Facts not otherwise relevant, are relevant, — (a) If they are inconsistent with any fact in issue or relevant fact; or (b) If they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Illustration: (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 circumstances are such that the crime must have been committed either by À, Â, Ñ 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 by Â, Ñ or D, is relevant. Reg.
v. Prabhudas, [(1874) 11 Â. H. C. 90)]. — In a charge of forgery, evidence of possession by the accused of other documents suspected to be forged is inadmissible. Alibi: The fact of presence elsewhere is essentially inconsistent with the presence at the place and time alleged, and therefore, with personal participation in the act.
It is on this that the theory of alibi is based. Principle: Facts not otherwise relevant are made relevant by Section 11. The effect of this section is, therefore, to clearly enlarge the classes of relevant facts. If a fact is relevant under this section, it would be relevant even if it is not relevant under any other section of the Act. At first sight, it would appear that this section would make every fact relevant because of the wording of clause (b) But care must be taken not to give this section an improperly wide scope by a liberal interpretation of the phrase “highly probable or improbable”.
Otherwise, this section might seem to supersede all the other provisions of the Act as to relevancy. Though the terms of this section are wide, they are controlled by the provisions regarding the relevancy contained in other sections of the Act. Further, the fact relied on must be proved according to the provisions of the Act.
(Sevguon v. Sri Mathur, 1940 Mad. 270) The observations of West. J, in Reg. v. Prabhudas, (1874 11 B.
H.C. 90) on S.
11 of the Act are interesting: “S. 11 of the Evidence Act is, no doubt, expressed in terms so extensive, that any fact which can, by a chain of ratiocination, be brought into connexion with another, so as to have a bearing upon a point in issue, may possibly be held to be relevant within its meaning. But the connexions of human affairs are so infinitely various and far- reaching, that thus to take the section in its widest admissible sense, would be to complicate every trial with a mass of collateral inquiries limited only by the patience and the means of the parties.” The words “highly probable or improbable” indicate that the connection between the facts in issue the collateral facts sought to be proved must be immediate so as to render the co-existence of the two highly probable.
The relevant facts under this section either (i) exclude, or (ii) imply, more or less distinctly, the existence of the fact sought to be proved. (Jhabwala v. Emp., A.
I.R. 1933 All. 690) The words “highly probable” are of great importance, and the fact sought to be proved must be so closely connected with the fact in issue or the relevant fact, that a Court will not be in a position to determine it without taking them into consideration. (Rajendra Singh v. Ramganit Singh, A.
I.R. 1954 Patna 566) It must also be noted that before a fact can be relevant under Section 11, it must be shown that it is admissible. The section declares as admissible, facts which are logically relevant to prove or disprove the main fact or the fact in issue. There may be collarteral facts which have no connection with the main fact, except by way of disproving any material facts proved or asserted by the other side, i.e., when they are such as to make the existence of the fact so “highly improbable” as to justify the inference that it never existed.
A well-known instance is that of the defence of alibi. Another instance is non-access of the husband to prove illegitimacy of a child. An admissibility under Section 11 depends on the nearness or the connection of the fact sought to be proved with facts in issue, and also on the degree of such nearness or connection. These facts render the fact in issue probable or improbable when taken with other facts in the case. In one case, where the question was whether a person was a habitual cheat, the fact that he belonged to an organisation which was formed for the purpose of habitually cheating people was held to be relevant, and it was open to the prosecution to prove, against each person, that the members of the gang did cheat people. (Kalu Mirza v.
Emperor, 1909 37 Cal. 91) But in a case of conspiracy to commit dacoity, facts showing that the object of the illegal association, during a period of several months prior to the dacoity in question, had been the commission of thefts and other discreditable acts, was held to be inadmissible to prove the nature and character of the association. (Emperor v.
Wahiddudin, 32 B.L.R. 324)