Report No. 69
Section 11 provides that facts not otherwise relevant are relevant-
(1) if they are inconsistent with any fact in issue or relevant fact; or
(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.
There are two illustrations to the section. The first deals with a plea of alibi. The second deals with facts which eliminate possible alternatives.
7.165. Discretion of courts as to collateral facts.-
The scope of the section is, apparently, very wide1. Clause (1) takes within its sweep facts inconsistent with facts in issue, or relevant facts. Clause (2) emphasises the high degree of probability suggested by the fact sought to be given in evidence thereunder. But a certain amount of elasticity is introduced by the words "by itself or in connection with other facts". There must always be room for the exercise of discretion when the relevancy of testimony rests upon its effect towards making the affirmative or negative of a proposition "highly probable",2 and with any reasonable use of discretion, the Court of appeal ought not to interfere.3
It has been held4 that in order that a collateral fact may be admissible as relevant under this section, the requirements of the law are-(a) that the collateral fact must itself be established by "normally conclusive evidence", and (b) that it must, when established, afford a reasonable presumption or inference as to the matter in dispute. The expression "highly probable or improbable" in the section is, thus, very significant. It indicates that the connection between the facts, in issue and the collateral facts sought to be proved must be immediate5 as to render to co-existence of the two highly probable or improbable. The relevant facts under this section either (i) exclude, or (ii) imply more or less distinctly the existence of the facts sought to be proved.6
1. R. v. Prabhu Das, (1874) 11 BHCR 94 (Per West, J.).
2. See also Nara v. Narhari, 1891 ILR 16 Born 125.
3. See also Buriva v. Rain Kali, AIR 1971 Punj 9 (11), para. 5.
4. Sultan Khaver v. Sultan Rukha, (1904) 6 Born LR 983 (985).
5. Para. 7.167, infra.
6. S.H. Jhabrala v. Emp., AIR 1933 All 691 (705).
7.166. Theoretical justification.-
The theoretical justification for the section is easy to explain; it has a part to play in the scheme of the Act. The topic of 'relevant facts', in general, has been treated in sections 6, 7, 8, 9 and 10. Section 11 concludes this treatment, by making a residuary provision1 as to relevant facts. But the practical application of the section is not so easy. The position can be best understood from the decided cases.
1. In support of the proposition that the section is a residuary provision, see Rangayya v. Innasimuthu, AIR 1956 Mad 226 (230), para. 14 (Ramaswami, J.).