B.S.A.: Complete Notes

About this subject

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A judge must decide, months or years later, what happened in an incident the judge never saw. The only way is through evidence, the bridge between the past event and the present courtroom. The Law of Evidence decides which planks can build that bridge, and how strong it must be before the court walks across it.

The law now in force is the B.S.A., 2023, which replaced the Indian Evidence Act, 1872 (IEA). Most judgments were decided under the IEA, so both section numbers are given throughout.

The five questions of every evidence problem

1. Relevancy: is this fact connected to the case?
2. Admissibility: even if connected, will the law allow it in?
3. Proof: how is it proved: by a witness, a document or an electronic record?
4. Burden of proof and presumptions: who must prove it, and can the court presume something?
5. Witnesses and examination: who can give this evidence, and how is that person questioned?

The subject follows this path in six modules: the foundation; relevancy and admissibility (the largest); proof, including electronic evidence; the accomplice; burden of proof and presumptions; and witnesses.

Role of the Law of Evidence

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Kind of law	What it does	Examples
Substantive	Tells you your rights and duties	B.N.S. (murder is an offence); Indian Contract Act (when a promise becomes enforceable)
Procedural	Tells you how a case moves through the system	B.N.S.S. (police investigation, criminal trial); Code of Civil Procedure (filing and trial of a civil suit)
Evidence	What material the court can look at, how it must be brought before the court, and when a fact is treated as proved	B.S.A.

The law says murder is an offence; procedure says the trial will be held in a Sessions Court. How the court will know that this accused killed this person is the gap evidence law fills.

The B.S.A. helps the court find the truth, and find it fairly. It applies to civil and criminal cases, mainly at inquiry and trial; balances both sides; decides who must prove what; allows some presumptions; gives each side the right to cross-examine; keeps out some evidence, like confessions to the police; and protects certain communications, like those between client and advocate.

History: From the IEA to the B.S.A.

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• Before 1872: no uniform law. The Presidency towns broadly followed English rules; elsewhere practice varied.
• 1872: Sir James Fitzjames Stephen drafted the Indian Evidence Act, in force from 1 September 1872; it worked for over 150 years.
• 2000: with the Information Technology Act, the IEA was amended for electronic records, adding Sections 65A and 65B.
• 2003: the Law Commission reviewed the whole Act in its 185th Report.
• 2013: amendments strengthened protection of victims of sexual offences.
• 2023: three criminal laws passed together: the B.N.S. replaced the Indian Penal Code, the B.N.S.S. the Code of Criminal Procedure, and the B.S.A. the IEA. Assent: 25 December 2023; in force: 1 July 2024.

The B.S.A. is not a completely new law. It keeps the structure and most of the language of the IEA; most provisions are renumbered, some merged, a few dropped and some important ones added. The biggest changes concern electronic and digital records, and colonial references are removed.

Point	IEA	B.S.A.
Number of sections	167	170
Confessions to the police	Sections 25, 26, 27	Combined in Section 23

Transition: Section 170

Section 170 repeals the IEA, but any trial, inquiry, investigation, proceeding or appeal pending when the B.S.A. came into force continues under the IEA as if the B.S.A. had not come into force. For some years, both laws will be applied.

Constitutional and Jurisprudential Basis

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• Article 14: equality and protection against arbitrariness; rules of proof must apply equally to both sides.
• Article 21: no deprivation of life or personal liberty except according to procedure established by law, read by the Supreme Court as a procedure that is fair, just and reasonable. A fair trial is part of Article 21 and impossible without fair rules of evidence; the right to cross-examine adverse witnesses is at its core.
• Article 20(3): no person accused of an offence shall be compelled to be a witness against himself. This right against self-incrimination shapes the whole law of confessions.
• Natural justice: no one should be condemned unheard; justice must be done and be seen to be done. The B.S.A. gives life to these principles through the right to cross-examine, the exclusion of forced confessions, and decisions based only on proved facts.

Adjective law: Jeremy Bentham called procedural law, including evidence, adjective law. As an adjective serves a noun, it serves substantive law, so that substantive rights can actually be enforced.

Illegally obtained evidence

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Is relevant evidence excluded if collected illegally, say in a search that broke the procedure? Some countries exclude it; Indian law generally has not. A good essay question.

The Law Commission's 94th Report (1983) proposed a judicial discretion to exclude illegally obtained evidence. It was never enacted, and the B.S.A. has not adopted such a rule. The issue links evidence law with privacy and fair investigation.

Evidence Law, Substantive Law and Procedural Law

The B.N.S. defines murder and tells you what the prosecution must establish (causing death with a certain intention or knowledge) but not how to prove intention. The B.S.A. does: Section 12 makes facts showing a state of mind relevant, and Section 6 makes motive and preparation relevant. On the procedural side, the B.N.S.S. governs how evidence in a criminal trial is recorded, and the Code of Civil Procedure how issues are framed in a civil suit. The three laws work like three gears in one machine.

The B.S.A. also borrows from the B.N.S.: its presumption on dowry death uses the B.N.S. meaning of dowry death, and its rule on proving General Exceptions, like private defence, refers to the B.N.S.

Applicability of the B.S.A.: Section 1

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Section 1: the B.S.A. applies to all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator.

Proceeding	Applies?	Reason
Courts, including Courts-martial (military courts)	Yes	Expressly covered
Affidavits	No	They have their own rules
Arbitration	No	Parties choose it for a quicker, less technical process

Tribunals, commissions and departmental inquiries decide disputes but are not courts in the strict sense. The B.S.A. does not bind them in its full technical form unless some law says so, but they must still follow natural justice.

Case: Dhakeswari Cotton Mills v. Commissioner of Income Tax

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Case: R.K. Anand v. Registrar, Delhi High Court

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Fact, Fact in Issue and Relevant Fact

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These definitions are in Section 2 of the B.S.A. (formerly Section 3 of the IEA); every later topic depends on them.

• Physical facts (seen, heard, touched, smelt, tasted): a man standing near a shop; blood on a knife; a person hearing a scream.
• Psychological facts (in the mind): an intention; good faith; an opinion; consciousness of a sensation, like pain. They matter because murder needs intention or knowledge and cheating needs dishonest intention.

The old Act also listed reputation as a fact; the B.S.A. has dropped that illustration.

Facts in issue

Facts from which, by themselves or with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in the case, necessarily follows. Simply, the main fact in dispute on which the result depends: if proved, a right or liability follows; if not, it does not.

In civil cases, facts in issue come from the pleadings (plaint and written statement); by the Explanation, whenever a court records an issue of fact under civil procedure law, the fact asserted or denied in answer to it is a fact in issue. In criminal cases, they come from the charge and the ingredients of the offence.

Relevant fact

One fact is relevant to another when connected with it in any of the ways referred to in the B.S.A.'s provisions on relevancy of facts.

Fact in issue	Relevant fact
The main question; the result depends on it	Helps answer it; does not decide the case alone
Whether Farhan killed Prince	That Farhan threatened Prince the day before
The destination	The road that leads there

Evidence: Oral, Documentary and Electronic

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Under Section 2, evidence means and includes:

1. Oral evidence: all statements, including statements given electronically, which the court permits or requires witnesses to make before it in relation to matters of fact under inquiry.
2. Documentary evidence: all documents, including electronic or digital records, produced for the inspection of the court.

So evidence by video conferencing is still oral evidence, and an email, chat or CCTV file is a document.

Document: any matter expressed, described or otherwise recorded upon any substance by letters, figures, marks or any other means, intended to be used, or which may be used, for recording that matter; expressly including electronic and digital records. A modern illustration: an electronic record on emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.

Direct and circumstantial evidence

Not a statutory definition, but an essential classification.

Direct evidence	Circumstantial evidence
Proves the fact in issue directly	Proves other facts from which the fact in issue is inferred
An eyewitness who saw the stabbing	The accused seen running from the house in a bloodstained shirt

Both are valid. Many convictions rest entirely on circumstantial evidence, provided the chain is complete and points only towards guilt.

Proved, Disproved and Not Proved

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Term (Section 2)	Meaning
Proved	After considering the matters before it, the court either believes the fact 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
Disproved	The court either believes the fact does not exist, or considers its non-existence so probable that a prudent man ought to act upon the supposition that it does not exist
Not proved	Neither proved nor disproved

The test is the prudent man, not mathematical certainty: would a sensible, careful person act on this belief in these circumstances?

Standard of proof

The definition is the same in civil and criminal cases; the degree of probability the prudent man demands differs.

Civil cases	Criminal cases
Preponderance of probabilities (more likely than not)	Guilt beyond reasonable doubt, because life and liberty are at stake

May Presume, Shall Presume and Conclusive Proof

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A presumption is a shortcut the law allows: when one fact is proved, the court takes another as proved, unless something stops it. There are three levels.

