B.S.A. (Law of Evidence): 2-Hour Study Guide

About these notes

These notes cover the law of evidence under the B.S.A., 2023, following the LL.B. Semester III course outline (July–December 2026, NLU Odisha). The material is arranged in six modules and 47 numbered concepts, followed by a last-minute revision section.

Each concept is set out in the same order: the concept, its meaning in brief, a model exam answer, an example and a memory hook. Each important case is set out as facts, decision, principle of law, example and conclusion.

• Sections are cited as the B.S.A. section, with the corresponding Indian Evidence Act, 1872 (IEA) section in brackets, for example B.S.A. Section 4 (IEA Section 6).
• A section number marked † is one for which the course outline gives only a range (for example "Sections 54–77") and does not print the exact number. Confirm these numbers on the bare Act before using them in an examination.
• The course outline requires the legislation to be studied as amended up to date, so the bare Act should always be checked.
• Prince and Farhan in the examples are imaginary people. They are not the parties in any case.

Module	Topic	Lecture hours in the course outline	Concepts in these notes
I	Basic concepts	8	1–7
II	Relevancy and admissibility: relevancy of facts; admissions, confessions and dying declarations; judgments, opinions and character	25	8–22
III	Evidence and proof	14	23–29
IV and V	Accomplice (Module IV); burden of proof and presumptions (Module V)	2 and 10	30–41
VI	Witnesses and examination	5	42–47
Total		64	Last-minute revision section at the end

How the Law of Evidence Fits Together

The whole subject follows the life of a fact from the moment it happens to the moment a witness tells the court about it:

1. A fact happens.
2. Is it a fact in issue or a relevant fact? (Modules I and II)
3. Is it admissible? It must not be hearsay, a barred confession or a privileged communication. (Module II)
4. How is it proved? By oral, documentary or electronic evidence. (Module III)
5. Who must prove it? The burden of proof; presumptions help the court. (Module V)
6. Who tells the court? Witnesses, and how they are questioned. (Module VI)

Common Errors in Course Outlines, Corrected

The course outline gives section numbers and case names only; it does not give the facts or the decision of any case. The facts and decisions in these notes are drawn from the reported judgments. Where a small detail could not be fully confirmed, the wording is kept general, so fine details should be compared with class notes before they are quoted.

Cases listed under the wrong topic

In some places the course outline lists a case under a topic that the case does not decide. In these notes each case is placed under the topic it really decides:

Case	Listed in the course outline under	What the case is really about	Covered in these notes under
Patel Hiralal Joitaram	Confessions	Dying declaration	Concept 17
Ram Narain	Confessions	Handwriting expert opinion	Concept 20
Aghnoo Nagesia	Dying declaration	Confession made in an FIR	Concept 16
Pulukuri Kottaya	Dying declaration	Discovery of a fact (IEA Section 27)	Concept 16
Veera Ibrahim	Dying declaration	Statement to a Customs officer	Concept 16
Bodhraj	Dying declaration	Last seen and discovery (IEA Section 27)	Concepts 16 and 36
CBI v. V.C. Shukla	Dying declaration	Entries in account books	Concept 17
Bishwanath Prasad	Res gestae	Admissions	Concept 15
Badri Rai; Mirza Akbar	Motive / res gestae	Conspiracy (Mohd. Khalid is correctly listed under conspiracy)	Concept 13
Jayantibhai Bhenkerbhai	Motive, conduct, identity	Alibi, and facts that make guilt improbable	Concepts 12 and 35
R.S. Maddanappa	Exclusion of oral by documentary evidence	Estoppel	Concept 24
Sanatan Gauda	Oral / documentary evidence	Estoppel	Concept 24
Madhuri Patel (Patil)	Oral / documentary evidence	Value of old official records	Concept 27
Ajai @ Ajju	Electronic evidence	Eyewitness evidence (quality, not quantity)	Concept 26
Dinesh Kumar v. State of Haryana	Presumptions	Last seen theory	Concept 36
Mukesh Singh (Narcotic Branch)	Presumptions	NDPS case (a reverse-onus law)	Concept 34
Goutam Kundu; Dipanwita Roy	Gender violence	Legitimacy of a child (conclusive proof)	Concept 41

Typing slips

• "Facts which are the occasion, cause or effect" is printed as B.S.A. Section 9. The correct section is B.S.A. Section 5 (IEA Section 7). B.S.A. Section 9 deals with "facts not otherwise relevant".
• Haroon Haji Abdulla is printed with the citation "AIR 1975 SC 856". That citation belongs to Ravinder Singh. Haroon Haji Abdulla is reported as AIR 1968 SC 832.

Module I: Basic Concepts

Module I covers the purpose and applicability of the law of evidence and its basic definitions: fact, fact in issue, relevant fact, relevancy and admissibility, evidence, and proved, disproved and not proved (Concepts 1–7).

1. Law of Evidence and the B.S.A.: Purpose, Importance and Applicability (B.S.A. Section 1)

The law of evidence is the set of rules that tells a court how facts can be proved. The B.S.A., 2023 is India's general law of evidence. It replaced the Indian Evidence Act, 1872 (IEA). Its main purpose is to find the truth.

• It works at the stage of inquiry and trial.
• It applies in both civil and criminal cases.
• It is based on fairness and natural justice: "justice must not only be done, it must be seen to be done".

Model exam answer

The B.S.A., 2023 is the general law of evidence in India and replaces the Indian Evidence Act, 1872. Its purpose is to help the court find the truth and to assess whether the evidence is reliable.

