Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Part II > When Facts not Otherwise Relevant Become Relevant (S. 9 BSA)

Object of Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is to admit those facts which will help in sorting fact in issue even though they are irrelevant and this section enlarges the scope of admission of relevant facts. But limitation is put by the provisions of section 4 to section 50, i.e., if that fact is relevant under these provisions then any irrelevant fact will be admissible under Section 9. At first sight, it would appear that this section would make every fact relevant because of the wording of clause (b). But care must be taken not to give this section an improperly wide scope by a liberal interpretation of the phrase “highly probable or improbable”. A fact is neither declared to be relevant, nor declared to be not relevant. It may be relevant under Section 9 BSA, if the requirements of that section are fulfilled. In tghis article we shall discuss section 9 BSA and particularly the doctrine of plea of alibi.

Section 9 BSA:

According to Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 facts not otherwise relevant are relevant—

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations:

(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Ladakh is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.

Section 9(1) BSA:

Under Section 9(1) the proof of the existence of some fact becomes relevant as it disproves the fact in issue. There are 5 classes of cases that are considered:

• Plea of alibi,
• Non access of husband to show legitimacy of issue;
• Survival of the deceased;
• Commission of the crime by a third person and
• Self-infliction of harm. v. The plea of alibi

Plea of Alibi:

Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 recognized a defence of Pea of Alibi. The term Alibi is a Latin term which implies elsewhere or somewhere else. Alibi is used as a defence in criminal proceedings by the accused against the commission of the alleged offence. The accused makes this plea in the court so that he or she can prove his or her innocence that at the commission of the offence, he or she was in some other place. In general, plea of alibi implies that the accused was not physically present during the commission of the offence; he was elsewhere or somewhere else.

Illustration (a) attached to Section 9, BSA is the example of plea of alibi. It says that the question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

Essentials of Plea of Alibi:

In general, some of the factors to be adhered are as follows:

• There must be an allege offence punishable by law.
• The person making the plea of alibi must be an accused in that offence.
• It is a plea of defence where the accused states that he or she was somewhere else at the commission of the offence.
• The plea must prove beyond reasonable doubt that it was impossible for the accused to be physically present at the time of the commission of the offence.
• Making the plea of alibi must be from an accused in that offence.

However, the plea of alibi is not maintainable in all cases. Some of them are as under: This plea of alibi is not maintainable in tort such as defamation, contributory negligence cases. A plea of alibi is not applicable in matrimonial cases such as divorce, maintenance etc. A plea of alibi operates as an exception to the Right of Silence.

It is always wise to raise the plea of alibi as early as possible in the initial stage of a case. This initial stage could be the stage of framing of charge. But in some jurisdictions, it may be required by the accused to disclose the defence prior to the trial.

In, Lakhan Singh @ Pappu v. The State of NCT of Delhi, Delhi HC Crl Appeal No. 166/1999 case, the High Court of Delhi observed that a plea of alibi cannot be compared with a plea of self-defence although both the plea is to be taken on the very first instance of the court proceedings.

In Dudh Nath Pandey v State of UP the Supreme Court said that the plea of alibi must be proved with absolute certainty, so as to make the presence of the accused at the crime scene, impossible.

Binay Kumar Singh v. The State of Bihar We must bear in mind that alibi, not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act (S. 9 BSA) that facts which are inconsistent with the fact in issue are relevant. The defence witness stated that the accused was present at his brick kiln and signed certain challan papers, not showing the time of their issue, held alibi had not established.

In, Sahabuddin v. the State of Assam, Criminal Appeal No. 629 of 2010 case, the Court observed that once the court is in doubt with respect to plea of alibi and the accused does not give any substantive explanation to support his statement under Section 313 CrPC (S. 351 BSA), then the Court is authorised to conclude a negative or not a positive inference against the accused.

Non access of a husband to show legitimacy of an issue:

Since legitimacy of the child implies a cohabitation between husband and wife, for disproving the legitimacy the husband has to prove that he had no cohabitation with his wife during the probable time of begetting as he was in abroad.

