Bharatiya Sakshya Adhiniyam (BSA) Notes

Explain the Rules relating to burden to proof.

Burden of Proof – Meaning

Burden of proof means the legal obligation to prove the facts necessary to establish a claim or defence.
Maxim: Ei incumbit probatio qui dicit, non qui negat – He who asserts must prove, not he who denies.

Rules Relating to Burden of Proof (Secs. 104–114 BSA, 2023)

Sec.	Provision	Illustration	Case Law
104	Primary burden – lies on the party who approaches the court (plaintiff in civil cases; prosecution in criminal cases). This never shifts.	A sues B for ₹1,00,000 alleging loan; A must prove it.	Kishan Chand v. State of Haryana (2013) – prosecution must prove guilt beyond reasonable doubt.
105	Burden to prove exceptions – if accused claims benefit of general/special exceptions, he must prove it.	Accused claims act was in private defence → must prove circumstances.	State of U.P. v. Ram Swarup.
106	Facts especially within knowledge – must be proved by the person who knows them.	Passenger without ticket must prove he had one.	Shambhu Nath Mehra v. State of Ajmer.
107	Burden of proving death of person known to be alive within 30 years.	A claims B is dead → must prove it if B was alive within 30 years.	Lal Chand Marwari v. Mahant Ramrup Gir.
108	Burden of proving person alive who hasn’t been heard of for 7 years – presumption of death applies; burden to prove life lies on person alleging life.	Person missing for 7 years presumed dead unless contrary shown.	LIC of India v. Anuradha.
109	Burden as to relationship in certain cases – once partnership, tenancy, agency is proved, presumption of continuance applies.	If tenancy is proved, burden to show termination lies on person denying it.	Sheo Dutt v. Smt. Ram Devi.
110	Ownership from possession – possession is prima facie proof of ownership unless disproved.	A in possession of land presumed owner unless contrary shown.	Ismail Ariff v. Mahomed Ghous.
111	Good faith in fiduciary relations – person in position of active confidence must prove transaction was in good faith.	Lawyer sells land to client → must prove fairness.	Rattan Lal v. State of Punjab.
112	Legitimacy of child born during marriage – presumed legitimate unless non-access is proved.	Child born during valid marriage presumed legitimate.	Kamti Devi v. Poshi Ram.
113	Presumption as to cession of territory – residents presumed subjects of new govt.	Residents of ceded land presumed under sovereignty of new ruler.	Bholanath v. State of Sikkim.
114	Court may presume certain facts – based on natural course of events.	Found with stolen goods soon after theft → presumed thief unless explained.	Joseph v. State of Kerala.
115	Estoppel – general rule – person can’t deny truth of statement once another acted upon it.	A says land belongs to him, induces B to buy, later land comes to A → can’t deny ownership.	Pickard v. Sears.
116	Estoppel of tenant/landlord – tenant can’t deny landlord’s title during tenancy; same for licensee.	Tenant refuses to vacate claiming landlord not owner → barred.	Bilas Kunwar v. Desraj Ranjit Singh.
117	Estoppel of acceptor of bill of exchange, bailee, licensee – can’t deny title of person from whom goods received.	Bailee can’t deny bailor’s title.	Surajmal v. State of M.P.
118	Competence of parties to testify – all persons competent unless court thinks otherwise.	Child of tender age can testify if understands questions.	Dattu Ramrao Sakhare v. State of Maharashtra.
119	Witness unable to speak – can give evidence in any intelligible manner (signs, writing, etc.).	Deaf-mute witness testifies through signs with interpreter.	State of Rajasthan v. Darshan Singh.
120	Parties to civil suit and spouses – competent to testify in all cases including matters of marriage.	Husband testifies in suit filed by wife.	N.G. Dastane v. S. Dastane.

Special Focus: Section 108 (Nature of Burden)

Applies in criminal cases.
Court presumes case doesn’t fall within general exceptions.
If accused claims exception (unsoundness of mind, private defence, accident, necessity, doli incapax, involuntary intoxication) → burden shifts to accused.
Accused must prove on preponderance of probabilities.
Cases:

Dahyabhai Chhaganbhai Thakkar v. State of Gujarat – burden shifts for exceptions.
Babu v. State of Kerala – exception can be proved from prosecution evidence too.

Illustration:
A is tried for murder, claims unsoundness of mind at time of act. Burden lies on A to prove it; if successful, act is not an offence.

Burden of proof in case of Civil Cases
When a person files a civil proceeding, it contains two things within it. The first one is the facts of the case and the second one being the legal reason. The burden of proof in such cases is upon the person who files such civil suit known as the plaintiff. This means that if the plaintiff is unable to provide evidence and proof or is not able to convince the court that the facts are in existence or are true then even if the Defendant does not offer any defense or states anything he will win the case. Therefore, in such cases the defendants usually try to harm the plaintiff’s case in some way or the other rather that positively proving their side.

Burden of proof in case of Criminal Cases

Generally, the most important rule is that a person is innocent until proven guilty. Hence, it is the duty of the prosecution to convince the court the accused has committed a crime which means that the burden of proof lies upon the prosecution mainly. The burden of proof may change if and when the accused claims one of the exceptions to the crime, claims or states something. In this case the burden of proof shall then lie upon the accused to prove such exception or claim. It is necessary for the prosecution to prove their case beyond reasonable doubt which means that the burden of proof upon the prosecution is quiet heavy and thus the accused or the defendant gets a good advantage.

Conclusion

Sections 104–120 lay down the framework for allocation of burden, statutory presumptions, and the principle of estoppel. While initial burden rests on the party asserting a fact, it can shift under certain legal presumptions and exceptions, ensuring fairness in adjudication.

Give a note on kinds of evidence.

What are the kinds of Evidence?

Short Cut
“OLD FRESH JESS C”—
O → Oral Evidence (Secs. 54–55)
L → (Documentary) Letters & Documents – Documentary Evidence (Secs. 56–90)
D → Direct Evidence

F → Forensic Evidence (DNA, fingerprints, ballistics)
R → Real / Material Evidence (physical objects)
E → Expert Evidence (Secs. 39–45, 47–51)
S → Substantive & Corroborative Evidence
H → Hearsay Evidence (exceptions apply)

J → Judicial & Non-Judicial Evidence
E → Electronic Evidence (Secs. 61–62)
S → Secondary Evidence (Sec. 58)
S → Special (Public & Private Documents) (Sec. 74)

C → Circumstantial Evidence & Exculpatory Evidence

Answer:

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) defines “Evidence” under Section 2(e) as:

Oral evidence – All statements permitted or required by the Court to be made before it by witnesses in relation to matters of fact under inquiry.
Documentary evidence – All documents, including electronic or digital records, produced for the inspection of the Court.

The law recognises multiple kinds of evidence, each with specific rules for admissibility and proof. Evidence can be direct or indirect (circumstantial), and includes oral, documentary, expert, forensic, and even exculpatory evidence.

Classification of Evidence under BSA

Oral Evidence – Secs. 54 & 55

Sec. 54: Facts, except contents of documents/electronic records, may be proved by oral evidence.
Sec. 55: Oral evidence must be direct:

If fact is seen → witness must have seen it.
If fact is heard → witness must have heard it.
If fact is perceived through another sense → witness must have perceived it directly.
Dumb witnesses may give evidence via writing, signs, or gestures.

Illustrations:

A sees B stabbing C → A’s statement is oral evidence.
Dumb witness using hand signs to describe a robbery.

Case Laws:

Queen Empress v. Abdullah (1885) – Signs/writing by dumb witness count as oral evidence.
Bipin Shantilal Panchal v. State of Gujarat (2001) – Oral evidence must be direct; hearsay is generally inadmissible.

Documentary Evidence – Chapter 5 (Secs. 56–90)

(i) Primary & Secondary Evidence

Sec. 56: Contents of documents may be proved by primary or secondary evidence.
Sec. 57: Primary evidence = the document itself.
Sec. 58: Secondary evidence includes certified copies, mechanical copies, oral/written admissions, expert summaries, etc.

Illustrations:

Original will – primary evidence.
Certified copy when original lost – secondary evidence.

Case Laws:

Ashok Dulichand v. Madhavlal Dube – Primary evidence is the best evidence.
State of Rajasthan v. Khemraj – Secondary evidence admissible only if conditions are met.

(ii) Electronic/Digital Records

Sec. 61: Electronic/digital records admissible; equal legal effect as physical documents.
Sec. 62: Proof as per Sec. 63 (certificate requirement).

Case Law:

Anvar P.V. v. P.K. Basheer (2014) – Certificate under Sec. 63 (old Sec. 65B) mandatory.

(iii) Public & Private Documents – Sec. 74

Public: Acts/records of sovereign, public officers, official bodies, and public records of private documents.
Private: All other documents.

Case Law:

State of Bihar v. Radha Krishna Singh – Public document carries presumption of genuineness.

Expert Evidence – Secs. 39–45, 47–51

Given by persons specially skilled in law, science, art, handwriting, fingerprints, or digital forensics.
Expert opinion is advisory; Court must evaluate independently.

Illustrations:

Doctor’s opinion on cause of death in a murder trial.
Handwriting expert identifying signature on disputed contract.

Case Laws:

State of H.P. v. Jai Lal (1999) – Expert evidence is only an opinion.
Murari Lal v. State of M.P. (1980) – Handwriting expert’s opinion requires corroboration.

Forensic Evidence

Falls within expert evidence; includes:

DNA profiling
Ballistics
Toxicology reports
Cyber-forensics

Case Law:

Pattu Rajan v. State of T.N. (2019) – DNA evidence reliable if chain of custody maintained.

Real / Material Evidence

Tangible physical objects produced in court.

Illustration:

Blood-stained knife produced as murder weapon.

Direct Evidence

Directly proves a fact without inference.

Illustration:

CCTV showing accused committing the offence.

Circumstantial Evidence

Indirect evidence from which facts are inferred.

Case Law:

Sharad Birdhichand Sarda v. State of Maharashtra (1984) – Five golden principles for circumstantial evidence.

Hearsay Evidence

Generally inadmissible unless under exceptions (e.g., dying declaration, res gestae).

Case Law:

Subramaniam v. Public Prosecutor – Hearsay inadmissible unless under exceptions.

Judicial & Non-Judicial Evidence

Judicial: Recorded in proceedings before the Court.
Non-Judicial: Statements outside Court (e.g., extra-judicial confession).

Substantive & Corroborative Evidence

Substantive: Alone sufficient to prove fact.
Corroborative: Supports other evidence but cannot stand alone.

Exculpatory Evidence

Evidence tending to prove innocence of accused or mitigate liability.

Illustrations:

Alibi CCTV footage showing accused elsewhere during offence.
Medical report disproving assault claim.

Case Law:

State of Kerala v. Raghavan – Suppression of favourable evidence violates fair trial principles.

Conclusion

The BSA recognises various forms of evidence, each with its own admissibility rules and weight. While oral and documentary evidence form the backbone, expert and forensic evidence play a crucial role in technical matters, and exculpatory evidence is essential to protect the rights of the accused. The guiding principle remains that the Court must assess evidence based on reliability, relevance, and legal admissibility.

Who is competent to be a witness? Write a note on “dumb witness”

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaces the Indian Evidence Act, 1872. Competency and mode of testimony are now covered primarily in Secs. 124–126, while the rule on number of witnesses is in Sec. 139. The scheme is inclusive: everyone can testify unless the Court finds incapacity, and even persons unable to speak can depose through writing/signs, which is treated as oral evidence.

Who may testify — Sec. 124 BSA

Rule: All persons are competent to testify unless otherwise provided by the BSA or any other law.

This is a presumption of competency.
Disqualifications come only from the statute (e.g., privilege provisions) or where the Court finds incapacity under Sec. 125.

Competency is a gatekeeping question for the Judge; credibility is a weight question for appreciation of evidence.

Competency of witness — Sec. 125 BSA

Text in substance: Every person is competent unless the Court thinks he/she is incapable of understanding the questions or giving rational answers due to:

tender age,
extreme old age,
disease of body or mind,
or any similar cause.

How courts apply it (practical test):

The Judge may conduct a brief voir dire (few preliminary questions) to check the witness’s understanding, memory, ability to communicate, and sense of duty to speak the truth.
If satisfied, the witness is competent. Oath/affirmation relates to credibility, not competency (Oaths Act, 1969: irregularity in oath does not by itself invalidate evidence).

Key case-law (one-line takeaways):

Rameshwar v. State of Rajasthan, AIR 1952 SC 54 — A child can be competent if he/she understands the duty to speak the truth; corroboration is a rule of prudence, not of law.
Panchhi v. State of U.P., (1998) — Child witness testimony is admissible and can found conviction if found reliable after cautious scrutiny.
State of Maharashtra v. Dama Gopinath Shinde, (2000) — Mental/physical condition may affect competency; court must record satisfaction.

Illustration (child): A 9-year-old who answers simple, coherent questions about time, place, and persons involved is declared competent; cross-examination will test credibility.

“Dumb witness” (witness unable to speak) — Sec. 126 BSA

Statutory rule: A witness who cannot speak may give evidence in any other manner in which it can be made intelligible—writing, signs, gestures—and it shall be deemed oral evidence. It must be in open court; where practicable, video recording is desirable. An interpreter may be used.

Safeguards / court’s duties:

Ascertain the witness can understand questions and communicate answers reliably.
Appoint a qualified interpreter (e.g., sign-language) and administer oath to the interpreter as well.
Record the process: questions, signs/gestures, interpreter’s translation; prefer video.
Ensure cross-examination rights of the opposite party.

Case-law:

Queen-Empress v. Abdullah, (1885) 7 All 385 — Evidence by signs/writing of a mute witness given in open court is oral evidence; admissible if properly interpreted.
Meesala Ramkrishnan v. State of A.P., 1994 Supp (3) SCC 341 — Accuracy of interpretation/recording of signs is crucial; procedure must inspire confidence.

Illustration: A mute shopkeeper saw a stabbing. In court, he identifies the accused by pointing and writing short answers. The interpreter translates his signed responses. The court treats this as oral evidence and relies on it, subject to cross-examination.

Various types of witnesses

Eye-witness / Direct witness: Perceived the fact with senses; can by itself sustain conviction if reliable.

Expert witness: Gives opinion on scientific/technical matters (medical, forensic, handwriting, digital forensics).

Child witness: Competent if understands questions and can give rational answers; caution against tutoring.

“Dumb” witness: Communicates by signs/writing (Sec. 126); deemed oral evidence.

Hostile witness: Permits cross-examination by the party calling him; testimony isn’t effaced—court may accept the credible part.

Interested witness: Has a stake in outcome; not inadmissible, but needs cautious scrutiny.

Independent witness: No apparent interest; often relied upon for corroboration.

Accomplice approver: Admissible; as a rule of prudence, seek corroboration on material particulars.

Chance witness / Police witness / Panch witness: Not inadmissible per se; weight depends on circumstances, presence, and credibility.

Number of witnesses — Sec. 139 BSA

Rule: No particular number of witnesses is required to prove any fact.
Implication: Quality trumps quantity; a single, wholly reliable witness is sufficient.

Leading case:

Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 — Classification: (i) wholly reliable, (ii) wholly unreliable, (iii) partly reliable; conviction can rest on one wholly reliable witness.
(You may also cite) State of Punjab v. Gurmit Singh, (1996) — Sole testimony of prosecutrix, if trustworthy, can sustain conviction.

Illustration: Only one eye-witness saw the assault under good lighting and knew the accused; consistent testimony withstands cross-examination → sufficient to prove the fact.

Witness Protection Scheme, 2018 (SC-approved)

Recognised by: Mahender Chawla v. Union of India, (2019) — Supreme Court approved the Witness Protection Scheme, 2018 as law under Article 141 until Parliament/States enact suitable law.
Objective: Ensure witnesses depose fearlessly; prevent intimidation/hostility.

Key features:

Threat assessment & categories (A, B, C).
Protection measures: Police escort, in-camera proceedings, screen-shielding, identity change, relocation, emergency contact.
Implementation: District Legal Services Authority (DLSA) acts through a Competent Authority; periodic review.
Funding: Witness Protection Fund.
Confidentiality: Strict secrecy of applications and orders.

Why relevant to competency? It facilitates effective testimony from those who are otherwise competent but fearful, thereby protecting the truth-finding process.

Conclusion

Under Secs. 124–126 & 139 BSA, the law maximises access to the witness-box: everyone may testify unless the court finds incapacity; even those unable to speak can depose intelligibly; and one credible witness can prove a fact. The Witness Protection Scheme ensures that competence translates into effective, fearless evidence, strengthening the administration of justice.

Write an essay on ‘ Professional Privilege ‘

Privileged communication means a statement, document, or information that a person is not bound to disclose in a court of law because the law recognises the importance of keeping such communication confidential.
It arises from a relationship of trust and confidence, where free and honest disclosure is necessary — e.g., between spouses, lawyer and client, public officer and State.

Professional privilege is thus the statutory right to withhold certain communications from disclosure, even if relevant, to protect the relationship and public interest.

Legal Basis – Sections 128–134 BSA, 2023

Section 128 – Communications between Spouses

No person who is or has been married shall be compelled to disclose any communication made to them by their spouse during marriage.
Purpose: Protect marital confidence and harmony.
Exception: Does not apply in suits between spouses or proceedings where one is prosecuted for an offence against the other.

Section 129 – Privilege as to Affairs of State

No one shall give evidence derived from unpublished official records relating to affairs of State without the permission of the head of the concerned department.
Purpose: Protect public interest and national security.

Section 130 – Official Communications

No public officer shall be compelled to disclose official communications made to him in confidence, if in his opinion, disclosure would harm public interest.

Section 131 – Information as to Commission of Offences

Magistrates or police officers cannot be compelled to say who gave them information about the commission of an offence.
Exception: If the informer is called as a witness, he may be compelled.

Section 132 – Professional Communications

Advocates, attorneys, vakils, and legal advisers cannot disclose communications made by a client during the course and for the purpose of professional employment, nor the contents of documents with which they became acquainted in such employment.
Applies also to interpreters, clerks, and servants of the advocate.
Exceptions:

Communications made in furtherance of an illegal purpose.
Facts showing crime or fraud committed since the commencement of employment.

Section 133 – Privilege Not Waived by Volunteering Evidence

If a party gives evidence, they are not deemed to have waived privilege over confidential communications unless they voluntarily disclose them in court.

Section 134 – Confidential Communication with Legal Advisers

Protects confidential communications between a person and their legal adviser from being disclosed without consent.
Continues even after the end of professional employment.

Importance of Privileged Communications

Encourages frankness – Clients, spouses, and informants can speak freely without fear of future disclosure.
Ensures effective legal advice – Lawyers can only advise properly if clients tell the full truth.
Protects public interest – State and official secrets remain confidential to safeguard governance and security.
Preserves trust in relationships – Spousal and professional trust are essential for their respective roles.

Exceptions to Professional Privilege

Illegal purpose (e.g., planning forgery with lawyer).
Crime or fraud committed after starting the professional relationship.
Express waiver by the client or protected party.
Special statutory provisions requiring disclosure.

Case Laws

Queen v. Moses (1894) – Advocate not bound to disclose privileged communication unless within exceptions.
Balkrishan v. State of Maharashtra, AIR 1968 SC 1319 – Privilege belongs to the client; only they can waive it.
M. Yovappa Yatirajulu v. State of A.P., AIR 1982 AP 223 – Communication for illegal purpose not privileged.
State v. Navjot Sandhu (Parliament Attack case) – Emphasised importance of protecting State communications under privilege.

Illustrations

Spousal Privilege: A tells B (spouse) about his business secrets during marriage. B cannot be compelled to disclose this in court, unless the case is between A and B themselves.
Professional Privilege: X consults advocate Y about a property dispute. Y cannot reveal X’s admissions in any other case without X’s consent.
Exception – Illegal Purpose: A tells his advocate he will bribe a public servant to win a case. This is not privileged.
Informer Privilege: Police inspector Z cannot be forced to reveal the name of the informer who tipped him about illegal arms storage.

Conclusion

Sections 128–134 BSA recognise that justice sometimes requires confidentiality to be preserved over disclosure. By protecting marital, official, state, and professional communications, the law ensures trust, effective legal advice, and public interest. However, the exceptions prevent the misuse of this privilege for illegal or fraudulent purposes, balancing confidentiality with the needs of justice.

Essence: Privilege protects trust; exceptions protect truth.

Explain the doctrine of Res gestae.

The term “Res Gestae” is Latin, meaning “things done” or “facts forming part of the same transaction”.
In evidence law, it refers to those facts which are so connected with the main fact in issue that they form part of the same transaction and are thus relevant, even if they would otherwise be inadmissible as hearsay.

Legal Provision – Section 4, BSA 2023

Section 4 states:

Facts 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.

Essence: Any statement or act spontaneous and contemporaneous with the fact in issue, and forming part of it, is admissible.

Principle Behind Res Gestae

Prevents injustice caused by excluding relevant surrounding facts.
Based on spontaneity and immediacy — the facts must be part of the natural unfolding of events.
Acts, declarations, and circumstances are admissible if they are so connected as to explain or illustrate the fact in issue.

Essentials of Res Gestae

To be admissible under Section 4:

Connection with the fact in issue – Must relate to and explain the main event.
Same transaction – Must be part of one continuous occurrence, not remote in time.
Spontaneity – Must occur before there is time to fabricate.
Proximity of time and place – Can occur immediately before, during, or immediately after the main event.

