Sec 4 – May Presume, Shall Presume, Conclusive proof

May Presume – Whenever it is provided by this act the court may presume a fact, it may either
regard such fact as proved, unless and until it is disproved, or may call for proof of it.
Whenever the court may presume a fact, the Court may take notice of the fact without taking
proof or may call upon a party to prove the fact. The Court has discretion to presume a fact or
not to presume it.
Ex: A document which is 30 years old is produced from proper custody, the court may presume
that the document was signed and written by the person who purported the document.
(Presumption of fact is related to this)

Shall Presume – Whenever it is provided by this act the court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved
When a Court presumes a certain fact it has no other option except considering the fact as
proved unless evidence is given to disprove that fact. The party interested in disproving that
fact can produce evidence if he can. In such a case the Court will have the power to allow the
opposite party to disprove the fact which is presumed as proved and if the opposite party is
successful in disproving the fact then the Court shall not presume the fact. The words "shall
presume" indicates that presumption therein is un-rebuttable.

Conclusive proof - When one fact is declared by this act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence
to be given for the purpose of disproving it.

Every fact, on the basic of which a party to a proceeding wants to take judgement, must be
proved. No court can while deciding a case, place to reliance of on a fact unless and until it has
been proved according to rules laid down in the Evidence Act.

But the law of evidence has provided that a court can take into consideration certain facts even
without calling for proof of them, i.e the court may presume certain things they are known as
Presumptions.
Some basic presumption or inference are :-
* Night will follow day.
* Summer will follow winter
* Death ensues from the mortal wound
* A watch of Ram is stolen and soon after it is recovered from the possession of Shyam. Here,
this may be the presumption that Shyam either stolen the watch himself or receive it from some
thief knowing to be stolen.
* If a letter has been posted, the natural inference (presumption) would be that it reached the
addresses.

Presumption - In the law of evidence the word presumption is used to designate and inference,
affirmative or negative, of the existence of some fact, drawn by judiciary tribunal by a process
of probable reasoning.
Kinds of presumption- three kinds
1. Presumption of fact or natural presumption
2. Presumption of law (rebuttable and irrebuttable)
3. Mixed Presumption (confined to English law)

Presumption of Fact
Presumption of fact are inference which are naturally drawn from the observation of the course
of nature and from the constitution of human mind.
Presumption of fact are inference which are naturally drawn from the observation of the course
of nature and from the constitution of human mind.
Example - The court may presume that :-
a) A man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen unless he can account for his possession.
b) If a man refuses to answer a question which he is not compelled to answer by law, the answer
if given would be unfavourable to him.
c) When a document purporting or proved to be 30 years old is produced in a court, the court
may presume that the signature and every other part of such document is of that very person
whose signature on writing its purports to be. (Section 90)

Two Important Points -

(i) The Court may presume these presumption of facts. Its upon the discretion of the Court to
Presume these facts.
ii) These presumptions are always rebuttable (evidence can be given to disprove these
presumption)
Presumption of Law
Presumption of law are such inference and beliefs which are assumed by law itself established
by law.
The presumption of law are of two kinds :-
i. Rebuttable Presumption of law (falls in category of shall presume) - Rebuttable
presumption are certain presumption which is regarded as evidence of good equality and does
not lose their quality until proven contrary to the presumption.
Examples :-
• A child if born in a legal wedlock shall be presumed to be legitimate and one who questions
his legitimacy must disprove it.
• When it is shown that soon before the death the women had been subjected to cruelty or
harassment by the accused used for dowry, the court shall presume that the accused had caused
the dowry death and the burden is on the accused to rebut presumption.

Two Important Points -

(i) Court shall presume these rebuttable presumption of law - it's not upon the discretion of
court.
(ii) These are rebuttable (Evidence can be given to disprove this presumption) but court at first
instance will presume the existence of these presumption.

ii. Irrebuttable Presumption of law or conclusive Presumption (fall under category of

conclusive proof)-
The conclusive or irrebuttable presumption of law are those legal rules which cannot be ruled
out by any evidence.

