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Bharatiya Sakshya Adhiniyam Lecture Notes

The Bharatiya Sakshya Adhiniyam 2023 is a legislative reform aimed at modernizing the Indian legal framework regarding the admissibility and evaluation of evidence in judicial proceedings. It replaces the Indian Evidence Act of 1872 and incorporates contemporary technological advancements, including electronic and digital evidence. The syllabus covers various modules on evidence law, including historical evolution, types of evidence, burden of proof, and examination of witnesses.

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Bharatiya Sakshya Adhiniyam Lecture Notes

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The Central Law College

BHARATIYA SAKSHYA ADHINIYAM (FA5F) LECTURE NOTES

PREPARED BY M. SANTHA KUMARI AND S.E. RAHUL.

BHARATIYA SAKSHYA ADHINIYAM

SYLLABUS

Module I: Introduction to Evidence Law

a) Historical Evolution of the Law of Evidence- Scope, Object and Applicability of Bharatiya Sakshya
Adhiniyam, 2023 Comparative analysis of BSA and IEA - Indian Law of Evidence and English Law of
Evidence
b) Constitutional Perspective of Evidence-Golden Rule Evidence- Kinds of Evidence
c) Definition Facts-Facts in Issue- Presume- Relevant -Distinguish Between Relevancy and
Admissibility
d) Relevancy of Facts - Closely connected facts-Res Gestao -Occasion, Cause and Effect etc. -Motive,
Preparation and Conduct- Facts Necessary to Explain or Introduce Relevant Facts
e) Proof of Conspiracy-When facts not otherwise relevant become relevant

Module II: Admission-Confession - Dying Declaration

a) Admission- An Exception to Hearsay Rule-Requisites of an Admission-Party to the Proceedings-
Kinds of Admission-Admission Regarding State of Mind or Body
b) Oral Admission as to Content of Documents -Admission in Civil Cases- Evidentiary Value of
Admission
c) Confession-Conditions as to Confession -Kinds of Confession -Confession to Police Retracted
Confession-Joint Trial Distinction Between Admission And Confession-Evidentiary Value of Confession
d) Dying Declaration-English and Indian Law Difference On Dying Declaration Essential Conditions for
the Applicability of Dying Declaration -FIR as Dying Declaration
e) Who can record a Dying Declaration -Multiple Dying Declarations -Evidentiary Value of a Dying
Declaration-Difference Between a Dying Declaration and a Dying Deposition

Module III: Expert Evidence - Relevancy of Character

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a) Opinion of Third Person When Relevant-Expert Witness- Value of Expert Witness.

b) Expert Opinion: Corroboration- Facts Bearing Upon Expert-Opinion.
c) Opinion as to Handwriting & Signature.
d) Opinion as to Existence of General Custom or Right Opinion as to Usage, Tenets- Opinion on
Relationship-Grounds of opinion.
e) Character When Relevant- Relevancy of Character in Civil and Criminal Cases.

Module IV: Of Proof- Burden of Proof

a) Facts which need not be proved Modes of Proof Oral Evidence- Hearsay Evidence.
b) Exceptions to the Rule of Hearsay Evidence Hearsay and Circumstantial Evidence Difference
Between Direct and Hearsay Evidence.
c) Documentary Evidence Primary and Secondary Evidence Admissibility of electronic Records Public
and Private Documents Presumptions as to the Documents - Exclusion of Oral Evidence by Documentary
Evidence.
d) Burden of Proof Burden and Proof Distinction Burden of Proof and Onus Probandi.
e) Proof of Fact on Which Evidence Becomes Admissible - Burden of Proving Exception in Criminal
Cases.

Module V: Presumption-Estoppel
a) Presumption - Kinds of Presumption - Proof and Presumption - Presumption as to Document
Presumption as to Survivorship Presumption as to Death Presumption of Certain offences.
b) Presumption of Legitimacy Presumption in Suicide Cases Presumption of Existence of Certain Facts -
Presumption in Prosecution of Rape Cases.
c) Doctrine of Estoppel Kinds of Estoppel - Essential Conditions for Estoppel - Promissory Estoppel -
Exception to the Doctrine of Estoppel.
d) Estoppel by Tenants and Licensee - Estoppel of Acceptor of Bill of Exchange, Bailee and Licensee.
e) Distinction Between Estoppel and Res Judicata - Distinction Between Estoppel and Waiver.
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PREPARED BY M. SANTHA KUMARI AND S.E. RAHUL.

Module VI: Witnesses Examination of Witness

a) Witnesses - Categories of Witnesses - Dumb Witness - Evidence of Prosecutix in Rape Case
Interested Witness - Competency of Husband and wife as witnesses in certain cases - Judges and Magistrate as
Witness
b) Privileged Communications - Professional Communication - Order of Production and examination of
Witness - Judge to Decide Admissibility of Evidence
c) Examination in Chief Cross Examination Re-Examination Distinction Between Examination in Chief,
Cross Examination and Re-Examination
d) Order of Examination Witnesses to character - Leading Questions Direction of Re Examination -
Cross Examination of person called to produce as document - Question by party to his own witness
e) Question tending to Corroboration Former Statement as Corroboration- Refreshing Memory.

MODULE I – INTRODUCTION TO EVIDENCE LAW

HISTORICAL EVOLUTION OF LAW OF EVIDENCE
The term “law” is used in different senses. In the plain sense, it means any rule, regulation or canon, a dogma or
a norm to which the human actions are required to conform. The entire corpus juris (body of laws) is broadly
classified into two categories:
 Substantive laws, and,
 Adjective laws.
The law of evidence doesn’t come under the purview of substantive or procedural law, but under ‘adjective
law’, which defines the pleading and procedure via which substantive laws are brought into practice. It is the
machinery by which substantive laws are set and kept in motion. So, it can be said that the law of evidence
deals with rights, as well as, procedures.
The general meaning of the term “evidence” is “the available body of facts or information indicating whether a
belief or proposition is true or valid”. But, as per the interpretation of Section 3 of the Indian Evidence Act,
1872, evidence means and includes:
 All statements which the court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence.
 All documents [including electronics record] produced for the inspection of the court.
Such documents are called ‘documentary evidence.’
HISTORICAL BACKGROUND
In order to trace the history of the law of evidence in our country, we have to study three different periods:
 The ancient Hindu period;
 The ancient Muslim period; and
 The British period.
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PREPARED BY M. SANTHA KUMARI AND S.E. RAHUL.

Ancient Hindu period:

The sources of information relating to the law of evidence prevailing in Hindu India emanate from the
Hindu Dharmashastras.
According to Hindu dharmashastras, the purpose of any trail is the desire to ascertain the truth. The emphasized
that a judge by using his skill should extricate the deceit like a physician taking out from the body an iron dart
with the help of the surgical instruments.
Vasista recognisewd three types of evidence:
 Lekhya (documentary evidence),
 Sakshi (witnesses), and
 Bukhthi (possession).
Ancient Muslim period:
In regard to the law of evidence discussed in the book “Muslim Jurisprudence” written by the sir Abdul Rahim.
The Mohammendan law gives deals with evidence under the heads of oral and documentary. Oral evidence is
further sub-classified into direct and hearsay evidence as in present day.
In the British Era:
In British India, the presidency courts by virtue of a royal charter establish in Bombay, Madras and Calcutta
were following English rules of the law of evidence. In mofussil courts, outside the presidency towns, there
were no definite rules relating to the law of evidence. The courts enjoyed unfettered liberty in the matter of
admission of evidence. The entire administration of justice in the mofussil courts, in the absence of any definite
rules regarding the law of evidence, was in total chaos.
There was a dire necessity for the codification of the rules of law. In 1835 the first attempt was made to codify
the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about eleven enactments were passed
dealing with the law of evidence. But all these enactments were found inadequate.
In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne. He submitted the
draft, which was later found unsuitable to Indian conditions. Later in the year 1870, this task of codification of
the rules of law of evidence was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft and it
was referred to the select committee and also to High Courts and members of Bar to elicit the opinion, and, after
gathering opinion, the draft was placed before the legislature and it was enacted. And at last, “The evidence
Act” came in to force on 1st September, 1872.
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Prior to Independence, there were as many as 600 princely States in India, which were not within the
jurisdiction of the British system of justice. Each of these states had its own rules of law of evidence. But by
and large, followed the Indian evidence Act 1872. After independence, there was a merger of princely states into
the Indian Union. Both the substantive as well procedural laws have since been made uniformly applicable to all
states, whether British province or native States. So much so, the law of evidence is now applicable to all states
constituting the Union of India.
It has 11 Chapters and 167 sections and came into force on 1st September 1872and applies to all over India.
Evidence, under the said act has been classified into different categories such as:
 Oral Evidence
 Documentary Evidence
 Primary Evidence
 Secondary Evidence
 Real Evidence
 Hearsay Evidence
 Direct Evidence
 Circumstantial Evidence
 Judicial and Non-Judicial Evidence
 Prima Facie Evidence
OBJECT OF THE STUDY OF THE LAW OF EVIDENCE
Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts
have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to
authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities. Further,
the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed.
Law related to evidence and proof is nothing but rules that must be observed in particular situations before
certain forums. If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the
allegations in the plaint and the existence of certain facts may be called into question. Then the parties or their
witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not.
Interpretation of agreed facts is a rarity and in most cases the existence or non - existence of facts as to be
shown and therefore, the law of evidence plays a very important role.
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lustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a
breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the
existence of such a contract is proved may add.
The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and
hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a
hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve
any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence
Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law
of evidence have to be strong so that the foundation of the administration of justice remains intact and strong. It
can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in
admitting evidence.
Scope, object and applicability of Bharatiya Sakshya Adhiniyam 2023
About the Bharatiya Sakshya Adhiniyam 2023
The Bharatiya Sakshya Adhiniyam 2023, is a significant legislative reform aimed at replacing the Indian
Evidence Act of 1872. This new Act modernizes the Indian legal framework for the admissibility and evaluation
of evidence in judicial proceedings. It incorporates contemporary technological advancements, recognizing
electronic and digital evidence. It aligns with current legal standards to address the complexities of the modern
judicial landscape. The Act also seeks to rectify inconsistencies and provide clearer guidelines on evidence
admission. It enhances protections against custodial injustices and streamlines the legal process to ensure
fairness and efficiency.
The Bharatiya Sakshya Adhiniyam 2023, is a landmark legislative effort aimed at overhauling and
modernizing India’s evidence laws. It replaces the venerable but outdated Indian Evidence Act, 1872. This new
Act is designed to address the challenges and complexities of the 21st-century legal landscape. It incorporates
advancements in technology, aligning with contemporary legal reforms, and addressing long standing issues
within the system.
Modification in 23 Sections, 5 repealed sections, and 1 newly added section gave birth to the NEWLY
BSA,2023.
For understanding, the following terms/words may be considered to me:
Bharatiya = India/Indian
Sakshya = Evidence
Adhinyam = Act
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Sanhita = Code
The following provisions from IEA have been deleted from BSA:
 Section 3 (j): India
 Section 82: Presumption as to document admissible in England without proof of seal or signature
 Section 88: Presumption as to telegraphic messages
 Section 113: Proof of cession of territory
 Section 166: Power of jury or assessors to put questions

Background of BSA
The Indian Evidence Act, 1872 (IEA), is the primary legislation governing the admissibility of evidence in
Indian courts. It is applicable to both civil and criminal proceedings. Over the years, the IEA has been amended
to align with contemporary legal practices and technological advancements. For instance, the amendment in
2000 introduced the admissibility of electronic records as secondary evidence, recognizing the growing reliance
on digital information. In 2013, the Act was further amended to address issues related to consent in rape cases.
It shifted the burden of proof to the accused to show that consent was indeed given. It established that the
victim’s character and sexual history are irrelevant when determining consent.
The Law Commission has reviewed the IEA on several occasions, recommending changes on various critical
issues. This includes custodial violence, the admissibility of police confessions, and the protocols for cross-
examination. These recommendations aim to modernize and improve the applicability of the Act. The Bharatiya
Sakshya Adhiniyam 2023, which seeks to replace the IEA, was introduced in the Lok Sabha on August 11,
2023. The Standing Committee on Home Affairs has conducted an examination of the Bill to provide a detailed
assessment.
Scope and Object of Bharatiya Sakshya Adhiniyam 2023
The Indian Evidence Act of 1872 has become outdated in the context of modern legal and technological
advancements. The new Bharatiya Sakshya Adhiniyam 2023 caters to contemporary legal needs. This includes
the treatment of digital evidence and modern technology.
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o Modernization and Technological Advancements: The Bharatiya Sakshya Adhiniyam 2023, aims to
modernize the legal framework to include electronic records and digital evidence. It ensures that they are
legally recognized and appropriately handled in judicial proceedings.
o Consistency with Criminal Reforms: Over time, various amendments have been made to the IEA to
align with criminal law reforms. However, these changes have led to a fragmented and inconsistent
framework. The new Bill integrates these reforms cohesively, addressing issues such as the burden of
proof in rape cases and the irrelevance of the victim’s character in determining consent.
o Addressing Custodial Injustices: The IEA inadequately safeguards against custodial violence and
coercion. The new Bill introduces stricter guidelines to ensure that evidence obtained through coercion
is inadmissible. It thus protects the rights of the accused and enhances the integrity of the judicial
process.
o Enhanced Clarity and Efficacy in Evidence Admission: The Bharatiya Sakshya Adhiniyam 2023,
aims to clarify the rules on admissibility of evidence, including electronic records. This removes
ambiguity and ensures a consistent approach to handling primary and secondary evidence. It thereby
improves the effectiveness of legal proceedings.
Highlights of BSA
 It provides that evidence includes any information given electronically which would permit appearance
of witness, accused, experts and victims through electronic means.
 It provides the admissibility of an electronic or digital record having the same legal effect, validity and
enforceability as any other document.
 It seeks to expand the scope of secondary evidence.
 It seeks to put limits on the facts which are admissible and its certification as suchin the Courts.
 It includes electronic and digital signature.
 In BSA the references to colonial terms, such as, ‘Parliament of the United Kingdom’, ‘Provincial Act’,
‘London Gazette’, ‘Commonwealth’, ‘Privy Council’, ‘Queen’s Printer’, ‘Her Majesty’, colonial
proclamations and orders have been removed. Archaic terms like ‘vakil’, ‘pleader’, ‘barrister’ have been
replaced with ‘advocate’. Terms like ‘lunatic’ have also been replaced with more sensitive
terminologies, like ‘person of unsound mind’.
Applicability of BSA 2023
The Bharatiya Sakshya Adhiniyam 2023 introduces several significant updates compared to the Indian
Evidence Act 1872, including the removal of colonial and archaic terms, the inclusion of digital evidence
generated outside India, and an expanded application to courts-martial. Additionally, it incorporates provisions
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for judicial notice of international treaties and decisions, ensuring a more modern and comprehensive approach
to evidence law.
Removal of Colonial and Archaic Terms
The Bharatiya Sakshya Adhiniyam 2023 removes outdated colonial references in the Indian Evidence
Act 1872 such as ‘Parliament of the United Kingdom,’ ‘Provincial Act,’ and ‘London Gazette.’ Additionally,
archaic terms like ‘vakil,’ ‘pleader,’ and ‘barrister’ have been replaced with ‘advocate,’ and insensitive terms
like ‘lunatic’ have been updated to ‘person of unsound mind.’
Territorial Application
Territorial Application of the BSA: Section 1 of the Indian Evidence Act (IEA) specified the
application of the act to the entire territory of India. However, Section 1 of the Bharatiya Suraksha Adhiniyam
(BSA) lacks this provision. This omission is likely intended to facilitate the admissibility of digital evidence
originating from locations outside India.
Application to Courts-Martial
The Bharatiya Sakshya Adhiniyam 2023 extends its applicability to courts-martial convened under the
Army Act, Naval Discipline Act, and the Air Force Act, which was not covered under the Indian Evidence Act
1872.
COMPARATIVE ANALYSIS OF BSA AND INDIAN EVIDENCE ACT
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a significant shift in India’s evidentiary law, replacing
the Indian Evidence Act, 1872 (IEA). This new legislation is designed to address the evolving needs of the
judicial system, integrating modern technological advancements and reflecting a more inclusive approach.
Document- Section 2(d), BSA (Sec 3(e)IEA)- “ “document” means any matter expressed or described or
otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more
than one of those means, intended to be used, or which may be used, for the purpose of recording that matter
and includes electronic and digital records.”
INDIAN
EVIDEN
TOPIC BHARATIYA SAKSHYA ADHINIYAM, 2023
CE ACT,
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specific Expanded to any field requiring
Expert
fields
Opinion
(Section expert analysis (Section 39)
45)

Archaic
terms like
Language Modern, inclusive terms like “a person of unsound mind”
“lunatic”
Use (Section 124)
(Section
118)

Did not
Definition
include
of Includes “electronic and digital records” (Section 2(d))
digital
Documents
records

Definition
Limited Expanded to include “statements given electronically” (Section
of
scope 2(e))
Evidence

Production and effect of evidence

Electronic
Lacked Sections 104–170
Evidence
clear Explicitly admissible (Section 61)
Admissibili
guidelines
ty

Estoppel
Estoppel limited to
Extended to post-tenancy period (Section 122)
Provisions the duration
of tenancy Classification of BSA

No specific
provision
Judicial Judicial notice of international treaties and agreements (Section
for
Notice 52) Relevancy of Facts
internationa
l treaties Sections 3–50

Secondary Narrowly
Expanded to include oral and written admissions (Section 58)
Evidence defined
Facts which need not
Ministerial be proved Sections 51–
No specific 103 from court production (Section 165 – Proviso)
Communic Protected
protection
ations
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CONSTITUTIONAL PERSPECTIVE OF EVIDENCE

Clause (3) of Article 20 of the Indian Constitution, 1950 provides that "No person accused of any
offence shall be compelled to be a witness against himself." This principle is espoused on the maxim "nemo
teneteur prodre accussare seipsum", which essentially means "NO MAN IS BOUND TO ACCUSE HIMSELF."
The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial
compulsion for people who are accused of an offence and are compelled to be a witness against themselves. The
provision borrows from the Fifth Amendment of the American Constitution which lays down that, "No person
shall be compelled in any criminal case to be a witness against himself", same as mentioned in the Constitution
of India embodying the principles of both English and American Jurisprudence. This libertarian provision can
be connected to an essential feature of the Indian Penal Code based on the lines of Common Law that, "an
accused is innocent until proven guilty" and the burden is on the prosecution to establish the guilt of the a
accused; and that the accused has a right to t remain silent which is subject to his much broader right, against
self-incrimination.
The tendency of Indian legal system manifests scepticism of the police system. This is the reason
confessions of an accused is only admissible if recorded by a Magistrate in accordance with an elaborate
procedure to ensure that they are made voluntarily. Protection is also accorded by the provisions of The Indian
Evidence Act. This protection is available to every person injuring not only individuals but also companies and
incorporated bodies.
This clause gives protection only if the following ingredients are present:
It is a protection available to a person accused of an offence;
It is a protection against compulsion to be a witness against oneself; and
It is a protection against such "Compulsion" as resulting in his giving evidence against himself.
Person accused of an offence
A person accused of an offence means a "person against whom a formal accusation relating to the commission
of an offence has been levelled, which may result in prosecution". Formal accusation in India can be brought by
lodging of an F.I.R or a formal complaint, to a competent authority against the particular individual accusing
him for the commission of the crime.
It is only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that
person with its protective umbrella against testimonial compulsion. It is imperative to note that, "a person
cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused
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thereafter." Article 20 (3) does not apply to departmental inquiries into allegations against a government servant,
since there is no accusation of any offence within the meaning of Article 20 (3).
Protection against compulsion to be a witness
(The protection contained in Article 20(3) is against compulsion "to be a witness" against oneself. In M.P
Sharma v. Satish Chandra, the Supreme Court gave a wide interpretation of the expression "to be a witness"
which was inclusive of oral, documentary and testimonial evidence. The Court also held that the protection not
only covered testimonial compulsion in the Court room but also included compelled testimony previously
obtained from him
To be a witness-- Furnishing Evidence
In M.P Sharma's case it was held that, Article 20 (3) was directed against self-incrimination by the accused
person. Self-incrimination must mean conveying information based upon the personal knowledge of the person
giving the information and cannot include merely the mechanical process of producing documents in the Court.
Exception
It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings or
exposing body for the purpose of identification are not covered by the expression 'to be a witness' under Article
20(3).
The Court distinguished 'to be a witness' from 'furnishing evidence', and interpreted the former to mean
imparting knowledge in respect of reševant facts by an oral statement or statement in writing made or given in
court or otherwise. The latter included production of documents or giving materials which might be relevant at a
trial to determine the guilt or innocence of the accused.
Analysis
Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal
knowledge of the person giving information. But where an accused is compelled to produce a document in his
possession which is not based on the personal knowledge of the accused, in such a case there is no violation of
Article 20(3).
Compulsion to give evidence "against himself"
The protection under Article 20(3) is available only against compulsion of the accused to give evidence against
himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces documentary
evidence, incriminatory in nature, Article 20(3) would not be attracted. The term compulsion under Article
20(3) means 'duress'. Thus, compulsion may take many forms. If an accused is beaten, starved, tortured,
harassed etc. to extract a confession out of him/her then protection under Article 20(3) can be sought A case at
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hand would be Mohd. Dastagir v. State of Madras where the appellant went to the residence of the Deputy
Superintendent of Police and handed him an envelope. On opening the envelope, the DSP found cash in it,
which meant that the appellant had come to offer bribe to the officer. The DSP refused it and asked the appellant
to place the envelope and the notes on the table, and he did as told, after which the cash was seized by the
Police. In this case the Supreme Court held that, the accused wasn't compelled to produce the currency notes as
no duress was applied on him. More over the appellant wasn't even an accused at the time the currency notes
were seized from him. Hence in this case the scope of Evidence includes everything that is used to determine or
demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are
either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion's truth.
Evidence is the currency by which one fulfils the burden of proof.

Golden rules of evidence

The Law of Evidence is an integral part of every branch of the judicial system, regardless of nation, implying
that the position of evidence is a crucial statute in any country. The law of evidence is based on the
administration of justice, which is a procedural law. However, in India, the enactment of the Indian Evidence
Act has changed our judicial system, since there were previously no codified laws relating to evidence. The
Indian Evidence Act has enriched our judicial system by providing rules and regulations for determining the
evidence.
The case of Sharad Birdhichand S v State of Maharashtra (1984) SC has become the landmark
judgement of Evidence Law which always helps in the interpretation of Circumstantial Evidence, Hearsay
Evidence, Dying Declaration and Relevancy of the Evidences.
SC introduced Panchsheel Test (five golden rules) for the Relevancy of the Evidences which will be
applied in such type of cases where Direct Evidences are not available. They are-
 The circumstances from which the guilt is to be drawn must or should be fully established.
 The facts established should only be consistent with the guilt of the accused and there should not be any
explainable hypothesis other than the guilt of the accused.
 The circumstances should have a conclusive nature.
 Circumstances should exclude every other hypothesis.
 The chain of evidence must be so complete that it does not leave any ground in favour of the innocence
of the accused.
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Different Forms of Evidence

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(a) Oral Evidence-All those statements which the court permits or expects the witnesses to make in his
presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the
witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it
goes straight to establish the main fact in issue.
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(b) Documentary Evidence- All those documents which are presented in the court for inspection such
documents are called documentary evidences. In a case like this it is the documentary evidence that would show
the actual attitude of the parties and their consciousness regarding the custom is more important than any oral
evidence.
(c) Primary Evidence- Primary Evidence is the Top-Most class of evidences. It is that proof which in any
possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the
production of an original document for inspection by the court. It means the document itself produced for the
inspection of the court. In Lucas v. Williams Privy Council held "Primary Evidence is evidence which the law
requires to be given first and secondary evidence is the evidence which may be given in the absence of that
better evidence when a proper explanation of its absence has been given."
(d) Secondary Evidence-Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary
position. It is such evidence that on the presentation of which it is felt that superior evidence yet remains to be
produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as
secondary evidence. If in place of primary evidence secondary evidence is admitted without any objection at the
proper time then the parties are precluded from raising the question that the document has not been proved by
primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by
Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary
evidence or by secondary evidence."
(e) Real Evidence-Real Evidence means real or material evidence. Real evidence of a fact is brought to the
knowledge of the court by inspection of a physical object and not by information derived from a witness or a
document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by
voluntary sign. For example, Contempt of Court, Conduct of the witness, behavior of the parties, the local
inspection by the court. It can also be called as the most satisfactory witness.
(f) Hearsay Evidence- Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness
which he has not seen either heard. Sometime it implies the saving of something which a person
Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness which he has not
seen either heard. Sometime it implies the saying of something which a person has heard others say. In Lim
Yam Yong v. Lam Choon & Co. The Hon'ble Bombay High Court adjudged "Hearsay Evidence which ought to
have been rejected as irrelevant does not become admissible as against a party merely because his council fails
to take objection when the evidence is tendered." So finally, we can assert that Hearsay Evidence is that
evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and
has come to know about it through some third person. There is no bar to receive hearsay evidence provided it
has reasonable nexus and credibility. When a piece of evidence is such that there is no prima facie assurance of
its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has
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therefore, to be excluded whether or not the case in which its use comes in for question is governed by the
Evidence Act.
(g) Judicial Evidence- Evidence received by court of justice in proof or disproof of facts before them is called
judicial evidence. The confession made by the accused in the court is also included in judicial evidence.
Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial
Evidence.
(h) Non-Judicial Evidence- Any confession made by the accused outside the court in the presence of any
person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of
Judicial Evidence.
(i) Direct Evidence- Evidence is either direct or indirect Direct Evidence is that evidence which is very
important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and
witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person
who had actually seen the crime being committed and has described the offence) The evidence of the witness in
Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only
is called circumstantial evidence of, complicity and not direct evidence in the strict sense.
(j) Circumstantial Evidence or Indirect Evidence- There is no difference between circumstantial
Evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by
providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts
than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause
and effect that it leads to a satisfactor conclusion.
In Hanumant v. State of Madhya Pradesh, The Hon'ble Supreme Court Observed, "In dealing with
circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to
remember that in cases where the evidence is of a circumstantial nature the circumstances from which the
conclusion of guilt is to be drawn should in the first instance, be fully established and all the facts so established
should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of
evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence
of the accused and it must be such as to show that within all human probability the act must have been done by
the accused."
In the case of Ashok Kumar v. State of Madhya Pradesh, the Hon'ble Supreme Court held-
(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly
established.
(2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused.
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(3) The circumstances, taken cumulatively should from a chain so complete that there is no escape from the
conclusion that within all human probability the crime was committed by the accused and none else.
(4) The Circumstantial Evidence in order to sustain conviction must be complete and incapable of explanation
on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent
with the guilt of the accused but should be inconsistent with his innocence.
Different Kinds of Witnesses - The witness can be divided mainly into two categories-
(1) Eye Witness
(2) Circumstantial Witness
Witness can be further divided into following kinds-
(1) Prosecution Witness- Prosecution is the institution or commencement of criminal proceeding and the
process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final
judgment on behalf of the state or government by indictment or information. A prosecution exists until
terminated in the final judgment of the court to write the sentence, discharge or acquittal, a witness which
appears on behalf of the prosecution side is known as a Prosecution Witness.
(2) Defense Witness- Defense side in a criminal proceeding is opposing or denial of the truth or validity of the
prosecutor's complaint, the proceedings by a defendant or accused party or his legal agents for defending
himself. A witness summoned on the request of the defending party is known as a Defense Witness.
(3) Expert Witness- An 'export' is not a 'witness' of fact. His evidence is really of an advisory character. The
duty of an 'expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of
the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to
the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and
tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends
on the reasons stated in support of his conclusions and the data furnished which form the basis of his
conclusions.
(4) Eye Witness-A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is
a person who saw the act, fact or transaction to which he testifies. An eye witness must be competent (legally
fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the event occurred will
be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence.
Identification of an accused in Court by an 'Eye witness' is a serious matter and the chances of a false
identification are very high. Where a case hangs on the evidence of a single eye witness it may be enough to
sustain the conviction given sterling testimony of a competent, honest man although
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5) Hostile Witness-The witness who makes statements adverse to the party calling and examining him and who
may with the permission of the court, be cross examined by that party. Now it is true that in Coles v. Coles, and
it may be in other cases, a hostile witness has been described as a witness who from the manner in which he
gives his evidence shows that he is not desirous of telling the truth to the Court. This is not a very good-
definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right
of 'cross-examination' even by committing itself to the word 'hostile'.
This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the
Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile
witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no
legal bar to base conviction upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra the
Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of
the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defense may be accepted.
Thus we can finally conclude that in order to provide justice Evidence and witnesses are very necessary
and they hold a very important place in the Law. With the help of Evidence, the judge reaches a verdict. The
evidence heard by the court is the most important factor in determining whether the judgment will be in favour
of Prosecution side or Défense side.
6) Child witness
In State v Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) it was observed that the burden of proving incompetence
is on the party opposing the witness. Courts consider 5 factors when determining competency of a child witness.
Absence of any of them renders the child incompetent to testify. They are
(1) an understanding of the obligation to speak the truth on the witness stand;
(2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate
impression of it;
(3) a memory sufficient to retain an independent recollection of the occurrence
c) Definition Facts-Facts in Issue- Presume- Relevant -Distinguish Between Relevancy and Admissibility

TYPES OF WITNESSES

Eye Expert Chance Witness Hostile Witness

Witness Witness
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DEFINITIONS Sec 2
Sec 2. (1) (a) "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised
to take evidence
(b) "conclusive proof" means 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
(c) "disproved" in relation to a fact, means when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it does not exist
(d) "document" means any matter expressed or described or otherwise recorded upon any substance by means
of letters, figures or marks or any other means or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter and includes electronic and digital records.
Illustrations. (i) A writing is a document. (ii) Words printed, lithographed or photographed are documents. (iii)
A map or plan is a document. (iv) An inscription on a metal plate or stone is a document. (v) A caricature is a
document. (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone,
messages, websites, locational evidence and voice mail messages stored on digital devices are documents.
(e) "evidence" means and includes— (i) all statements including statements given electronically which the
Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such
statements are called oral evidence; (ii) all documents including electronic or digital records produced for the
inspection of the Court and such documents are called documentary evidence;
(f) "fact" means and includes - (i) anything, state of things, or relation of things, capable of being perceived by
the senses; (ii) any mental condition of which any person is conscious. Illustrations. (i) That there are certain
objects arranged in a certain order in a certain place, is a fact. (ii) That a person heard or saw something, is a
fact. (iii) That a person said certain words, is a fact.
(g) "facts in issue" means and includes any fact from which, either by itself or in connection with other facts,
the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or
proceeding, necessarily follows.
Explanation - Whenever, under the provisions of the law for the time being in force relating to civil procedure,
any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.
(h) "may presume" Whenever it is provided by this Adhiniyam that the Court may presume a fact, it may either
regard such fact as proved, unless and until it is disproved or may call for proof of it.
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(i) "not proved" A fact is said to be not proved when it is neither proved nor disproved
(j) "proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes
it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists;
(k) "relevant" A fact is said to be relevant to another when it is connected with the other in any of the ways
referred to in the provisions of this Adhiniyam relating to the relevancy of facts
(l) "shall presume" Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard
such fact as proved, unless and until it is disproved.
Relevancy
Relevancy in the context of legal evidence refers to the significance and connection of a particular piece of
information or evidence to the issues at hand in a legal case. The central idea is that relevant evidence makes the
existence of a fact more or less probable than it would be without that evidence. While the Indian Evidence
Act does not explicitly define relevancy, it outlines in Sections 5 to 55 the various ways in which facts may be
associated with one another, forming the basis for determining relevance.
At its core, relevancy acts as a crucial link between a statement of proof and the statement that needs to be
proved. This link is established by demonstrating an association between different facts, as stipulated in the
provisions of the Evidence Act. Two fundamental principles guide the application of relevancy: firstly, nothing
should be admitted if it is not logically verified in relation to the matters that need proof and secondly,
everything that is verified and probative should be admitted unless clear legal grounds exclude it.
Admissibility
Admissibility, on the other hand, is the acceptance of relevant evidence by the court. All relevant facts that meet
the criteria established by the legal framework are considered admissible. The final discretion on the
admissibility of evidence lies with the judge, as outlined in Section 136 of the Evidence Act.
When a party proposes to present evidence, the judge has the authority to inquire about how the alleged truth,
when illustrated, would be relevant. This inquiry ensures that the evidence presented is not only relevant but
also aligned with the legal requirements for admissibility. The judge will admit the evidence only if convinced
that it is relevant under the provisions of Sections 5 to 55 of the Evidence Act.
The essential ingredients of admissibility include the judge’s sole authority in determining both relevancy and
admissibility. When an individual proposes to show proof of any fact, the judge may ask for an explanation of
how the fact is relevant. The judge will admit the particular demonstrated reality only if satisfied with the
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individual’s response, ensuring that the evidence is not only relevant but also admissible within the legal
framework.

