Fact, Fact in Issue and Relevant Fact under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Distinction and Illustrations

A trial is an enquiry into facts, and the Adhiniyam divides facts into three grades. Every matter capable of proof is a fact. Those facts which the substantive law and the pleadings require to be established are facts in issue. Those facts which the statute connects with a fact in issue are relevant facts. Section 3 permits evidence to be given of the second and third categories and of nothing else, so the classification determines the entire scope of the enquiry.

1. The Governing Provision

Section 3, BSA — 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.

Explanation. — This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure.

The words 'and of no others' carry the whole weight of the section. They establish that relevancy under the Adhiniyam is a closed system. A fact which does not fall within one of the heads set out in Sections 4 to 50 cannot be proved, however probative it may appear to ordinary reasoning. Section 3 corresponds to Section 5 of the Indian Evidence Act, and the Explanation preserves the operation of the procedural bars in the Code of Civil Procedure, 1908, such as the rule that a party cannot lead evidence on a plea not taken in the pleadings.

2. Fact

Section 2(1)(f), BSA

'Fact' means and includes —

(i) any thing, state of things, or relation of things, capable of being perceived by the senses;

(ii) any mental condition of which any person is conscious.

2.1 Physical and psychological facts

	Physical or external fact	Psychological or internal fact
Basis	Perceptible by the senses	A mental condition of which the person is conscious
Proof	Ordinarily by direct testimony of a person who perceived it, or by production of the thing itself	Ordinarily by inference from external facts, since a mental state cannot be directly perceived by another
Illustrations	That there are certain objects arranged in a certain order in a certain place; that a man heard or saw something; that a man said certain words	That a man holds a certain opinion; that he has a certain intention; that he acts in good faith or fraudulently; that he uses a particular word in a particular sense; that he is or was conscious of a particular sensation
Relevancy support	Sections 4 to 9	Sections 12 and 13, which make relevant facts showing the existence of a state of mind, and facts bearing on whether an act was accidental or intentional

The inclusion of mental states within the definition of 'fact' is of first importance in criminal law. Intention, knowledge, dishonesty, good faith, negligence and the existence of a particular belief are all facts capable of proof, and are ordinarily in issue because the substantive law makes them ingredients of the offence. They are proved by inference from conduct, from circumstances and from the ordinary course of human affairs.

2.2 Positive and negative facts

The existence of a state of things is a positive fact; its non-existence is a negative fact. Both are facts within the definition, and both are capable of proof. Section 3 itself refers to evidence of 'the existence or non-existence' of a fact in issue. In practice a negative fact is harder to establish, which is why the burden of proving a fact especially within the knowledge of a party is placed upon that party by Section 109.

⚠ Fact distinguished from law

The Adhiniyam regulates the proof of facts, not the proof of law. The law in force in India is a matter of which the court takes judicial notice under Section 52 and is not proved by evidence. Foreign law, by contrast, is treated as a question of fact in Indian courts and is ordinarily proved by expert opinion under Section 39, which expressly extends to a point of foreign law. A custom having the force of law occupies an intermediate position, and Section 42 makes relevant the opinions of persons likely to know of the existence of a general custom or right.

3. Facts in Issue

Section 2(1)(g), BSA

'Facts in issue' means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation. — Whenever, under the provisions of the law for the time being in force relating to civil procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

3.1 The two elements

A right, liability or disability must be asserted by one party and denied by the other. A fact about which there is no dispute is not a fact in issue. Section 53 provides that facts admitted need not be proved, and once a fact is admitted on the pleadings it ceases to be in issue.
The existence, non-existence, nature or extent of that right, liability or disability must 'necessarily follow' from the fact. The connection is one of legal necessity, not of probability. This is what distinguishes a fact in issue from a relevant fact, from which the conclusion follows only as an inference.

3.2 How facts in issue are ascertained

Proceeding	Source	Mechanism
Civil suit	The pleadings	The court frames issues under Order XIV, Code of Civil Procedure, 1908 on the material propositions of fact or law affirmed by one party and denied by the other. Each issue of fact so recorded is a fact in issue, as the Explanation to Section 2(1)(g) states expressly
Criminal trial	The charge, read with the substantive law	The Bharatiya Nyaya Sanhita, 2023 supplies the ingredients of the offence. Each ingredient that the prosecution must establish is a fact in issue, together with any fact constituting a defence or exception that is put in issue
Both	Substantive law	The law of evidence never determines what must be proved. It determines only how it may be proved. Whether a particular fact is a fact in issue is a question of substantive law and pleading

3.3 Illustration

On a charge that the accused caused the death of a person by an act done with the intention of causing death, the facts in issue would ordinarily be:

that the deceased is dead;
that the death was caused by an act of the accused;
that the accused intended to cause death, or such bodily injury as was likely to cause death;
that the accused was of sound mind at the time of the act; and
where an exception such as grave and sudden provocation or private defence is pleaded, the facts constituting that exception.