1. Nature: it is a law of procedure about proof. It does not create rights or crimes. It tells the court how facts are proved or disproved.
2. Link with other laws: substantive laws (B.N.S., the Hindu Marriage Act (HMA) and others) say what rights and offences exist. Procedural laws (B.N.S.S., CPC) say how a case is run. The B.S.A. says how the facts of the case are proved. In this way it makes the other laws work in court.
3. Applicability (Section 1): it applies to judicial proceedings in or before a court, in civil as well as criminal trials. It does not apply to affidavits or to arbitration proceedings. Tribunals and departmental inquiries are not strictly bound by it, but they must follow natural justice (Dhakeswari Cotton Mills).
4. Balance between the parties: it decides who must prove a fact (burden of proof), raises presumptions, allows cross-examination, and declares some evidence admissible and some not admissible. It also protects privileged communications.
5. Modern law: it expressly recognises electronic and digital records as evidence.

Law	Type	Question it answers
B.N.S., HMA and other substantive laws	Substantive	What rights and offences exist
B.N.S.S., CPC	Procedural	How a case is run
B.S.A.	Law of proof	How the facts of the case are proved

Cases

2. Fact (B.S.A. Section 2; IEA Section 3)

"Fact" has a wide meaning. It covers both what the senses perceive and what the mind is aware of. The court decides cases on facts, so everything in evidence law starts with facts.

Model exam answer

Under Section 2 of the B.S.A., "fact" includes two kinds of things:

Kind	Meaning	Examples
Physical fact	Anything, state of things, or relation of things capable of being perceived by the senses	A man was standing at a spot; a wall has blood marks; a person heard certain words
Psychological fact	Any mental condition of which a person is conscious	Intention, knowledge, good faith, ill-will, opinion, reputation

Facts are the raw material of every case. The court must first find the facts, and only then apply the law. In a trial, facts are of two main kinds: facts in issue and relevant facts.

3. Facts in Issue (B.S.A. Section 2; IEA Section 3)

A fact in issue is a fact that decides the right, duty or liability which one side claims and the other side denies in a case. Put simply, it is the main disputed point the court must decide. Whenever a court frames an issue of fact, the fact asked in that issue is a fact in issue.

Model exam answer

Definition: a "fact in issue" means any fact from which, by itself or together with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in a suit or proceeding, necessarily follows.

Explanation: when a court records an issue of fact, the fact to be asserted or denied in the answer to that issue is a fact in issue.

Points to remember:

1. Facts in issue are the main disputed points of the case. Evidence can be given of them (Section 3).
2. In a criminal case, the facts in issue come from the charge, for example: "Did the accused cause the death? Did he intend it?"
3. In a civil case, they come from the pleadings (the plaint and the written statement) and the issues framed by the court.
4. A fact in issue is directly in dispute. A relevant fact is only connected with it and helps to prove it.

4. Relevant Fact (B.S.A. Sections 2 and 3; IEA Sections 3 and 5)

A relevant fact is a fact that is connected with a fact in issue in one of the ways listed in the B.S.A.'s sections on relevancy (Sections 3–9 and the sections that follow). Under Section 3, evidence can be given only of facts in issue and relevant facts, and of nothing else. A relevant fact does not decide the case by itself; it helps the court to believe or disbelieve the main fact.

Model exam answer

• Section 2: one fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of the B.S.A. on the relevancy of facts.
• Section 3: evidence may be given of the existence or non-existence of every fact in issue and of such other facts as are declared relevant in the following sections, and of no others.

Fact in issue	Relevant fact
Directly in dispute; the main question of the case	Only connected with the fact in issue
Decides the right, duty or liability claimed and denied	Does not decide the case by itself; helps the court believe or disbelieve the main fact

Main kinds of relevant facts (Module II)

Kind of relevant fact	B.S.A. Section
Facts forming part of the same transaction (res gestae)	4
Facts that are the occasion, cause or effect	5†
Motive, preparation and conduct	6
Introductory and explanatory facts, and facts showing identity	7
Conspiracy	8
Facts not otherwise relevant which make a fact highly probable or improbable	9
State of mind	12–13
Admissions, confessions, dying declarations and other statements	15–33
Judgments, opinions and character	34–50

5. Relevancy and Admissibility (B.S.A. Sections 3, 141 and 168; IEA Sections 5, 136 and 165)

Relevant (pronounced REL-uh-vent; connected with the case) means the fact has a logical link with the case. Admissible (pronounced ad-MISS-uh-bul; allowed by the court to be received as evidence) means the law permits the court to accept it.

The first question is: is it relevant? The next question is: is it admissible? Every admissible fact is relevant. But a relevant fact may still be inadmissible, because some rules of law shut it out.

Model exam answer

Relevancy is a matter of logic and connection: a fact is relevant if it is connected with a fact in issue in a way recognised by the Act (Sections 3–9 and the following sections). Admissibility is a matter of law: it means the evidence may be received by the court.

Difference between relevancy and admissibility

Point	Relevancy	Admissibility
Nature	A matter of logic and connection	A matter of law
Question asked	Does it connect with the case?	Will the court allow it?
Order	Comes first	Comes next
Relation	A relevant fact may still be inadmissible	Every admissible fact is relevant

• Relevant but not admissible: all admissible facts are relevant, but all relevant facts are not admissible. A confession made to a police officer is relevant to guilt, but it is not admissible (Section 23). Hearsay (what someone else told the witness) and privileged communications are also excluded.
• Admissibility and weight: some evidence is admissible but is given little value. Admissibility is about allowing the evidence; weight is about how much the court believes it.

Role of the Judge

• Section 141 (IEA Section 136): the Judge decides whether the evidence offered is admissible. He may ask the party how the fact would be relevant if proved.
• Section 168 (IEA Section 165): the Judge may ask any question he wishes, in any form, at any time, to obtain proper proof of relevant facts. But his judgment must be based only on facts that are declared relevant and duly proved.

