Fact in issue vs relevant fact under BSA is the difference between a fact from which an asserted or denied right necessarily follows, under Section 2(1)(g), and a fact the relevancy sections connect to it, under Section 2(1)(k). Section 3 admits both and no others.
The Bharatiya Sakshya Adhiniyam, 2023 defines both terms inside a single sub-section, and the two definitions are built on entirely different grammar. Section 2(1)(g) describes a fact by what follows from it, because a right, liability or disability asserted or denied in the proceeding must necessarily follow from the fact before it qualifies. Section 2(1)(k) describes nothing at all. It says a fact is relevant when it is connected with another fact in any of the ways referred to in the provisions relating to relevancy, which points to a list of provisions instead of stating a test.
The two categories are easiest to separate in a suit where both of them appear on the same page of the pleadings. A lender sues a borrower on a bond for the repayment of money. The borrower’s written statement denies that he ever executed the bond at all.
That denial fixes the fact in issue. Whether the borrower executed the bond is the fact from which the liability asserted in the plaint necessarily follows, and it is the fact on which the court will record an issue and take evidence.
The lender then wants to prove something further, which is that at the time the bond was said to have been made, the borrower needed money for a particular purpose. That fact establishes no liability by itself, and no issue will ever be framed on it. It enters the record through Section 6, which makes motive and preparation relevant, and it stays a relevant fact and nothing more. Section 2(1)(g) and Section 2(1)(k) draw that line, and Section 3 decides what a court does with it.
Fact in issue under BSA Section 2(1)(g)
A fact is in issue under Section 2(1)(g) only where a right, liability or disability asserted or denied in the proceeding necessarily follows from it. The definition reads that a fact in issue “means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows”. Two phrases in that sentence carry the whole weight, and most summaries of the provision quote neither of them.
The first is “asserted or denied”. A fact reaches this category because the parties have joined a dispute over it, not because it is dramatic or central to the story. A fact that both sides admit is not a fact in issue, however important it may be to understanding what happened, because nothing is being asserted or denied about it any more. This is why the pleadings, and not the narrative, decide the contents of the category.
The second is “necessarily follows”. The right or liability must follow from the fact as a matter of necessity, not merely gain support from it. A fact that makes the plaintiff’s version more probable has not met this standard, and a fact that leaves the court still needing another step to reach the liability has not met it either.
That word separates the two categories, and a fact that fails it is not disqualified from the trial. It has to enter under a relevancy provision instead.
Underneath both definitions sits Section 2(1)(f), which defines a fact as any thing, state of things or relation of things capable of being perceived by the senses, and also any mental condition of which a person is conscious. That second limb is what allows an intention or a state of knowledge to be a fact in issue rather than an inference.
The Adhiniyam’s own illustrations to Section 2(1)(g) make the point: where a person is accused of the murder of another, the facts in issue may include that the accused caused the death, that the accused intended to cause it, that the accused had received grave and sudden provocation, and that the accused was by reason of unsoundness of mind incapable of knowing the nature of the act. Two of those four are defence facts, so the category covers what the accused asserts as well as what the prosecution does. The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024 and carried this definition across from the Indian Evidence Act, 1872 without altering a word of it.
Framing of issues under Order XIV of the Code of Civil Procedure
Framing of issues under Order XIV is where the category acquires its contents in a civil suit, and the Adhiniyam says so itself. The Explanation to Section 2(1)(g) provides that whenever a court records an issue of fact under the law relating to civil procedure, the fact to be asserted or denied in the answer to that issue is a fact in issue. The definition therefore depends on procedure. It attaches to a document the court actually produces.
A party who fails to plead a fact will usually find that no issue is recorded on it, and a fact carrying no issue is not a fact in issue at all. The category is built by the pleadings and closed by the order framing issues, and that is why parties fight a late amendment application so hard.
The reverse error costs just as much. A litigant who asks the court to frame an issue on a fact that only supports the claim, rather than one from which liability necessarily follows, invites a wider trial than the case needs. Every additional issue is another matter on which evidence must be led and a finding returned, and the party who asked for it carries that burden through the trial.