Example :-
1. Nothing is an offence which is done by a child under 7 years of age.
A child under the age of seven years is presumed that he is not capable of committing any
crime. No party can give evidence to this disprove this fact.
 Presumption of Fact Presumption of law
1. Presumption of fact is based on logic, human 1. Presumption of law is based on provision of
experience and law of nature law
2. Presumption of fact is always rebuttable and goes 2. Presumption of law is conclusive unless
away when explained or rebutted by established of rebutted as hed provided under rule giving rise
positive proof. to presumption
3. The position of presumption of fact is uncertain and 3. The position of presumption of law is certain
transitory. and uniform.
4. The court can ignore presumption of fact however 4. The court can’t ignore presumption of law.
strong it is.
5. The Court can exercise its discretion while drawing 5. Presumption of law is mandatory i.e. court is
presumption of fact i.e. presumption of fact is bound to 1 draw presumption of law.
discretionary presumption.
Section 5 – Evidence may be given of facts in issue and relevant facts

Evidence may be given of facts in issue and relevant facts. Evidence may be given in any suit
or proceeding of the existence or non-existence of every fact in issue and of such other facts as
are hereinafter declared to be relevant, and of no others.
Illustration -
(a) A is tried for the murder of B by beating him with a club with the intention of causing his
death. At A's trial the following facts are in issue:-
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
Evidence may be given in any suit or proceeding of the existence or non-existence of every
fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Main Principle - This section declares that in a suit or proceeding A Party can give evidence
of (1) fact in issue, and (2) Relevant Fact and of no others.

"And of no others" - This section excludes everything which is not declared relevant under
any of the Sections 6 to 55. A party trying to adduce a particular evidence has to show that the
evidence desired to be adduced is relevant under one or more of the sections then only it may
be admissible as an evidence in the court.

Exception - Facts not Relevant in the case - Still Admissible : Under section 155 the evidence
for impeaching the credit of witness(bribed witness) is permissible which is not a relevant fact
in the case.

Facts Relevant in the Case - Still Inadmissible

(i) Under Section 25 - A Confession made to a Police Officer and Under Section 26 -
Confession made while in Custody by a person even if Relevant is not admissible in court.
In case of Privileged Communications (Section 121-131) a Fact may be relevant but still Party
is not allowed to prove it by giving evidence.
(ii) Explanation of Section 5 - The Explanation lays down that if there is a specific provision
in CPC which disentitles a party to give evidence of a particular fact then despite the fact is a
Relevant Fact or Fact in Issue the party concerned will not be allowed to give evidence of the
fact.
Example - Order 7 Rule 14 CPC - Where a plantiff relies upon a document in support of his
claim he shall enter such document in a list annexed to plaint or shall produce the document
when the plaint is presented but if he did not enter that document in a list or did not produce it
with plaint then court can reject that document if it produced later on.

Relevancy
Relevant. - One fact is said to be relevant to another when the one is connected with the other
in any of the ways referred in Section 6 to 55.
Whenever a particular event happened there will be certain surrounding events which will also
exist and these surrounding events will have a logical connection with the happening of the
main event. These surrounding events will be called the logically relevant facts as they have a
logical connection with the main fact. Relevancy is a situation where in the happening of one
event is logically. suggestive to the judicial mind that the other event may have or may not have
happened.
Ex: X murdered. Surrounding facts X was alone and Y was having enmity with X.

Logical Relevancy and Legal Relevancy

A particular incident or fact may not take place in isolation and it certainly will be surrounded
by some facts which will have logical connection with the Main Fact, this connection is called
logical relevancy.
However Indian Evidence Act is not concerned with the logical relevancy rather it is
concerned with legal relevancy. A fact will be relevant if it is legally relevant and for the
purpose of Indian Evidence Act legal relevant facts are those facts which are connected with
fact in issue or some other relevant fact in one of the manners as provided under Section 6 to
55.
Logical relevancy is the essence behind Legal relevancy and every fact which is found to be
legally relevant in the Indian Evidence Act also has to be logically relevant. Every fact which
is found to be legally relevant in the Indian Evidence Act has also to be logically relevant there
cannot be any case in which a fact is logically not connected ie there is an illogical connection
and still it is found to be legally relevant. So theoretically there may be difference between
legal relevancy and logical relevancy but in practical there is no difference between the two.
Admissibility

All the relevant facts which are admissible by the court are called admissibility.

