Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Part I > Facts and Their Classification (S. 2(f) BSA, 2023)
The Law of Evidence revolves around two cardinal things: facts and proof. It is these two things that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Where the court believes the facts shown by a party in any proceeding exist or when it is convinced that a reasonable person would see them as existing, the fact is said to be proved. If the court is not satisfied that those facts exist or is convinced that a reasonable person would not see them as existing, the fact is said to be “disproved”. Thus ‘Facts’ are important in any case. In this article, we shall study facts and their classification.
Steve Uglow in his book ‘Evidence: Text and Materials’ 1997 Edition says the term “fact” is being used in three different senses:
- the information provided by the witness and other evidence;
- the conclusion drawn by the trier of fact from the information presented in Court as to what actually happened; and
- the legal concepts, facts in issue, that must be established if a particular party to legal proceedings is to succeed.”
Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023
According to Section 2(f) of the Bharatiya Sakshya Ashiniyam, 2023,
“Fact” means and includes:
- anything, state of things, or relation of things, capable of being perceived by the senses;
- any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
Classification of Facts:
Depending Upon Perception:
Depending upon whether the fact is perceived by senses or not, facts are classified into two types
- Physical facts and
- Psychological facts
Physical facts:
In the context of the Bharatiya Sakshya Adhiniyam, 2023, the term “physical facts” refers to material, tangible, or observable objects and occurrences that are relevant to a case. Clause (1) of Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023 refers to the things which are subject to perception by bodily senses (vision, touch, taste, hearing, Smell). Such things which are subjected to the perception of bodily senses are called physical facts. They are also called external facts because they are present outside the body and perceived by senses (refer to illustrations (a), (b), and (c)). These facts can be felt by other persons easily.
Physical facts include both animate and inanimate objects because both of them has common characteristics that they possess physical bodies.
- Human body dead or alive is a physical fact
- A drunken driver is a physical fact
Physical facts, when properly presented and connected to the facts in issue, can contribute to a comprehensive understanding of the events under consideration in legal proceedings.
Psychological Facts:
Clause (2) of Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023 refers to those facts, which cannot be perceived by senses and are ‘Psychological Facts’ (refer to illustrations (d) and (e)). They are also known as internal facts. Psychological facts are not subject to perception by bodily senses (vision, touch, taste, hearing, Smell) . These facts have seat in animate being. Opinion, intention, good faith, fear, ill-will, anger, hatred, knowledge, betrayal, etc. comes under psychological facts. Psychological facts can only be felt by the person who is entertaining those feelings and not by others unless those internal feelings are manifested through expressions and actions by that person.
- Intention to kill a person
- Hatching a conspiracy
- A fraudulently sold his car to B.
- A has a bad opinion about B.
While the Bharatiya Sakshya Adhiniyam, 2023 does not explicitly use the term “psychological facts,” it provides for the admission of evidence that is relevant to understanding the mental and emotional aspects of individuals involved in legal proceedings.
Distinguishing Between Physical Facts and Psychological Facts:
| Physical Facts | Psychological Facts |
| Clause (1) of Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023 refers to the things which are subject to perception by bodily senses (vision, touch, taste, hearing, Smell) are called physical facts. | Clause (2) of Section 2(f) of the Bharatiya Sakshya Adhiniyam, 2023 refers to those facts, which cannot be perceived by senses and are ‘Psychological Facts’ |
| They are also called external facts because they are present outside the body. | They are also called Internal facts because they are present inside the body in the mind of a person. |
| These facts can be felt by other persons easily. | They can only be felt by the person who is entertaining those feelings and not by others unless those internal feelings are manifested through expressions and actions by that person. |
| Examples: a man heard or saw something, a man said certain words, etc. | Examples: a man holds a certain opinion, a man has a certain reputation, etc. |
Depending Upon Existence:
Depending upon the Existence of the Facts they are classified into two types
- Positive facts and
- Negative facts.
In legal contexts, such as those governed by the rules of evidence, positive and negative facts refer to two different types of propositions or assertions. These terms are often used in the context of burden of proof and the presentation of evidence in court.
Positive Fact:
Presence or existence of fact is a positive fact. They are affirmative and present. For example, A killed B. There are blood strains on the ground and a deep wound on the abdomen of B with blood oozing out. There is a knife in hand of A. All these facts are in existence, hence they can be called positive facts. It is easier to prove positive facts.
Negative Fact:
The absence or non-existence of a fact is called a negative fact. They are not present. Examples: nothing is heard about A for the last 5 years, Nobody has seen both A and B together for the last month. No weapon is found near the murder site, etc. They are not easy to prove.
In the context of evidence law, the burden of proof typically lies with the party making the positive assertion. For example, in a criminal case, the prosecution has the burden to prove the guilt of the accused (positive fact). In a civil case, the plaintiff has the burden to prove the elements of their claim.
