Section 5 Indian Evidence Act 1872: Evidence of Facts in Issue and Relevant Facts
Section 5 of the Indian Evidence Act, 1872 states the basic rule governing what facts may be proved in a suit or proceeding. Evidence may be given of facts in issue and of other facts declared relevant by the Act, and generally of no others.
This article explains Section 5 under the Indian Evidence Act, 1872 as applicable before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. It is intended for understanding the pre-BSA law and proceedings to which the earlier Evidence Act remains relevant under applicable saving or transitional principles.
What is Section 5 of the Indian Evidence Act, 1872?
Section 5 appears in Chapter II, "Of the Relevancy of Facts". It lays down the controlling principle that a court receives evidence concerning facts in issue and facts that the Act declares to be relevant. A fact does not become provable merely because a party considers it useful; it must be a fact in issue or must satisfy a rule of relevancy under the Act, subject also to procedural and other legal restrictions.
Section 5 - 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 declared by the Act to be relevant, and of no others.
Explanation: Section 5 does not permit a person to give evidence of a fact which that person is disentitled to prove under any law for the time being in force relating to Civil Procedure.
Meaning of important expressions
Fact
Under Section 3 of the Indian Evidence Act, 1872, a "fact" includes anything, state of things or relation of things capable of being perceived by the senses, and any mental condition of which a person is conscious.
Facts in issue
A "fact in issue" is a fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of a right, liability or disability asserted or denied in a suit or proceeding necessarily follows. In criminal proceedings, the charge and the applicable substantive law help identify the material facts that must be proved.
Relevant fact
One fact is said to be relevant to another when it is connected with the other in a manner referred to in the provisions relating to relevancy of facts. Sections following Section 5 specify circumstances in which connected facts become legally relevant.
Scope and effect of Section 5
Section 5 separates legally relevant evidence from collateral or unrelated material. The provision should be read with the definitions in Section 3 and the specific relevancy rules in the succeeding sections. The existence or non-existence of a fact in issue may be proved directly, while another fact may be proved only when the Evidence Act declares its connection with the fact in issue to be relevant.
The section concerns relevancy, but relevancy does not automatically remove every procedural restriction on proof. Its Explanation expressly preserves restrictions arising under the law relating to civil procedure. Other rules governing admissibility, mode of proof, documentary evidence, privilege and exclusion may also have to be considered according to the nature of the material sought to be proved.
Illustration: criminal trial
If A is tried for causing the death of B by beating B with a club with the intention of causing death, the facts in issue include whether A beat B, whether that act caused B's death and whether A had the legally relevant intention. Evidence directed to those facts may be given, together with evidence of other facts that become relevant under the Evidence Act.
Illustration: civil procedure restriction
The statutory illustration concerning a bond demonstrates the effect of the Explanation. A litigant who fails to produce a document at the stage required by the applicable law of civil procedure cannot rely on Section 5 alone as authority to produce or prove it later. The procedural conditions governing its subsequent production must still be satisfied.
Why Section 5 is important
Section 5 is the gateway to the rules of relevancy under the Indian Evidence Act, 1872. It focuses the trial on facts that determine the rights or liabilities in dispute and on other facts having a legally recognized connection with them. The succeeding provisions, including Sections 6 to 16, identify important categories of relevant facts such as facts forming part of the same transaction, cause or effect, motive, preparation, conduct, explanatory facts and facts connected with common design.
Section 5 and the law before BSA 2023
The Indian Evidence Act, 1872 governed the general law of evidence before the commencement of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. This page is deliberately framed around the earlier Act. For a matter arising after the new evidence law became operative, the Bharatiya Sakshya Adhiniyam, 2023 and its commencement and transitional provisions should be checked separately.
Related provisions
For a fuller understanding of Section 5, read it with Section 3 - Interpretation clause, Section 4 - May presume, shall presume and conclusive proof, and the succeeding rules of relevancy beginning with Section 6 - Facts forming part of the same transaction.