Facts in issue in a criminal trial
In a criminal trial the charge does the work that the order framing issues does on the civil side. The facts in issue are the ingredients of the offence the prosecution has to establish, together with any exception or general defence that the accused raises and the statute puts in dispute. The Adhiniyam’s illustrations follow exactly that structure, listing the causing of death, the intention behind it, the provocation and the unsoundness of mind as facts that “may be in issue” at the same trial.
Provocation and unsoundness of mind are not facts the prosecution asserts, and they enter the category the moment the accused raises them, because a right, liability or disability asserted or denied then turns on them. The category tracks the dispute, not the party.
Most of the prosecution’s material falls outside the category. Motive, preparation, conduct after the offence, the recovery of a weapon and the statements of bystanders are none of them facts in issue, because no ingredient of the offence necessarily follows from any of them standing alone. Each of them enters the trial under a relevancy provision instead.
Relevant fact under BSA Section 2(1)(k)
A fact is relevant under Section 2(1)(k) only because a provision of the Adhiniyam has declared the particular connection it bears. The definition reads that “a fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts”, and that sentence describes no quality of the fact whatsoever.
The definition is referential rather than descriptive, and this is its single most misunderstood feature. Section 2(1)(g) tells you what a fact in issue looks like, so you can hold a fact up against the words and decide. Section 2(1)(k) tells you nothing about the fact and sends you to a catalogue instead. To know whether a fact is relevant you have to find the provision that makes it so.
The consequence follows immediately, and it is the consequence that examiners test. Logical relevance is not enough. A fact can bear an obvious rational connection to the dispute and still be inadmissible, because the Adhiniyam did not declare that species of connection anywhere in Chapter II. Relevance in this statute is a legal status conferred by a provision, not a quality a fact carries in from the world.
Chapter II runs from Section 3 to Section 50 and each of its provisions confers that status on a defined class of connection. The classes that do the heavy lifting in ordinary litigation are the early ones, and the three below account for most of what a trial court actually receives under this head.
Section 4 and facts forming part of the same transaction
Section 4 makes relevant those facts which, “though not in issue, are so connected with a fact in issue or a relevant fact as to form part of the same transaction”, whether they occurred at the same time and place or at different times and places. The opening words are the textual proof that the two categories are distinct: the provision only has work to do for facts that are not in issue.
There is a change here that a reader coming from the old Act will miss unless they hold the two texts side by side. Section 6 of the Indian Evidence Act, 1872 made a fact relevant where it was so connected with a fact in issue as to form part of the same transaction. Section 4 of the Adhiniyam reads “a fact in issue or a relevant fact“. The provision now reaches facts connected to other relevant facts, and not only to facts in issue, which widens the doctrine by three words and no announcement.
The doctrine this section carries is res gestae, and its limit is contemporaneity. In Sukhar v. State of Uttar Pradesh, decided in 1999, the Supreme Court described the provision as “an exception to the general rule whereunder the hearsay evidence becomes admissible”, and set the condition for bringing hearsay inside it. The statement “must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication”.
That last clause is the whole test, and it explains why the section is pleaded far more often than it succeeds. The Court in Sukhar quoted its earlier decision in Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996) for the proposition that if there was an interval, however slight, which was sufficient for fabrication, the statement is not part of res gestae. The question is not whether the statement was made soon afterwards in ordinary language. It is whether the speaker had a window in which to compose something.
The Adhiniyam’s own illustration to Section 4 shows the intended reach. Where a person is accused of murder by beating, whatever was said or done by the accused, the deceased or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. None of that is a fact in issue. The transaction is what carries it in.
The same section decides cases the other way, and Bairon Singh v. State of Madhya Pradesh, decided in 2009, shows what exclusion looks like. Two witnesses deposed to what their sister had told them about the treatment she had received from the accused. The Supreme Court held that Section 6 of the old Act was not attracted at all on those facts, because the statements were narrative of the past rather than substantially contemporaneous with it.
The Court then did the thing the exclusionary rule requires. It went looking for some other provision that might confer relevance on the statements, and held that unless the statement of a dead person falls within Section 32(1), there is no other provision under which it can be admitted in evidence. The evidence was not weighed and found wanting. It was excluded because no head of relevancy reached it.