Different between relevancy and admissibility

Here’s a table summarising the differences between relevancy and admissibility:
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Aspect Relevancy Admissibility

The logical connection between The status of facts declared legally

Definition facts that makes the existence or significant under the Indian Evidence
non-existence of others likely. Act, eligible for consideration in court.

Grounded in logic and human

experience, focusing on the Based on legal principles, conforming to
Basis
inherent relationship between the rules outlined in the Evidence Act.
facts.

Discussed under Section 5 to 55

Primarily discussed under Section 56 of
Legal of the Indian Evidence Act,
the Indian Evidence Act, specifying
Framework outlining ways in which facts
criteria for legal acceptance.
may be associated.

Focuses on what facts are

Centres on what facts are admissible,
necessary to prove before the
Emphasis with consideration of legal criteria
court and their logical
rather than inherent relevance.
connection.

Acts as a decisive factor, guiding More of an effect, determining whether

Role the court in considering evidence evidence meets legal criteria for
logically connected to the issues. acceptance.

Essentially a cause, determining

the logical connection between Essentially an effect, resulting from
Nature
facts and their impact on the facts meeting legal requirements.
case.

The court has the power to apply The court has less discretion in
Discretion discretion in determining admissibility, as it is determined by
relevance, allowing for flexibility. adherence to legal rules.

Crucial in building a case and Admissible facts may or may not be

Relation to
influencing the determination of relevant, but legal relevant facts are
Proof
legal truths. admissible.
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d) Relevancy of Facts - Closely connected facts-Res Gestao -Occasion, Cause and Effect etc. -Motive,
Preparation and Conduct- Facts Necessary to Explain or Introduce Relevant Facts
Relevancy of Facts
Relevancy of facts in evidence is a mechanism for determining which facts are relevant to a case. Facts are
relevant when they are connected to other facts in a way specified in the BSA.
Sec 3. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue
and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove
by any provision of the law for the time being in force relating to civil procedure.
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue:
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the
case, a bond on which he relies. This section does not enable him to produce the bond or prove
its contents at a subsequent stage of the proceedings, otherwise than in accordance with the
conditions prescribed by the Code of Civil Procedure, 1908.
Closely connected facts
Sec 4. Facts which, though not in issue, are so connected with a fact in issue or a relevant fact as to form
part of the same transaction, are relevant, whether they occurred at the same time and place or at different times
and places.
Illustrations.
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking part in an armed insurrection
in which property is destroyed, troops are attacked and jails are broken open. The occurrence of these facts is
relevant, as forming part of the general transaction, though A may not have been present at all of them.
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(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose, and forming part of the correspondence in which it is
contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.
Definition of res gestae
Res Gestae has been derived from Latin words meaning ‘’things done’’. It is mainly an exception to the
hearsay rule of evidence which refers to ‘’an assertion other than one made by a person while giving oral
evidence is inadmissible’’.
Under section 4, 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. This comes under the ambit of res gestae.
PRINCIPLE OF RES GESTAR
Principle of Res gestae in English law all facts which are connected through 'part of the same
transaction' they are called as evidence of 'res gestae', however in India such facts are codified from section 6 to
section 11.
Res Gestae in IEA are:
1. Facts forming part of same transaction (section 6)
2. Facts which are occasion, cause or effect of facts in issue (Section 7)
3. Facts suggesting Motive, preparation and previous or subsequent conduct (Sec 8)
4. Facts necessary to explain or introduce relevant facts (section 9)
5. Things said or done by conspirator in reference to common design (Section 10)
[Link] Facts not otherwise relevant become relevant because these facts make other facts in issue or
any relevant fact either highly probable or highly improbable (sec11)
Evolution of doctrine of res gestae
The doctrine of Res gestae doesn’t have a precise definition. It has been interpreted and applied in
diverse ways and it has been said that the difficulty of formulating a description of Res Gestae, which will serve
all circumstances seem unsurmountable. It was the Romans who put light on the concept of res gestae which
meant acts that are done. In the case of Thompson v Trevanion, Lord Holton may have used this exception
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before the phrase ’res gesture’ has come to light. It was in the middle of the 1800s that this exception has been
firmly established.
In Babulal v W.I.T Ltd, it was discerned that the statement of law in section 4 of the BSA is usually
known as Res Gestae. There is a diverse range of opinions when it comes to the understanding of res gestae,
where, for some, it is seen as an advantage to complicated cases, while for others, this exception is denigrating
and vague.
In the case of Ratten v R., the privy council took the exception of hearsay, where a telephone
communication on the telephone took place 5 minutes before the woman was shot at the accused’s home, where
she hysterically yelped “Get me the police, please”. The privy council held the evidence admissible, as it was
part of the same transaction.
Meaning of Transaction: it is defined as a crime, contract, error or any other subject of enquiry that
may be in question by a single name, which includes both the immediate cause and effect of an act or event and
also its collection of relevant circumstances, the other necessary antecedents of its occurrence, connected with
it, at a reasonable distance of the time, pace and cause and effect. To resolve what forms a transaction, the
following points need to be taken into consideration:
 Unity or proximity of the place
 Proximity of time
 Continuity of actions
 Community of purpose
Mainly it is the test of continuity of actions and community of purpose that make it admissible in nature.
If the human declaration is spontaneous but detached from the concerned issue, it wouldn’t be admissible.
The transaction can confine a singular act or a series of acts, which may be done at a different place, or
at a different time, but it must be concurrent with the act. In the above-mentioned case of Ratten v R, the victim
dialled on the telephone 5 minutes prior to the shooting, however, that act was related to the act of shooting that
followed after 5 minutes. Her mental and physical expressions showed the continuity of actions and declared
the fear that she had against the accused for murdering her. All of these constitute instances, which supplement,
explain or qualify the fact and issues raised in the court of law. However, these facts would only be relevant if
they can be in sync with the proximity of time, continuity of actions and community of purpose.
Expansion of the doctrine of res gestae
Courts have gradually increased the ambit of the section, extending to cases like domestic violence,
child witness, etc.
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Often, cases of domestic violence, and sexual and physical assault involve some form of startling event,
also including the issue of excited utterances, wherein most victims can only identify the alleged offender. So
many testimonies ought to be admitted.
In cases of rape or sexual offences women are generally under trauma for having been victimised in a
gruesome way, so they might take a day or two to get over the trauma and respond. these responses must be
taken into the ambit of res gestae as well. If proven that the victim was in a state of shock, then such a statement
can be admitted. It is difficult to find eyewitnesses for rape as these cases happen in isolation.
CASES
Vasa Chandrasekhar Rao vs Ponna Satyanarayana
His wife and daughter were killed by the accused. Deposition of the deceased's father that the father of
the accused made a telephone call to him, saying his son had killed the deceased was not found admissible. The
question before the court was that it was possible to admit the deposition of the accused father under Section 4
and is Res Gestae going to be a hearsay exception?
Failing to find out whether the information given by the accused father to the deceased's father who killed his
wife and daughter was refused to accept the evidence as relevant under Section 4 either at the time of the crime
being committed or immediately thereafter to form part of the same transaction.
Gentela Vijayavardhan Rao And Anr vs State of Andhra Pradesh
Under res gestae, the appreciable interval between the act of carnage and the recording by the magistrate
of the statement was found inadmissible.
Bishna vs State of West Bengal
SBoth witnesses arrived in an unconscious state immediately after the incident and found the dead body of
Prankrishna and wounded Nepal. One of them found Prannkrishna's and Nepal's mother weeping and heard
from an eyewitness that their testimony was admissible under Section 6 of the Evidence Act about the whole
incident and the role played by each of the appellants.
Sec 5 - Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue,
or which constitute the state of things under which they happened, or which afforded an opportunity for their
occurrence or transaction, are relevant.
Illustrations
(a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money
in his possession, and that he showed it, or mentioned the fact that he had it, to third persons, are relevant.
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(b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place
where the murder was committed, are relevant facts.
(c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and
habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.
Sec 6. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
relevant fact.
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person, an
offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced
by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1.—The word "conduct" in this section does not include statements, unless those statements
accompany and explain acts other than statements; but this explanation is not to affect the relevancy of
statements under any other section of this Adhiniyam.
Explanation 2.—When the conduct of any person is relevant, any statement made to him or in his presence and
hearing, which affects such conduct, is relevant.
Facts suggesting motive (example previous fighting, property dispute, love affair, family dispute, business
rivalry etc.) (or preparation ( example just before the murder accused purchased a gun or bullets, or took
training for shooting, or in case of forgery, he purchase few stamp papers to forged a sale deed etc) Cor conduct,
whether previous or subsequent of the parties are also relevant (examples of previous conducts like, previous
attempts, any fights; example of subsequent conduct such as being missing from house after committing
murder, suspicious act of hiding himself or certain goods used for the offence etc.
It is important to note that conducts of parties as well as their agents both are relevant in any suit or proceeding.
Illustrations
(a) A is tried for the murder of B.
The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A
by threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for payment of money. B denies the making of the bond
The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it
relevant.
(c) A is tried for the murder of B by poison.
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The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.
(k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, A made a complaint
relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are
relevant. The fact that A said he had been robbed, without making any complaint, is not relevant, as conduct
under this section, though it may be relevant as a dying declaration under clause (a) of section 26, or as
corroborative evidence under section 160.
Sec 7. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or a relevant fact, or which establish the identity of anything, or person
whose identity, is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which
show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary
for that purpose.
When certain fact can explain any fact in issue or any relevant fact, and by such explanation the parties can
support or rebut any inference drawn from such facts, then these types facts are called as explanatory facts, and
they are thus relevant. Explanatory facts are those facts which can explain a fact which is already taken and
inference are drawn from such facts
 A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8,
as a conduct subsequent to and affected by facts in issue. However, the fact that, at the time when he left home
he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that
he left home suddenly. The details of the business on which he left are not relevant except in so far as they are
necessary to show that the business was sudden and urgent.
 Introduce a fact which ultimately assert or deny any fact in issue or relevant fact,
A sues B for inducing C to break a contract of service made by him with A. C, on leaving A's service, says to A
- "I am leaving you because B has made me better offer." The statement is a relevant fact as explanatory of C's
conduct which is relevant as a fact in issue.
 Support or rebut an inference suggested by a fact in issue or relevant fact,
A, accused of theft is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he
delivers it "A says you are to hide this." B's statement is relevant as explanatory of a fact which is part of the
transaction.
 Establish the identity of anything or person whose identity is relevant,
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For example fact that some witnesses identified the accused during Test identification Parade (TIP) is relevant
under this Section.
 fix the time or place at which any fact in issue or relevant fact happened,

Post mortem report or other scientific reports, fixing the time of murder etc., through some process are relevant.
For example, B, the diseased was last seen taking food at 8 PM. His dead body was recovered next very
morning at 6 from agriculture field. Undigested food was found in the stomach of the diseased. It will be
concluded that death must have happen within 6 hours of his taking of food i.e. his death must have caused
somewhere between 8 PM to 2 AM of the early morning.
 Show the relation of parties by whom any such fact was transacted
A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as
explanatory of the nature of the transaction.
e) Proof of Conspiracy-When facts not otherwise relevant become relevant
Things said or done by conspirator in reference to common design (Section 8):
Where there is reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained by any one of them, is a relevant fact
as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that any such person was a party to it.
This is most often used section in cases related to conspiracy. It provides that during existence of a
conspiracy, whatever were said or done by the conspirators in furtherance of conspiracy is relevant against all
conspirators. Essentials of this section are:
 Proof of an existed conspiracy (reason to believe) between all people whose statement or conduct is
proposed to be proved
 Statement or conduct of conspirator must be limited to the one which was in furtherance (direct
relationship) with the said conspiracy.
PRINCIPLE AND SCOPE
The general principle is that no person can be made liable for the acts of another except in cases of abetment in
criminal proceedings and contract of agency in civil proceedings. But in conspiracy persons who take part in
conspiracy are deemed to be the mutual agents or confederates for the purpose of the execution of the joint
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purpose. Just like partnership, which is meant to transact a lawful business, conspiracy is meant to transact an
illegal business. Anything said, done or written by one partner shall be binding on other partners. So also
anything said, done or written by one conspirator shall be binding on the other conspirators. Thus, conspiracy is
based on mutual agency.
Illustration
Reasonable grounds exist for believing that A has joined in a conspiracy to wage war against the
Government of India. Then, the facts that, B procured arms in Europe for the purpose of the conspiracy, C
collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E
published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money
which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy,
are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he
may have been ignorant of all of them and although the persons by whom they were done were strangers to him,
and although they may have taken place before he joined the conspiracy or after he left it.
Section 8 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible
against the whole body of conspirators, because of the nature of crime; Badri Rai v. State of Bihar, AIR 1958
SC 953.
The words "common intention" signifies a common intention existing at the time when the thing was said, done
or written by the one of them. It had nothing to do with carrying the conspiracy into effect; Mirza Akbarv.
Emperor, AIR 1940 PC 176.
If prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements
made by anyone of the conspirators in furtherance of the common object is admissible against all; Jayendra
Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716.
In In re. N. Rama Ratnam, the first accused agreed to supply to the second accused, one packet of gelignite
(explosive material) for the purpose of blowing up a railway bridge. The second accused who received the
packet along with the other accused utilised it on 14 November 1943, to blow up the railway bridge. The
attempt proved to be abortive as the fuse failed to function. On 15th November, 1943 the second accused sent a
letter to the first accused describing the unsuccessful attempt and requested for further supply of explosive
material. The accused were arrested and the letter written by the second accused was sought to be proved
against the first accused. It was held that the first accused had agreed to supply only one packet to commit one
act of destruction and the common intention was necessarily confined to the use of that one packet and that
common intention had been carried out on 14th November, 1943 when the packet of explosive was used, and it
no longer existed on 15th November, 1943 so as to make the letter admissible against the first accused.
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Once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be
regarded as one made "in reference to their common intention" and consequently a post arrest statement made to
a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy would not
fall within the ambit of Section 8. State of Gujarat v. Mohammed Atik, 1998 [Link] 2251 (SC): AIR 1998 SC
1686 : 1998 (2) Crimes 92.
Kishore Bhagtani v. State of Rajasthan, 2009 [Link] 1172 (Raj). Statements made by conspirators after they are
arrested cannot be brought within ambit of Sec. 8 of Act because by that time the conspiracy would have ended.
Sec 9. Facts not otherwise relevant are relevant
(1) if they are inconsistent with any fact in issue or relevant fact
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in
issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Chennai on a certain day. The fact that, on that day, A was
at Ladakh is relevant. The fact that, near the time when the crime was committed, A was at a distance from the
place where it was committed, which would render it highly improbable, though not impossible, that he
committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been
committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one
else, and that it was not committed by either B, C or D, is relevant.
CASE LAWS ON PLEA OF ALIBI
Munshi Prasad v State of Bihar 2001 (SC)
The Supreme Court held in this case that the accused’s presence at a reasonable distance from the place of
occurrence is necessary to prove a defence of plea of alibi, and the distance should be at least 500 meters.
Mukesh v. State of N.C.T. of Delhi, AIR 2017 SC 2161
In this case, the accused claimed that he was attending a musical program with his family at a park at the time
of the incident. However, the court rejected the plea of alibi, considering the contradictory evidence, such as
the dying declaration of the victim, DNA analysis, and fingerprint analysis. The evidence from the authorities of
the park also revealed that no permission was granted for any musical program on the date of the incident.
Lakhan Singh @ Pappu v. The State of NCT of Delhi
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In this case, the court emphasized that a defence of plea of alibi should be raised at the earliest opportunity and
not belatedly at the stage of defence evidence. The accused failed to provide any reason or explanation for not
raising the defence earlier.
Sec 10. In suits in which damages are claimed, any fact which will enable the Court to determine the number of
damages which ought to be awarded, is relevant.
Sec 11. Where the question is as to the existence of any right or custom, the following facts are relevant
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised,
asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its
exercise was disputed, asserted or departed from.
Illustration.
The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of
the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage,
particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by
A's neighbours, are relevant facts.

MODULE II: ADMISSION-CONFESSION - DYING DECLARATION

a) Admission- An Exception to Hearsay Rule-Requisites of an Admission-Party to the Proceedings-
Kinds of Admission-Admission Regarding State of Mind or Body.
Admissions
Admission is a voluntary acknowledgment of a fact. Importance is given to that admission that goes
against the interests of the person making the admission. For example, when A says to B that he stole money
from C, A makes an admission of the fact that A stole money from C. This fact is detrimental to the interests of
A. The concept behind this is that nobody would accept or acknowledge a fact that goes against their interest
unless it is indeed true. Unless A indeed stole money from C, it is not normal for A to say that he stole money
from C. Therefore, an admission becomes an important piece of evidence against a person. On the other hand,
anybody can make assertions in favour of themselves. They can be true or false. For example, A can keep on
saying that a certain house belongs to himself, but that does not mean it is necessarily true. Therefore, such
assertions do not have much evidentiary value.
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Definition of admission - Sec15. An admission is a statement, oral or documentary or contained in electronic

form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances, hereinafter mentioned.
According to the court’s ruling in the case of Bishwanath Prasad v. Dwarka Prasad, “Admissibility is
substantive evidence of the fact which is acknowledged when any prior statement by the party used to
contradict a witness does not become substantive evidence.” The objective of evidence being admissible is to
cast doubt on the witness’s credibility.
Principles of Admission
In the case of Basant Singh v. Janki Singh, the High Court laid down several principles regarding admissions:
1. Statements in the plaint are admissible as evidence, but the court has the discretion to accept or reject
specific statements based on their relevance.
2. There is no distinction between admissions made in a pleading and other types of admissions.
3. Admissions are always evaluated as a whole and cannot be dissected into parts.
4. Admissions, though not conclusive evidence, can be challenged by both parties to demonstrate their
truth or falsity.
5. Admissions in the accused's own words are considered strong evidence.
Admission – an exception to hearsay rule
Admission constitutes an exception to hearsay rule. This is so because an admission, though a hearsay, is
nevertheless the best evidence. What is said by a party to the suit is not open to the objection ‘that a party is
going to offer worse evidence than the nature of the case admits’ (the supposition on which rule of best evidence
is found).
Thus, if A sues B on a loan, which B denies and make a statement to C, a third person, that he had taken the
loan, B’s statement is an admission and C may give evidence of it although C was not present at time of the loan
and had only heard B admitting the fact of the loan.
Who can make admission
Sec 16. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are
admissions.
(2) Statements made by
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(i) parties to suits suing or sued in a representative character, are not admissions, unless they were made while
the party making them held that character; or
(ii) (a) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who
make the statement in their character of persons so interested; or
(b) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are
admissions, if they are made during the continuance of the interest of the persons making the statements.
According to this section, statements made a person who are directly or indirectly a party to a suit are
admissions. Thus, statements of an agent of a party to the suits are also admissions. Statements made by persons
who are suing or being sued in a representative character are admissions, only if those statements were made by
the party while being in that representative character. Similarly, statements made by persons who have a
pecuniary interest in the subject matter of the proceeding and statements made by persons from whom such
interest is derived by the parties in suit, are also admissions if they are made while the maker had such an
interest. For example, A bought a piece of land from B. Statements made by B at the time when B was the
owner of the land are admissions against A.
CONDITIONS REQUIRED FOR THE ADMISSIBILITY OF EVIDENCE IN THE COURTS
Sec 17. Statements made by persons whose position or liability, it is necessary to prove as against any party to
the suit, are admissions, if such statements would be relevant as against such persons in relation to such position
or liability in a suit brought by or against them, and if they are made whilst the person making them occupies
such position or is subject to such liability.
Illustration.
A undertakes to collect rents for B. B sues A for not collecting rent due from C to B.A denies that
rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact as against
A, if A denies that C did owe rent to B.
Sec 18. Statements made by persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.
Illustration.
The question is, whether a horse sold by A to B is sound. A says to B "Go and ask C, C knows all about it". C's
statement is an admission.
According to the clause, admissions are any remarks made by a person to whom a party to the lawsuit has
specifically referred for facts relating to a topic in dispute. The usual rule against accepting admissions from
strangers is also modified in this section.
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The relevance and veracity of the fact determine whether or not the evidence is admissible. The evidence is
deemed irrelevant, unrelated to the specific case, and not admissible in court. Reliability, on the other hand,
relates to the authority of a source that is being utilised as proof.
The court determined in the case of K.M. Singh v. Secretary Indian University Association that the nominees’
statements made pursuant to Section 18 of the Evidence Act would be regarded as an admission by the parties.
According to the court, a third party’s perspective must be taken into account when one party makes reference
to them in connection with a point of contention.
Who can prove admission
Sec 19. Admissions are relevant and may be proved as against the person who makes them, or his representative
in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in
interest, except in the following cases, namely:
(1) an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the
person making it were dead, it would be relevant as between third persons under section 26;
(2) an admission may be proved by or on behalf of the person making it, when it consists of a statement of the
existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind
or body existed, and is accompanied by conduct rendering its falsehood improbable;
(3) an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an
admission.
Illustrations.
(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine,
B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement
by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B
prove a statement by himself that the deed is forged.
Exceptions
Section 19 contains following three exceptions:
(1) An admission is relevant and may be proved against the author of it and his representative in interest.
(2) Generally, an admission cannot be proved by or on behalf of the maker, or by his representative in interest.
(3) Admissions can be proved by the maker or on his behalf or by his representative only under the three
following circumstances:
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(a) When it is of such a nature that if the person making it were dead, it would be relevant as between
third persons under section 26 of BSA.
(b) When it consists of a statement of the existence of any state of mind or body made at or about the
time when such state of mind or body exist and is accompanied by conduct rendering its falsehood improbable.
(c) When it is relevant otherwise than as an admission

Admissions regarding state of mind or body

Clause (2) of section 19 states that an admission may be proved by or on behalf of the person making it if it
contains statements as to existence of a state of mind or body provided that:—
(i) Such state of body or mind is in issue or relevant for determination of fact in issue;
(ii) the statement is made at or about the time when such state of mind or body existed; and
(iii) statement was accompanied by conduct making its falsehood improbable.
Admission is of three kinds:
i. Formal or Judicial admission.
ii. Informal and Casual admission.
iii. Admission by conduct.
1. Formal or Judicial admissions are those admissions that are made by a party during the proceedings of
the case. For example- Statement given by a party to a case in front of the Magistrate during the
proceedings falls under the category of Formal or Judicial admission.
2. Admission those are informal in nature and do not appear on the records of the case are referred as
Informal or casual admission. For example- An accused of murder, sustained injuries and during his
treatment he told the reason of injury to the doctor. The said explanation was regarded as an admission.
3. Admission those are made by the conduct of a person are said to be admission by conduct. For example-
If a person during the informal interrogation by the police ran away from that place, this conduct of that
person is said to be admission by conduct.
In case of Ajodhya Prasad м. Bhawani Shanker the honourable court held that:
Unlike Judicial admission which are binding upon the parties, Extra Judicial admissions are only partly binding.
The exception to this principle is found in cases where they operate as or have the effect of estoppel.
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b) Oral Admission as to Content of Documents -Admission in Civil Cases- Evidentiary Value of