Term	B.S.A.	Effect	Court's choice?	Disproof?
May presume	Section 2(1)(h)	Court may regard the fact as proved unless and until disproved, or may call for proof of it	Yes	Yes
Shall presume	Section 2(1)(l)	Court must regard the fact as proved unless and until disproved	No	Yes
Conclusive proof	Section 2(1)(b)	On proof of one fact, court must regard the other as proved and shall not allow evidence to disprove it	No	No

Under the IEA, all three were in Section 4.

Relevancy and Admissibility: General Principles

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Section 3 (Section 5 of the IEA): 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 declared to be relevant, and of no others.

Relevancy and admissibility distinguished

Relevancy	Admissibility
Connection: is the fact connected to the case in a way the Act recognises?	Permission: even if relevant, does the law allow the court to receive it?
A matter of logic	A matter of law

Logical relevance is the common-sense connection between two facts; legal relevance is narrower, a connection the law recognises and will act upon. A village rumour may be logically connected to a case, but the law will not act on it because it cannot be tested. Exam line: relevancy is a matter of logic; admissibility is a matter of law.

The judge as gatekeeper: Sections 141 and 168

Section 141 (Section 136 of the IEA): when a party proposes to give evidence of a fact, the judge may ask how the fact, if proved, would be relevant, and shall admit it only if the judge thinks it would be relevant.

Section 168 (Section 165 of the IEA): to discover or obtain proof of relevant facts, the judge may ask any question he considers necessary, in any form, at any time, of any witness or party, about any fact, and may order production of any document or thing. The parties cannot object.

Old Section 165 (IEA)	Section 168 (B.S.A.)
Any question "he pleases", about any fact "relevant or irrelevant"	Any question "he considers necessary"

Limits: the judgment must rest on facts declared relevant and duly proved, and a witness cannot be forced to answer a question he is legally entitled to refuse. The judge is not a silent umpire; finding the truth is the court's own duty.

The relevancy provisions begin with Sections 3 to 9 (Sections 5 to 11 of the IEA), often called logically relevant facts.

Res Gestae: Section 4

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Res gestae means "things done": facts so closely connected with a fact in issue that they form part of the same transaction are relevant.

Rationale: an event is a flow of things said and done just before, during and after it, not a frozen moment; cut those out and the court sees a broken picture. Words spoken in the heat of the moment are usually true, as there is no time to invent a lie.

• Transaction: a group of facts so connected that they can be referred to by a single name, like a crime, a contract or a wrong. Test: closeness in time, unity of place, continuity of action and common purpose.
• Spontaneity is the key ingredient: the statement must be made during the event, or so soon after that there was no time to reflect or fabricate.
• Exception to hearsay: normally a witness speaks only of what he himself saw or heard, but he may repeat words spoken as part of the event, because they are themselves part of what happened.

Case: Mukesh v. State for NCT of Delhi (Nirbhaya case)

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Occasion, Cause or Effect: Section 5

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Section 5 (Section 7 of the IEA) makes relevant 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. Occasion and opportunity made the event possible; cause led to it; effect followed; the state of things is the background.

1. Occasion and opportunity: whether A robbed B: that shortly before, B went to a fair with money and showed or mentioned it to others.
2. Effect: whether A murdered B: marks on the ground produced by a struggle at or near the place of murder.
3. State of things and opportunity: whether A poisoned B: B's health before the symptoms, and B's habits, known to A, which gave A an opportunity to give the poison.

Case: R.M. Malkani v. State of Maharashtra

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A recording today is an electronic record, so the rules in Section 63 also apply.

Motive, Preparation and Conduct: Section 6

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• Section 6(1) (Section 8 of the IEA): any fact which shows or constitutes a motive or preparation for any fact in issue or relevant fact is relevant.
• Section 6(2): the conduct of any party or party's agent, in reference to the proceeding or any fact in issue or relevant fact, and of the person against whom the offence was committed, is relevant if it influences or is influenced by a fact in issue or relevant fact, whether it came before or after.

Motive is why a person acts: money, revenge, jealousy, fear. It is not an ingredient of the offence but explains why it may have been committed.

Preparation is arranging the means: buying poison, sharpening a knife, studying the victim's routine, arranging an escape vehicle. Illustration: A, tried for poisoning B, had procured before B's death poison similar to that given to B: relevant.

Conduct is behaviour before or after the event which influences or is influenced by the fact in issue: running away, hiding the weapon, destroying evidence, threatening witnesses. Illustration: after a robbery, someone says in A's presence that the police are coming for the man who robbed B, and A immediately runs away: relevant conduct.

• Explanation 1: conduct excludes statements, unless they accompany and explain acts other than statements. If a person runs away shouting, "They will kill me", the words accompany and explain the running and form part of the conduct.
• Explanation 2: when a person's conduct is relevant, any statement made to him, or in his presence and hearing, which affects that conduct, is relevant.
• Complaints: where the question is whether a person was robbed or a woman raped, that the victim made a complaint soon after, with its circumstances and terms, is relevant as conduct. A mere statement "I was robbed", not a complaint, is not relevant as conduct, though it may be relevant otherwise, for example under Section 26 or Section 160.

Of the cases read with this topic, the Nirbhaya case fits here for the accused's conduct after the crime; Badri Rai belongs under conspiracy and Jayantibhai under Section 9.

Introductory, Explanatory and Identity Facts: Section 7

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Section 7 (Section 9 of the IEA), now very important in criminal law, makes relevant, in so far as they are necessary for the purpose, facts which:

• explain or introduce a fact in issue or relevant fact;
• support or rebut an inference suggested by such a fact;
• establish the identity of any thing or person whose identity is relevant;
• fix the time or place at which a fact happened; or
• show the relation of the parties by whom the fact was transacted.

The limiting words let in only what is needed to explain, introduce or identify.

Today the key use of Section 7 is identity (who was the person, which the vehicle, whose the weapon), through five modern tools.

DNA tests

Every DNA profile is unique, except for identical twins, so a match between material from the scene and the accused is strong evidence of identity. It comes in through an expert, whose opinion is relevant under Section 39. It is only as good as the collection and preservation of samples: a broken chain of custody or possible contamination makes the court cautious. In the Nirbhaya case, DNA evidence was important in linking the accused to the crime.

Test Identification Parade

Where the witness did not know the accused before the crime, a Magistrate arranges a parade: the arrested suspect stands among several persons of similar appearance and the witness is asked to pick out the culprit.

Voice samples

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Can an accused be made to give a voice sample, for example to compare with a recorded ransom call?

Section 349 of the B.N.S.S. now expressly allows a Magistrate of the first class to direct any person, including an accused, to give specimen signatures, finger impressions, handwriting or a voice sample; an expert does the comparison.

Sniffer dogs

A trained dog picks up a scent at the scene and leads police to a house or person. Courts are very cautious: a dog cannot be cross-examined, and no one knows exactly why it went where it did. The handler's account may help the investigation, but the Supreme Court has said such evidence is not ordinarily of much weight and cannot alone establish guilt; at best it is a weak supporting circumstance.

Mobile phone location and GPS

Call detail records show who called whom and when; tower data shows roughly, and GPS more precisely, where a phone was, helping fix time and place under Section 7. But (1) as electronic evidence it must be proved under Sections 61 to 63, usually with a certificate; and (2) it shows where the phone was, not necessarily the person, so other evidence must link them.

Facts Not Otherwise Relevant: Section 9

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Section 9 (Section 11 of the IEA) is a safety net. Facts not otherwise relevant are relevant (1) if inconsistent with any fact in issue or relevant fact; or (2) if, alone or with other facts, they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Case: Jayantibhai Bhenkarbhai v. State of Gujarat

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Plea of Alibi under Section 9 (continued)

Conspiracy (Section 8)

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Section 8 of the B.S.A. was Section 10 of the Indian Evidence Act (IEA). It is examined very often.

A conspiracy is an agreement between two or more persons to do an illegal act, or a legal act by illegal means. The offence is defined in the B.N.S.; Section 8 answers the evidence question: how is a conspiracy proved, and how is it proved who was part of it? Conspirators do not sign agreements and meet in secret, so the law gives a special rule.

The rule

Basis: agency. On joining a conspiracy, each member becomes the agent of the others for carrying out the common plan. What one says or does for the plan is treated as said or done by all.

Conditions: the three steps

1. Prima facie evidence: there must first be reasonable ground to believe that a conspiracy existed.
2. Common intention: the thing said, done or written must be in reference to the common intention.
3. Timing: it must come after the intention was first formed and while the conspiracy is still alive.

Once the conspiracy ends (its object achieved or abandoned, or the conspirators arrested), the agency ends. What one conspirator says after that cannot be used against the others under Section 8.

Mirza Akbar v. Emperor (1940)

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Badri Rai v. State of Bihar (1958)

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Mohammed Khalid v. State of West Bengal (2002)

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State of Mind and State of Body (Sections 12 and 13)

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Sections 12 and 13 of the B.S.A. were Sections 14 and 15 of the IEA. No one can look inside a person's head; the mind can only be inferred from outside facts.

Section 12

Facts showing any state of mind (intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person), or any state of body or bodily feeling, are relevant when that state is in issue or relevant.

