This article is written by Syed Owais Khadri. This article attempts to explain the meaning, role and importance of ‘factum probandum’ and ‘factum probans’ in any legal proceeding. The article also covers the meaning of the maxims with respect to the Indian Evidence Act, 1872. It differentiates between the two and also discusses the relationship between both. The article also discusses the burden of proof and a few case laws on circumstantial evidence. 

it has been published by Rachit Garg.

Introduction

Facts play an important role in any legal proceedings as any given case is decided on the basis of the facts available before the court. There are usually two kinds of facts in a legal proceeding, the disputed facts or the ‘facts in issue’ and evidential or ‘relevant facts’. The two Latin maxims “factum probandum” and “factum probans” are of great significance while adjudicating a case. These two maxims refer to the aforementioned two kinds of facts. The maxim “factum probandum” refers to the facts in issue or the disputed facts while the maxim “factum probans” refers to the relevant or evidential facts. Both these facts are generally interconnected with each other but the facts in issue are given primary consideration while the relevant facts play a secondary role. It is essential to understand the similarities, differences and interconnection between the two to have a better understanding of any legal proceeding.

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What is factum probandum

Factum probandum refers to the facts in issue or the disputed facts that are contested or raised in a legal dispute, whether civil or criminal proceedings. Factum probandum is a legal maxim derived from Latin which can be defined as any principal or main fact that needs to be proven by a counsel in a legal proceeding before the Court. It can be any principal fact that possesses the burden of proof in a suit or trial and needs to be proved. It refers to the core facts of a case or a legal dispute. 

The burden of proof to establish the principal facts or the factum probandum is generally upon the party initiating the legal dispute or the party that would fail in a suit if it fails to provide appropriate evidence. But it may be the opposite in certain cases, such as the Protection of Children from Sexual Offences (POCSO) cases which is called the reverse burden of proof.

The concept of factum probandum also rules out allowing to produce the irrelevant facts as the maxim refers only to the facts in issue which limits the proceedings to relevant evidence preventing the case from becoming complicated or affected due to the non-relevant evidence. It will also result in never-ending judicial proceedings as takes too much of the courts’ time once it starts allowing to hear irrelevant facts.

What is factum probans

Factum probans is another legal maxim derived from Latin which refers to the evidential or the relevant facts which are connected to the facts in issue or factum probandum. These are the facts which are not principal in nature but are subordinate to the original facts. The relevant or evidential facts are usually used to support or prove the facts in issue. These facts are in the nature of material supporting the disputed facts.

Difference between factum probandum and factum probans 

The maxims factum probandum and factum probans are of great significance in the legal proceedings. The main difference between both is the nature of facts. While the former refers to the principal facts, the latter refers to the facts that are subsidiary facts. 

Factum probandum refers to the main facts that are contested in a legal proceeding and factum probans refers to the facts that are evidential in nature and which are essential to prove or establish the main facts.

For example, A and B are two rivals. A and B fight on a particular day and A threatens to kill B. B is found dead the next day. Here, whether A has killed B is the principal fact or the fact in issue and whether A had threatened B the previous day and whether A and B were rivals are the evidential facts.

Factum probandum and factum probans under the Indian Evidence Act, 1872

The concepts of factum probandum and factum probans are embodied in the provisions of the Indian Evidence Act, 1872 (hereinafter mentioned as “Evidence Act”), which is going to be replaced with the Bharatiya Sakshaya Adhinyam, 2023 (hereinafter mentioned as “BSA”). The Ministry of Home Affairs, on 24th February 2024, through the gazette notification, notified that the new criminal laws are going to come into effect from 1st July 2024.

Section 2(1)(g) of the BSA (Section 3 of the Indian Evidence Act, 1872) interprets the expression ‘Facts in issue’ (factum probandum) as “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.” In simple terms, factum probandum means any fact that is asserted or denied or simply contested in any legal proceeding.   

Section 2 of the BSA (Section 3 of the Evidence Act) interprets the term ‘relevant’ as “one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.” Therefore, relevant fact refers to any fact that is connected to any other fact in any of the ways mentioned in Chapter II of the Evidence Act with regard to the relevancy of facts. 

Section 3 of the BSA (Section 5 of the Evidence Act) provides for the production of evidence with respect to the facts in issue or the relevant facts. The provision states that any evidence may be given in a legal proceeding to prove either the existence or non-existence of every fact in issue or any other fact that is considered relevant as declared in the provisions of the Act. 