Admission
Oral admissions as to contents of documents
Sec 20. Oral admissions as to the contents of a document are not relevant, unless and until the party proposing
to prove them shows that he is entitled to give secondary evidence of the contents of such document under the
rules hereinafter contained, or unless the genuineness of a document produced is in question.
Admission in Civil Cases
Sec 21. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it
is not to be given, or under circumstances from which the Court can infer that the parties agreed together that
evidence of it should not be given.
Explanation. Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter
of which he may be compelled to give evidence under sub-sections (1) and (2) of section 132.
Essential conditions for protection
Following are the essential ingredients in order to gain protection under section 21:
(i) There must be a civil dispute between the parties.
(ii) There must be negotiations between the parties or their agents with a view to compromise.
(iii) That negotiation must take place out of Court.
(iv) For this purpose, there must be express condition or circumstances from which the Court can infer that the
parties had negotiated.
ADMISSIBILITY OF EVIDENCE IN THE COURTS
1. Admissibility of Evidence in Criminal Proceedings
Evidence can only be presented in a criminal trial if it is deemed admissible and pertinent to the facts or
concerns. Here, the evidence is utilised to establish the guilt or innocence of the defendant in a legal issue. The
prosecution always has the burden of proof to establish the defendant’s guilt, according to the usual rule. What
the appellant must prove in order to convict the defendant is set forth by the substantive law in the criminal
procedures. In criminal proceedings, the prosecution must establish against the defendant each element of the
crime specified by the Criminal Code.
2. Admissibility of Evidence in Civil Proceedings
Governmental documents, such as leases, sale deeds, rent agreements, gift deeds, etc., are typically offered as
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evidence in civil cases. The burden of proof in a civil case generally rests with “the party who claims must
prove.” In a civil trial, the party asserting a truth is legally required to substantiate that fact. The burden of
evidence transfers to the defendant if the defendant disputes the charges and discovers a constructive default,
such as a “counterclaim.” However, in civil processes, the burden of proof initially rests with the plaintiff before
shifting to the defendant.
CASE LAWS
1. Lakshmandas Chaganlal Bhatia V. The State
In accordance with Section 9 of the Indian Evidence Act of 1876, the court established several “important facts”
in this case. The Court ruled that a fact became relevant in a case if it was required to explain or introduce it, or
if it supported or refuted an inference, established a person’s identity, established the time and location at which
a fact in question occurred, or demonstrated the relationship between the parties involved in the transaction.
2. Ambica Charan Kundu And Ors. V. Kumud Mohun Chaudhary and Ors.
A general rule of Section 11 is governed by Section 32 in the case of Ambica Charan v. Kumud Mohun, “where
evidence consists of a statement of a person who is dead and further examines the relevance of such a statement
under Section 11. Despite not being relevant or admissible under Section 32, it is relevant or admissible under
Section 11. It states that something can be admitted even if it is completely irrelevant, but that whether
something was stated was accurate or incorrect is really important.
3. The State of Gujarat V. Ashulal Nanji Bismol
According to the Court, the phrase “admissible and relevant” refers to evidence that is taken into account by the
judge when deciding whether to issue a decision; nevertheless, there is no implied or explicit provision in this
Act that defines what constitutes “admissible and relevant” evidence. However, it is impossible to say whether
or not remarks or documents that are not admissible or pertinent can be entered into the record. Therefore, the
Act does not provide that irrelevant or inadmissible information cannot be documented and added to a record of
facts if the judge deems it inappropriate. It is not possible to omit or exclude any evidence or information from
the record, regardless of whether it is acceptable or admissible.
Evidentiary value of admission - An admission does not constitute conclusive proof of the facts admitted . It is
only prima facie proof. Thus, evidence can be given to disprove it. The admissions thus constitute a weak kind
of evidence. The person against whom an admission is proved is at liberty to show that it was mistaken or
untrue. But until evidence to the contrary is given an admission can safely be presumed to be true. The weight
to be attached to it must depend upon the circumstances under which it is made.
An admission is substantive evidence of the fact admitted and the admissions duly proved are admissible
evidence irrespective of whether the party making them appears in the witness box or not and whether that party
when appearing as a witness was confronted with those statements in case he made a statement contrary to his
admissions {Bharat Singh v Bhagirath, AIR 1966 SC 405). Accordingly, where a person was contending that he
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was not the real owner of a certain property but he had made statements before the I.T. Officer that he was the
owner of the property, it was held his admission was direct evidence of the fact of ownership [Union of India v
Mokshi Builders (1977) 1 SCC 68].
An admission shifts the onus on the person admitting the fact on the principle that what a party himself admits
to being true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must
be taken to be established. Thus, a candidate’s declaration in the nomination form has been held to be an
admission against him. The burden lay upon him to show that a particular statement (his age, for example) was
not true. Where an admission operates so, the party admitting the fact will not be allowed to go against the facts
admitted. An estoppel will arise under Sec.121 when the admission amounts to a representation that the fact
stated is true and the other party has acted and altered his position on the basis of that representation.
c) Confession-Conditions as to Confession -Kinds of Confession -Confession to Police Retracted Confession-
Joint Trial Distinction Between Admission And Confession-Evidentiary Value of Confession
Confession
A confession is one of the most potent pieces of evidence in criminal law. It is essentially an
acknowledgment or admission made by an accused person, stating that they committed the offense with which
they are charged.
Confessions can be a vital component of criminal trials, often being the proverbial “smoking gun” that
proves a defendant’s guilt beyond a reasonable doubt. However, the use of confessions in the legal system must
be carefully regulated to ensure fairness and the protection of individual rights.
Sec 22. Aconfessionmadebyanaccusedpersonisirrelevantinacriminalproceeding, if the making of the
confession appears to the Court to have been caused by any inducement, threat, coercion or promise having
reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the
opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing
that by making it hewouldgainanyadvantageoravoidanyevilofatemporalnatureinreferenceto the proceedings
against him:
Provided that if the confession is made after the impression caused by any such inducement, threat,
coercion or promise has, in the opinion of the Court, been fully removed, it is relevant:
Provided further that if such a confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception practised on the accused
person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions
which he need not have answered, whatever may have been the form of those questions, or because he was not
warned that he was not bound to make such confession, and that evidence of it might be given against him.
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In the case of Nandini Satpathy v. P.L. Dani, the Supreme Court of India addressed the issue of the
voluntariness of a confession. The court emphasized the importance of a free and voluntary confession. It ruled
that if a confession is found to be involuntary, it cannot be admitted as evidence.
Confessions to Police Officers not admissible
Sec 23. (1) No confession made to a police officer shall be proved as against a person accused of any offence.
It is worth noting that Section 23 applies not only to confessions made during police custody but also to any
statements given to a police officer during the course of an investigation, irrespective of where they are made.
Confessions to Magistrates Admissible
Sec 23 (2) No confession made by any person while he is in the custody of a police officer, unless it is made in
the immediate presence of a Magistrate shall be proved against him:
Provided that when any fact is deposed to as discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact discovered, may be proved.
i. Confession Must Be Made to a Magistrate
The confession should be made before a magistrate and in the presence of a magistrate. This is a fundamental
requirement, as the magistrate’s role is seen as a safeguard against coercion and intimidation.
ii. Adequate Caution and Advisement
The magistrate must also exercise caution and advisement. This involves making the accused aware of their
legal rights and the consequences of making a confession. The accused person should be fully cognizant of the
implications of their confession. This advisement process further contributes to ensuring the voluntariness of the
confession.
iii. Voluntariness of Confession
The core criterion for the admissibility of any confession, whether made to a magistrate or not, is its
voluntariness. This means that a confession must be given freely and without any undue influence, inducement,
threat, or promise.
Section 22(1) of the BSA clearly specifies that a confession is admissible if it is voluntary. It is essential to
determine whether the confession was made by the accused of their own free will or if it was extracted through
pressure or improper influence. If a confession is found to be coerced or made under duress, it is inadmissible.
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The onus of proving the voluntariness of a confession rests on the prosecution. In other words, it is the
prosecution’s responsibility to demonstrate that the confession was made voluntarily.
Types Of Confession and Process of Recording Confession
Formal confession – Formal confession, also known as Judicial Confession, refers to claims made before a
judge or in a court of law during the course of a criminal action. A judicial confession is nothing more than a
“plea of guilty,” as defined in Article 20(3) of the Indian Constitution. otherwise, any confession made
against the person making the confession has no evidential value, and he cannot be found guilty of any crime
based on such confession. While they both belong to the same branch, judicial confessions and informal
confessions have different principles and relevance in determining the guilt of the accused. There may be
various justifications for gaining a conviction based on an extrajudicial confession, but there is no reason to rule
out the possibility of securing a conviction purely based on a judicial confession. As a result, while a confession
made by the accused that leads him to the bar is admissible evidence to prove his guilt, all such confessions
must be made in front of a magistrate or in a court of law. On the other hand, according to Article 20(3) of the
Indian Constitution, the court must take all possible means to ensure that any confession made by the accused
that may prove his guilt is voluntary and valid, so that no innocent person may be held responsible for the
illegal acts of others.
Informal Confession – Extrajudicial confessions are assertions made outside of a court of law or in the absence
of a judge. The statements should not have been addressed to a specific person. Informal confession can be
made in the form of prayer, in any private area, or in a self- conversation, just as judicial confession might. The
court must, however, ensure that the accused’s confession, whether judicial or extrajudicial, is in accordance
with Article 20(3) of the Indian Constitution, which provides that “no one should be pressured to give
testimony against themselves.” This means that a confession must be freely and truthfully made before a person
can be charged with a crime.
Extrajudicial confession takes place when a person admits his guilt of committing a crime to a private
individual, such as a friend or family member. While both judicial and extrajudicial confessions are allowed in
court, their evidential or probative value in demonstrating some truth is different. That is, a conviction will not
be based simply on the confession; rather, the court will evaluate the extrajudicial confession in order to
condemn a person for whatever crime he has done. Extrajudicial confessions differ from judicial confessions in
that they can be made to any private citizen, including a judicial officer acting in his own capacity.
Retracted Confession: In English, retraction is defined as the action of drawing back something. A retraction
confession is a type of confession in which the confessor makes a voluntary confession, which is afterward
reversed or retracted by the same confessor. A retracted confession may be utilised against the individual who is
confessing any retracted claims if it is supported by other independent and corroborating evidence.
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The Supreme Court held in Pyare Lal v. the State of Rajasthan that a withdrawn confession has sufficient
validity to offer all other legal basis for conviction only if the Court is satisfied that it was valid and made of
someone’s own decision. The Court must, however, testify that convictions cannot be relied only on confessions
unless they are substantiated.
Judicial Confession – Section 80 of the Indian Evidence Act makes judicial confessions admissible, stating
that if a confession is made in the presence of a magistrate or in a court and is registered by the magistrate as
required by law, the confession is presumed to be valid and genuine, and the accused may be tried for the crime.
Because Section 164 of the Criminal Procedure Code allows magistrates to record confessions, it is unimportant
to know who reported the confession unless he is banned from doing so. As a result, in order to pursue the
accused for the offence he did, the accused’s identification must be obvious and established in the confession.
Extra-Judicial Confession: Though extra-judicial confessions have less evidentiary value than judicial
confessions, in the instance of a written confession, the accused’s writing is one of the greatest pieces of
evidence the court possesses to convict the accused. If the accused’s confession is not accessible in written
form, the court might consider the accused’s oral confession to another person. At the court’s judgement and
satisfaction, the accused’s words to any other person may be admitted, and the accused may then be tried for the
offence for which he is convicted.
Confession by Co-accused: In the case of Pancho v. State of Haryana, the Supreme Court declared that the co-
confessions of the accused have no evidentiary value and cannot be treated as a substantial piece of evidence.
As a result, the accused’s co-confession can only be used to support the inference formed based on other facts.
Joint trial
Sec 24. When more persons than one is being tried jointly for the same offence, and a confession made by one
of such persons affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the person who makes such
confession.
Explanation I. “Offence", as used in this section, includes the abetment of, or attempt to commit, the offence.
Explanation II.A trial of more persons than one held in the absence of the accused who has absconded or who
fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023
shall be deemed to be a joint trial for the purpose of this section.
Differences between Admission and Confession
 Admission need not be voluntary to be relevant, whereas confession must be voluntary to be relevant.
 All admissions are not confessions; all confessions are admissions.
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 Admission can be made by any person; confession is made by the person who voluntarily admits to have
committed the crime.
 Admission can be used on behalf of the person making it; confession always goes against the person
making it.
 Magistrate generally don't record admission, whereas confession is normally made before a Magistrate.
 An admission is generally an acknowledgment of certain facts or allegations, either without guilt or
innocence. A confession, in contrast, involves taking responsibility for a crime.
 The process of admission can take place in many legal cases; some are civil, while others may be
criminal and administrative proceedings. The occurrence of a confession only happens in criminal
proceedings when an accused accepts the crime he or she is being charged with.
 Admissions can be made in different contexts, for example, legal, personal, or occupational ones.
Confession is usually made when a person is in court.
 Admission may or may not be admitted as evidence in court proceedings. confessions frequently serve
as evidence used for criminal trials.
Evidentiary Value of Confessions:
Despite the fact that it is assumed that a person will not make a false statement that might be used against him
as evidence, confession is seen as a weak kind of evidence. Its probative value is low since there is a potential
that it is false due to the accused’s state of mind, or that it was persuaded by force or threatened, etc. As a result,
they must be weighed with other evidence on the record. As a matter of prudence, a court should refrain from
convicting someone merely on the basis of a confession. They must be considered in the context of the case’s
facts and circumstances.
In Muthuswamy v. State of Madras, Bose J. remarked that confession is a weak sort of evidence. It cannot be
accepted just because it was produced by the accused and contains a great deal of information. The Supreme
Court also ruled that a court should not convict someone for murder merely on the basis of a confession.
A confession can be divided into numerous pieces, and it is forbidden to accept one element of a confession as
evidence while rejecting the rest. The entire confession must be accepted as evidence by the court. As a result, it
is critical that the confessions be accepted or rejected as a whole, and the Court is not competent to accept
merely the inculpatory confessions.
However, the Court must be satisfied that a confession is both voluntary and true before acting on it. Voluntary
actions are contingent on whether a threat, enticement, or promise was made. Its truth must be assessed in the
context of the prosecution’s complete case, namely if it fits into the established facts and does not contradict
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them. It becomes the most important piece of evidence against the maker if these two prerequisites are met.
Confessions that are not repudiated even over the course of the trial and are even acknowledged by the accused
in a statement under Section 313 Cr.P.C. can be completely trusted. As a result, the conviction is upheld when
combined with other circumstantial evidence. If the accused never suggests that his statement under Section
164 Cr.P.C. was false in his statement under Section 313 of Cr.P.C. or during cross-examination, or alleges the
presence of police officers at the time of recording the confession which was devoid of any material, then the
requirement of Section 164(2) of Cr.P.C. has been met. Such a confession is deserving of acceptance.
The confession was recorded after the preliminary inquiry against the accused had begun in the case of State v.
Ram Autar Chaudhary, and it was in this context that the Bench held: “We are therefore of the opinion that a
Magistrate could not have recorded the confession of the accused purporting to exercise the powers conferred
on him under Section 164 Cr. P. C., and that a confession so recorded by him could not be taken in evidence.”
The confession was also recorded during the preliminary investigation in Bachchan Lal v. State, and in fact,
after the Committing Magistrate had recorded the statements of some witnesses. Similar observations were
made as in the previous case of State v. Ram Autar Chaudhary.
The Full Bench of the Allahabad High Court held in Raja Ram v. State that a confession recorded by a
Magistrate under Section 164 of the Code of Criminal Procedure after the police had completed their
investigation and submitted a charge-sheet but before the Magisterial enquiry had begun is inadmissible in
evidence. Singhara Singh & Others v. State of Uttar Pradesh. The case focused on the admissibility of the
magistrate’s oral testimony, which included a recording of the respondents’ confessions, who were charged with
murder. The confession could not be recorded since the magistrate lacked the authority to do so. The Trial Court
refused to accept the confession documents. It was decided that the confession was not recorded as required
by Section 164 of the Code of Criminal Procedure, 1898 and that the record could not be used to show
confession as required by Section 74 and Section 80 of the Evidence Act. As a result, the magistrate’s oral
testimony was inadmissible.
25. Admissionsarenotconclusiveproofofthemattersadmittedbuttheymayoperate as estoppels under the provisions
hereinafter contained.
d) Dying Declaration-English and Indian Law Difference On Dying Declaration Essential Conditions for
the Applicability of Dying Declaration -FIR as Dying Declaration
Statements by persons who cannot be called as witnesses
d) Dying Declaration
Sec 26. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or who attendance cannot be procured without an amount of
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delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves
relevant facts in the following cases, namely:
(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his
death comes into question;
(b) when the statement was made by such person in the ordinary course of business, and in particular when it
consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the
discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money,
goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of
the date of a letter or other document usually dated, written or signed by him;
(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true,
it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;
(d) when the statement gives the opinion of any such person, as to the existence of any public right or custom
or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be
aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;
(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between
persons as to whose relationship by blood, marriage or adoption the person making the statement had special
means of knowledge, and when the statement was made before the question in dispute was raised;
(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between
persons deceased, and is made in any will or deed relating to the affairs of the family to which any such
deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on
which such statements are usually made, and when such statement was made before the question in dispute was
raised;
(g) when the statement is contained in any deed, will or other document which relates to any such transaction
as is specified in clause (a) of section 11;
(h) when the statement was made by a number of persons, and expressed feelings or impressions on their part
relevant to the matter in question.
Illustrations.
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(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course
of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed
by B under such circumstances that a suit would lie against B by A's widow. Statements made by A asto the
cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under
consideration, are relevant facts.
Statement and object:
Sections 26 and 27 of BSA are exceptions to the general rule that hearsay evidence is not admissible. Hearsay
evidence is not entertained by the courts on the ground that the evidence given by a person who does not have
firsthand knowledge about the facts of the case.
For ends of justice the law always demands best evidence to be produced before the court of justice. The best
evidence means evidence of the person who has made a statement or has written a document by himself. This is
best evidence of the person who has got firsthand knowledge about facts or original documents. When a witness
appears before the court he is required to take oath and is subjected to cross- examination by the opposite party.
A second hand or hearsay evidence means derivative evidence. Hearsay evidence, according to Taylor, "all the
evidence which does not derive its value solely from the credit given to the witness himself, but which rests also
in part on the varacity and competence to some other person." When the person or document (best evidence)
cannot be available in the court, then the "other person" may be allowed by the court, who is not required to
take oath or is put to cross-examination, to testify the contents of the documents prepared by the person who is
not available for reasoned mentioned in Section 25. Thus, the hearsay evidence, is relevant when: (i) there is
necessity and
(ii) the special circumstances guaranteeing genuineness and trustworthiness. Section 25 is an exception to the
hearsay rule. Unlike English law the Indian law does not make it wholly inadmissible.
Principle:
Under section 26 evidence given by a person in a judicial proceeding or before a person authorized by law to
take evidence is relevant for the purpose of proving in a subsequent judicial proceeding the truth of the facts
stated therein. It imposes restrictions upon the admissibility of statements made by persons who cannot be
brought before the court to give evidence. As there is no better evidence available the statements made under
this section are admitted as principle of necessity." In other words written or verbal statements of relevant facts
made by a person:-
(i) Who is dead;
(ii) Who cannot be found;
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(iii) Who has become impossible of giving evidence; or

(iv) Whose attendance cannot be procured without unreasonable delay or expense, are relevant under the
following circumstances of the case:
1. When it relates to the cause of his death, or
2. When it is made in course of business, or
3. When it is made against the pecuniary or proprietary interest of the maker, or
4. When it gives opinion as to right, custom or matters of general interest, or
5. When it relates to the existence of any relationships, or
6. When it is made in will or deed or other document to family affairs or
7. When it is made by several persons, and expresses feelings to the matter in question.
Dying declaration in English and Indian Laws:
Although the dying declaration under Indian law is founded on English law there are differences between the
two legal systems:
1. Under English law the dying declaration in civil cases is not admissible. It is admissible in civil cases in
India.
2. In English law the dying declaration is admission in homicide case "where the death of the deceased is the
subject of the charge and circumstances of the death, the subject of the dying declaration." Under Indian Law if
the cause of death of the deponent comes in question his dying declaration is relevant irrespective of the nature
of proceeding. There should be nexus between the circumstances stated by the victim and his/ her death.
3. In English law it is necessary that the declarant had been in actual danger of death after receiving injuries and
he should have abandoned all hopes of recovery. But, "if the declarant failed to complete his statement and died,
the dying declaration is inadmissible." In India the declarant's death must have been ensured. It is immaterial
whether the declarant was in actual danger and he had abandoned all hopes of life. If the declarant had been
alive, he would have been a competent witness.
If the maker of a dying declaration was present in the court, making a statement stating the facts contained in
the declaration, with the difference that the declaration is not a statement on oath and the maker thereof be
subjected to cross-examination.
Corroboration not necessary:
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There is no absolute rule of law, or even a rule of prudence, that a dying declaration unless corroborated by
other evidence, is not fit to be acted upon and made the basis of a conviction." The true and voluntary dying
declaration needs no corroboration. It is not essential that the dying declaration should always be
corroborated/However, care and caution must be exercised in accepting it as trustworthy evidence/If no
infirmity is found the dying declaration can be the sole basis for conviction without any corroboration. There is
neither rule of law nor prudence that dying declaration cannot be acted upon without corroboration. The rule
requiring corroboration is merely a rule of prudence.
F.I.R. as dying declaration:
LA First Information Report (FIR) when fulfilled all conditions under section 26 (1) it is relevant as dying
declaration Where father of deceased son logged FIR after admitting him in hospital and mentioned about oral
dying declaration with necessary details, such dying declaration given to interested person is reliable. [In a
bride-burning case the statement given by the deceased was initially recorded as complaint and treated as FIR
after death of the deceased. Bit, the FIR as well as the statement given by the injured to the investigating officer
is not admissible as dying declaration under section 26 of BSA. Similarly, a declaration noted down by an Asstt.
Sub-Inspector even before FIR was lodged was held not be acceptable.
Recording of dying declaration by a Magistrate:
A dying declaration recorded by a Magistrate in a proper manner and in question answer forms as far as
practicable and the doctor's certificate that the declarant was conscious and in a fit condition to make the
declaration, should be endorsed on the dying declaration. When neither a doctor nor a nurse was available for
giving necessary certificate, the dying declaration is the best evidence available against the accused, the court
may rely upon such "defective dying declaration" if there is reliable corroboration. It would be very unsafe and
hazardous to sustain the conviction of the accused charged for offences under section 302 read with Section 34.
I.P.C. on the basis of dying declaration recorded by a special executive magistrate and police officer separately.
It was not sufficient to convict an accused merely because the dying declaration was correctly recorded and it
was true version of declarant. The dying declaration must be inspiring confidence when it forms basis of
conviction. It is not necessary that dying declaration must be made in presence of magistrate and should be
made in the expectation of death. The statement of the deceased was recorded when she was fit and signed the
statement in connection with dowry demand case the accused was liable to be convicted under section 304 of
I.P.C.
More than one dying declaration:
Where there are more than one dying declaration and they are inconsistent then it is not possible to pick out one
such declaration wherein accused is implicated and bare the conviction on the sole basis of that dying
declaration. There was gap he ween two declarations, yet they were totally consistent with each other, the dying
declaration were held reliable.
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Where two dying declarations, one recorded by the doctor and the other recorded by the Magistrate, it will not
be safe to rely on either of the dying declaration. In multiple dying declaration lost dying declaration was not in
conformity with FIR and declaration made to police as regards motive for offence is concerned. Besides, the
manner in which the deceased was set on fire was also different in two declarations. It was held that the
conviction cannot be based on dying declaration if there are inconsistences in three dying declarations the
conviction of appellants was held consafe on such evidence.

Evidentiary Value of a Dying Declaration

In order to assess the evidentiary value of dying declaration under section 26 (1) one must not think of that it is
"an absolute rule of law" and sole basis of conviction The general principle on which the dying declaration is
admitted that when any person who made such declaration was "at a point of death and when every hope of this
world is gone and when even motive to falsehood is silenced, and the mind induced by the most powerful
considerations to speak the truth a situation solemn and so awful is considered by the law as creating an
obligation equal to that which is imposed by positive oath administered in a court."
In Khushal Rao v State of Bombay the basic principles have been laid down by the Supreme Court in the
following words which would be considered as ratio:
1. "That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of
conviction unless it is corroborated;
2. That each case must be determined on its own facts keeping in view the circumstances in which the dying
declaration was made;
3. That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence
than other piece of evidence;

4. that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the
light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
5. that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to
say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than dying declaration which depends upon oral testimony which
may suffer from all the infirmities of human memory and human character; and
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6. that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like
the opportunity of the dying man for observation, for example, where there was sufficient light if the crime was
committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the
time he was making the statement, by circumstances beyond his control, that the statement has been consistent
throughout if he had several opportunities of making a dying declaration apart from the official record of it, and
that the statement had been made at the earlier opportunity and was not the result of turtoring by interested
parties."
dying declaration and dying depositions:
The dying declarations are not depositions as the maker does not have any opportunity to take oath, but
sometimes they may be considered as relevant where the dying declaration is recorded by the magistrate; it is
evidence and can be admitted without proof under section 80 of this Act. Dying declaration is not depositions
unless made in the presence of the accused and recorded by a magistrate.
Where there are "multiple declarations each has to be considered independently on its own merit as to its
evidentiary value. One cannot be rejected because of contents of other. But there is no requirement of law that
dying declaration must necessarily be made to a magistrate. If evidence of the prosecution has no connection
with any circumstance of transaction which resulted in death would not be admissible in evidence as dying
declaration of the deceased.
CASE LAWS
In the case of Uka Ram v State of Rajasthan , the Court held that, in the event that the cause of his action is
questionable, a person's statement of the cause of his death or of any circumstances of transaction that led to his
death is admissible as evidence, the statement in law is categorically called the dying declaration.
In Chirra Shivraj v State of Andhra Pradesh , the Court held that relying on the dying declaration is an
extremely dangerous mechanical approach simply because it is there. The court shall examine the death
declaration scrumptiously with a microscopic eye, to find out if it is voluntary, genuine, made in the conscious
state of mind and without being influenced, and if such condition is fulfilled, the court held that the order of a
conviction cannot be declared on the basis of sale of the dying declaration.
In Sudhakar v State of Madhya Pradesh , the Apex Court held that the court should ensure that the
declaration is not a tutoring or encouraging statement or an imagination product. The court has to find out from
the proof recorded that the deceased had a fit state of mind and a good chance to see and identify the
perpetrator. The court normally relies on the medical evidence for concluding whether the dying person is in a
fit state of mind, but if the person who records the statement states that the deceased is fit and conscious, the
medical opinion is not dominant and it can neither be said that because a doctor does not have a certificate of
fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person
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recording the death statement must be convinced of the fitness of the deceased. If the Magistrate's testimony
shows that the declarant was fit to make the statements without the doctor's opinion, action can be taken if
ultimately, the Court considers it voluntary and true.
Sec 27. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it,
is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an
amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest; that the adverse
party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were
substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the
accused within the meaning of this section.

MODULE III: EXPERT EVIDENCE - RELEVANCY OF CHARACTER

a) Opinion of Third Person When Relevant-Expert Witness- Value of Expert Witness.

Opinions of third persons when relevant
Sec 39. (1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other
field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons especially
skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or
finger impressions are relevant facts and such persons are called experts.
Illustrations. (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the
symptoms produced by the poison by which Ais supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The
opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of
mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
Expert Opinion and its Relevancy- Section 45-51
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Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons,
which is commonly called in our day to day practice as expert's opinion. These provisions are exceptional in
nature to the general rule that evidence is to be given of the facts only which are within the knowledge of a
witness. The exception is based on the principle that the court can't form opinion on the matters, which are
technically complicated and professionally sophisticated, without assistance of the persons who have acquired
special knowledge and skill on those matters. Conditions for admitting an expert opinion are following:-
a) That the dispute can't be resolved without expert opinion and
b) That the witness expressing the opinion is really an expert.
Who is an expert?
The definition of an expert may be referred from the provision of Sec. 39 of Indian Evidence Act that an 'Expert'
means a person who has special knowledge, skill or experience in any of the following-
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression and such knowledge has been gathered by him-
a) by practice,
b) observation or

c) proper studies
For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint expert etc
Duty of the expert: -
a) An expert is not a witness of fact.
b) His evidence is of advisory character.
c) An expert deposes and does not decide.
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d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of the
conclusion so as to enable the judge to form his independent judgment by application of the criteria to the facts
proved by the evidence.
Opinion of Examiner of Electronic Evidence.
Sec 39 (2) When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the
ExaminerofElectronicEvidencereferredtoinsection79Aof the Information Technology Act, 2000, is a relevant
fact.
Explanation. For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.
Value of expert opinion:-
The Expert evidence has two aspects-
a) Data evidence [it can't be rejected if it is inconsistent to oral evidence]
b) Opinion evidence (it is only an inference drawn from the data and it would not get precedence over the direct
eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral evidence]
[Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP)]
Expert evidence is opinion evidence and it can't take the place of substantive evidence. It is a rule of procedure
that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.
It is not safe to rely upon this type of evidence without seeking independent and reliable corroboration -
[[Link] Reddy v. State of A.P. AIR 1996 SC2184 (Para27))
Difference between evidence of an expert and evidence of an ordinary witness:-
EVIDENCE OF AN EXPERT
1. Expert gives his opinion regarding handwriting, finger impression, nature of injury etc.
2. It is advisory in character.
3. Court can't pass an order of conviction on the basis of expert opinion, as because it is not conclusive.
4. Expert gives his opinion on the basis of his experience, special knowledge or skill in the field
EVIDENCE OF AN ORDINARY WITNESS
1. An ordinary witness states the fact relating to the incident.
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2. Witness states the facts. Opinion of a witness is not admissible.