• Explanation 1: the fact must show the state of mind in reference to the particular matter in question, not generally. It is not enough to prove that Farhan is generally dishonest; it must be shown that he knew these particular goods were stolen.
• Explanation 2: where a previous offence by the accused is relevant under this section, his previous conviction is also relevant.

Section 13

This meets the defence "it was an accident". Where the question is whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that it formed part of a series of similar occurrences, in each of which the doer was concerned, is relevant.

Admissions (Sections 15 to 21 and 25)

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Admissions, confessions and dying declarations are statements relevant because of who made them.

Definition (Section 15)

Simply put, it is a statement by a party, or someone closely connected with a party, about the facts of the case, usually against that party's own interest. The B.S.A. expressly adds the electronic form, so an email or a WhatsApp message can be an admission. It is relevant because people do not usually say things against their own interest unless they are true.

Who can make an admission (Sections 16 to 18)

• Section 16: a party; an agent authorised by the party; a person suing or sued in a representative character, while holding that character; a person with a proprietary or money interest in the subject matter; a person from whom a party got his interest.
• Section 17: persons whose position or liability must be proved against a party.
• Section 18: persons to whom a party has expressly referred for information.

Other rules on admissions

• Section 19 (against whom): admissions may be proved against the maker or his representative in interest, but generally not by or on behalf of the maker, since a person cannot create evidence in his own favour by his own words. There are three narrow exceptions, for example where the statement would be relevant as the statement of a dead person under Section 26.
• Section 20 (oral admissions about documents): oral admissions about the contents of a document are not relevant, unless the party is entitled to give secondary evidence of it, or its genuineness is in question. The document should speak for itself.
• Section 21 (civil cases): an admission is not relevant if made on an express condition that evidence of it would not be given, or in circumstances showing the parties agreed it would not be given. This protects "without prejudice" settlement talks so that parties can negotiate freely.
• Section 25 (Section 31 of the IEA): admissions are not conclusive proof of the matters admitted, but may operate as estoppels. So an admission can be explained: Farhan can show he wrote the letter by mistake or under pressure, and the court will weigh his explanation.

Bishwanath Prasad v. Dwarka Prasad (1974)

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Party's own earlier statement	Ordinary witness's earlier statement
An admission; substantive evidence against him	Used only to test his credibility

Central Bureau of Investigation v. V.C. Shukla (1998)

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Admission and confession distinguished

Point	Admission	Confession
Proceedings	Civil or criminal	Only criminal
Nature	Any statement suggesting an inference against the maker	A statement by an accused admitting guilt
Maker	An agent's admission can bind the principal	Must be made by the accused himself
Value	Not conclusive	A voluntary and true confession can by itself support a conviction

Confessions (Sections 22, 23 and 24)

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Meaning

The Act does not define "confession".

A confession can be the strongest and also the most dangerous evidence, since confessions have been extracted by torture, threats and false promises. So the law builds a wall of protection around the accused, brick by brick.

First brick: Section 22 (involuntary confessions)

Section 22 of the B.S.A. (Section 24 of the IEA): a confession by an accused is irrelevant in a criminal proceeding if the court thinks it was caused by any inducement, threat, coercion or promise which:

1. has reference to the charge;
2. comes from a person in authority, such as a police officer, a Magistrate or a public prosecutor; and
3. is enough to give the accused reasonable grounds for supposing that by confessing he would gain an advantage or avoid an evil of a temporal (worldly) nature in reference to the proceedings against him.

A moral or religious appeal ("tell the truth, God is watching") is not a temporal inducement.

Provisos to Section 22

1. If the impression caused by the inducement, threat, coercion or promise has been fully removed, a later confession is relevant (formerly Section 28 of the IEA).
2. An otherwise relevant confession does not become irrelevant merely because it was made under a promise of secrecy, or because of a deception practised on the accused, or when he was drunk, or in answer to questions he need not have answered, or because he was not warned that he need not confess (formerly Section 29 of the IEA).

The test is voluntariness, not perfection of procedure.

Second brick: Section 23(1) (confession to a police officer)

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Section 23(1) of the B.S.A. (Section 25 of the IEA): no confession made to a police officer shall be proved against a person accused of any offence, whether or not he was in custody. The reason is fear of police pressure: the law does not want to encourage the police to take a shortcut through a forced confession instead of a proper investigation.

Third brick: Section 23(2) (confession in police custody)

Section 23(2) of the B.S.A. (Section 26 of the IEA): no confession made by any person while in the custody of a police officer shall be proved against him, unless made in the immediate presence of a Magistrate. So a confession in police custody to a private person, a doctor or a fellow prisoner is out, unless a Magistrate is present.

Judicial, extra-judicial and retracted confessions

Type	Meaning	Points to remember
Judicial	Recorded properly by a Magistrate	Procedure in Section 183 of the B.N.S.S. (Section 164 of the CrPC): the Magistrate must first explain that the accused is not bound to confess and that it may be used against him, and must be satisfied it is voluntary
Extra-judicial	Made to a private person outside court	Admissible if voluntary, but weak evidence, examined very carefully
Retracted	Later withdrawn	Courts may act on it if voluntary and true, but usually look for corroboration

The one opening in the wall: discovery (Proviso to Section 23)

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The discovery itself confirms that part of the information was true: the recovered knife is independent proof that the accused knew where it was hidden.

Pulukuri Kottaya v. Emperor (1947)

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Aghnoo Nagesia v. State of Bihar (1966)

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Veera Ibrahim v. State of Maharashtra (1976)

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Confession of a co-accused (Section 24)

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Section 24 of the B.S.A. (Section 30 of the IEA): when more persons than one are tried jointly for the same offence, and a confession by one of them affecting himself and others is proved, the court may take it into consideration against those others as well as the maker.

It is not evidence in the ordinary sense: it is not on oath, not made in the presence of the other accused, and cannot be tested by cross-examination. It is a very weak type of evidence, usable only to lend assurance to other evidence, never as the foundation of a conviction (this is developed in the Bhuboni Sahu case, studied later in the course).

The Constitutional Shield: Article 20(3)

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Article 20(3): no person accused of any offence shall be compelled to be a witness against himself. It has three parts:

1. the person must be accused of an offence; in customs and other non-police proceedings this means a formal accusation (Veera Ibrahim), but in a police investigation the protection also covers suspects and witnesses (Selvi);
2. there must be compulsion;
3. the compulsion must be to be a witness, that is, to give testimony.

State of Bombay v. Kathi Kalu Oghad (1961)

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Selvi v. State of Karnataka (2010)

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Testimonial compulsion and physical evidence

A key exam distinction:

Category	Meaning	Position	Authority
Testimonial compulsion	Forcing a person to reveal what is in his mind	Prohibited	Article 20(3)
Physical evidence	Fingerprints, handwriting specimens, voice samples, blood or DNA samples; they do not reveal the mind	May be compelled	Kathi Kalu Oghad; Ritesh Sinha
Voluntary statement	Freely made, without threat, promise or coercion	Usable, subject to the rules on confessions to the police	Rules on confessions
Involuntary techniques	Narco-analysis, polygraph, brain mapping without consent; they force the mind open	Prohibited	Selvi
Evidentiary use	Even a voluntary test result is not itself evidence	A fact discovered because of it may be proved	Proviso to Section 23

Dying Declarations (Section 26(a))

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Section 26 of the B.S.A. (Section 32 of the IEA) covers statements of persons who cannot be called as witnesses because they are dead, cannot be found, have become incapable of giving evidence, or cannot be brought without unreasonable delay or expense.

Why it is relevant

It is hearsay, and the maker cannot be cross-examined. It is admitted for two reasons:

1. Necessity: the victim is often the only eyewitness to his own killing; excluding his words may let the killer go free.
2. Truthfulness: a person facing death is unlikely to lie: nemo moriturus praesumitur mentiri (a man will not meet his maker with a lie in his mouth).

Expectation of death

English law	Indian law (Section 26(a))
The declarant had to be under a settled, hopeless expectation of death	Not required; the statement is relevant whether or not the person expected to die

So a statement made when the person thought he would recover becomes a dying declaration if he later dies and the cause of his death is in question. This is a common exam error.

Link with the cause of death

There must be a real and proximate link with the cause of death or the circumstances of the transaction resulting in it, though proximity is not read too rigidly. A general complaint about some old quarrel is not enough.

Sudhakar v. State of Maharashtra (2000)

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Who may record it, and in what form

• Anyone may record it: a doctor, a police officer, a Magistrate, a relative or a stranger. No rule requires a Magistrate, but a Magistrate's record carries greater assurance, as a neutral and responsible officer.
• A police-recorded declaration is not inadmissible; the confession rules do not apply, since the maker is the victim, not the accused. Courts examine it with extra care.
• It may be oral, written, or by signs and gestures, provided it is clear, voluntary and reliably recorded. A written one should ideally be in question and answer form and in the declarant's own words.

