III Year B.A.

LLB (Div-D and E) – Semester-V (2022)

1ST -Internal Assessment

Law of Evidence
commentary on section 9
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NAME: KESHAV TOMAR

DIVISION: D
PRN: 20010125533
COURSE: BA LL.B. (H)
BATCH: 2020-2025
INTRODUCTION

The 1872 Indian Evidence Act governs comments made in court and enables or requires
witnesses to present them in combination with the facts under investigation. The Indian
Evidence Act of 1872 was written by Sir James Stephen. The goal of the Act is to establish
guidelines for the types of evidence that can be allowed in Indian courts. The Act covers
admissions, testimonies, oral evidence, documentary evidence, legal presumption, the burden
of proof, estoppel, and all other matters influencing evidence collection and admissibility of
problems on which the court must record its views. The chapter 2 of evidence deals with
relevancy of facts. Section 9 of the Indian Evidence Act of 1872 addresses the facts that must
be presented or included in a lawsuit as an issue of argument. This Section specifies which
facts are required, which facts are to be included as facts in the issue, and which facts are
relevant.

The rules of relevance assert some facts relevant, and rules of admission specify whether a
particular kind of evidence concerning a relevant fact is permitted or prohibited. A first
question is what material (Fact) may be brought before a court in a lawsuit. Relevancy refers
to what information can be shown in court. Relevant facts are the facts that can be proven
under the Evidence Act. Thus, the phrases "relevant" and "the facts that may be proved" are
synonyms in the Evidence Act. Admissibility- Relevant refers to what is logically probative.
Admissibility is determined by law and stringent norms rather than rationale. Many facts that
have nothing to do with the facts to be proven are admissible. The proof of loss of the
original deed has no influence on the determination of issue, but it is admissible in evidence
before secondary evidence concerning the contents of the relevant document is submitted.
Sections 5 to 55 of the Indian Evidence Act address the issue of relevancy, with Sections 56
and onwards deal with the question of admissibility.

Certain evidence has minimal value when seen alone, but it becomes significant when
analysed in connection with other facts in a case. These are significant or crucial information
that must be appropriately conveyed. There is a type of evidence that, if evaluated
independently and apart from other evidence, would be meaningless; nevertheless, when
considered in conjunction with other facts proven in the case, it explains and illustrates them.
Person identification is one of the most important aspects of Section 9 of the Indian Evidence
Act of 1872. When a person's identity is being investigated in a relevant subject,
identification may be performed by parents, siblings, wives, or other relatives. In rare cases, a
physical mark, sign, or wound on the body might be used to identify someone. A person's
identity can also be determined via bones, skeletons, age, voice, and other medical testing. It
sometimes strengthens the evidence presented by one side and sometimes weakens the
evidence presented by the other. Section 9 of the Evidence Act makes relevant facts that are
essential to explain a fact in question or relevant facts.

THE VITAL ASPECTS OF THE PROVISION

1. Categorisation in section itself

The section 9 of Evidence act depicts seven categories of facts which can be admissible for
necessary purpose during or initiation of a trial. The Sections 7 and 8 are generally based
upon the theory of causation as a test of relevancy, although section 9 deals with facts
necessary to explain or introduce relevant facts through. Such facts are not of a causative
nature, nor can they be strictly said to form part of the same transaction. Facts which explain
or introduce a fact in issue though relevant fact for purpose sated in section, such facts do not
form part of res gestae as they do not accompany the facts or transaction in issue. Facts
which explanatory or introductory of a relevant fact are often of considerable help in
understanding the real nature of transaction in supplying missing links in leading up to the
main facts or in establishing some connection throwing light on fact in issue. Thereby under
section 9 following categorisation had been done-

(i) Facts that must be explained.

(ii) Introducing a fact in controversy.
(iii) The facts that can be supported.
(iv) The facts that are rebutted as a result of an inference drawn from a fact at
controversy.
(v) The fact that establishes the identity of anything or anyone whose identity is
relevant, or
(vi) The facts that determine the time or location at which any issue or relevant fact
happened
(vii) The fact that demonstrates the connection of persons by whom any such fact was
transacted are significant to the degree that they are necessary for that purpose.

Generally speaking all these facts are received under section 9 in explanation of a relevant
fact or a fact in issue. "It is not, of course, all the incidents of a transaction that may be
proved for the narrative might run down into purely irrelevant and unnecessary detail Names,
dates, places, and the description and circumstances of the parties, though not issue, are
however, always admissible. So, often, the physical conditions under which the main fact
happened; or any other matter so intimately connected therewith as to be necessary in order
to present the case intelligibly to the jury as done in R v. Bond, 1906 1. The particulars
receivable, however, will necessarily vary with each individual case. The concluding portion
of the section states that the facts enumerated "ure relevant in so far as they are necessary for
that purpose". That is the limit within which such explanatory facts may be used.