6. Evidence: Oral, Documentary and Electronic (B.S.A. Section 2; IEA Section 3)

"Evidence" is what is placed before the court to prove or disprove a fact. Under the B.S.A. it has two heads: oral evidence and documentary evidence. Oral evidence now includes statements given electronically, such as through video conferencing. Documentary evidence includes electronic and digital records. Electronic evidence is treated as a kind of document.

Model exam answer

Under Section 2 of the B.S.A., "evidence" means and includes:

Head	Meaning
Oral evidence	All statements, including statements given electronically, which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry
Documentary evidence	All documents, including electronic or digital records, produced for the inspection of the court

Points to remember:

• Oral evidence must be direct (Section 55): the witness must say what he himself saw, heard or perceived.
• Documentary evidence is proved by primary or secondary evidence (Sections 56–60†).
• Electronic records are admissible under Sections 61–63 if the conditions and the certificate are proper.
• The B.S.A. is more modern than the IEA because it clearly includes electronic and digital records, and electronic statements, as evidence.

7. Proved, Disproved and Not Proved (B.S.A. Section 2; IEA Section 3)

The court does not need to be 100% certain. A fact is proved when the court believes it exists, or thinks it so probable that a careful person would act as if it exists. A fact is disproved when the court believes it does not exist, or thinks its non-existence so probable that a careful person would act as if it does not exist. A fact is not proved when it is neither proved nor disproved, that is, when the court cannot decide either way.

Model exam answer

Section 2 of the B.S.A. defines these terms:

Term	Definition
Proved	A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent (careful, sensible) man ought, in the circumstances of the case, to act on the supposition that it exists.
Disproved	A fact is disproved when the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought to act on the supposition that it does not exist.
Not proved	A fact is not proved when it is neither proved nor disproved.

The test is that of a prudent person.

• Civil cases: the standard is the balance of probabilities (more likely than not).
• Criminal cases: the prosecution must prove guilt beyond reasonable doubt.

Module II: Relevancy and Admissibility

Module II is the largest module of the course (25 of 64 lecture hours). It covers the relevancy of facts; admissions, confessions and dying declarations; and judgments, opinions and character (Concepts 8–22).

8. Res Gestae: Same Transaction (B.S.A. Section 4; IEA Section 6)

Res gestae (pronounced RAYZ JES-tee; "things done") means facts that are so closely connected with the main fact that they form part of the same transaction. Such facts are relevant even if they happened at a different time or place.

The idea is that words and acts during the event, or immediately after it, are usually true, because the person had no time to think up a lie. Res gestae is an important exception to the hearsay rule (hearsay, pronounced HEER-say, is what a person heard from someone else, and not what he saw himself).

Model exam answer

Section 4 of the B.S.A.: facts which, though not in issue, are so connected with a fact in issue or a relevant fact as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

Essentials

1. A transaction: there must be a group of facts so connected together that they can be called by one name, such as a crime, a contract or a wrong.
2. Close connection: the fact must be closely connected with that transaction in time, place and continuity of action.
3. Spontaneity: the statement or act must be spontaneous (it comes on its own, in the heat of the moment), made under the stress of the event, with no time to invent or reflect.
4. Exception to hearsay: for example, a victim's cry, right after being stabbed, naming the attacker.
5. Later narration excluded: a story told later, after the event is over and when there was time to think, is not res gestae.

Illustration: A is accused of beating B to death. Whatever was said or done by A, B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is relevant.

Conclusion: res gestae allows the court to hear the whole incident as one story.

Case

9. Facts Which Are the Occasion, Cause or Effect (B.S.A. Section 5†; IEA Section 7)

Concept

Facts connected with a fact in issue are relevant when they are its:

• Occasion: the chance that made the event possible;
• Cause: what led to the event;
• Effect: what followed from the event.

Also relevant are facts that show the state of things under which the event happened, or which gave an opportunity for it. Together, these facts tell the story around the main fact.

Exam answer: Section 5 of the B.S.A.

Under Section 5 of the B.S.A., 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, are relevant.

Illustrations in the Act

1. Robbery: Shortly before the robbery, B went to a fair with money and showed it to others. This fact is relevant to the question whether A robbed B, because it gave the opportunity for the robbery.
2. Murder: Marks on the ground made by a struggle at or near the place of the murder are relevant, because they are the effect of the fight.
3. Poisoning: B's state of health before the poisoning, and B's habits known to A that gave A an opportunity to give the poison, are relevant.

Why the rule is needed

An event does not happen alone. The court must know its background and its consequences to understand it correctly.

10. Motive, Preparation and Conduct (B.S.A. Section 6; IEA Section 8)

Concept

• Motive is the reason why a person did an act.
• Preparation is the arranging of the things needed to do the act. It comes before an attempt.
• Conduct is the behaviour of a person before or after the event, such as running away, hiding the weapon or destroying evidence.

Under Section 6, all three are relevant when they show a link with a fact in issue.

Exam answer: Section 6 of the B.S.A.

1. Motive or preparation: Any fact that shows or constitutes a motive or preparation for any fact in issue or relevant fact is relevant.
2. Conduct: The conduct of any party (or of any agent of a party) to a proceeding, in reference to the case or to any fact in issue or relevant fact, and the conduct of the person against whom an offence was committed, is relevant if it influences or is influenced by a fact in issue or relevant fact, whether it was previous or later.

Important points

Element	Examples	Rule to remember
Motive	A quarrel with the victim; a debt owed to the victim	Very useful in a case based on circumstances. But where there is reliable direct evidence, absence of motive does not destroy the case.
Preparation	Buying a weapon or poison; arranging a hiding place	Comes before an attempt.
Conduct	Running away (absconding) after the crime; hiding or washing away evidence; false statements	Absconding is only a suspicious circumstance. It cannot alone prove guilt, because an innocent person may also run away in fear.

Illustration

A is accused of murdering B. A had a quarrel with B (motive), bought a knife the day before (preparation) and ran away after the killing (conduct). All three facts are relevant.