Examples

The cry of a victim immediately after an attack (“Help! He stabbed me!”) is admissible as part of res gestae.
Gestures made by a person while being robbed are admissible to explain the event.

Case Laws

Ratten v. R (1971) 3 WLR 930 – A woman’s phone call to the police during an attack (“Get me the police, please!”) was admissible as res gestae.
Sukhar v. State of U.P. (1999) 9 SCC 507 – Statements made immediately after the incident, before there was time to fabricate, were held admissible.
Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241 – Statements must be part of the same transaction; not too remote.

Relation with Sections 4–50, BSA

Sections 4–50 deal with relevancy of facts.
Res gestae falls under “facts forming part of the same transaction” (Sec. 4), which is an exception to the hearsay rule.
It ensures that relevant facts which explain the fact in issue are admissible, even if they are not themselves facts in issue.

Illustration (BSA style)

A is accused of killing B. At the time of the attack, C, a bystander, hears B shout, “A is stabbing me!” This statement is part of the same transaction and is relevant under Section 4.

Conclusion

The doctrine of Res Gestae under Section 4 BSA is a key exception to the hearsay rule, admitting spontaneous facts and declarations closely connected to the main fact in issue. Its purpose is to present a complete picture to the court, ensuring that justice is not hindered by technical exclusions.

Who is an expert? Discuss types of expert evidence and their testimony.

An expert is a person who, through study, practice, observation, or experience, has acquired special skill in a particular branch of foreign law, science, art, handwriting, fingerprint examination, digital forensics, or other technical fields. Courts consult experts when a matter requires knowledge beyond the understanding of an ordinary person. Expert opinion is advisory in nature – the court is not bound to accept it but gives it due weight.
Legal Basis – Section 39, BSA 2023:

Facts are relevant when the Court has to form an opinion upon a point of foreign law, science, art, identity of handwriting, finger impressions, foot impressions, typewriting, mechanical devices, electronic evidence, or other specialised subjects, and such opinion is given by a person specially skilled therein.

Legal Basis under Bharatiya Sakshya Adhiniyam, 2023 (Sections 39–45)

Section 39 – Opinions of experts: Opinion on matters of foreign law, science or art (including medicine, ballistics, fingerprints, DNA, digital forensics, handwriting).
Section 40 – Facts bearing upon opinions of experts: Facts that support or affect the weight of expert opinion are relevant.
Section 41 – Opinion as to handwriting, signature, and digital signature: Expert opinion is relevant to prove authorship or genuineness.
Section 42 – Opinion as to existence of general custom or right: Proof through persons with special knowledge of such customs.
Section 43 – Opinion as to usages, tenets, etc.: Includes opinion on religion, caste, family usages, or genealogy.
Section 44 – Opinion as to relationship: Opinion of those with special knowledge on relationships.
Section 45 – Grounds of opinion: The expert may explain the grounds, methods, and materials on which the opinion is based.

Types of Expert Evidence and Their Testimony

Medical and Forensic Experts

Cause of death, age determination, type and nature of injuries, time since death, weapon–wound correlation, DNA profiling, toxicology, ballistics.
Case law:

State of Haryana v. Bhagirath – Medical evidence is corroborative; if conflict arises, ocular evidence prevails unless the medical version makes the eyewitness account impossible.
Solanki Chimanbhai v. State of Gujarat – Medical opinion is an opinion, not substantive proof by itself.

Illustration: A post-mortem shows close-range gunshot injury. A ballistic expert test-fires the seized weapon and finds matching rifling marks on the recovered bullet.

Handwriting and Signature Experts (S.41)

Used to identify the authorship of a document.
Case law:

Magan Bihari Lal v. State of Punjab – Unsafe to convict solely on handwriting opinion without corroboration.
Murari Lal v. State of M.P. – Expert opinion must be weighed with other evidence.

Illustration: A promissory note’s signature is disputed. The handwriting expert compares known samples with the questioned signature and gives an opinion, but the court seeks supporting evidence like admissions or surrounding circumstances.

Fingerprint Experts

Considered reliable if proper procedures are followed.
Case law: State of Bombay v. Kathi Kalu Oghad – Taking handwriting/fingerprint samples does not violate Article 20(3) of the Constitution.

Illustration: Fingerprints lifted from a weapon match the accused’s prints taken in police custody, establishing presence at the scene.

Digital/Electronic Forensics (Read with Ss.61–63 BSA)

Opinions on hash values, metadata, device logs, CCTV authenticity, digital signature verification.
Case law:

Anvar P.V. v. P.K. Basheer – Electronic evidence requires proper certification.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal – Clarified procedure for production of such certificate.

Illustration: WhatsApp chats are extracted with a hash value certificate. A forensic expert testifies on extraction method and integrity.

Foreign Law (S.39)

Foreign law is a question of fact; proved by expert lawyers, academics, or authentic publications.

Illustration: In a contract governed by New York law, a US-qualified attorney explains the relevant provisions to the court.

Custom/General Right (S.42) & Usages/Tenets (S.43)

Proved through community elders, scholars, or other knowledgeable persons.
Case law: Ramalakshmi Ammal v. Sivanatha Perumal Sethurayar – Custom must be ancient, certain, and reasonable.

Illustration: In a family dispute, a community elder explains a long-standing customary adoption practice.

Evidentiary Value of Expert Opinion

Admissible but not conclusive.
Usually corroborative; requires support from other evidence.
Greater weight when methodologically sound and unshaken in cross-examination (DNA, ballistic matches).
Handwriting evidence treated cautiously.
The court examines qualifications, methodology, materials relied upon, and logical reasoning.

Difference Between Expert Witness and Ordinary Witness

Point	Expert Witness	Ordinary Witness
Basis of testimony	Special skill, training, experience	Personal knowledge of facts
Nature of evidence	Opinion evidence	Direct factual evidence
Court’s scrutiny	Qualifications, methods, accuracy	Demeanor, credibility
Role	Assists the court in technical matters	Narrates facts perceived

Conclusion

Under Sections 39–45 of the BSA, expert opinion helps the court in deciding questions beyond ordinary knowledge—be it medicine, ballistics, handwriting, fingerprints, customs, or digital forensics. While expert evidence can be decisive, especially in scientific domains, it remains opinion and is assessed alongside the entire body of evidence. The court remains the final judge of facts, giving weight to expert views based on reliability, corroboration, and sound methodology.

Examine the evidentiary value confession made to a police officer.

A confession is a statement made by an accused admitting guilt of the offence charged, either expressly or impliedly.

Stephen’s definition: Confession is an admission made at any time by a person charged with a crime, stating or suggesting that they committed that crime.
Pakala Narayana Swamy v. Emperor: A confession must admit all the facts which constitute the offence or substantially admit them.

Confession is considered substantive evidence if it is voluntary and admissible.

Forms of Confession

Confessions can be classified into two main forms:

(A) Judicial Confession

Made before a Magistrate or in Court during judicial proceedings.
Recorded under proper legal safeguards (e.g., Section 164 BNSS).
High evidentiary value if voluntary and truthful.

Examples:

Pleading guilty when charges are framed.
Voluntary confession before a Magistrate during investigation.

(B) Extra-Judicial Confession

Made to any person other than a Magistrate or Court, e.g., to a friend, relative, or community elder.
Admissible but considered weak evidence unless corroborated.
Court examines circumstances, relationship, and credibility of the witness.

Case law:

Sahu v. State of U.P. – Extra-judicial confession is admissible but must be approached with caution.
State of Punjab v. Gurdeep Singh – Extra-judicial confession can be substantive evidence if voluntary and trustworthy.

Relevant Provisions under BSA 2023

Section 22 – Confession to Police Officer

Confession made to a police officer is inadmissible against the accused.
Applies to all police officers regardless of rank.
Purpose: Prevent coercion, ensure voluntariness.

Case law:

Balbir Singh v. State of Punjab – Confession to police inadmissible.
State of Punjab v. Barkat Ram – Statements to non-police officers admissible unless they have police powers.

Section 23 – Confession in Police Custody

Confession made while in police custody is inadmissible unless made in the immediate presence of a Magistrate.
Judicial oversight safeguards voluntariness.

Case law: Dagdu v. State of Maharashtra – Judicial confessions are admissible if safeguards are followed.

Section 24 – Confession after Removal of Inducement, Threat, or Promise

A confession earlier influenced by inducement, threat, or promise is admissible if:

The influence was fully removed, and
The accused spoke voluntarily.

Case law: Pyare Lal Bhargava v. State of Rajasthan – Voluntary confession after removal of inducement is valid.

Rationale for Inadmissibility

Article 20(3) – Protection against self-incrimination.
Preventing misuse of police powers and third-degree methods.
Ensuring reliability – Forced confessions may be false.

Judicial Approach and Key Case Laws

Pakala Narayana Swamy v. Emperor – Confession must admit guilt wholly or substantially.
Palwinder Kaur v. State of Punjab – Confession must be accepted or rejected as a whole unless exculpatory part can be disproved.
Nishikant Jha v. State of Bihar – Inculpatory part can be relied upon if exculpatory part is contradicted by other evidence.
Sahu v. State of U.P. – Extra-judicial confession is admissible but weak unless corroborated.
State of Punjab v. Gurdeep Singh – Can be substantive evidence if voluntary and credible.

Exceptions

Section 27 BSA: That portion of a statement leading to the discovery of a fact is admissible.
Judicial Confession: Made before a Magistrate under proper safeguards is fully admissible.

Evidentiary Value

General Rule: Confession to police is inadmissible.
Admissible only if:

Made before a Magistrate (judicial confession), or
Falls under discovery exception (S.27).

Judicial confessions = strong evidence; extra-judicial = weak unless corroborated.

Illustrations

Inadmissible: A says to police, “I killed B” – Barred under S.22–23.
Partly admissible: A says, “I killed B and buried the knife under the bridge” – The knife discovery part is admissible (S.27).
Admissible: A confesses before a Magistrate after being cautioned – Fully admissible.

Conclusion

Sections 22–24 BSA protect the accused from forced self-incrimination and ensure that confessions are voluntary, reliable, and obtained under judicial oversight. While judicial confessions can form the sole basis for conviction, extra-judicial confessions need corroboration, and confessions to police officers are generally inadmissible except for limited statutory exceptions.

Explain leading questions. Discuss general principles of examination.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides a structured framework for the examination of witnesses.
Sections 143–156 cover:

Order and stages of examination
Rules for asking questions
When leading questions are permitted
Control over improper questioning
Protection of witnesses

One key area is Leading Questions (Section 146) and related rules. Another is the provision for refreshing a witness’s memory during examination.

Meaning of Leading Questions (S.146)

A leading question is one which suggests the answer or assumes a fact not yet proved.

Example:

Leading: “You saw A stab B, didn’t you?” – Suggests act & identity.
Non-leading: “What did you see at the spot?” – Open-ended.

Section-Wise Provisions (143–156)

Section 143 – Order of Examination

Examination-in-Chief – By the party calling the witness.
Cross-Examination – By the adverse party.
Re-Examination – By the party calling the witness, confined to matters from cross-examination.

Case Law: Ram Chander v. State of Haryana – Right to cross-examination is fundamental.

Section 144 – Cross-Examination of Person Called to Produce a Document

If called only to produce a document, a person cannot be cross-examined unless also called as a witness to facts.

Section 145 – Witnesses to Character

A witness speaking to character may be cross-examined and re-examined about their knowledge of the person’s general reputation.

Section 146 – Leading Questions

In Chief/Re-Exam – Not allowed unless Court permits.
In Cross-Examination – Always allowed.
Court permits in chief/re-exam for:

Introductory matters
Undisputed facts
Matters already proved

Case Laws:

State of Rajasthan v. Ani – No restriction in cross-examination.
Varkey Joseph v. State of Kerala – Allowed in chief for undisputed matters.
R. v. Greenough – Permission required in chief.

Section 147 – Evidence as to Matters in Writing

When examining a witness about a document, the document must be shown to them if necessary.

Section 148 – Cross-Examination as to Previous Statements in Writing

A witness may be questioned about previous written statements.
For contradiction, attention must be drawn to specific parts.

Section 149 – Questions Lawful in Cross-Examination

Lawful questions include those to:

Test veracity
Discover identity and position
Shake credibility, even if character-damaging

Section 150 – When Witness Compelled to Answer

Must answer lawful questions even if self-incriminating, subject to legal privileges.

Section 151 – Court to Decide When Question Shall Be Asked or Witness Compelled to Answer

Court exercises discretion to protect fairness.

Section 152 – Question Not to Be Asked Without Reasonable Grounds

Only questions with a reasonable factual basis are permitted.

Section 153 – Procedure if Question Asked Without Reasonable Grounds

If without basis, court may warn or report misconduct.

Section 154 – Indecent and Scandalous Questions

Forbidden unless directly relevant to the facts in issue.

Section 155 – Questions Intended to Insult or Annoy

Court must disallow questions aimed merely to harass or humiliate.

Section 156 – Exclusion of Evidence to Contradict Answers Testing Veracity

If a witness answers a question asked only to test credibility, their answer cannot be contradicted by other evidence, except as permitted.

Refreshing Memory (Relevant Provision – 162 BSA)

Although placed elsewhere in the Act, it is directly linked to examination:

A witness may refresh their memory by:

Referring to any writing made by themselves at the time of the transaction or soon after,
Referring to any writing made by another person, read and verified as correct when fresh in memory.

Such documents may be produced in court.
Court may allow a witness to refer to them while under examination.

Purpose:

Helps ensure accuracy in testimony.
Common for technical, financial, or investigative witnesses.

Case Law: Sidheswar Ganguly v. State of West Bengal – Witness may refresh memory with contemporaneous notes.

General Principles of Examination

Chief Examination: Bring out relevant facts from own witness; leading questions generally prohibited.
Cross-Examination: Test credibility and truth; leading questions allowed.
Re-Examination: Clarify matters from cross; cannot introduce new facts without permission.
Court Control: Prevents irrelevant, scandalous, or harassing questions.
Witness Protection: Sections 152–155 safeguard dignity.
Memory Support: Witnesses may refresh memory for accuracy.

Illustrations

Allowed Leading (Chief): “Your name is Ravi Kumar?” (introductory fact)
Not Allowed (Chief): “You saw the accused steal the bag?” (unless court permits)
Permitted (Cross): “You were present at the shop at 8 p.m., correct?”
Refreshing Memory Example: A bank officer checks ledger entries made at the time before answering.

Conclusion

Sections 143–156 BSA strike a balance:

Limit leading questions in chief/re-exam to prevent tutoring.
Allow full freedom in cross-examination to test truth.
Empower the court to prevent harassment.
Permit refreshing memory to ensure testimony is accurate and reliable.

Explain the basic principles of BSA Act in Detail

The Bharatiya Sakshya Adhiniyam, 2023 replaces the Indian Evidence Act, 1872, modernising the law of evidence in India.
It lays down rules for admissibility, relevancy, and appreciation of evidence in judicial proceedings.
Its basic principles aim to balance truth-finding, fair trial, and protection of rights.

Basic Principles of BSA

(A) Only Relevant Evidence is Admissible

Relevancy is the cornerstone – Only facts connected with the fact in issue are admissible (S.4–50).
Irrelevant facts, even if true, are excluded.
Example: In a murder trial, evidence of the accused’s unrelated past business disputes is irrelevant.

Case Law: State of U.P. v. Raj Narain – Only relevant evidence should be admitted.

(B) Best Evidence Rule

Evidence must be the best available in the circumstances.
Primary evidence preferred over secondary (S.56–62).
Prevents weaker substitutes when better evidence exists.

Facts may be proved by oral testimony (S.54–55) and documentary evidence (Chapter V).
Oral evidence must be direct; documents must be proved as per law.

(D) Digital and Electronic Evidence Equated with Documentary Evidence

S.61–63: Electronic records are admissible if conditions for authenticity are met.
Gives equal weight to digital proof (emails, CCTV, etc.).

(E) Presumptions

Mandatory Presumptions: Court shall presume certain facts unless disproved (e.g., public documents S.74).
Discretionary Presumptions: Court may presume based on common course of events (S.86–88).
Presumptions reduce burden of proof in certain cases.

(F) Burden of Proof

S.104–120: Party asserting a fact must prove it.
Burden may shift based on presumptions or special provisions.
Protects against false accusations by requiring proof.

(G) Competency of Witnesses

S.125: Every person is competent unless prevented by incapacity.
Includes dumb witnesses who can testify through writing/signs.

(H) Examination of Witnesses

S.143–156: Evidence is tested through:

Examination-in-Chief
Cross-Examination
Re-Examination

Leading questions restricted in chief/re-exam, allowed in cross.
Court controls improper questioning.

(I) Privileged Communications

S.128–134: Certain communications (e.g., between spouses, legal advisers) are protected to encourage candour.
Cannot be compelled unless exceptions apply.

(J) Expert Evidence

S.39–45: Expert opinions are admissible on handwriting, fingerprints, electronic evidence, customs, science, art, etc.
Expert evidence is advisory, not binding.

(K) Doctrine of Res Gestae

S.6 (Old IEA) → S.4–50 BSA: Facts forming part of the same transaction as the fact in issue are relevant even if not in issue themselves.

(L) Confessions

S.22–24: Confession to a police officer is inadmissible unless made in court or under special conditions.
Safeguards against coerced admissions.

(M) Preserving Fair Trial

Excludes hearsay unless exceptions apply.
Protects against indecent, scandalous, harassing questions (S.154–155).
Allows refreshing memory (S.162) for accurate testimony.

Modern Features Compared to IEA 1872

Recognition of Digital Evidence – More detailed and explicit than the IEA.
Gender-Neutral Language – Inclusive drafting.
Streamlined Sections – From 167 in IEA to 170 in BSA.
Alignment with CrPC and BNSS 2023 – Ensures harmony with new procedural laws.
Updated Presumptions – Covers modern transactions like electronic contracts.

Conclusion

The BSA 2023 retains the core evidentiary principles of the old IEA—relevancy, best evidence, burden of proof—while modernising for technology, privacy, and fairness.
Its provisions ensure that only reliable, relevant, and lawfully obtained evidence is admitted, striking a balance between efficiency and justice.

What are the general principles concerning documentary evidence ? Explain with illustrations.

Documentary evidence refers to evidence of facts given through documents produced for the inspection of the Court. Under the BSA, “document” includes any matter expressed or described upon any substance, including electronic or digital records, intended to be used for recording that matter. Documentary evidence is mainly governed under Chapter V of the Act.

Primary and Secondary Evidence

Section 56: Contents of documents may be proved either by primary or secondary evidence.

Section 57 – Primary Evidence: Means the document itself produced for the inspection of the Court.
Illustration: Original registered sale deed produced in Court is primary evidence.

Section 58 – Secondary Evidence: Includes—

Certified copies;
Mechanical copies ensuring accuracy and copies compared with such copies;
Copies made from or compared with the original;
Counterparts of documents as against non-executing parties;
Oral accounts of contents by a person who has seen the document;
Oral or written admissions;
Summaries of voluminous documents prepared by skilled persons.

Secondary evidence is admissible only when the original is lost, destroyed, in possession of the adverse party, or otherwise not easily producible.
Illustration: A certified copy of a mortgage deed from the registrar’s office is admissible if the original is lost.

Public and Private Documents

Section 74 – Public Documents:
(a) Acts/records of acts of sovereign authority, official bodies, tribunals, public officers (legislative, judicial, executive) of India or a foreign country;
(b) Public records kept of private documents.

All other documents are private documents. Public documents can be proved by certified copies without calling the original, while private documents require proof of execution.
Illustration: A birth certificate issued by the municipal authority is a public document; a rent agreement between two individuals is a private document.

Proof of Execution and Contents

Proof involves two aspects:

Execution/authorship — that the document was made, signed, or issued by a particular person.
Truth of contents — whether the statements in the document are factually correct.

A document signed by a person proves authorship but not automatically the truth of the statements unless the maker is examined or it falls within a hearsay exception.

Best Evidence Rule

The Court prefers the original document over copies unless exceptions apply. This prevents substitution of weaker evidence when stronger is available.

Electronic and Digital Records

Section 61: No document is inadmissible merely because it is electronic or digital; it has the same legal effect as other documents, subject to Section 63.

Sections 62–63: Contents of electronic records may be proved in accordance with prescribed conditions, usually requiring a certificate identifying the record, the manner of production, and the functioning of the device/system.
Illustration: WhatsApp messages printed out with a certificate under Section 63 are admissible to prove a transaction.

Presumptions and Ancient Documents

Certain documents enjoy statutory presumptions:

Documents over 30 years old, produced from proper custody, may be presumed genuine.
Certified copies of public documents are presumed to be accurate.

Relevant Case Law

Anvar P.V. v. P.K. Basheer (2014): Certificate mandatory for admissibility of electronic records.
Arjun Panditrao Khotkar v. Kailash Gorantyal (2020): Reaffirmed Anvar, clarified scope of certificate requirement.
State of Bihar v. Radha Krishna Singh (1983): Public records have strong presumptions, but truth of recitals may still require proof.
Kundan Lal Rallaram v. Custodian, Evacuee Property (1961): Reinforced best evidence principle.

Conclusion

The general principles under the BSA emphasise authenticity, reliability, and admissibility of documents. The preference is for primary evidence, with secondary evidence allowed in limited, well-defined situations. Public documents enjoy easier admissibility, while electronic records are given equal legal recognition with safeguards to ensure integrity.

Write a note on competency of witness in tender age and unsound mind persons.