3. Court may pass an order of conviction on the basis of evidence of ocular witness (eye witness).
4. A witness gives actual facts connected with the incident what he had seen or heard or perceived.
Sec 40. Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of
experts, when such opinions are relevant.
Illustrations. (a) The question is, whether Awas poisoned by a certain poison. The fact that other persons, who
were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of
that poison, is relevant.
c) Opinion as to Handwriting & Signature.
Opinion as to handwriting and signature, when relevant.
Sec 41 (1) When the Court has to form an opinion as to the person by whom any document was written or
signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation.
A person is said to be acquainted with the handwriting of another person when he has seen that person write, or
when he has received documents purporting to be written by that person in answer to documents written by
himself or under his authority and addressed to that person, or when, in the ordinary course of business,
documents purporting to be written by that person have been habitually submitted to him.
Illustration.
The question is, whether a given letter is in the handwriting of A, a merchant in Itanagar. B is a merchant in
Bengaluru, who has written letters addressed to A and received letters purporting to be written by him. C, is B's
clerk whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C
and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever
saw A write.
Opinion as to electronic signature, when relevant
Sec 41 (2) When the Court has to form an opinion as to the electronic signature of any person, the opinion of the
Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.
The handwriting of a person may be proved in the following ways:
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 A person who is an expert in this field

 A person who has actually seen someone writing, or
 A person who has received any document which is written by the person whose handwriting is in
question or under the authority of such person and is addressed to that person
 A person who regularly receives letters or papers which are written by that person
 A person who is acquainted with the signatures or writing of that person
 A certifying authority who has issued a digital signature certificate when the court has formed an
opinion as to the digital signature of a person. This is mentioned under section 41(2) of the act.
 If another person admits that the documents were written by him. This is mentioned in section 19
of the act.
 A person who has seen the person writing or signing. This is mentioned under section 55 of the
act.
 When the court himself compares the document in question with any other document which is
proved genuine in the court. This is mentioned in section 72.
 The court may ask the person to write something for the court to compare it with the document in
question.
For example, Ms. Pinky claims in the court that she has not signed any document for sale of her property. To
match her signatures with the one on papers, the court calls Mr. Raju who is the personal assistant of Ms. Pinky.
Mr. Raju's job is to get all the official documents of the company to be signed by Ms. Pinky. Mr. Raju gives a
testimony that the papers were signed by Ms. Pinky only. Here, Mr. Raju will be termed as an expert under the
meaning of s. 41 (1) as he has seen Ms. Pinky signing the documents and regularly receives such papers.

However, there have been several instances where the courts have been discouraged to decide cases of
matching of signatures without evidence and merely on inspection. The court needs to work with the utmost
care and caution in determining the authenticity of the documents.
d) Opinion as to Existence of General Custom or Right Opinion as to Usage, Tenets- Opinion on Relationship-
Grounds of opinion.
Sec 42. WhentheCourthastoformanopinionastotheexistenceofanygeneralcustom or right, the opinions, as to the
existence of such custom or right, of persons who would be likely to know of its existence if it existed, are
relevant.
Explanation. The expression "general custom or right" includes customs or rights common to any considerable
class of persons.
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Illustration. The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.
Sec 43. When the Court has to form an opinion as to
(i) The usages and tenets of any body of men or family
(ii) The constitution and governance of any religious or charitable foundation;
(iii) The meaning of words or terms used in particular districts or by particular classes of people,
The opinions of persons having special means of knowledge thereon, are relevant facts.
Sec 44. When the Court has to form an opinion as to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the
family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce
Act, 1869, or in prosecution under sections 82 and 84 of the Bharatiya NyayaSanhita,2023.
Illustrations.
(a) The question is, whether A and B were married. The fact that they were usually received and treated by their
friends as husband and wife, is relevant
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by
members of the family, is relevant.
Sec 45. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant.
Illustration. An expert may give an account of experiments performed by him for the purpose of forming his
opinion.
e) Character When Relevant- Relevancy of Character in Civil and Criminal Cases.
Character when relevant
Sec 46. In civil cases the fact that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts
otherwise relevant.
Sec 47. Incriminal proceedings the fact that the person accused is of a good character, is relevant.
Sec 48. In a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section
69, section 70, section 71, section 74, section 75, section 76, section 77 or section 78 of the Bharatiya Nyaya
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Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is in issue, evidence of
the character of the victim or of such person's previous sexual experience with any person shall not be relevant
on the issue of such consent or the quality of consent.
Sec 49. In criminal proceedings, the fact that the accused has a bad character, is irrelevant, unless evidence has
been given that he has a good character, in which case it becomes relevant.
Explanation 1. This section does not apply to cases in which the bad character of any person is itself a fact in
issue.
Explanation 2. A previous conviction is relevant as evidence of bad character.
Sec 50. In civil cases, the fact that the character of any person is such as to affect the number of damages which
he ought to receive, is relevant.
Explanation. In this section and sections 46, 47 and 49, the word "character" includes both reputation and
disposition; but, except as provided in section 49, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition has been shown.
Admissibility of character evidence in civil suits
In civil action, as a general rule, evidence of character of any person concerned (a party to a suit) is not
admissible for the purpose of raising an inference as to his conduct. In other words, that a party did or did not
act may not be established in civil actions, by showing that his character is such as to predispose him to one
course or to the other. So the exclusion of evidence of a character of a party as a basis of inference as to his
conduct is practically absolute in civil cases. In civil cases the evidence of character is generally inadmissible
unless the character is of the substance in issue.
Under Section 46 the expression 'the character of any person concerned' is used. Therefore, it may appear to
include persons who are called as witnesses, but the content of the section refers, only to the parties of the
proceedings.
Character admissible in civil cases:
There are certain cases in which character is a fact in issue or a relevant fact e.g. in a suit for libel, if the libel
consisted in attributing bad qualities to the plaintiff and the defendant justices the existence of these qualities,
the existence of these qualities would be a fact in issue and evidence of character may be led. The character of a
female chastity has been received in evidence in action for breach of promise for marriage.
Best states that "To admit character evidence in every case, or to reject it in every case, would be equally fatal to
justice; that to draw a line or to define with precision where it ought to be received and where it ought to be
rejected, is as embarrassing a problem as any Legislature can be called upon to solve."
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In Abdul Shakur and others v. Kotwaleshwar Prasad and others, it has been held that where the contention that
certain pronotes had been obtained froin the insolvent while he was under the influence of drink, has been found
to be baseless, mere general bad character of the insolvent would be quite irrelevant in a civil case to prove
want of consideration.
Admissibility of character evidence in criminal suits
In criminal proceedings, previous good character is relevant: -
In criminal proceedings, the fact that the person accused is of a good character, is relevant." In criminal
enquiries the relevancy of character evidence is different from civil cases.
In criminal cases, the accused is allowed to prove his good character, either in chief or by cross-examination.
But so far as concerns proof of the accused's good character by another witness, what must be deposed to is, not
particular good acts by him, but his general reputation in the community. Strictly the witness's own opinion of
his character is irrelevant, but in particular considerable latitude is allowed and a witness is often asked to say
what he knows of the accused's character. The evidence of character is primarily relevant as to credibility i.e. it
makes his testimony more worthy of belief.
Good character in criminal cases is weak evidence. However, in certain cases, good character may become
favourable evidence in favour of an accused in doubtful cases and where the prosecution fails to prove the guilt
of the accused beyond the reasonable doubts. Good character presumably includes good reputation which a man
may be in his own circle as well as his real disposition as distinct from what his friends and neighbours may
think of him.

When the accused in a bribery case pleads and produces evidences of good character, which the Court regards
as satisfactory, it must be taken in consideration to decide whether the guilt is proved beyond reasonable doubt
Phipson states that "Good character is not a defence, for no one would then be convicted, as everyone starts
with a good character. The defendant is, however, entitled to rely on the fact that he is of previous good
character as making it less likely that he would have committed the offence. If there is any room of doubt, his
good character may be thrown in the scales in his favour."
In Habeeb Mohammad v. State of Hyderabad, [AIR 1954 SC 51] it has been held that in criminal proceedings a
man's character is often a matter of importance in explaining his conduct and in judging his innocence or
criminality. Many acts of an accused person would be suspicious or free from all suspicions when the character
of the person by whom they are done is known. Even on the question of punishment, an accused is allowed to
prove general good character.
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MODULE IV: OF PROOF- BURDEN OF PROOF

a) Facts which need not be proved Modes of Proof Oral Evidence- Hearsay Evidence.
b) Exceptions to the Rule of Hearsay Evidence Hearsay and Circumstantial Evidence Difference
Between Direct and Hearsay Evidence.
Sec 51. No fact of which the Court will take judicial notice need be proved.
Sec 52. (1) The Court shall take judicial notice of the following facts, namely:
(a) all laws in force in the territory of India including law shaving extra-territorial operation;
(b) international treaty, agreement or convention with country or countries by India, or decisions made by India
at international associations or other bodies;
(c) the course of proceeding of the Constituent Assembly of India, of Parliament of India and of the State
Legislatures;
(d) the seals of all Courts and Tribunals etc.
Sec 53. No fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at
the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such
admissions.
Onkar Nath and Ors v. the Delhi Administration
In this case, the appellants were Union Leaders of the Northern Railwaymen's Union. They were accused of
instigating other workmen towards striking and were booked under Rules 118 & 119 of the Defence of India
Rules, 1971. They were sentenced with 6 months of rigorous imprisonment by the Metropolitan Magistrate of
Delhi. The conviction order was upheld in a Revision Appeal by the Additional Sessions Judge of the Delhi
High Court.
However, the previous judicial decisions were set aside by the Supreme Court, which observed that mere
summary instead of the exact words cannot be deemed as the ground for conviction. The statement of the only
witness may although be truthful cannot be relied upon, in absence of the exact words which were delivered at
the meeting by the accused. The list of facts of which the Court shall take Judicial notice under Section 56 to be
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read with Section 57 is non-exhaustive, and shall, therefore, depend upon the discretion of the Court and vary
from case to case.
ORAL EVIDENCE
Sec 54. All facts, except the contents of documents may be proved by oral evidence.
Sec 55. Oral evidence shall, in all cases whatever, be direct; if it refers to,
(i) a fact which could be seen, it must be the evidence of a witness who says he saw it;
(ii) a fact which could be heard, it must be the evidence of a witness who says he heard it;
(iii) a fact which could be perceived by any other sense or in any other manner, it must be the evidence of
a witness who says he perceived it by that sense or in that manner;
(iv) an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who
holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the
grounds on which such opinions are held, may be proved by the production of such treatises if the author is
dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without
an amount of delay or expense which the Court regards as unreasonable:
Provided further that, if oral evidence refers to the existence or condition of any material thing other
than a document, the Court may, fit thinks fit, require the production of such material thing for its inspection.

CASE LAWS ON ORAL EVIDENCE

State v. Rajal Anand

It was held under this case that section 60 of the Indian Evidence Act only includes the word “direct” and
excludes hearsay. Any evidence given must be direct and the hearsay evidence does not hold any area under oral
evidence as it is not direct. But the doctrine of Res-gestae has been observed as an exception to the rule of
hearsay which explained that any person who has experienced any series of relevant facts, his testimony after
the incident even if he has not seen the crime being committed will be accepted.

Amar Singh v. Chhaju Singh And Anr.

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A relationship between section 50 and 60 of Indian Evidence Act has been established which says that for
proving an evidence completely, two things shall be fulfilled firstly, there shall be a presence of relevant facts
and those facts have been presented directly by the person who has either seen them, heard them or etc.

Bhima Tima Dhotre v. The Pioneer Chemical Co.

In this case, it was held that any fact can be proved by oral evidence instead of the content of documents or
electronic records. It is seen that if the person who has presented the documentary record is called to prove the
records, documentary evidence loses all its significance, and it will become oral evidence which will be
meaningless.

DOCUMENTARY EVIDENCE
Sec 56. The contents of documents may be proved either by primary or by secondary evidence.
Sec 57. Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document.
Explanation [Link] a document is executed in counterpart, each counterpart being executed by one or some
of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing,
lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies
of a common original, they are not primary evidence of the contents of the original.
Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs
simultaneously or sequentially in multiple files, each such file is primary evidence. Explanation 5.—Where an
electronic or digital record is produced from proper custody, such electronic and digital record is primary
evidence unless it is disputed.
Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or
broadcast or transferred to another, each of the stored recordings is primary evidence.
Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer
resource, each such automated storage, including temporary files, is primary evidence.
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Illustration. A person is shown to have been in possession of a number of placards, all printed at one time from
one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is
primary evidence of the contents of the original.
Primary evidence v. Secondary evidence - Section 62 of the Evidence Act defines primary evidence to mean the
documents itself produced for the inspection of the court. If primary evidence is available, it would exclude
secondary evidence. Section 63 of the Evidence Act deals with secondary evidence and defines what it means
and includes. Section 63 mentions five kinds of secondary evidence, namely,-

1. Certified copies given under the provisions hereinafter contained

2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the
copy, and copies compared with such copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.

Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain
cases mentioned above. Once a document is admitted, the contents of that document are also admitted in
evidence, though those contents may not be conclusive evidence. Moreover, once certain evidence is conclusive
it shuts out any other evidence which would detract from the conclusiveness of that evidence. There is a
prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the
court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Thus,
once a document has been properly admitted, the contents of the documents would stand admitted in evidence,
and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such
a document, no such objection could be allowed to be raised at any later stage of the case or in appeal. Neeraj
Dutta v. State (Govt. of N.C.T. of Delhi) AIR 2023 Supreme Court 330.
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Sec 58. Secondary evidence includes—

(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of
the copy, and copies compared with such copies;
(iii) copies made from or compared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions; (vii) written admissions;
(vii) evidence of a person who has examined a document, the original of which consists of numerous
accounts or other documents which cannot conveniently be examined in Court, and who is skilled in
the examination of such documents.
Illustrations.
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if
it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents
of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the
copy not so compared is not secondary evidence of the original, although the copy from which it was
transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original,
nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
Proof of documents by primary evidence
Sec 60 Secondary evidence of a document's existence, condition, or contents is admissible in the following
cases:8
1. When the original is unavailable:
o It's with the opposing party, someone beyond the court's reach, or legally bound to produce it but
fails after notice (Sec. 64).
o It has been admitted in writing by the opposing party or their representative.
o It is destroyed, lost, or cannot be produced due to reasons not caused by negligence.
2. Nature of the original:
o It's not easily movable.
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o It qualifies as a public document (Sec. 74).

o A certified copy is allowed by law as evidence.
3. Bulk documents: When originals are numerous and impractical for court examination, the general result
may be provided by a skilled examiner.
Explanation:
 Clauses (a), (c), (d): Any secondary evidence of contents is admissible.
 Clause (b): Written admission is admissible.
 Clauses (e), (f): Only certified copies are admissible.
 Clause (g): General results can be presented by a skilled person.
Oral evidence v. documentary evidence - Section 59 of the Evidence Act states that all facts, except the contents
of documents or electronic records, may be proved by oral evidence. Oral evidence means the testimony of
living persons examined in the presence of the court or commissioners appointed by the court. Deaf and dumb
persons may also adduce evidence by signs or through interpretation or by writing, if they are literate.
Documentary evidences, on the other hand, are to be proved by the production of the documents themselves or,
in their absence, by secondary evidence under section 65 of the Act. Further, facts showing the existence of any
state of mind, such as intention, knowledge, good faith, negligence, or ill will need not be proved by direct
testimony. It may be proved inferentially from conduct, surrounding circumstances, etc.). [Paras 36, 37] -
Neeraj Dutta v. State (Govt. of N.C.T. of Delhi) AIR 2023 Supreme Court 330.
Electronic or digital records
Sec 61. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the
evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have
the same legal effect, validity and enforceability as other document.
Sec 62. The contents of electronic records may be proved in accordance with the provisions of section 63.
Sec 63 Admissibility of electronic records
Explanation of Section 63: Admissibility of Computer Output as Evidence
1. Definition of Computer Output as Evidence:
o Any information from an electronic record (printed, stored, or copied in any electronic form,
including optical, magnetic, or semiconductor memory) is treated as a document if the specified
conditions are met.
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o Such outputs are admissible as evidence without requiring further proof or the production of the
original document.
2. Conditions for Admissibility:
o Regular Use: The computer or communication device must have been regularly used during the
relevant period to create, store, or process the information for lawful activities.
o Data Input: The type of information contained in the electronic record must have been regularly
entered into the device in the normal course of activities.
o Proper Functioning: The device must have been functioning properly during the relevant
period. Any malfunctions must not have impacted the accuracy of the record.
o Data Reproduction: The information in the record must match or derive from the data fed into
the device during regular activities.
3. Multiple Devices as a Single System:
o If multiple devices were used to create, store, or process information (e.g., standalone,
networked, intermediary devices), they are considered a single system for evidentiary purposes.
4. Requirement of Certificate:
o A certificate must accompany the electronic record, including:
 Identification of the record and the method of its production.
 Details of the device(s) used to produce the record, proving compliance with the
conditions.
 Certification by a person responsible for the device or activity, stating the information to
the best of their knowledge and belief.
5. Supplementary Provisions:
o Information is deemed supplied to a device if entered directly or indirectly (with or without
human intervention).
o The output is valid whether directly produced by the device or via other electronic means or
equipment.
This section ensures that electronic records are admissible in legal proceedings, provided proper conditions and
safeguards are met.
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Electronic evidence should have complied with certification requirement –

The electronic evidence produced before the Court should have been in accordance with the statute and should
have complied with the certification requirement, for it to be admissible in the court of law. Oral evidence in the
place of such certificate, cannot possibly suffice as section 65B (4) of the Evidence Act, 1872 is a mandatory
requirement of the law. [Para 21] - Ravinder Singh Alias Kaku v. State of Punjab AIR 2022 Supreme Court
2726.
Sec 64 Rules as to notice to produce.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the
following cases, or in any other case in which the Court thinks fit to dispense with it:
(a) when the document to be proved is itself a notice; (b) when, from the nature of the case, the adverse party
must know that he will be required to produce it; (c) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force; (d) when the adverse party or his agent has the original in
Court; (e) when the adverse party or his agent has admitted the loss of the document; (f) when the person in
possession of the document is out of reach of, or not subject to, the process of the Court.
Sec 65 Proof of signature and handwriting of person alleged to have signed or written document produced.
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or
the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to
be in his handwriting.
Explanation of Sections 66 to 73: Proof of Signatures and Attested Documents
1. Section 66: Proof of Electronic Signature
o If an electronic signature (excluding secure ones) is alleged, it must be proven that the signature
belongs to the subscriber.
2. Section 67: Proof of Attested Documents
o Requirement: A legally attested document cannot be used as evidence unless at least one
attesting witness testifies to its execution.
o Exception: For registered non-will documents, calling an attesting witness is unnecessary unless
execution is specifically denied.
3. Section 68: Unavailability of Witness
o If no attesting witness is found, the following must be proven:
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 The attestation is in the handwriting of at least one witness.

 The executor’s signature matches their handwriting.
4. Section 69: Admission by a Party
o If a party admits executing an attested document, it is sufficient proof against that party, even if
the document required attestation by law.
5. Section 70: Denial by Attesting Witness
o If the attesting witness denies or fails to recall the execution, other evidence may prove
execution.
6. Section 71: Attested Documents Not Legally Required
o Documents not legally required to be attested may be proved as if they are unattested.
7. Section 72: Comparison of Signatures, Writing, or Seals
o The court can compare a disputed signature, writing, or seal with an admitted or proven sample.
o The court may direct any person present to write or provide samples for comparison.
o This provision extends to finger impressions.
8. Section 73: Proof of Digital Signature
o To verify a digital signature, the court may:
 Direct the person, Controller, or Certifying Authority to produce the Digital Signature
Certificate.
 Ask another person to verify the signature using the public key listed in the certificate.
These provisions establish guidelines for proving the authenticity of signatures, documents, and digital
signatures in legal proceedings.
Sec 74 (1) Public Documents
Public documents, as defined in Section 74 of the Indian Evidence Act, include the following:
 Documents forming the acts, records, or proceedings of a government office, legislative, judicial,
or executive authority: This includes documents issued by public officials or authorities, such as court
judgments, government orders, notifications, and official reports.
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 Public records kept in any state of India: This includes documents maintained by public offices or
authorities, such as land records, birth certificates, marriage certificates, or registers maintained by
government departments.
 Records of private bodies that are required by law to be kept and inspected by the public: This
includes records kept by institutions or bodies that are required to make them accessible for public
inspection, such as certain statutory registers or records maintained by corporations or universities.
Public documents are presumed to be genuine and accurate without requiring further proof of their authenticity.
Certified copies of public documents are admissible as evidence under Section 74(1) of the BSA.
Section 74(2) Private Documents
Private documents, include any documents that are not categorized as public documents. These are documents
created by private individuals, organizations, or entities for their internal use or personal matters.
Examples of private documents include contracts, agreements, wills, letters, and private correspondence.
Private documents need to be proved in court by complying with the rules of admissibility and proving their
authenticity. Generally, the original private document is admissible as evidence, and secondary evidence (such
as copies) may be admissible in certain circumstances.
Distinctions Between Public and Private Documents
Understanding the distinctions between public and private documents is essential for handling evidence in legal
proceedings:
Authentication: Public documents require minimal authentication due to their official nature, whereas private
documents need thorough verification to establish their credibility.
Presumptions: Public documents carry a legal presumption of truth, meaning they are accepted as accurate
unless proven otherwise. Private documents lack this presumption and require additional proof to be considered
valid evidence.
Admissibility: Public documents are generally admissible without further proof, reflecting their reliability and
official status. Private documents, on the other hand, require proof of their authenticity to be accepted in court.
These distinctions impact how evidence is evaluated and presented, influencing the strategies employed by legal
professionals in court.
In Shahzadi Begum v. Shah Khatoon (1982) 2 SCC 319, this case clarified the standards for admissibility of
public and private documents and highlighted the importance of understanding their distinct characteristics in
legal proceedings.
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Ramji Dayawala & Sons (P) Ltd. v. Invest Import (1981) 1 SCC 80, the court addressed the proper standards for
admitting private documents and emphasized the burden of proof required for their authentication.
Section 75: Certified Copies of Public Documents
Public officers in custody of public documents, which are open to inspection, must provide a copy on request
upon payment of the prescribed fee. The copy must include a certificate at the bottom stating it is a true copy,
dated, signed with the officer's name and title, and sealed if the officer is authorized to use a seal. Such copies
are referred to as certified copies.
Section 77: Proof of Public Documents
Public documents can be proved as follows:
1. Government Acts, Orders, or Notifications:
o By certified records from the respective departments.
o By documents printed by government order.
2. Parliament or State Legislature Proceedings:
o By journals, published Acts, abstracts, or government-printed copies.
3. Proclamations, Orders, or Regulations:
o By copies or extracts from the Official Gazette.
4. Foreign Government Acts or Proceedings:
o By official journals, certified copies under the country’s seal, or recognition in Indian law.
5. Municipal or Local Body Proceedings:
o By certified copies or books published under the authority of the body.
6. Foreign Public Documents:
o By the original or certified copy, with certification by a Notary Public or Indian Consul, proving
its authenticity under the foreign country's laws.
Presumptions as to documents
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In MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. – 2006 (7) TMI 576 -
SUPREME COURT the Supreme Court held that a presumption is a legal or a factual assumption drawn from
the existence of certain facts. Presumption raised under the Statute only has an evidentiary value.
The presumption is of two types-
 May presume – the Court may presume a fact, it may either regard such fact as proved, unless it is
disproved, or may call for proof of it;
 Shall presume – the Court shall presume a fact, it shall regard such fact as proved, unless and until it is
proved.
Shall presume
The following sections of Evidence Act, 1872 provides that the Court shall presume as proved
 Section 78 – Presumption as to genuineness of certified copies
 Section 79 – Presumption as to documents produced as record of evidence
 Section 80 – Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
 Section 81 – Presumption as to Gazettes in electronic forms
 Section 82 – Presumption as to maps or plans made by Authority of Government;
 Section 83 – Presumption as to collections of laws and reports of decisions
 Section 84 – Presumption as to powers of attorney
 Section 85 – Presumption as to electronic agreements
 Section 86 – Presumption as to electronic records and electronic signatures
 Section 87 – Presumption as to electronic signature certificates.
Presumption
Presumption as to genuineness of certified copies
Section 78 provides that the court shall presume to be genuine every document purporting to be a certificate,
certified copy or other document, which is by law declared to be admissible as evidence of any evidence of any
particular fact, and which purports to be duly certified by any officer of the Central Government or of a State
Government who is duly authorized thereto by the Central Government. Such document is substantially in the
form and purports to be executed thereto by the Central Government. The Court shall also presume that any
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officer by whom such document purports to be signed or certified, held, when he signed it, the official character
which he claims in such paper.
Presumption as to documents produced as record of evidence
Section 79 provides that whenever any document is produced before the Court, purporting to be a record or
memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or
before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or
accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, or by any
such Officer as aforesaid, the Court shall presume that-
 the document is genuine;
 any statements as to the circumstances under which it was taken, purporting to be made by the person
signing it are true; and
 such evidence, statement or confession was duly taken.
This section does not deal with the question of admissibility. It dispenses with the necessity of a formal proof
by raising the statutory presumption.
Presumption as to Gazettes, newspapers and other documents
Section 80 provides that the Court shall presume the genuineness of every document purporting to be the
Official Gazette or to be a newspaper or journal or every document purported to be a document directed by any
law to be kept by any person, if such document is kept substantially in the form required by law and is produced
from proper custody.
The newspaper report is admissible in evidence if the maker is examined. Newspaper report is per se do not
constitute legally acceptable evidence as held in ‘[Link] v. Union of India’ – AIR 2004 SC 1923.
Presumption as to Gazettes in electronic forms
Section 81 was inserted by the Information Technology Ac, 2000 with effect from 17.10.2000. This section
provides that the Court shall presume the genuineness of every electronic record purporting to be the Official
Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic
record is kept substantially in the form required by law and is produced from proper custody.
Presumption as to maps or plans made by Authority of Government
Section 82 provides that the Court shall presume that maps or plans purporting to be made by the authority of
the Central Government or any State Government were so made and are accurate; but maps or plans made for
the purposes of any clause must be proved to be accurate.
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The plan signed by the Executive Engineer and SDO is presumed to be genuine. No presumption of accuracy is
available about maps prepared by a private person without the authority of the Government.
Presumption as to collections of laws and reports of decisions
Section 83 provides that the Court shall presume the genuineness of every book, purporting to be printed or
published under the authority of the Government of any country, and to contain any of the laws of that country
and of every book purporting to contain reports of the decisions of the Courts of such country.
The report of a judicial pronouncement appearing in a newspaper has no presumption under section 83.
Presumption as to powers of attorney
Section 84 provides that the Court shall presume that every document purporting to be a power of attorney and
to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian
Consul or Vice-Consul or representative of the Central Government, was so executed and authenticated.
Presumption as to electronic agreements
Section 85 was inserted by the Information Technology Act, 2000 with effect from 17.10.2000. This section
provides that every electronic record purporting to be an agreement containing the electronic signatures of the
parties was so concluded by affixing the electronic signature of the parties.
Presumption as to electronic records and electronic signatures
Section 86 was inserted by the Information Technology Act, 2000 with effect from 17.10.2000. The said
section provides that in any proceedings involving a secure electronic record, the Court shall presume unless
contrary is proved, that the secure electronic record has not been altered since the specific point of time which
the secure status relates.
In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved
that-
 the secure electronic signature is affixed by subscriber with the intention of signing or approving the
electronic record;
 except in the case of a secure electronic record or a secure electronic signature, nothing in this section
shall create any presumption relating to authenticity and integrity of the electronic record or any
electronic signature.
Presumption as to electronic signature certificates
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Section 87 was inserted by the Information Technology Act, 2000 with effect from 17.10.2000. The said
section provides that the Court shall presume, unless contrary is proved, that the information listed in an
Electronic Signature Certificate is correct, except for information specified as subscriber information which has
not been verified, if the certificate was accepted by the subscriber.
May presume
The following sections of BSA provides that the Court may presume a fact either regard as proved, unless and
until it is disproved or may call for proof of it-
 Section 88 – Presumption as to certified copies of foreign records;
 Section 89 – Presumption as to books, maps or charts;
 Section 90 – Presumption as to electronic messages;
 Section 92 – Presumption as to documents thirty years old; and
 Section 93 – Presumption as to electronic records five years old.
Presumption as to certified copies of foreign records
Section 88 provides that the Court may presume that any document purported to be a certified copy of any
judicial record of any country not forming part of India or of Her Majesty’s Dominions is genuine and accurate,
if the document purports to be certified in any manner which is certified by any representative of the Central
Government in or for such country to be the manner commonly in use in that country for that certification of
copies of judicial records.
An Officer who, with respect to any territory or place not forming part of Indian or Her Majesty’s Dominions, is
a Political Agent therefore, as defined in Section 3(43) of the General Clauses Act, 1897 shall, for the purposes
of this section, be deemed to be a representative of the Central Government in and for the country comprising
that territory or place.
Here are some of the points of the High Court/Supreme under this section-
 A foreign judgment is not admissible in evidence in the absence of the certificate.
 In order to raise the presumption, admission of judgment in evidence does not become a condition
precedent.
 Certified copy of a decree of a High Court filed in a court beyond the jurisdiction of the said High
Court. Presumption of genuineness is available in spite of the absence of certificate under section 88.
Presumption as to books, maps or charts
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Section 89 provides that the Court may presume that any book to which it may refer for information on matters
of public or general interest, and that any published map or chart, the statements of which are relevant facts, and
which is produced for its inspection, was written and published by the person, and at the time and place, by
whom or at which it purports to have been written or published.
Presumption as to electronic messages
Section 90 was inserted by the Information Technology Act, 2000 with effect from 17.10.2000. The said
section provides that the Court may presume that an electronic message forwarded by the originator through an
electronic mail server to the addressee to whom the message purports to be addressed corresponds with the
message as fed into his computer for transmission; but the Court shall not make any presumption as to the
person by whom such message was sent.
Presumption as to documents thirty years old
Section 92 provides that where any document, purporting or proved to be 30 years old, is produced from any
custody which the court in the particular case considers proper, the Court may presume that the signature and
every other part of such document, which purports to be in the handwriting, and, in the case of document
executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed
and attested.
The documents are said to be in proper custody if they are in the place in which, and under the care of the
person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate
origin, or if the circumstances of the particular case are such as to render such an origin probable.
Illustrations
 A has been in possession of landed property for a long time. He produces from his custody deeds
relating to the land, showing his titles to it. The custody is proper.
 A produces deeds relating to landed property to which he is the mortgagee. The mortgagor is in
possession. The custody is proper.
 A, a connection of B, produces deeds relating to land in B’s possession which were deposited with him
by B for safe custody. The custody is proper.
The presumption under this section is a rebuttable presumption. This presumption does not attach to
anonymous documents as held by Madras High Court in AIR 1939 Mad 926.
A bench of Justice Gautam Kumar Choudhary held that mere age of the document is not conclusive proof of it’s
due execution. The Jharkhand High Court held this in the case of Sanjeeda Begam v. Md. Eqbal.
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The Background of Sanjeeda Begam v. Md. Eqbal Case

 Suit property consists of structures over plot no. 1393 and plot no. 1397.
 The ingress and egress to plot no. 1393 is through plot no. 1397 and there is no other passage. This
passage was purchased by Fateh Mohammed through registered sale deed.
 Plaintiffs claim title through Fateh Mohammad.
 The defendants assert that the property was transferred by one Suleman Kristan to Gulam Mohammad.
 The petition in this case was filed under Section 71A of the Scheduled Area Regulation Act.
 It is the case of the plaintiff that the basis of the title is Hukumnana executed on 7 th January 1950 by the
ex- landlord and the rent receipts issued by the landlord.
The Essentials of Section 92 of Bharatiya Sakshya Adhiniyam, 2023 (BSA)
 Section 92 of BSA provides for presumption as to documents that are thirty years old. This provision
was earlier found under Section 90 of IEA.
 Section 92 provides:
o Any document proved or purporting to be thirty years old
o Produced from any custody the Court considers in a particular case to be proper
o The Court may presume
 That the signature or handwriting is of the person of whom it purports to be
 In case the document is executed or attested that it was duly attested and executed by the
persons by whom it purports to be executed and attested.
 It is to be noted that the provision uses the phrase “may presume”.
o “may presume” is found in Section 2(h) of BSA.
o Section 2(h) provides that whenever it is provided by this Adhiniyam that the Court may
presume a fact, it may either regard such fact as proved, unless and until it is disproved or may
call for proof of it.
Changes in Section 92 of BSA:
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 Prima facie, it looks like the Explanation to Section 90 of IEA does not find place in Section 92 of BSA.
However, the explanation to Section 92 of BSA provides that the explanation to Section 80 of BSA
applies to this Section as well.
 Explanation to Section 80 of BSA states: “For the purposes of this section and section 92, document is
said to be in proper custody if it is in the place in which, and looked after by the person with whom such
document is required to be kept; but no custody is improper if it is proved to have had a legitimate
origin, or if the circumstances of the particular case are such as to render that origin probable.”
The Case Laws on Section 90 of IEA (Section 92 of BSA)
 Sri Lakni Baruan And Others v. Sri Padma Kanta Kalita & Othrs. (1996)
o The Court in this case held that this Section is based on necessity and convenience because it is
extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature
or execution of a document that is 30 years old.
o Section 90 of IEA does away with the strict rule of proof of private documents.
o It is to be noted that if the document produced from the proper custody is a copy admitted under
Section 65 as secondary evidence and it was thirty years old the signature authenticating the
copy might be proved to be genuine. But this would not be sufficient to justify the presumption
of due execution of original under Section 90.
o Thus, the position is clear that presumption under Section 90 of IEA does not apply to a copy or
certified copy even though thirty years old.
o Lastly, the Court also held that it is the discretion of the Court to raise or not to raise the
presumption under Section 90 of IEA.
 Ashutosh Samanta (d) By LR’s & Ors v. SM. Ranjan Bala Dasi & Ors. (2023)
o The issue before the Court was whether Section 90 of IEA would be applicable in case of wills.
o The Supreme Court in this case cited the judgment of Bharpur Singh v. Shamsher Singh
(2009) wherein it was held that presumption regarding documents 30 years old does not apply to
a will.
o The Court hence held in this case that wills cannot be proved only on the basis of their age rather
it has to be proved in terms of Section 63 (c) of the Succession Act, 1925 and Section 68 of IEA.

