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be false. If he waited for absolute certainty, he would never act at all. In like manner all that a Judge need look for is such a high degree of probability that a prudent man in any other transaction where the consequences of mistake were equally important, would act on the assumption that the thing was true. The section is so worded as to provide for two conditions of mind; first, that in which a man feels absolutely certain of a fact, in other words "believes it to exist"; and secondly, that in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence.
A distinction has sometimes been drawn between the probative effects of evidence in civil and in criminal cases, and the doctrine has been laid down that a fact may be regarded as proved for civil purposes, though the evidence would not sustain it for the purpose of a criminal conviction. "There is," says Mr. Best (sec. 95), "a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous condemnation both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilized nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to moral certainty, or, as an eminent Judge expressed it, 'Such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt.'
4. Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it:
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved :
When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning.
In treatises on the law of evidence presumptions are generally classed under two heads: first, Disputable or Rebuttable presumptions; secondly, Absolute or Irrebuttable presumptions. The cases wherethe Court may presume are instances of rebuttable presumptions. When one fact is declared to be 'conclusive proof' of another, it is an instance of irrebuttable presumption.
This section does away with all distinctions between presumptions of fact and presumptions of law, and all presumptions are made to fall under one or other of the three classes mentioned in it.
May presume.-The Court may presume certain facts under secs. 86, 87, 88, 90, 114, and 148 (4). Secs. 86, 87, 88, and 90 mention several instances of presumptions as to documents, and the Courts may throw the burden of proof on which party it pleases. Sec. 114 includes by far the largest class of presumptions which the "common course of natural events, human conduct, and private and public business" suggest to us. The Courts may presume adversely to the witness who refuses to answer questions put to him, under sec. 148 (4). The Courts may draw the inferences which the facts suggest, at once, and call on the opposite party to disprove it, or may refuse to draw any inference and call for proof of it, independent of the facts by which the inference was suggested.
Shall presume.-The Court shall presume certain facts under secs. 79, 80, 81, 82, 83, 84, 85, 89, and 105. These sections give no option to the Court, but compel it to take the facts mentioned in them as proved until evidence is given to disprove them.
Conclusive proof.-For instances of "conclusive proof," see secs. 41, 112, and 113. "An artificial probative effect is given by the law to certain facts, and no evidence is allowed to be produced with a view of combating that effect. These cases generally occur where it is against the policy of government or the interests of society that a matter should be further open to dispute.
Sir James Stephen in his "Introduction to the Evidence Act" says:-"Presumptions are of four kinds according to English law:
"1. Conclusive presumptions. These are rare, but when they occur they provide that certain modes of proof shall not be liable to contradiction.
"2. Presumptions which affect the ordinary rule as to the burden of proof that he who affirms must prove. He who affirms that a man is dead must usually prove it, but if he shows that the man has not been heard of for seven years, he shifts the burden of proof on his adversary.
"3. There are certain presumptions which, though liable to be rebutted, are regarded by English law as being something more than mere maxims, though it is by no means easy to say how much more. An instance of such a presumption is to be found in the rule that recent possession of stolen goods unexplained, raises a presumption that the possessor is either the thief or a receiver.
"4. Bare presumptions of fact, which are nothing but arguments to which the Court attaches whatever value it pleases."
OF THE RELEVANCY OF FACTS.
"Facts may be related to rights and liabilities in one of two ways:
(1). They may by themselves, or in connection with other facts, constitute such a state of things that the existence of the disputed right or liability would be a legal inference from them. From the fact that A is the eldest son of B, there arises of necessity the inference that A is by the law of England the heir-at-law of B, and that he has such rights as that status involves. From the fact that A caused the death of B under certain circumstances, and with a certain intention or knowledge, there arises of necessity the inference that A murdered B, and is liable to the punishment provided by law for murder.
Facts thus related to a proceeding may be called facts in issue, unless their existence is undisputed.
(2). Facts, which are not themselves in issue in the sense above explained, may affect the probability of the existence of facts in issue, and be used as the foundation of inferences respecting them; such facts are described in the Evidence Act as relevant facts.
All the facts with which it can in any event be necessary for Courts of Justice to concern themselves, are included in these two classes."-Stephen's Evidence Act, 9-10.
The present chapter sets out the ways in which facts must be connected with each other in order to be relevant.
The provisions as to proof contained in Part II, the rules as to estoppel in Chapter VIII, and the rules contained in secs. 121-127, restrict and exclude the evidence of relevant facts, under circumstances therein mentioned.
The law upon the subject of the relevancy of facts in judicial evidence in India is contained in secs. 6-16. The rules herein propounded are not deduced from first principles, but are generalizations from actual experience, and, consequently, it is possible that in some unusual cases the language of the rules may not prescribe with accuracy the true limit of relevancy, and we may expect to find in them things that may not be strictly confined to the subject of relevancy.
5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Evidence may be given of facts in issue and relevant facts.
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.
(a). A is tried for the murder of B 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 B with 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.
This section renders exclusive everything which is not covered by the purview of some other section which follows in the statute. The safest guide in regard to the admissibility of evidence is that all evidence should be excluded which the Act does not expressly authorize.
All preliminary facts which are necessary to establish the admissibility of evidence must be proved aliunde before such evidence may be received.
A statement of a witness for the defence, that a witness for the prosecution was at a particular place at a particular time, and consequently could not then have been at another place, where the latter states he was, and saw the accused persons, is properly admissible in evidence, even though the witness for the prosecution may not himself have been cross-examined on the point. Such evidence is receivable under this section and secs. 11 and 153, ill. (c) of the Act-Reg v. Sakharm Mukundje, 11 Bom. H. C. R., 166.
The provisions of the Code of Civil Procedure are not affected by this section. See Civil Procedure Code, secs. 59, 60, 62, 63, 138, and 139, as to original hearings, and sec. 568, as to appeals.
which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Relevancy facts forming part of same transac
(a). A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after as to form part of the transaction, is a relevant fact.
(b). A is accused of waging war against the Queen by taking part in an armed insurrection in which property is destroyed, troops are attacked, and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c). A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to