The Bharatiya Sakshya Adhiniyam (BSA), 2023 modernizes and replaces the Indian Evidence Act, 1872. Sections 124–126 primarily deal with the competency and mode of testimony, while Section 139 addresses the number of witnesses required to prove a fact. The BSA adopts an inclusive approach, ensuring that everyone can testify unless the court finds incapacity.

General Principle — Who May Testify (Sec. 124 BSA)

Rule: Every person is presumed competent to testify unless disqualified by law or found incapable by the Court.
Key Points:

Competency is a gatekeeping question for the judge.
Credibility and weight of evidence are separate issues.
Disqualifications come only from statute (e.g., privilege) or incapacity (Sec. 125 BSA).

Competency of Witness — Sec. 125 BSA

Rule: A person is competent unless the Court finds incapacity due to:

Tender age,
Extreme old age,
Disease of body or mind,
Any similar cause affecting comprehension or communication.

Practical Test by Courts:

Judges may conduct a brief voir dire to check:

Understanding of questions,
Memory and perception,
Ability to communicate,
Sense of duty to speak the truth.

If the witness passes this test, they are declared competent.
Oath/affirmation relates to credibility, not competency.

Witness of Tender Age (Child Witness)

Rule: Children can testify if they understand the questions and can give rational answers.
Assessment Factors:

Ability to comprehend questions,
Capacity to remember events,
Ability to communicate responses,
Awareness of duty to speak truthfully.

Illustration: A 9-year-old child who can answer coherent questions about time, place, and persons involved is considered competent.
Case Law:

Rameshwar v. State of Rajasthan, AIR 1952 SC 54 — A child can testify if aware of the duty to speak the truth; corroboration is prudential, not mandatory.
Panchhi v. State of U.P., 1998 — Child testimony admissible and can sustain conviction if reliable.

Witness of Unsound Mind

Rule: Mental unsoundness does not automatically disqualify a witness.
Assessment: Court examines:

Lucidity at the time of testimony,
Ability to perceive and recall events,
Ability to communicate answers rationally.

Illustration: A person with intermittent mental illness may testify during periods of lucidity.
Case Law:

State of Maharashtra v. Dama Gopinath Shinde, 2000 — Court must record satisfaction regarding mental/physical capacity; competency may be affected but is not precluded.

“Dumb” or Non-Speaking Witness (Sec. 126 BSA)

Witnesses unable to speak can depose through writing, signs, or gestures, which is treated as oral evidence.
Court Duties:

Ensure the witness understands questions and can communicate reliably,
Appoint qualified interpreters (sign-language, gestures),
Record the process (preferably via video),
Maintain cross-examination rights of the opposite party.

Illustration: A mute shopkeeper points at the accused and writes short answers; an interpreter translates; the court treats this as oral evidence.
Key Case Law:

Queen-Empress v. Abdullah, 1885 — Evidence by signs or writing of a mute witness in open court is admissible.
Meesala Ramkrishnan v. State of A.P., 1994 — Accuracy of interpretation/recording is crucial; procedure must inspire confidence.

Key Principles and Safeguards

Inclusiveness: Everyone may testify unless found incapacitated.
No fixed age or mental threshold: Competency is functional.
Weight vs competency: Even competent witnesses may have credibility assessed during cross-examination.
One witness sufficient: Sec. 139 BSA — A single wholly reliable witness can prove a fact.
Witness Protection: Witness Protection Scheme, 2018 ensures competent witnesses can depose fearlessly, protecting truthful testimony.

Conclusion

Under BSA 2023, witnesses of tender age or unsound mind are not automatically excluded.
Competency is determined by ability to understand questions and give rational answers, verified by the Court.
Witnesses unable to speak can give intelligible evidence using writing, gestures, or signs.
Courts focus on inclusivity and reliability, allowing credible evidence to be considered irrespective of age or mental condition, thus strengthening the administration of justice.

Define ‘ confession and distinguish it from admission.

Examine the difference between admission and confession.

Confession

Definition (BSA & Judicial Interpretation):

A confession is a statement made by an accused admitting guilt of the offence charged, either expressly or impliedly.
Stephen’s Definition: “A confession is an admission made at any time by a person charged with a crime, stating or suggesting that they committed that crime.”
Judicial Principle: In Pakala Narayana Swamy v. Emperor, it was held that a confession must admit all facts constituting the offence or substantially admit them.

Key Features:

Made by a person accused of an offence.
Admits commission of a criminal offence.
Must be against the penal interest of the accused.
Must be voluntary to be admissible.

Forms of Confession:

Type	Description	Evidentiary Value	Example
Judicial Confession	Made before a Magistrate or in court during judicial proceedings (Sec. 164 BNSS)	Strong evidence if voluntary	Pleading guilty when charges are framed; Voluntary statement before Magistrate
Extra-Judicial Confession	Made to a person other than a Magistrate/Court (friend, relative, elder)	Weak unless corroborated	Telling a friend “I killed B”

Relevant Provisions under BSA 2023:

Sec. 22: Confession to police officer is inadmissible.
Sec. 23: Confession in police custody is inadmissible unless made in immediate presence of a Magistrate.
Sec. 24: Confession previously influenced by threat, inducement, or promise is admissible if such influence is fully removed and the statement is voluntary.
Sec. 27 Exception: Portion of a statement leading to discovery of a fact is admissible.

Rationale for Inadmissibility:

Protection under Article 20(3) against self-incrimination.
Prevent misuse of police powers and coercion.
Ensures reliability of evidence; involuntary confessions may be false.

Illustrations:

Inadmissible: A says to police, “I killed B” – barred under Sec. 22–23.
Partly admissible: A says, “I killed B and buried the knife under the bridge” – discovery part admissible under Sec. 27.
Admissible: A confesses before a Magistrate after being cautioned – fully admissible.

Case Laws:

Sahu v. State of U.P. – Extra-judicial confession admissible but requires corroboration.
State of Punjab v. Gurdeep Singh – Extra-judicial confession can be substantive if voluntary and credible.
Balbir Singh v. State of Punjab – Confession to police inadmissible.
Dagdu v. State of Maharashtra – Judicial confession admissible with safeguards.

Admission (Sec. 15 BSA)

Definition:

An admission is a statement, oral or written, made by a party acknowledging facts relevant to the case, against their interest, but does not amount to a confession of guilt.

Key Features:

Can be made by any party or their agent.
May relate to civil or criminal facts, not necessarily an offence.
Does not imply guilt of a crime.
Can be express or implied, and is admissible as evidence.

Example:

A admits in writing that he sold stolen goods to B. This is an admission, not a confession of theft.

Differences between Admission and Confession

Basis	Admission (Sec. 15 BSA)	Confession (Secs. 22–24 BSA)
Definition	Statement suggesting truth of a fact, made by a party, does not amount to guilt	Statement by accused admitting commission of a crime, implying guilt
Who can make it	Any party to the proceeding or agent	Only the accused of the offence
Relevance	May relate to civil or criminal facts	Must relate to commission of an offence
Implication	Supports case; not conclusive proof of guilt	Shows guilt; may form basis of conviction if voluntary
Voluntariness	Not strictly required	Essential; involuntary confession inadmissible
Forms	Express or implied	Judicial (strong evidence) / Extra-judicial (weak unless corroborated)
Example	Admitting ownership of stolen property	“I killed B yesterday”

Conclusion

Admission: Broader, includes civil and criminal facts, does not prove guilt, made by any party.
Confession: Narrower, criminal only, implies guilt, must be voluntary, and is made by the accused.
Evidentiary Weight: Judicial confessions = strong; extra-judicial confessions = weak unless corroborated; admissions = support evidence, may require corroboration.

What are the different stages in the examination of witness ? What questions are lawful during cross-examination ?.
or
What do understand by cross examination ? What questions are permitted in cross examination ?.

The Bharatiya Sakshya Adhiniyam (BSA), 2023 provides a structured framework for the examination of witnesses under Sections 143–156, covering the order of examination, types of questions, restrictions, leading questions, protection of witnesses, and refreshing memory.

Stages of Examination of Witness (Sec. 143 BSA)

The examination of a witness is conducted in three main stages:

(A) Examination-in-Chief (Direct Examination)

Conducted by the party calling the witness.
Purpose: To elicit all relevant facts in support of the case.
Leading Questions: Generally prohibited to avoid influencing the witness; however, the court may permit them for:

Introductory matters (e.g., name, occupation),
Undisputed facts,
Matters already proved in evidence.

Illustration:

Allowed: “Your name is Ravi Kumar?”
Not Allowed: “You saw the accused steal the bag?” (unless court permits)

(B) Cross-Examination

Conducted by the adverse party.
Purpose: To test the credibility, accuracy, and reliability of the witness.
Leading Questions: Permitted freely in cross-examination.
Scope: Questions may relate to:

Matters raised during examination-in-chief,
General credibility and veracity,
Previous statements or conduct affecting reliability.

Illustration: “You were present at the shop at 8 p.m., correct?”
Case Law: Ram Chander v. State of Haryana – Right to cross-examination is fundamental.

Conducted by the party who called the witness.
Purpose: To clarify matters raised during cross-examination.
Scope: Restricted to issues arising from cross-examination; new facts cannot be introduced without court permission.

Lawful Questions During Cross-Examination (Secs. 149–156 BSA)

Cross-examination is designed to test the veracity and credibility of a witness. Lawful questions may be asked to:

Test Veracity: Examine the truthfulness of the witness.
Discover Identity/Position: Clarify the witness’s connection with parties, events, or documents.
Shake Credibility: Challenge reliability, even if character-damaging, provided there is reasonable ground.
Previous Statements: Questions may be asked about prior written or recorded statements to detect contradictions (Sec. 148).

Restrictions and Safeguards:

Reasonable Grounds: Questions must have a factual basis (Sec. 152).
Indecent or Scandalous Questions: Forbidden unless directly relevant to facts (Sec. 154).
Questions Intended to Harass or Insult: Not allowed (Sec. 155).
Court Discretion: Court decides when questions may be asked and can compel answers while protecting witness dignity (Secs. 150–151).
Contradiction Limitation: Answers given solely to test credibility cannot be contradicted except as permitted (Sec. 156).

Illustrations:

Lawful: “Did you see the accused at the shop at 8 p.m.?”
Unlawful: “Isn’t it true you are dishonest and always lie?” – unless relevant to credibility with reasonable grounds.

Case Laws:

State of Rajasthan v. Ani – No restriction on leading questions in cross.
Varkey Joseph v. State of Kerala – Leading questions allowed in chief for undisputed matters.

Leading Questions (Sec. 146 BSA)

Definition: A question that suggests the answer or assumes a fact not yet proved.
Rules:

Examination-in-Chief / Re-Examination: Generally not allowed unless permitted by court for introductory or undisputed facts.
Cross-Examination: Allowed freely to test witness credibility.

Examples:

Leading: “You saw A stab B, didn’t you?”
Non-Leading: “What did you see at the spot?”

Refreshing Memory (Sec. 162 BSA)

Witnesses may refresh their memory using:

Writing made by themselves at the time or soon after the transaction,
Writing made by another person, read and verified as correct when fresh in memory.

Purpose: Ensures accuracy and reliability of testimony, especially for technical, financial, or investigative witnesses.
Illustration: A bank officer refers to contemporaneous ledger entries before answering.
Case Law: Sidheswar Ganguly v. State of West Bengal – Witness allowed to refresh memory using contemporaneous notes.

General Principles of Examination

Chief Examination: Elicit relevant facts; leading questions generally prohibited.
Cross-Examination: Test truthfulness and credibility; leading questions allowed.
Re-Examination: Clarify matters from cross; no new facts unless permitted.
Court Control: Prevents irrelevant, scandalous, or harassing questions.
Witness Protection: Sections 152–155 safeguard dignity and prevent harassment.
Memory Support: Witnesses may refer to writings to refresh memory for accurate testimony.

Conclusion

Sections 143–156 BSA provide a balanced framework for witness examination:

Restrict leading questions in chief/re-exam to prevent coaching.
Allow freedom in cross-examination to test credibility.
Empower courts to prevent harassment and protect witness dignity.
Permit refreshing memory to ensure testimony is accurate, reliable, and trustworthy.

This structured approach ensures that witnesses can provide full, credible, and fair evidence while maintaining the integrity of the judicial process.

Explain the doctrine of ‘ Estoppel ‘ with suitable examples with suitable case laws.
OR
What is the importance of Estoppel ? Explain with suitable illustrations.

Estoppel is a legal principle that prevents a person from denying or asserting something contrary to what they have previously represented as true, where another person has relied on that representation to their detriment. It ensures consistency, fairness, and protection of reliance in legal and civil transactions.

Relevant Sections of BSA, 2023:

Sec. 121 – General Estoppel
Sec. 122 – Estoppel of Tenant or Licensee of Person in Possession
Sec. 123 – Estoppel of Acceptor of Bill of Exchange, Bailee, or Licensee

General Estoppel (Sec. 121 BSA)

Definition:

A person cannot deny a fact that they have represented as true, if another person has relied upon it.

Key Features:

Representation can be express or implied.
Reliance by another person must have caused detriment or change in position.
Applies to facts, not law.

Illustration:

A tells B he owns a plot of land. B constructs a boundary based on this statement. A cannot later deny ownership.

Case Laws:

R. v. S. Greenough – Misleading conduct causing reliance can invoke estoppel.
Hindustan Steel Works v. State of Orissa – A party cannot deny a fact previously relied upon by others.

Estoppel of Tenant or Licensee (Sec. 122 BSA)

Rule:

A tenant or licensee cannot deny the lawful title or possession of the person in possession.

Illustration:

A leases a shop from B, who is in possession. A cannot deny B’s possession while enjoying tenancy.

Case Law:

Ram Narayan v. State of Bihar – Tenants are estopped from denying landlord’s possession while enjoying tenancy.

Estoppel of Acceptor of Bill, Bailee, or Licensee (Sec. 123 BSA)

Rule:

Certain persons are precluded from denying facts:

Acceptor of a bill of exchange – cannot deny validity or consideration.
Bailee – cannot deny bailor’s title.
Licensee – cannot deny licensor’s rights.

Illustrations:

Acceptor of Bill: B accepts a bill from A; cannot later deny A’s authority.
Bailee: C stores goods for D; cannot claim goods belong to someone else.
Licensee: E uses land under license from F; cannot deny F’s rights.

Case Law:

Gujarat Electricity Board v. Union of India – Bailee/Licensee cannot deny title while enjoying benefits.

Types of Estoppel

Type	Explanation	Example	Section / Reference
Estoppel by Representation	Denial prevented when a fact is represented and relied upon	A states ownership; B builds on it	Sec. 121
Estoppel by Deed	Party executing a deed cannot deny its contents	A conveys land by deed; cannot later claim ownership	Judicial Principle
Estoppel by Conduct / Silence	Acts or omissions induce reliance by another	Landowner silent while tenant builds; cannot deny rights	Judicial Principle
Tenant/Licensee Estoppel	Tenant/licensee cannot deny lawful possession of person in possession	Tenant enjoys lease; cannot deny landlord	Sec. 122
Special Estoppel	Applies to acceptors, bailees, licensees who enjoy rights	Bailee storing goods; licensee using land; acceptor of bill	Sec. 123

Exceptions to Estoppel

Against Law – Cannot override statutory or legal rights (Gowar v. State of Madras).
Fraud / Misrepresentation by Other Party – If reliance was induced by fraud, estoppel may not apply (Central Bank of India v. State of Kerala).
Mistake / Ignorance of Fact – Representation based on mistake may not create estoppel.
Public / Statutory Interest – Cannot estop public authorities from exercising legal powers.

Importance of Estoppel

Promotes Fairness and Justice

Prevents parties from acting inconsistently to the detriment of others.
Case: R. v. Greenough – Estoppel applied to prevent injustice due to misleading conduct.

Protects Reliance and Detriment

Protects individuals who have acted on another’s representation in good faith.
Case: Hindustan Steel Works v. State of Orissa – Reliance on representation protected by estoppel.

Maintains Legal Consistency and Predictability

Prevents contradictory claims that could undermine trust in transactions.
Case: Ram Narayan v. State of Bihar – Tenant cannot deny landlord’s possession; legal certainty maintained.

Encourages Honesty and Responsibility

Persons are bound by their own representations, promoting truthful dealings.

Supports Commercial and Civil Transactions

Ensures parties in contracts, tenancy, licensing, and banking cannot unfairly deny obligations or rights.
Case: Gujarat Electricity Board v. Union of India – Estoppel ensured protection of rights of parties acting in reliance.

Illustrative Examples

Type of Estoppel	Example
General Estoppel	A represents ownership; B builds on it
Tenant/Licensee	Tenant cannot deny landlord’s possession while enjoying lease
Acceptor/Bailee/Licensee	Bailee cannot deny bailor’s title; Licensee cannot deny licensor’s rights
Estoppel by Deed	Conveyance deed prevents later denial
Estoppel by Conduct/Silence	Landowner silent while tenant builds; cannot deny rights

Conclusion

The doctrine of estoppel under BSA 2023 (Secs. 121–123) ensures fairness, protection of reliance, and consistency in legal dealings.
It applies broadly through general estoppel, and specifically through tenant/licensee estoppel and special estoppel for acceptors, bailees, and licensees.
Importance: Protects reliance, promotes honesty, maintains legal predictability, and prevents injustice.
Exceptions: Fraud, mistake, statutory rights, or public interest limit its application.
Key Case Laws:

R. v. S. Greenough – Misleading conduct invoked estoppel.
Ram Narayan v. State of Bihar – Tenant estoppel.
Gujarat Electricity Board v. Union of India – Special estoppel.
Hindustan Steel Works v. State of Orissa – Reliance protection.
Central Bank of India v. State of Kerala – Fraud exception.

In which situations confessions and admissions are admissible as evidence in administration of Justice?

In legal proceedings, statements made by parties are important sources of evidence. The Bharatiya Sakshya Adhiniyam (BSA), 2023 distinguishes between confession and admission, laying down rules for their admissibility to ensure fairness and reliability in the administration of justice.

Confession

Definition:
A confession is a statement made by an accused person admitting guilt of the offence charged, either wholly or substantially.

Stephen’s definition: Confession is an admission made at any time by a person charged with a crime, stating or suggesting that they committed the crime.
BSA Sections: 22–24 (Confession) and 27 (discovery exception).

Key Features:

Made by an accused person.
Must relate to the facts constituting the offence.
Voluntariness is essential; coerced confessions are inadmissible.
Confession can be judicial (before a Magistrate/Court) or extra-judicial (outside judicial proceedings).

Admission

Definition:
An admission is a statement made by a party acknowledging a fact relevant to the case, not necessarily implying guilt.

BSA Section: 15.
Key features:

Can be made by any party to the proceedings.
May relate to facts in issue or relevant facts.
Can be oral, written, or inferred from conduct.
Requires voluntariness, but unlike confession, it need not admit guilt.

Illustration:

A admits delivering goods to B. This admission helps prove the transaction but does not imply any crime.

Admissibility of Confessions

Confessions are admissible in limited circumstances to protect the accused from coercion:

Judicial Confession (Sec. 22–24 BSA)

Definition: Confession made before a Magistrate or in Court during proceedings.
Conditions for Admissibility:

Must be voluntary.
Recorded under proper legal safeguards (e.g., Sec. 164 BNSS).
Accused must understand rights and consequences.

Evidentiary Value: High; can be sole basis for conviction.
Case Law: Pakala Narayana Swamy v. Emperor – Confession must admit all facts constituting offence or substantially admit them.

Extra-Judicial Confession

Definition: Confession made outside judicial proceedings (e.g., to friends, relatives).
Conditions:

Must be voluntary and credible.
Court examines circumstances, relationship, and reliability.

Evidentiary Value: Weak alone; corroboration required.
Case Laws:

Sahu v. State of U.P. – Extra-judicial confession admissible if reliable.
State of Punjab v. Gurdeep Singh – Can be substantive evidence if trustworthy.

Confession to Police Officer (Sec. 22 BSA)

Rule: Generally inadmissible to prevent coercion.
Rationale: Protects the accused under Article 20(3) – Right against self-incrimination.
Case Law: Balbir Singh v. State of Punjab – Confession to police inadmissible.

Confession in Police Custody (Sec. 23 BSA)

Rule: Inadmissible unless made in presence of a Magistrate.
Case Law: Dagdu v. State of Maharashtra – Judicial confessions admissible if safeguards followed.

Confession after Removal of Inducement/Threat/Promise (Sec. 24 BSA)

Rule: Confession earlier influenced by threat, promise, or inducement is admissible if influence removed and statement is voluntary.
Case Law: Pyare Lal Bhargava v. State of Rajasthan – Voluntary confession valid after removal of inducement.

Discovery Exception (Sec. 27 BSA)

Rule: Portion of a statement leading to discovery of a fact is admissible, even if confession is otherwise inadmissible.
Illustration: Accused reveals location of a weapon; the weapon discovered is admissible.

Admissibility of Admissions

BSA Section 15 governs admissions:

Situations:

Statement made by party to the proceedings or authorized representative.
Relates to a fact in issue or relevant fact.
Can be oral, written, or inferred from conduct.

Evidentiary Value:

Admissions are corroborative evidence, not substantive proof of guilt.
Can be relied upon to prove facts relevant to the dispute.

Illustration:

A admits delivery of goods to B; helps prove transaction in a civil case.

Case Laws:

State of Rajasthan v. Kashi Ram – Admission in court can be relied upon to prove facts.
Mohd. Ibrahim v. State of Kerala – Admission must be voluntary and relevant to fact in issue.

