Law:

Section:

Evidence Act (1 of 1872),S. 32-Dying declaration-Can be admitted in evidence to prove a fact in issue-"Fact in issue" and "relevant fact"-"Fact in issue" not a separate category of evidence-Contention that S. 32 makes secondary evidence admissible only, in respect of "relevant fact", and that "fact in issue" cannot be proved by such secondary evidence-Repelled. A dying declaration was sought to be challenged on the ground that it could not legally he admitted in evidence to prove a fact in issue. It was contended that since the Evidence Act, 1872 itself has distinguished a "fact in issue" from a "relevant fact" by defining them separately and treating them in contradis­tinction-from each other, they form distinct and different catego­ries of evidence. Section 32 of the Evidence Act, 1872, it was urged, makes secondary evidence admissible in respect of a "rele­vant fact" and a "fact in issue" could not be proved by such secondary evidence. Held: The two definitions are not mutually exclusive. A 'fact in issue' is a relevant fact to be asserted or denied in answer. A 'fact in issue is not a separate category of evidence. The first illustration under this definition shows that in a case in which A is accused of the murder of B, the question as to whether A caused B's death is a fact In Issue, but to say that it is not a relevant fact would amount to saying that a fact in issue is not a relevant fact. This can hardly be correct. The scheme of the Evidence Act is to permit, under the provisions of Chapter II of the said Act, evidence to be given in a suit or proceeding of the existence or non-existence of every fact in issue and such other facts as acre held to be relevant. The relevant facts, therefore, constitute a wider category of facts from which are derived facts in issue which are of a special category. Indeed, a reference to the illustrations given under section 32 itself would show that they are not confined only to relevant facts. This itself indicates that the Legislature did not intend to exclude the admissibility of secondary evidence in respect of facts in issue. The facts are either relevant or irrelevant. Facts in issue are facts about which there is…

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