Khushal Rao v. State of Bombay (1958)

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Points to test:

• the declarant's opportunity to observe (for example, enough light);
• whether his capacity to remember and state the facts was unimpaired;
• consistency, where more than one statement was made;
• whether it was made at the earliest opportunity;
• freedom from tutoring by interested persons.

Multiple declarations: consistency across them strengthens them (as in Khushal Rao). If they conflict on material points, the court must examine each and decide which, if any, is reliable; material inconsistency can make all unsafe, minor differences do not.

Laxman v. State of Maharashtra (2002)

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Patel Hiralal Joitaram v. State of Gujarat (2001)

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If the maker survives

The statement is then not a dying declaration, but it can be used to corroborate his testimony under Section 160 or to contradict him under Section 148.

Relevancy of Judgments (Sections 34 to 38)

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Sections 34 to 38 of the B.S.A. were Sections 40 to 44 of the IEA. Generally, a judgment is not evidence of the facts it decided in another case between different parties; otherwise one court's findings would bind strangers who never had a chance to be heard. The exceptions:

Section	Rule
34	A previous judgment is relevant to bar a second suit or trial: the evidence side of res judicata (civil) and the rule against double jeopardy (criminal).
35	Judgments in rem in probate, matrimonial, admiralty or insolvency jurisdiction declare a legal status against the whole world. A divorce decree or grant of probate is conclusive proof of what it declares.
36	Judgments relating to matters of a public nature, such as a public right of way, are relevant but not conclusive.
37	All other judgments are irrelevant, unless the existence of the judgment is itself a fact in issue or relevant under another provision.
38	Any party may show that a relevant judgment was delivered without jurisdiction or obtained by fraud or collusion.

Opinion of Experts (Sections 39 and 40)

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A witness normally states facts, not opinions, but the judge sometimes needs knowledge the judge does not have.

Section 39(2) replaces Section 45A of the IEA: on information transmitted or stored in any computer resource or other electronic or digital form, the opinion of the Examiner of Electronic Evidence under Section 79A of the Information Technology Act is relevant, and the Examiner is treated as an expert.

Expert opinion is only advisory. The court is not bound by it and must test the expert's reasons; the doctor, the ballistic expert and the DNA analyst help, but the decision is the judge's. Section 40: facts supporting or contradicting an expert's opinion are also relevant.

Proof of Handwriting (Section 41)

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The writer, or someone who saw him write, can prove handwriting directly. Beyond that there are three doors:

Door	Provision	How it works
Expert	Section 39	Opinion of a handwriting expert
Person acquainted with the handwriting	Section 41 (Section 47 of the IEA)	One who has seen the person write, or received documents written by him in reply to his own letters, or habitually seen his writing in the ordinary course of business
Court's own comparison	Section 72 (Section 73 of the IEA)	The court compares the disputed writing with an admitted or proved one, and may direct a person present in court to write words for comparison

Section 41 also covers electronic signatures: the opinion of the Certifying Authority that issued the Electronic Signature Certificate is relevant.

Ram Narain v. State of Uttar Pradesh (1973)

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Santosh alias Bhure v. State, Government of NCT of Delhi (2023)

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Custom, Usages, Tenets and Relationship (Sections 42 to 45)

• Section 42 (Section 48 of the IEA): on the existence of a general custom or right, the opinions of persons likely to know of it, if it existed, are relevant. It includes a custom or right common to a considerable class of persons, like villagers' right to use the water of a particular well.
• Section 43 (Section 49 of the IEA): on the usages and tenets of any body of men or family, the constitution and governance of a religious or charitable foundation, and the meaning of words used in particular districts or by particular classes, the opinions of persons with special means of knowledge are relevant.
• Section 44 (Section 50 of the IEA): on the relationship of one person to another, the opinion, expressed by conduct, of any person with special means of knowledge, as a family member or otherwise, is relevant.
• Section 45: the grounds on which an opinion is based are also relevant.

Proviso to Section 44: such opinion is not sufficient to prove a marriage in proceedings under the Divorce Act or in certain prosecutions under the B.N.S., such as for bigamy, where stricter proof is needed.

Character (Sections 46 to 50)

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Sections 46 to 50 of the B.S.A. were Sections 52 to 55 of the IEA. A person is tried for what he did, not for what kind of person he is, so character evidence is generally irrelevant, with controlled exceptions.

• Section 46 (civil cases): that a person's character makes some conduct probable or improbable is irrelevant, except so far as it appears from facts otherwise relevant.
• Section 47 (criminal cases): the accused's good character is relevant; the accused can help himself this way.
• Section 48 (protection of victims): in prosecutions for rape and certain other sexual offences under the B.N.S., where consent is in issue, evidence of the victim's character or her previous sexual experience with any person is not relevant on the issue of consent or the quality of consent.

Character Evidence: Sections 49 and 50 (continued)

Bad character of the accused: Section 49

In criminal proceedings, the accused's bad character is irrelevant, unless evidence has been given that he has a good character; then it becomes relevant.

• A previous conviction is relevant as evidence of bad character.
• The rule does not apply where bad character is itself a fact in issue.

Character affecting damages: Section 50

In civil cases, character is relevant if it affects the amount of damages.

Facts Which Need Not Be Proved: Sections 51 to 53

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The law of proof asks: which facts need no proof; which facts a party may not deny; which relevant facts cannot be proved; and how a fact is proved (by a witness, a document or an electronic record). Because proof costs time and money, two kinds of facts need no proof: facts judicially noticed and admitted facts.

1. Judicial notice: Sections 51 and 52

Section 51 (Section 56 of the IEA): no fact of which the court will take judicial notice need be proved.

Section 52 (Section 57 of the IEA) lists facts of which the court shall take judicial notice, for example: all laws in force in India; the course of proceedings of Parliament and the State Legislatures; seals of courts; divisions of time and geographical divisions of the world; public festivals and holidays notified in the Official Gazette; the territory of India; and the rule of the road.

If a party asks the court to take judicial notice of a fact, even one on this list, the court may refuse until that party produces a suitable book or document of reference.

2. Admitted facts: Section 53

Section 53 (Section 58 of the IEA): no fact need be proved which the parties or their agents (a) agree to admit at the hearing, (b) agree in writing to admit before the hearing, or (c) are deemed to have admitted by their pleadings. The court still has a discretion to require such facts to be proved otherwise than by the admission.

Estoppel: Sections 121 to 123

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Estoppel covers facts a party is not allowed to deny. Sections 121 to 123 of the B.S.A. were Sections 115 to 117 of the IEA. The word comes from an old word meaning to stop: if you make someone believe something and he acts on it, you cannot later deny it.

Section 121: the general rule

When one person has, by his declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed to deny its truth in any suit or proceeding between them or their representatives.

Essentials

1. A representation by words, conduct or even silence.
2. Made intentionally, or at least with the maker permitting the belief.
3. The other person believed it and acted on it.
4. The proceeding is between the same persons or their representatives.

Special estoppels: Sections 122 and 123

• Tenant: cannot, during the tenancy or at any time after it, deny that his landlord had title at the beginning of the tenancy. The words at any time after it are new in the B.S.A.
• Licensee: one who came on to property with the licence of the person in possession cannot deny that person's title to possession when the licence was given.
• Acceptor of a bill of exchange: cannot deny the drawer's authority to draw it.
• Bailee: cannot deny that the bailor had authority at the beginning of the bailment.

Promissory estoppel

The same idea applied to promises about the future. If a person makes a clear promise, intending the other to act on it, and the other does act on it, the promisor may be held to the promise even without a formal contract. Indian courts have applied it even against the Government, unless public interest or a statute stands in the way. It is an equitable doctrine developed by courts, not written in Section 121, but it grows from the same root.

Sanatan Gauda v. Berhampur University (1990)

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R.S. Maddanappa v. Chandramma

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Privileges: Facts Which Cannot Be Proved (Sections 127 to 134)

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Some facts, though relevant, are protected from being forced out because another public interest matters more. Sections 127 to 134 of the B.S.A. were Sections 121 to 129 of the IEA.

Judges and Magistrates: Section 127

They cannot be compelled, except on the special order of a superior court, to answer questions about their own conduct in court, or about what came to their knowledge in court.

Communications during marriage: Section 128

A person who is or has been married shall not be compelled to disclose any communication made to him during the marriage by his spouse, nor permitted to disclose it, unless the spouse who made it, or that spouse's representative, consents.

Not applicable: (a) in suits between the married persons; (b) in proceedings where one spouse is prosecuted for a crime against the other. Reason: the law does not want the home to become a police station.

M.C. Verghese v. T.J. Ponnan (1970)

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Affairs of State and official confidence: Sections 129 and 130

• Section 129: no one may give evidence derived from unpublished official records relating to affairs of State, except with the permission of the head of the department concerned.
• Section 130: a public officer shall not be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by disclosure.

State of U.P. v. Raj Narain (1975)

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Information about offences: Section 131

No Magistrate or police officer shall be compelled to say when he got any information about an offence; the same applies to revenue officers for offences against the public revenue. The purpose is to protect informers.