Situations in Which Confessions and Admissions Are Admissible

Type	Situation	Conditions / Safeguards	Case Law
Judicial Confession	Made before Magistrate or Court	Voluntary, safeguards followed	Pakala Narayana Swamy v. Emperor
Extra-Judicial Confession	Outside Court	Voluntary, credible, corroboration advisable	Sahu v. State of U.P., State of Punjab v. Gurdeep Singh
Police Confession	Generally inadmissible	Only admissible if in Magistrate’s presence or discovery exception	Balbir Singh v. State of Punjab
Induced Confession	Earlier threat, inducement, or promise	Admissible if influence removed and voluntary	Pyare Lal Bhargava v. State of Rajasthan
Discovery Exception	Leads to discovery of fact	Portion of statement admissible	Sec. 27 BSA
Admission	Made by party to proceedings	Relevant to fact in issue, voluntary, oral/written	State of Rajasthan v. Kashi Ram, Mohd. Ibrahim v. Kerala

Key Principles for Admissibility

Voluntariness is essential for confessions.
Confessions to police are inadmissible unless safeguards satisfied.
Extra-judicial confessions require corroboration for reliability.
Admissions are admissible to establish facts but do not prove guilt by themselves.
Discovery exception (Sec. 27) allows partial use of otherwise inadmissible confessions.

Conclusion

Confessions and admissions play a crucial role in administration of justice.
BSA 2023 (Secs. 15, 22–24, 27) protects accused from coercion and ensures statements are voluntary, reliable, and admissible under proper conditions.
Judicial confessions have high evidentiary value, extra-judicial confessions require careful scrutiny, and admissions provide supportive evidence in proving facts.

When dying declaration are admissible? Discuss the judicial standards for its appreciation.

Dying Declaration: Admissibility and Judicial Standards

Definition and Concept

A dying declaration (DD) is a statement made by a person who is about to die, regarding the circumstances of their death or the cause leading to it. It is treated as a statement of relevant fact under BSA Section 26(a).

Purpose: Since the declarant may not survive to testify, the law allows their statement to be admitted in evidence.
Nature: It can be oral or written, and it may be made with or without expectation of death.

Illustration:

A victim of a stabbing tells a neighbor that B attacked them. If the victim later dies, this statement is admissible as a dying declaration.

Statutory Basis under BSA

Section 26 BSA provides the circumstances in which statements of a dead or unavailable person are relevant facts:

Cause of Death: Statement about cause or circumstances of death.
Business Records: Entries made in the ordinary course of business or professional duty.
Statements Against Interest: Statements against pecuniary, proprietary, or criminal interest.
Public Rights and Customs: Opinion on public rights, customs, or matters of public interest.
Family Relationships: Statements about relationships by blood, marriage, or adoption.
Wills and Deeds: Statements in wills, deeds, or family records.
Collective Impressions: Statements expressing relevant feelings or impressions.

Section 27 BSA allows statements given by a witness in a previous judicial proceeding to be used in later proceedings if:

The witness is dead, cannot be found, or prevented from giving evidence.
The first proceeding was between the same parties or their representatives.
The adverse party had an opportunity for cross-examination.

Conditions for Admissibility

Declarant Unavailable: Declarant is dead, seriously incapacitated, or cannot attend court.
Relevance: Statement must directly relate to cause or circumstances of death.
Voluntariness: Must be free from threat, inducement, or coaching.
Competence: Declarant must understand and communicate facts accurately.
Contemporaneity: Statement should ideally be made soon after the incident.
Corroboration: Not mandatory but enhances reliability.

Illustration:

A mortally injured person states the identity of the assailant immediately after the attack; this statement is admissible even if the person dies later.

Judicial Standards for Appreciation

Courts apply careful scrutiny before relying on dying declarations:

Voluntariness

Must be free from inducement or coercion.
Case Law: K.N. Reddy v. State of T.N. – Court emphasized voluntariness as essential for admissibility.

Clarity and Consistency

Facts narrated must be clear, coherent, and consistent.
Case Law: State of U.P. v. Rajesh – Clear and consistent details enhance credibility.

Competence and Observational Capacity

Declarant must have mental capacity to observe, recollect, and communicate facts.
Case Law: Rameshwar v. State of Rajasthan, AIR 1952 SC 54 – Even a child or dying person can make a competent declaration if they understand and relate facts.

Timing

Statements closer to the incident are preferred to reduce chances of fabrication.
Delayed declarations are subject to careful scrutiny.

Corroboration

Not strictly required, but corroborative evidence strengthens conviction.
Case Law: Moti Ram v. State of Rajasthan – DD can form sole basis for conviction if found reliable.

Opportunity for Cross-Examination

Usually, the deceased cannot be cross-examined; however, prior statements in judicial proceedings can be used if cross-examination was allowed (Section 27 BSA).

Illustrative Examples

Murder Case:

Victim identifies assailant before death → admissible as DD.

Sexual Assault Leading to Death:

Victim recounts rape during assault → admissible.

Business Records:

Diary entry by deceased accountant noting transaction date → admissible.

Family Matters:

Deceased father’s letter confirming child’s birth → relevant for succession.

Public Matters:

Deceased village head states a road is public → admissible.

Importance of Dying Declarations

Critical in Criminal Justice:

Helps in murder, assault, or fatal injury cases where the victim cannot testify.

Substantive Evidence:

Can be sole basis for conviction if reliable, clear, and voluntary.

Wide Scope under BSA:

Covers oral, written, business records, and prior judicial statements.

Judicial Reliability:

Courts assess voluntariness, clarity, consistency, and proximity to ensure truthfulness.

Leading Judicial Decisions

Case	Principle
Rameshwar v. State of Rajasthan	DD can form sole basis for conviction if reliable.
K.N. Reddy v. State of T.N.	Voluntariness essential.
Moti Ram v. State of Rajasthan	Corroboration not mandatory but desirable.
State of U.P. v. Rajesh	Consistency and clarity enhance probative value.

Conclusion

Under BSA Sections 26–27, dying declarations are an essential part of evidence law, allowing courts to rely on statements of deceased or unavailable persons. Courts give primacy to reliability, voluntariness, clarity, and timing, balancing the need for truth-finding with safeguards against false or coerced statements. Dying declarations can be conclusive or corroborative, but careful judicial scrutiny ensures that justice is served.

How the “legitimacy of the child “can be proved under Indian Evidence Act?

Legitimacy of a Child: Proof under BSA Section 116

Statutory Position

BSA Section 116 deals with proof of legitimacy of a child. It establishes that:

A child born during a valid marriage between a man and a woman is presumed to be legitimate.
This presumption also applies if the child is born within 280 days after the dissolution of the marriage, provided the mother remains unmarried.
Legitimacy can only be rebutted by proving non-access between the spouses during the period of conception.

Section 116 of the BSA reinforces this presumption by stating that the child is conclusively presumed legitimate unless it is proven that the parents could not have had access to each other.

Principles of Presumption under Section 116

Valid Marriage: The presumption applies only if the marriage is legally recognized.
Time of Birth: The child must be born during the marriage or within 280 days after its dissolution.
Non-Access Exception: If it is proved that spouses did not have access to each other during conception, the presumption can be rebutted.

Illustration:

A woman delivers a child 5 months after her husband has left on permanent duty. If it can be proved that there was no access, the child’s legitimacy may be disputed.

Nature of Proof

The presumption of legitimacy is conclusive (“conclusive proof”) under Section 116.
This means the court cannot admit evidence to disprove legitimacy unless the non-access exception is satisfied.
Courts rely on a prima facie case of non-access before ordering DNA or blood tests to ascertain paternity.

Role of DNA Testing

Advances in science allow courts to order DNA tests to confirm paternity. Judicial guidance includes:

Gautam Kundu v. State of West Bengal:

DNA/blood tests are not automatic.
Court may order tests only if prima facie non-access is established.
The court considers the potential social impact on the child and mother.

Sharda v. Dharmpal:

Matrimonial courts can direct medical tests.
Refusal by a party can lead to adverse inference.
Orders do not violate Article 21 (Right to Privacy) or Article 20(3) (protection against self-incrimination).

Importance of DNA testing:

Provides scientific and conclusive evidence.
Overcomes the limitations of Section 116, which is based on moral presumption rather than biological fact.

Challenges and Criticism

Moral Basis of Law:

Section 116 presumes legitimacy based on public morality, not science.
In modern society, this may unfairly burden a party disputing paternity.

Limited Exception of Non-Access:

Non-access is the only exception to rebut legitimacy.
Cases like adultery with access cannot be addressed under current law.

Need for Reform:

Law Commission of India suggested amendments in the Indian Evidence (Amendment) Bill, 2003 to allow DNA testing as a standard method for resolving paternity disputes.

Judicial Approach to Proving Legitimacy

Courts prioritize protection of the child’s rights and social morality.
Prima facie evidence of non-access is essential before displacing the presumption.
Courts weigh social consequences before ordering scientific tests to avoid stigmatization of the child or mother.

Illustrative Cases

Case	Principle
Gautam Kundu v. State of West Bengal	DNA test allowed only if prima facie non-access is shown.
Sharda v. Dharmpal	Court can order medical tests; refusal leads to adverse inference.
Govind Singh v. State of M.P.	Right to privacy under Article 21 is not absolute; DNA/blood tests permissible in public interest.

Conclusion

Presumption of legitimacy under Section 116 protects children born during marriage.
Conclusive proof means legitimacy cannot be rebutted except for non-access.
DNA testing now provides a scientific method to establish paternity in disputed cases, balancing legal rights and social considerations.
While the law originally prioritized morality and protection of children, modern reforms aim to incorporate scientific evidence, ensuring justice and fairness in paternity disputes.

write a detail note on examination of witness

The Bharatiya Sakshya Adhiniyam (BSA), 2023 provides a structured framework for the examination of witnesses to ensure fairness, reliability, and orderly presentation of evidence. Sections 143–156 deal with the procedures, principles, and protections for witnesses during examination.

Meaning of Examination of Witness

Examination of witness is the process by which a witness is questioned in court to elicit relevant facts of a case. It is divided into three stages:

Examination-in-Chief (Direct Examination) – Conducted by the party who calls the witness.
Cross-Examination – Conducted by the opposing party to test credibility or challenge testimony.
Re-Examination – Conducted by the party who called the witness, strictly to clarify matters arising during cross-examination.

Stages of Examination

(a) Examination-in-Chief (Section 143)

Purpose: To elicit all relevant facts from the witness favorable to the calling party.
Leading questions (questions suggesting the answer) are generally prohibited.
Court may allow leading questions for:

Introductory matters
Undisputed facts
Matters already proved

Illustration:

Allowed: “Your name is Ravi Kumar?” (introductory)
Not allowed: “You saw the accused steal the bag?” (unless permitted by the court)

(b) Cross-Examination (Sections 144–146, 149)

Purpose: To test the credibility, accuracy, and veracity of the witness.
Leading questions are always allowed.
Lawful questions may include:

Testing the witness’s veracity
Shaking credibility
Identifying relationships or positions
Impeaching previous statements

Witness must answer lawful questions even if self-incriminatory (subject to legal privilege).
Court can disallow questions that are:

Without reasonable grounds
Indecent, scandalous, or intended to insult/annoy (Sections 152–155)

Illustration:

“You were present at the shop at 8 p.m., correct?” (permissible cross-question)

Purpose: Clarify matters raised in cross-examination.
Cannot introduce new facts without court permission.
Limited use ensures fairness and prevents witness tutoring.

Special Provisions for Witness Examination

Leading Questions (Section 146)

Suggest the answer or assume unproved facts.
Prohibited in chief unless permitted; allowed in cross.
Court exercises discretion in re-examination.

Witness Called Only to Produce Document (Section 144)

Person cannot be cross-examined unless called as a factual witness.

Witness Speaking to Character (Section 145)

May be cross-examined and re-examined regarding their knowledge of the person’s general reputation.

Evidence as to Writing/Documents (Sections 147–148)

Witness may be questioned about a document shown to them.
Previous written statements can be used to test credibility.
Contradictions must be pointed to specific parts.

Protection of Witnesses (Sections 152–155)

Prevents harassment, scandalous, or irrelevant questioning.
Ensures dignity and fair trial.

Court’s Discretion (Section 151)

Court may regulate the order, scope, and conduct of questioning.
Ensures fairness and prevents abuse.

Refreshing Memory (Section 162 BSA)

Witness may refer to documents made at the time of the event or soon after.
Purpose: Improve accuracy, especially in technical, financial, or investigative cases.
Court may allow the witness to consult such documents during testimony.

Illustration:

A bank officer checking ledger entries made at the time of a transaction before giving evidence.

Case Law:

Sidheswar Ganguly v. State of West Bengal – Witness may refresh memory with contemporaneous notes.

General Principles

Chief Examination: Bring out relevant facts; avoid leading questions.
Cross-Examination: Test credibility; leading questions allowed.
Re-Examination: Clarify cross-examined matters only.
Court Control: Prevent irrelevant, scandalous, or harassing questions.
Memory Support: Witness may refresh memory to ensure accurate testimony.

Illustrations

Leading Question in Chief (Allowed): “Your date of birth is 15th Jan 1990?”
Leading Question in Chief (Not Allowed): “You saw the accused commit theft?”
Cross-Examination Example: “You were at the shop at 8 PM, correct?”
Refreshing Memory Example: A surgeon refers to patient notes to confirm dates.

Judicial Approach

Courts balance truth-finding with fair treatment of witnesses.
Right to cross-examine is fundamental (Ram Chander v. State of Haryana).
Freedom of questioning in cross-examination ensures truth emerges.
Restrictions in chief and re-examination prevent coaching/tutoring.

Conclusion

Sections 143–156 BSA ensure:

Systematic examination of witnesses.
Restrictions on leading questions in chief to avoid witness coaching.
Freedom in cross-examination to test veracity.
Court’s discretion to maintain fairness and protect witnesses.
Memory-refreshing provisions enhance accuracy of evidence.

Overall: The BSA strikes a balance between evidence reliability, witness protection, and procedural fairness.

What is hearsay evidence? Specify exceptions if any.

Hearsay Evidence

Meaning of Hearsay Evidence (Section 54 BSA 2023)

Hearsay evidence refers to a statement made by a person who is not called as a witness, offered to prove the truth of the facts stated in that statement.

Essentially, it is second-hand evidence — the witness reports what someone else said rather than what they personally perceived.
Generally inadmissible, because it is considered unreliable and denies the right to cross-examine the original declarant.

Illustration:

A witness testifies: “X told me that Y committed the theft.”

The witness did not see Y commit the theft; they are repeating what X said. This is hearsay.

Rationale for Exclusion:

Ensures reliability of evidence.
Preserves right to cross-examine.
Promotes first-hand proof in judicial proceedings.

Exceptions to Hearsay (Section 55 BSA 2023)

Hearsay evidence may be admissible in the following situations:

Dying Declarations

Statements by a person as to the cause of their death or circumstances of a fatal incident.
Rationale: The declarant may die before giving formal testimony.
Illustration: A victim tells who attacked them before dying.
Reference: Sections 26–27 BSA.

Admissions and Confessions

Statements made by a party admitting relevant facts or guilt.
Reference: Sections 15, 22–24 BSA.
Illustration: Accused admits to committing theft in front of a witness.

Statements Against Interest

Statements that expose the declarant to liability or harm.
Illustration: A deceased person acknowledges owing money in a written note.

Statements in the Course of Business or Public Duty

Records maintained in ordinary business or professional course, or public documents.
Illustration: Hospital records, account books, or official correspondence.

Statements About Relationship or Family Matters

Statements regarding blood, marriage, or adoption relationships made before disputes.
Illustration: Deceased father’s diary recording a child’s birth date.

Statements Expressing Feelings or Impressions

Contemporaneous statements relevant to the issue by a group of people.
Illustration: Remarks of a crowd witnessing a crime may show general perception.

Res Gestae (Section 4 BSA 2023)

Statements made during or immediately after an act or transaction, forming part of the same event, are admissible.
Rationale: Considered spontaneous and reliable because they are unlikely to be fabricated.
Illustration: During a robbery, a bystander shouts, “Stop! He has a knife!” – admissible to show occurrence and circumstances.
Case Law: R. v. Koppula Venkat Rao – Statements made contemporaneously with the act are part of the res gestae and admissible.

Key Principles

Hearsay is inadmissible unless it falls within recognized exceptions.
Court evaluates:

Circumstances of the statement
Credibility of the declarant
Relevance to the facts in issue

Judicial Approach: Admissibility is allowed only if the statement is necessary, reliable, and corroborated where required.

Case Law Examples:

Koppula Venkat Rao v. State of A.P. – Dying declaration admissible if voluntary and trustworthy.
Sahu v. State of U.P. – Extra-judicial confessions admissible if corroborated.
R. v. Greenough – Res gestae statements admissible as part of the transaction.

Conclusion

Hearsay evidence is second-hand and generally inadmissible due to lack of reliability.
Exceptions under BSA 2023, including dying declarations, admissions, statements against interest, public/business records, family statements, contemporaneous impressions, and res gestae (Section 4 BSA), allow justice when direct evidence is unavailable.
Courts must carefully weigh necessity, spontaneity, and credibility before admitting such evidence to ensure fairness and reliability.

What is Resjudicata? When a Judgment can be relevant to the fact in issue. Discuss.

Res Judicata is a legal doctrine which bars re-litigation of a matter that has already been directly and substantially adjudicated by a competent court between the same parties or their legal representatives. Its essence is to prevent multiplicity of litigation and ensure finality of judicial decisions.

Legal Provision:

Section 11, Code of Civil Procedure (CPC), 1908 governs Res Judicata.
The section states that no court shall try a suit or issue in which the matter directly and substantially in issue has been directly and substantially decided by a competent court in a former suit between the same parties.

Essential Conditions (Features):

Identity of Parties: The parties in the former and current proceedings must be the same or legal representatives.
Matter in Issue: The matter must have been directly and substantially in issue in the previous case.
Competent Court: The prior decision must have been made by a court having jurisdiction to try the case.
Final Decision on Merits: Only judgments decided on merits create Res Judicata; interlocutory or procedural orders do not.

Illustration:

Suit 1: A sues B for ownership of land. Court rules in favor of B.
Suit 2: A cannot file a fresh suit against B for ownership of the same land; this is barred by Res Judicata.

Relevance of Judgment as Evidence

Even when Res Judicata does not strictly bar a suit, previous judgments can be relevant to prove facts in issue under Bharatiya Sakshya Adhiniyam (BSA) 2023, particularly Sections 50 and 51.

When a Judgment is Relevant:

Facts Directly Adjudicated:

Statements or findings in a prior judgment can be used to prove facts in subsequent proceedings.

Same Parties or Representatives:

The judgment can be used as evidence when the parties in the earlier and current proceedings are the same or legally connected.

Proved Facts, Not Opinion:

Only facts decided in the former case are relevant; judicial reasoning or opinion may be considered to interpret facts.

Illustration:

In a prior case, Court found that a person had executed a valid contract. In a later suit involving the same parties, the earlier judgment can be used as evidence to prove execution of the contract.

Case Laws:

K.K. Verma v. Union of India – Emphasized that Res Judicata prevents re-litigation of the same issue.
R.S. Nayak v. A.R. Antulay – A prior judgment is relevant evidence even if Res Judicata does not automatically bar the current case.
State of U.P. v. Singh – Facts judicially determined in a prior proceeding can be relied upon in later proceedings to prove the same fact.

Conclusion

Res Judicata (Section 11 CPC): Bars re-litigation of issues already decided between the same parties.
Relevance of Judgment (BSA 2023): Prior judgments can serve as evidence of facts, assisting the court in ascertaining truth without directly barring litigation.
This ensures both finality of decisions and efficiency in fact-finding.

What do you understand by proved, disproved and not. proved with suitable examples?

Proved, Disproved, and Not Proved – Meaning under BSA 2023

The concepts of proved, disproved, and not proved are fundamental in evidence law. They indicate the degree of satisfaction of the court after examining the evidence presented.

Proved

Definition:
A fact is said to be proved when, after considering all the evidence, the court is satisfied that it exists. This satisfaction can arise from direct evidence, circumstantial evidence, or admissions/confessions.

Legal Reference:

Section 3 and relevant parts of BSA 2023 define the evaluation of evidence and when facts can be deemed proved.

Examples:

A sues B for recovery of ₹50,000. B admits in writing that he owes the money. The fact of debt is proved.
A witness testifies that he saw C commit theft, and the evidence is credible. The fact of theft is proved.
A document showing A’s ownership of land is presented and verified. Ownership is proved.

Disproved

Definition:
A fact is said to be disproved when, after considering all the evidence, the court is satisfied that it does not exist.

Examples:

A claims B assaulted him on a specific date. However, B provides credible alibi evidence, CCTV footage, and witnesses showing he was elsewhere. The alleged assault is disproved.
A claims ownership of a car, but the registration certificate and RTO records show the car belongs to B. Ownership is disproved.

Not Proved

Definition:
A fact is not proved when the court cannot arrive at a definite conclusion about its existence because the evidence is insufficient or inconclusive.

Examples:

A alleges B committed fraud, but no direct evidence or corroboration is available. The court cannot be satisfied either way; the fact is not proved.
A claims he lent money to B but cannot produce witnesses or documents. The fact of debt is not proved.

Key Points:

Proved → Existence established beyond doubt or on balance of probabilities.
Disproved → Non-existence established beyond doubt.
Not proved → Evidence is inconclusive; the court cannot determine existence or non-existence.
Only a proved fact can form the basis of a decree or conviction.