The section is not confined to violent crime, and the civil illustration is the clearer teaching example. Where one party sues another for a libel contained in a letter forming part of a correspondence, the other letters in that correspondence are relevant facts even though they do not contain the libel itself. Their connection is to the transaction, and the libel is the fact in issue they attach to.
Sections 5 and 6 on occasion, cause, motive and conduct
Section 5 makes relevant the facts which are the occasion, cause or effect of facts in issue or relevant facts, along with those constituting the state of things under which they happened or affording an opportunity for their occurrence. Where the question is whether one person robbed another, the fact that the victim went to a fair with money shortly before the robbery, and showed it or mentioned it to third persons, is relevant. Where the question is whether one person murdered another, marks on the ground produced by a struggle near the place of the murder are relevant facts.
Section 6 covers motive, preparation and conduct, and it is the provision that absorbs most of what a reader instinctively but wrongly calls a fact in issue. Sub-section (1) makes relevant any fact which shows or constitutes a motive or preparation for a fact in issue or a relevant fact. The illustration is the poisoning case: where a person is tried for murder by poison, the fact that before the death the accused procured poison similar to that administered is relevant. Procuring the poison is not an ingredient of the offence, so nothing about the liability necessarily follows from it, and it comes in under Section 6 rather than as a fact in issue.
Sub-section (2) makes the conduct of a party relevant where that conduct influences or is influenced by a fact in issue or a relevant fact, whether the conduct came before or after. Explanation 1 provides that “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements.
A party’s later account of what happened is therefore not admissible as conduct. Litigants commonly turn to Section 4 for such a statement, and it gets in only if the statement meets the contemporaneity test.
The line between conduct and statement is where that Explanation is fought, and the Supreme Court drew it in Prakash Chand v. State (Delhi Administration), decided in 1978. The Court held that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the old Act if that conduct is influenced by any fact in issue or relevant fact, and a statement made to a police officer in the course of an investigation, which Section 162 of the Code of Criminal Procedure excludes.
The example the Court gave has been applied ever since. Evidence that an accused person led a police officer to the place where stolen articles or weapons were hidden, and pointed it out, is admissible as conduct, whether or not an accompanying statement falls within the provision governing discovery. The pointing out is an act, and the act is what Section 6(2) receives.
Relevance under these sections is not the end of the inquiry. In Ram Bihari Yadav v. State of Bihar, decided in 1998, the Supreme Court held that although the expressions are often used as synonyms, “their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant”. The Court’s own example was the question put in cross-examination to impeach a witness, which is admissible without being relevant.
A fact that clears Section 2(1)(k) has therefore cleared one gate and not the other, and the separate treatment of relevancy and admissibility takes that distinction further than there is room for here. The Supreme Court has rarely expounded these two definitions in the abstract, and pages promising landmark judgments on the meaning of a fact in issue tend to be padded with decisions that never construe the definitions at all. The distinction does its work inside the relevancy sections, which is where it should be studied.
The overlap between fact in issue and relevant fact under BSA
Section 3 is what turns the distinction into an operative rule rather than a piece of vocabulary. It provides that “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”. The closing four words are the reason the categories matter at all.
“And of no others” makes the two definitions exhaustive rather than illustrative. A fact that is neither in issue nor declared relevant by some provision of Chapter II has no route into the record, whatever its apparent bearing on the truth. The Adhiniyam does not permit a court to receive evidence merely because it considers the evidence helpful. It names two categories and excludes everything outside them.
The Adhiniyam illustrates the division on a single set of facts, and its two illustrations are built on the same fact pattern. Illustration (a) to Section 3 takes a trial for murder by beating with a club and lists the facts in issue as the beating, the causing of death by that beating, and the intention to cause death. Illustration (a) to Section 4 takes the same beating and makes whatever was said or done by the parties or the bystanders at the time a relevant fact. One provision names what has to be established, and the other names what may be led in order to establish it.
The categories overlap without collapsing into one another. A single fact can occupy both positions in the same trial, since a fact in issue in one proceeding may appear as a relevant fact in another, and a fact relevant under Section 6 may itself become the subject of an issue if the parties join a dispute over it. What never changes is the route by which each one enters, and Section 3 permits only those two.
