are admissibility and

relevancy. The word admissibility is not defined but relevancy is defined in the Act. relevancy is

based on the section 5 and section 7 of the Indian Evidence Act. No matter what the evidence

2 "The Legal Concept of Evidence (Stanford ...." Accessed May

31, 2018. https://plato.stanford.edu/entries/evidence-legal/
3 Digital Evidence and the US Criminal Justice System - NCJRS. Retrieved May 31,
2018, from https://www.ncjrs.gov/pdffiles1/nij/grants/248770.pdf
4 Why is Evidence So Important? • Smilodon's Retreat - Skeptic Ink." Accessed May
31, 2018. https://www.skepticink.com/smilodonsretreat/2014/06/19/why-is-evidence-so-
important/.

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system is, the common method of discovering the truth plays an important role in

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modernisation of evidence.

RELEVANCY OF FACTS

Fact has been explained in section 3 of the Indian Evidence Act. fact means a thing that exists.

In the Evidence Act, it is not restricted to the tangible nature, even the feelings, state of mind

and personal preferences come under the broad term fact. Section 5 to 55 deal with the

relevancy of fact. The main question arises as to which fact is legally relevant and also logical

in nature. A logically relevant fact may not necessarily be legally relevant in court. All facts

that are to be produced in court must be logically relevant as well as legally admissible. In State

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of UP v. Raj Narain where it was shown that not all relevant facts are admissible. In Ram
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Bihari Yadav v. State of Bihar , the difference between relevancy and admissibility is

explained. Section 6 of the India. Evidence Act is very important as it explains about the facts

that form a part of the same transaction.

ADMISSIBILITY OF FACT:

The admissibility of facts helps in deciding whether a particular piece of evidence will help in
concluding a case. The admissibility of evidence is a question of Law and it is decided by the
Judge as per section 136 of the evidence act. Admissibility is based on Law and not Logic.
Facts which may have no logical relevance may sometimes be admissible in courts. After an
evidence has been declared logically relevant and legally admissible, how it was obtained
becomes irrelevant. In situations where it is practically impossible to differentiate between an
admissible evidence and non admissible one, If the admissible and non admissible evidence

5 Recent trends in evidence law in China and the new evidence .... Retrieved May 31,
2018, from https://ieeexplore.ieee.org/document/8158126/
6 AIR 1975 SC 865
7 AIR 1998 SC 1850

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are given together to the point they cannot be segregated, then the whole evidence becomes
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inadmissible. The rules for admissibility of evidence is same for both Civil and Criminal trials.

RELEVANCY AND ADMISSIBILITY

Strictly speaking, ‘Relevancy’ and ‘Admissibility’ are not the same thing. In general, relevancy is

determined by logic and human experience. Generally speaking, facts which directly tend to

prove or disprove a fact in issue are relevant and also within certain limits, other facts closely

connected with the fact in issue which indirectly or inferentially tend to prove or disprove any fact

in issue. The limits are described in s. 6 and the sections that follow. Originally, Stephen, when

comparing scientific and judicial enquiries explained the four methods of induction employed by J

S Mill and adopted the theory of causation as a test of relevancy. His view was that reasoning

from cause to effect or from effect to cause is the basis of the nature of relevancy in judicial

enquiries. This view was afterwards modified and in his ‘Digest’ Art. 1, ‘relevant’ is defined thus:

"Any two facts to which it is applied are so related to each other that, according to the common

course of events, one, either taken by itself or in conjunction with other facts, proves or renders

probable the past, present, or future existence, or non-existence of the other". By this definition,

‘relevant’ has been meant to be that which is logically probative.

Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in

issue, or that relation between the two which renders the latter probable from the existence or

the non-existence of the former. But everything that is logically probative is not legally admissible

in evidence. Admissibility is founded on law and not on logic. Admissibility presupposes

relevancy. Thus many facts having no logical bearing on the issue are admissible, eg, the proof

of some preliminary facts which are necessary for the admissibility of other evidence are also

admissible. The admissibility of these facts is mainly based on rules of law. For instance, the

admissibility of all circumstances showing that a confession is voluntary, or facts and incidents

showing whether they are a part of the res gestae. On the other hand, facts which are logically

probative, i.e., relevant, may not be admissible as being too remotely

8 Facts, Evidence and Legal Proof - Scholarly Commons - Case .... Retrieved May 31,
2018, from http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?
article=3731&context=caselrev

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connected. Thus, the moral disposition of a person may be of much value in determining the

probability of his doing or not doing a particular act; but, it is generally excluded on account of its

tendency to create considerable prejudice against the accused. In proving a case of theft, other

instances of theft by the accused may be logically relevant and in some cases of high probative

value, but they are not admissible on the ground of policy and fairness, since they would raise a

number of collateral issues and create prejudice and surprise with the result that the main fact in

issue would be lost sight of. Other logically relevant facts are excluded by positive rules of law,

eg, the rule in s. 126 prohibiting the disclosure of communication made to legal adviser in

confidence or, the rule in s. 122 forbidding disclosure of communications between husbands and

wives during marriage, or the rules in s s. 123 and 124 forbidding disclosure of affairs of State or

communications in official confidence. What is legally receivable is admissible whether it is

logically probative or not. For all practical purposes ‘relevant’ means what is legally admissible in

evidence. Evidence which is legally admissible should be received by the court, unless there is

any legal reason for its rejection. Again, if the evidence is admissible on one ground, it will not be

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rejected because on some other ground it would be inadmissible. According to Wigmore, the

two axioms of admissibility are: (1) None but facts having rational probative value are admissible;

(2) All facts having rational probative value are admissible unless some specific rule forbids. This

point has been thus stated by a Newzealand Court: "The starting point of every inquiry into the

admissibility of evidence must be relevancy. In assessing the relevance of contested evidence, it

is first necessary to identify the fact sought to be established. Credibility aside, that fact will be

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relevant if its existence will make one of the facts in issue more likely or less likely.

9 R v. Bond, 1906 2 KB 389, pp 411, 412, per JELF, J

10 R v. Wilson, (1991) 2 NZLR 707 High Ct. Auckland

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ADMISSIBILITY OF EVIDENCE
Admissibility means that only the facts which are relevant are admissible in the court of Law.

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Section 136 of the Evidence Act explains which all evidence are admissible.

“When either party proposes to give evidence of any fact, the Judge may ask the party

proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;

and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,

and not otherwise. If the fact, which is proposed to be proved is among one of which

evidence is admissible only upon further proof of some other fact, such last- mentioned fact

must be proved before evidence is given of the fact first- mentioned, unless the party

undertakes to give proof of such fact, and the Court is satisfied with such undertaking. When

the relevancy of an alleged fact entirely depends upon another alleged fact being proved first,

the Judge may, in his discretion, either permit evidence of the first fact to be given before the

second fact is proved, or require evidence to be given of the second fact before evidence is

given of the first fact.

The above section states that the it is the discretion of the Judge to decide whether an evidence is

admissible or not. The presiding officer may ask the party to clarify how the particular fact or

evidence is relevant under the provisions Section 6 to 55 of the Indian Evidence Act, 1872. if he

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is not convinced of its relevance. So, technically the question of relevance comes first and then

the question of admissibility. The discretion that is given to the judge can be misused and it is

important that certain guidelines are made to stop the arbitrary use of power by the judge. Only

relevant evidence is admissible in a court of law but not all relevant evidence

11 (2012, December 1). Principles of Evidence in Criminal Cases – Thomson Reuters New .... Retrieved
May 31, 2018, from https://www.thomsonreuters.co.nz/landingpages/pdfs/Chapter-Extracts-Reviews/Extract-
PrinciplesCriminal-Evidence.pdf
12 "Digging into the Foundations of Evidence Law" by David H. Kaye. Retrieved May 31,
2018, from http://repository.law.umich.edu/mlr/vol115/iss6/8/

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is(Hamer).In Ram Bihari Yadav v. State of Bihar , the Supreme Court observed that. The

probative value of the evidence is the weight to be given to it which has to be judged having
regards to the fact and circumstances of each case.”