Presumption as to electronic records five years old

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Section 93 was inserted by the Information Technology Act, 2000 with effect from 17.10.2000. The said
section provides that where an electronic record, purporting to be proved to be 5 years old, is produced from
any custody which the Court in the particular case considers proper, the Court may presume that the electronic
signature which purports to be the electronic signature of any particular person was so affixed by him o any
person authorized by him in this behalf.
The electronic records are said to be in proper custody if they are in the place in which and under the care of the
person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin,
or the circumstances of the particular case are such as to render such an origin probable.
Exclusion of Oral Evidence by Documentary Evidence.
Documents are considered as the most authentic evidence of agreements, contracts, and property
dispositions. Sections 94 and 95 of Bharatiya Sakshya Adhiniyam,2023(BSA), gives priority to documentary
evidence over oral evidence. These sections aim to stop disputes and conflicts by making it sure that written
documents are the primary source of proof in legal matters.
Exclusion of Oral Evidence by Documentary Evidence
The exclusion of oral evidence by documentary evidence means when the terms of a contract, grant, or any
property-related transaction are documented, the document itself should be given as evidence and no other
evidence is acceptable. Oral statements cannot be given to change,rebut, or add to the terms of the written
document, except in certain circumstances allowed by law.
Primacy of Documentary or written Evidence (Section 94 of BSA): It sheds light on the crucial role of
written documentation in legal matters, particularly concerning contracts, property grants, and the legal
necessity for written documents. It firmly establishes that when these matters are documented in writing, the
written document itself becomes the primary and most reliable form of evidence. Section 94 of BSA highlights
that the document itself must be given to prove its contents reinforcing the fundamental principle of best
evidence.
Exceptions in Section 94:
 If a person has acted as a public officer, the document used in his appointment does not need to be
proved.
 In India wills admitted to probate can be proved by the probate itself.
Applicability of Section 94
For Section 94 of BSA to come into play, the document in question must either be a contract, grant, or a
disposition of property,even if it’s not legally mandated to be in writing. Section 94 of BSA extends its reach to
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both voluntary and compulsory documentary transactions. Whether these agreements are encapsulated within a
single document or scattered across multiple papers (as elucidated in Explanation 1 to Section 94), all relevant
documents must be presented as evidence to validate the contract’s legitimacy.
Moreover, when multiple original copies exist, Section 94 of BSA deems it adequate to prove just one of them,
as stipulated in Explanation 2 to Section 94. Illustration-if a bill of exchange is in a set of three, it suffices to
establish the reliability of a single copy as evidence.
Exclusion of Oral Evidence
Under Section 94 of BSA there is a cardinal principle that oral evidence is not acceptable for proving the
important “terms” of a contract, grant, or a similar transaction. These important terms enclose crucial elements
such as consideration or conditions precedent and cannot be substantiated verbally. However, it’s worth saying
that oral evidence can still be given to establish facts beyond the scope of these important terms, as clarified in
Explanation 3 to Section 94.
Exclusion of Oral Agreements (Section 95 of BSA): Section 95 of Bharatiya Sakshya Adhiniyam,2023(BSA)
complements Section 94 by specifying that any alterations, modifications, or additions to documents governed
by Section 94 must also be substantiated with documentary evidence. This strengthens the idea that written
records hold prime importance in legal proceedings.
Provisos under Section 95
Exceptions to the general rule of barring oral evidence from contradicting or altering the terms of a document
are delineated in the six provisions within the Section 95 provisos. These exceptions encompass various
scenarios, including:
 Proviso 1 : Oral evidence is allowed if it invalidates the document.
 Proviso 2: Separate oral agreements consideration in conjunction with the written document.
 Proviso 3: Allowing oral agreements as conditions precedent to the written document.
 Proviso 4 : Oral subsequent agreements admissibility for actions like rescission or renewal of a contract.
 Proviso 5: Use of oral evidence permissible to prove usage or custom annexed to the contract.
 Proviso 6: Incorporating extrinsic evidence of surrounding circumstances.
Exceptions
General rule is that documentary evidence takes primacy, there are exceptions as well-
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 Fraud,unlawfulness,or Mistake: Oral evidence is admissible for proving issues like fraud, illegality, or
mistakes that could contradict the document.
 Silent Matters: Oral agreements on matters not covered by the document, and those oral agreements that
do not counter its terms, may be proved.
 Conditions Precedent: Oral agreements that must be satisfied before the contract becomes enforceable
are considered admissible.
 Modifications or Rescissions: Oral agreements modifying or negating a contract after it has been made
can be admitted unless the law needs the contract to be in written or registered form.
Examples
 If an insurance policy covers goods shipped from Goa to Visakhapatnam, an oral agreement to prohibit a
particular ship from the insurance policy cannot be proved in court.
 A written contract needs payment on April 1, 2024, cannot be countered by an oral agreement holding
payment until April 31, 2024.
 If a deed of property had a map, oral evidence cannot be given to claim that land not visible on the map
to be included in the sale.
 If someone is convinced to sign a contract on false representations, this can be proved with oral
evidence, even if the contract is in written form.

The exclusion of oral evidence by documentary evidence is important for preserving the integrity and
authenticity of legal documents. By giving supremacy to written evidence, the law lowers the risk of
controversies and makes sure that agreements are transparent and enforceable. This helps in creating a steady
legal environment where parties can believe that their written agreements will be upheld.
In legal proceedings, when documentary evidence clashes with oral testimony, the written record typically
prevails due to its clarity, reliability, and adherence to the principles enshrined in Section 94 and Section 95 of
the Bharatiya Sakshya Adhiniyam,2023(BSA). These sections underscore the paramount importance of written
documentation while providing well-defined exceptions for the admissibility of oral evidence in specific
situations.
Burden of Proof Burden and Proof Distinction Burden of Proof and Onus Probandi.
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 The Bharatiya Sakshya Adhiniyam, 2023 (BSA), earlier the Indian Evidence Act, 1872 (IEA) is a
crucial piece of legislation that governs the admissibility of evidence in Indian courts.
 One of the key principles enshrined in this act is the concept of the burden of proof, which determines
which party is responsible for proving a particular fact in a legal proceeding.
 Chapter VII of BSA states the provisions of the Burden of Proof.
 These provisions collectively aim to create a balanced approach to proving facts and establishing legal
presumptions, ensuring that the responsibility for evidence is placed on the party best positioned to
provide it.
 The burden of proof refers to the obligation of a party in a legal dispute to prove their claims or
assertions.
 Under the BSA, the burden of proof is primarily governed by Section 104 to Section 114.
 These Sections delineate the responsibilities of the parties involved in a case and establish the standards
for presenting evidence.

What is burden of proof?

The burden of proof refers to the responsibility placed on a party to prove the existence of certain facts or
elements essential to their case. In simpler terms, it is the obligation to provide sufficient evidence to convince
the court of the validity of one’s claim.
 Static Nature: The burden of proof remains constant throughout the legal proceedings and typically
falls on the party who asserts the affirmative of the issue. For instance, in a civil case, the burden usually
lies on the plaintiff, while in a criminal case, it rests on the prosecution.
 Establishing a Case: It involves proving the entire case to the satisfaction of the court. This means that
the party bearing the burden of proof must present evidence supporting all the necessary facts and
elements required to establish their claim.
 Embodied in Section 104: Section 104 explicitly defines the burden of proof and specifies that whoever
desires the court to give judgment on a legal right or liability dependent on certain facts must prove
those facts.
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What is onus of proof?

On the other hand, the onus of proof refers to the burden of adducing evidence or presenting proof of specific
facts alleged by a party. Unlike the burden of proof, which remains constant, the onus of proof can shift during
the trial based on the evidence presented by each party.
 Dynamic Nature: The onus of proof is dynamic and may shift from one party to another depending on
the evidence presented during the trial. Initially, it lies on the party who would be unsuccessful if no
evidence at all was given on either side.
 Matter of Adducing Evidence: It primarily involves the presentation of evidence to support specific
assertions made by a party. This could include proving the authenticity of documents, establishing the
credibility of witnesses or demonstrating the occurrence of certain events.
 Embodied in Section 105: Section 105 addresses the onus of proof, stating that it lies on the party who
would be unsuccessful if no evidence at all was given on either side initially.
Provisions related to Burder of Proof
 Section 104: Burden of Proof
o Section 104 of the BSA states that the burden of proof lies on the party who asserts the existence
of any fact.
o This means that if a party claims that a certain fact is true, it is their responsibility to provide
evidence supporting that claim.
o For example, in a criminal case, the prosecution bears the burden of proving the guilt of the
accused beyond a reasonable doubt.
Illustrations.
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason
of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
 Section 105: On whom Burden of Proof Lies
o Section 105 clarifies that the burden of proof in civil cases lies on the party who would fail if no
further evidence were presented.
o This section emphasizes that the party making the claim must substantiate it with adequate
evidence, while the opposing party may only need to counter the evidence presented.
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Illustrations.
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C,
B's father. If no evidence were given non either side, B would been titled to retain his possession.
Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was
obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the
bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.
 Section 106: Burden of Proof as to Particular Facts
o Section 106 of BSA addresses situations where a party wishes to rely on a particular fact that is
not part of the general burden of proof.
o In such cases, the party must prove the existence of that specific fact.
 Section 107: Burden of proving Fact to be proved to make Evidence Admissible
o Section 107 of BSA states that the burden of proving a fact that is essential to the case lies on the
party who wishes to rely on that fact.
o This section reinforces the principle that parties must provide evidence for the facts they intend
to use in their arguments.
 Section 108: Burden of proving that Case of Accused comes within Exceptions
o Section 108 of BSA states that when someone is accused of an offense, the responsibility lies
with the accused to prove that their actions fall under any general or special exceptions outlined
in the law.
o The court will assume that such exceptional circumstances do not exist unless proven
otherwise.
o This means the accused must actively demonstrate why their actions should be considered
exempt from typical legal consequences.
 Section 109: Burden of proving Fact especially within Knowledge
o Section 109 of BSA states that in legal proceedings, if a specific fact is something that only a
particular person would know intimately, that person bears the burden of proving such a fact.
o This principle ensures that individuals with direct, unique knowledge are responsible for
substantiating claims that only they can effectively explain.
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Section 109 of Bhartiya Sakshya Adhiniyam, 2023(BSA)

 Section 109 of Bhartiya Sakshya Adhiniyam 2023 (BSA) is given under part IV under chapter VII.
 Earlier the same section was covered under Section 106 of the IEA, under part III under chapter VII.
 Section 109, Burden of proving fact especially within knowledge states as follows —
o When any fact is especially within the knowledge of any person, the burden of proving that fact
is upon him.
o Illustration:
 When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.
 A is charged with travelling on a railway without a ticket. The burden of proving that he
had a ticket is on him.”
Res Ispa Loquitor and Prima Facie Evidence
 Prima facie evidence is evidence which helps to prove or disprove the fact.
 While the Res Ispa Loquitor is applied when no other reasonable cause is present for the event and the
facts are evident of the liability.
 Both doctrines are not conclusive and can be rebutted.
What are Landmark Judgements Related to Res Ispa Loquitor?
 Nagendra Shah v. State of Bihar (2021):
o The Supreme Court reinforced that, in cases resting on circumstantial evidence, an accused's
failure to provide a reasonable explanation as required by Section 106 of IEA could serve as an
additional link in the chain of circumstances.
 Shambhu Nath Mehra v. The State of Ajmer (1956):
o The Supreme Court held that word especially stresses that it means facts that are pre-eminently
or exceptionally within his knowledge.
o If the section were to be interpreted otherwise, it would lead to the very startling conclusion that
in a murder case the burden lies on the accused to prove that he did not commit the murder
because who could know better than he whether he did or did not.
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 Anees v. The State Govt of NCT (2015):

o In this case the Supreme Court expounded the principles relating to the application of Section
106 of the IEA
 Sri Rajen Nayak v. The State of Assam & Anr (2024):
o It was held that the accused has a right to remain silent and the burden of proof cannot be shifted
upon the accused under the provisions of Section 106 of the IEA when multiple witnesses to the
crime were present.
Section 109 of BNS is an exception to Section 104 of BNS (earlier section 109 of BNS was covered under
Section 106 of IEA and section 104 of BNS was covered under Section 101 of IEA). The facts predominantly in
the knowledge of the accused need not be proved. A prima facie case must be established for applying the
maxim of Res Ispa Loquitur by the prosecution. This maxim comes into play in cases of custodial death, dowry
death and in cases of alibi.
 Section 110: Burden of proving Death of Person known to have been alive within Thirty years
o Section 110 of BSA states regarding questions of life and death, the legal system has specific
rules for establishing proof.
o If it can be shown that a person was alive within the past 30 years, anyone claiming that the
person is now dead must provide evidence to support that assertion.
 Section 111: Burden of proving that person is alive who has not been heard of for seven years.
o Section 111 states if someone has not been heard from for seven years by people who would
typically be in contact with them (such as family or close friends), the burden shifts to those
claiming the person is still alive to prove their existence.
 Section 112: Burden of proof as to Relationship in the cases of Partners, Landlord and Tenant,
Principal and Agent
o Section 112 states that the law also addresses presumptions in certain relationship contexts.
o When individuals have been demonstrably acting as partners, landlord and tenant, or principal
and agent, anyone claiming that such a relationship does not exist or has ended must provide
proof to support their claim.
o This approach prevents unnecessary disputes by placing the burden of proof on the party
challenging an apparently existing relationship.
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 Section 113: Burden of Proof as to Ownership

o Section 113 states that in matters of ownership, if someone is found in possession of something,
they are presumed to be the owner.
o Anyone challenging this ownership must provide evidence to prove that the possessor is not the
actual owner.
o This principle protects current possessors and provides a clear standard for establishing
ownership.
 Section 114: Proof of Good Faith in transactions where one party is in relation of Active
Confidence
o Section 114 states that in transactions involving parties with unequal power dynamics,
particularly where one party is in a position of active confidence (such as a fiduciary
relationship), the burden of proving the transaction's good faith falls on the party in the more
powerful position.
o This rule helps protect vulnerable parties from potential exploitation by requiring those with
greater influence to demonstrate the fairness and integrity of their actions.
Implications of the Burden of Proof
 The burden of proof has significant implications for the conduct of legal proceedings.
 It influences the strategies employed by both parties, as they must carefully consider how to present
their evidence and arguments.
 Additionally, the burden of proof plays a critical role in ensuring fairness in the judicial process, as it
prevents parties from making unfounded claims without the requisite evidence.
In the case of Kali Ram v. State of Himachal Pradesh, the Supreme Court emphasized the fundamental
principle that an accused is presumed innocent until proven guilty. The Court held that the prosecution bears
the burden of proof and must provide sufficient evidence to rebut the presumption of innocence. If the
prosecution fails to do so, the accused must be given the benefit of doubt. This principle is particularly
critical when dealing with circumstantial evidence, as the Court stated that if two possible views exist—one
favorable to the accused and the other against: the view that benefits the accused should be adopted.
Furthermore, the Court highlighted that the conviction of an innocent person is a far graver issue than the
acquittal of a guilty individual. It emphasized the need for strict adherence to the presumption of innocence
and the burden of proof, ensuring impartiality in judicial proceedings. The Court underscored that wrongful
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convictions harm the public trust in the judicial system and that judges must remain neutral and
independent. To safeguard against abuse, Indian law empowers judges under Section 168 of BSA to act with
discretion to ensure justice is served, preventing both wrongful acquittals and unlawful convictions.
Applications of the Burden of Proof in cases
Criminal Law
Dahyabhai v. State of Gujarat, AIR 1964 SC 1563, In criminal cases, the prosecution bears the burden of
proving the accused’s guilt beyond a reasonable doubt. Sections 111 and 112 further delineate scenarios
where the accused must provide evidence, such as when invoking exceptions or justifying actions under
specific circumstances. This standard ensures that the rights of the accused are protected, reflecting the
principle that it is better for a guilty person to go free than for an innocent person to be wrongfully
convicted. Special provisions also exist for specific crimes, such as terrorism or drug trafficking, where
presumptions may shift the burden of proof in limited contexts to balance public safety concerns with
individual rights.
Civil Law
In civil disputes, the burden of proof typically rests on the claimant, as highlighted in Sections 108 . For
instance, a plaintiff in a breach of contract case must prove the existence and violation of the contract.
However, the standard of proof in civil cases is usually the "preponderance of evidence," which is less
stringent than the criminal standard.
This distinction is designed to account for the different stakes involved in civil versus criminal cases.
Additionally, certain civil matters, such as negligence claims, may require the claimant to prove not only the
occurrence of a breach but also causation and damages, The Managing Director, Kerala Tourism v. Deepti
Singh (2019) 1 WLC(SC)CVL 788.
Moreover, in cases involving statutory rights, such as consumer protection or environmental damage claims,
courts may impose specific evidentiary requirements tailored to the nature of the dispute. This ensures
fairness while promoting accountability among parties engaged in such specialized disputes.

Property Disputes
Sections 113 simplify property-related disputes by establishing presumptions about ownership and life
status, requiring challenging parties to present evidence to refute these presumptions. For example, a person
in possession of a property is presumed to be its rightful owner unless proven otherwise. This principle
prevents frivolous claims and promotes stability in property ownership. (Presumption based on the
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maxim 'possession follows title' that possession must be deemed to follow title, arises only where there is
no definite proof of possession by anyone else.) Nazir Mohamed v. J. Kamala Case no. CIVIL APPEAL
NOS. 2843-2844 OF 2010.
In cases involving ancestral or disputed land, courts often rely on documentary evidence, witness testimony,
and expert evaluations to ascertain ownership. M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors Civil
Appeal Nos 10866-10867 of 2010.
In addition, laws surrounding adverse possession require the claimant to prove uninterrupted and open
possession for a statutory period, adding an extra layer of complexity. Such cases often involve detailed
analysis of historical records and long-standing usage patterns to resolve ownership conflicts.
Family Law
In family law cases, such as disputes over paternity or inheritance, the burden of proof ensures clarity
and justice. For example, proving the existence of a marriage may fall under Section 116. DNA testing and
other scientific methods have increasingly played a critical role in resolving family disputes, particularly in
paternity cases, where the burden of proof may involve balancing ethical considerations with legal
imperatives Bhabani Prasad Jena Etc vs [Link]. Orissa [Link]. 2010 (8) SCC 633.
Similarly, in inheritance disputes, the claimant must establish their legal entitlement, often by presenting
wills, birth certificates, or other documents. Family law also addresses sensitive issues such as child
custody, where the burden of proof may focus on demonstrating the best interests of the child. This involves
evaluating parental behavior, living conditions, and emotional bonds, requiring a holistic approach to ensure
fair outcomes.
Justice Thomas, in the case of State of West Bengal v. Mohd. Omar, highlighted the necessity of
reevaluating this traditional concept. He argued that the conventional approach, which places the burden of
proof solely on the prosecution, often benefits individuals accused of heinous crimes, potentially leading to
societal harm.
In instances where the prosecution successfully establishes certain key facts, the court is required to
infer the existence of related circumstances and rely on the evidence presented. Once the prosecution
satisfies the court with credible proof, the burden of proof shifts to the accused. This shift occurs because
the accused is often uniquely positioned to provide information about the incident in question. This principle
is referred to as the "reverse onus clause," where the responsibility to prove innocence lies with the accused
under specific conditions.
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MODULE V: PRESUMPTION-ESTOPPEL
Presumption Of Facts and Presumption of Law
Courts use presumptions to form conclusions about the existence of particular facts. It is not necessary
for the party who is considered to be in the right to rely on presumptive facts to bear the burden of evidence.
However, presumptions are a type of an exceptions to the general rules, which states to the party that claims
to have discovered a given truth has the initial burden of evidence.
To put it another way, presumptions are inferences made the validity or an untruth of the thing by
applying a simple process of likely to be reasoning to what should be taken for granted. It is argued that a
presumption operates when certain facts are presumed to exist even when if there is no any complete
evidence or proof of their existence. Presumption which is the rule that if only one fact which is known as
the main fact is proven, then another known as the supposed fact is accepted as proven if there is no counter
proof of the same.

Certain facts are routinely regarded the same way regardless of whether or not they serve as verification of
another fact. Where it is the inference which is drawn from the known and proven facts. Unless it is proven
otherwise, judges and juries utilise the law of presumption to deduce a conclusion from a fact or piece of
evidence."

"As a general rule, if one fact or set of facts in a case or circumstance is taken as prima facie evidence, and
if that evidence supports the other facts relating to that fact, the facts can be taken as proven until
contradicted.
Definitions
Sec 2 (l) "shall presume". Whenever it is directed by this Adhiniyam that the Court shall presume a fact,
it shall regard such fact as proved, unless and until it is disproved.
Sec 2 (h) "may presume”. Whenever it is provided by this Adhiniyam that the Court may presume a fact,
it may either regard such fact as proved, unless and until it is disproved or may call for proof of it;
Sec 2 (b) "conclusive proof" means 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;
Kind of Presumption-
Presumptions are of three kinds- 1. Presumption of fact or Natural presumption, 2. Presumption of law
(rebuttable and unrebuttably) and 3. Mixed presumption (presumption of law and fact).
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Presumption of Fact- Presumption of fact are inference which are naturally drawn from the observation of the
course of nature and the constitution of human mind. The examples given above are the example of the
presumption of fact. Section 119 of the Act and the illustrations under the Section are examples of presumption
of facts. Sections 88, 89, and 92 also deal with the presumption of fact. These presumptions are generally
rebuttable.
Presumption of Law- Presumption of law is two kinds-
 Rebuttable Presumption - "Presumptions that can be rebutted are known as Rebuttable Presumptions
since they are presumptions that can be rebutted. Despite the fact that it is difficult to gauge the
magnitude of such these presumptions, their truthfulness may only be assumed until proven otherwise.
For an ex. if a man or anybody is in possessions of stolen property, it is evident that they are either a
"thief" or a "receiver". That's a classic illustration of rebuttable presumptions.
 Irrebuttable Presumption - "Ir-rebuttable It's impossible to disprove these assumptions with any more
evidence or argument. Because of this, the hypothesis described falls under the umbrella or roof of a
conclusive hypothesis or presumption, and the falsity of which cannot be proven. Children less than
seven years old are regarded to be incompetent criminals."
Distinction between Presumption of Fact and Presumption of Law-
1. Presumption of Fact is based on logic, human experience and law of nature.
Presumption of law is based on provisions of law.
2. Presumption of fact is always rebuttable and goes away when explained or rebutted by establishment of
positive proof.
Presumption of law is conclusive unless rebutted as provided under rule giving rise to presumption.
3. The position of presumption of fact is uncertain and transitory.
The position of presumption of law is certain and uniform.
4. The court can ignore presumption of fact however strong it is.
The court cannot ignore presumption of law.
5. The presumption of facts is derived on basis of law of nature, prevalent customs and human experience.
Presumption of laws is derived on established judicial norms and they have become part of legal rules.
6. The court can exercise its discretion while drawing presumption of fact i.e., presumption of facts is
discretionary presumption.
Presumption of law is mandatory i.e., court is bound to draw presumption of law.
Mixed presumptions- Mixed presumptions of law and fact are chiefly confined to the English law of real
property so it is not necessary to presume subject here. The BSA has made provisions for the presumptions of
fact and law. In certain sections of the Act it has been provided that “the court may presume” certain facts. In
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some other sections the words “the court shall presume a fact” has been used. There are certain sections in
which it is said that a certain fact is conclusive proof of certain another fact.

Presumption as to certain offences Sec 115

(1) Where a person is accused of having committed any offence specified in sub-section (2), in

(a) any area declared to be a disturbed area under any enactment for the time being in force, making provision
for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public
peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives
were used at or from that place to attack or resist the members of any armed forces or the forces charged with
the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary
is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely:

(a) an offence under section 147, section 148, section 149 or section 150 of the Bharatiya NyayaSanhita, 2023;

(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 149 or section 150 of the
Bharatiya Nyaya Sanhita, 2023.

Sec 116 Birth during marriage, conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and any man,
or with in two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have been begotten.

 Section 116 - Birth during marriage, conclusive proof of legitimacy –– The fact that any person was
born during the continuance of a valid marriage between his mother and any man, or within two hundred
and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive
proof that s/he is the legitimate daughter/son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have been begotten.
 Conclusive Proof is defined by Section 2 (1) (b) of IEA as:
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o When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof
of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.
 The conclusive proof of paternity can only be rebutted by proving non-access by the husband at the
time of conception of the child. Access here means actual marital intercourse.
o It must in all cases be established that at the time of conception, there was no chance that
husband and wife could have access to each other. E.g. One was in London whereas the other
was in India at the time of conception.
 Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik (2014):
o The SC held that the IEA was enacted at the time when modern scientific techniques were not in
existence. When the truth is known there is no scope of presumption but where there is conflict
between conclusive proof and modern scientific techniques, the latter must prevail over the
prior.

