Section 11 of the Indian Evidence Act, 1872

When facts not otherwise relevant become relevant:

Facts not otherwise relevant are relevant—

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(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 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.

(b) The question is, whether A committed a crime.

The circumstance are such that the crime must have been committed either by А, В, С or D, every fact which shows that the crime could have been committed by either В, С or D, is relevant.

Comments:

Scope:

Section 11 of the Evidence Act is very wide in its application and it does not impose any restriction on facts that can be admitted even these facts are highly inconsistent or improbable with fact in issue or relevant fact. The facts which ordinarily tend to render the existence of fact in issue or relevant fact probable or improbable are relevant. But, under this section there are collateral facts which by way of contraction, inconsistent with the fact in issue or relevant fact are also relevant. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The section is described as “residuary section” dealing with relevancy of facts which are logically admissible.

Example:

A has written a defamatory statement against B. This is a fact.

A is illiterate, this is another fact. Both the facts are inconsistent but both facts are relevant and admissible.

Nature of facts:

The Section 11 consists of two clauses, viz.,

1. Facts in consistent with fact in issue or relevant fact, and

2. Facts highly probable or improbable.

1. Facts inconsistent with fact in issue or relevant fact:

One fact is inconsistent with the other when it cannot co-exist with the other. Under this clause facts are relevant only because they cannot co-exist with fact in issue or relevant fact. Above example shows that A is illiterate. A cannot write a defamatory letter to B. These two facts cannot co-exists. “The usual theory of essential inconsistency is that a certain fact cannot co-exist with the doing of the act in question, and, therefore, that if that fact is true of a person of whom the fact is alleged, it is impossible that he should have done the act.”

Under the clause there are at least six classes of cases which show inconsistency, viz.;

(a) Alibi:

Alibi is a Latin word, which means elsewhere. It is used when the accused takes the plea that when the occurrence took place he was elsewhere. In such a situation the prosecution has to discharge the burden satisfactorily. Once the prosecution is successful in discharging the burden it is incumbent on the accused who takes the place of alibi to prove it with absolute certainly. An alibi is not an exception envisaged in the IPC or any other law. It is a rule of evidence recognized by Section 11 of the Evidence Act that facts inconsistent with fact in issue are relevant [Illustration (a)]. However it cannot be the sole link or sole circumstance to bare conviction. When one fact is necessary to the hypothesis of the guilt of the accused, but strikingly absent in the chain of circumstantial evidence, the prosecution case certainly will fail. Because, an alibi the relevancy of which is totally inconsistence with hypothesis that the accused had committed an offence.

When the accused took the plea of alibi the burden of proof lies on him under section 103 of this Act. If a person is charged with murder he is to prove that he was elsewhere. The plea of alibi has to be taken at the earliest opportunity and it has to be proved to the satisfaction of the court. When an accused was discharged from hospital situated 180 km. away from the place of occurrence.

1^1/2 hrs. earlier from time of occurrence the plea of alibi was established. Strict proof is required for establishing the plea of alibi. The plea of alibi must be proved with absolute certainty as said in Rajesh Kumar v Dharamin. Plea of alibi was rejected when no material showing that accused was present in jail for purpose of identification at point of time when occurrence took place.

The plea of alibi taken by the party on the basis of certificate issued by a hospital not filed at the stage of filing objections but during course of agreements in execution proceedings being an afterthought was found not tenable and rejected’ while weighing the prosecution case and defence case, if the prosecution case fails the accused would be entitled to benefit of the reasonable doubt which would emerge in the mind of the Court.

(b) Non access of husband to show illegitimacy of the child:

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.

(c) Survival of the alleged deceased:

A is accused of murdering В on 10th August 1996 at Delhi. But A tried to prove and led evidence to show that В was alive on 25th December 2004. Both the facts are relevant under section 11 only because these are not consisting with each other.

(d) Commission of an offence by a third person:

A is charged with the murder of B. A leads evidence that В was murdered by C. This is admissible being inconsistent with fact in issue.

(e) Self-infliction of harm:

A is charged with the murder of B. A proves that В had committed suicide. The evidence is admissible.

(f) Non-execution of document:

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.

2. Facts highly probable and improbable:

Under the second clause the fact which by itself or in combination with other facts make the existence and non­existence of the fact in issue or relevant fact highly probable or improbable. The words “highly probable” indicate that the court has to go by the prohibits of the circumstances as regards the existence or non-existence of fact in issue or relevant fact. It also indicates that the connection between the facts in issue and the collateral facts sought to be proved must be immediate as to render the co-existence of the two highly probable. The collateral facts can be admitted in evidence if they make the existence of the fact in issue highly probable or improbable.

It is well settled that it is not a mere reasonable probability but carries great weight in bringing the court to conclusion whether facts exist or non-exist. In order to make a collateral fact admissible, the collateral facts must be established by conclusive evidence and when established these must afford a reasonable presumption as to matter in dispute. 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. It can be said as per Reg. v Prabhudas that in a charge of forgery, the evidence offered to prove that a number of documents apparently forged or held in readiness for the purpose of forgery found in possession of the accused is not admissible. This section renders inadmissible the evidence of one crime to prove the existence of another unconnected crime, even though it is cogent.