The motive of the accused, his preparation for the act, the fact that he was last seen with the deceased, the recovery of a weapon at his instance, and his conduct after the incident are not facts in issue. Each of them is a relevant fact, from which a fact in issue may be inferred. None of them by itself, and none of them necessarily, establishes any ingredient of the offence.

4. Relevant Facts

Section 2(1)(k), BSA

One fact is said to be 'relevant' to another when the one is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts.

The definition is circular in form, and deliberately so. It refers the reader to Sections 4 to 50, which constitute an exhaustive catalogue of the ways in which one fact may be connected with another for the purposes of proof. Relevancy under the Adhiniyam is therefore a statutory category and not simply a logical one.

4.1 Logical and legal relevancy

	Logical relevancy	Legal relevancy
Basis	Ordinary reasoning and probability. A fact is logically relevant if its existence makes another fact more or less probable	Statutory recognition. A fact is legally relevant only if it falls within one of the heads in Sections 4 to 50
Scope	Wider	Narrower
Relationship	Every legally relevant fact is also logically relevant	Not every logically relevant fact is legally relevant
Example	That the accused is a person of bad character makes it marginally more probable that he committed the offence	Section 49 excludes evidence of the bad character of an accused in a criminal proceeding except in the cases specified, so the fact is not legally relevant

4.2 The heads of relevancy

Head	Sections	Substance
Res gestae	4	Facts so connected with a fact in issue as to form part of the same transaction, whether they occurred at the same time and place or at different times and places
Occasion, cause and effect	5	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
Motive, preparation and conduct	6	Any fact showing a motive or preparation for any fact in issue; the previous or subsequent conduct of any party or his agent, and of a person against whom an offence is committed, where the conduct influences or is influenced by a fact in issue
Explanatory and introductory facts	7	Facts necessary to explain or introduce a relevant fact, to support or rebut an inference suggested by it, to establish the identity of a thing or person, to fix the time or place, or to show the relation of parties
Conspiracy	8	Anything said, done or written by a conspirator in reference to the common design, after the time when the intention was first entertained
Facts otherwise irrelevant	9 and 10	Facts inconsistent with a fact in issue, and facts making the existence of a fact in issue highly probable or improbable; facts enabling the court to determine the amount of damages
Rights and customs	11	Facts asserting or denying the existence of any right or custom
State of mind, body or bodily feeling	12	Facts showing the existence of any state of mind such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will, or of any state of body or bodily feeling, where the existence of such a state is in issue or relevant
Accident or intention	13	Facts showing whether an act was accidental or intentional, or done with a particular knowledge or intention, where the question arises
Course of business	14	Where the question is whether a particular act was done, the existence of a course of business according to which it naturally would have been done
Admissions and confessions	15 to 25	Statements suggesting an inference as to a fact in issue or relevant fact, made by parties and certain other persons, and confessions by an accused
Statements by persons who cannot be called	26 and 27	Dying declarations and other statements of persons who are dead, cannot be found, have become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense; and evidence given in a former proceeding
Statements under special circumstances	28 to 32	Entries in books of account, in public records and in registers; statements in maps, charts and plans; statements in Acts and notifications
Judgments of courts	34 to 38	Judgments in probate, matrimonial, admiralty and insolvency jurisdiction; judgments relating to matters of a public nature; and other judgments in the circumstances specified
Opinions of third persons	39 to 45	Opinions of experts on points of foreign law, science, art, handwriting, finger impressions or any other field; opinions as to handwriting, electronic signature, custom, relationship and usage
Character	46 to 50	Character in civil cases; the good character of an accused; the bad character of an accused, only in the cases specified

5. Factum Probandum and Factum Probans

The relation between the two categories is captured by a classical distinction.