 Dipanwita Roy v. Ronobroti Roy (2015):

o Husband’s Allegation of Infidelity – The husband, in his petition under Section 13 of the Hindu
Marriage Act, 1955, claimed that his wife was unfaithful and identified another person as the
father of the child.
o Request for DNA Test – To substantiate his claim, the husband sought a DNA test to determine
the child’s paternity.
o Challenge in Proving Infidelity – The husband struggled to provide direct evidence of the
alleged adultery, making a DNA test the most reliable scientific method to prove his claim.
o HC’s DNA Test Order Upheld – The Supreme Court (SC) ruled that the High Court’s directive
for a DNA test was justified in this context.
o Link to Adulterous Behavior – The husband's request for the DNA test was directly connected
to his allegation of his wife’s infidelity.
o Section 112 of IEA & Modern Science – The court acknowledged that Section 112 of the Indian
Evidence Act, 1872, which establishes a presumption of legitimacy, was enacted before the
advent of DNA testing.
o Presumption Can Be Challenged – The court noted that while Section 112 provides a
conclusive presumption, it is not absolute and can be rebutted with scientific evidence.
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o Scientific Evidence v. Legal Presumption – The SC recognized DNA testing as a highly

accurate scientific tool and emphasized that when legal presumptions conflict with globally
accepted scientific evidence, the latter should prevail.
o Justice & Best Scientific Methods – The court ruled that in cases where scientific evidence
contradicts legal presumptions, courts should prioritize scientific accuracy over legal
technicalities to ensure justice.
Gautam Kundu v. State of West Bengal
The Supreme Court held in this case that (a) Courts cannot order a blood test as a matter of course, (b) There
should exist a prima facie case in that the husband must establish 'non-access' in order to dispel the
presumption arising under section 112 before a test can be ordered, and (c) The Court should carefully
analyse with respect to what might be the outcome of requesting the blood test; whether it will have the
impact of marking a child as a bastard and the mother as an unchaste woman.
Sharda v. Dharmpal
A three Judge bench of the Supreme Court held that (a) A matrimonial court has the authority to direct a
person to submit to medical tests, (b) Such an order of the Court will not violate a person's Right to Personal
Liberty under Article 21 of the Indian Constitution, and (c) The Court must exercise this authority only if the
applicant has a strong prima facie case and there is suffident material before the Court. The Court also stated
that if despite the order of the Court, the respondent does not submit himself to medical examination, the
court will be entitled to draw an adverse inference against him.
Thus, presently, the Court has the power to demand a person to undergo medical tests. However, under
section 112 of the Act, the Court can only give such orders if non-access is proved. From the language of the
judgement in the case of Gautam Kundu, we can see the moral driving force behind this section which is no
longer applicable in the modern era.
Sec 117 Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband
or any relative of her husband and it is shown that she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty,
the Court may presume, having regard to all the other circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband.
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Section 117 of BSA

 This Section states that when the question is whether the commission of suicide by a woman had been
abetted by her husband or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the court may presume, having regard to all the
other circumstances of the case, that such suicide had been abetted by her husband or by such relative
of her husband.
 For the purposes of this section, cruelty shall have the same meaning as in section 498A of the Indian
Penal Code, 1860 (IPC).
Scope of Section 117 of BSA
 This Section deals with the question of abetment of woman’s suicide by her husband or any of relatives.
In such cases, a presumption arises, that such a suicide has been abetted by the husband or his relatives,
if the following the three conditions are satisfied:
o The question before the Court should be whether the commission of suicide by a married woman
was the result of abetment by her husband or relatives.
o The suicide must have taken place within a period of seven years from the date of her marriage.
o There must be some evidence to show that her husband or his relatives has subjected her to
cruelty.
 This Section is retrospective in nature and so it applies to cases where an offence was committed prior
to the insertion of Section.
Presumption is Not Mandatory
 Section 117 of BSA is not conclusive but rebuttable.
 This Section gives the discretion to the Court to raise such a presumption, having regard to all the
other circumstances of the case.
 The Court must consider the nature of cruelty to which the woman was subjected, having regard to the
meaning of the word cruelty.
 In the case of Hans Raj v. State of Haryana (2004), the Supreme Court observed that even if the
prosecution has established the necessary conditions, the Court is not bound to presume that the
suicide has been abetted by her husband.
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Effect of Section 117 of BSA

 The effect of presumption under this Section is that if some proof is available of the fact that a married
woman was subjected to cruelty of her husband, or his family members and she has committed suicide
within seven years of her marriage, the Court may presume that the suicide had been abetted by her
husband or his family members. This may be called the presumption of abetment.
 It will be then for the husband or his relatives to prove that the suicide in question was the woman’s
personal choice.
Sec 118 Presumption as to dowry death.
When the question is whether a person has committed the dowry death of a woman and it is shown that soon
before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section, "dowry death" shall have the same meaning as in section 80 of the
Bharatiya Nyaya Sanhita, 2023.
Section 118 :Presumption as to dowry death as to presumption of law:
Under Section 113B of Evidence Act, the legislature has chosen to use the expression 'shall presume' is a
presumption of law, which indicates that it is mandatory and obligatory for the Court to draw the inference and
no option is left. But it is rebuttable, though at the same time it is not lightly to be repelled. The evidence for the
purpose of rebutting or repelling it must be strong, distinct, satisfactory and of a conclusive nature.
As per section 4 of the Indian Evidence Act, whenever word conclusive proof is used then it can be
interpreted that, when one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of
disproving it. And thereby allocated burdens of persuasion in prosecutions under section 304-B.
The Court is bound to take the fact of dowry death where it is shown that a woman was subjected to
cruelty in connection with demand of dowry before her death as proved until very strong, cogent and positive
evidence is given in rebuttal by the accused, that the person has not committed dowry death.
Where the death of the wife was concurrently found to be unnatural viz. by strangulation, and there was
demand for dowry and also there was cruelty on the part of the husband, the presumption under sec. 113B must
be held to be rightly drawn. (Hemchand vs. State of Haryana AIR 1995 SC 120).
Burden of proof
Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the
prosecution or the plaintiff). If distinction is drawn between the persuasive (or legal) burden, which is carried by
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the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden
(burden of adducing evidence), which is the duty of showing that there is sufficient evidence to raise an issue fit
for the consideration of the Trier of fact, As to the existence or non-existence of a fact in issue.
The responsibility to prove a thing is called burden of proof. When a person is required to prove the existence or
truthfulness of a fact, he is said to have the burden of proving that fact.
In a case, many facts are alleged and they need to be proved, before, the Court can base its judgment on such
facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case
to the required degree of certainty in order to prove its case.
Ram Gopal v State of Maharashtra (1972) 4 SCC 625:
Facts: The appellant Ram Gopal was charged with the murder of Zingrooji Sita Ram. It was established that Sita
Ram was poisoned and died on his way to the hospital. The prosecution argued that Ram Gopal had
administered the victim some insecticide in kerosene oil either with tea or in water and it was a result of the
poisonous insecticide that Sita Ram died. The post-mortem report suspected death by poisoning and a chemical
analyst's report confirmed the presence of an organo chloro compound in the viscera of the deceased. The
prosecution argued that the defendant's motive to murder Sita Ram was established by the fact that prior to his
death.

Sita Ram had sold a piece of land to Ram Gopal. However Ram Gopal had not paid him anything but had
promised to pay the amount within six weeks of the execution of the sale deed. Despite constant pestering, Ram
Gopal kept putting off Sita Ram on some pretext or the other.
History
The prosecution's case relied on the post-mortem chemical analysis of the viscera which showed the presence of
an organo-chloro compound. It argued that the deceased had sickened and died after a visit to the accused.
Opportunity and the means of death had been established.

Ram Gopal was sentenced to death by the Sessions Judge Nagpur and this was confirmed by the High Court of
Bombay (Nagpur Bench). In appeal to the Supreme Court against the death sentence the Apex Court stated that
the prosecution's case had too many gaps. There was no evidence to show that the accused was ever in
possession of any organo-chloro compound. It was improbable that such a large dose of a kerosene-based
poison that was fatal could have been consumed by the victim without noticing it and other possibilities like
suicide had not been ruled out. This was sufficient to give the accused the benefit of doubt and the Apex Court
reversed the verdict of the lower courts.
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In Shamlal vs. State of Haryana: AIR 1997 SC 1830:

The Supreme Court had occasion to deal with sec. 113-B. It stated that it is imperative, for invoking the
presumption under sec. 113-B, to prove that 'soon before her death' she was subjected to such cruelty or
harassment.
Where the prosecution could only prove that there was persisting dispute between the two sides regarding the
dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry,
the wife was taken by the parents to their house about one and a half years before her death and further that an
attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved
that she would go back to the nuptial home pursuant to which she was taken back by the husband in his house
about 10-15 days prior to the occurrence, but there was nothing on record to show that she was either treated
with cruelty or harassed with the demand for dowry during the period between her having been taken to the
parental home and her death, it is not permissible to take recourse to the legal presumption under sec. 113B.
Irrespective of the fact whether the accused has any direct connection with the death or not, he shall be
presumed to have committed dowry death provided the ingredients of the section have been proved.
Gurbachan Singh vs. Satpal Singh: 1990 Crl LJ 562 (SC), the circumstantial evidence showed that the wife
was compelled to take the extreme step of committing suicide as the accused person had subjected her to cruelty
by constant taunts, maltreatment and also by alleging that she had been carrying an illegitimate child. The
suicide was committed within seven years after the marriage. The Supreme Court held that presumption under
sec. 113-B could be drawn.
Section 119(1) - Presumptions of Fact
The Court may presume the existence of any fact it considers likely to have occurred, taking into account the
ordinary course of natural events, human conduct, and public or private business, in relation to the specific facts
of the case.
Illustrations:
The Court may presume that—
(a) A person found in possession of stolen goods soon after the theft is either the thief or has received the goods
knowing them to be stolen, unless they provide a reasonable explanation for their possession.
(b) An accomplice's testimony is unreliable unless corroborated by material evidence.
(c) A bill of exchange that has been accepted or endorsed was done so for valid consideration.
(d) A state of things shown to have existed within a reasonable period continues to exist unless proven
otherwise.
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(e) Judicial and official acts have been performed regularly.

(f)The common course of business has been followed in specific cases.
(g) Evidence that could have been produced but was not may have been unfavorable to the party withholding it.
(h) If a person refuses to answer a question, they are not legally compelled to answer, their response, if given,
would have been unfavorable to them.
(i) If an obligor possesses a document creating an obligation, it is presumed that the obligation has been
discharged.
Section 119(2) - Considerations for Applying These Presumptions
In determining whether these presumptions apply, the Court shall also consider factors such as:
(i) For Illustration (a): A shopkeeper possessing a stolen marked rupee soon after theft may not necessarily be
guilty if they regularly receive rupees in business transactions.
(ii) For Illustration (b): If a person of high character is accused of negligence, but another equally reputable
person involved in the act explains their shared carelessness, this must be considered.
(iii) For Illustration (b): If multiple criminals are caught separately and independently provide corroborating
statements implicating another person, it reduces the likelihood of prior collusion.
(iv) For Illustration (c): If a businessperson draws a bill of exchange and the acceptor is a young,
inexperienced individual under their influence, the validity of consideration should be examined.
(v) For Illustration (d): A river’s course proven to exist five years ago may be presumed unchanged, but recent
floods that could have altered its path must be taken into account.
(vi) For Illustration (e): If a judicial act’s regularity is questioned, exceptional circumstances under which it
was performed must be considered.
(vii) For Illustration (f): If a letter is shown to have been posted but postal service was interrupted by
disturbances, receipt cannot be presumed.
Sec 120 Presumption as to absence of consent in certain prosecution for rape
 In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause
(g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of
section 376 of the IPC, where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and such woman states in her
evidence before the court that she did not consent, the court shall presume that she did not consent.
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 Explanation. - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a)
to (d) of section 375 of the IPC.

What is the Background of Pankaj Singh v. State of Haryana?

 The trial court convicted the appellant-accused under Sections 342, 376, and 201 of the Indian Penal
Code, 1860 (IPC), with a maximum sentence of life imprisonment and a fine of Rs. 1,00,00/- for the
offence under Section 376.
 Charges were also framed for other offences, but the trial court acquitted the appellant-accused.
 Both the appellant-accused and the Prosecutrix were married, and the incident occurred when the
Prosecutrix was 28 years old.
 Allegedly, the appellant-accused forcibly had intercourse with the Prosecutrix, threatening to disclose
objectionable photographs.
 The court emphasized that minor contradictions in the victim's testimony should not undermine its
credibility.
 The defence claimed the relationship was consensual and sought to discredit the Prosecutrix's evidence.
 However, the state supported the Prosecutrix's account, relying on WhatsApp conversations and legal
presumptions.
 No interference was deemed necessary by the concurrent findings of the trial court and the High Court.
What were the Court’s Observations?
 The court said that “Therefore, on the face of it, the presumption under Section 114A of the Evidence
Act will not apply, and, therefore, the burden will be on the prosecution to prove that the sexual
intercourse was without the consent of the Prosecutrix”.
ESTOPPEL
The word ‘estoppel’ is derived from the French word ‘estoupe’ which means ‘stopper’. The term
‘estoppel’ was adopted by the English Jurisprudence for the purpose of shutting the mouth of a person who
are pleading the contrary of a fact or state of thing which he has formerly asserted by words or conduct.
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 The rule of estoppel is based on the maxim “allegans contraria non est audiendus” that means a person
alleging contrary facts should not be heard.
 The object of estoppel is to prevent fraud and secure justice between parties by promotion of honesty
and good faith.
 Section 121 to 123 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with estoppel. Section 121
lays down the general rule whereas Section 122 and 123 deals with special instances of estoppel by
agreement.
 In order to bring a case within the scope of Section 121 BSA, following things are necessary:
o One party should make a representation to the other party about an existing fact as distinct
from a mere promise.
o The representation must be made with the intention to be acted upon.
o The other party should accept and rely upon the aforesaid factual representation i.e. there must
have been belief on the part of that other.
o There must have been action arising out of the belief i.e. the representation must have been
acted upon.
Illustration.
 A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to
buy and pay for it. The land afterwards becomes the property of A, and Aseeks to set aside the sale on
the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
Types of Estoppel
 Estoppel by Matter of Record
o Estoppel by record is estoppel of the parties from reopening and relitigating the matter which has
been finally settled between them by a Court of competent jurisdiction.
o Estoppel by record is covered under Section 11 of Civil Procedure Code, 1908
(CPC) and Sections 40 to 44 of the Indian Evidence Act, 1872 (IEA).
o This type of estoppel is also known as estoppel by judgment.
 Estoppel by Deed
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o When a party has entered into a solemn engagement by deed as to certain facts, neither he nor
anyone claiming through or under his is permitted to deny such facts.
o There is no estoppel where the deed is affected by fraud or illegality.
 Estoppel in Pais or by Conduct
o In pais means “before the public” and estoppel in pais is also freely translated as estoppel in pais
is also freely translated as estoppel by conduct/ representation.
o Estoppel by conduct can arise either from:
 a contract or
 de hors (outside) a contract by unilateral statements, acts or omissions which induce
another party to believe and act on that belief.
 Promissory Estoppel
o Promissory estoppel is a legal doctrine that allows a party to recover on a promise made without
a formal contract if they have relied on that promise to their detriment.
o It is an equitable remedy to prevent injustice that can arise when one party relies on the promise
of another.
 The doctrine of promissory estoppel would be applicable where a representation has been made by the
State in exercise of its power to exempt or abolish a commodity as taxable commodity. Such promise,
however, must be made by the persons who have the power to implement the representation; Tata Iron &
Steel Co. Ltd. v. State of Jharkhand,
 A mere promise to make a gift will not create an estoppel. It would require a clear and unequivocal
promise to import the doctrine into a matter. A leading institution intimated the sanction of a loan with a
remark that it did not constitute a commitment on the part of the institution. Held there was no promise
to found the doctrine of promissory estoppel; Rabisankar Choudhury v. Orissa State Financial
Corporation.
 The principles of promissory estoppel attracted in the case of allotment of alternative plot to petitioner
for land acquired from him. Building as per approved plan also put up deprivation by withdrawal of
recommendation without opportunity and compensation was illegal; Subhash Chandra Goel v. Secretary,
Delhi Development Authority, Vikas Minar, I.P. Estate, New Delhi, AIR 1985 Del 466.
Essential of Promissory Estoppel
 For promissory estoppel to apply, certain elements must be satisfied:
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o Clear and Definite Promise: There must be a clear and unequivocal promise made by the
promisor.
o Reliance by the Promisee: The Promisee must have reasonably relied on the promise.
o Detriment: The reliance must have caused a detriment or harm to the Promisee.
o Injustice if Not Enforced: It must be shown that it would be unjust not to enforce the promise.
Exceptions to Estoppel
 No estoppel where truth is known
o A person having knowledge of facts cannot take advantage of the principle of estoppel.
 No estoppel in case of mistake
o Where both parties acted under common misapprehension, there could be no estoppel until the
position is cleared up.
 No estoppel in case of mere promise to do something
o A mere promise to do something in future will not create an estoppel
 When both parties plead estoppel
o If both parties establish a case for application of estoppel, then the parties are set free and the
Court will have to proceed as if there is no plea of estoppel on either side.
 Fraud, Misrepresentation, Negligence on the part of other party
o If there is a fraud on the part of the other party, which could not be detected by the promisor with
ordinary care, the estoppel will not operate.
 Mere attestation will not create an estoppel
o Attestation does not involve the witness of any knowledge of the contents of the deed, it can at
the best be used for the purpose of cross-examination, but it will neither create estoppel nor
imply consent.
 No estoppel against a Statute or Law
o There can be no estoppel on a point (pure question) of law or on a settled proposition of law or to
defeat the provisions of a valid law.
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 No estoppel against sovereign acts in public interest

o There cannot be any estoppel against the Government in the exercise of its sovereign, legislative
and executive functions.
Estoppel of tenant and of licensee of person in possession:
 The underlying policy under Section 122 of BSA, 2023 is that the tenant/licensee obtaining possession is
deemed to obtain it upon the terms that he will not dispute the title of the owner/licensor who gave it to
him and without whose permission he would not have got it.
 A tenant/licensee cannot be permitted to deny the title of his landlord/licensor.
Estoppel of acceptor of bill of exchange, bailee or licensee:
 Section 123 of BSA, 2023 deals with further instances of estoppel by agreement
 It deals with estoppel in respect of movable property and is applicable to:
o An acceptor of a bill of exchange
o Bailee
o A licensee
CASE LAWS
 Tata Iron and steel Co. Ltd. v. Union of India (2000):
o The Supreme Court succinctly laid down the essential principles for constituting the doctrine of
estoppel.
 Pickard v. Sears (1837)
o The doctrine of estoppel was founded in this case.
o The Court defines estoppel as a principle which prohibits a person from denying what was earlier
said by him in the Court.
Factual Background of Pickard v Sears
The case involved two primary parties: the mortgagee (Pickard) and the purchaser of the mortgaged property
(Sears). The dispute arose when the property, subject to a mortgage held by Pickard, was seized and later sold to
Sears. Crucially, during the seizure and sale process, Pickard did not disclose his mortgage interest in the
property.
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Legal Issues Raised in Pickard v Sears

The central legal question in Pickard v Sears was whether Pickard could assert his mortgage interest in the
property after having failed to disclose it during the seizure and sale. The case revolved around the application
and scope of the estoppel doctrine, specifically whether Pickard’s omission could estop him from asserting his
rights later.
Arguments Presented
Pickard argued that he maintained a legal interest in the property as a mortgagee, irrespective of his failure to
disclose this interest during the sale. On the other hand, Sears contended that Pickard’s failure to disclose his
interest during the sale process led him to purchase the property under the assumption that no such interest
existed and thus Pickard should be estopped from asserting it later.
Pickard v Sears Judgment and Reasoning
The court held in favour of Sears. It was determined that Pickard, by failing to disclose his mortgage interest
during the property’s seizure and sale, had effectively represented that he had no such interest. As Sears had
relied on this assumption to his detriment, the court ruled that Pickard was estopped from later asserting his
mortgage interest.
The court’s reasoning in Pickard v Sears was grounded in the principles of fairness and the prevention of fraud.
It emphasised that a party cannot contradict their own previous representation or omission if another party has
relied on it to their detriment.
Analysis of Estoppel Principle
Estoppel is a legal principle preventing a party from contradicting earlier statements or behaviours if another
party has relied on these to change their position. In Pickard v Sears, this principle was applied to an omission,
where Pickard’s failure to declare his interest was deemed a representation in itself.
Significance and Impact of Pickard v Sears Judgement
Pickard v Sears had a profound impact on the development of estoppel in English law. It clarified the
application of estoppel in cases of non-disclosure and set a precedent for future cases dealing with similar issues
of reliance and representation. The case has been cited numerous times in subsequent legal decisions and
discussions.
Pickard v Sears remains a cornerstone in the legal understanding of estoppel. The case highlights the
importance of representations and omissions in legal dealings and the need for parties to be held accountable for
the consequences of their actions or inactions on others. Its legacy continues to influence the principles of
equity and fairness in the legal system.
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The doctrine of Estoppel serves as a vital tool in ensuring justice and equity in legal proceedings. It
prevents parties from engaging in unfair practices by holding them to their previous statements or conduct. This
principle not only upholds the integrity of legal interactions but also promotes trust and reliability in various
contractual and relational dealings. Understanding and applying estoppel can significantly impact the outcomes
of legal disputes, making it an essential concept in Indian law.

Distinction between 'Estoppel' and 'Res judicata'

Estoppel Res judicata

[Link] prevents a person from [Link] judicata prevents the jurisdiction

saying one thing at one time and on the subject-matter already decided

retreating from it another time. by competent Court on same issue, between same
parties.

[Link] is rule of equity. [Link] judicata is rule of legal procedure.

[Link] is based on rule of equity,justice and [Link] judicata is based on public policy.
good consciences.

[Link] originates from [Link] res judicata originates from

representation or conduct of theparty. decision of Court.

[Link] prevents a person to rebut [Link] judicata prevents the court to

what has been represented by him. hear a case which has already been decided by court of
competent jurisdiction.

[Link] shuts the mouth of parties. [Link] judicata shuts (prevents) jurisdiction of Court.

[Link] of Estoppel is laid down under [Link] rule regarding res judicata is laid

section 115 of Evidence Act, 1872. down under section 11 of C.P.C.1908.

[Link] can be inferred from the [Link] judicata is claimed on basis of

conduct of the parties. previous decision of competent court.

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Distinction between 'Estoppel' and 'Waiver'

Estoppel Waiver

[Link] is a rule of evidence and [Link] originates from

does not form basis for instituting a contractual relationship and may give birth
suit. to occur of action.

[Link] knowledge of reality or truth is [Link] case of waiver real facts or truth
not a factor or essential conditionfor is known to both the parties.
claiming estoppel.

[Link] some circumstances the [Link] case of waiver same act or conduct is
acquiescence amounts to estoppel. necessary together with acquiescence.

[Link] is used as defence and not [Link] may be cause to give rise a right.
cause for bringing a suit.

Comparison of estoppel with other concepts

'Estoppel' and 'presumption'-An estoppel is a personal disqualification laid upon a person under peculiar
circumstances from proving particular facts, whereas a presumption is a rule that a particular inference is to be
drawn from particular facts, whoever proves them. In presumption, evidence to rebut it can be given, while in
estoppel, the party is estopped from denying the truth.
'Estoppel and 'Conclusive Proof'-When a fact is conclusively proved, it is so against all the world. Estoppel
operates only as a personal disability. In both, however, the very same fact cannot be denied (irrebuttable)
'Estoppel' and 'Admission'-Though in both admissions and estoppels there are statements, an admission does not
ripen into an estoppel unless the person to whom the representation is made believes it and acts upon such
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belief, whereas in the case of mere admission evidence can be given to show that the admission was wrongly
made.

MODULE VI: WITNESSES EXAMINATION OF WITNESS

COMPETENCY AND COMPELLABILITY OF WITNESSES

WITNESS

As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help
determine the rights and liabilities of the parties in a legal proceeding. Witnesses can be the people or experts
with valuable input for the case. It is through witnesses and documents that evidence is placed before the court.
Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards
to certain issues like who is a competent witness? How many witnesses are needed to prove a fact? Can a
witness be compelled to answer every question posed? How can the credibility of the witnesses be tested?
Whether a witness can refer to notes to refresh his memory and what are the judges standing with respect to the
witnesses.

In India, it is a common problem that many do not come forward as witnesses whether due to unreasonable
delay in police or court proceedings or fear of persecution can not be determined that easily. In some countries
like the USA, Canada and China, Protection of Witnesses' Acts have been enacted to offer protection and equity
to a person who is a witness.

The Jessica Lal Murder case and Nitish Kataria murder case served to bring the up the issues regarding
witnesses, their protection and conduct to the forefront. There are a lot cases, national and international, that an
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interested student can pursue for the sake of learning the practical application of law relating to witnesses,
investigations and how it affects the outcome of a case.

Section 118 of the Evidence Act (now, section 124 of the Adhiniyam, 2023) envisages that all persons
shall be competent to testify, unless the court considers that they are prevented from understanding the
questions put to them or from giving rational answers to these questions, because of tender years, extreme old
age, disease-whether of mind or any other cause of the same kind. Prima facie every person is a competent
witness. But in the past at common law, all parties to the litigation and persons interested in its outcome were
held to be incompetent to testify. It was not until the nineteenth century that this was changed in England. The
accused in criminal cases was held to be incompetent and his testimony excluded even as late as 1898 in
England. A person convicted of a felonious crime was also held incompetent as a witness. Included in the
exclusion of the common law was the incompetency of a wife to testify in an action involving her husband. This
has been abolished by statutes or through common law decisions in modern times.
The only incompetency that the present Act recognises is incompetency from immature or detective
intellect. Under section 118 all persons are competent to testify, unless they are in the opinion of the Court (1)
unable to understand the questions put to them, or (2) to give rational answers to those questions, owing to (a)
tender years, (b) extreme old age, (c) disease of mind or body, or (d) any other such cause. Even a lunatic, if he
is capable of understanding the questions put to him and giving rational answers, is a competent witness. Thus,
there is a limited incompetency in case of lunatics and children incapable of giving evidence.
Competency, Compellability, Privilege and Admissibility
Competency of a witness must be distinguished from his compellability and from privilege. A witness is
said to be competent when there is nothing in law to prevent him from being sworn and examined if he wishes
to give evidence. Though the general rule is that a witness who is competent is also compellable, yet there are
cases where a witness is competent but not compellable to give evidence, as for example, sovereigns, and
ambassadors of foreign States. Again, compellability to be sworn and examined must be distinguished from
privilege, i.e., from compellability, when sworn, to answer certain specific questions. Sections 118 to 121 and
133 deal with competency; the subject of general compellability is not specifically "dealt with by the Evidence
Act"; and sections 121 to 132 deal with privileges". The admissibility of evidence is not solely dependent on the
competency of the witness. A witness may be competent, yet his evidence may be inadmissible, as for instance,
where it relates to hearsay or to a confession made to a police officer.
But evidence of chance witness named in the first information report can be believed particularly when
his presence at the spot is corroborated by other evidence."
Evidence of Prosecutrix in Rape Case
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In an offence under section 376, of the Indian Penal Code", evidence of the prosecutrix is enough and
corroboration is not necessary."
Determination of Competency of Child Witness
In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is
at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of
intelligence and knowledge which will render the child a competent witness. The competency of a child witness
can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and
to speak the truth before the Court. In criminal proceedings, a person of any age is competent to give evidence if
she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be
understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand
questions and give rational answers thereto. A child becomes incompetent only in case the court considers that
the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If
the child understands the questions put to her/him and gives rational answers to those questions, it can be taken
that she/he is a competent witness to be examined." It is the duty of the Judge to make a proper preliminary
examination of the minor by putting appropriate questions to ascertain whether the minor is capable of the
questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and
answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court,"
Witness's Capacity to Understand and Rationally Answer Questions is the only Test of Competency

The only test laid down by the Act of the competency of a witness is his capacity to understand and rationally
answer the questions put to him." A person's religious belief or knowledge of the consequences of falsehood in
this world or the next, of the nature and obligation of an oath, is, according to the law of this country, foreign to
the question of his competency as a witness." If from the extent of intellectual capacity and understanding a
person is able to give a rational account of what he has seen, or heard, or done on a particular occasion, his
competency as a witness is established." In the case of a child witness, therefore, the question on which his
competency depends is not whether he can understand the obligation of an oath but whether he can understand
and answer in a rational manner the questions put to him." Incapacity to understand the questions or to answer
them in a rational manner may be due to infancy, old age, disease of mind, e.g., insanity, or any other cause of a
like nature, e.g., unconsciousness, drunkenness, or extreme bodily pain. Mere defective memory, however, does
not make a person incompetent."
Testimony of a Child Witness
Section 118 of the Evidence Act does not preclude a child from being a witness and the only test that is
applicable is as to whether the witness understood the sanctity of an oath and the import of the questions that
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were being put to him." In Nivrutti Pandurang Kokate v State of Maharashtra, the Supreme Court observed that
section 118 of the Evidence Act mvisages that all persons shall be competent to testify unless the court thinks
otherwise.
In State of Uttar Pradesh v Krishna Master, the Apex Court held that there is no principle of law that it is
inconceivable that a child of tender age would not be able to tecapitulate the facts in his memory. A child is
always receptive to abnormal events which take place in his life and would never forget those events for the rest
of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future.
In case the child explains the relevant events of the crime without improvements or embellishments, and the
same inspire confidence of the court, his deposition does not require any corroboration whatsoever.
Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child
witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence
of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must
apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore,
scrutiny of the evidence of a child witness is required to be made by the Court with care and caution."