Section 9 of the Evidence Act, 1872, lays down some facts which can be treated as relevant.

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In the case of Lakshman Das Chagan lal Bhatia v. State , the court laid down the following

to be “relevant facts:

Facts, which are necessary to explain or introduce a fact, which is in issue or relevant, facts

which support or rebut an inference suggested by a fact in issue or a relevant fact, Facts

which establish the identity of anything or person whose identity is relevant, Facts which fix

the time and place at which any fact in issue or relevant fact happened, Facts which show the

relation of parties by whom any fact in issue or relevant fact was transacted(Thomson).

Section 11 also deals with admissibility.

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In Bibi Khaver v. Bibi Rukha(Gurnani) the court held that “in order that a collateral fact can be

admitted as relevant under this section, the prerequisites of the law are that The collateral fact

must itself be established by conclusive evidence; and It must, when established, afford a

reasonable presumption or inference as to the matter in dispute(National Conference On Evidence

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Law: Contemporary Development). All facts that are considered to be evidence may not be

evidence in the eyes of law. The burden of proof is on the opposition to disprove the evidence

provided by the other party as inadmissible. However, the burden of proof may be reversed for

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some reasons (Kaplow). The discretion is solely in the hands of the judge to

13 Supra note 7.
14 AIR 1968 Bom 400, (1967) 69 BOMLR 808, 1968 CriLJ 1584
15 [1904] 6 AIR 983 (BLR)
16 (2016, April 23). Evidence Law: Contemporary Development - Galgotias University. Retrieved
May 31, 2018, from http://law.galgotiasuniversity.edu.in/pdf/hyperlink.pdf
17 (2011, November 4). Burden of Proof by Louis Kaplow :: SSRN. Retrieved May 31,
2018, from https://www.yalelawjournal.org/article/burden-of-proof

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decide whether a evidence is admissible or not. Improper admission of evidence is not a ground

for retrial and also a decision cannot merely be reversed on the grounds of improper evidence.

The power vested on a judge by section 136 is vast and It must be handled properly. Thus, it is

important that certain guidelines are given for a presiding officer to decide whether an evidence is

admissible or not(Swift). Increasing the discretion of the trial judge to accept or throw evidence

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may result in harm. The Judges, like all other Human beings are fallible and discretionary

powers should not be given to them to decide whether an evidence is admissible or not. Ted

Bundy, one of the most notorious killers of our time managed to do more crimes and evaded the

eyes of law as he was let out on inadmissible evidence(Rule). The Law or the Judge, both should

not be given the power to decide whether an evidence is admissible or inadmissible. Every piece

of Evidence which concerns the case must be mad admissible whether it is found through illegal

search or any other means. There are many people among us who evade the eyes of Law forever

because of inadmissible evidences. Thus, a new mechanism must be developed to admit or not

admit a particular evidence.

PRECEDENT AS TO ADMISSIBILITY OF EVIDENCE.

Criminal cases cannot be put in a straight jacket. Decided cases can be of help if there is a

question of law like the admissibility of evidence or about the applicability of some general

rule of evidence. This apart, reference to decided cases is hardly apposite when the question

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is that the evidence should or should not be accepted.

18 "One Hundred Years of Evidence Law Reform: Thayer's Triumph" by .... Retrieved May 31, 2018,
from https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1481&context=californialawreview /
19 Charan Singh v. S, A 1975 SC 246

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ADMISSIBILITY OF SCIENTIFIC EVIDENCE

Admissibility of scientific evidence has attracted a serious debate in India especially post

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Selvi v. State of Karnataka case wherein hon’ble Supreme Court has held that Narco-

analysis, Brain-mapping and polygraph tests cannot be conducted without the consent of

accused person. Admissibility of scientific evidence involves some important questions

relating to basic rights that are available to accused under various provisions of law in India.

Major problem in India is that we always look at a provisions of law through the view-point

of accused and we totally forget the pain, misery and trauma of a victim and victim’s family.