	*Factum probandum*	*Factum probans*
Meaning	The fact to be proved	The fact by means of which it is proved
Corresponds to	Fact in issue	Relevant fact
Character	The ultimate proposition which the party must establish; determined by the substantive law and the pleadings	The evidentiary proposition offered in support; determined by the heads of relevancy
Example	That the accused intended to cause death	That the accused purchased poison a week earlier; that he had a motive; that he concealed the body

A single fact may occupy either position depending on the stage of the reasoning. That the accused purchased poison is a relevant fact in relation to the charge of homicide, but it is itself a proposition that must be established by evidence, and in relation to the shopkeeper's testimony it is the fact to be proved.

6. Fact in Issue and Relevant Fact Distinguished

	Fact in issue	Relevant fact
Definition	Section 2(1)(g)	Section 2(1)(k)
Source	The substantive law and the pleadings or the charge	Sections 4 to 50 of the Adhiniyam
Connection with the right or liability	The right, liability or disability necessarily follows from it	It is connected with a fact in issue in a manner the Adhiniyam recognises; the conclusion follows only as an inference
Also called	Factum probandum; principal fact	Factum probans; evidentiary fact
Necessity	Must be proved for the party to succeed	Need not be proved; it is a means of proving a fact in issue, and a party may succeed without it if the fact in issue is otherwise established
Number	Fixed and limited by the pleadings or the charge	Open-ended, limited only by the heads of relevancy
Effect of failure	The party bearing the burden fails	No direct consequence; only the inference is weakened
Example in a homicide trial	That the accused caused the death; that he intended to do so	Motive; preparation; last seen together; recovery of the weapon; conduct after the incident

The two categories are treated identically by Section 3, which permits evidence to be given of both. The distinction nevertheless matters at three points: in determining the burden of proof, which attaches to facts in issue and not to relevant facts; in assessing the sufficiency of the evidence, since a finding must ultimately rest on the facts in issue; and in a case resting on circumstantial evidence, where the relevant facts must form a chain complete enough to establish the facts in issue.

📖 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116

Held: Where a case rests on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully established; the facts so established should be consistent only with the hypothesis of the guilt of the accused; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with innocence.

Application to this topic: The circumstances referred to are relevant facts. The judgment states the standard which relevant facts must satisfy before the facts in issue may be held proved on their strength alone.

📖 Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532

Held: The word 'evidence' is used in common parlance in three senses — as equivalent to relevant, as equivalent to proof, and as equivalent to the material on which the court acts in reaching its conclusion. The statutory definition adopts the third sense.

Application to this topic: Relevancy and proof are distinct. That a fact is relevant means only that evidence of it may be given, not that any conclusion follows from it.

7. Working Illustration

A is prosecuted for the murder of B, who died of poisoning. The prosecution case is that A administered poison in B's food.

Fact	Classification	Provision
That B is dead	Fact in issue	Section 2(1)(g)
That B's death was caused by poison	Fact in issue	Section 2(1)(g)
That the poison was administered by A	Fact in issue	Section 2(1)(g)
That A intended to cause B's death	Fact in issue	Section 2(1)(g)
That A stood to inherit B's property	Relevant fact — motive	Section 6
That A purchased a quantity of the same poison a week earlier	Relevant fact — preparation	Section 6
That A was seen serving food to B shortly before the onset of symptoms	Relevant fact — same transaction, and opportunity	Sections 4 and 5
That A absconded immediately afterwards	Relevant fact — subsequent conduct	Section 6
That the chemical examiner found the poison in the viscera	Relevant fact — expert opinion	Section 39
That A had previously been convicted of an unrelated offence	Not relevant	Section 49 — previous bad character of an accused is irrelevant except in reply
That B, shortly before dying, told a neighbour that A had given him the food	Relevant fact — statement as to the cause of death	Section 26

Evidence may be given of every entry in the table except the tenth. That entry may be logically relevant in the loose sense that it bears on the probability of A having committed an offence, but it is not legally relevant, and Section 3 accordingly bars proof of it.

8. Related Topics and Provisions

Topic or provision	Connection
Important Definitions under Section 2, BSA	The full text and analysis of the definitions applied here
Relevancy and Admissibility of Evidence — Difference	What happens once a fact is found to be relevant
Nature and Meaning of Evidence	The classification of evidence and the meaning of 'proved' under Section 2(1)(j)
Sections 4 to 50, BSA	The heads of relevancy in full
Sections 104 to 120, BSA	Burden of proof, which attaches to facts in issue
Order XIV, Code of Civil Procedure, 1908	Framing of issues, referred to in the Explanation to Section 2(1)(g)
Bharatiya Nyaya Sanhita, 2023	Supplies the ingredients of the offence, and therefore the facts in issue in a criminal trial