Advocate and client: Sections 132 and 134

Section 132: no advocate shall, without the client's express consent, disclose any communication made to him in the course and for the purpose of his employment, the contents of documents he has seen in that course, or the advice he has given. The protection extends to interpreters and to clerks or employees of advocates.

Exceptions:

1. A communication made in furtherance of an illegal purpose.
2. Any fact the advocate observed in the course of employment showing that a crime or fraud has been committed since the employment began.

Section 134: no one shall be compelled to disclose a confidential communication with his legal adviser, unless he offers himself as a witness, and then only so far as needed to explain his evidence.

Preeti Jain v. Kunal Jain (2016)

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Oral Evidence and the Rule against Hearsay: Sections 54 and 55

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Section 54 (Section 59 of the IEA): all facts, except the contents of documents, may be proved by oral evidence.

Section 55 (Section 60 of the IEA): oral evidence must in all cases be direct, that is, the evidence of a witness who says:

• he saw it, for a fact which could be seen;
• he heard it, for a fact which could be heard;
• he perceived it by that sense, for a fact perceivable by any other sense;
• for an opinion, the evidence of the person who holds that opinion on those grounds.

Proviso: expert opinions in published treatises may be proved by producing the book if the author is dead, cannot be found, or cannot be called without unreasonable delay or expense.

The rule against hearsay

Direct evidence	Hearsay
Witness personally saw, heard or perceived the fact	Witness repeats what someone else told him
Given on oath, before the court, open to cross-examination	Original speaker is not on oath, not before the court, cannot be cross-examined

Exceptions to the hearsay rule: res gestae, admissions, confessions and dying declarations.

Number of witnesses: Section 139

Section 139 (Section 134 of the IEA): no particular number of witnesses is required in any case for the proof of any fact.

Ajai alias Ajju v. State of U.P. (2023)

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The judgment says nothing about electronic records; it is known for its principle about witnesses. Beside electronic evidence, it shows that in an age of CCTV and phone records, the court still values one honest human witness.

Documentary Evidence: Sections 56 to 77

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

Primary evidence: Section 57

Section 57 (Section 62 of the IEA): the document itself produced for the inspection of the court. A document executed in several parts: each part is primary evidence. New B.S.A. explanations for electronic records:

• a record stored in multiple files: each file is primary evidence;
• a record produced from proper custody is primary evidence unless disputed;
• a video stored and transmitted at the same time: each stored recording is primary evidence;
• each automated storage, even a temporary file, is primary evidence.

Secondary evidence: Section 58

Section 58 (Section 63 of the IEA): certified copies; copies made by mechanical processes ensuring accuracy; copies compared with the original; counterparts against parties who did not execute them; and oral accounts of the contents by someone who has seen the document. The B.S.A. adds three: oral admissions, written admissions, and the evidence of a skilled person who has examined a document consisting of numerous accounts or other documents that cannot conveniently be examined in court.

Primary evidence	Secondary evidence
The document itself (Section 57)	Copies, counterparts, oral accounts, admissions (Section 58)
The rule (Section 59)	Only in the cases listed in Section 60

When secondary evidence is allowed: Sections 59 and 60

Section 59: documents must be proved by primary evidence, except in the cases in Section 60 (Section 65 of the IEA), for example when the other side holds the original and does not produce it after notice; the original is lost or destroyed; it cannot easily be moved, like writing on a wall; or it is a public document.

Public and private documents: Section 74

Public documents record the acts of the sovereign authority, official bodies, tribunals and public officers; all others are private documents. Public documents can be proved by certified copies.

Kumari Madhuri Patil v. Additional Commissioner, Tribal Development (1994)

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Exclusion of Oral by Documentary Evidence: Sections 94 and 95

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Sections 94 and 95 (Sections 91 and 92 of the IEA) protect written agreements.

• Section 94: when the terms of a contract, grant or other disposition of property, or any matter required by law to be in writing, have been reduced to a document, those terms can be proved only by the document itself (secondary evidence only where the law permits).
• Section 95: once the terms are so proved, no evidence of any oral agreement or statement is admitted, between the parties or their representatives, to contradict, vary, add to or subtract from them.

Reason: when parties take the trouble to put their agreement in writing, the writing is the best evidence of what they agreed.

The six provisos to Section 95

These may still be proved:

1. Any fact invalidating the document: fraud, intimidation, illegality, lack of due execution, lack of capacity, failure of consideration, or mistake.
2. A separate oral agreement on a matter on which the document is silent, not inconsistent with it.
3. A separate oral agreement constituting a condition precedent (the obligation does not arise until the condition is met).
4. A distinct later oral agreement to rescind or modify the contract, except where the law requires the contract to be in writing or it has been registered.
5. A usage or custom by which unmentioned terms are usually implied in such contracts, if it does not contradict the express terms.
6. Any fact showing how the language of the document relates to existing facts.

Electronic Evidence: Sections 61, 62 and 63

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Meaning

Any information created, stored or sent in digital form, e.g. WhatsApp messages, emails, CCTV footage, call recordings, phone photos and videos, computer and cloud files, screenshots, social media posts, GPS data, call detail records and bank transaction logs. All are electronic records and, under the B.S.A., documents.

Electronic record	Electronic evidence
The information itself, stored in digital form	That record when produced before the court to prove a fact
The WhatsApp chat on Prince's phone	The chat produced in court to prove that Farhan threatened him

Special rules are needed because electronic material is easy to alter, easy to copy and hard to verify by looking at it (a screenshot can be edited in seconds; a video can be clipped). The law asks: is it authentic (what it claims to be)? Is it reliable (was the producing system working properly)? Has it been proved in the manner the law requires?

History under the IEA: Sections 65A and 65B

Added to the IEA in 2000. Section 65A: contents of electronic records may be proved according to Section 65B. Section 65B: a computer output (a printout, a copy on a CD) is deemed a document, admissible without producing the original if certain conditions are met. Section 65B(4): a certificate signed by a responsible person, identifying the record, describing how it was produced and dealing with those conditions.

Courts disagreed on whether the certificate was always required:

• Anvar P.V. v. P.K. Basheer (2014): a copy, like a CD, is not admissible without the certificate.
• Shafhi Mohammad v. State of Himachal Pradesh (2018, two-judge Bench): the certificate is not always mandatory.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

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The B.S.A. framework: Sections 61 to 63

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• Section 61 (new, parity clause): nothing in the Adhiniyam shall deny the admissibility of an electronic or digital record on the ground that it is electronic or digital; subject to Section 63, it has the same legal effect, validity and enforceability as other documents.
• Section 62 (old Section 65A): contents of electronic records may be proved in accordance with Section 63.
• Section 63(1) (old Section 65B): information in an electronic record printed on paper, or stored, recorded or copied in optical or magnetic media or semiconductor memory (pen drives, phone memory), produced by a computer or any communication device (smartphones), is deemed a document, admissible without further proof or production of the original if the conditions are met.
• Section 63(3): several computers or devices used together, standalone or networked, are treated as a single device.

Section 63(2): four conditions

1. The device was regularly used during that period for the activity in question.
2. Information of that kind was regularly fed into it in the ordinary course.
3. The device was operating properly, or any defect did not affect the record.
4. The information reproduces or is derived from what was fed in.

Section 63(4): the certificate

• Submitted with the electronic record at each instance it is submitted for admission.
• Identifies the record, describes how it was produced, gives particulars of the device, and deals with the conditions.
• Big change: signed by the person in charge of the computer or communication device (or the management of the relevant activities) and by an expert.
• In the Schedule form: Part A filled in by the party, Part B by the expert; the form requires the hash value of the record.

IEA, Section 65B(4)	B.S.A., Section 63(4)
Signed by a responsible person	Signed by the person in charge (or management) and by an expert
Identifies the record, describes its production, deals with the conditions	Also gives device particulars; Schedule form (Part A and Part B) with hash value
Computer output such as a printout or CD	Adds semiconductor memory and communication devices

Applying the framework

• WhatsApp: Prince's own phone, proved to be his, in his control and holding the original chat, is primary evidence (Arjun Panditrao; explanations to Section 57). Printouts or screenshots are copies needing the Section 63 certificate (his Part A, an expert's Part B). Either way he must show the messages came from Farhan's number and that Farhan was using it.
• Email, Section 90 (Section 88A of the IEA): the court may presume that a message forwarded by the originator through a mail server to the addressee corresponds with the message fed in for transmission, but shall not presume who sent it. Content may be presumed; the sender must be proved.
• CCTV: the original is on the shop's digital video recorder; a clip copied by the police to a pen drive is a copy, needing a certificate from the person in charge and an expert, with hash values, to show it was not edited.
• Call recording: Malkani's three conditions (relevance, voice identification, no tampering), plus the Section 63 certificate for a copy.
• Files, cloud records, social media posts: who controlled the system or account, was it working properly, is the copy identical to the stored record? The certificate answers these. A bare screenshot without a certificate is generally not admissible at all; even with one, its source must be proved.
• Location or GPS data: needs a Section 63 certificate from the provider's person in charge and an expert, and must be linked to the accused by other evidence: it tracks the device, not the person.