2. The quantum of necessity of facts

The facts permitted under section 9 may be used for or against a party. The images
demonstrate how facts might be linked together to clarify or introduce facts in question or
pertinent information. Illustrations (d) and (e) demonstrate that remarks made in the absence
of the person against whom they are made are likewise admissible. However, it should be
noted that they are included not as proof of the reality of the topic, but as explanatory of
corroborated facts. The truth of facts must be shown by independent testimony, such as
example (e) and (f) of section 9 illustrate that the statement is accepted by the norm of res
gestae despite being hearsay. Certain evidence has little value when seen alone, but it
becomes meaningful when analysed in conjunction with other facts in a case. Such facts are
crucial or relevant facts that must be expressed properly.

It is evident that a highly hazardous innovation is being introduced, in which individuals may
suffer in life, person, or property by placing utterances into their mouths from behind their
backs, using a basis that the law of Evidence has previously completely rejected. In response
to this comment, jurist Cunningham2 says, “Whether this is a harmful innovation is a matter
of opinion, but the writers of the Act obviously believed differently”. They may have
reasoned that, while such states may weigh heavily against a man on some occasions, they
may weigh heavily in his favour on others, and that, if evidence of a fact is to be given at all,
it is preferable that what was said about it at the time of its occurrence be proven along with
the other parts of the transaction. In any case, their eligibility under the current clause is
unquestionable.

A second exception to the general rule that evidence of ancillary facts is not normally
admissible is where such evidence raises any reasonable conclusion about the topic at hand,
1
2 KB 389, 409
2
Cunn p100
by tending to prove a prisoner's identification or corroborate the testimony of a witness in any
important detail. Thus, on a libel information in which the printer stated that he had received
the manuscript from the defendant, more libels written by him touching the same subject
were obtained to verify the printer's assertion 3. So, where a prisoner was charged with
robbing the prosecutor of a coat by threatening to accuse him of an unnatural crime, evidence
of a similar, but futile attempt the next evening, when the prisoner brought a duplicate pawn-
ticket for the coat, and which ticket was found on his person at the time of his arrest, was held
admissible, as confirmatory of the truth of the prosecutor's evidence concerning what
occurred the previous day4.

3. Introduction of fact necessary to support relevant fact

There is a type of evidence that, if examined independently and apart from other evidence,
would be meaningless; nevertheless, when considered in conjunction with other facts proven
in the case, it explains and illustrates them. It sometimes strengthens the evidence presented
by one side and sometimes weakens the evidence presented by the other. Section 9 of the
Evidence Act makes relevant facts that are essential to explain a fact in question or relevant
facts. The explanatory evidence is insignificant in and of itself. It is neither one of the res
gestae nor probative in any straight line of proof to the presence of a pertinent fact or a fact in
issue. The influence of natural evidence, on the other hand, is not always affirmative. An
equally produced explanation will be meant to weaken the weight of the adversary's evidence.

The illustrations (a), (b), (d), (e), and (f), as well as illustration (c) of section 6 and illustration
(d) of section 8, demonstrate the word "facts essential to explain or introduce." Illustrations
(d), (e), and (f) are significant because they demonstrate that remarks made behind the back
of a person who is not the agent of the person against whom they are to be used may be used
against him. The reference to illustration (f) is based on the case of Lord George Gordon 5.
However, the other two illustrations, such as illustration (a) to section 6, are not supported by
English authority if it is indicated that the individual who makes the statement is not
summoned as a witness. When it is demonstrated that things allegedly stolen went from the
accused’s hands to B and were transferred to C by B, the words uttered by B at the moment
of giving them are manifestly significant if it is also demonstrated that B was the accused's
messenger and that the goods were thus hidden by C. Then, even if B lacked authority, they

3
R. Pearce, 1791, Pea 75
4
R v. Egerton, 1819, R & R 375
5
21 How St T 513
would follow C's lead. Therefore in absence of any evidence that would imply goods were
hidden by C, words only serve to explain conduct of B showing how he came to bring the
goods to C.

If section 9 read in conjunction with sections 11 and 21 would adequately justify the court in
admitting all previous statements made by the accused that have a bearing on the question of
guilt, and whether the previous statement made to a police officer or judicial officer is
immaterial, if such statement is relevant to the accused's guilt6.

4. Identity of any Thing or person

Identity can be considered an attribute of a thing or a person. When the court has to know the
identity of any person or item in order to make a decision on a matter, every information that
proves such identity becomes significant. As the law evolves, police utilise visual, scientific,
auditory, and other methods to identify suspects. There are no restrictions on the facts that
must be presented in court to demonstrate the identification in question, although their
admissibility may vary. This article examines the admissibility of witness testimony in
demonstrating the identity of a suspect, as well as the issues that may limit such evidence's
admission.