11. Introductory and Explanatory Facts, and Facts Showing Identity (B.S.A. Section 7; IEA Section 9)

Concept

Some facts are needed only to introduce or explain the main facts. Some facts show who or what a person or thing is (identity). Others fix the time or place, or show the relation of the parties. These facts are relevant so far as they are necessary for that purpose.

Modern identity evidence includes DNA tests, the Test Identification Parade, voice samples, sniffer dog evidence and mobile phone location (GPS).

Exam answer: Section 7 of the B.S.A.

The following facts are relevant so far as they are necessary for the purpose:

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

Modern ways of proving identity

Method	How it works	Evidentiary value and caution
DNA test	Science compares DNA from the scene (blood, hair) with that of the accused.	It is expert evidence. It is reliable only if the samples are collected and preserved properly.
Test Identification Parade (TIP)	A Magistrate arranges a line-up so that a witness can pick out the accused from other people.	It is not substantive evidence; it only supports what the witness says in court. Delay in holding it weakens it.
Voice samples	The accused's voice is recorded and compared with the voice recorded at the scene.	It needs expert opinion. A person can be made to give a voice or writing sample without violating the right against self-incrimination (see Kathi Kalu Oghad, Concept 16).
Sniffer dog	A trained dog tracks a scent.	Courts treat it with great caution. It may help the investigation and give small support, but it cannot alone convict.
Mobile location / GPS	Call records and tower or GPS data show where a phone was at a given time.	This is electronic evidence, so it must satisfy B.S.A. ss. 61–63 (certificate).

12. Facts Not Otherwise Relevant: When They Become Relevant (B.S.A. Section 9; IEA Section 11)

Concept

Some facts have no direct link with the case. But they become relevant in two situations:

1. when they are inconsistent with a fact in issue or relevant fact (both cannot be true); or
2. when, alone or together with other facts, they make a fact in issue or relevant fact highly probable or highly improbable.

The best example is the plea of alibi.

Exam answer: Section 9 of the B.S.A.

Facts not otherwise relevant are relevant:

1. if they are inconsistent with any fact in issue or relevant fact;
2. if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Alibi

Alibi means "elsewhere": "I was somewhere else at the time." If the accused proves that he was at another place when the crime happened, that fact is inconsistent with his presence at the crime scene, and so it is relevant.

Points to remember

• Illustration in the Act: The question is whether A committed a crime at Chennai on a certain day. The fact that on that day A was at Ladakh is relevant.
• The idea is to admit facts that make the main fact very likely or very unlikely, but such facts must not be too remote.
• The burden of proving the alibi is on the accused who pleads it (see Concept 35).

13. Conspiracy (B.S.A. Section 8; IEA Section 10)

Concept

A conspiracy is an agreement between two or more persons to do an illegal act. Conspiracies are carried out in secret, so they are hard to prove. Section 8 helps: once there is reasonable ground to believe that two or more persons have conspired, anything said, done or written by one of them about their common plan becomes relevant against all of them. The idea is that each conspirator is the agent of the others.

Exam answer: Section 8 of the B.S.A.

Where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, anything said, done or written by any one of them in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact against each of them. It is relevant both for proving the existence of the conspiracy and for showing that any such person was a party to it.

Conditions

1. There must be reasonable ground to believe that there was a conspiracy, that is, a prima facie case (prima facie means "at first look").
2. The thing said, done or written must be in reference to the common intention.
3. It must be after the intention was first formed and during the conspiracy. Once the object is achieved or the conspirators are arrested, the "agency" ends. So statements made after that are not covered (Mirza Akbar; Mohd. Khalid).
4. It is used against the other conspirators. It is not a confession that can be used against the maker after arrest.

Conspiracy cases at a glance

Case	Point decided
Mirza Akbar v. King-Emperor	A statement made after the object is achieved and after arrest is not admissible against a co-conspirator.
Badri Rai v. State of Bihar	What each conspirator said and did for the common plan, during the conspiracy, is relevant against both.
Mohd. Khalid v. State of West Bengal	Reasonable ground to believe in a conspiracy comes first; a statement made after arrest is outside the section because the agency has ended.

14. State of Mind (B.S.A. Sections 12 and 13; IEA Sections 14 and 15)

Concept

The state of mind of a person, such as his intention, knowledge, good faith, negligence, rashness, ill-will or good-will, is often the main issue. It cannot be seen directly, so the law lets the court use facts that show it. Section 13 also allows proof of similar earlier incidents to show that an act was intentional and not an accident.

Exam answer

Section 12 (IEA Section 14): facts showing state of mind or body

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

• Explanation 1: The fact must show the state of mind in reference to the particular matter in question, and not in a general way.
• Explanation 2: Where a previous offence by the accused is relevant under this section, the previous conviction of the accused is also relevant.

Section 13 (IEA Section 15): series of similar occurrences

When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Sections 12 and 13 compared

Point	B.S.A. Section 12	B.S.A. Section 13
IEA equivalent	Section 14	Section 15
What it makes relevant	Facts showing a state of mind (intention, knowledge, good faith, negligence, rashness, ill-will, good-will) or a state of body or bodily feeling	The fact that the act formed part of a series of similar occurrences in which the doer was concerned
When it applies	When the state of mind or body is in issue or relevant	When the question is whether the act was accidental or intentional, or done with a particular knowledge or intention
Key limit or rule	The state of mind must relate to the particular matter in question; a relevant previous offence makes the previous conviction relevant	Each similar occurrence must be one in which the person doing the act was concerned

Illustrations

• A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a number of stolen articles. This is relevant to show his knowledge.
• A's house is insured and it is burnt. A had earlier insured and burnt other houses. The series shows that the fire was no accident.