Related provisions: Section 39(2) treats the Examiner of Electronic Evidence as an expert. Under Section 93, for a five-year-old electronic record from proper custody, the court may presume that the electronic signature on it was put there by that person or by someone he authorised.

State of Maharashtra v. Dr. Praful B. Desai (2003)

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Quick revision: the law of proof

• Judicially noticed facts (Sections 51 and 52) and admitted facts (Section 53) need no proof.
• Estoppel stops a person denying what he made another believe and act upon (Sanatan Gauda), but not where no one was misled (Maddanappa).
• Privileges protect judges, spouses, affairs of State, informers and advocate-client communications (Sections 127 to 134).
• Oral evidence must be direct (Section 55), and quality beats quantity (Section 139).
• Documents are proved by primary evidence, and by secondary evidence only in the listed cases (Sections 59 and 60).
• Written terms cannot be varied orally (Sections 94 and 95), except through the provisos.
• Electronic evidence rests on Sections 61 to 63, Arjun Panditrao, and the Schedule certificate with its hash value.

Accomplice Evidence

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Accomplice and approver

An accomplice is a guilty associate in the crime: a person who took part in committing the offence, as a principal or as an abettor.

Under the criminal procedure law, the court sometimes pardons an accomplice on condition that he makes a full and true disclosure of the whole crime and gives evidence against the others. Such an accomplice is called an approver.

Why accomplice evidence is relevant, and why it is dangerous

Relevance: in many crimes, especially conspiracies, gang crimes, smuggling and corruption, only the people who did it really know what happened. Without an insider, the truth may never come out.

Danger: the accomplice is himself a criminal. He may want the pardon, want to shift the blame, or want to settle old scores, so he is a witness with every reason to lie.

The law handles this tension through Section 138 of the B.S.A., read with Section 119(1), Illustration (b). Under the IEA, these were Section 133, read with Section 114, Illustration (b).

Competency: Section 138

An accomplice can be a witness. Section 138 says that an accomplice shall be a competent witness against an accused person.

Conviction on accomplice testimony: the change in wording

The B.S.A. has changed the words of the second half of the provision.

Point	IEA (Section 133)	B.S.A. (Section 138)
Second half of the section	A conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.	A conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.
Position on corroboration	Rule of law: a conviction on uncorroborated accomplice evidence was not illegal. Rule of prudence: courts almost always insisted on corroboration in material particulars.	Many commentators say the change of words turns corroboration from a rule of prudence into something close to a requirement of law. Others say it may be a drafting slip. The courts will settle the point over time.

Alongside Section 138, Section 119(1), Illustration (b) says that the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Under the IEA, the courts reconciled the two sections through the rule of law and rule of prudence approach.

Meaning of corroboration

Corroboration means independent evidence which supports the accomplice's story in material particulars, and which connects the accused with the crime. It has three parts:

1. Independent: it must come from a source other than the accomplice himself.
2. Material particulars: it must support the important parts of the story, not trivial details.
3. Connects the accused with the crime: confirming merely that a crime happened is not enough.

Corroboration need not be direct evidence. It can be circumstantial, such as a recovery, a phone record, or the accused's own conduct.

Why courts seek corroboration

An accomplice can tell a story that is true in every detail about the crime, since he was there, and yet falsely substitute an innocent person for himself or for his friend. Corroboration on the identity of the accused guards against exactly that.

Bhuboni Sahu v. The King (1949)

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State of Bihar v. Basawan Singh (1958)

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Haroon Haji Abdulla v. State of Maharashtra (1968)

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Ravinder Singh v. State of Haryana (1975)

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Burden of Proof: Meaning and General Rules

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Every case has gaps. The burden of proof decides who wins when the evidence is incomplete, by telling the court who suffers because of those gaps.

Burden of proof simply means the duty to prove a fact. The general rules are in Sections 104 to 107 of the B.S.A. (Sections 101 to 104 of the IEA).

Section 104: He who asserts must prove

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, the burden of proof lies on that person.

Section 105: Who would fail if no evidence were given

A practical test: the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.

Section 106: Burden as to a particular fact

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless a law says otherwise.

Section 107: Fact necessary to make evidence admissible

The burden of proving any fact necessary to be proved in order to make evidence admissible is on the person who wants to give that evidence.

Legal Burden and Evidentiary Burden

There are two kinds of burden, and the distinction confuses many students.

Point	Legal burden	Evidentiary burden
Also called	Burden of proof on the pleadings	Burden of adducing evidence
Meaning	Duty to prove the whole case	Duty to produce evidence on a particular point at a particular stage
Shifting	Fixed by law and by the pleadings; never shifts	Can shift from one side to the other as the trial goes on

In a criminal case, the prosecution carries the legal burden of proving guilt beyond reasonable doubt from beginning to end.

Special Rules: Exceptions and Facts Especially Within Knowledge

These are Sections 108 and 109 of the B.S.A. (Sections 105 and 106 of the IEA).

Section 108: Burden of proving an exception

When a person is accused of an offence, the burden of proving that his case falls within any of the General Exceptions in the B.N.S., or within any special exception or proviso in the B.N.S. or in the law defining the offence, is upon him, and the court shall presume the absence of such circumstances. So if the accused pleads private defence, unsoundness of mind, or grave and sudden provocation, he must prove it.

Standard of proof on the accused

• The accused need not prove the exception beyond reasonable doubt. It is enough to show it on a preponderance of probabilities.
• Even if he fails to prove it fully, his evidence may still raise a reasonable doubt about an ingredient of the offence, such as intention, and he gets the benefit of that doubt.

Section 109: Facts especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Reverse Onus

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Onus means burden. Normally the prosecution proves guilt and the accused is presumed innocent. A reverse onus clause turns this around on certain points: once the prosecution proves some basic facts, the law presumes a further fact against the accused, and the accused must disprove it.

Examples

• B.S.A.: Section 108 on exceptions, and the presumptions on dowry death and absence of consent (see Presumptions below).
• NDPS Act (Narcotic Drugs and Psychotropic Substances Act): presumes a culpable mental state, and presumes certain things from possession of illicit articles.
• POCSO Act: has similar presumptions.
• Section 20, Prevention of Corruption Act: presumes a corrupt motive once it is proved that a public servant accepted an undue advantage.

Justification and safeguards

Some crimes are very hard to prove, and the key facts are often within the accused's knowledge. But:

1. the prosecution must first prove the foundational facts;
2. the accused usually needs only to show that his version is probable; and
3. the process must be fair.

Mukesh Singh v. State (Narcotic Branch of Delhi) (2020)

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Plea of Alibi

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Alibi is a Latin word meaning "elsewhere". The accused says: I was somewhere else when the crime happened, so I could not have done it.

Essentials and legal basis

• Who raises it: the accused.
• What must be shown: that at the time of the crime he was at a place so far away that he could not have been present at the scene, or that his presence was highly improbable.
• Relevancy (Section 9): the fact is relevant because it is inconsistent with his presence at the crime.
• Burden (Section 106 and its illustration): the burden of proving that particular fact is on the accused, because he is the one asking the court to believe it.

Is alibi a complete defence?

If proved, yes, because a person cannot be in two places at once. But it is not an exception under Section 108; it is a denial of presence. So the prosecution must first prove that the accused was present and committed the act.

Alibi and the prosecution evidence

• Courts expect an alibi to be proved by strong and reliable evidence, and are suspicious of an alibi raised late, as an afterthought.
• A failed alibi does not by itself prove guilt; the prosecution must still prove its case. A false alibi may, at most, be an additional circumstance against the accused once the prosecution has otherwise proved its case.
• If the alibi evidence creates a reasonable doubt, the accused gets the benefit of it.

Theory of Last Seen

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Last seen means that the deceased was last seen alive in the company of the accused, and was then found dead.

Why it can be relevant

• If two people were together and soon after one of them is found dead, the other is the person most likely to know what happened. It is a circumstance pointing towards the accused.
• It also brings in Section 109, because what happened after they were last seen together is a fact especially within the accused's knowledge.

Bodhraj alias Bodha v. State of Jammu and Kashmir (2002)

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Dinesh Kumar v. State of Haryana (2023)

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Why last seen cannot automatically mean guilt

Being with someone is not the same as killing him. Last seen is one circumstance only. It needs a short time gap, a complete chain of other circumstances, and no reasonable possibility of someone else.

Particular Burdens: Sections 110 to 114

These are Sections 110 to 114 of the B.S.A. (Sections 107 to 111 of the IEA).

Section	Subject	Rule
Section 110	Proof of death	When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who says so.
Section 111	Proof of living	When it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive shifts to the person who says so.
Section 112	Relationships	When persons have been shown to be acting as partners, as landlord and tenant, or as principal and agent, the burden of proving that they do not stand, or have ceased to stand, in that relationship is on the person who affirms it.
Section 113	Ownership	When a person is shown to be in possession of something, the burden of proving that he is not the owner is on the person who says so. Possession is treated as evidence of ownership.
Section 114	Good faith	Where there is a question as to the good faith of a transaction between parties, one of whom stands in a position of active confidence towards the other, the burden of proving good faith is on the party in the position of active confidence.

