Section 5 of the Indian Evidence Act, 1872

Explanation:

This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

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Illustrations:

(a) A is tried for the murder of  by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue:—

A’s beating  with the club;

A’s causing B’s death by such beating;

A’s intention to cause B’s death.

(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

Comments:

Principle:

The section lays down that in a suit or preceding evidence may be given of the existence or non-existence of:

1. Facts which are in issue; and

2. Facts which are relevant according to Sections 6 to 55 of the Act.

Scope:

Where one fact is relevant to another, i.e. when one is connected with other in any of the ways referred to the Chapter II (Sections 6 to 55), it is relevant. The relevant facts are not themselves ‘facts in issue’ but are so connective with ‘facts in issue’ that they render the latter probable or improbable. Relevant facts give strength and vigour to the fact in issue. Section 5 excludes everything which is not covered by some other sections of the Chapter. Alternatively, it can be said that “the object of this Chapter is to restrict the investigation made by court within bounds prescribed by general convenience.”

This section expressly excludes the evidence of irrelevant facts, that is found in the phrase “and of no others;”and therefore a party is precluded from proving any ‘fact’ which is not declared relevant by any of the remaining sections of this chapter. Evidence is not permitted to be given to any fact unless it is either a fact in issue or one declared to be relevant by any section of this chapter. “Evidence of all collateral facts, which are incapable of affording any reasonable presumption as to the principal matter in dispute, is excluded to save public time.” Thus, ‘relevant’ means “which is logically probative.” In a trial when any evidence is produced, the court, before its admission, should decide its relevancy forthwith. If the evidence lacks of probative value it can be rejected.

The probative value of evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.” It is duty of the court to appreciate evidence minutely, carefully and analyze the same. In case of mistake in description of hand in respect of khata number and plot number it has been decided that boundary of land given in sale deed should be given preference to ascertain the land actually sold.

Explanation:

The explanation appended to this section prohibits any person to give further evidence for getting relief upon facts of documents which he had failed to state or refer in his pleadings under Civil Procedure. There are certain provisions in the Civil Procedure Code for filing documents with the leave of the court. Illustration (b) explains the meaning of the explanation.

Relevancy and Admissibility:

The rules of relevancy declare certain facts relevant but rules of admissibility lay down as to whether the relevant facts may be allowed or excluded. There are marked differences between the two, as it is said that “all evidence that is admissible is relevant, but all that is relevant is not necessarily admissible.”

‘Relevancy,’ according to Sections 6 to 11 is the connection between cause and effect which occur in judicial proceedings. The question of admissibility, on the other hand, is a question of law to be decided by the judge. The relevancy of facts, according to common course of events either leads to prove or render probable the past, present and future existence and non-existence of the other facts, whereas the admissibility of the relevant facts are to be decided (forthwith) by the court when raised and should not be reserved till the date of judgment. Objection to the admissibility cannot be allowed in appeal.

Relevancy means what facts may be proved before the court and that facts allowed to be proved under sections 5 to 55 of the Evidence Act, are called relevant, whereas the admissibility is founded on law and not on logic. It is the means and method of proving relevant facts. When the original document is lost it has no effect on decision. If the secondary evidence of the lost document is produced it may be admitted.

In relevancy the court has discretion to play but in admissibility the court is under obligation to follow the law, it has no discretion. Evidence properly admitted for one purpose must be admissible for all purposes in the cause. But in case of proving and disproving facts the relevancy is, no doubt, condition precedent of admissibility. In Ram Bihari Yadav v State of Bihar the Supreme Court has made a difference that frequently the expression ‘relevancy’ and ‘admissibility’ are used as being synonymous with each other but their legal incidents are different, because facts which are relevant may not be admissible. It is a question of law to be determined by lex fori. In judicial proceeding ‘relevancy’ is “the rules of allowing or disallowing the facts tried to be proved.”

Applicability of ‘falsus in uno falsus omnibus’:

The meaning of the maxim is that “false in one thing false is everything.” It is not rule of law. It is only a rule of caution. It is of no application in India under the Evidence Act. Each case has to be apprised in accordance with evidence produced before the court. If the evidence is insufficient and unworthy of acceptance it must be discarded in all respect.

The doctrine is dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some respect, it is to be found that administration of Criminal Justice would come to dead stop. Before rejection of evidence the court has to execute with all care and caution, “because, it is totally unwise to say that the witness is a liar.” Consistent evidence of eye-witness cannot be rejected merely on ground that their evidence has not been accepted with regard to some other accused. The evidence of witness can not be rejected merely because a part of his testimony may not inspire confidence.

“It is true that the principle falsus unofolsus omnibus is not a rule applicable to our country and the court should make every endeavour to separate the grain from the chaff. It only puts the court on its guard to carefully scrutinize their evidence.” When the evidence of eye-witness was fully corroborated by medical evidence, it was held that merely on the ground that the eye-witnesses has assigned role to other co-accused persons for causing injury on farsa and lathi had not been found proved, the whole evidence of eye-witnesses would not be discredited.