15. Admissions (B.S.A. Sections 15–21 and 25; IEA Sections 17–23 and 31)

Concept

An admission is a statement in which a person accepts a fact that is important to the case. It can be oral, written or electronic. It is a statement made by a party (or by a person whom the law treats like a party) that suggests an inference (a conclusion) about a fact in issue or a relevant fact.

• It can be used against the person who made it.
• It is good evidence, but it is not final proof: the maker may explain it.

Exam answer

Definition (Section 15)

Who can make admissions

Section	Persons whose statements are admissions
Section 16	A party to the case, or his agent
Section 16	A person who has a proprietary or money interest in the subject matter, and a person from whom a party got his interest
Section 17	Persons whose position must be proved against a party
Section 18	Persons expressly referred to by a party for information

Proof of admissions (Section 19)

Admissions can be proved against the person who made them. They generally cannot be proved by the maker in his own favour (self-serving statements), except in special cases, for example when the statement would be relevant as a dying declaration or as showing a state of mind.

Other rules

Section	Rule
Section 20	Oral admissions about the contents of a document are not relevant, unless secondary evidence of the document is allowed or the genuineness of the document is in question.
Section 21	In civil cases, an admission made on the express condition that it will not be given in evidence ("without prejudice") is not relevant.
Section 25	Admissions are not conclusive proof of the matters admitted, but they may operate as estoppel (see Concept 24).

Earlier statement of a party and of a witness compared

Point	Earlier statement of a party	Earlier statement of an ordinary witness
Nature	Substantive evidence (an admission)	Not substantive evidence
Use	Can be used against the party; not conclusive	Used only to discredit the witness
Must it be put to the maker in cross-examination?	No (Bishwanath Prasad)	—

16. Confessions (B.S.A. Sections 22, 23 and 24; IEA Sections 24–30)

Concept

A confession is a statement by an accused person saying that he committed the crime. It is very strong evidence if it is true. But confessions can be forced out by threats or beating. So the law sets strict rules to protect the accused:

• a confession caused by a threat or promise is irrelevant;
• a confession made to a police officer cannot be proved against the accused;
• a confession made in police custody is not valid unless made before a Magistrate.

There is one exception: a fact discovered because of the accused's statement.

Exam answer

The B.S.A. controls the use of confessions as follows.

B.S.A.	IEA	Rule	Reason or note
Section 22	Section 24	Involuntary confession is irrelevant	If the effect of the threat or promise has clearly ended before the confession, it may become relevant
Section 23(1)	Section 25	Confession to a police officer cannot be proved against the accused	Fear of police torture
Section 23(2)	Section 26	Confession in police custody cannot be proved unless made in the immediate presence of a Magistrate	Part of the strict rules that protect the accused
Proviso to Section 23	Section 27	Information leading to discovery of a fact can be proved, so far as it relates distinctly to the fact discovered	The discovery itself proves that this part is true
Section 24	Section 30	Confession of a co-accused in a joint trial may be taken into consideration against the others	Weak evidence; cannot be the only basis of conviction

1. Section 22 (IEA Section 24): involuntary confession

A confession is irrelevant in a criminal case if it appears to the court to have been caused by any inducement, threat, coercion or promise which:

• relates to the charge against the accused;
• comes from a person in authority; and
• gave the accused reasonable grounds to think that by making it he would gain some advantage or avoid some evil in reference to the proceedings against him.

If the effect of the threat or promise has clearly ended before the confession is made, the confession may become relevant.

2. Section 23(1) (IEA Section 25): confession to a police officer

A confession made to a police officer cannot be proved against the accused. Reason: fear of police torture.

3. Section 23(2) (IEA Section 26): confession in police custody

A confession made while in police custody cannot be proved unless it is made in the immediate presence of a Magistrate.

4. Proviso to Section 23 (IEA Section 27): discovery

When a fact is discovered in consequence of information given by an accused in police custody, so much of that information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved. Reason: the discovery itself is proof that this part of the information is true.

5. Section 24 (IEA Section 30): confession of a co-accused

If several persons are tried jointly for the same offence and one of them confesses, affecting himself and the others, the court may take the confession into consideration against the others too.

• It is a weak type of evidence.
• It cannot be the only basis of a conviction.
• It is used only to lend assurance to other evidence.
• The B.S.A. adds Explanation II: a trial of more persons than one held in the absence of an accused who has absconded, or who fails to comply with a proclamation issued under B.N.S.S. Section 84, is deemed to be a joint trial for this section.

6. Constitutional protection

Article 20(3) of the Constitution says that no person accused of an offence can be compelled to be a witness against himself.

Retracted confession

A retracted confession is one that the accused later withdraws. Courts may act on it if it is voluntary and true, but as a rule of caution they usually look for corroboration.

Cases on confessions and self-incrimination

Article 20(3) cases at a glance

Case	Question	Answer
Veera Ibrahim v. State of Maharashtra	Does Article 20(3) protect a person questioned before any formal accusation?	No. The protection begins only when the person is formally "accused of an offence".
State of Bombay v. Kathi Kalu Oghad	Is giving specimen handwriting, signatures or finger impressions "being a witness" against oneself?	No. These are material for comparison, not testimony.
Selvi v. State of Karnataka	Can narco-analysis, polygraph or brain-mapping tests be forced on a person?	No. Forced tests violate Articles 20(3) and 21; voluntary tests are allowed with safeguards.

17. Dying Declaration: B.S.A. s.26(a) (IEA s.32(1))

Meaning

A dying declaration is a statement made by a person about the cause of his death or the circumstances of the incident that caused his death. It is used as evidence after his death.

• It is an exception to the hearsay rule.
• The law believes that a dying person will not lie. The Latin maxim is Nemo moriturus praesumitur mentire: "a person about to die is not presumed to lie".

Statutory provision: Section 26(a), B.S.A.

A statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is relevant in cases in which the cause of that person's death comes into question.

• It is relevant whether or not the person was, at the time of making it, under expectation of death.
• It is relevant whatever the type of proceeding in which the cause of death comes into question, civil or criminal.

Reasons for admitting a dying declaration

1. Necessity: the victim is often the only eyewitness.
2. Truthfulness: a dying person is presumed not to lie.

Rules developed by the courts

1. Form: it can be oral, written or by signs. There is no fixed form, and no oath is needed.
2. Who may record it: a doctor, a police officer or anyone else. A Magistrate is the best person to record it, but this is not a must.
3. Voluntary, true and fit mind: it must be voluntary, true and made when the person was fit in mind. A doctor's certificate of fitness is not compulsory; what matters is whether the person recording it was satisfied (Laxman).
4. Corroboration not compulsory: if the court is satisfied that it is true and voluntary, it can be the only basis for conviction (Khushal Rao). If it is doubtful, the court looks for support.
5. Subject-matter: it must relate to the cause of death or the circumstances of the transaction that led to death, and should have a close link with it (Sudhakar).
6. Multiple declarations: where there are many dying declarations, they should be consistent.
7. Close scrutiny: it is made in the absence of the accused and cannot be tested by cross-examination, so the court scrutinises it closely.

Leading cases on dying declaration

Related case: entries in books of account

18. Relevancy of Judgments: B.S.A. ss.34–38 (IEA ss.40–44)

Meaning and general rule

A judgment is a court's decision. As a rule, a judgment is not evidence that the facts it decided are true in a fresh case between other people.

The B.S.A. makes judgments relevant only in limited situations, mainly:

• to stop a second suit or trial on the same matter; and
• where the judgment settles a public status, that is, a "judgment in rem", such as a divorce decree or a probate.

Provisions at a glance

B.S.A.	IEA	Rule	Effect / example
s.34	s.40	A previous judgment, order or decree is relevant to bar a second suit or trial on the same issue.	Supports the plea of res judicata ("already decided"), or the plea that a person cannot be tried twice for the same offence.
s.35	s.41	A final judgment of a competent court in probate, matrimonial, admiralty or insolvency jurisdiction, which gives a legal character or a right against everybody (a "judgment in rem").	Relevant and conclusive proof of what it declares. Example: a divorce decree.
s.36	s.42	Other judgments about matters of a public nature.	Relevant but not conclusive. Example: a judgment declaring a road to be a public road.
s.37	s.43	All other judgments.	Not relevant, unless the existence of the judgment is itself a fact in issue or is relevant under some other provision.
s.38	s.44	A party may show that a judgment was obtained by fraud or collusion, or was delivered by a court that was not competent (had no jurisdiction).	The judgment can be attacked on these grounds.

19. Expert Opinion: B.S.A. s.39 (IEA s.45)

Meaning

Normally a witness must state facts, not his own opinion. But when the court needs special knowledge that it does not have (for example, about medicine, science, ballistics, DNA or foreign law), it accepts the opinion of an expert.

• An expert is a person specially skilled in the field.
• The court is not bound by the expert's opinion. It is only advice that helps the judge.

Section 39, B.S.A.

When the court has to form an opinion upon a point of foreign law, science or art, or as to identity of handwriting or finger impressions, or any other field, the opinions of persons specially skilled in such matters are relevant facts.

Important points

1. Who is an expert: a person with special skill, study or experience in that field.
2. Value: the opinion is only advisory; the court decides for itself. An expert must give reasons, and the facts he relies on must be proved.
3. Fallible: expert opinion is not conclusive. It is safer when supported by other evidence.
4. Related section, s.40 (IEA s.46): facts not otherwise relevant become relevant if they support or contradict expert opinions.
5. Electronic evidence, s.39(2): when the court has to form an opinion about information sent or stored in a computer resource or in any electronic or digital form, the opinion of the Examiner of Electronic Evidence is a relevant fact.

Common kinds of experts

Expert	Typical opinion on
Doctor	Cause of death
Ballistics expert	Bullet
Chemical examiner	Poison
DNA expert	DNA
Fingerprint expert	Finger impressions
Forensic (digital) expert	Digital evidence

20. Handwriting Opinion: B.S.A. s.41 (IEA s.47), with s.72 (IEA s.73)

Meaning

Whether a document was written or signed by a certain person is often disputed. The B.S.A. allows three ways to prove handwriting. Handwriting opinion is helpful, but it is a weak type of evidence and should be handled with care.

Mode of proof	Provision	How it works
Opinion of a handwriting expert	B.S.A. s.39	The expert compares the disputed writing with admitted writing and gives his opinion with reasons.
Opinion of a person acquainted with the handwriting	B.S.A. s.41 (IEA s.47)	A person who knows the writer's handwriting says whether the document was or was not written or signed by him.
Comparison by the court itself	B.S.A. s.72 (IEA s.73)	The court compares the disputed writing or signature with one that is admitted or proved.

Opinion of a person acquainted with the handwriting (s.41)

The opinion of a person acquainted with the handwriting of the writer, that a document was or was not written or signed by him, is relevant. A person is "acquainted" with another's handwriting when:

1. he has seen that person write; or
2. he has received documents written by that person in answer to documents written by himself; or
3. documents purporting to be written by that person have been habitually submitted to him in the ordinary course of business.

Court's own comparison (s.72, IEA s.73)

• The court may itself compare a disputed signature or writing with one that is admitted or proved.
• It may also direct a person present in court to write words or figures so that they can be compared.
• This applies to finger impressions too.

Digital signature

For a digital signature, the opinion of the Certifying Authority is relevant (s.41).

