Bharatiya Sakshya Adhiniyam, 2023
Section 9
When facts not otherwise relevant become relevant
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 Chennai 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.
Why this exists
Trials often turn on indirect or circumstantial evidence rather than direct proof. Indian evidence law, going back to the Indian Evidence Act, 1872 (drafted by Sir James Fitzjames Stephen), recognized that facts showing an alibi, or facts narrowing down who could have committed an act, are logically important even though they aren't the 'main fact' being disputed. Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 continues this principle almost verbatim from Section 11 of the old Act, ensuring courts can weigh probability and improbability using real-world reasoning, not just isolated facts.
How courts read it
Under the predecessor provision (Section 11 of the Indian Evidence Act, 1872), courts consistently held that this section should be used cautiously — it doesn't open the floodgates to any remotely connected fact, but only those that create a 'high degree of probability or improbability.' Alibi evidence, for instance, is admitted under this principle, and courts have emphasized that a mere possibility of alternative explanation isn't enough; the fact must substantially affect the probability of the main fact in issue.
Common misconceptions
- Myth: Only direct eyewitness evidence can be used to decide a case.
Fact: Courts can also rely on indirect facts, like alibis or elimination of other suspects, if they make a disputed fact highly probable or improbable. - Myth: An alibi must prove it was physically impossible for the accused to commit the crime.
Fact: The law only requires that the alibi make it highly improbable, not impossible, that the accused committed the offense.