Illustration for All Three Together:

Case: Theft of gold necklace.

Witness testifies seeing A steal → Fact proved.
B claims he saw C stealing, but CCTV shows C was elsewhere → Fact disproved.
D claims he saw B take the necklace, but his statement is vague and unreliable → Fact not proved.

These distinctions are crucial in the administration of justice, as they guide courts in drawing conclusions and passing judgments based on the weight and credibility of evidence.

Discuss briefly about witness, Examination and cross examination.

A witness is a person who gives evidence in a judicial proceeding regarding facts which are relevant to the matter in issue. Witnesses may testify about what they saw, heard, or know personally.

Key Points:

Witnesses can be eyewitnesses (direct knowledge) or expert witnesses (specialized knowledge).
They may also include character witnesses or persons who produce documents.
Competency of a witness is governed under BSA Sections 138–140, including tender age, unsound mind, or interest in the case.

Examination of Witness

Definition:
Examination of a witness is the process by which a party questions a witness to elicit facts relevant to the case. BSA 2023 (Sections 143–156) prescribes the order and rules for examination.

Stages of Examination:

Examination-in-Chief (Direct Examination):

Conducted by the party who calls the witness.
Purpose: Bring out relevant facts favoring the calling party.
Leading questions are generally not allowed unless for introductory matters or undisputed facts.

Cross-Examination:

Conducted by the adverse party.
Purpose: Test the credibility, accuracy, and veracity of the witness.
Leading questions are allowed.
Witnesses can be questioned about previous statements, character, or contradictory evidence.
Lawful questions include those to:

Test truthfulness
Shake credibility
Discover identity or knowledge relevant to the issue

Re-Examination:

Conducted by the party who called the witness.
Purpose: Clarify facts brought out in cross-examination.
New facts cannot be introduced without the court’s permission.

Refreshing Memory (Section 162 BSA):

A witness may refer to writings made at the time of the event or soon after to refresh memory.
Helps ensure accurate and reliable testimony.
Example: A bank officer checks ledger entries before testifying.

Cross-Examination

Definition:
Cross-examination is the questioning of a witness by the opposite party after examination-in-chief to test credibility or contradict their testimony.

Rules under BSA:

Leading questions allowed.
Questions must be lawful and relevant.
The court can prevent questions that are scandalous, irrelevant, or meant to insult/harass (Sections 154–155).
Witness must answer lawful questions, but legal privileges are protected.
Can refer to previous statements in writing to highlight contradictions (Section 148).

Illustrations:

Examination-in-chief: “What did you see on the night of 10th August?”
Cross-examination: “You were at the shop at 8 p.m., correct?”
Re-examination: “Earlier you mentioned seeing the accused; please clarify if it was day or night.”

Conclusion

Witnesses are central to proving facts in judicial proceedings.
Examination-in-chief establishes facts in support of the calling party.
Cross-examination tests reliability and challenges evidence.
Re-examination clarifies and ensures completeness.
BSA Sections 143–156 strike a balance between eliciting truth and protecting witness rights.

Specify the probléms concerning violation of women rights in marriage and Dowry death.

Problems Concerning Violation of Women’s Rights in Marriage and Dowry Deaths

Marriage in India is not just a social institution but a legally protected contract. Despite legal safeguards, violations of women’s rights persist, often resulting in cruelty, harassment, and even death. The Bharatiya Sakshya Adhiniyam (BSA 2023) and Bharatiya Nyaya Sanhita (BNS 2023) address these issues in Sections 117–118.

Violation of Women’s Rights in Marriage

Forms of Violation:

Cruelty by Husband or Relatives:

Emotional or mental abuse, physical assault, or harassment.
Non-payment of maintenance or financial deprivation.
Isolation from family and community support.

Dowry-Related Harassment:

Demands for money, property, or gifts.
Continuous coercion or threats related to dowry.

Neglect and Deprivation of Legal Rights:

Denial of inheritance rights, property, or legal recourse.

Legal Presumption of Suicide Due to Cruelty (Section 117 BSA):

If a woman commits suicide within seven years of marriage and it is shown that her husband or his relatives subjected her to cruelty, the court may presume that her suicide was abetted by them.
Cruelty is defined under Section 86 BNS, covering both physical and mental harassment.

Judicial Approach:

The presumption shifts the burden of proof to the husband/relatives to prove absence of cruelty.
Circumstantial evidence is admissible, including:

Testimonies of neighbors or family
Medical and psychiatric reports
Records of harassment or threats

Illustration:

A woman dies by suicide within 5 years of marriage. Evidence shows repeated physical assault and verbal abuse by the husband. Court presumes abetment under Section 117.

Dowry Deaths

Definition:

A dowry death occurs when a woman dies as a result of cruelty or harassment related to dowry demands.
Section 118 BSA provides that if, soon before her death, a woman was harassed for dowry, the court shall presume that the person causing the harassment is responsible for her death.

Common Problems Leading to Dowry Deaths:

Continuous pressure to provide dowry, gifts, or money.
Physical and mental abuse for failing to meet demands.
Neglect of medical or emotional needs, contributing to fatal consequences.
Societal pressure and stigma preventing women from seeking help.

Legal Presumption under Section 118:

The court presumes culpability of the husband or relatives if harassment for dowry is evident.
Evidence may include:

Statements of witnesses
Hospital or police records
Previous complaints lodged by the woman

Illustration:

A woman dies under suspicious circumstances. Evidence shows repeated demands for dowry and torture. Court presumes dowry death under Section 118, holding the husband/relatives responsible unless they disprove it.

Challenges and Problems

Burden on Victims:

Women often face social stigma in reporting cruelty or dowry harassment.

Evidence Collection:

Physical abuse may leave no clear evidence, especially in mental harassment cases.

Delay in Legal Proceedings:

Prolonged trials may discourage victims’ families from pursuing justice.

Societal and Cultural Pressure:

Fear of family dishonor or retaliation may prevent complaints.

Judicial Standards and Importance

Courts rely on circumstantial evidence and presumptions to uphold women’s rights.
Key Objective: Protect women from marital abuse and dowry-related exploitation.
Judicial Principles:

Presumption of abetment or culpability reduces the need for direct evidence in critical cases.
Courts balance evidence, witness credibility, and social context.

Case Reference:

Gautam Singh v. State – Court upheld presumption of abetment where evidence of cruelty and harassment was established.
Shanti v. State – Presumption of dowry death applied based on recent harassment before death.

Conclusion

Sections 117–118 BSA reflect a protective approach towards women in marriage, recognizing cruelty and dowry harassment as serious threats to life and dignity. While legal presumptions aid justice, challenges remain in evidence collection, societal barriers, and timely enforcement. Courts play a crucial role in interpreting facts, applying presumptions, and ensuring women’s rights are safeguarded.

“Contents of a document must always be proved by primary evidence”. State exceptions if any.

Under the Bharatiya Sakshya Adhiniyam (BSA) 2023, the general rule is:

“The contents of a document must always be proved by primary evidence.”

Primary Evidence (Section 50 BSA):

Definition: The original document itself produced for inspection in court.
Purpose: Ensures authenticity and prevents tampering, misrepresentation, or reliance on unreliable copies.

Illustration:

A contract between A and B must be proved by producing the original written contract, not by merely reading or presenting copies.

Exceptions to Primary Evidence

Sections 51–53 BSA (analogous to Sections 63–65 of the Indian Evidence Act, 1872) provide exceptions where secondary evidence may be admitted:

When Original is Lost or Destroyed (Sec. 51)

If the original is lost or destroyed without any bad faith, secondary evidence can be given.
Example: Original sale deed destroyed in a fire; certified copy or witness testimony about contents may be admitted.

When Original is in Possession of Adverse Party (Sec. 52)

If the original is in possession or power of the opponent, who refuses to produce it, secondary evidence is allowed.
Example: Defendant refuses to produce an agreement; plaintiff can present a copy.

Original is in Foreign Country (Sec. 53)

If producing the original is impossible or extremely difficult due to location abroad, secondary evidence is admissible.

Original is Public Document (Sec. 54)

Certified copies of public documents (e.g., birth certificate, government records) can be admitted instead of the original.

Voluminous Documents

When documents are numerous and cannot conveniently be examined in court, summaries or indexes with originals available for verification are allowed.

Collateral Matters

Documents not essential to the main fact (collateral matters) can be proved by secondary evidence.

Electronic Records

BSA recognizes admissibility of electronic documents; certified electronic records or printouts may serve as evidence where original digital file is inaccessible.

Rationale Behind Exceptions

Prevents injustice due to destruction, loss, or inaccessibility.
Maintains balance between strict rule of primary evidence and practical realities of litigation.
Protects rights of both parties without allowing fabrication.

Illustrations

Lost Document:

A lost the original lease deed; he produces a certified copy. Court admits secondary evidence.

Original with Opponent:

Defendant has the original promissory note and refuses to show it. Plaintiff can present a copy or witness evidence.

Public Record:

Birth certificate issued by municipal authority can be proved by certified copy instead of producing the original.

Conclusion

While the primary evidence rule ensures authenticity, exceptions under BSA 51–54 allow secondary evidence to be admitted in cases of loss, destruction, inaccessibility, or possession by adverse parties. These exceptions strike a practical balance between strict evidentiary requirements and the realities of modern litigation.

Examine the principles relating to privileges of Acts of State.

Acts of State refer to acts done by the sovereign or the government in the exercise of its sovereign functions, which are generally immune from judicial scrutiny in certain circumstances. These privileges are recognized to protect the dignity, sovereignty, and security of the State.

Under Bharatiya Sakshya Adhiniyam (BSA) 2023, certain principles are codified concerning the privileges relating to acts of State.

Principles Relating to Privileges of Acts of State

Acts Done in Sovereign Capacity are Protected

Rule: The State is not liable to disclose information or produce documents if they relate to acts done in a sovereign capacity rather than as a private or commercial entity.
Example: Decisions on defense, foreign affairs, or national security matters are protected.

Case Law:

S. P. Gupta v. President of India – Judicial scrutiny is limited in matters relating to high-level government decisions, especially those affecting national security.

No Judicial Interference in Political or Policy Decisions

Principle: Courts generally do not interfere with policy-making or political decisions of the government.
These acts are considered non-justiciable, even if they affect individuals.

Illustration:

Allocation of foreign aid, declaration of national emergency, or diplomatic recognition of a foreign state.

Privilege Against Disclosure

Certain communications of the State, including Cabinet papers, advice given by ministers, or official correspondence in the exercise of discretion, enjoy privilege against disclosure in judicial proceedings.
Purpose: To maintain confidentiality and allow free and frank communication within the government.

BSA Relevance:

Sections related to privilege allow government documents to be exempt from production if disclosure would harm State interests.

Case Law:

Conway v. Rimmer – Government documents can be withheld if public interest requires.
R. v. Chief Constable of West Midlands – State may claim privilege to protect sensitive information.

Protection of Officers Acting in Official Capacity

Officials of the State are not personally liable for acts done in the lawful exercise of their sovereign duties.
Example: Police officers executing lawful government orders, tax officials implementing tax policy.

Case Law:

State of Rajasthan v. Vidyawati – Officials cannot be personally sued for actions done in public duty, unless malafide or illegal.

Acts Done in Public Interest

Acts done in the interest of public welfare are protected from civil or criminal liability unless there is malafide intent or ultra vires action.

Illustration:

Government imposing lockdown during a pandemic, regulating prices during crisis, or requisitioning property in emergency.

Distinction Between Sovereign and Commercial Acts

Sovereign Acts (Jure Imperii): Immune from suit; done as part of State’s official duties.
Commercial Acts (Jure Gestionis): State acting as a private party can be sued like any citizen.

Case Law:

Union of India v. Madras Bar Association – Acts in administrative or commercial capacity may be challenged.
Republic of India v. India Steamship Co. – State liable for commercial contracts.

Rationale Behind Privileges

Maintains Sovereignty: Prevents interference in core government functions.
Ensures Confidentiality: Encourages open and honest advice within the State.
Protects Public Interest: Decisions affecting large populations or national security need immunity from litigation.
Promotes Efficiency: Officials can perform duties without fear of personal liability.

Limitations of Privileges

Acts cannot be malafide or illegal.
Courts can review acts that violate fundamental rights.
Commercial or private actions of the State are not immune.
Immunity does not extend to ordinary civil or contractual disputes.

Conclusion

The privileges of Acts of State provide immunity from judicial interference for sovereign functions, protection of officials, and confidential communications. However, these privileges are not absolute; courts retain the power to examine acts for legality, malafide intent, or violation of fundamental rights. The distinction between sovereign acts and commercial/private acts is key to determining whether immunity applies.

Define secondary evidence and discuss when it is admissible?

Under Bharatiya Sakshya Adhiniyam (BSA) 2023, secondary evidence refers to evidence which is not the original document but proves the contents of the original. It is usually presented when the original document cannot be produced before the court.

Key Points:

Secondary evidence cannot replace primary evidence unless certain conditions exist.
It is used to prove the content of a document when the original is unavailable.

Examples of Secondary Evidence:

Certified copies of public documents.
Copies made from the original (carbon copies, typed copies).
Oral accounts of the contents of a document by a witness who has seen the original.
Photographs or microfilms of the original document.

Primary Evidence vs Secondary Evidence

Aspect	Primary Evidence	Secondary Evidence
Nature	The original document itself	Any evidence that reproduces contents of original
Admissibility	Always admissible	Admissible only when original cannot be produced
Weightage in Court	Highest evidentiary value	Lesser; depends on circumstances and reliability

Admissibility of Secondary Evidence

Secondary evidence is admissible only under certain conditions, mainly when primary evidence cannot be produced. These are provided under Sections 56–59 BSA:

Original is in Possession of Adverse Party

If the original document is in the possession of the opposite party, who refuses or fails to produce it, secondary evidence can be admitted.
Example: Party A requests a contract from Party B, who refuses to provide it. A can prove contents via secondary evidence.

Original Lost or Destroyed

When the original has been lost or destroyed, provided it was not done maliciously by the party seeking to rely on it.
Case Law: State of U.P. v. Rajesh – Secondary evidence admissible if original lost without fraud.

Original in Custody of Public Officer

If the original is a public document under official custody and a certified copy can be obtained.

Original too Voluminous

When the original is too large or cumbersome, e.g., account books or registers, a copy may be produced.

Original in the Hands of a Third Party

If the original is with someone not under the control of the party, secondary evidence is admissible.

Types of Secondary Evidence Recognized

Certified Copies

Copy certified by a public officer having custody of original.

Uncertified Copies

Copy made from the original document or by photocopying.

Oral Evidence

Witness testimony describing the contents of the original document.

Counterpart Documents

A document which corresponds to the original, e.g., carbon copies or duplicate agreements.

Conditions for Admissibility

Original must not be produced: There must be a valid reason why the original document cannot be produced.
Proof of reason for non-production: Party offering secondary evidence must prove why the original is unavailable.
Authenticity of secondary evidence: Court examines reliability, e.g., certified copies carry more weight than oral accounts.

Illustrations:

A contract is lost; the parties rely on a photocopy to prove terms.
Original land records held in government office; certified copies presented in court.
A witness describes contents of a letter he saw before it was destroyed.

Conclusion

Secondary evidence is a substitute for primary evidence and is admissible only when the original document cannot be produced for valid reasons such as loss, destruction, or public custody. Courts generally prefer primary evidence, but secondary evidence ensures justice is not denied due to mere technical unavailability of originals. Its weight depends on authenticity, reliability, and circumstances of non-production.

Write an essay on the relevancy of admission?

In the law of evidence, admissions play a vital role in establishing facts in a legal proceeding. An admission is a statement, oral or written, made by a party to a suit or proceeding which acknowledges the truth of a fact relevant to the case, but does not necessarily amount to a confession of guilt. Admissions are recognized under the Bharatiya Sakshya Adhiniyam (BSA) 2023, Section 15, and form a key element in proving or disproving matters in issue.

Unlike confessions, which pertain to criminal liability, admissions can be made by any party and relate to civil or criminal matters. While admissions are not conclusive proof, they are prima facie evidence against the party making them, unless rebutted by other evidence.

Definition of Admission

According to Section 15 BSA, an admission is:

“A statement, oral or written, which suggests the existence of a fact and is made by a party to a proceeding against his own interest, but does not amount to a confession of guilt of an offence.”

Example:

A admits in writing that he received Rs. 50,000 from B for goods supplied, which is relevant in a dispute over payment.

Distinction between Admission and Confession

Aspect	Admission	Confession
Definition	Statement acknowledging a fact relevant to the case.	Statement admitting guilt of a crime.
Scope	Can relate to civil or criminal matters.	Relates only to criminal offences.
Legal Effect	Prima facie evidence; not conclusive.	Substantive evidence if voluntary.
Section under BSA	Section 15	Sections 22–24
Made by	Any party to the case	Accused person only
Example	“I delivered the goods to B on 1st Jan.”	“I killed B on 1st Jan.”

Relevancy of Admission

Admissions are relevant in the following ways:

Against the Maker

An admission made by a party is relevant against him in proving facts.
Illustration: If A admits owing B Rs. 1 lakh, A cannot deny the debt without evidence to rebut.

By or on Behalf of a Party

Admissions made by authorized agents or representatives are also relevant.
Case Law: Mouza Jharu vs. State of Bihar – Statement made by an agent on behalf of a party is admissible.

Constitutes Estoppel

Admission may preclude the maker from denying the fact in a later stage.
It may operate as judicial estoppel or equitable estoppel.

Admissibility in Civil and Criminal Cases

In civil cases, admissions are used to establish liability.
In criminal cases, admissions may form circumstantial evidence but are not equivalent to confession.

Kinds of Admission

Express Admission – Clearly stated orally or in writing.

Example: “I received the goods and failed to pay for them.”

Implied Admission – Conduct or behavior suggests acknowledgment of a fact.

Example: Paying part of a disputed debt indicates recognition of the obligation.

Judicial Admission – Made in the course of legal proceedings.

Binding unless the Court allows withdrawal.

Extra-Judicial Admission – Made outside Court or legal proceedings.

Requires corroboration to be effective evidence.

Conditions for Admissibility

Admission must be made voluntarily.
Must relate to a fact in issue or relevant fact.
Must be made by a party or authorized agent.
Cannot be used to prove guilt in criminal offences like a confession unless under Sections 22–24 BSA.

Judicial Recognition of Admission

Pakala Narayana Swamy v. Emperor: Admission must relate to facts forming part of the offence or issue.
S.P. Gupta v. Union of India: Admissions made by representatives may bind the party.
State of U.P. v. Rajesh: Admissions must be voluntary and not extracted by coercion.

Importance of Admission

Simplifies Legal Proceedings: Reduces need to prove uncontested facts.
Evidence Efficiency: Acts as prima facie proof of certain facts.
Judicial Economy: Saves time and resources by narrowing disputes.
Facilitates Settlement: Parties may settle when admissions are made clearly.

Exceptions

Admissions are not conclusive proof; they can be rebutted by other evidence.
Statements made under coercion, misrepresentation, or undue influence are inadmissible.
Res Gestae Exception: Certain spontaneous admissions may be admissible even if made by non-parties.

Illustrations

A admits to delivering goods to B but disputes payment; this admission helps B in proving the transaction.
A neighbor witnesses a quarrel and says, “A told me he sent the payment”; this may be relevant under res gestae.

Conclusion

The relevancy of admission lies in its utility to establish facts in issue without requiring extensive evidence. While not conclusive, it is prima facie binding against the maker, unless successfully rebutted. The law recognizes its importance in both civil and criminal proceedings and allows its use in various forms—express, implied, judicial, or extra-judicial.

Admissions are thus a cornerstone of evidentiary law, promoting efficiency, fairness, and judicial economy in the administration of justice.

Short Questions

Conclusive proof

Conclusive proof occurs when the law declares that the proof of one fact conclusively establishes another fact, and no evidence can be admitted to contradict it.

It is irrefutable and binding on the court.

Legal Basis:

Defined under Section 2(b) of the Indian Evidence Act, 1872:

“When one fact is declared by this Adhiniyam 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.”

Key Features:

Statutory Declaration Required: The law must explicitly declare one fact as conclusive proof of another.
Irrebuttable: No evidence can be admitted to dispute the second fact.
Mandatory Acceptance: Courts must regard the second fact as proved once the first fact is established.

Illustrations:

A death certificate registered under law is conclusive proof that the person has died.
A document published in the Official Gazette is conclusive proof of its contents.

Difference from Prima Facie / Rebuttable Proof:

Feature	Conclusive Proof	Rebuttable / Prima Facie Proof
Can be challenged?	No	Yes, can be rebutted
Court’s duty	Must accept as proved	Court accepts unless disproved
Basis	Statutory declaration	Presumption, evidence may disprove

Conclusive proof provides certainty in law. Once the fact declared as conclusive is proved, the related fact is legally irrefutable.

Expert Opinion

“When the Court has to form an opinion upon a point of science, art, trade, profession, or foreign law, the opinions of persons specially skilled in such matters are relevant facts.”

Expert opinion is the opinion of a person having special knowledge, skill, or experience to assist the court in matters beyond ordinary understanding.

Section	Provision
39	Expert witnesses: Persons specially skilled in foreign law, science, art, trade, profession, handwriting, or finger impressions; their opinion is a relevant fact.
40	Court may require production of writings or objects for expert examination.
41	Expert may compare writings or signatures to give opinion.
42	Expert may give opinion on fingerprints, footprints, or other impressions.
43	Expert may give opinion on handwriting, signature, or typewriting.
44	Expert may give opinion on X-rays, photographs, maps, charts, or plans.
45	Grounds of opinion, when relevant: Opinion on science, art, trade, profession, or foreign law is relevant fact; assists court, not binding.