In criminal cases the previous conduct and declaration of the injured or other panties, and
their relations with the accused, are often material in fixing the latter's identity 7. In the
absence of cogent evidence that by reason of visibility of light at the place of occurrence and
proximity to the assailants the witnesses had a clear vision of the action of each one of the
accused persons in order that their features could get impressed in their mind to enable them
to recollect the same and identify the assailants even after a long lapse of time, it would be
hazardous to draw the inference that the accused are the real assailants8.

Identification tests are not substantive evidence. Such tests are primarily intended to provide
comfort to the investigating agency that their progress with the investigation into the offence
is on the right track9. When a party's identity with an ascertained person is in question, it can
be proven or disproven not only by direct proceeding testimony or opinion evidence, but also
presumptively by similarity or dissimilarity of characteristics (e.g., age, height, size, hair
complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities

6
madan garts vs r, IC 963
7
R Ball, 1911, AC 47, 68: R v. Clewes, 4 C & P 221
8
B. Pedda Narsi Reddy v. State of A.P., A 1991 SC 1468, 1472
9
Matru v. S, A 1971 SC 10501
including blood group, as well as residence, occupation, family relationship, education,
travel, religion, knowledge of particular places or even personal history.

There is no provision in the Criminal Procedure Code or the Indian Evidence Act for holding
a trial identification parade. They are only tests to determine the witness's memory based on
the first impression of the accused who was involved in the crime and to testify truthfully that
the accused is really the person who was involved in the crime. A crime in which a witness is
a witness. It also aims to help the prosecutor in securing it. That the investigation about this
incident is going in the right direction. According to Section 9 of the Indian Evidence Act,
1872, it does not matter in a trial whether the witness has identified the accused merely
because the factual evidence is sufficient to identify him in court. In practice, testing the
identity of the accused in the identity parade is a situation that confirms his identity in court.
However in 2005 amendment of Crpc, a new section 54A was inserted for identification of
person arrested. The need for a parade of testimony arises only if the witnesses have no prior
knowledge of the accused. The test is done. Verify the identity of the accused at the time of
the incident without the help of other sources. It is a test of memory and the ability of a
witness to remember what he saw while testifying in court during a trial.

In Ankush Maruti Shinde v State of Maharashtra, the necessity of conducting TIP was
evaluated. It was a murder case involving five people, thus the Test Identification Parade was
staged on the jail grounds, and all five accused were forced to stand in a line in the Parade
Hall. The Test Identification Parade was led by the Magistrate. He stated that he regarded the
dummies to be acceptable and respectable people chosen by the police and that they were
trustworthy. In his Explanation Report, he said unequivocally that no police officers or jail
officials were permitted to be in the parade hall when each of the witnesses was brought for
identification of the accused. The accused were required to change their clothing every time,
and the accused could not be seen by any of the witnesses until they were summoned to
identify the accused. Nothing was brought up during the accused's cross-examination to cast
doubt on his testimony. Procedure for test identification which is generally followed is—

1. Test identification parade is conducted by the Magistrate.

2. Such parades are conducted in special rooms with one side view glass where on one
side of it the suspects are lined up and on the other side the witness and Magistrate.

3. The witness and Magistrate must not be on the side where they are not visible to the
suspects. The main reason behind this is the protection of the witness and also to
 avoid any kind of influence or threat which could compel the witness to make false
identification.

4. Also, the attire of the suspects must be changed every time a witness is called to
identify the accused among them.

5. The Magistrate must prepare, certify and carry multiple copies of TIP reports.

THE ANALYSIS OF THE PROVISION

It is virtually impossible to complain or get straight to the real facts. Judges want
introductions, just as someone listening to the main events of a story wants to know the
circumstances leading up to it and its consequences. Facts that introduce relevant facts are
often very helpful in understanding the true nature of the transaction and providing the
missing link.

In Hunt v. Swyney, one of the executors of a store, discloses to the defendant Swyney that he
has deeded a certain parcel of land which is alleged to have been left to the plaintiff's
executor. I asked to be forced to do it. Mrs. Sharp, the widow, intervened and claimed that the
defendant had the land in trust and claimed rent and interest, and the defendant, who was her
husband's legal clerk, was cited with her money and said that he bought the land. . She, Miss
Sharp, when asked in the witness box. On this objection raised by Mr swyney the defendant
but was ruled out on ground that it was introductory.

