Section 9 BSA 2023: When Facts Not Otherwise Relevant Become Relevant

Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) explains when a fact that is not otherwise relevant can still become legally relevant because it contradicts a fact in issue or makes a fact in issue or relevant fact highly probable or improbable.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023. It came into force on 1 July 2024 under Central Government Notification S.O. 849(E), dated 23 February 2024. Section 170 contains the repeal and savings provision for proceedings that were already pending immediately before commencement.

Text of Section 9 of the Bharatiya Sakshya Adhiniyam, 2023

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.

Meaning and purpose of Section 9 BSA

The basic rule of evidence is that courts decide disputes on facts in issue and on facts that the law declares relevant. Section 9 is an important extension of that rule. It allows an otherwise irrelevant fact to be considered when the fact has a strong logical connection with a matter that the court must decide.

In simple terms, Section 9 covers two situations. First, a fact becomes relevant when it is inconsistent with a fact in issue or another relevant fact. Second, a fact becomes relevant when it substantially increases or decreases the probability of a fact in issue or relevant fact.

Key ingredients of Section 9

The fact may initially be outside the ordinary categories of relevant facts.
It must be inconsistent with a fact in issue or a relevant fact, or must materially affect the probability of such a fact.
The connection must be sufficiently strong to make the existence or non-existence of the fact in issue highly probable or highly improbable.
Mere remote, speculative or weakly connected circumstances do not become relevant merely because a party relies on them.
The section is a rule of relevancy. It does not by itself decide the weight or final evidentiary value of the fact.

Alibi and Section 9

Illustration (a) is the classic example of an alibi. If an accused is shown to have been at a place so far away from the scene of the alleged offence that participation becomes highly improbable, that fact is relevant because it is inconsistent with the prosecution case placing the accused at the scene.

The section does not mean that every claim of being elsewhere is automatically accepted. The party relying on such a fact must still prove it in accordance with the applicable rules of evidence, and the court will evaluate the evidence together with the rest of the record.

Probability and improbability under Section 9

Clause (2) uses the words "highly probable or improbable." This indicates that the connection should be meaningful and substantial. A circumstance that only creates a remote possibility may not satisfy the section. The court examines whether the fact, alone or with other established facts, materially strengthens or weakens the existence of a fact in issue or relevant fact.

Section 9 BSA and the Indian Evidence Act, 1872

Current law	Earlier law	Subject
Section 9, Bharatiya Sakshya Adhiniyam, 2023	Section 11, Indian Evidence Act, 1872	When facts not otherwise relevant become relevant

Section 9 BSA substantially carries forward the principle previously contained in Section 11 of the Indian Evidence Act, 1872. However, for any application, trial, inquiry, investigation, proceeding or appeal that was pending immediately before 1 July 2024, Section 170 of the BSA must be checked to determine whether the Indian Evidence Act, 1872 continues to govern that proceeding.

Definitions relevant to Section 9

Fact

Section 2 of the BSA defines "fact" broadly to include things, states of things or relations of things capable of being perceived by the senses, and also mental conditions of which a person is conscious.

Facts in issue

A "fact in issue" is a fact from which, by itself or together 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.

Relevant

A fact is "relevant" to another when it is connected with that other fact in any of the ways referred to in the BSA provisions dealing with relevancy of facts.

Practical examples

Example 1 - Location evidence: If a person is alleged to have committed an offence in Chennai at a particular time, reliable evidence showing that the person was in Ladakh at that time may be relevant because it makes presence at the scene highly improbable.

Example 2 - Exclusive alternatives: If evidence shows that an act could only have been done by one of four persons, facts excluding three of them may become relevant to determine whether the fourth person was responsible.

Example 3 - Digital location material: Depending on the facts and proper proof, location records, travel records, CCTV footage, electronic records or other circumstantial material may be relied upon to support or contradict the alleged presence of a person at a particular place. Their admissibility and proof must satisfy the other applicable provisions of the BSA.

Important points for lawyers and litigants

Section 9 should be read with Section 3 and the other provisions in Chapter II on relevancy of facts.
A fact may be relevant under Section 9 even though it does not fall under another specific relevancy provision.
Relevancy and proof are separate questions. A relevant fact must still be proved by legally admissible evidence.
Electronic and digital material must satisfy the applicable BSA provisions governing documentary and electronic evidence.
For older pending proceedings, Section 170 should be checked before applying the BSA instead of the Indian Evidence Act, 1872.

Official legal sources