Presumptions

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May presume, shall presume and conclusive proof

These are defined in Section 2(1), clauses (h), (l) and (b) of the B.S.A. Under the IEA, they were all in Section 4.

Term	B.S.A. definition	Effect	Nature
May presume	Section 2(1)(h)	The court has a choice.	Rebuttable
Shall presume	Section 2(1)(l)	The court must treat the fact as proved, but the other side may disprove it.	Rebuttable
Conclusive proof	Section 2(1)(b)	No disproof is allowed at all.	Irrebuttable

Rebuttable means the presumption can be rebutted, that is, disproved.

Presumptions of fact and presumptions of law

Point	Presumptions of fact	Presumptions of law
Nature	Inferences the court may draw from common experience	Inferences the law itself directs
Form	Always "may presume"; the main section is Section 119	Usually "shall presume", or conclusive

Presumptions as to documents: Sections 78 to 93

Sections 78 to 93 of the B.S.A. (Sections 79 to 90A of the IEA) contain presumptions about documents, such as certified copies, the Official Gazette, Government maps, powers of attorney, electronic agreements, electronic signatures and electronic messages. Two are famous:

• Section 92: for a document thirty years old produced from proper custody, the court may presume that the signature and handwriting are genuine and that it was duly executed.
• Section 93: for an electronic record five years old, the court may presume that the electronic signature on it was put there by that person or someone he authorised.

Presumptions relating to gender violence: Sections 117, 118 and 120

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Three presumptions protect women, and they are important for exams.

Section 117: Abetment of suicide by a married woman (Section 113A of the IEA)

When the question is whether a woman's suicide was abetted by her husband or his relative, and it is shown that she committed suicide within seven years of her marriage and that the husband or relative had subjected her to cruelty, the court may presume that they abetted the suicide. But the court must have regard to all the other circumstances of the case.

Section 118: Dowry death (Section 113B of the IEA)

When the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death she was subjected by that person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person caused the dowry death.

• The meaning of dowry death comes from the B.N.S., which requires, among other things, that the death be unnatural and occur within seven years of marriage.
• Courts have explained that "soon before" does not mean "immediately before". There must be a proximate and live link between the cruelty and the death.

Section 120: Absence of consent (Section 114A of the IEA)

In certain prosecutions for rape under the B.N.S., where sexual intercourse by the accused is proved, and the question is whether it was without the woman's consent, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Section	Subject	Presumption
Section 117	Abetment of suicide by a married woman	May presume
Section 118	Dowry death	Shall presume
Section 120	Absence of consent in certain rape prosecutions	Shall presume

Presumption of facts: Section 119

Section 119 of the B.S.A. (Section 114 of the IEA) is the common-sense section. The court may presume the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct, and public and private business.

Its illustrations are now in sub-section (1). The court may presume, for example:

• that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
• that an accomplice is unworthy of credit unless corroborated in material particulars;
• that judicial and official acts have been regularly performed;
• that the common course of business has been followed;
• that evidence which could be produced, but is not produced, would be unfavourable to the person who withholds it;
• that if a man refuses to answer a question which he is not compelled by law to answer, the answer would have been unfavourable to him.

Sub-section (2) reminds the court to consider the facts of the particular case before applying these maxims.

Conclusive Proof of Legitimacy: Section 116

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Section 116 of the B.S.A. (Section 112 of the IEA) is the strongest presumption. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man.

Only exception: where it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Why the presumption is so strong

• To protect children from being branded illegitimate.
• To protect the mother's dignity.
• To keep family relationships stable.

The only escape is proof of non-access, meaning no opportunity for marital relations at the relevant time. On DNA and blood tests, two cases seem to pull in different directions but fit together.

Goutam Kundu v. State of West Bengal (1993)

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Dipanwita Roy v. Ronobroto Roy (2015)

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Reconciling the two cases

Goutam Kundu (1993)	Dipanwita Roy (2015)
Blood test refused	DNA test allowed
Protects against casual fishing tests, especially where the child's legitimacy is attacked without a strong basis	Allows a DNA test where there is a specific and serious plea, like adultery, and the truth cannot otherwise be established

Who Can Be a Witness: Competency (Section 124)

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Witnesses are the people who bring evidence into the courtroom. Section 124 of the B.S.A. (Section 118 of the IEA) says 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, by:

• tender years;
• extreme old age;
• disease of body or mind; or
• any other cause of the same kind.

A person of unsound mind is not incompetent unless his unsoundness prevents him from understanding the questions and giving rational answers.

Competent and compellable

Competent	Compellable
The person is allowed to give evidence.	The person can be forced to give evidence.

Most competent witnesses are also compellable. But the accused cannot be compelled to be a witness against himself, because of Article 20(3). Section 126 makes husbands and wives competent witnesses for and against each other, subject to the marital privilege.

The child witness

The Act prescribes no minimum age. Even a young child is a competent witness if the child understands the questions and gives rational answers.

• Preliminary test: the judge first asks simple questions (What is your name? Which class do you study in? What happens if you tell a lie?). This is sometimes called the voir dire test. The judge then records whether the child understood and answered sensibly.
• Oath: under the Oaths Act, 1969, where a child under 12 years understands the duty of speaking the truth but not the nature of an oath, the oath may be dispensed with, and the child's evidence is still admissible.
• Caution: children can be tutored, and can mix imagination with memory. So courts examine a child's evidence carefully and often look for corroboration.

Witness unable to communicate verbally (Section 125)

Section 125 of the B.S.A. (Section 119 of the IEA): a witness who is unable to speak may give evidence in any other manner in which he can make it intelligible, such as by writing or by signs.

• The writing must be written, and the signs made, in open court.
• Such evidence is deemed to be oral evidence.
• Proviso: 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 the statement shall be videographed.

Before 2013, Section 119 of the IEA spoke of "dumb witnesses". A 2013 amendment renamed it and added the proviso, and Section 125 of the B.S.A. keeps both. The idea is that a disability should never shut out a truthful witness.

Examination of Witnesses (Sections 142 to 149)

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Examination-in-chief

Section 142 of the B.S.A. (Section 137 of the IEA): the examination of a witness by the party who calls him is his examination-in-chief. The public prosecutor asks Prince: Where were you on the night of the tenth? What did you see? Who was there? The purpose is to bring out the witness's story, in his own words, in favour of the party who called him.

Leading questions (Section 146)

The party calling a witness must not put words into his mouth. Section 146 combines the old Sections 141 to 143 of the IEA.

• Leading questions must not, if the other side objects, be asked in examination-in-chief or re-examination, except with the court's permission.
• The court shall permit leading questions on matters which are introductory or undisputed, or which have already been sufficiently proved.
• Leading questions may be asked in cross-examination.

Cross-examination

Section 142: the examination of a witness by the adverse party is his cross-examination. The defence lawyer asks Prince: You were 200 metres away, weren't you? It was dark? You have a land dispute with the accused, don't you?

Its purposes are:

1. to test the truth of the witness's story;
2. to shake his credit; and
3. to bring out facts that help the cross-examiner's side.

Leading questions are allowed here because the witness is not friendly to the cross-examiner. Under Section 143, cross-examination must relate to relevant facts, but need not be confined to what the witness said in chief.

Previous statements in writing (Section 148): a witness may be cross-examined about his previous statements in writing without being shown the writing first. But to contradict him by that writing, his attention must first be drawn to the parts to be used.

Questions lawful in cross-examination (Section 149): questions may be asked to test the witness's truthfulness, to show who he is and his position in life, or to shake his credit by injuring his character.

Re-examination

Section 142: the examination of a witness, after cross-examination, by the party who called him is his re-examination. The prosecutor clears up the confusion: You said it was dark. Was there any light at the spot? Prince answers: Yes, there was a street lamp right there.

Under Section 143, re-examination must be directed to explaining matters referred to in cross-examination. If a new matter is introduced with the court's permission, the other side may cross-examine again on that matter.

The judge's questions (Section 168)

Throughout, the judge can step in. Under Section 168, the judge can ask any question he considers necessary to discover the truth.

Stage	By whom	Role	Leading questions
Examination-in-chief	Party calling the witness	Builds the story	Not if objected to, except with permission
Cross-examination	Adverse party	Tests the story	Allowed
Re-examination	Party calling the witness, after cross	Repairs the story	Not if objected to, except with permission

Hostile Witness (Section 157)

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Normally, a party cannot cross-examine its own witness. But Section 157 of the B.S.A. (Section 154 of the IEA) says the court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Nothing in the section disentitles the person so permitted from relying on any part of the evidence of that witness.

Timing of the request: State of Bihar v. Laloo Prasad

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Evidence of a hostile witness: Khujji v. State of M.P.