There are certain classes of facts which are neither relevant as disputed facts nor related facts.
However, they either support the inferences drawn by the disputed facts or related facts, or
they are inconsistent with the disputed facts or related facts and for the purposes to which
they relate. A is accused of theft. Immediately after the crime, A fled to Calcutta. In A's
robbery trial, the fact that A fled immediately after the incident is a fact from which it can be
inferred that A had some apprehension about the crime. If A had very urgent business in
Calcutta and he produced evidence to show that he was there in connection with it, he would
rebut the inference from A's escape to Calcutta.

In R. v. Egestor, the prisoner was accused of stealing a coat by threatening to accuse the
complainant of a fictitious crime. Evidence was to be given that he intended to steal his coat
from another person the following night. The fact that the accused had attempted to steal
from another man was not discussed in the present case, but the confession was the reason
that this man must have committed the robbery on the day of the robbery. . If a man is
charged with dacoity, there is evidence that the accused was closely associated with the
corroborator prior to the dacoit to support the corroborator's statement that there was a
conspiracy to commit dacoity. Appropriate. Calcutta v. Company of Bengal. Evidence
provided from the return of approved valuations of adjacent buildings in arriving at the rental
price of the building is admissible as evidence.

This section addresses the relevance of facts required to explain or introduce relevant facts. It
states that facts that indicate the identity of everything or anyone whose identity is
significant, insofar as they are required for the purpose, are relevant. Thus, identification
evidence is a significant piece of evidence under Section 9 of the Evidence Act, when the
evidence consists of identification of the accused individual during his trial. The witness's
declaration in Court, a fortiori identification of an accused by him, is substantial evidence,
although it is intrinsically weak. The identifying evidence in the TIP is merely corroborative
evidence and not substantial evidence. It falls in the realm of investigation. The substantive
evidence is the statement of the witness made in the Court. The purpose of test identification
parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen
earlier, strength or trustworthiness of the evidence of the identification of an accused and to
ascertain if it can be used as reliable corroborative evidence of the witness identifying the
accused at his trial in Court.

evidence.-Although in assessing the evidence of identification it is neither possible nor

desirable to lay down any hard and fast rule, certain guiding principles can be stated.
Evidence of identification can be accepted only if the court is satisfied that-

(1) The witness had at least a fair, if not opportunity of seeing the dacoits which naturally
raises the question of sufficiency of light and proximity of the witness to the offender,

(2) That the identification parade was held within a reasonable time of incident

(3) That the witness has the reliable powers of observation to be judged from the fact that the
parade was not made too easy for him to pick out the suspect and that he did not commit so
many mistakes that it would create any doubt in the minds of reasonable men10.

(4) That the statement of the witness that he did not know the suspect from before is
believable.

10
Shee Raj Singh v. State, AIR 1967 All 528: 1967 Cri LJ 1465
(5) That the witnesses were not given an opportunity to see the accused after their arrest and
that the investigation conducted in the case inspires confidence11.

CONCLUSION

The facts are categorised as either explanatory or introductory to the pertinent information or
facts at issue. The facts must be clarified or introduced, and they must be significant or
supportive of the court's case. It can also be rebutted if an inference is derived from a
contested fact, and it can identify anything or anybody linked to the fact or facts in question
or when the relevant events occur. The information demonstrating the link between the
parties engaged in the transaction must also be relevant to the facts. By identifying facts,
other tests are also used to decide the facts that can be offered as evidence in court. The
identification parade test is intended to examine an eyewitness' memory against the accused.
The process of identifying an accused person or a deceased person using any marks or an
identification examination, or by identifying family members, is known as identification. It is
also recognised via image identification, which police use to identify the culprit from
eyewitnesses.

Though there are several ways to establish an accused's identity, the admissibility and
trustworthiness of such identification evidence provided by a witness must be considered,
particularly in circumstances where the prosecution's case is exclusively based on such
identification evidence. As a result, these evidences are a paradox in and of themselves
because the witness's memory can be easily tainted by factors such as duress or stress after
witnessing a crime, influence from the accused, family or acquaintance, and lapse of time,
among others, and this affects the quality and credibility of such evidences, rendering them
hopelessly unreliable. According to research, the witness's recall of the accused's look may
survive in short memory for a brief length of time before being quickly forgotten.
Furthermore, the odds of memory for face being damaged and altered are significant,
particularly when the eyewitness receives any erroneous information from any source. As a
result, these evidences are only corroborative and not substantial in nature, as their
trustworthiness and correctness remain in doubt, preventing them from serving as the sole
foundation for the accused's guilt. Nonetheless, the significance of witness identification
evidence cannot be overstated when deciding a case. Courts should take steps to comprehend

11
Anwar v. State, AIR 1961 All 50;
the subjectivity of the issue at hand, carefully analyse the identification evidence, and apply
legal rules accordingly.