Distinction between Positive Facts and Negative Facts
Under evidence law, distinguishing between positive facts and negative facts is significant because it influences the burden of proof and the standard of evidence required. The distinction impacts how evidence is presented and evaluated, with courts often taking practical considerations into account to ensure fairness.
| Positive Facts | Negative Facts |
| Positive facts assert the existence or occurrence of something. They are statements affirming that a particular event or fact exists or has happened. | Negative facts assert the non-existence or absence of something. They are statements denying that a particular event or fact exists or has happened. |
| Positive facts are often easier to prove because they involve actions, events, or tangible evidence that can be directly shown (e.g., eyewitness testimony, documents, or physical evidence). | Proving a negative fact can be more challenging, as it often involves demonstrating the absence of evidence or action. |
| Evidence supporting positive facts may include witness testimony, physical evidence, documentation or records | Evidence supporting negative facts often involves lack of evidence where it would reasonably be expected, circumstantial evidence suggesting an absence, cross-examination of opposing evidence |
| The party asserting a positive fact generally bears the burden of proving it. | Depending on the legal context, the burden may shift. In some cases, the party asserting the negative fact must provide evidence to support their claim. In others, the opposing party may need to prove the positive counterpart of the negative fact. |
| Example: “The accused was present at the scene of the crime.” | Example: “The defendant did not sign the contract.” |
A key application of this distinction is the presumption of innocence. The prosecution must prove the positive fact of guilt, not the defendant the negative fact of innocence. When a negative fact is central to a claim, courts may shift the burden to the opposing party if proving the negative would be unduly difficult (e.g., proving a negative fact about events that didn’t happen). Proving a negative often relies on eliminating all reasonable alternatives, which can be inherently more complex.
Depending on Sequence of Inference:
Facts can also be classified as
- Primary fact and
- Secondary fact
Primary fact is the fact, which is collected directly and specifically. There are second, third, fourth, etc. level of facts those can be inferred from immediately preceding primary facts and can be used as credible circumstantial evidence. Ho Hock Lai in his book ‘A philosophy of Evidence Law: Justice in Search of Truth’, published by Oxford Edition Press, 2008 Edition, says that “More generally, proposition of fact come at different levels of formulation or abstraction and differentiation is more fine-grained than is suggested by the simple two-fold classification. The proposition that the husband put arsenic in his wife’s coffee is basic relative to the proposition that the husband caused the wife’s death, which is turn is more basic than the proposition that the husband murdered his wife.”
Distinguishing between Primary Facts and Secondary Facts
Under the law of evidence, primary facts and secondary facts are two types of facts distinguished by their role in establishing the truth and their evidentiary value in judicial proceedings. Primary facts are the raw, directly observed elements of a case, while secondary facts are the interpretations or inferences drawn from those elements. Both are integral to constructing a legal argument and proving a case.
| Primary Facts | Secondary Facts |
| Primary facts, also known as evidentiary facts, are the basic, foundational facts that are directly perceived by witnesses or established through concrete evidence. | Secondary facts, also known as inferential facts or presumptive facts, are facts that are derived or inferred from primary facts. |
| These facts are the building blocks upon which a case is constructed. | These facts require reasoning or interpretation to be established. |
| They are derived from direct evidence, such as eyewitness testimony, physical objects, or documents. | They are dependent on primary facts for their establishment. |
| They do not require inference or interpretation to establish. | They involve logical reasoning or interpretation to connect the evidence to the ultimate issue. |
| They serve as the factual basis upon which other facts may be inferred or established. | They may be subject to debate or alternative interpretations. |
| Primary facts are presented to the court directly and are typically supported by first hand evidence. | Secondary facts often contribute to proving the ultimate fact or issue in a case, such as intent, negligence, or causation. |
| They are crucial for establishing what actually occurred. | They are essential in building the narrative and persuading the court of a party’s argument. |
| It Requires direct evidence, such as testimonies, physical evidence, photographs or video recordings | It is established through logical inferences from primary facts, circumstantial evidence, expert testimony interpreting primary facts |
| Example: The witness saw the defendant leaving the crime scene at 10 PM. | Example: The defendant must have committed the crime because they were the only person seen leaving the scene. |
A party must establish both primary and secondary facts to persuade the court of their argument. Primary facts provide the groundwork, while secondary facts establish the broader narrative or implication. Courts give significant weight to primary facts because they are more objective and direct. Secondary facts are scrutinized for logical coherence and the strength of the inferences drawn. The burden often lies in proving primary facts first, as secondary facts rely on them for substantiation.
Future Facts:
Facts which are merely likely to occur and have not already occurred are not facts within the meaning of Section 3 of the Indian Evidence Act, 1872.
In Dueful Laboratory v. State, 1998 Cr LJ 4534 (Raj) case, the Court held that events which have neither occurred in the past nor in the present but are likely to occur in the future does not fall within the ambit of the definition of “Fact” under the Indian Evidence Act, 1872 ( The Bharatiya Sakshya Adhiniyam, 2023).
In Uday v. State of Karnataka 2003 (4) SCC 46 case, the question was whether sexual intercourse, consent to which was given on a false promise of marriage, is rape or not. The Supreme Court on a re-appreciation of evidence found that neither was the prosecutrix a minor at the relevant time nor did the appellant have sexual intercourse with the prosecutrix “against her will”. The charge of rape was then sought to be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90. The Supreme Court, accepting this contention, ruled that a false promise of marriage is covered by the expression “misconception of fact” and a consent thus obtained is vitiated by Section 90; accordingly, it was held that sexual intercourse, consent to which is obtained by making a false promise of marriage, is rape within the meaning of Section 375 of I.PC. However, in the instant fact situation, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C. The Supreme Court observed: “.. the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of the fact. A false promise is not a fact within the meaning of the Code.”
Conclusion:
Facts and proof are very important aspect of the Law of evidence. It is these two things that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Thus the essence of a judicial investigation lies in the enforcement of right or liability which depends on certain facts and the proficiency of a witness. Hence understanding the concept of “facts” is very important for the study of the law of evidence. In the next article, we shall study the concept of proved fact, disproved fact, and not proved fact.
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