How a fact is proved

Any Litigation hinges on Facts and Facts alleged are require to be proved.

A fact is proved by Evidence. Evidence is that which makes the fact asserted - clear and evident, demonstrative and established. The word evidence in its relation to law includes all the legal means, exclusive of mere arguments which tend to prove or disprove any fact, the truth of which is submitted for judicial investigation.

Facts are state of things such as events, circumstances, acts and omissions, capable of being perceived by the senses; state of mind, i.e. intentions of dishonesty, fraudulently; negligence; ill will etc. or of good faith; state of law, and such forth.

According to Section 3 of Evidence Act 1872, Evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence; and all documents including electronic records produced for the inspection of the Court (documentary evidence). Thus facts may be proved by leading  (i) oral and (ii) documentary evidence. Therefore, it is necessary to appreciate the meaning and attribute of Oral evidence, as set out in sections 59 and 60 of Evidence Act, 1872; and of documentary evidence as set out in sections 3, 61, 62.

According to Section 59, all facts, except contents of documents or electronic records, may be proved by oral evidence that is oral testimony. The fundamental principle which governs oral evidence is that it must be by the person who has personally witnessed the “event”, for which he intend to give “evidence/testimony. To illustrate the proposition, if evidence is sought to be given of a fact which could be seen, it must be the evidence of a witness who says he saw it.

Coming to proving of documents, according to S.3 of Evidence Act, Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. According to this definition, document means any physical thing or substance, which is led in evidence before Court.

The documents may be proved by producing the original document itself, or by leading secondary evidence of it, in accordance to the stipulations laid down u/ss 63 and 65 of the Evidence Act. The electronic records, like email / messages may be proved by taking print out of the same and tendering it along with certificate u/s 65B(4) of Evidence Act.

Public documents may be proved either by producing the original or by producing the certified copy of the same, obtained from the competent public authority, in accordance to S.76 of the Evidence Act.

A document may be proved by producing the original of it, or of the secondary evidence in accordance to law, by identifying the nature of document, like if it is Power of Attorney, or a Notice, or an Agreement, etc; followed by proving the manner in which it came to be executed, including proving of the signature contained in the document by saying either that the document was signed in deponent’s presence or by saying how deponent is acquainted with the signature, or by summoning the author of the document.

However, where the parties have admitted the documents, either in the pleadings or during the course of the proceedings, the adversary can rest on admission alone; and he need not produce and prove the original document. (AIR 1926 All 741)

What evidence can be led, are contained in Section 5 of the Evidence Act which stipulates that evidence can be led of “facts in issue” and of “relevant facts”.

Facts in issue are such facts, from which, either by itself or in connection with other facts, the natural and safe inference may be drawn, of the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding.

Relevant facts are spelled out in sections 6 to 55 of the Evidence Act, which among other things include, Admission and confession of facts, Judicial notice of facts, facts to prove conspiracy, common intention, expert opinion, facts which are closely connected to or have cause the occasion of relevant facts or facts in issue, motive,  existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will, whether alleged act was accidental or intentional, claim as to quantum of damages, general course and customs of business, and son on.

The facts that are not require to be proved include (a) those facts which are being admitted by the adversary, as stipulated in section 58 of the Evidence Act; (b) where the law presumes its existence or the non existence of it and the burden of proving the contrary is shifted to the adversary; (c) where the Court may itself presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct and public and private business; (d) facts that are so notorious, to which the Courts must take the judicial notice of its existence.

This leading of oral and / or documentary evidence is subject to certain exceptions (a) the evidentiary fact led must be relevant to the controversy before the Court (S.5); (b) it must be admissible evidence, i.e. the evidentiary fact led should not be in the category of privileged communication (S.136, 122 to 132) or be under the principle of estoppel. (S.115, 116, 117); In respect of oral evidence, in all cases in which any matter is required by law to be reduced to the form of a document, or where terms of a contract or grant or any other disposition of property have been duly documented, oral evidence contrary to the contents of documents cannot be given, except in very limited circumstances, as set out in sections 91 and 92 of the Evidence Act.

Who is to Prove the Fact. There appears to be two fundamental principle governing the burden of proving the fact. One, the party alleging the existence of a fact, must prove its existence; and second, facts which are especially within the knowledge of a person, the burden of proving that fact lie upon him. The presumption of existence or the non existence of certain facts, contained in some statutes including in the Evidence Act, also determine the burden of proving of fact. Like Section 118 and 139 of Negotiable Instruments Act, 1881, carries presumption that the subject negotiable instrument was delivered under lawful consideration / transaction. The principles as to burden of proving a fact, would also depend upon the nature of fact which is to be proved, the reliefs that are claimed from the Court, admissions, if any by the adversary, etc.

Facts are proved by the party, by first leading his own testimony and of his other witnesses, in physical presence before the Court; and then by subjecting himself and his witnesses to the cross examination of the adversary. Cross examination is said to be one of the most efficacious tests, which the law has devised for the discovery of truth. The object of cross examination is to impeach the accuracy, credibility and general value of the evidence, given in chief, to detect discrepancies, to elicit suppressed facts. A witness should be cross examined on each and every material point on which evidence is led, failing which it may entail a presumption of admission of that fact.

Suspicion however strong cannot take the place of proof. In a Case before it, the Hon’ble Apex Court have the occasion to observe to say that, if a Criminal Court allows its mind to be swayed away by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence. AIR 2013 SC (Cri) 954.

Our laws in “Crimes” cases requires evidence so clear and convincing that every bystander, the instant he hears it, must be fully satisfied of the truth of it, it admits of no speculations, vagueness, or harsh constructions, nor anything else to be offered as evidence, but what is real and substantial.

At the same time, facts cannot be proved to mathematical certainty. They are proved at the benchmark of prudence of common man as indicated in S.3 of the Evidence Act, that is -  a fact is said to be proved when, after considering the matter before it, the Court either believes it to exists, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Evidence are always appreciated, not by numbers, but by its integral and natural value. Again, a Case is adjudged by the inherent consistency of facts put by the party and the credible and acceptable evidences led in support thereof.

 

Sandeep Jalan

Advocate

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