In Section 136 Para 1 - Court has got the power to require the party to first to prove the
relevancy of fact and then allow him to give the evidence. The Judge shall Admit the evidence
if he thinks that the fact, if proved, would be relevant.
It implies that judge shall only admit relevant facts.

According to Section 165 Proviso the Judgment in a case shall be based upon relevant facts
only and only that relevant fact which are duly proved. Thus relevant fact which are not duly
proved cannot be taken into consideration by the court in deciding the case.

Relevant Fact + Duly Proved = Admissible

Duly Proved
- There is no guideline as to when the court will consider the Fact to be Duly Proved.
- It can be by giving Evidence of Relevant Fact the Court will Consider it to be Duly Proved.
For Example - If a Witness is Produced and makes a Statement(Evidence) Related to Relevant
Fact and In his Cross-Examination he sustains. Then the Fact will be Considered to be duly
proved.
- Some Facts may be Relevant but they cannot be duly proved in court ie if they are excluded
by any provision of law to be admissible.

In Ram Bihari Yadav v. State of Bihar, the Supreme Court speaking through Mohd.
Quadari J., said that, more than often the expression relevancy and admissibility are used as
synonym but their legal implications are different because more often than not facts which are
relevant may not be admissibles; for example, the communication made by spouse during
marriage, the communication between an advocate and his client, though relevant are not
admissible.
 ADMISSIBILITY RELEVANCY
It is not based on logic but strict rules of law It is based on logic and probability
The rules of admissibility are described after S. 56 of the The rules for relevancy are described in Ss. 6 to
Act 55.
The rules of admissibility are to declare whether certain
The rules of relevancy declares what is relevant.
type of relevant evidence is to be admissible or not.
Admissibility is means and of modes for admissibility Rules of relevancy are where evidence is
of relevant evidence. admissible.
The facts which are relevant are not necessarily
The facts which are admissible are necessarily relevant.
admissible.

If evidence is irrelevant but admitted by trial court, objection can be raised at any stage.
The question of relevancy is question of law and can be raised at any stage. But if the
evidence is relevant but proof is improper and evidence is admitted, no objection can be
taken afterwards.
Section 6 – Relevancy of facts forming part of same transaction

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.

ILLUSTRATION- (a) 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.

Basis of the rule - Every fact is a part of other fact there is no fact which is unconnected with
other fact. Section 6 Lays down that the facts which are so connected with the facts in issue
that they form part of same transaction are relevant fact.

Same Transaction - The Definition of the word is given by Stephen who says - A transaction
is a group of facts, connected together to be referred to by a single legal name, a crime, a
contract, a wrong or any other subject of enquiry which may be in issue.

Illustration
A have an intent to Commit Robbery in a Bank. He Borrowed a Bike for this
-He Reached the Bank on Bike with Weapons.
- When he reached then people at the Bank shouted and People who were around the bank also
heard the people shouting.
- A made a statement that " if money is not given to me then i will shoot you all."
-A Got the money and he escaped.

Here A has done a Transaction ie Robbery and he will be tried for the same. Facts which forms
the part of this Transaction(Robbery) are Connected Facts and will be Relevant. In A's Trial the
Fact in Issue will be Whether A has Committed Robbery(Transaction) or not and the facts
which are connected with Transaction as to form part of it will be Relevant. These Facts will
be Relevant even if they have occurred at same time and same place or different times or
different places.
Res Gestae - The principle underlying section 6 is termed as Res-Gestae. This phrase simply
means 'things said and done in the course of transaction". The Facts Which Surround the
happening of an event are its Res-Gestae.
Every case that comes before a court of law has a fact story behind it. Every fact story is made
of certain acts, omissions and statements. Every such act, omission or statement as throws some
light upon the nature of the transaction or reveals its true quality or character should be held as
a part of the transaction and the evidence of it should be received.