For example: A has a baby C, 6 months after her marriage, B her husband believes that the child is illegitimate. It would be relevant for him to prove that he had no access to his wife before the wedding.

Survival of the deceased:

The victim was alive on a date subsequent to the date on which it is alleged that the accused committed his murder, is relevant under clause (1) of Section 9 BSA, as the same is inconsistent with the charge against the accused.

For example: If A is accused of murdering B on 10 October 2010, and A offers to prove that he saw B on the 31st of October. Such information would be relevant.

Commission of a crime by a third person:

Where a person accused of an offence wants to show that the offence was committed by some other person, in the circumstances in which the offence could not have been committed by both of them, the fact is relevant under cl. (1) of Section 9 BSA.

For example: A is charged with the murder of B. However, A can prove that C murdered B, because the fact that C murdered B is brought forth now becomes relevant.

Self infliction of harm:

The victim committed suicide, is a fact relevant under cl. (1) of Section 9 BSA to show that he was not murdered by the accused.  

For example: A is charged with the murder of B. A can prove that B committed suicide which resulted in his death becomes relevant.

Non-execution of Document:

A document has not yet been executed is a relevant fact in a suit for performance of obligation under that document, because until and unless the document is executed, no obligation arises under it.

For example: A files a suit for recovery of possession against В alleging that he has purchased the land. В leads evidence that the deed of sale was not executed as yet. The fact is relevant

Evidences of all above circumstances can be given under Section 9(1) of the Bharatiya Sakshya Adhiniyam, 2023.

Section 9(2) BSA

Under Section 9(2) facts are relevant only because only if they are proved either they become highly probable or improbable regarding the existence or non-existence of the fact in issue or other relevant facts. This sub clause deals with both the affirmation and negation of the fact in issue or relevant facts. If the facts are of little importance they will not be admissible under this section. For example, mala fide intention in commission of a previous crime cannot be used to prove mala fide intention in the present conviction. Furthermore, they should be of a probability more than the standard probability.

In order to make a collateral fact admissible, the collateral facts must be established by convincing evidence and when established these must afford a reasonable presumption as to matter in dispute.

• Example 1: When a person is charged with forging a particular document, evidence is afforded to prove that a number of documents apparently forged or held in readiness for the purpose of forgery were found in possession of the accused.
• Example 2: A was charged of handing over forged currency notes to B representing them to be genuine. B tries to prove that few days after and before A handed over currency notes of the same denomination to C, D, E and F. This fact is relevant because if it is proved that A handed over forged notes to a number of persons at about the time when he is alleged to have handed over a forged note to be knowing it to be forged.
• Example 3: The question in controversy is whether a certain lease granted by A to B is perpetual B tries to prove that many leases were granted by A to many other persons at the same time and all of which were perpetual leases. This fact is relevant because it makes the factum of the lease in question being perpetual highly probable.

In Jhabwala v. Emperor case, the Court held that “The words ‘highly probable or improbable’ indicate that the connection between the facts in issue and the collateral facts sought to be proved must be immediate so as to render the co-existence of the two highly probable. The relevant facts under this section either (i) exclude, or (ii) imply, more or less distinctly, the existence of the fact sought to be proved.”

In Rajendra Singh v. Ramganit Singh, AIR 2007 SC 2791 case, the Court observed that the words “highly probable” are of great importance, and the fact sought to be proved must be so closely connected with the fact in issue or the relevant fact, that a Court will not be in a position to determine it without taking them into consideration. Section 11 IEA (S. 9 BSA) declares as admissible, facts which are logically relevant to prove or disprove the main fact or the fact in issue.

Conclusion:

The words of Section 9 are very wide and it may be safely laid down that all evidence which would be held admissible by English law, would be properly admitted under this section of the act. But it should be remembered that they must be read subject to the other sections of the act and therefore, the fact relied on must be proved in accordance with the provisions of the Act.