Weight of handwriting evidence

The Supreme Court has said that handwriting expert opinion is not conclusive and is to be received with caution. It is safe to rely on it when it is supported by other evidence, or when the court itself has compared the writings and is satisfied (Ram Narain; Santosh @ Bhure).

Leading cases on handwriting opinion

21. Opinions on Custom, Usage, Tenets and Relationship: B.S.A. ss.42, 43, 44 (IEA ss.48, 49, 50)

Meaning

In some cases the court needs to know about:

• a custom: a long-followed local practice;
• a usage or tenet: a belief or rule of a group; or
• a family relationship.

The best people to speak on these matters are those with special knowledge, so their opinions are made relevant.

The provisions

Section 42 (IEA s.48): Opinion as to existence of a right or custom

When the court has to form an opinion about the existence of any general custom or right, the opinions of persons who would be likely to know of its existence, if it existed, are relevant.

"General custom or right" includes customs or rights common to any considerable class of persons.

Section 43 (IEA s.49): Opinion as to usages, tenets etc.

When the court has to form an opinion about any of the following, the opinions of persons having special means of knowledge are relevant:

1. the usages and tenets of any body of men or family;
2. the constitution and government of any religious or charitable foundation; or
3. the meaning of words or terms used in particular places or by particular classes of people.

Section 44 (IEA s.50): Opinion on relationship

The opinion, expressed by conduct, of a person who, as a member of the family or otherwise, has special means of knowledge about the relationship of one person to another, is relevant.

22. Character Evidence: B.S.A. ss.46–50 (IEA ss.52–55)

Meaning of "character"

"Character" means a person's:

• reputation: what others say about him; and
• disposition: his nature or habits.

The basic rule is that a person is judged on what he did, not on what sort of person he is. So character is usually irrelevant, subject to a few exceptions.

Rules at a glance

Situation	B.S.A.	IEA	Rule
Civil cases	s.46	s.52	The fact that a person's character makes some conduct probable or improbable is irrelevant, unless the character itself appears from facts that are otherwise relevant.
Good character in criminal cases	s.47	s.53	The fact that the accused is of good character is relevant. It can help him.
Sexual offences	s.48	s.53A	In prosecutions for offences like rape, where the question of consent is in issue, evidence of the victim's character or previous sexual experience with any person is not relevant on the issue of consent or its quality. This protects the victim.
Bad character in criminal cases	s.49	s.54	The fact that the accused is of bad character is irrelevant, unless evidence of his good character has been given; it can then be rebutted. A previous conviction is relevant as evidence of bad character.
Damages in civil cases	s.50	s.55	Character is relevant when it affects the amount of damages. For example, in defamation, a person of bad reputation deserves less compensation.

What may be proved as character

• "Character" includes both reputation and disposition.
• Only general reputation and general disposition can be proved, not particular acts, except as allowed for previous convictions.

Module III: On Proof

This module deals with how facts are proved, which facts need no proof, and which facts cannot be proved.

23. Facts Which Need Not Be Proved: B.S.A. ss.51–53 (IEA ss.56–58)

Meaning

Proof takes time and money, so the law says that some facts need no proof. There are two kinds:

1. facts of which the court takes judicial notice, that is, facts the court accepts because they are so well known or so certain; and
2. facts that the parties have admitted.

Judicial notice: Section 51 (IEA s.56)

No fact of which the court will take judicial notice needs to be proved.

Facts of which the court must take judicial notice: Section 52 (IEA s.57)

Examples include:

• all laws in force in India;
• the course of proceedings of Parliament;
• the seals of courts;
• the territory of India, the divisions of time, and the geographical divisions of the world;
• public festivals, fasts and holidays notified in the Official Gazette;
• the commencement, continuance and end of hostilities (war) between the Government of India and any other country or body of persons;
• the names of the members and officers of the court, their deputies, subordinate officers and assistants, officers acting in execution of its process, and advocates and others authorised by law to appear or act before it;
• the rule of the road on land or at sea.

If the court is asked to take notice of any other fact, it may refuse to do so unless the person asking produces a book or document to help it.

Admitted facts: Section 53 (IEA s.58)

No fact needs to be proved which the parties (or their agents):

• agree to admit at the hearing; or
• agree in writing to admit before the hearing; or
• are deemed to have admitted by their pleadings.

Proviso: the court may, in its discretion, still require the admitted fact to be proved in another way.

Reason for the rule

It saves the time of the court and prevents useless proof.

24. Estoppel (Facts the Parties Are Barred from Denying): B.S.A. ss.121–123 (IEA ss.115–117)

Meaning

Estoppel comes from the word "stop". A person is stopped from denying something he earlier said or did, when another person believed it and acted on it. It is based on fairness: one cannot mislead someone and then go back on one's word.

Promissory estoppel is the same idea applied to promises: if a person makes a clear promise that he knows will be acted upon, and the other person does act on it, he cannot go back on the promise.

Section 121 (IEA s.115): the general rule

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

Essentials of estoppel

1. A representation (by words, act or silence) made by one person.
2. It was made intentionally: he caused or allowed the other to believe it.
3. The other person believed it and acted on it, and changed his position, usually to his loss.
4. The proceeding is between the same persons or their representatives.

Other kinds of estoppel: Sections 122 and 123

B.S.A.	IEA	Person estopped	What he cannot deny
s.122	s.116	Tenant, or a person claiming through the tenant	During the tenancy or at any time after it, that the landlord had title at the start of the tenancy.
s.122	s.116	Person who came on immovable property under the licence of the person in possession	That person's right to possession at the time of the licence.
s.123	s.117	Acceptor of a bill of exchange	That the drawer had authority to draw it.
s.123	s.117	Bailee (a person who holds another's goods) or licensee	That the bailor or licensor had, when the bailment or licence began, authority to make the bailment or grant the licence.

Promissory estoppel

A clear promise + the promise was meant to be acted upon + the other person acted on it = the promisor is bound, even if there is no formal contract.