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Section 158 of the B.S.A. (Section 155 of the IEA) also allows the credit of a witness to be impeached, for example by proof that he was bribed, or by proof of former statements inconsistent with his evidence.

Corroboration (Section 160)

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Corroboration means independent evidence that supports a witness's testimony. It arises with accomplices, children, co-accused confessions and dying declarations. Under Section 139, no particular number of witnesses is required to prove any fact; one reliable witness is enough.

Section 160 of the B.S.A. (Section 157 of the IEA): in order to corroborate the testimony of a witness, any former statement made by that witness relating to the same fact may be proved, if made:

• at or about the time when the fact took place; or
• before any authority legally competent to investigate the fact.

Final Rapid Revision of the Whole Subject

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Definitions (all in Section 2)

• Fact: anything perceivable by the senses, or a mental condition.
• Fact in issue: the main disputed fact on which a right or liability depends.
• Relevant fact: one connected in a way the Act recognises.
• Evidence: oral, which now includes statements given electronically, or documentary, which includes electronic and digital records.
• Proved, disproved, not proved: judged by the prudent man.
• May presume gives the court a choice; shall presume obliges the court, until disproved; conclusive proof shuts out disproof.

The big distinctions

• Relevancy is logic, admissibility is law.
• All admissible evidence is relevant, but all relevant evidence is not admissible.
• A fact in issue is the destination, a relevant fact is the road.
• Not proved is not the same as disproved.
• Every confession is an admission, but not every admission is a confession.
• The legal burden never shifts, the evidentiary burden does.
• Competent means allowed to testify, compellable means can be forced.
• The body can be compelled, but the mind cannot.

Key sections in order

Section	Subject
1	Applicability
3	Facts in issue and relevant facts only
4	Res gestae
5	Occasion, cause and effect
6	Motive, preparation and conduct
7	Identity
8	Conspiracy
9	Facts not otherwise relevant, the home of alibi
12, 13	State of mind
15 to 21, 25	Admissions
22 to 24	Confessions
26(a)	Dying declarations
34 to 50	Judgments, opinions and character
51 to 53	Facts that need no proof
54, 55	Oral evidence
56 to 60	Primary and secondary evidence
61 to 63	Electronic evidence
78 to 93	Presumptions about documents
94, 95	Exclusion of oral by documentary evidence
104 to 114	Burden of proof
116 to 120	The key presumptions
121 to 123	Estoppel
124, 125	Competence
127 to 134	Privileges
138	Accomplice
139	Number of witnesses
142 to 149	Examination
157	Hostile witness
160	Corroboration
168	The judge's questions
170	Repeal and savings

Major doctrines in one line each

• Res gestae: same transaction and spontaneous.
• Conspiracy: agency during the conspiracy only.
• Confession: voluntary, not to police, not in police custody without a Magistrate; but discovery lets in the words that led to it.
• Dying declaration: cause of death, close link, clear mind, correct record.
• Estoppel: you cannot deny what you made another believe and act upon.
• Documents: the writing speaks for itself.
• Burden: he who asserts must prove.

Presumptions

Kind	Section	Subject
May presume	117	Abetment of suicide within 7 years of marriage, with cruelty
May presume	119	Presumption of facts, including stolen goods and the accomplice
Shall presume	118	Dowry death, where cruelty or harassment for dowry soon before death is shown
Shall presume	120	Absence of consent
Conclusive proof	116	Birth during a valid marriage, or within 280 days after its dissolution, the mother remaining unmarried, unless non-access is shown
Documents	92	Paper documents 30 years old
Documents	93	Electronic signatures on electronic records 5 years old

Electronic evidence in five lines

1. Electronic records are documents.
2. Section 61 gives them equal legal effect.
3. The original device, proved by its owner, is primary evidence, and the explanations to Section 57 treat many electronic records as primary.
4. A copy needs the Section 63 certificate, signed by the person in charge and by an expert, in the Schedule form, with the hash value, at each instance it is submitted.
5. Arjun Panditrao made the certificate mandatory for copies under the old law, and Praful Desai allowed evidence by video conferencing.

Cases in one line each

Case	Principle
Dhakeswari Cotton Mills	No strict evidence rules still means natural justice.
R. K. Anand	Sting recordings accepted with a fair procedure.
Nirbhaya	The whole transaction; dying declarations by gestures; DNA and CCTV.
Malkani	A recording must be relevant, identified and untampered.
Jayantibhai	A well-proved alibi creates reasonable doubt.
Mirza Akbar	No use of a conspirator's statement after the conspiracy ends.
Badri Rai	What one conspirator does for the plan binds all.
Mohammed Khalid	Reasonable ground to believe first, and nothing after arrest.
Bishwanath Prasad	An admission is substantive but not conclusive.
V. C. Shukla	Account books alone cannot fix liability.
Pulukuri Kottaya	Only the words that led to the discovery.
Aghnoo Nagesia	The accused's own confessional FIR is still barred.
Veera Ibrahim	Article 20(3) starts with formal accusation.
Kathi Kalu Oghad	Specimens are not testimony.
Selvi	No forced narco-analysis, polygraph or brain mapping.
Khushal Rao	A true dying declaration needs no corroboration.
Laxman	No medical certificate is essential.
Sudhakar	No close link, no dying declaration.
Patel Hiralal Joitaram	A corrected slip does not destroy a dying declaration.
Ram Narain	The expert advises, the judge verifies.
Santosh alias Bhure	Handwriting opinion needs support, and a false explanation is only an extra link.
Sanatan Gauda	The University was estopped.
Maddanappa	No one misled, no estoppel.
Verghese	The marital privilege bars disclosure by the spouse, not all proof.
Raj Narain	The court decides the State's privilege claim.
Preeti Jain	The original device is primary evidence, and Family Courts are flexible.
Ajai alias Ajju	Quality, not quantity.
Madhuri Patil	Old records carry weight.
Arjun Panditrao	Certificate for copies.
Bhuboni Sahu	An approver needs independent support, and a co-accused's confession alone is not enough.
Basawan Singh	Trap witnesses are not necessarily accomplices.
Haroon Haji Abdulla	An accomplice cannot corroborate himself.
Ravinder Singh	Reliable first, corroborated next.
Mukesh Singh	Informant as investigator is not automatically unfair.
Bodhraj	Last seen needs a very small time gap.
Dinesh Kumar	A long gap weakens last seen, and Section 109 cannot fill gaps.
Goutam Kundu	No roving blood tests.
Dipanwita Roy	A DNA test where adultery is seriously alleged.
Laloo Prasad	Seek permission against a hostile witness at the right time.

Constitutional connections

• Article 20(3) shapes confessions, specimens and scientific tests.
• Article 21 demands a fair trial, fair investigation and mental privacy.
• Article 14 demands equal and non-arbitrary rules.
• Natural justice applies even where the B.S.A. does not.

Key Changes from the IEA to the B.S.A.

▶ Watch this part of the lecture (3:11:07)

• The B.S.A. came into force on 1 July 2024, with pending matters continuing under the IEA.
• It has 170 sections instead of 167.
• Documents now expressly include electronic and digital records, and oral evidence includes statements given electronically.
• Section 61 gives electronic records equal legal effect.
• Section 57 treats many electronic records as primary evidence.
• Section 63 replaces the old Section 65B, adds semiconductor memory and communication devices, and requires a certificate signed by the person in charge and an expert, in the Schedule form, with the hash value.
• Section 58 widens secondary evidence to include oral and written admissions and the evidence of a skilled examiner of voluminous documents.
• Section 39 adds "any other field" to expert opinion, and carries over the old Section 45A on the Examiner of Electronic Evidence as its second sub-section.
• Section 22 adds coercion to inducement, threat and promise.
• Section 23 merges the old Sections 25, 26 and 27.
• Section 24 adds that a trial in the absence of an absconding accused is deemed a joint trial.
• Section 138 now speaks of corroborated, instead of uncorroborated, accomplice testimony.
• Smaller wording changes: Section 116 says legitimate child instead of legitimate son; Section 122 bars a tenant from denying the landlord's title even after the tenancy; Section 131 says "when" instead of "whence"; Section 168 lets the judge ask any question he considers necessary.
• Colonial references have been removed throughout.

The Five Questions for Any Evidence Problem

1. Is it relevant?
2. Is it admissible?
3. How is it proved?
4. Who must prove it, and is there a presumption?
5. Who is the witness, and how is he examined?

Quick revision

• Everyone is competent under Section 124 unless unable to understand questions or answer rationally; a child can testify after a preliminary test.
• Under Section 125, a witness unable to speak testifies by writing or signs in open court, with an interpreter or special educator, on video.
• Witnesses are examined in chief, cross-examined and re-examined (build, break, repair), and Section 146 controls leading questions.
• A hostile witness can be cross-examined by his own side with the court's permission under Section 157, sought at the right time, as Laloo Prasad shows.
• The hostile witness's evidence is not wiped out, as Khujji holds.
• Section 160 lets former consistent statements corroborate a witness.