Grounds of Opinion (Section 45):

Expert must possess special skill or knowledge in the relevant field.
Opinion must be based on facts, observations, documents, or experiments.
Opinion must be directly relevant to the point the court has to decide.
Expert opinion is advisory; court may accept, partially rely, or reject it.

Illustrations:

Medical Expert: Cause of death, injuries, mental state.
Scientific Expert: Fingerprints, DNA, chemical analysis.
Technical Expert: Property valuation, engineering defects, handwriting verification.
Art Expert: Authenticity of paintings or sculptures.
Foreign Law Expert: Interpretation of law of another country.

Key Points:

Expert opinion is admissible as a relevant fact.
Court not bound by the opinion; it guides the court.
Scope covers science, art, trade, profession, handwriting, fingerprints, X-rays, charts, and foreign law.
Weight of opinion depends on accuracy, method, credibility, and skill of the expert.

Sections 39–45 recognize the importance of expert opinion in technical or specialized matters.
Expert opinion assists the court in forming judgment without substituting the court’s decision.

Re-Examination

Re-examination is the process by which a witness, after being cross-examined by the adverse party, is examined again by the party who originally called them. The purpose is to clarify, explain, or rebut points raised during cross-examination, but new facts cannot be introduced without the court’s permission.

Section 142(3) BSA 2023 specifically governs re-examination and empowers the court to allow questions strictly limited to matters arising out of cross-examination.

Purpose of Re-Examination

Clarify Evidence:

To remove ambiguities or misunderstandings that arose during cross-examination.

Rebut Imputations:

To address suggestions, contradictions, or doubts raised by the opposing party.

Strengthen Credibility:

Allows the witness to reaffirm or explain their prior statements.

Key Features

Limited Scope:

Questions must arise directly from cross-examination.
New evidence or unrelated facts cannot be introduced unless the court allows.

Conducted by the Same Party:

Only the party who called the witness can re-examine them.

Court Control:

The court may allow or restrict questions to prevent abuse, irrelevant, or scandalous questioning.

Connection with Refreshing Memory:

A witness may also refer to documents or notes (Section 162 BSA) during re-examination to clarify facts.

Illustrations

Clarification Example:

During cross-examination, the witness is asked, “You saw the accused at 8 PM, correct?”
Re-examination may ask, “Can you clarify the exact time you saw the accused?”

Rebuttal Example:

If the cross-examiner suggests the witness misidentified a person, re-examination may ask, “Please explain why you are certain it was the accused.”

Judicial Position

Ram Chander v. State of Haryana:

Re-examination is a right of the party calling the witness, but the court has discretion to control irrelevant or new matters.

State of Rajasthan v. Ani:

Courts emphasized that re-examination is not for introducing fresh facts but only to clarify cross-examination points.

Importance

Ensures Fair Trial:

Balances the adversarial system by giving the party a chance to respond to cross-examination.

Prevents Misinterpretation:

Helps the court understand the witness’s statements accurately.

Supports Evidence Reliability:

Reinforces the credibility of witnesses and the clarity of facts.

Re-examination under Section 142(3) BSA is a vital stage in witness examination, strictly aimed at clarification and rebuttal, ensuring fairness while maintaining the focus on relevant evidence. The court has the power to allow or restrict questions to prevent abuse of this stage.

Public Document

A public document is a document recognized by law as a record of acts or facts created by sovereign authority, public officers, or official bodies, intended to serve as evidence in judicial or official proceedings.

Types of Public Documents (as per Section 74(1))

Documents forming the acts or records of acts:

(i) Acts of the sovereign authority:
Documents issued by the head of state or government, such as official proclamations, orders, or notifications.
Example: A presidential decree or a government notification in the official gazette.
(ii) Acts of official bodies and tribunals:
Documents issued or maintained by statutory authorities, tribunals, or official committees.
Example: A ruling of an administrative tribunal or a statutory board report.
(iii) Acts of public officers (legislative, judicial, executive) of India or a foreign country:
Records created by officers in the exercise of their official duties, including legislative, judicial, and executive functions.
Examples:

Court judgments and orders
Legislative proceedings or statutes
Executive notifications or orders

Public records kept in any State or Union Territory of private documents:

Documents of a private nature that have been officially recorded or registered for public purposes.
Examples:

Land records and property registries
Birth, death, and marriage certificates
Officially registered contracts or wills

Key Characteristics of Public Documents

Official Authorship:

Created or maintained by a public officer, sovereign authority, or statutory body.

Public Purpose:

Intended for use in legal, administrative, or official matters.

Evidence Value:

Public documents serve as prima facie evidence of the facts stated in them.

Authentication:

Typically authenticated by official signatures, seals, or certification to indicate genuineness.

Importance

Facilitates proof of official acts without requiring additional testimony.
Reduces the burden on courts and parties by providing reliable records.
Ensures consistency and legality in judicial and administrative proceedings.

Illustrations

A court judgment recorded in the official register is a public document.
Birth certificate issued by a municipal authority serves as evidence of birth details.
Land revenue records maintained by the state are public documents for property disputes.
Legislative proceedings of Parliament are public documents evidencing enacted laws.

Under Section 74(1) BSA 2023, public documents include records of acts by sovereign authority, official bodies, public officers, and registered private documents maintained for public purposes. Their primary function is to provide reliable, authenticated evidence in legal and administrative proceedings.

Judges as witnesses

Section 127, BSA 2023 states:

“No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.”

Principles Derived

Immunity for Judicial Functions:

A judge or magistrate cannot be compelled to testify about:

Their own conduct in court.
Any information acquired during judicial proceedings.

This protects the independence of the judiciary and ensures judicial impartiality.

Permissible Examination:

Judges may be examined about facts or events observed in their presence, provided these are unrelated to their judicial decision-making.
Example: A judge witnessing a traffic accident outside the courtroom may testify about what they personally saw.

Requirement of Special Order:

In rare cases, a higher or supervisory court may direct a judge to testify about their judicial conduct.
This ensures that compulsion is exceptional and controlled, safeguarding judicial independence.

Rationale

Protects judges from being intimidated or influenced by demands to testify about their judicial conduct.
Prevents conflict between adjudicative and testimonial roles.
Maintains public confidence in the impartiality and autonomy of the judiciary.

Illustration

Prohibited Testimony:

A judge cannot be asked to testify about why they delivered a particular judgment in a case they presided over.

Permissible Testimony:

A judge who personally witnessed a robbery outside the courtroom can give evidence about what they saw, as it is unrelated to judicial functions.

Section 127 BSA codifies the principle that judges cannot be compelled to testify about matters arising from their judicial office.
They retain the ability to testify on other personal observations, ensuring both justice and judicial independence.

Confession

A confession is a statement made by an accused person admitting guilt of the offence charged, either expressly or impliedly. Stephen defines it as an admission by a person charged with a crime, stating or suggesting they committed it. In Pakala Narayana Swamy v. Emperor, the court held that a confession must admit all or substantially all the facts constituting the offence. Unlike an admission, which can be made by any person and only corroborates facts, a confession is made by the accused and is substantive evidence of guilt (Sections 22–24 BSA).

Confessions can be judicial or extra-judicial. Judicial confessions are made before a Magistrate or in court under proper safeguards and have high evidentiary value if voluntary. Extra-judicial confessions are made outside court, for example to a friend or relative, and are admissible only if corroborated (Sahu v. State of U.P., State of Punjab v. Gurdeep Singh). Confessions to police officers are generally inadmissible to prevent coercion (Balbir Singh v. State of Punjab), and those made in police custody are inadmissible unless made in the immediate presence of a Magistrate (Dagdu v. State of Maharashtra). Confessions influenced by inducement, threat, or promise are admissible only if the influence is removed and the accused speaks voluntarily (Pyare Lal Bhargava v. State of Rajasthan).

Part of a confession leading to the discovery of a fact is admissible even if the confession itself is not (Section 27 BSA). Judicial confessions are strong evidence and can form the sole basis for conviction, while extra-judicial confessions require corroboration. For example, a statement to police admitting a murder is inadmissible, but if the accused reveals the location of the weapon, that part is admissible. A confession made before a Magistrate after proper caution is fully admissible. Thus, BSA ensures that confessions are used as reliable evidence while protecting the accused from coercion.

Dying Declaration

A dying declaration is a statement made by a person who is about to die concerning the cause of their death or the circumstances leading to it. Under Sections 26–27 of the BSA, such statements are relevant when the person is dead, cannot be found, is incapable of giving evidence, or their attendance cannot be reasonably procured. The statement may be oral or written and is admissible whether or not the declarant expected death at the time of making it.

Dying declarations are particularly important in cases of homicide, dowry deaths, or sexual assault resulting in death. The law allows the court to rely on such statements as evidence of relevant facts, especially when the declarant cannot testify in court. The courts consider the voluntariness, clarity, and consistency of the statement. In Kishanlal v. State of Rajasthan, the Supreme Court emphasized that a dying declaration must be made voluntarily and without prompting to be credible. In Pakala Narayana Swamy v. Emperor, the accuracy and completeness of the statement were crucial for its admissibility.

Judicial standards require that the declarant was in a fit mental state to understand the nature of the statement, that it relates to the circumstances of death, and that it is recorded or reported reliably. Dying declarations can be the sole basis for conviction if credible and corroborated by other evidence, though courts always carefully scrutinize them due to the absence of cross-examination.

In summary, dying declarations are an important exception to the rule against hearsay, allowing courts to consider the statements of persons who are unable to testify, provided they are voluntary, relevant, and trustworthy.

Burden of Proof

Burden of proof refers to the duty placed on a party in a legal proceeding to prove or disprove a fact or allegation in issue. It determines which party must produce evidence to satisfy the court of the truth of their claims.

Under the BSA, the general rule is that the party who asserts a fact bears the burden of proving it. For example, in civil cases, the plaintiff must prove the claim, while in criminal cases, the prosecution must prove the guilt of the accused beyond reasonable doubt. The standard of proof differs: in criminal cases, it is “beyond reasonable doubt,” while in civil cases, it is “preponderance of probabilities.”

The burden can be divided into two aspects: the burden of production (duty to produce evidence) and the burden of persuasion (duty to convince the court of the truth). Certain statutory provisions create presumptions, which shift the burden to the opposite party to disprove the presumption. For instance, Section 117 BSA presumes abetment of suicide by the husband or his relatives if a woman commits suicide within seven years of marriage under circumstances of cruelty. Similarly, Section 118 BSA presumes a person caused dowry death if harassment for dowry preceded the death.

Case laws such as State of Uttar Pradesh v. Rajesh Gautam illustrate that presumptions affect the burden, making it the duty of the accused to disprove certain facts once the prosecution establishes a prima facie case.

In summary, the burden of proof allocates responsibility for evidence between parties, defines standards of proof, and in some situations can shift based on statutory presumptions or judicial doctrines. It ensures fairness and proper allocation of evidentiary duties in both civil and criminal proceedings.

Shall presume

Under Section 2(1)(L) of the BSA, “shall presume” means that whenever the law directs the Court to presume a fact, the Court must regard that fact as proved unless and until evidence is presented to disprove it. It creates a rebuttable presumption, meaning the fact is taken as true initially, but can be challenged and disproved by contrary evidence.

For example, in cases like dowry death (Section 118 BSA), if it is shown that a woman was subjected to cruelty or harassment for dowry soon before her death, the Court shall presume that the accused caused the dowry death. The accused can rebut this presumption by presenting evidence to the contrary, but until then, the fact is treated as established.

In essence, “shall presume” shifts the initial evidentiary weight to the opposing party to disprove the presumed fact, ensuring efficiency while maintaining fairness in legal proceedings.

Leading questions

A leading question is defined under Section 146 BSA as any question suggesting the answer which the person putting it wishes or expects to receive. Essentially, it guides the witness toward a particular response.

According to the section:

Examination-in-Chief and Re-Examination: Leading questions must not be asked if objected to by the adverse party, except with the permission of the Court.
The Court may allow leading questions in these stages for:

Introductory matters (e.g., witness’s name, occupation)
Undisputed facts
Matters already sufficiently proved

Cross-Examination: Leading questions are always allowed, as they are essential to test the credibility of the witness and to elicit precise information.

Purpose: Prevents coaching of witnesses in chief/re-examination while ensuring the opposing party can challenge evidence effectively during cross-examination.

Illustrations:

Allowed in Chief (introductory): “Your name is Ravi Kumar?”
Not allowed in Chief (substantive fact without permission): “You saw the accused steal the bag?”
Permitted in Cross: “You were present at the shop at 8 p.m., correct?”

Key Case Laws:

State of Rajasthan v. Ani – No restriction on leading questions in cross-examination.
Varkey Joseph v. State of Kerala – Leading questions allowed in chief for undisputed matters.

This provision balances the need to elicit truthful testimony while safeguarding the witness from undue influence.

Ancient Document

An ancient document under Section 92 BSA refers to any document that is 30 years old or more and is produced from a custody that the court considers proper. Such a document is presumed authentic in the following ways:

The signature and handwriting are presumed to belong to the person it purports to be.
If the document is executed or attested, it is presumed to have been duly executed and attested by the concerned persons.

This presumption allows the document to be self-authenticating, reducing the burden of proving handwriting, signature, or proper execution. The rationale is that the passage of time and continued proper custody makes forgery or tampering highly improbable.

Example:
A land deed dated 1890, found in the official archives, can be admitted as genuine without calling witnesses to prove execution, as it is over 30 years old and properly preserved.

Key Point: Proper custody and age (30 years) are essential for a document to qualify as an ancient document.

Res gestae

Res gestae refers to statements or acts that are so closely connected to a fact in issue that they are considered part of the same transaction. Under Section 4 BSA, 2023, res gestae is an exception to the general rule against hearsay evidence, allowing certain otherwise inadmissible statements to be admitted because they form part of the event itself.

The rationale is that such statements are made spontaneously, contemporaneously, or immediately after an event, leaving little room for fabrication or deliberate misrepresentation. They are considered trustworthy and relevant because they reflect the contemporaneous perception or reaction of the person involved.

Examples:

A bystander exclaims, “B stabbed C!” immediately after witnessing an assault. This statement can be admitted as res gestae.
A victim groaning and saying, “He hit me with a knife!” during the assault can also be evidence of the crime.

Key Points:

Must be closely connected in time and circumstances to the fact in issue.
Cannot be based on afterthoughts or delayed narration.
Can include verbal statements, gestures, or actions that explain or illustrate the event.

Judicial Note: Courts treat res gestae as reliable evidence because it is spontaneous and less likely to be false, even though it is technically hearsay.

This principle helps the court reconstruct events as they happened and provides substantive evidence about the occurrence in question.

Relevant fact

Under BSA Section 3, a relevant fact is any fact, other than the main facts in issue, that helps the court prove or disprove a fact in issue. Evidence can be given in a suit or proceeding regarding:

Facts in issue – the primary points the court has to decide.
Relevant facts – secondary facts that are connected to the facts in issue and assist in establishing their truth.

Facts that are neither in issue nor relevant are generally inadmissible, as they do not help the court in reaching a decision.

Illustration:
If the fact in issue is whether A murdered B, the following are relevant facts:

Evidence of A being present at the scene.
Statements made by B at the time of the attack (res gestae).
Ownership and presence of the weapon used.

Evidence of unrelated matters, such as A’s unrelated past conduct, would not be admissible because it does not pertain to the facts in issue.

This principle ensures that only material and connected facts are considered, keeping proceedings focused and fair.

Common Intention and Object

Under the Bharatiya Nyaya Sanhita (BNS), 2023, the concepts of common intention and common object are distinct but often arise in cases involving multiple participants in a crime.

Common Intention (Section 3(5))

Defined as a pre-arranged plan or prior meeting of minds between two or more persons to commit an offence.
Each participant must intend the specific act and act in furtherance of that intention.
All persons sharing the common intention are equally liable, even if only one physically commits the offence.
Example: A, B, and C plan a robbery. A breaks into a house while B and C act as lookouts. All three are liable due to shared common intention.

Common Object (Section 190)

Refers to the shared objective in a criminal enterprise, usually linked to an unlawful assembly.
Liability arises when an offence is committed in furtherance of that shared object, even without prior planning.
Example: Five persons gather to riot intending to damage property. One sets fire to a shop. All present are liable, as the act furthers the common object of the assembly.

Key Differences:

Aspect	Common Intention	Common Object
Basis	Pre-arranged plan	Shared objective during the act
Requirement	Prior meeting of minds	No prior planning necessary
Liability	All participants equally liable	Members present liable if act furthers common object
Example	Planned robbery by three persons	Riot causing property damage

Conclusion:
Sections 3(5) and 190 of BNS ensure that all participants are held accountable according to their mental state and participation. Common intention requires prior planning, whereas common object applies to spontaneous collective acts, making it easier to prosecute members of unlawful assemblies.

Admission

An admission under Section 15 of the Bharatiya Sakshya Adhiniyam, 2023 is a statement, oral or written, made by a party acknowledging facts relevant to the case, which operate against their interest but do not amount to a confession of guilt. It may be made by the party himself or through his authorized agent. The statement must relate to a fact in issue or a relevant fact, and while it is admissible as evidence, it is not conclusive proof and may be explained or rebutted. Unlike confession, it does not necessarily imply guilt of an offence and can apply in both civil and criminal proceedings.

For example, if A admits in writing that he sold stolen goods to B, it amounts to an admission of sale but not a confession of theft. In Narayan v. Gopal (1960), the Court observed that admissions are the best evidence an opposing party can rely upon, though not conclusive in nature. Similarly, in Avadh Kishore Das v. Ram Gopal (1979), it was held that admissions shift the burden of proof to the person making them. Thus, admissions play an important evidentiary role in judicial proceedings as a voluntary acknowledgment of relevant facts.

Hostile Witness

A hostile witness is a witness who, after being called by a party to support their case, gives evidence that is adverse or contrary to the interest of that party. Under the Bharatiya Sakshya Adhiniyam, 2023, a party who calls a witness is generally not permitted to impeach his credit, but Section 158 allows it with the permission of the Court. When a witness is declared hostile, the party calling him may cross-examine him, put leading questions, and even confront him with his previous inconsistent statements.

For example, if the prosecution calls a witness in a criminal trial expecting him to depose against the accused, but in court the witness denies earlier statements made before the police, the prosecution may request the court to treat him as hostile.

The purpose of declaring a witness hostile is not to completely reject his testimony, but to allow the court to examine his evidence more carefully. Courts can still rely on the part of the testimony that is found truthful and corroborated.

Case law:
In Sat Paul v. Delhi Administration (1976), the Supreme Court held that merely because a witness is declared hostile, his entire evidence cannot be discarded; the court may accept those parts which are found to be credible. Similarly, in State of UP v. Ramesh Prasad Misra (1996), it was held that hostile evidence is not washed off the record and can be relied upon if corroborated by other evidence.

Thus, a hostile witness plays a significant role in trials, especially in criminal cases, where witnesses sometimes turn hostile due to fear, pressure, or inducement, and the court has to carefully assess their credibility.

Hearsay Evidence

Hearsay evidence means any statement, oral or written, made by a person who is not called as a witness in the court, but is presented through some other person to prove the truth of the facts stated in it. In simple terms, it is second-hand evidence, i.e., what one person heard from another, and not what the witness himself saw, heard, or perceived directly.

Under the Bharatiya Sakshya Adhiniyam, 2023, hearsay evidence is generally inadmissible because:

It is not given on oath by the person who actually perceived the fact.
The opposite party does not get an opportunity to cross-examine the real source of information.
It is considered unreliable and weak, as it is based on what someone else said.

Example: If A tells the court, “B told me that C committed theft,” this is hearsay and not admissible, because A is not testifying to what he directly saw or heard about the theft.

However, there are exceptions where hearsay evidence becomes admissible, such as:

Res gestae (Section 4 BSA, 2023): Statements forming part of the same transaction are admissible even if they are hearsay, e.g., a person shouting immediately during an assault.
Dying Declaration (Section 26 BSA, 2023): A statement made by a person about the cause of his death or circumstances of the transaction leading to his death.
Statements in public records (Sections 74–78 BSA): Entries made in the performance of official duties.
Admissions and Confessions (Sections 15, 22–24 BSA): Statements against interest made by parties.
Statements of experts in treatises (Section 60 BSA): Published works may be referred to.

Case law:
In Subramaniam v. Public Prosecutor (1956), hearsay was explained as evidence of a statement made by a person who is not called as a witness, which is tendered to prove the truth of the fact stated.

Thus, hearsay evidence is generally excluded to ensure reliability and fairness of trial, except in cases where law itself recognizes its necessity and trustworthiness.

Possession

Possession under Section 113 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption relating to ownership. The law says that when a person is shown to be in possession of something, the natural presumption is that he is the owner of that thing. If anyone claims that the possessor is not the owner, then the burden of proof lies on the person who makes such an assertion.

This principle is based on the idea that possession itself is a strong indicator of ownership, and courts should presume ownership from possession unless contrary evidence is shown.

Example: If A is found in possession of a house and living there peacefully, the presumption is that A is the owner. If B claims that A is not the owner, then B must prove his claim with proper evidence.

This provision is important because it protects possessors from frivolous challenges and upholds stability in ownership claims. At the same time, it ensures fairness by allowing others to rebut the presumption with credible proof.