The other provisions from Sections 4 to 14 of the BSA (Sections 6 to 16 of the Evidence Act) provide various instances of the relevancy of certain facts according to different facts and circumstances.

Relationship between factum probandum and factum probans

Both factum probandum and factum probans form a significant part of legal proceedings. They are like the two sides of the same coin. Both can be said to be interconnected to each other and interdependent too to some extent. The former requires the assistance of the latter to support or challenge itself while the latter is limited only to the preposition laid down as the former.

For example, the fact in issue is whether A has committed theft. And the relevant fact is that A has criminal antecedents of committing theft or robbery. In such a case the fact in issue is dependent upon the relevant fact, which is of great value to prove the possibility of theft having been committed by A. Similarly, the relevant fact is of no value in the absence of the aforementioned fact in issue. Therefore, both factum probandum and factum probans are interrelated with each other.

Onus probandi 

Onus probandi is another legal maxim that refers to the “burden of proof”. The burden of proof refers to the obligation to prove a fact before the court in any legal proceedings. The burden of proof and the factum probandum and factum probans are closely related to each other. The concept of onus probandi is of great significance since it helps in understanding the need to prove the facts, either relevant or the facts in issue. The understanding of the concept of burden of proof provides clarity in dealing with the facts in issue or factum probandum and the relevant facts or factum probans appropriately at the right instance. 

The burden of proof under the Indian Evidence Act, 1872

Chapter VII, Part IV of the Bharatiya Sakshaya Adhiniyam, 2023 (BSA) deals with the concept of burden of proof. It consists of 17 Sections i.e., Section 104 to Section 120 (Chapter VII under Part III of the Indian Evidence Act, 1872, consisting of 17 Sections i.e., Section 101 to Section 114A.)

Section 104 of the BSA (Section 101 of the Evidence Act) gives a basic explanation of the burden of proof. According to the provision, any person who desires to get a ruling by any Court in his/her favour with regard to any legal right or liability on the basis of certain facts must prove the facts he/she is asserting and the obligation to prove the existence of the asserted facts is called as the burden of proof. 

Section 105 of the BSA (Section 102 of the Evidence Act) provides for the person on whom the burden of proof rests. It states that the burden of proof lies upon such a person who would fail if no evidence is produced or fact is asserted by either of the parties to a legal proceeding. In simple words, the illustrations under the provision reflect that the burden of proof would lie upon the party instituting a suit or any legal proceeding. 

Section 106 of the BSA provides (Section 103 of the Evidence Act) that the burden of proof with respect to a particular fact rests upon the person asserting that fact.

Section 107 of the BSA (Section 104 of the Evidence Act) deals with the burden of proof to prove a fact in order to make certain evidence admissible. According to this provision, any person wanting to make any evidence admissible before the court to prove any particular fact should prove certain facts with regard to the evidence. 

For example, if A wants to prove that B has committed a robbery in A’s house, then A must in the first place prove that his house has been robbed. In this case, 

  • Factum probandum – Whether B has committed the robbery in A’s house?
  • Factum probans – B has prior criminal antecedents of committing robbery.
  • Onus probandi – The burden of proof lies upon A and to prove that B has committed robbery in A’s house, A must first prove that his house has been robbed.

The terms relevant and admissible with regard to evidence are often treated as of similar meaning but the Supreme Court of India in a notable judgement pointed out the difference between ‘relevancy’ and ‘admissibility’ of evidence. The Hon’ble Supreme Court in Ram Bihari Yadav v. State of Bihar (1998) observed that, although the terms admissibility and relevancy are presumed to be or used as synonyms, the legal implications of both terms are different. It further observed that facts which are relevant may not be admissible and facts which are not relevant may be admissible in the court. For example, communication between the spouses during marriage may be relevant but may not be admissible and, on the other hand, certain questions that may be asked during the cross-examination may not be relevant but are admissible. 

Similarly, the confession made before a police officer, though relevant, is not admissible in the court, according to Section 23 of the BSA (Section 25 of the Indian Evidence Act, 1872). 

Section 109 of the BSA (Section 106 of the Evidence Act) provides the burden of proof to prove a fact that is within the knowledge of a person. This provision is similar to Section 103 and the burden of proof rests upon the person asserting the fact.