The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must
be something on record to satisfy the court that something had gone wrong between the date of incident and
recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a
case of a serious nature. Part of the statement of a child witness, even if tutored, can be relied upon, if the
tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence.
In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of
corroboration as in case of a hostile witness."

Conviction on the Basis of Child Witness

In Dattu Ramrao Sakhare v State of Maharashtra," the Supreme Court has held that a child witness if found
competent to depose to the facts and of reliable one such evidence could, form basis of conviction. The
evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only
precaution which the court should bear the mind while assessing the evidence of a child witness must be a
reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being
tutored.
Interested Witness
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Relationship or the witnesses with the deceased is no ground for not acting upon that testimony if it is otherwise
reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the
place of occurrence and could have seen what had happened.
In Namdeo v State of Maharashtra," the Supreme Court has held that a close relative cannot be characterised
as "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on
such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy,
conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the
deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would
normally be most reluctant to spare the real culprit and falsely implicate an innocent one.
In Masalti v State of Uttar Pradesh, the Supreme Court held that it would be unreasonable that the evidence
given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure
of Justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such evidence, but the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct.
In Jafarudheen v. State of Kerala," the Supreme Court held that Merely because the witnesses are family
members apart from being chance witnesses, their testimonies cannot be rejected. The witnesses are likely to be
seen near the place of occurrence. One witness was working in the theatre nearby, and another was a neighbour.
Though they would not have seen the occurrence from inside the house, their presence cannot be doubted to the
extent of being present there. Therefore, their evidence as applicable to the accused persons must be approved.
The relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would
not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of
false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find
out whether it is cogent and credible.

Sec 125 Witness unable to communicate verbally

A witness who is unable to speak may give his evidence in any other manner in which he can make it
intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court and
evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate
verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement,
and such statement shall be video graphed.
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In the case of State of Rajasthan v Darshan Singh, there was sufficient material on record that prosecution
witness was able to read and write and the fact stood proved in the trial court when she wrote the telephone
number of her father. Her statement had been recorded with the help of her father as an interpreter, and father,
being an interested witness who had assisted during the trial and investigation, and was examined without
administering oath, made the evidence unreliable. The High Court has rightly given the benefit of doubt and
acquitted the respondent. While explaining the scope of deaf and dumb witnesses the Court held that the object
of enacting the provisions of section 119 of the Evidence Act reveals that deaf and dumb persons were earlier
contemplated in law as idiots. The court said that such a view has subsequently been changed for the reason that
modern science revealed that persons affected with such calamities are generally found more intelligent, and to
be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in
the court, the court has to exercise due caution and take care to ascertain before he is examined that he
possesses the requisite amount of intelligence and that he understands the nature of an oath. The witness may be
administered oath by appropriate means and that also with the assistance of an interpreter. The Court said that in
case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign
[Link] law requires that there must be a record of signs and not the interpretation of signs
Competency and Mode of Taking Evidence of a Deaf witness
The Judges formerly held that persons who were born deaf and dumb were contemplated by law as
"idiots"; but this presumption is certainly no longer recognised, as persons afflicted with these calamities have
been found by the light of modem science, to be much more intelligent in general, and to be susceptible of far
higher culture, than was once supposed.
Still, when a deaf and mute person is adduced as a witness, the Court, in the exercise of due caution, will
take care to ascertain before he is examined that he possesses the requisite amount of intelligence, and that he
understands the nature of an oath. When the Judge is satisfied on these heads, the witness may be sworn and his
evidence taken through an interpreter by means of the deaf and dumb alphabet signs. This is the usual modern
practice. If he is able to communicate his ideas perfectly by writing, he may be required to adopt that as the
more satisfactory method, but if his knowledge of that method is imperfect, he may be permitted to testify by
means of signs." A witness "who is deaf cannot give evidence viva voce. He may therefore, give evidence" in
Court in any manner in which he can make it intelligible, e.g., by writing, or by signs. He must however, be a
competent witness, ie, he must possess the requisite degree of intelligence to understand and answer the
questions in a rational manner. If, therefore he is unable to understand the questions or to make his meaning
intelligible, he cannot be examined as a witness."
Witness under a Vow of Silence
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A witness who has taken a religious vow of silence should be deemed to be unable to speak within the meaning
of the section and his evidence can be got in writing in open Court without forcing him to break his religious
vow.
Sec 126. (1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall
be competent witnesses. (2) In criminal proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness.
Competency of a Party and of the Husband or, Wife of a Party in Civil Proceedings
In Aidan v State of Rajasthan, the Court held that truthfulness of the statement of wife, could not be doubted
simply because her emotional relation was different from what it should have been. In civil proceedings parties
to the suit are competent witnesses. Husbands and wives are also competent witnesses. This rule has been
adopted in section 120 of the Evidence Act, with the result that, given the requisite degree of intelligence to
understand the questions asked and to answer them in a rational manner, a party, or the husband or wife of such
party, is a competent witness for or against each other in civil and criminal proceedings.
Value of the Testimony of a Party in a Civil Proceeding
There is no rule that if a party, plaintiff or defendant, gives his testimony, he must be disbelieved because he is a
party to the suit. When a party has deposed in support of his case, his evidence must be scrutinized in the same
manner as that of any other witness. In several important decisions, the Privy Council has emphasised the
necessity of a party, who has a personal knowledge of the case, going into the witness-box to dispel the
suspicion which would otherwise attach to his case and, acting upon this rule, the Courts in India have
repeatedly held that where a party, whose evidence is material, does not go into the witness-box, the Court
should presume against him.
Competency and Compellability of the Parties in Proceedings under the Divorce Act
In a petition by a wife for the dissolution of her marriage on the ground of adultery coupled with cruelty or
desertion the husband and wife are not only competent witnesses, but are compellable to give evidence of or
relating to such cruelty or desertion." It must, however, be remarked that they are competent and compellable
only as to the cruelty or desertion, and not as the adultery, and that this rule applies only in a suit by the wife
against the husband for dissolution of marriage on the ground of adultery with cruelty or with desertion. In all
other proceedings under the Divorce Act, the parties are competent witnesses, but not compellable unless they
"offer" their testimony,
Though this section declares a husband or a wife to be a competent witness, its provisions must be read subject
to the provisions of section 122 which qualifies the testimonial competency of the spouses and forbids them to
disclose communications during marriage.
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Sec 127. 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.
Illustrations.
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate.
B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b)Ais accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be
asked what A said, except upon the special order of the superior Court.
(c) Ais accused before the Court of Session of attempting to murder a police officer whilst on his trial before B,
a Sessions Judge. B may be examined as to what occurred.

Privileged communications
Privileged communications refer to interactions that are protected from being disclosed in court
proceedings. Communications between spouses, public officials, judges and magistrates, professionals and
their clients are categorised as privileged under certain circumstances.
 Privileged communications are of two kinds, namely those which are privileged from disclosure and
those which are prohibited from being disclosed.
 Section 128 to section 134 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with privileged
communication by declaring certain exceptions to the general rule.
Communications during marriage.
 Section 128 of BSA protects communications between spouses during marriage.
 It prohibits any person who is or has been married from being compelled to disclose any communication
made to them by their spouse during marriage.
 The privilege commences from the date of marriage of the spouses.
 Communication made after the dissolution of marriage is not protected under this section.
Protection when not Available: Exceptions to Section 128
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 Consent (Waiver of Privilege):

o Evidence of a privileged communication can be given by a spouse with the express consent of
the party who made the communication or with the consent of his representative in interest. This
is known as waiver of privilege.
 Communication made before marriage or after its dissolution:
o Any communications made by the spouses before their marriage or after dissolution of marriage,
are not protected under this section.
 Proceedings inter parties (Suit or Criminal proceedings between the two spouses):
o The object of section 128 is to preserve the mutual confidence between both spouses, but when
the spouses are themselves litigate against one another then the section does not apply.
 Conducts/acts apart from communications:
o The ban of Section 128 is confined to “Communications” only.
o Only communications are protected from disclosure but not the acts/conduct.
 Proof of communication by third person:
o The privilege under this section operates only against the husband or wife but not against third
person.
o Neither the husband nor the wife can be compelled to give evidence about matrimonial
communications, but nothing prevents a third person from giving evidence of such
communication between them.
Privilege as to Affairs of State: Section 129
 Section 129 protects unpublished official records relating to state affairs.
 It restricts individuals from giving evidence derived from such records without the permission of the
head of the department concerned.
Privilege as to Official Communication: Section 130
 As an extension of the principle of Section 129, this section provides for the privilege of protection of
confidentiality of official communications between public officials.
 It states that no public officer shall be compelled to disclose such communications if they consider that
the public interests would suffer by the disclosure.
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 This provision ensures that public officers can perform their duties without the fear of sensitive
information being exposed.
Privilege as to Information as to Commission of Offences: Section 131
 Section 131 states that no magistrate or police officer shall be compelled to disclose the source of
information regarding the commission of an offence if the disclosure would cause harm to the informant
or other persons.
 This section aims to protect informants and encourage the reporting of crimes without fear of
retribution.
Privilege to Professional Communications: Section 132 to 134
 Professional Communications: Section 132
o Section 132 protects communications between an advocate and their client.
o It prohibits advocates from disclosing any communication made to them in the course of their
employment by or on behalf of their client.
 Exception to the privilege under Section 132
o Illegal Purpose (Proviso 1): Communications made in furtherance of an illegal purpose are not
protected.
o Crime/fraud since employment began (Proviso 2): If an advocate finds iin the course of his
employment that any crime/fraud has been committed since the employment began, he can
disclose such information.
o Disclosure with client consent: Such communications can be disclosed with the client's express
consent.
o Advocate’s suit against client: If the advocate himself sues the client for his professional
services, he may disclose so much of the information as is relevant to the issue.
o Information falling into hands of third persons: This prohibition works against the advocate,
but not against any other person.
o Documents already put on record: No privilege is available in respect of such documents.
o Joint interest: No privilege attaches to communication between solicitor and client as against
persons having a joint interest with the client in the subject-matter of communication.
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Privilege not Waived by Volunteering Evidence: Section 133

 Section 133 explains that the privilege provided in Section 132 cannot be waived by volunteering
evidence of the client. The privilege belongs to the client and therefore he alone can waive it.
 That privilege is not lost by calling the advocate as a witness, unless the party having the privilege
questions him relating to confidential matters.
 The object of section 133 is to protect the client and to save the integrity of the legal profession.
Confidential Communications with Legal Advisors: Section 134
 Section 134 protects confidential communications between individuals and their legal advisors.
 It provides that no one shall be compelled to disclose to the court any confidential communication with
their legal advisor unless they offer themselves as a witness.
 The privilege aims to encourage full and frank communication between clients and their legal advisors,
which is essential for effective legal representation.
Exceptions
 Judges and Magistrates can be questioned about their observations during legal proceedings but cannot
ask about their judicial conduct or confidential knowledge gathered in their role.
 Marital Communications disclosure is permitted in situations where one spouse is prosecuted for crimes
against the other, or there is a suit between married persons.
 Information of State affairs is only available with permission from the head of the department.
 Communications done for criminal purposes or observed facts of crimes are not protected under
professional communication.
 Offering evidence does not waive the right to keep certain communications private.
Examples
 Marital Communications: If a person confesses to their spouse about a crime, this conversation cannot
be revealed unless it’s relevant to a case involving criminal charges between the spouses.
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 Confidential Communication: A client cannot be forced to reveal private conversation with their lawyer
unless the client is testifying and the information is needed to explain their testimony.
CASE LAWS
 Ram Bharosey v. State of Uttar Pradesh (1954):
o The Supreme Court held that ordinary conversations or letters relating to business should not be
regarded as privileged.
 M.C. Verghese v. T.J. Ponnam (1970):
o The Supreme Court held that even though a spouse is debarred from deposing to the contents of
such correspondence, the same can be proved by a third person.
 State of Uttar Pradesh v. Raj Narain (1975):
o The Supreme Court held that, the Court will proprio motu exclude evidence the production of
which is contrary to public interest.
 Nagaraj v. State of Karnataka (1996):
o The Court held that, if a telephonic conversation between an accused and his/her spouse is
intercepted by the police, the police may be permitted to prove such a communication.
Privileged communications are a fundamental aspect of the BSA, reflecting the balance between the
necessity of evidence in legal proceedings and the protection of confidential communications in specific
relationships. The provisions within the Act carefully delineate the scope and limitations of these privileges to
uphold both transparency in the judicial process and the privacy of sensitive interactions.
Sec 129. No one shall be permitted to give any evidence derived from unpublished official records relating to
any affairs of State, except with the permission of the officer at the head of the department concerned, who shall
give or withhold such permission as he thinks fit.
Claim of Privilege relates to Unpublished Public Records
In Yashwant Sinha v Central Bureau of Investigation, the Attorney General on behalf of respondents has
claimed privilege so as to bar the disclosure of alleged document in the the public domain. The Court has stated
thaton the very face of it, section 123 of the Act relates to unpublished public records, but the three documents
in question have been published in different editions of the newspaper. That apart, a claim of immunity against
disclosure under section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of
public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court
may even inspect the document in question though the said power has to be sparingly exercised. Such an
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exercise, however, would not be necessary in the present case as the document(s) being in public domain and
within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to
the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain
from reading and considering the said document or from shutting out its evidentiary worth and value. Thus, the
claim of immunity under section 123 of the Indian Evidence Act is plainly not tenable
Sec130. No public officer shall be compelled to disclose communications made to him in official confidence,
when he considers that the public interests would suffer by the disclosure.
Reports and Records of Departmental Inquiries
A confidential report submitted as the result of a confidential inquiry held under the orders of a railway officer
to enable him to take departmental action is a privileged document falling within the purview or section 124 of
the Evidence Act. Such a document is not admissible under any section of the Evidence Act. Where certain
charges against a police officer are departmentally inquired into, the statements made by witnesses in the course
of such inquiry are not communication made in official confidence; they may, therefore, be used to corroborate
or contradict the testimony of such witnesses as subsequently given in Court. The report of such an inquiry is,
however privileged under this section. A police witness cannot claim privilege when asked about a statement
made or given to him by one of the witnesses.
In Nisha Priya Bhatia v Ajit Seth, the appellant had complained of sexual harassment by her senior, Joint
Secretary in the department and another. From the Reports of the Committee enquiring into allegations of
sexual harassment and the accompanying documents the court finds absolutely nothing therein which could
suggest that there is any threat to the integrity of the country or anything contained therein would be detrimental
to the interests of the country. It is very odd that in a matter of an enquiry in respect of an allegation of sexual
harassment, the Union of India should claim privilege under sections 123 and 124 of the Act. The contents of
Reports alleging sexual harassment can hardly relate to affairs of State or anything concerning national security.
Sec 131. No Magistrate or police officer shall be compelled to say when he got any information as to the
commission of any offence, and no revenue officer shall be compelled to say when he got any information as to
the commission of any offence against the public revenue. Explanation.—"revenue officer" means any officer
employed in or about the business of any branch of the public revenue.
Information for the Detection of Crime
The rule is enacted in the interests of detection of a crime. "It is perfectly right", said Lord Chief Justice Eyre,
"that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner, but there
is a rule which has universally obtained on account of its importance to the public for the detection of crimes,
that those persons, who are the channel by means of which the detection is made, should not be unnecessarily
disclosed". But the section does not prohibit the disclosure of the custody of any document or other material
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objects, that might have been seized and that might in evidence in support of the commission of the offence. be
tendered

Scope and Extent of the Privilege

The privilege extends to Magistrates, police officers, and officers employed in, or about the business of any
branch of the public revenue. A Magistrate shall include every person exercising all or any of the powers of a
Magistrate under the Code of Criminal Procedure, for the time being in force. The defence is not entitled to
discover from police officers the names of persons from whom they have received information, nor to elicit
from an individual prosecution witness whether he is a spy or an informer. The section rests on public policy
and protects from disclosure the name of a spy or secret informer, but not the nature of the information. The rule
enacted in section 125 of the Evidence Act is clearly applicable to gambling cases. Therefore, a Magistrate is
perfectly right in refusing to order the production of the complaint under section 6 of the Bombay Gambling Act
Professional communications.
Privileged Communication refers to the confidential conversations or interactions between two parties who are
in a legally recognized protected relationship. The information cannot be leaked to any third party, not even in
the Court. Law can never force an individual or a corporation to disclose the contents of privileged
communications.
Illustration
 The husband and 'B', the wife are undergoing a rough patch in their matrimonial life.
 decides to transfer all his property to C via his will and only his lawyer knows about this. If B ever asks
A's lawyer to disclose it, the lawyer can't tell as it is a privileged communication.
 He can tell only if A gives consent to do so or A himself discloses to a third party.
A privileged professional communication refers to the protection awarded between the legal advisor and the
client. Legal privilege or attorney client privilege is essentially referring to the rights which are available to the
client for the protection of their interest.

A privileged professional communication is a protection awarded to a communication between the legal adviser
and the client. Professional communications and confidential communications with the legal advisors have been
accorded protection under the BSA. If the privilege did not exist at all, everyone would be thrown upon his own
legal resources.
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Deprived of all professional assistance, a man would not venture to consult any skilled person, or would only
dare to tell his counsel half his case. It ensures full, frank and complete disclosure of information or
communication between the client and lawyers without any fear of disclosure or incrimination. The main
intension behind this concept is that people or client must speak candidly or everything to their lawyers so that
their interest is completely represented to them.
In India, as we know that Sections 132 to 134 of the BSA deals with privileged communication that is attached
to professional communication between a legal adviser and the client.

Section 132 (1) of the Act provides the scope of privilege attached to professional communications in an
attorney-client setting. It restricts attorneys from disclosing any communications exchanged with the client and
stating the contents or conditions of documents in possession of the legal advisor in course of and for the latter's
employment with the client.

The section also provides certain exceptional grounds on which such privilege shall stand denied, being in
furtherance of any illegal purpose or facts coming to the awareness of the attorney showing that either crime or
fraud has been committed since the commencement of the attorney's employment on the concerned matter. It is
immaterial whether the attention of such Barrister, Pleader, Attorney or Vakil was or was not directed to such
fact by or on behalf of his client.
Section 132 (3) extends the privilege provided under section 132 to the interpreters, clerks and servants of the
legal adviser.
Section 133 continues to bind the legal adviser from disclosing any information covered under sec 132 unless
the client calls the legal adviser as a witness and questions him on the same.

Section 134 lays down that no one shall be compelled to disclose to the court any confidential communication
which has taken place between him and his legal professional advisor, unless he offers himself as a witness.
To claim privilege under section 132 of the Act, a communication by a party to his pleader must be of a
confidential nature. Also, there is no privilege to communications made before the creation of a relationship of a
pleader and client. In India any person who seeks an advice from a practicing advocate, registered under the
Advocates Act, would have the benefit of the Attorney Client Privilege and his communication would be
protected under Section 132 of the Act. This section would also extend to the Employees of the Advocate / Law
Firm which could include Accountants, Paralegals, and such other employees.
 Memon Hajee Haroon Mohomed v. Abdul Karim
 Kalikumar Pal v. Rajkumar Pal
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The Client's Privilege

Generally, the Attorney Client Privilege applies when:
 An actual or potential client communicates with a lawyer regarding legal advice.
 The lawyer is acting in a professional capacity.
 The client intended the communications to be private and acted accordingly.
 Lawyers may not reveal oral or written communications with clients that clients reasonably expect to
remain private. A lawyer who has received a client's confidences cannot repeat them to anyone outside
the legal team without the client's consent. In that sense, the privilege is the client's, not the lawyer's the
client can decide to forfeit (or waive) the privilege, but the lawyer cannot.
 The privilege generally stays in effect even after the attorney-client relationship ends, and even after the
client dies. In other words, the lawyer can never divulge the client's secrets without the client's
permission, unless some kind of exception applies.
Comparison: The Duty of Confidentiality
The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about,
and from being forced to testify about, their clients' statements. Independent of that privilege, lawyers also owe
their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally
discussing information related to their clients' cases with others. They must keep private almost all information
related to representation of the client, even if that information didn't come from the client.

Expecting Confidentiality
Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend
themselves to confidentiality. For example, clients who speak to their lawyers about pending lawsuits in private,
with no one else present, can reasonably expect secrecy. If someone were to surreptitiously record the
conversation, that recording would probably be inadmissible in court.
But a client who speaks to a lawyer in public wouldn't be able to prevent someone who overheard the
conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a
conversation with an attorney to someone else, or by having a third person present during a conversation with
the lawyer. No matter who hears or learns about a communication, however, the lawyer typically remains
obligated not to repeat it.
Professional communication between a lawyer and a client
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It is a statutory obligation under Section 132 of BSA for an advocate to not disclose without the consent of the
client any:
1. Communication to him by the client or vice versa
2. Contents or Conditions of a document
3. The advice given to the client, which was obtained or given in the course and for the 'purpose of such
employment'.

This phrase means that no privilege attaches to communication to an attorney consulted as a friend. This
obligation continues even after employment has ceased. This encapsulates the rule of once privileged always
privileged.
The privilege under Section 132 is subject to certain exceptions i.e. under the following conditions
communication can be disclosed:
1. When the communication was made in furtherance of an illegal purpose
2. When the attorney gets to know that a crime or fraud has been committed since employment began
3. When the client gives consent
4. When the information falls into the hands of a third party
5. When a lawyer sues the client for professional purpose.
Section 132 (3) of the BSA states that Section 132 applies to:
 Interpreters
 Clerks or servants of barristers
 Pleaders
 Attorneys
 Vakils
In the case of Court in its own motion vs. State, Delhi High Court answered the question, whether a child
victim should be permitted to waive the privilege of the counsellor? Court held that it can be done if the child
does it knowingly and voluntarily and waiver is in the interest of the child provided the reasons for a waiver
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should be recorded in writing in the order.

In the case of Karamjit Singh v. State, the Court held that one cannot ask for disclosure of any professional
communication and documents of attorney and client under the Right to Information.
Privilege cannot be waived by voluntary evidence
Section 133 states that if the client himself presents some evidence regarding privileged communication, it
doesn't amount to a waiver of privilege. Summoning the lawyer as a witness by the client doesn't amount to
consent to disclose but when the client himself asks questions pertaining to the confidential communication then
it amounts to an implied waiver of privilege.
Confidential communications with legal advisers
This section states that no one can be compelled to disclose privileged communication between a client and an
attorney. If a client offers to be a witness then the Court can extract from him any communication as it deems
necessary. Section 134 prohibits the client from disclosing, unlike Section 132 which prohibits a lawyer. It lifts
the restrictions imposed under Section132 partially; it acts as a counterpart of Section132 of the Evidence Act.
Court held in the case of P R Ramakrishnan v. Subbaramma Sastrigal that as per Section129 of the Evidence
Act both the clients as well as the attorney aren't under any obligation to spell the privilege communication to
any third person.
Right to privacy and Privileged Communication
Article 21 of the Constitution of India states, No person shall be deprived of his life or personal liberty except
according to the procedure established by law. It covers all aspects of life, one of which is Privacy. Right to
privacy isn't expressly written in the Indian Constitution but overtime judicial proceedings have shown that it
comes under the ambit of Article 21.

The law safeguards the right to privacy by protecting from the disclosure of privileged communication. It takes
away the evidentiary value of confidential communication.

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any confidential
communication which happens during the marriage. Similarly, sections 126 to 129 of the Evidence Act deal
with attorney-client privilege. The concept of privileged communication strengthens the fundamental right to
privacy.
In the case of Vishal Kaushik v. Family Court, the Court held that if the conversation between two spouses is
recorded by one of the spouses without the knowledge of the other spouse, that evidence will not be admissible
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in the Court. In fact, this act will amount to a breach of privacy under Article 21 of the Indian Constitution and
the spouse who has recorded will be held liable.
Sec 137. A witness shall not be excused from answering any question as to any matter relevant to the matter in
issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or
indirectly to expose, such witness to a penalty or forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or
prosecution, or be proved against him in any criminal proceeding, except a prosecution forgiving false evidence
by such answer.
Sec 138. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal
if it proceeds upon the corroborated testimony of an accomplice.
Sec 139. No particular number of witnesses shall in any case be required for the proof of any fact.

Who is an Accomplice?
In legal contexts, particularly under Section 138 of The BSA the term ‘accomplice’ plays an important role. An
accomplice is someone who participates in a crime alongside another person or group.
When law enforcement persuades an individual to engage in criminal activities to gather evidence against
others, that individual is known as a trap witness. If a trap witness who is also an accomplice receives a pardon,
they may be referred to as an approver. Notably, Section 138 of BSA considers trap witnesses and approvers as
competent witnesses, falling under the definition of ‘accomplice’ as used in the section.
For example, in Chandan v Emperor, the court described an accomplice as someone who is involved with an
offender or offenders in committing a crime or someone who knowingly and voluntarily aids and abets others in
the commission of a crime. Essentially, an accomplice in Evidence Act can be considered a partner in crime.
In R.K Dalmia v. Delhi Administration, the Supreme Court defined an accomplice as a person who actively
participates in the criminal act for which the accused is being tried, being a particeps criminis. However, there
are situations where a person may be deemed an accomplice even if they are not directly involved in
committing the crime. For instance, someone who receives stolen property can be considered an accomplice of
the thieves who stole the property.
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Moreover, in Shanker v State of Tamil Nadu, the court clarified that when an accomplice becomes an
approver, they transition into a prosecution witness. For an approver’s testimony to be considered valid, it must
pass two tests: reliability and sufficient corroboration.
Types of Accomplices
There are several types of accomplices in Evidence Act based on their level of involvement in the crime:
 Principal Offender of First Degree: This is a person who directly commits the crime. If multiple
individuals commit a crime together, each one is considered a principal offender of the first degree.
 Principal Offender of Second Degree: This refers to a person who aids, abets or assists in the
commission of the crime. They are present at the crime scene and assist the principal offender in some
manner.
 Accessories Before the Fact: These individuals do not directly participate in the commission of the
crime but encourage, incite, procure or counsel others to commit the crime.
 Accessories After the Fact: An individual becomes an accessory after the fact when they knowingly
assist a person who has committed a crime in escaping punishment or arrest. This assistance can include
harbouring the offender, providing comfort, helping them escape or opposing their arrest.
When an Accomplice Becomes a Competent Witness
Section 124 of the BSA deals with the competency of witnesses. Competency is a prerequisite for examining a
person as a witness and the sole criterion for competency is that the witness should not be prevented by his age,
mental or physical state or disease from understanding the questions posed to him or from giving rational
answers.
Similarly, Section 138 of BSA describes the competency of accomplice witnesses, stating that they should not
be co-accused under trial in the same case and may be examined on oath.

Evidentiary Value of Accomplice Testimony

When an accomplice in Evidence Act provides testimony, it is not considered reliable evidence on its own for a
conviction. This testimony must be corroborated with other material evidence to be deemed valid; this
requirement is known as corroboration. The rationale behind this rule is to protect the accomplice, who may be
providing testimony against their co-accused.
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However, this does not imply that the court cannot rely on the evidence provided by an accomplice. An
accomplice is deemed a competent witness against the accused person and a conviction based solely on the
testimony of an accomplice is considered valid, even if it is not corroborated in all material particulars.
OF EXAMINATION OF WITNESSES
In the eyes of the law evidence is regarded as, the most important element necessary to proceed the case, which
has the capacity to flip the case upside down in a fraction of a second. In court of law, without evidence, a case
cannot be supported. So, Witness of a particular case is one of the strong evidence which aid and help the
parties to prove their contentions both in civil and in criminal cases.
A witness is a person who testifies in front of the court about what they are personally aware of the events or
crimes or happenings, where most of the time this information will bring to light many new or hidden facts
present in the case. In short, they are the "eyes and ears of justice". But, there is a need for the court to also
examine the witnesses to check their veracity of the facts put forth by them.
Witness examination - Witnesses will be questioned related to the fact in issue so, they are required to answer
the relevant questions presented to them. Their answers to the questions put to him/her will be recorded, which
are called testimonies of witnesses. So, this questioning of the witness and the recording of their answers will be
called as witness examination.
Sec 140 Order of production and examination of witnesses.
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time
being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion
of the Court.
Sec 141 Judge to decide as to admissibility of evidence.
(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the
evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence
if he thinks that the fact, if proved, would be relevant, and not otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact,
such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in
his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require
evidence to be given of the second fact before evidence is given of the first fact.
Illustrations.
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(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is
relevant under section 26. The fact that the person is dead must be proved by the person proposing to prove the
statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is
lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he
denied the possession of the property. The relevancy of the denial depends on the identity of the property. The
Court may, in its discretion, either require the property to be identified before the denial of the possession is
proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact A which is said to have been the cause or effect of a fact in issue. There are
several intermediate facts B, C and D which must be shown to exist before the fact A can be regarded as the
cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or Dis proved, or
may require proof of B, C and D before permitting proof of A.
Examination of witnesses.
Sec 142. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination. (3) The
examination of a witness, subsequent to the cross-examination, by the party who called him, shall becalled his
re-examination.
Section 143 of BSA “Order of examinations”
Witnesses shall be questioned-in-chief, then (if the opposing party so wishes) cross-examination, then (if the
party calling it so wishes) re-examination.
Examination and cross-examination must refer to the relevant evidence, but cross-examination must not be
limited to the facts testified by the witness at the time of the examination-in-Chief.
Direction of re-examination-The re-examination shall be directed to the clarification of the matters referred to in
the cross-examination; and, if a new matter is brought before the Court by permission, the adverse party can
cross-examination the matter further.