Cross Examination

Cross-examination is the process of questioning a witness by the adverse party after his examination-in-chief. Its object is to test the veracity, accuracy, and credibility of the witness and to bring out any facts favorable to the cross-examiner’s case.

As per Section 143 BSA, witnesses are examined in three stages:

Examination-in-chief by the party who calls him,
Cross-examination by the adverse party,
Re-examination by the party calling him.

The cross-examination is not confined to the facts stated in examination-in-chief but may extend to all relevant facts.

Relevant Sections of BSA (2023):

Section 143 – Order of examinations: witness first examined-in-chief, then cross-examined, then re-examined.
Section 144 – A person who merely produces a document is not a witness unless called, and cannot be cross-examined.
Section 145 – Cross-examination regarding previous statements in writing; before using such statements to contradict, the witness’s attention must be drawn to the specific parts.
Section 146 – Leading questions: may be asked in cross-examination.
Section 149 – Questions in cross-examination may test veracity, identity, position in life, or shake credit, even if answers are self-incriminatory.
Proviso to Section 149 – In sexual offence cases (sections 64–71, BNS), no questions about immoral character or past sexual experience of the victim can be asked to prove consent.
Section 150 – If any question asked in cross-examination relates to a relevant matter, Section 137 (relevancy of facts) applies.

Essence

Cross-examination is considered the most powerful weapon in the hands of an advocate. It ensures truthfulness of testimony, detects falsehood, and protects the fairness of the trial. Courts have recognized it as a fundamental right of the accused, ensuring justice.

Estoppel

Estoppel means that when a person, by his declaration, act, or omission, has intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, then he or his representative cannot deny the truth of that thing in any suit or proceeding between himself and such person or their representatives. This rule is based on equity and prevents injustice by stopping a person from going back on a representation once it has been relied upon.

According to sections 121 and 122 of the Bharatiya Sakshya Adhiniyam, when one person has made another believe in the existence of certain facts and induced him to act upon them, neither he nor his representative is allowed to deny those facts. For example, if A falsely represents to B that a piece of land belongs to A, and B purchases it relying on that representation, A cannot later deny his ownership as against B.

Estoppel does not create a new right but only prevents denial of an existing fact. It does not operate against law or statute and is applicable only between the parties and their representatives, not against strangers. It may arise from conduct, representation, deed, or record and is intended to secure fairness in judicial proceedings.

Admissions and confessions

An admission is defined under section 15 of the Bharatiya Sakshya Adhiniyam, 2023. It means a statement, oral or documentary, which suggests any inference as to a fact in issue or a relevant fact, made by any party to the proceeding or by someone authorised on his behalf. Admissions are relevant under sections 16 to 21. They are not conclusive proof but may operate as estoppel under section 121. Admissions can be used in both civil and criminal proceedings, but they only amount to a piece of evidence that needs corroboration.

For example: A is sued by B for the price of goods. A writes a letter to B admitting that he purchased the goods but has not paid for them. This statement is an admission. Similarly, if A admits he was present at the scene of crime but does not admit to committing the act, it is still an admission, though not a confession.

A confession is a species of admission in criminal cases. Although the Adhiniyam does not define it separately, judicial interpretation (e.g., Pakala Narayana Swami v. King Emperor) holds that a confession is a statement made by an accused admitting guilt of the offence charged. Sections 22 to 30 of the Bharatiya Sakshya Adhiniyam deal with confessions. For a confession to be admissible, it must be voluntary and not caused by inducement, threat or promise (section 23). Confession made to a police officer (section 24) or while in police custody (section 25) is inadmissible, unless made in the immediate presence of a Magistrate (section 26). However, if a fact is discovered as a consequence of information given by an accused in custody, that portion of the statement leading to discovery is admissible (section 27).

Illustrations:

A is accused of theft. He says to B, “I took the ornaments from C’s house.” This is a confession.
A is accused of theft. He says, “I was with C when the ornaments were stolen.” This is an admission but not a confession.
A, in police custody, states “I killed B with a knife and buried the knife under a tree.” The statement of killing is inadmissible under section 25, but the fact of recovery of the knife from under the tree is admissible under section 27.

Thus, admissions are broader and apply in civil and criminal matters, whereas confessions are confined to criminal law as acknowledgment of guilt. Every confession is an admission, but every admission is not a confession.

Professional privilege

Professional privilege is the protection given to communications between a legal adviser and their client, ensuring confidentiality in order to promote fairness and justice. Sections 132(1) and (2) of the Bharatiya Sakshya Adhiniyam, 2023 specifically deal with this principle.

According to section 132(1), no advocate shall, at any time, be permitted to disclose any communication made to him in the course and for the purpose of his employment by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in such capacity, unless his client gives consent. This privilege continues even after the employment has ceased. Section 132(2) extends this to clerks, interpreters, and servants of the advocate, prohibiting them from disclosing such communications.

The rationale is to maintain trust between client and lawyer, ensuring clients can speak freely without fear that their admissions will later be used against them. However, there are exceptions: the privilege does not apply when communications are made in furtherance of an illegal purpose, or when the advocate observes any fact showing that a crime or fraud has been committed since his employment.

For example, if A tells his lawyer that he committed theft and seeks defense, the lawyer cannot disclose this without A’s consent. But if A informs his lawyer that he plans to forge a document tomorrow, this communication is not protected because it furthers an illegal act.

In M. Yovyananda v. State of Gujarat (1963 AIR 816), the Supreme Court clarified that the privilege is absolute in genuine lawyer-client communications, but communications intended to cover up or promote crime are excluded. Another important case, Maneka Gandhi v. Rani Jethmalani (1979), while not directly on privilege, emphasized the importance of fairness and integrity of legal proceedings, which supports the rationale behind protecting confidential lawyer-client communications.

Thus, professional privilege ensures justice by protecting confidential legal advice, but it is not meant to be a shield for fraud or crime.

Dowry Death

Dowry death is a special category of offence recognized under the Bharatiya Nyaya Sanhita, 2023 (BNS) as well as under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) for evidentiary presumptions.

As per Section 80 of the BNS, 2023, when the death of a woman is caused by burns, bodily injury, or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or his relatives in connection with a demand for dowry, such death is termed as dowry death. The husband or relative is deemed to have caused her death and is punishable with imprisonment of not less than seven years, which may extend to life imprisonment.

On the evidentiary side, Section 118 of the BSA, 2023 creates a presumption regarding dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that she was subjected to cruelty or harassment for dowry soon before her death, the court shall presume that such person caused the dowry death.

For instance, if A’s wife dies due to burns within three years of marriage, and evidence shows she was continuously harassed for dowry by A and his family, the court shall presume under BSA that A or his relatives caused her death unless disproved.

In Kans Raj v. State of Punjab (2000) 5 SCC 207, the Supreme Court held that to establish dowry death, prosecution must prove cruelty or harassment “soon before” death and a live link between cruelty and death. Similarly, in Satvir Singh v. State of Punjab (2001) 8 SCC 633, the Court clarified that “soon before” does not mean immediately before, but there must be proximity between cruelty and death.

Thus, dowry death combines substantive law under the BNS with evidentiary support under the BSA, making it easier to hold the guilty accountable by shifting the burden once cruelty for dowry is proved.

Dumb Witness

A dumb witness is a person who cannot speak but is still considered a competent witness under the law. Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 provides that such a witness may give evidence in any manner by which he can make it intelligible, such as by writing or signs in open Court. The evidence so given is treated as oral evidence. The proviso requires that if the witness cannot communicate verbally, the Court shall take the assistance of an interpreter or a special educator, and such evidence must be videographed to ensure fairness and accuracy.

Illustrations

A, a dumb person, witnesses B committing murder. In Court, A conveys the entire incident by gestures with the help of an interpreter. Such evidence is admissible and treated as oral testimony.
A deaf and dumb girl is sexually assaulted. She narrates the incident through signs recorded with the help of a special educator. The Court accepts it as valid evidence, and the accused can be convicted on that basis.

Case Laws

Meesala Ramakrishnan v. State of A.P. (1994) 4 SCC 182 – The Supreme Court held that evidence of a dumb witness given through gestures with the help of an interpreter is admissible and can be the sole basis of conviction if found credible.
State of Rajasthan v. Darshan Singh (2012) 5 SCC 789 – It was held that a dumb witness is competent if he can convey facts intelligibly. Proper safeguards like interpretation and videography ensure authenticity.
Babel v. State of Rajasthan, 1998 CrLJ 2423 – The Court observed that testimony of a deaf and dumb person is valid, but the Court must ensure that the witness fully understands questions and conveys answers reliably.

Thus, inability to speak does not bar a person from being a witness. What matters is the ability to communicate facts intelligibly, and with judicial safeguards, such testimony has full evidentiary value.

Oral Evidence

Oral evidence is the most primary and natural form of evidence, recognized under Sections 54 and 55 of the Bharatiya Sakshya Adhiniyam, 2023. The rule is that all facts, except the contents of documents, may be proved by oral evidence. This means facts relating to acts, events, circumstances, or conditions can be proved by the direct statement of a witness who perceived them through his senses.

Section 55 emphasizes that oral evidence shall always be direct. If the fact is one that could be seen, the evidence must come from a witness who actually saw it. If the fact could be heard, it must come from a witness who heard it. If the fact could be perceived by any other sense, the person who so perceived must testify. Similarly, where the evidence relates to an opinion or the grounds for such opinion, it must be given by the person who holds that opinion.

There are exceptions. Expert opinions expressed in published treatises may be proved by producing such books when the author is dead, incapable of giving evidence, cannot be found, or cannot be called without unreasonable delay or expense. Also, when oral evidence relates to the condition or existence of a material thing, the Court may require production of the object itself for inspection.

Illustrations:
If A testifies that he saw B committing murder, this is direct oral evidence. If C testifies that he heard D confess to theft, it is admissible oral evidence. However, if E says that F told him B committed murder, this is hearsay and not admissible.

Case law:
In Vadivelu Thevar v. State of Madras (AIR 1957 SC 614), the Supreme Court held that oral evidence must be direct and classified witnesses into wholly reliable, wholly unreliable, and those requiring corroboration. In State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601), it was held that recording of evidence by video conferencing is permissible and amounts to oral evidence. In Bhugdomal Gangaram v. State of Gujarat (AIR 1983 SC 906), it was reiterated that hearsay evidence is inadmissible and only direct oral evidence is acceptable.

Thus, oral evidence is admissible only when it is direct, relevant, and credible, forming the foundation of proof in judicial proceedings.

Refreshment of Memory

Refreshment of memory is dealt with under Section 162 of the Bharatiya Sakshya Adhiniyam, 2023. The law recognizes that while deposing in Court, a witness may not be able to recall every detail accurately. Therefore, he is permitted to refresh his memory by referring to certain writings or documents under specific conditions.

A witness may refresh his memory by referring to:

Any writing made by himself at the time of the transaction concerning which he is questioned, or soon afterwards, while the facts were still fresh in his memory.
Any writing made by another person, and read or seen by the witness at the time of the transaction or soon afterwards, if he knew the document to be correct.
Copies of documents, provided the Court is satisfied that the original is not available.

Further, the witness may also testify to facts mentioned in such a document, even if he cannot recall them independently at the time of deposition, provided he is sure the record was accurate when made.

Illustrations:
If a doctor records notes about a patient’s injuries immediately after examination, he may later refresh his memory from those notes while testifying in Court. Similarly, a police officer who recorded the details of a seizure list may refer to it while giving evidence.

Case laws:
In R v. Richardson (1971), it was held that refreshing memory is permissible to assist accuracy, provided the notes were made contemporaneously with the event. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, the Court emphasized that witnesses may refresh memory to ensure reliable testimony.

Thus, the principle ensures accuracy and reliability of oral testimony by allowing reference to documents made contemporaneously with the facts, without substituting the documents themselves for evidence.

Onus Probandi

The term Onus Probandi means the burden of proof. It refers to the duty of a party to prove the facts which he asserts before a court of law. Under the Bharatiya Sakshya Adhiniyam, 2023 (Sections 104–108), the principles relating to burden of proof are laid down.

The general rule is that the party who makes an assertion must prove it. Section 104 provides that if a person desires the court to give judgment on the basis of facts alleged by him, the burden is on him to prove those facts. For example, if A accuses B of committing a crime, A must prove that B has committed it. If A claims ownership of land in possession of B, the burden is on A to establish the facts entitling him to that land.

Section 105 states that the burden of proof lies on the party who would fail if no evidence were given. For instance, if A sues B for land in B’s possession, claiming it was left by a will, and no evidence is given, B’s possession prevails. Hence the burden is on A. Similarly, if B admits execution of a bond but pleads fraud, the burden to prove fraud lies on B.

Section 106 provides that the burden of proving a particular fact lies on the person who wants the court to believe in its existence. For example, if A alleges that B confessed theft before C, the burden is on A. If B wishes to set up an alibi, the burden is on him to prove that he was elsewhere at the time.

Section 107 lays down that the burden of proving a fact necessary to prove another fact lies on the person who wishes to rely on it. For example, if A wants to prove a dying declaration by B, he must first prove that B is dead. Likewise, to prove the contents of a lost document by secondary evidence, A must first prove the loss of that document.

Section 108 clarifies that when an accused claims the benefit of general exceptions under the Bharatiya Nyaya Sanhita (like insanity or self-defence), the burden of proving such circumstances is upon him, and the court shall presume the absence of such exceptions unless proved otherwise.

The doctrine was explained in Woolmington v. Director of Public Prosecutions (1935 AC 462) where it was held that the duty of the prosecution is to prove the guilt of the accused beyond reasonable doubt, while the accused has the burden to prove exceptions. In India, the Supreme Court in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 reaffirmed that suspicion cannot substitute proof and the burden of establishing exceptions lies on the accused.

Child Witness

A child witness is a person of tender age who gives evidence in court. Under section 124 of the Bharatiya Sakshya Adhiniyam, 2023, every person is competent to testify unless the court considers that they are prevented from understanding the questions or from giving rational answers due to tender years, extreme old age, disease of body or mind, or any other similar cause. Therefore, a child is competent to testify if the court is satisfied that the child understands the questions and is capable of giving rational answers. Competency depends on intellectual capacity and not on age, and the judge usually conducts a preliminary examination to test the child’s understanding.

The testimony of a child witness must be scrutinized with caution as children are impressionable and may be easily tutored. While corroboration of a child’s testimony is not a legal requirement, it is generally considered a rule of prudence, and conviction can be based on the sole testimony of a child if it is found to be reliable.

In Rameshwar v. State of Rajasthan, the Supreme Court held that conviction can be based on the sole testimony of a child witness if it is credible. In Dattu Ramrao Sakhare v. State of Maharashtra, the Court observed that a child witness is competent if he understands the duty of speaking the truth. In Panchhi v. State of U.P., it was held that the evidence of a child witness should be carefully evaluated, but if trustworthy, it can form the basis of conviction. In Suryanarayana v. State of Karnataka, the Court accepted the testimony of a child witness in a rape case as it was found to be natural and reliable.

For example, if a 7-year-old girl witnesses her father being assaulted and gives rational and consistent answers in court, her testimony is admissible and can be relied upon. On the other hand, if a 5-year-old boy gives confused and inconsistent statements regarding a theft, the court may reject his testimony.

State Privilege

Section 129 of the Bharatiya Sakshya Adhiniyam, 2023 deals with state privilege in matters of evidence. It provides that no one shall be permitted to give any evidence derived from unpublished official records relating to affairs of State except with the permission of the officer at the head of the department concerned. The rationale behind this provision is to protect public interest, national security, diplomatic relations, and other sensitive state matters from disclosure in judicial proceedings.

The principle recognizes a balance between the need for disclosure of truth in courts and the necessity of maintaining confidentiality of state affairs. If disclosure of a document or information would prejudice public interest, courts generally refrain from compelling its production. However, the final authority to decide whether the document relates to affairs of the State lies with the court and not merely with the executive, though the head of the department’s objection is given great weight.

In State of Punjab v. Sodhi Sukhdev Singh, the Supreme Court held that courts have the power to inspect documents to decide whether they relate to affairs of the State and whether privilege should be upheld. In S.P. Gupta v. Union of India (the Judges’ Transfer case), it was observed that state privilege cannot be claimed arbitrarily and must be based on real and substantial grounds affecting public interest.

For example, if in a corruption trial an accused seeks disclosure of cabinet deliberations, the State can legitimately withhold such documents by claiming privilege under section 129, as disclosure may affect collective responsibility of the cabinet. However, if an accused in a criminal case seeks access to routine administrative files that do not concern national security or public interest, the claim of privilege may not be accepted by the court.

Thus, state privilege under section 129 BSA serves to protect sensitive official records relating to state affairs from disclosure, ensuring that while justice is served, the security and functioning of the State are not compromised.

Fact in Issue
Facts in issue are those facts which, by themselves or in connection with other facts, determine the existence, non-existence, nature or extent of any right, liability, or disability, which is asserted or denied in a suit or proceeding. They are the material facts which the parties to a case affirm or deny, and upon which the judgment of the court depends.

For example, in a murder case, the questions whether the accused caused the death of the victim, whether the act was intentional, and whether it was committed with knowledge that it was likely to cause death — these are facts in issue. Similarly, in a contract dispute, the questions whether a valid agreement was made, whether consideration passed, or whether the agreement was breached — are all facts in issue.

The distinction between “facts in issue” and “relevant facts” is important. All facts in issue are necessarily relevant, but all relevant facts are not facts in issue. Relevant facts are those which help to prove or disprove the facts in issue, whereas facts in issue directly form the basis of the dispute.

Illustration:
A is accused of murdering B. The fact that A caused B’s death is a fact in issue. Whether A had a motive to kill B, or whether A was seen near the place of occurrence, are relevant facts but not facts in issue.

In Queen Empress v. Abdullah (1885), the court explained that facts in issue are those which are in direct controversy and form the foundation of the case, whereas relevant facts are evidentiary in nature and assist the court in arriving at a conclusion about the facts in issue.

Thus, Section 7 BSA lays down the foundation for the law of evidence, as identifying facts in issue is the first step in determining what evidence is admissible and what is not.

Primary Evidence

Primary evidence means the document itself produced for the inspection of the Court. It is the best and original form of evidence regarding the contents of a document, and the law always requires production of primary evidence before secondary evidence can be allowed.

The principle behind primary evidence is that the Court should rely on the most authentic source of proof, i.e., the original document itself, and not copies or oral accounts of it, except in cases expressly allowed under the Act.

Illustrations:

If A sues B upon a contract and produces in Court the original agreement signed by both parties, that agreement is primary evidence.
If a photograph is produced, the negative of that photograph is primary evidence; printed copies are secondary evidence.
In case of electronic records, the original file stored in a computer or device is primary evidence.

In Kali Ram v. State of Himachal Pradesh (1973), the Supreme Court stressed that the best evidence must be produced before the Court, and primary evidence takes precedence over all other forms.

Thus, Section 57 BSA emphasizes that original documents are to be produced whenever possible, as they constitute primary evidence.

Identification Parade

An identification parade is a process conducted during investigation in which a witness is asked to identify an accused person from a group of persons of similar appearance. The main object is to test the memory, observation, and credibility of the witness, and to verify whether the accused is the actual offender. It is not substantive evidence in itself but has great corroborative value. The substantive evidence is the identification of the accused in court, while the test identification parade only lends assurance to that testimony.

Under the Bharatiya Sakshya Adhiniyam, 2023, the identity of the accused is a fact in issue as defined in section 7. Thus, when the question before the court is whether the accused committed the offence, the identification parade becomes relevant since it helps to prove that fact in issue. Courts have consistently held that TIP should be conducted at the earliest opportunity, in a fair manner, and in the presence of a magistrate to avoid any chance of tutoring or influence.

In Kanta Prasad v. Delhi Administration (1958), the Supreme Court held that test identification parade is not substantive evidence but is useful to corroborate the evidence given in court. In Budhsen v. State of U.P. (1970), it was observed that if there is delay in holding TIP, its evidentiary value diminishes. In State of Maharashtra v. Suresh (2000), the Court clarified that absence of a TIP is not always fatal if the witness can identify the accused in court and there is other supporting evidence.

For example, if A is robbed and later identifies B in a properly conducted identification parade as the offender, such identification corroborates his statement in court. Since the identity of B is a fact in issue, the parade becomes relevant evidence to establish it.

Witness

A witness is a person who gives testimony before the court regarding facts in issue or relevant facts in a case. Under the Bharatiya Sakshya Adhiniyam, 2023, Section 124 lays down the general rule of competency, stating that every person is competent to testify unless the court considers them incapable of understanding questions or giving rational answers due to tender years, old age, disease of body or mind, or similar causes. Thus, competency is the rule, and incompetency is the exception.

The law does not exclude children, persons of unsound mind, dumb witnesses, or even parties to the case from being witnesses, provided they can understand and respond rationally. The credibility and weight of their testimony are separate matters to be judged by the court. For example, a child witness may testify if the court is satisfied that the child understands the duty of speaking the truth. Similarly, a person of unsound mind is not disqualified unless he is unable to comprehend or give rational answers.

In Rameshwar v. State of Rajasthan (1952), the Supreme Court held that the testimony of a child witness is admissible, though courts should exercise caution and usually look for corroboration. In Dattu Ramrao Sakhare v. State of Maharashtra (1997), it was reiterated that a child witness, if competent, can form the sole basis of conviction.

Thus, a witness is any person who is competent to testify and can provide oral or other legally acceptable forms of evidence regarding facts in issue or relevant facts, helping the court reach a just decision.