Likewise, Sections 110, 111, 112, 113 and 116 of the BSA (Sections 107, 108, 109, 110 and 112 of the Evidence Act respectively) provide the burden of proof in various instances. Sections 113 and 114 of the  Evidence Act respectively deal with the proof of cessation of territory and presumption of certain facts by the Court. [Section 119 of BSA replaced Section 114 of IEA. The provision corresponding to Section 113 of IEA i.e., the proof of cessation of territory is not available in the new law, BSA]

Reverse burden of proof

The general rule with regard to Onus probandi or burden of proof is that the obligation to prove a certain fact lies upon the person asserting or claiming it or the person instituting the criminal proceedings but this general rule of burden of proof has certain exceptions where the obligation to disprove an asserted fact lies upon the opposite party. Such a burden to disprove the facts asserted or claimed in any legal proceedings is known as the reverse burden of proof.

The exceptions to the burden of proof or the instances of reverse burden of the proof may be as follows.

Section 108 of the BSA (Section 105 of the Evidence Act) provides for the first exception to the general rule of burden of proof or rather it can be stated as the instance of reverse burden of proof under the Indian Evidence Act, 1872. According to this provision, whenever any person accused of any offence claims defence or tries to bring the case within the general exceptions provided under the Indian Penal Code, 1873 (hereinafter mentioned as “IPC”) or any other exception or proviso of the same legislation, the burden of proof would lie upon the person asserting the defence or bringing the case under such exceptions.

The Supreme Court of India, in K.M. Nanavati v. State of Maharashtra (1962), upheld the conviction of the accused for the offence of murder under Section 300 of the Indian Penal Code, 1872 (Section 99 of BNS). In this case, the accused failed to prove the asserted defence of sudden and grave provocation under Exception 1 of Section 301 of the IPC.

According to Section 114 of the BSA (Section 111 of the Indian Evidence Act, 1872) the burden to prove good faith in any transaction in question lies upon the person in a position of active confidence or the person generally referred to as the defendant or the respondent.

According to Section 115 of the BSA (Section 111A of the Indian Evidence Act, 1872) if any person is accused of committing, abetting or conspiring to commit any offence under provided Sections 121, 121A, 122 or 123 of the Indian Penal Code, 1872, (Sections 145, 146, 147, 148 of BNS respectively) then the burden to disprove such an allegation lies upon the accused. 

Likewise, according to Sections 117 and 118 of the BSA (Sections 113A and 113B, of the Evidence Act) the burden to disprove the allegation in cases where any person is accused of committing an offence of abetment to suicide of a married woman or the offence of causing dowry death lies upon the person accused of committing such offence once the essentials of the said offences are proved by the prosecution beyond all reasonable doubt.

According to Section 120 of BSA (Section 114A of the Indian Evidence Act, 1872) when a person is accused of committing the offence of rape under Section 376 of the Indian Penal Code, 1873 (Section 64 of BNS) and where sexual intercourse by the accused is established in such case, then the burden to prove the presence of consent by the woman for such act of sexual intercourse lies upon the accused.

According to Section 29 of the Protection of Children from Sexual Offences Act, 2012, whenever any person is accused of committing the offences mentioned in that provision, the burden to prove innocence is upon such accused.

Case laws surrounding factum probandum and factum probans

The Indian judiciary, especially the Hon’ble Supreme Court of India has made various observations from time to time with regard to factum probandum (fact in issue) and factum probans (relevant fact). The Supreme Court, in various judgments, has noted the role of circumstantial evidence in proving the facts in issue. The following are some of the significant rulings of the Hon’ble Supreme Court.

Vilas Pandurang Patil v. State of Maharashtra (2004)

The accused in the instant case was arrested for committing offences under Sections 302  and 404 of the Indian Penal Code, 1873 (Sections 101 and 313 of BNS) and was subsequently acquitted by the Trial Court. The order of the Trial Court was reversed by the High Court of Bombay which convicted the accused and sentenced him to life imprisonment and imprisonment for two years for the aforementioned offences respectively. The accused has, therefore, challenged the judgement passed by the High Court of Bombay before the Hon’ble Supreme Court.

