सं Samvidhan

Bharatiya Sakshya Adhiniyam, 2023

Section 9

When facts not otherwise relevant become relevant

Why this exists

Trials often turn on indirect or circumstantial evidence rather than direct proof. Indian evidence law, going back to the Indian Evidence Act, 1872 (drafted by Sir James Fitzjames Stephen), recognized that facts showing an alibi, or facts narrowing down who could have committed an act, are logically important even though they aren't the 'main fact' being disputed. Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 continues this principle almost verbatim from Section 11 of the old Act, ensuring courts can weigh probability and improbability using real-world reasoning, not just isolated facts.

How courts read it

Under the predecessor provision (Section 11 of the Indian Evidence Act, 1872), courts consistently held that this section should be used cautiously — it doesn't open the floodgates to any remotely connected fact, but only those that create a 'high degree of probability or improbability.' Alibi evidence, for instance, is admitted under this principle, and courts have emphasized that a mere possibility of alternative explanation isn't enough; the fact must substantially affect the probability of the main fact in issue.

Common misconceptions
  • Myth: Only direct eyewitness evidence can be used to decide a case.
    Fact: Courts can also rely on indirect facts, like alibis or elimination of other suspects, if they make a disputed fact highly probable or improbable.
  • Myth: An alibi must prove it was physically impossible for the accused to commit the crime.
    Fact: The law only requires that the alibi make it highly improbable, not impossible, that the accused committed the offense.