In Ratten v. The Queen, A man was prosecuted for the murder of his wife. His defence was
that the shot went off accidently. There was evidence to the effect that the deceased telephoned
to say: "Get me the police please". Before the operator could connect the police, the caller, who
spoke in distress, gave her address and the call suddenly ended. Thereafter the police came to
the house and found the body of a dead woman. Her call and the words she spoke were held to
be relevant as a part of the transaction which brought about her death. Her call in distress
showed that the shooting in question was intentional and not accidental. For no victim of an
accident could have thought of getting the police before the happening.
This then is the utility of the doctrine of res gestae. It enables the court to take into account all
the essential details of a transaction.

Acts or Omissions as Res Gestae

Nature of the Transaction itself indicates what should be its essential parts,
• Where For Example, There is a conspiracy to overthrow the Government of India by force,
funds for the purpose are raised at Calcutta, arms and ammunition at Madras and a task force
is trained at Bombay. All these acts, though isolated in time and space, are still the parts of the
same transaction.

• Where the question is whether certain goods were delivered in the performance of a contract.
The fact that they were delivered to several intermediaries in the process of ultimate delivery
to the buyer is relevant, each successive delivery being a part of the transaction. [Illustration
(d)
• If libel is contained in a letter forming part of a correspondence, the whole correspondence is
relevant. [Illustration (c)]
• Robbery Example (Previously Discussed)
Statements as Res-Gestae
Statements may also accompany physical happenings.
An injured person, for example, is naturally bound to cry. He may cry under pain or for help or
spell out the name and description of his attacker.
If the transaction, e.g., an accident, happened in a public place, a number of bystanders will
make mutual conversation about the incident. The question is to what extent such statements
can be regarded as parts of the transaction. Illustration (a) deals with a situation of this kind.
The illustration supposes that a man has killed another by beating him. Whatever was said or
done by the offender and the deceased 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.

In the application of this principle the courts have been very strict and cautious. For, statements
can be easily concocted. Hence the principle that the statement should have been made so soon
before or after or along with the incident that there was hardly any time to deliberate and
thereby to fabricate a false story.

Case Laws Related to Statements forming Part of Transaction

• Rattan v. State of Himachal Pradesh (1997) SC

Where shortly before the incident in which a woman died of gun shot, she exclaimed that a
man was standing near her with a gun in his hand, the statement was held to be sufficiently
proximate in time to the happening as to be a part of the same transaction.

• Sukhar v. State of U.P., 1999, SC

The victim was shot by the accused and he raised an alarm. When a witness rushed to the spot,
the victim told him that it was the accused who shot at him. The victim survived and so the
accused was charged with an offence under Section 307, IPC. However, during the pendency
of the trial, the victim died because of some other cause. The question arose whether the witness
could give evidence of what the victim told him. In the present case, the Court held that the
evidence of the witness is admissible as res gestae.
The Court observed the statements sought to be admitted, as forming part of res gestae, must
have been made almost contemporaneously with the acts or immediately thereafter and there
should not be an interval which would allow fabrication.
Hearsay and Res-Gestae
Hearsay evidence means the statement of a person who has not seen the happening of the
transaction, but has heard of it from others. Hearsay evidence are not admitted However the
doctrine of Res-Gestae constitutes an exception to the principal of hearsay.

R. v. Foster (1834)
The prisoner was charged with manslaughter in killing a person by driving over him.
A witness saw the vehicle driven by at a very rapid rate, but did not see the accident.
Immediately after, on hearing the victim groan, he went up to him and asked him what was the
matter. The deceased then made a statement as to the cause of the injury.

The court held that "what the deceased said at the instant, as to the cause of the accident, is
clearly admissible". Although it was a derived knowledge, it being a part of Res-Gestae was
Admissible.
Section 7 – Facts which are the occasion, cause or effect of facts in issue
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts
in issue, Or which constitute the state of things under which they happened, or which afforded
an opportunity for their occurrence or transaction, are relevant.