There are various provisions if given interpretation keeping in mind at changed scenario

would make scientific evidence admissible in court of law without any amendment.

Also, the first principle interpretation is that the words of an enactment should be given their

ordinary and natural meaning because whatever was the intention of legislature, has been

expressed by it through words. If the language of a statute is plain, the only duty of court is to

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given effect of to it. In this regard legal maxim, ut res magis valeat quam pereat, is also

worth mentioning. According to this maxim where alternate constructions are possible the

court must give effect to that interpretation which will help in smooth working of the system

rather than that construction which will be responsible for putting unnecessary hindrances in

the way of statute for which it has been exacted. As for as possible all the words used in the

statute must be given meaning as legislature is not expected to use unnecessary words.

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Superfluous or insignificant words are not used by the makers of a statute.

20 AIR 2010 SC 1974

21 T. Bhattacharyya, “The Interpretation of Statutes”, Allahabad: Central Law Agency, Sixth Edition, 2006, p.
10.

22 T. Bhatacharyya, p. 55.

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It has been specifically held by the Supreme Court in Shreenath v. Rajesh, that where two

views are possible, especially while interpreting a procedural law, the one which curtails the

procedure without eluding justice should be adopted because procedural law is always

subservient to and is in aid to justice. Noscitur a sociis, also provide similar provision. When

two or more words are put together, they are to be understood in their cognate sense.

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Associated words explain and limit each other. As in Alamgir v. State of Bihar, where

section 498 of the Indian Penal Code, 1860 was involved specifically words “conceal or

detains” were in question Supreme Court resolved controversy by saying that word ‘detains’

is to be interpreted with reference to the words takes, entices and conceals, therefore, here

word detain means without the consent of husband and not its ordinary meaning which means

detention against will.

Therefore, various provisions of Indian statutes should be interpreted keeping mind the

changed circumstances of India, the advancement of crimes and criminals advancement of

technology etc. Accused persons should not get benefit for the simple reason that Indian laws

are centuries old and latest crimes have not been specifically mentioned therein. No doubt,

statutory laws have been amended ‘n’ number of times but researcher humbly submits that

despite the amendments, courts give decision based on benefit of doubt in favour of accused.

This practice of courts is creating dissatisfaction among masses and is emboldening the

criminals. In view of researcher courts should permit use of latest technology by concerned

authorities to check increasing crime rate.

23 AIR 1998 SC 1829.

24 T. Bhatacharyya, p. 61.
25 AIR, 1959 SC 436.

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CONCLUSION

The Law relating to evidence has evolved over the years as one of the most important in deciding

cases. The power vested on the presiding officer in deciding whether an evidence is admissible or

not is huge and must be restricted through guidelines. The law relating to evidence is not suitable

for the present age and it must be amended for the better functioning of the legal system. A clear

line must be drawn between the power of the judge and the power of the judge as such a huge

power vested on a human being would only result in corruption of power. The law is supreme and

no man should be given the discretionary power to bend it to his wish. Thus, a clear distinction

must be drawn between the law and discretionary power of the judge. Thus, the law is in dire

need of an amendment. The Judges, like all other Human beings are fallible and discretionary

powers should not be given to them to decide whether an evidence is admissible or not. Ted

Bundy, one of the most notorious killers of our time managed to do more crimes and evaded the

eyes of law as he was let out on inadmissible evidence. The Law or the Judge, both should not be

given the power to decide whether an evidence is admissible or inadmissible. Every piece of

Evidence which concerns the case must be mad admissible whether it is found through illegal

search or any other means. There are many people among us who evade the eyes of Law forever

because of inadmissible evidences. Thus, a new mechanism must be developed to admit or not

admit a particular evidence.

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BIBLIOGRAPHY
1. Statutes Referred
The Indian Evidence Act, 1872

2. Books Referred
Batuk Lal, The Law of Evidence

3. Websites Referred
Manupatra.com
Jstor.com
Lexisadvance.com
Scconline.com
Aironline.com

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