Electronic Records: The BSA provides a specified format for certificate to be

submitted along with electronic evidence each time it is presented for
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admission in court. This certificate helps verify the authenticity of the

electronic evidence.

The party on whom the burden of proof lies is

responsible for beginning the examination of
witnesses. This process is crucial in presenting Did you know that
leading questions,
and challenging evidence in court. The steps which suggest the
involved are as follows: answer, are generally
not allowed during
1. Examination-in-Chief: This is the initial direct
examination of a witness by the party examination but are
who called them. The purpose is to permitted during cross-
examination? This
elicit facts that support the case of the distinction helps ensure
party who bears the burden of proof.

2. Cross-Examination: After the Examination-in-Chief, the opposing party

gets the opportunity to question the witness. The aim here is to
challenge the credibility and reliability of the testimony given
during the Examination-in-Chief.
3. Re-Examination: Following the Cross-Examination, the party
who initially called the witness can conduct a Re-Examination.
This step is intended to clarify or explain any answers given during
the
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Cross-Examination that might have undermined the

witness’ initial testimony.

Section 144 of BSA “Cross-examination of person called to produce a document”

A individual summoned to produce a document does not become a witness by the simple fact
that he produces it and cannot be cross-examined unless and until he is called as a witness.
Section 145 of the BSA “Witnesses to character”
Witnesses to characters can be cross-examined and re-examined.
Holt C.J. claimed in Haagen Swendress that a man is not born a jack, that there must be time
to make him so, or that he will be discovered shortly after he becomes one. A man will be
considered a competent man this year, and then be a beggar the next, it is tragic that a lot of
men are going to happen, and this former reputation would mean little to him in this case.
Sec 146. (1) Any question suggesting the answer which the person putting it wishes or
expects to receive, is called a leading question. (2) Leading questions must not, if objected to
by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with
the permission of the Court. (3) The Court shall permit leading questions as to matters which
are introductory or undisputed, or which have, in its opinion, been already sufficiently
proved. (4) Leading questions may be asked in cross-examination.
Section 147 of BSA “Evidence as to matters in writing.” –
Any witness may be asked whether any contract, grant or other disposition of property, as
evidenced by him or her, has not been found in a document, and if he or she says it has been,
or if he or she is about to make any argument as to the content of any document which, in the
opinion of the Court, should be made, the adverse party may object to such evidence being
given.
EXPLANATION-The witness can provide oral evidence of the statements made by other
persons concerning the substance of the records, given that such statements are, in
themselves, relevant facts.
Illustration of the
The question is whether A has attacked B.
C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be
revenged on him”. This statement is relevant, as showing A’s motive for the assault, and
evidence may be given of it, though no other evidence is given about the letter.
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Section 148 of BSA “Cross-examination as to previous statements in writing.” –

A witness can be cross-examined as to previous statements made by him in writing or
reduced to writing, and related to the matters in question, without having been shown or
proven to have been made; however, if it is intended to refute him in writing, his attention
must be drawn to certain parts of it which are to be used for the purpose of contradicting him
before the writing can be proved.
Section 149 of BSA “Questions lawful in cross-examination.” –
When a witness is cross-examination, he can, in addition to the questions alluded to above,
pose any question that appears to occur.
(1) to the detriment of his veracity.
(2) to find out who he is, and what his place in life is, or
(3) to shake his credit by damaging his integrity, even if the answer to such questions can
appear, directly or indirectly, to criminalise him or may directly or indirectly expose him or
her to a penalty or forfeiture.
Section 150 “When witness to be compelled to answer.” –
If any such question relates to a matter relevant to the suit or proceeding, the provisions of
section 132 shall apply thereto.
Section 151 of BSA“ Court to decide when question shall be asked and when witness
compelled to answer.” –
If any such question concerns an issue which is not relevant to the suit or proceedings, except
in so far as it affects the credit of the witness by harming his character, the Court shall
determine whether or not the witness is obliged to answer it and can, if it finds it necessary,
notify the witness that he is not obliged to answer it. In the exercise of its discretion, the
Court of Justice shall take account of the following considerations:
(1) Such questions are right in that they are of such a nature that the validity of the imputation
they have provided will have a significant effect on the judgement of the Courts as to the
integrity of the witness in the matter testified to;
(2) Such questions are inappropriate if the imputation they render relates to matters so distant
in time, or of such character, that the truth of the imputation would not have an impact, or
would have a slight effect, on the judgement of the Court as to the integrity of the witness in
the matter testifying to it;
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(3) Such questions are unacceptable if there is a significant difference between the
importance of the imputation made against the character of the witness and the importance of
the evidence;
(4) The Court may, if it deems it necessary, draw from the reluctance of the witness to
respond an inference that the response, if given, would be unfavourable.
Section 152 “Question not to be asked without reasonable grounds.” –
No question, as alluded to in section 148, should be asked unless the person asking the
question has fair grounds to believe that the imputation it provides is well-founded.
Illustrations:
(a) A lawyer shall be told by a lawyer or vakil that an important witness is a dakait. This is a
fair basis for questioning the witness if he is a dakait.
(b) The pleader shall be told by the person before the court that an important witness is a
dakait. The informant, upon being questioned by the pleader, gives satisfactory reasons for
the allegation. This is a fair basis for questioning the witness if he is a dakait.
(c) A witness, of whom nothing is known, is randomly asked if he is a dakait. There are no
fair grounds for the issue.
(d) A witness, about whom nothing is known, being asked as to his way of life and means of
living, gives unsatisfactory answers. This could be a fair ground to ask him if he is a dakait.
Section 153 “Procedure of Court in case of question being asked without reasonable
grounds.” –
If the Court is of the opinion that any such question has been raised without fair grounds, it
may, if it has been asked by a lawyer, a pleader, a vakil or a lawyer, refer the circumstances of
the case to the High Court or to any other authority to which that lawyer, pleader, vakil or
lawyer is the subject in the exercise of his profession.[5]
Section 154 of “Indecent and scandalous questions”-
The Court may prohibit any questions or investigations which it finds to be indecent or
scandalous, even if such questions or investigations may have any effect on the questions
before the Court, unless they relate to the facts at issue or to matters which need to be known
in order to decide whether or not the facts at interest existed.
Section 155 “Questions intended to insult or annoy.” –
The Court shall forbid any question which appears to it to be intended to be disrespectful or
irritating, or which, in itself, appears to the Court to be needlessly offensive in form.
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Section 156 “Exclusion of evidence to contradict answers to questions testing

veracity.” –
If a witness has been asked and answered any question that is important to the investigation
only in so far as it appears to shake his credit by damaging his integrity, no proof shall be
given to refute him; but if he responds falsely, he may be subsequently charged with giving
false evidence.
Exception 1.-If a witness is asked if he has previously been convicted of any crime and
denies it, proof of his previous conviction can be presented.
Exception 2.-If a witness is asked some question that appears to challenge his impartiality
and addresses it by denying the evidence implied, he can be contradicted.
Leading questions (Section 141,142)
Section 141 of Evidence Act “Leading questions.”–
Any question suggesting the answer which the person pulling it wishes or expects to receive,
is called a leading question.
Section 142 of Evidence Act “When they must not be asked.”-
Leading questions cannot even with the approval of the Court be referred to the adverse party
in an examination-in-chief or in a re-examination.
The Court shall allow questions to be posed in respect of matters which are introductory or
undisputed or which, in its opinion, have already been sufficiently identified.
Hostile witness (Section 158)
Section 158 “Impeaching credit of witness.” –
The credit of the witness can be charged in the following manner by the adverse party or,
with the permission of the Court, by the party who so requests
(1) By the testimony of individuals who testify that they conclude, from their experience of
the witness, that he is unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted an offer of bribery, or has
obtained some other unethical evidence to prove it;
(3) By proof of an earlier assertion which is inconsistent with some part of its facts which
may be contradicted;
Explanation – A witness who has found another witness to be unworthy of credit does not
give reasons for his belief at the time of his test, but his reasons may be questioned in cross-
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examination, and the responses he gives cannot be contradicted, even if they are incorrect, he
may subsequently be charged with giving false proof.
Illustrations
(a) A sue B for the price of the products sold and sent to B.
C states he shipped the goods to B.
Evidence is provided to prove that, on a previous occasion, he had said that he had not
supplied goods to B.
The proof is admissible.
(b) A is charged with the murder of B.
C says that B, when he died, declared that A had given B the wound from which he died.
Evidence is provided to prove that, on a previous occasion, C said that the wound was not
given by or in the presence of A.
The proof is admissible.
Refreshing Memory (Section 162)
Section 159 of Evidence Act “Refreshing memory.” –
A witness may, while under questioning, refresh his memory by referring to any writing made
by himself at the time of the transaction in respect of which he is questioned, or so soon
thereafter that the Court finds it probable that the transaction was fresh in his memory at that
time.
The witness can also refer to any other writing made by any other person and read by the
witness at the time referred to above, if he has known that it is accurate when he reads it.
Where a witness may use a copy of the document to refresh his or her memory. – When a
witness may refresh his or her memory by reference to any document, the witness may, with
the permission of the Court, refer to a copy of the document as follows:
Provided that the Court is satisfied that there is a sufficient explanation for the failure to
produce the original. An expert can refresh his memory by referring to professional treaties.
In the case of Jivan Lal Dage v. Nitmani, the plaintiff’s brothers were not produced in due
time. The Court refused to allow the plaintiff to produce his books of accounts, but allowed
him to check his memory by looking at their entries. The private council held that the proof
was appropriate under Section 159. A document not included in the list of documents as
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required by Order VII, Rule 13 of the CPC may be used for the analysis of the memory.
Papers filed late can be used to recover the memory.
Sec 160. In order to corroborate the testimony of a witness, any former statement made by
such witness relating to the same fact, at or about the time when the fact took place, or before
any authority legally competent to investigate the fact, may be proved.
Sec 161. Whenever any statement, relevant under section 26 or 27, is proved, all matters may
be proved either in order to contradict or to corroborate it, or in order to impeach or confirm
the credit of the person by whom it was made, which might have been proved if that person
had been called as a witness and had denied upon cross-examination the truth of the matter
suggested.
The examination of witnesses is extremely necessary in any case, irrespective of its civil or
criminal nature, and both the procedural laws clarify the examination of witnesses. Sections
140 to 169 of the BSA describe the examination of witnesses, including crucial aspects such
as, for example, who may first interview the witnesses during the examination of the
witnesses, what are the relevant facts agreed during the examination of the witnesses, what
questions can be raised by the advocate during the cross-examination of the witnesses, what
questions cannot be as follows.
Sec 164. Any writing referred to under the provisions of the two last preceding sections shall
be produced and shown to the adverse party if he requires it; such party may, if he pleases,
cross-examine the witness thereupon.
Sec165. (1) A witness summoned to produce a document shall, if it is in his possession or
power, bring it to Court, notwithstanding any objection which there may be to its production
or to its admissibility: Provided that the validity of any such objection shall be decided on by
the Court. (2) The Court, if it sees fit, may inspect the document, unless it refers to matters of
State, or take other evidence to enable it to determine on its admissibility. (3) If for such a
purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit,
direct the translator to keep the contents secret, unless the document is to be given in
evidence and, if the interpreter disobeys such direction, he shall be held to have committed an
offence under section 198 of the Bharatiya Nyaya Sanhita, 2023: Provided that no Court shall
require any communication between the Ministers and the President of India to be produced
before it.
Sec 166. When a party calls for a document which he has given the other party notice to
produce, and such document is produced and inspected by the party calling for its production,
he is bound to give it as evidence if the party producing it requires him to do so.
Sec167. When a party refuses to produce a document which he has had notice to produce, he
cannot afterwards use the document as evidence without the consent of the other party or the
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order of the Court. Illustration. A sues B on an agreement and gives B notice to produce it. At
the trial, A calls for the document and B refuses to produce it. Gives secondary evidence of its
contents. B seeks to produce the document itself to contradict the secondary evidence given
by A, or in order to show that the agreement is not stamped. He cannot do so.
Sec 168. The Judge may, in order to discover or obtain proof of relevant facts, ask any
question he considers necessary, in any form, at any time, of any witness, or of the parties
about any fact; and may order the production of any document or thing; and neither the
parties nor their representatives shall be entitled to make any objection to any such question
or order, nor, without the leave of the Court, to cross-examine any witness upon any answer
given in reply to any such question: Provided that the judgment must be based upon facts
declared by this Adhiniyam to be relevant, and duly proved: Provided further that this section
shall not authorise any Judge to compel any witness to answer any question, or to produce
any document which such witness would be entitled to refuse to answer or produce under
sections 127 to 136, both inclusive, if the question were asked or the document were called
for by the adverse party; nor shall the Judge ask any question which it would be improper for
any other person to ask under section 151 or 152; nor shall he dispense with primary evidence
of any document, except in the cases hereinbefore excepted.
Sec 169. The improper admission or rejection of evidence shall not be ground of itself for a
new trial or reversal of any decision in any case, if it shall appear to the Court before which
such objection is raised that, independently of the evidence objected to and admitted, there
was sufficient evidence to justify the decision, or that, if the rejected evidence had been
received, it ought not to have varied the decision.
Sec 170. (1) The Indian EvidenceAct, 1872 is hereby repealed. (2) Notwithstanding such
repeal, if, immediately before the date on which this Adhiniyam comes in to force, there is
any application, trial, inquiry, investigation, proceeding or appeal pending, then, such
application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the
provisions of the Indian Evidence Act, 1872, as in force immediately before such
commencement, as if this Adhiniyam had not come into force.

Comparative Chart: Bharatiya Sakshya Adhiniyam (BSA) vs. Indian Evidence Act
(IEA)
Feature Indian Evidence Act, 1872 Bharatiya Sakshya Adhiniyam,
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BHARATIYA SAKSHYA ADHINIYAM (FA5F) LECTURE NOTES
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(IEA) 2023 (BSA)

2023 (enacted in December 2023,

Enactment Year 1872
coming into effect later)

Modernizes evidentiary principles,

explicitly emphasizing fair trials,
Consolidated, defined, and and aims for a cohesive framework
Primary Objective amended the law of with other new criminal laws
evidence in India. (Bharatiya Nyaya Sanhita - BNS,
Bharatiya Nagarik Suraksha Sanhita
- BNSS).

Applies to all judicial proceedings

Extended to the whole of
in or before any court, including
Territorial Extent India (excluding Jammu and
courts-martial. Designed to address
Kashmir previously).
digital evidence from outside India.

Excluded courts-martial
Explicitly applies to all judicial
convened under specific
Application to Military proceedings, including courts-
military acts (e.g., Army
Courts martial, creating uniformity across
Act, Naval Discipline Act,
civilian and military justice systems.
Air Force Act).

Modernized to explicitly include

electronic and digital records,
Traditional definition,
emails, server logs, smartphone
Definition of "Document" largely focused on physical
content, and any other means of
documents.
expression, description, or
recording.

Defined as statements made Includes electronically given

by witnesses (oral evidence) statements as oral evidence (e.g.,
and documents produced for statements via video conferencing)
Definition of "Evidence" inspection (documentary and electronic/digital records as
evidence). Limited documentary evidence. Aims to
provisions for digital or remove any doubt about the
electronic evidence. admissibility of electronic evidence.

Digital Evidence Limited and often required Provides a clearer and more
Admissibility judicial interpretation for comprehensive framework for
admissibility of electronic admitting and evaluating digital
records (e.g., Section 65B). evidence. Includes specific
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provisions for certificates needed to

prove electronic evidence, including
mandatory certification by a "person
in charge" and an "expert" in a
prescribed format.

Expands relevancy to facts

Primarily focused on facts connected with relevant facts as part
Relevance of Facts in issue and direct of the same transaction. Generally,
relevance. core principles of relevancy are
largely retained.

Section 23(1) excludes the words

Section 25 stated that a
"not to be proved" from the heading
confession made to a police
regarding confession to police
officer could not be proved
officers. Sections 28 and 29 of IEA
Confessions to Police against a person accused.
(confession after removal of
Section 26 dealt with
impression, and confession
confessions by accused
otherwise relevant) are now
while in police custody.
provisos to Section 22 of BSA.

Adds a new explanation

(Explanation II to Section 24)
explicitly stating that a trial of more
than one person held in the absence
Did not explicitly address
Trial in Absentia of an absconding accused or one
the relevancy of a co-
(Relevance of Co-accused who fails to comply with a
accused's confession in
Confession) proclamation under the Bharatiya
cases of trial in absentia.
Nagarik Suraksha Sanhita, 2023,
shall be deemed a joint trial for the
purpose of joint confession
relevancy.

Obsolete Contained older Replaces obsolete, irrelevant, or old

Terminology/Provisions terminology and concepts, terminologies and language with
and some provisions that modern, simple, and contemporary
had become less relevant legal terms. Omissions include
(e.g., presumption as to Section 3(j) (definition of "India"),
documents admissible in Section 82 (presumption as to
England without proof of documents admissible in England),
seal/signature, presumption Section 88 (presumption regarding
The Central Law College
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telegraphic messages), Section 113

regarding telegraphic (proof of cession of territory), and
messages). Section 166 (power of jury or
assessors to put questions).

Structure (Sections) 167 Sections 170 Sections

Structure Divided into Parts and Structured with 4 parts and 12

(Parts/Chapters) Chapters. chapters.

Illustrations sometimes Illustrations have been updated with

contained outdated modern city names (e.g., Kolkata,
references (e.g., "Calcutta," Mumbai, Singapore, Chennai,
Illustrations
"Bombay," "Kabul," "coin," Laddakh) and contemporary terms
"carriage," "rupee," (e.g., "currency," "cars," "raped,"
"ravished," "banya"). "business").

Consistent rules for admissions,

including electronic forms. Section
Rules for admissions,
15 of BSA defines admission as a
Admissions including oral admissions
statement showing inference to any
about document contents.
fact in issue or relevant fact, and can
be oral, documentary, or electronic.

Contained various Largely retains the core principles

presumptions (e.g., of presumptions, with some
genuineness of certified renumbering and minor
Presumptions documents, official gazette, modifications. For instance,
power of attorney, good Sections 78, 80, 81, 84, 114, 117,
faith, abetment of suicide, 119 of BSA deal with similar
general presumptions). presumptions as in IEA.

Section 165 retains this obligation

but adds a proviso exempting
Section 165 imposed an
communication between Ministers
Witness Obligation obligation on a witness to
and the President from the
produce documents.
obligation of production before the
court.

⚖️Bharatiya Sakshya Adhiniyam vs Indian Evidence Act

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BHARATIYA SAKSHYA ADHINIYAM (FA5F) LECTURE NOTES
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Indian Evidence 🆕 Bharatiya Sakshya

📋 Aspect
Act, 1872 Adhiniyam, 2023

📅 Colonial Era Modern India

Enactment & Enacted: 1872 Enacted: December 25,
Implementation Legacy: 151+ years 2023
of operation Effective: July 1, 2024
Origin: British Origin: Indigenous Indian
colonial legislation legislation

📖 11 Chapters, 167 11 Chapters, 170 Sections

Sections Modernized structure with
Structure &
Traditional chapter- better logical flow and
Sections
wise organization contemporary legal
following Victorian language
legal drafting

💻 Limited Scope Comprehensive

Framework
Digital Evidence Section 65B added in
2000 for electronic Sections 63-67: Detailed
evidence, but provisions for:
inadequate for modern • AI-generated evidence
digital challenges • Blockchain records
• IoT data
• Cloud storage
• Digital signatures

🎥 Basic provisions Section 66: Specific

under documentary provisions for:
Audio-Visual
evidence with limited • Video recordings
Evidence
technological • Audio files
understanding • CCTV footage
• Body-worn cameras
• Livestream evidence
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Indian Evidence 🆕 Bharatiya Sakshya

📋 Aspect
Act, 1872 Adhiniyam, 2023

🔍 Sections 45- Sections 57-59: Expanded

51: Traditional expert to include:
Expert Evidence
testimony limited to • Cyber forensics
established fields • Digital analytics
• AI and ML specialists
• Blockchain experts
• Data scientists

⚖️ Sections 101- Sections 110-123: Refined

114A: Classical approach considering
Burden of Proof
principles with digital evidence
emphasis on party complexities and modern
pleading facts investigation techniques

🚫 Sections 121- Sections 134-

132: Limited to 145: Extended to include:
Privileged
traditional • Digital communications
Communications
relationships (lawyer- • Encrypted messages
client, spousal, etc.) • Therapy sessions via
video calls
• Modern professional
relationships

📱 No specific Section 68: Specific

provisions; treated framework for:
Mobile & Digital
under general • WhatsApp messages
Communications
documentary evidence • Email communications
with challenges in • Social media posts
authentication • SMS/MMS
• Dating app conversations

No specific provisions Section 69: Balances

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Indian Evidence 🆕 Bharatiya Sakshya

📋 Aspect
Act, 1872 Adhiniyam, 2023

for privacy in evidence needs with:

evidence collection • Right to privacy
Privacy & Data
(predates modern • Data protection principles
Protection
privacy concepts) • Consent requirements
• Minimal intrusion
standards

🌐 Limited provisions for Section 70: Modern

foreign documents framework for:
Cross-Border
under traditional • Cloud data across
Evidence
international law jurisdictions
concepts • International digital
cooperation
• Mutual Legal Assistance
Treaties (MLATs)
• Extraterritorial evidence
collection

🔒 Sections 67- Sections 71-77: Modern

73: Traditional methods include:
Authentication
methods: • Digital signatures
Methods
• Handwriting • Biometric verification
comparison • Cryptographic hashing
• Seal verification • Blockchain verification
• Witness testimony • AI-assisted authentication

👥 Sections 138- Sections 151-

166: Physical 169: Provisions for:
Witness
presence required, • Virtual testimony
Examination
traditional • Video conferencing
examination methods • Remote witness
examination
• Protection of vulnerable
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Indian Evidence 🆕 Bharatiya Sakshya

📋 Aspect
Act, 1872 Adhiniyam, 2023

witnesses
• Anonymous testimony (in
specific cases)

💡 Key Takeaway: BSA 2023 represents a paradigm shift from colonial-era evidence law to a
modern, technology-aware framework suitable for 21st-century litigation.

Common questions

Section 132 of the BSA defines privileged communication as confidential communication between a lawyer and client which cannot be disclosed without client consent, except under certain conditions such as furtherance of an illegal purpose or when explicitly waived by the client .

Attorney-client communication is protected if the interaction is confidential, made in the course of professional employment, and not meant to further an illegal activity. This privilege persists unless waived by the client or under specific legal exceptions .

Judicial confessions, made before a magistrate or in court, are considered more reliable and have higher evidentiary value. Extrajudicial confessions require corroborating evidence as they are often considered suspect due to the potential for undue influence, leading them to hold less evidentiary weight .

Leading questions, which suggest the answer, are generally not allowed during direct examination to avoid influencing the witness’s testimony unduly, but are permitted during cross-examination as a tool to challenge and probe the accuracy and credibility of the witness's statements .

The burden of proof lies with the party asserting the claim (prosecution in criminal cases) to establish the fact in issue. This establishes the requirement for the prosecution to provide evidence substantial enough to prove the crime beyond a reasonable doubt, impacting the outcome of the proceedings .

The competency of a child witness is determined by understanding of the obligation to speak the truth, mental capacity at the time of the event to receive an accurate impression, and memory to retain an independent recollection of the occurrence. Absence of any these factors renders the child incompetent to testify .

A magistrate is empowered to record confessions under Section 164 of the Criminal Procedure Code, with safeguards including advisement of rights and ensuring the confession is voluntary, without coercion, as part of safeguarding against undue influence .

The legal significance of the presumption under Section 113B is that courts must presume dowry death if it is shown that a woman was subjected to cruelty related to dowry demands before her death, unless strong and cogent evidence is presented to rebut this presumption .

A confession by a co-accused is insufficient on its own because it holds no substantial evidentiary value without additional corroborative evidence, as such confessions are treated as weak and need support from independent facts to establish guilt .

A confession could be deemed inadmissible if recorded after police investigation but before a magisterial inquiry begins, or if not made voluntarily, as demonstrated in the case of Raja Ram v. State .

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Bharatiya Sakshya Adhiniyam Lecture Notes

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The Central Law College

BHARATIYA SAKSHYA ADHINIYAM (FA5F) LECTURE NOTES

BHARATIYA SAKSHYA ADHINIYAM

Module I: Introduction to Evidence Law

Module II: Admission-Confession - Dying Declaration

Module III: Expert Evidence - Relevancy of Character

a) Opinion of Third Person When Relevant-Expert Witness- Value of Expert Witness.

Module IV: Of Proof- Burden of Proof

Module VI: Witnesses Examination of Witness

Recommended Readings: Books:

MODULE I – INTRODUCTION TO EVIDENCE LAW

Ancient Hindu period:

Production and effect of evidence

CONSTITUTIONAL PERSPECTIVE OF EVIDENCE

Golden rules of evidence

Different Forms of Evidence

Eye Expert Chance Witness Hostile Witness

Different between relevancy and admissibility

Aspect Relevancy Admissibility

The logical connection between The status of facts declared legally

Grounded in logic and human

Discussed under Section 5 to 55

Focuses on what facts are

Acts as a decisive factor, guiding More of an effect, determining whether

Essentially a cause, determining

Crucial in building a case and Admissible facts may or may not be

MODULE II: ADMISSION-CONFESSION - DYING DECLARATION

Definition of admission - Sec15. An admission is a statement, oral or documentary or contained in electronic

Admissions regarding state of mind or body

b) Oral Admission as to Content of Documents -Admission in Civil Cases- Evidentiary Value of

(iii) Who has become impossible of giving evidence; or

Evidentiary Value of a Dying Declaration

MODULE III: EXPERT EVIDENCE - RELEVANCY OF CHARACTER

a) Opinion of Third Person When Relevant-Expert Witness- Value of Expert Witness.

2. Witness states the facts. Opinion of a witness is not admissible.

 A person who is an expert in this field

MODULE IV: OF PROOF- BURDEN OF PROOF

CASE LAWS ON ORAL EVIDENCE

State v. Rajal Anand

Amar Singh v. Chhaju Singh And Anr.

Bhima Tima Dhotre v. The Pioneer Chemical Co.

1. Certified copies given under the provisions hereinafter contained

3. Copies made from or compared with the original;

Sec 58. Secondary evidence includes—

o It qualifies as a public document (Sec. 74).

Electronic evidence should have complied with certification requirement –

 The attestation is in the handwriting of at least one witness.

The Background of Sanjeeda Begam v. Md. Eqbal Case

Presumption as to electronic records five years old

What is burden of proof?

What is onus of proof?

Section 109 of Bhartiya Sakshya Adhiniyam, 2023(BSA)

 Anees v. The State Govt of NCT (2015):

 Section 113: Burden of Proof as to Ownership

Presumption as to certain offences Sec 115

Sec 116 Birth during marriage, conclusive proof of legitimacy

 Dipanwita Roy v. Ronobroti Roy (2015):

o Scientific Evidence v. Legal Presumption – The SC recognized DNA testing as a highly

Section 117 of BSA

Effect of Section 117 of BSA

In Shamlal vs. State of Haryana: AIR 1997 SC 1830:

(e) Judicial and official acts have been performed regularly.

What is the Background of Pankaj Singh v. State of Haryana?

 No estoppel against sovereign acts in public interest

Legal Issues Raised in Pickard v Sears

Distinction between 'Estoppel' and 'Res judicata'

Estoppel Res judicata

[Link] prevents a person from [Link] judicata prevents the jurisdiction

[Link] is rule of equity. [Link] judicata is rule of legal procedure.

[Link] originates from [Link] res judicata originates from

representation or conduct of theparty. decision of Court.

[Link] prevents a person to rebut [Link] judicata prevents the court to

section 115 of Evidence Act, 1872. down under section 11 of C.P.C.1908.

[Link] can be inferred from the [Link] judicata is claimed on basis of

conduct of the parties. previous decision of competent court.

Distinction between 'Estoppel' and 'Waiver'