The section thus provides for the relevancy of the following kinds of facts:
1. Facts constituting the occasion.
2. Facts which show the cause.
3. The effects of the principal facts.
4. Facts which provide the opportunity for the happening of the principal fact, and
5.Facts which constitute the state of things under which the principal facts happened.
(Principle fact is fact in issue)

Occasion- Evidence can always be given of the set of circumstances which constituted the
occasion for the happening of the principal fact.
In R. v. Richardson, the fact the deceased girl was alone in her cottage at the time o the murder
is relevant as it constituted the occasion for the murder.
Illustration (a) is also on the same point. If a man claims that he was robbed of money on the
occasion certain fair, he should be able to show that he had money with him, otherwise there
would be no occasion to rob him.
The fact that on the way he told one of his friends that he was going to the fair with money
would be relevant as this shows that he did have money with him.

Cause - Evidence can be given of the set of circumstances which constitute the cause for the
happening of the principal fact. "Cause" often explains why a particular act was done.
It helps the court to connect a person with the act. The act in question must have been done
by the person who had the cause for it.
If for example, a person is running short of money, that may cause him to take a loan.
And, if he denies the fact of the loan, evidence can be given of the circumstances which became
the cause of the loan.

Cause and Motive Relation - In this respect the word "cause" more or less means the same
thing as does the word "motive" in section 8. The word "cause" is however, broader than the
word "motive" . Where, for example, soon after an election the winning candidate is murdered,
the election and somebody's defeat at it is the cause of the murder and beyond that cause there
may be no motive in it.

Effects - Every act leaves behind certain effects which not only record the happening of the
act, but also throw light upon the nature of the act. For example, whether the death of a
particular person was caused by suicide or by murder is often determined by looking at the
effects of the incident, for suicide and murder have different effects. One of the important facts
which connects a person with the act in question is the footprints on the scene of the crime and
the finger impressions upon the objects that he might have touched.

In R. v. Richardson, where a young girl was killed in her cottage, "the prints of the footsteps
showed that they were those of a person who must have worn shoes, the soles of which had
been newly mended and which had iron knobs or nails in them." This is one of the effects of
the facts in issue. The fact that the accused Richardson's shoes corresponded exactly with this
impression in dimensions, shape of the foot, form of the sole, and the number and position of
the nails, was relevant as it so surely established Richardson's presence at the place of the crime.

Illustration (b) speaks of marks of struggle at or near the place where a murder has been
committed. Unexplained scratches on the face or the person of the accused are also the effects
of the facts in issue and, therefore, relevant as such.

Opportunity - The circumstances which provide an opportunity for the happening of a fact in
issue are relevant. Sometimes a person has to carve out for himself an opportunity to do the act
in question.

For example, the fact that (Accused left his fellow workers at about the time of the murder
under the pretence of going to a smith's shop was relevant as this gave the (Accused) his
opportunity.

In R. v. Donellan The deceased suffered from a ailment, for which he occasionally took a
laxative draught. It was usually served by his mother. The accused knew all this and also the
time at which it was usually served. He accordingly replaced the bottle with a bottle containing
the poison. The mother accordingly innocently administered poison to her son of which he
died. The fact of the accused's knowledge of the deceased's habit was held to be relevant as it
afforded an opportunity to the accused.

State of things - The facts which constitute the state of things under which or in the background
of which the principal facts happened are relevant. This category of facts, as enumerated in
section 7, would allow evidence of the state of relations between the parties, the state of the
health of the deceased and his habits, etc.

• Ratten v. Reginam
The accused was prosecuted for shooting down his wife and he took the defence of accident,
the fact that the accused was unhappy with his wife and was carrying an affair with another
woman was held to be relevant as it constituted the state of things in which the principal fact,
namely, the shooting down, happened.

Tape-recorded conversation
Tape-recorded conversation is relevant under Sections 6, 7 and 8 of the Evidence Act, it is res
gestae.

R.M Malkani v State of Maharashtra

The tape-recorded conversation is relevant provided first the conversation is relevant to matter
in issue, secondly, there is identification of voice and, thirdly, the accuracy of tape-recorded
conversation is proved by eliminating the possibility of erasing the tape-recorded conversation.