The Apex Court, in this case, noted that in order to prove that any crime is committed, it is not necessary for that offence to be seen while it is being committed or to be proved by direct evidence. The Court noted that the commission of the offence can also be proved by circumstantial evidence. It was observed that the principal fact or factum probandum can be proved indirectly by drawing inferences from the relevant facts or the factum probans. The Court clarified that circumstantial evidence is not direct evidence but it consists of other facts that may be related to the fact in issue or the principal fact that helps in drawing legal conclusions from the chain of circumstances formed by the evidentiary facts.

Gambhir v. State of Maharashtra (1982)

The instant case is a criminal appeal filed before the Hon’ble Supreme Court against the judgement of the Bombay High Court where it had convicted the appellant for committing an offence under Section 302 of the Indian Penal Code, 1873 and sentenced him to life imprisonment. 

The Apex Court, in this case, noted that the case completely had to be decided upon the circumstantial evidence (factum probans) as there was no direct evidence in the case. The Court observed that the law with regard to circumstantial evidence is well-settled and noted that, if a case rests upon circumstantial evidence, the evidence must qualify following tests.

  1. The circumstances pointing towards the guilt of the accused must be convincingly and firmly established.
  2. The circumstances must be of a definite nature and must certainly point towards the guilt of the accused.
  3. The circumstances must collectively form a chain which provides no scope to escape from the conclusion that the crime has been committed by the accused but no other person.
  4. The circumstances must be incapable of any other hypothesis other than the guilt of the accused and must not only prove the guilt of the accused but also be inconsistent in proving the accused’s innocence in order to sustain the conviction.

The aforementioned test has also been taken into consideration in the case of Padala Veera Reddy v. State of Andhra Pradesh (1989).

In addition to the aforementioned cases, the Apex Court, through various cases, has noted that the law with regard to circumstantial evidence is well settled for the cases where there is no direct evidence and the case rests upon the circumstantial evidence. The Hon’ble Supreme Court has observed that the inference of guilt from circumstantial evidence can be justified only when all the facts and circumstances are inconsistent with the innocence of the accused. This observation has been noted and affirmed by the Supreme Court in various judgements which include Hukam Singh v. State of Rajasthan (1977), Eradu v State of Hyderabad (1955), Eerabhadrappa v. State of Karnataka (1983), Balwinder Singh v. State of Punjab (1995), etc.

The Supreme Court of India in State of U.P v. Ashok Kumar Srivastav (1992) observed that the evaluation of the circumstantial evidence must be carried out with great care and, if the circumstantial evidence leads to two inferences, then the one favourable to the accused must be accepted. 

The Hon’ble Supreme Court has made observations on a similar note in many other cases where circumstantial evidence is of primary importance due to the absence of direct evidence.

Conclusion

The facts in issue and the relevant facts play a vital role in legal matters as they both help in establishing the facts of a case by the party which owes the burden of proof. It is extremely necessary to understand the difference and the relationship between factum probandum and factum probans in order to ensure clarity in arguments and judgements of the case. The concept highlights the importance of understanding and evaluating the relationship between the evidence and the issues in the case. The relevant facts are of great significance in cases as they provide a direction to the legal practitioner to connect the evidence and establish the case depending upon the facts and circumstances.

Frequently Asked Questions (FAQs) 

How does factum probans assist factum probandum?

Factum probans or relevant facts help in establishing the facts in issue. They act as supporting material to prove the disputed fact.

What role does factum probans play in the absence of clear evidence?

In case of absence of clear and cogent evidence, the court generally resorts to the circumstantial evidence which was established by the parties to the case through producing or submitting the relevant facts. The Court draws or infers from such relevant facts signifying the circumstantial evidence and then takes a definite conclusion as to the fact in issue. Therefore, factum probans indicating circumstantial evidence can also be relied upon to establish a case in which there is no direct evidence to prove the allegation or facts as held in the ruling of Gambhir v. State of Maharashtra (1982) provided that it qualifies the test laid down in the said ruling.

Whether the concepts of factum probandum and factum probans exist both in civil and criminal matters?

Yes, they are applicable to both civil and criminal matters. The evidence needs to be proved beyond the reasonable doubt in criminal matters whereas it depends upon the rule of preponderance in civil cases.

How are onus probandi and factum probans and factum probandum inter-related?

All of the aforementioned concepts are closely related. Factum probandum and factum probans refer to the facts asserted in a case and onus probandi refers to the obligation to prove the asserted facts.

References

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