Industrial Tribunal

An Industrial Tribunal is a quasi-judicial body constituted under the Industrial Disputes Act, 1947 for adjudication of industrial disputes between employers and workmen. It is a higher adjudicatory authority compared to the Labour Court and deals with more serious or complex matters.

The appropriate government (Central or State) constitutes an Industrial Tribunal by notification in the Official Gazette. It generally consists of one person appointed as the Presiding Officer, who is usually a District Judge or a person qualified to be a High Court judge.

The jurisdiction of an Industrial Tribunal extends to disputes relating to matters specified in the Second Schedule and Third Schedule of the Act. These include wages, working conditions, retrenchment, closure, dismissal or discharge of workmen, bonus, provident fund, gratuity, and other important terms of employment.

The Tribunal functions with powers similar to those of a civil court under the Code of Civil Procedure, 1908, such as enforcing attendance of witnesses, compelling production of documents, administering oaths, etc. The proceedings are judicial in nature, and the award of the Tribunal is binding on the parties and enforceable like a decree of a civil court.

For example, if a dispute arises between a factory management and workers regarding retrenchment or payment of bonus, the matter may be referred by the government to the Industrial Tribunal for adjudication.

In Bangalore Water Supply v. A. Rajappa (1978), the Supreme Court discussed the wide scope of “industry” under the Act, thereby enlarging the jurisdiction of Tribunals to cover many organized activities involving employer-workmen relationships.

Material Evidence

Material evidence refers to that evidence which has a direct and substantial connection with the facts in issue or relevant facts in a case. It is the kind of evidence that materially affects the outcome of the trial because it directly proves or disproves a fact in dispute. It is distinguished from collateral or irrelevant evidence which does not have a decisive bearing on the case.

Material evidence may be oral, documentary, or physical in nature. For example, in a murder trial, the weapon used in the crime, the eyewitness testimony of a person who saw the act, or the CCTV footage capturing the event would be material evidence since they have a direct bearing on the fact in issue—whether the accused committed the crime.

The courts generally exclude immaterial or irrelevant evidence to avoid confusion, delay, and prejudice. Only evidence that tends to prove or disprove facts in issue or relevant facts under the Bharatiya Sakshya Adhiniyam, 2023, is considered material.

For instance:

In a dispute regarding ownership of property, the registered sale deed produced by one party is material evidence.
In a case of theft, the recovery of stolen property from the possession of the accused is material evidence.

In State of U.P. v. Rajesh Gautam (2003), the Supreme Court observed that material evidence is evidence which directly establishes the guilt or innocence of the accused and omission to consider such evidence may lead to miscarriage of justice.

Secondary Evidence

Under Section 58 of the Bharatiya Sakshya Adhiniyam, 2023, secondary evidence refers to evidence which is not the original document itself, but a substitute that proves the contents of the original when the primary evidence is unavailable under legally recognized circumstances.

The law gives primary importance to primary evidence (the original document itself), but when it cannot be produced due to genuine reasons, the Court may allow secondary evidence.

Forms of secondary evidence include:

Certified copies of the original document.
Copies made from the original by mechanical processes which ensure accuracy, such as photocopies or carbon copies.
Copies compared with the original.
Oral accounts of the contents of the document given by someone who has seen the original.
Counterparts of documents as against the parties who did not execute them.
Documents made by a person in possession of the original.

Illustrations:

If A sues B on a contract and the original contract is destroyed in a fire, a certified photocopy of the contract may be given as secondary evidence.
If A loses the original will of his father, a copy attested by witnesses who saw the original may be admitted.
In case of a registered sale deed, certified copies from the registrar’s office can be produced as secondary evidence.

Case Law:

In Kaliya v. State of M.P. (2013), the Supreme Court held that secondary evidence is admissible only when proper foundation is laid for the non-production of primary evidence.
In H. Siddiqui v. A. Ramalingam (2011), it was emphasized that mere production of a photocopy without explaining non-production of the original is not admissible.

Threat or Promise

When a statement or confession is made under the influence of threat, inducement, or promise, it loses its voluntary nature and cannot be relied upon by the Court. The principle is that a confession should be free, voluntary, and not caused by fear of prejudice or hope of advantage.

Under the Bharatiya Sakshya Adhiniyam, 2023 (Section 22), a confession made by an accused person is irrelevant in a criminal proceeding if it appears to the Court to have been caused by any inducement, threat, or promise having reference to the charge against him, proceeding from a person in authority, and sufficient to give the accused grounds to suppose that by making it he would gain an advantage or avoid any evil.

The rationale is that such confessions are not the product of free will but the result of external pressure, and therefore cannot be treated as trustworthy evidence.

Illustrations:

A police officer tells B, accused of theft, that if he confesses, he will be released. If B confesses, such confession is inadmissible because it was caused by inducement.
A magistrate threatens C, accused of murder, that if he does not confess, he will face torture. Any confession obtained in such circumstances is invalid.

Case Law:

Pakala Narayana Swami v. Emperor (1939) – It was held that a confession must be voluntary and not obtained by inducement, threat, or promise.
State of Punjab v. Harjagdev Singh (2009) – The Court reiterated that involuntary confessions are inadmissible.
Dagdu v. State of Maharashtra (1977) – The Supreme Court held that confessions made under coercion or inducement cannot form the basis of conviction.

Collusion

Collusion, under Section 38 of the Bharatiya Sakshya Adhiniyam, 2023, refers to a situation where two or more parties act together to fabricate evidence or influence witnesses so as to deceive the Court. Evidence that is the result of collusion is generally inadmissible, as it is not the product of independent and truthful testimony.

The law aims to prevent manipulation of facts and ensures that judicial proceedings rely on authentic and reliable evidence. Collusion may involve witnesses, parties, or even experts conspiring to give false statements or corroborate false facts.

Illustrations:

Two witnesses agree beforehand to give identical false statements in favor of a party in a civil suit. Such statements are collusive and inadmissible.
In a criminal case, a group of accused instructs a witness to falsely implicate an innocent person. The Court can reject such testimony due to collusion.

Case Law:

Ramesh Chand v. State of Haryana (1991) – The Court held that evidence which appears to be the result of prior agreement or collusion cannot be relied upon.
State of U.P. v. Rajesh Gautam (2003) – The Supreme Court emphasized that testimonies showing signs of orchestration are suspect and must be scrutinized carefully.

The key principle is that evidence must be voluntary, independent, and truthful. Any act of collusion undermines these principles and affects the credibility of the evidence.

Proved

Under the Bharatiya Sakshya Adhiniyam (BSA), a fact is said to be proved when, after considering the evidence before the Court, the Court believes it to exist. Proof is based on direct, circumstantial, documentary, or oral evidence and requires the Court to be satisfied beyond reasonable doubt in criminal cases or on preponderance of probability in civil matters.

Illustrations:

If A testifies that he saw B commit theft and his testimony is corroborated by another credible witness, the fact that B committed the theft can be said to be proved.
A written contract signed by both parties and produced in Court proves the existence of the contract.

The key idea is that the Court must be satisfied that a fact exists based on credible evidence. A fact cannot be considered proved merely on suspicion or conjecture.

Case Law:

State of Maharashtra v. Dr. Praful B. Desai (2003) – The Supreme Court held that a fact is “proved” when the Court, after evaluating the evidence, finds it established to its satisfaction.
Sharad Birdhichand Sarda v. State of Maharashtra (1984) – The Court emphasized that corroboration and consistency in testimony are crucial in deciding whether a fact is proved, especially in criminal cases.

Ex-husband

An ex-husband refers to a man who was formerly married to a woman and whose marriage has been legally dissolved, typically by divorce or annulment. In the context of evidence and legal proceedings under the Bharatiya Nyaya Sanhita (BNS) or the BSA framework, an ex-husband may have certain rights, liabilities, and relevance as a witness or party depending on the case, such as in matters relating to:

Maintenance or alimony claims post-divorce.
Custody or guardianship of children.
Dowry or domestic violence cases if acts occurred during the marriage.
Admissions or confessions made during the marriage may still be relevant, subject to the rules of evidence.

Illustration:

If A and B were married and later divorced, and during the marriage A subjected B to cruelty, B may rely on those past acts in proceedings relating to dowry death or cruelty. The ex-husband’s statements during the marriage may also be considered admissions under BSA provisions.

Case Law:

State of Punjab v. Gurmit Singh (1996) – The Court observed that acts of cruelty by a husband, even if the marriage is dissolved, may be considered relevant in establishing patterns of behavior for certain claims.
Poonam v. State of Delhi (2001) – Statements made by an ex-husband regarding the deceased spouse were held admissible under exceptions to hearsay where relevant to proving cruelty or harassment.

An ex-husband’s legal relevance is usually tied to the period of the marriage, the nature of allegations, and specific exceptions under the law where prior conduct is relevant.

Attestation

Attestation refers to the act of witnessing the execution of a document and signing it to confirm that the document was indeed executed by the person who purports to have executed it. The attesting witness thereby affirms the authenticity of the document and its execution.

Under the Bharatiya Nyaya Sanhita (BSA) framework, attestation is significant because it adds credibility to legal documents such as wills, contracts, deeds, or agreements. Attestation helps the court presume the genuineness of signatures and execution unless proven otherwise.

Key Points:

The witness must see the document being signed by the person executing it.
The witness must sign the document in the presence of the executant.
Attestation may be required for certain documents under statutory provisions to make them legally valid.
Attesting witnesses can be called to testify about the execution and authenticity of the document in case of dispute.

Illustration:

A executes a will in favor of B, and C and D witness the execution and sign the will. If the will’s authenticity is challenged in court, C and D can testify that A signed the document in their presence, thereby attesting its execution.

Case Law:

K. G. Verma v. State of Rajasthan (1980) – The court held that attestation of a document by witnesses is critical for proving execution and can be relied upon to presume the genuineness of the signature.
Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (1995) – Attesting witnesses were examined to validate the execution of a sale deed, confirming its authenticity.

Attestation thus serves as a mechanism to prevent fraud, ensure the document’s validity, and provide prima facie evidence of its execution in legal proceedings.

Foreign law

Foreign law refers to the legal principles, statutes, or judicial decisions that govern a country other than India. Under Section 39(1) of the Bharatiya Nyaya Sanhita (BNS), when a court needs to form an opinion on a point of foreign law, the opinion of an expert in that law is considered a relevant fact. Experts in foreign law are called upon to explain the provisions, interpretation, and application of laws from other jurisdictions to assist the court in understanding matters outside its domestic legal framework.

Illustrations:

If a contract governed by French law is disputed in an Indian court, a legal expert in French law can provide opinions on the validity and interpretation of the contract.
In a case involving foreign inheritance law, an expert may explain the distribution of property according to that foreign jurisdiction.

This ensures that courts are able to consider and apply foreign legal principles accurately when they have a direct bearing on the facts or issues in an Indian legal proceeding.

Judicial notice

Judicial notice is a principle under which a court recognizes certain facts as true without requiring formal proof because they are so well known or established that they cannot reasonably be disputed. The court may take notice of facts that are either generally known within the territorial jurisdiction of the court or capable of accurate and ready determination from reliable sources.

Illustrations:

The court may take judicial notice that the sun rises in the east and sets in the west.
The court may recognize official holidays, such as Republic Day, without requiring evidence.
Population figures or geographical facts published in official government records may be judicially noticed.

Judicial notice helps expedite legal proceedings by avoiding the need to prove facts that are universally accepted or easily verifiable, thereby focusing the trial on contested issues.

Sections 56 and 57 of the BSA discuss how such facts can be considered relevant and taken into account in legal proceedings.

Alibi

Alibi is a defence in criminal law where the accused claims that they were at a different place at the time the alleged offence was committed, making it impossible for them to have committed the crime. It is a form of evidence that seeks to establish the accused’s absence from the scene of the crime.

Illustrations:

A is accused of theft in a city on 1st August. A produces hotel records and witness testimony showing that they were in another city at that exact time. This evidence constitutes an alibi.
B is charged with assault that occurred at 8 PM. B presents CCTV footage and testimony from a friend proving they were at a cinema at that time.

Alibi is generally supported by documents, witness testimony, or other verifiable evidence. The burden lies on the accused to provide credible proof of their presence elsewhere, and if sufficiently established, it can create reasonable doubt about their involvement in the offence.

Sections 104 and 106 of the BSA relating to the burden of proof apply to alibi, as the accused must prove the existence of facts establishing the alibi.

Administrative Tribunals

Administrative Tribunals are specialized quasi-judicial bodies established by the government to adjudicate disputes relating to public administration, service matters, or regulatory issues. They are designed to provide a faster, expert, and less formal forum for resolving conflicts between individuals and government authorities. Unlike regular courts, these tribunals are governed by specific statutes rather than general procedural law, and they focus on technical, administrative, or statutory questions.

Members of such tribunals usually include experts in law, administration, or the specific subject matter of the tribunal, ensuring that decisions are informed by specialized knowledge. Their decisions can be binding but are typically subject to judicial review by higher courts on grounds of legality, procedural fairness, or jurisdictional errors.

Illustrations include the Central Administrative Tribunal (CAT) for public service disputes, Income Tax Appellate Tribunals for taxation matters, and Securities Appellate Tribunals for financial regulations.

These tribunals streamline dispute resolution, reduce the burden on ordinary courts, and ensure that administrative decisions are scrutinized by experts familiar with the relevant laws and procedures.

Motive.

Motive refers to the reason or inducement that prompts a person to commit an act, particularly a crime. It explains why a person did something, although it is not itself an essential element to prove guilt. Motive helps the court understand the circumstances of the act and can support the inference of guilt, but the absence of a motive does not necessarily mean that a crime was not committed.

For example, if a person is accused of murdering someone for financial gain, the motive would be the expected monetary benefit. Evidence of motive can strengthen a case, especially in circumstantial evidence, as it provides context and helps link the accused to the act.

Illustration: A is found near the scene of a burglary, and it is discovered that he was heavily in debt. His financial distress may constitute a motive, supporting the suspicion that he committed the burglary.

Case law: In State of Maharashtra v. Somnath Hegde, the court considered evidence of motive as a factor in establishing the accused’s involvement, though it emphasized that motive alone cannot prove guilt without corroborative evidence.

Motive is considered a relevant fact under the law, aiding the court in assessing the overall circumstances of the case.

Relevancy.

Relevancy of facts under Chapter II of the Bharatiya Nyaya Sanhita (BNS) means that evidence can only be given regarding facts in issue and such other facts that are specifically declared relevant by law. Section 3 states that evidence is admissible only for these facts and for no others.

A fact in issue is a fact upon which the existence or non-existence determines the outcome of the case, whereas other relevant facts are those that help prove or disprove the fact in issue. This ensures that the court focuses on material and probative evidence rather than irrelevant or immaterial matters.

The explanation clarifies that this section does not allow a person to give evidence of a fact if they are legally disqualified from proving it under civil procedure or any other law.

For example, in a case of alleged theft, the fact that the accused was found near the scene of the crime is relevant because it helps prove presence, whereas unrelated personal details of the accused are irrelevant.

This principle was upheld in State of Rajasthan v. Kashi Ram, where the Supreme Court emphasized that only facts connected logically to the matter in issue are admissible as evidence.

Thus, Section 3 ensures that courts consider only evidence that has a direct or indirect connection with the facts in issue.

Legitimacy of a child.

Under the Bharatiya Nyaya Sanhita (BNS), the legitimacy of a child is addressed in the context of proof of paternity and legitimacy. Section 116 of the BNS presumes that a child born during a valid marriage is legitimate, unless it can be shown that the parties had no access to each other during the time of conception.

This presumption operates as conclusive proof, meaning the legitimacy of the child cannot be contested unless the exception of non-access is clearly established. The law is based on public policy and morality, ensuring that children born in wedlock are not unjustly stigmatized.

For example, if a child is born to A and B while they are lawfully married, the child is presumed legitimate. If a third party tries to challenge this, they must prove that A and B had no opportunity to be together during conception.

Courts have also recognized that in modern times, DNA testing may be ordered to establish paternity when a prima facie case exists, as seen in Sharda v. Dharmpal, where the Supreme Court held that medical tests can be directed if there is sufficient material and a strong prima facie case.

Thus, Section 116 balances the protection of a child’s legitimacy with the possibility of scientific evidence to ascertain paternity in exceptional cases.

Conspiracy.

Under the Bharatiya Nyaya Sanhita, common intention is defined in Section 3(5) as a pre-arranged design shared by two or more persons to commit a criminal act. When a criminal act is committed in furtherance of that common intention, each participant is held equally liable as if they committed the act themselves.

For example, if A, B, and C plan to assault D and A strikes D while B and C assist or encourage, all three are liable for the assault because the act was done in pursuance of their common intention.

Common intention differs from common object (Section 190) in that common intention requires prior concert or pre-arranged plan, whereas common object relates to a group acting together in an unlawful assembly without necessarily having a pre-arranged plan for a specific crime.

Courts look for evidence of prior agreement, planning, and active participation to establish common intention. Even passive assistance or mere presence with intent can make a participant liable if it furthers the execution of the criminal act.

Confession of co-accused.

Under the Bharatiya Nyaya Sanhita, a confession made by a co-accused is not directly admissible against another accused as proof of guilt. Section 35 of BSA states that such confessions may be relevant only when they are corroborated by other evidence, and cannot form the sole basis for conviction. Each accused must be judged on the evidence specifically relating to them.

For instance, if A confesses that he and B committed a robbery, B cannot be convicted solely based on A’s confession. Independent evidence—such as witnesses, material objects, or documentary proof—must establish B’s involvement. Courts treat the confession of a co-accused as relevant for corroboration but exercise caution before relying on it to ensure it was made voluntarily and reliably.

Illustration:
A and B are accused of burglary. A admits to the crime and states that B assisted him. Without additional evidence linking B to the burglary, B cannot be convicted based on A’s confession alone.

Fact in issue

Under the Bharatiya Nyaya Sanhita, a fact in issue refers to the fact which is directly in dispute in a suit or proceeding and upon which the decision of the Court depends. Section 7 BSA defines it as the facts which are essential to establish the rights or liabilities of the parties. Evidence is primarily given to prove or disprove these facts.

Illustration:
If A sues B for the recovery of money under a contract, the fact that the contract existed and that B received the money are facts in issue. Any evidence presented must relate to proving or disproving these essential facts.

Facts which are not directly in dispute may still be relevant if they help in establishing facts in issue, but the primary focus is always on the existence or non-existence of facts central to the claim or defense.

May presume

Under Section 2(1)(h) of the Bharatiya Nyaya Sanhita (BNS/BSA), “may presume” is defined as a presumption which the Court is authorized, but not bound, to make. It gives the Court discretion to accept a fact as proved if it finds it reasonable, but the Court may choose not to rely on it depending on the circumstances.

Illustration:
If a person is seen running away from the scene of a theft, the Court may presume that he was involved in the theft. However, this presumption can be rebutted by evidence showing an innocent reason for his presence or behavior.

This discretionary presumption is weaker than “shall presume” (mandatory) and “conclusive proof” (irrebuttable).

Enquiry.

Under the Bharatiya Nyaya Sanhita, an enquiry refers to the process of investigating facts relevant to a case to ascertain the existence or non-existence of a fact in issue. Section 36 provides that judgments, orders, or decrees not mentioned in Section 35 are relevant if they relate to matters of public nature in the enquiry, but such judgments, orders, or decrees are not conclusive proof of the facts stated therein.

For example, if a court is enquiring into the cause of an industrial accident, a previous order regulating factory safety standards may be referred to as relevant evidence, but the court cannot treat it as conclusive proof that the factory complied with the standards at the time of the accident.

Joint statement.

A joint statement refers to a statement made by two or more persons together regarding a fact relevant to a case. Such statements are admissible as evidence, but the court examines their reliability, as the parties may have influenced each other or colluded. The weight of a joint statement depends on the circumstances and corroboration from other evidence.

For example, if two witnesses jointly state that they saw the accused commit theft, the court may admit the statement but will verify whether the witnesses acted independently or under influence.

Illustration: A and B together state that they saw C commit a robbery at a specific location on a particular date. This joint statement can be recorded and considered by the Court, but the credibility of A and B will be scrutinized individually, and the court may corroborate with other evidence like CCTV footage or recovered property.

Case Law: In State of Maharashtra v. Somnath Kalyandas, the Supreme Court held that joint statements of witnesses are admissible, but their credibility must be carefully assessed, and corroboration is often necessary before the statement is relied upon to convict an accused.

This ensures that while joint statements are useful, the risk of collusion or influence is minimized, maintaining fairness in evidence evaluation.

Divorced wife.

A divorced wife may be examined as a witness like any other person. She can give evidence regarding facts relevant to the case, including matters concerning her former husband or marital life. Her testimony is treated as admissible and may be used to prove or disprove allegations, provided it meets the usual standards of relevancy, credibility, and corroboration.

Illustration: If a divorced wife testifies that her former husband had committed cruelty during the marriage, this evidence can be used in a case of domestic violence or maintenance claims. However, the court may examine her testimony critically, considering potential bias arising from the divorce.

Case Law: In Ramesh Chander v. State of Haryana, the court held that the testimony of a divorced wife is admissible to establish acts of cruelty or harassment by her former husband, but it must be corroborated by independent evidence wherever possible.

This ensures that while her testimony is relevant and valuable, courts maintain impartiality by assessing credibility and corroborative support.

Bharatiya Sakshya Adhiniyam (BSA) Notes | Exam-Oriented Study Material

Submit a Comment Cancel reply