Misclassification costs a litigant in both directions, and the two errors look nothing alike. Treating a relevant fact as a fact in issue produces an unnecessary issue, evidence led on a matter that decides nothing, and a finding the party then has to defend on appeal. Treating a fact in issue as merely relevant is the more expensive mistake, because the party never pleads it, no issue is recorded, and the liability it would have established goes unproved.
The Explanation to Section 3 provides that the section does not enable a person to give evidence of a fact which they are disentitled to prove by any provision of the law relating to civil procedure. Relevance under the Adhiniyam does not override a procedural bar, so a fact that clears both definitions can still be excluded because the Code of Civil Procedure closed that door for a different reason.
Anyone moving between the two statutes needs the renumbering, because the substance carried over almost unchanged. Section 3 of the Indian Evidence Act, 1872 became Section 2(1) of the Adhiniyam. Section 5 became Section 3, Section 6 became Section 4, Section 7 became Section 5, and Section 8 became Section 6.
The definitional treatment in the older Section 3 of the Indian Evidence Act, 1872 still reads accurately on the concepts, and the wider scheme sits in the Bharatiya Sakshya Adhiniyam, 2023 guide. The one change on this ground is the widening of Section 4 noted above.
Frequently asked questions
Is every relevant fact also a fact in issue under the BSA?
A relevant fact is not automatically a fact in issue, because the Bharatiya Sakshya Adhiniyam, 2023 defines the two categories by different tests. Section 4 makes the position explicit by opening on facts which are “though not in issue” connected with a fact in issue or a relevant fact. A fact can move between the categories across different proceedings, but it does not occupy both by default.
What does “necessarily follows” in Section 2(1)(g) actually require?
The phrase “necessarily follows” requires the right, liability or disability asserted or denied to follow from the fact as a matter of necessity, either by itself or in connection with other facts. A fact that merely makes a party’s version more probable does not satisfy it. That test separates the two categories, and it is why motive and preparation sit outside the first one.
Can a fact that is logically relevant but outside Chapter II be proved?
A logically relevant fact that falls outside Chapter II cannot be proved, because Section 3 permits evidence of facts in issue and of such other facts as are declared relevant, “and of no others”. Logical relevance carries no weight unless a provision of the Adhiniyam confers the status. Section 2(1)(k) confirms this by defining relevance purely by reference to the ways the Adhiniyam itself recognises.
How does the framing of issues in a civil suit decide the facts in issue?
The Explanation to Section 2(1)(g) provides that where a court records an issue of fact under the law relating to civil procedure, the fact to be asserted or denied in answer to that issue is a fact in issue. The order framing issues under Order XIV of the Code of Civil Procedure therefore fixes the category for that suit. A fact never pleaded ordinarily attracts no issue and so falls outside it.
What changed between Section 6 of the old Act and Section 4 of the BSA?
Section 6 of the Indian Evidence Act, 1872 made a fact relevant where it was so connected with a fact in issue as to form part of the same transaction. Section 4 of the Adhiniyam extends this to a fact so connected with “a fact in issue or a relevant fact”. The res gestae head now reaches facts connected to other relevant facts, which the earlier wording did not cover.
References
- The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023), Ministry of Home Affairs (sections cited: 2(1)(f), 2(1)(g), 2(1)(k), 3, 4, 5, 6). https://www.mha.gov.in/sites/default/files/2024-04/250882_english_01042024_0.pdf
- Sukhar v. State of Uttar Pradesh, Supreme Court of India, 1 October 1999. https://indiankanoon.org/doc/298217/
- Ram Bihari Yadav v. State of Bihar, Supreme Court of India, 21 April 1998. https://indiankanoon.org/doc/643499/
- Bairon Singh v. State of Madhya Pradesh, Supreme Court of India, 29 May 2009. https://indiankanoon.org/doc/643400/
- Prakash Chand v. State (Delhi Administration), Supreme Court of India, 20 November 1978. https://indiankanoon.org/doc/1761133/
- Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996) 6 SCC 241, as quoted in Sukhar v. State of Uttar Pradesh.
- The Indian Evidence Act, 1872 (sections cited: 3, 5, 6, 7, 8, 32, 162 CrPC), for the renumbering comparison and the cases decided under it.
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any point discussed here.