Courts apply it also against the Government where it is fair, unless public interest or law stands in the way.

Limits of estoppel

There is no estoppel:

• if the other person already knew the true facts (R.S. Maddanappa); or
• where it would go against a statute.

Nature of estoppel

Estoppel is a rule of evidence and a rule of fairness. It does not create rights by itself.

Leading cases on estoppel

25. Facts Which Cannot Be Proved (State Affairs and Privileged Communications): B.S.A. ss.127–134 (IEA ss.121–129)

Concept

Some facts cannot be forced out of a witness even though they may be relevant, because the law protects them. These are called privileged (specially protected) communications.

The basis of the privilege is public interest: people must be able to speak freely to their spouse or to their lawyer, and the State needs to keep certain secrets.

Exam answer: the privileges at a glance

Privilege	B.S.A.	IEA	Rule
Judges and Magistrates	s.127	s.121	A Judge or Magistrate is not compelled to answer questions about his own conduct in court, except on the order of a higher court.
Communications during marriage	s.128	s.122	A married (or formerly married) person cannot be compelled to disclose what his or her spouse told him or her during marriage. Exceptions: the spouse consents; suits between the spouses; a prosecution of one spouse for a crime committed against the other.
Affairs of State	s.129	s.123	No one may give evidence derived from unpublished official records relating to affairs of State without the permission of the head of the department.
Official communications	s.130	s.124	A public officer cannot be forced to disclose communications made to him in official confidence, if the public interest would suffer by the disclosure.
Information about offences	s.131	s.125	A Magistrate or police officer cannot be forced to say from where he got information about the commission of an offence.
Professional communications	s.132	s.126	An advocate cannot disclose, without the client's consent, what the client told him for the purpose of his employment. Exceptions: (1) a communication made for an illegal purpose; (2) any fact observed by the advocate, since his employment began, showing that a crime or fraud has been committed.
Confidential communications with legal advisers	s.134	s.129	No one is compelled to disclose his confidential communications with his legal adviser, unless he himself becomes a witness.

B.S.A. s.132(3) (IEA s.127) extends the lawyer's privilege to interpreters and to the clerks or employees of advocates, and B.S.A. s.133 (IEA s.128) provides that the privilege is not lost merely because the client gives evidence.

Other points to note

• Marital privilege belongs to the communication. The marital status is judged as it stood at the time the communication was made (M.C. Verghese).
• In State privilege, the court has the last word on whether a document really relates to affairs of State and whether its disclosure would harm the public interest (Raj Narain).
• The client's privilege continues even after the lawyer's employment has ended.

Cases

26. Oral Evidence: B.S.A. ss.54–55 (IEA ss.59–60)

Concept

Oral evidence is what a witness says in court about facts. The rule is that oral evidence must be direct: the witness must tell what he himself saw, heard or perceived. What he only heard from another person is hearsay, and it is generally not accepted.

Exam answer

1. Section 54 (IEA s.59): All facts, except the contents of documents (and electronic records), may be proved by oral evidence.
2. Section 55 (IEA s.60): Oral evidence must in all cases be direct (see the table below).
   • Proviso: the opinions of experts expressed in published books (treatises) may be proved by producing those books, if the author is dead, cannot be found, or cannot be called as a witness without unreasonable delay or expense.
3. Material things: if oral evidence refers to a material thing (other than a document), the court may require that thing to be produced for its inspection.
4. Hearsay: what a person heard from another person, offered to prove the truth of what was said, is generally not accepted, because the person who made the statement cannot be cross-examined. Exceptions include res gestae (s.4), dying declaration (s.26), admissions and others.
5. Quality, not quantity: the court weighs the quality of a witness; it does not count witnesses. A single reliable witness can be enough.

What "direct" means under s.55

If the oral evidence refers to	It must be the evidence of
A fact which could be seen	A witness who says he saw it
A fact which could be heard	A witness who says he heard it
A fact which could be perceived by any other sense	A witness who says he perceived it by that sense
An opinion	The person who holds that opinion on those grounds

Case

27. Documentary Evidence: B.S.A. ss.56–77 (IEA ss.61–78)

Concept

A document is any matter written, expressed or marked on any substance (paper, a wall, a computer) intended to be used as evidence. Electronic and digital records are also documents.

The contents of a document must be proved by the document itself (primary evidence). A copy (secondary evidence) is accepted only in special cases.

Exam answer

1. Proof of contents (s.56; IEA s.61): the contents of documents may be proved either by primary or by secondary evidence.
2. Primary evidence (s.57; IEA s.62): the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence. The B.S.A. also treats certain electronic records as primary evidence.
3. Secondary evidence (s.58; IEA s.63) includes:
   1. certified copies;
   2. copies made from the original by mechanical processes that ensure accuracy;
   3. copies compared with the original;
   4. counterparts of documents as against the parties who did not execute them;
   5. oral accounts of the contents of a document given by a person who has himself seen it.
   The B.S.A. adds oral and written admissions, and the evidence of a skilled person who has examined the document.
4. When secondary evidence is allowed (s.60; IEA s.65):
   • the original is with the opposite party, or with a person out of reach, who does not produce it after notice;
   • the original is admitted in writing by the person against whom it is proved;
   • the original has been destroyed or lost;
   • the original is not easily movable (for example, an inscription on a wall);
   • the original is a public document;
   • a certified copy is permitted by law to be given in evidence;
   • the originals are numerous and voluminous (for example, accounts).
5. Proof of signature, handwriting and execution: through the writer, the attesting witnesses, handwriting experts, or by comparison (ss.54–77 generally).
6. Public and private documents: public documents (acts of the State, of official bodies, and public records) are proved by certified copies. All other documents are private documents.
7. Presumptions about certain documents are in ss.78–93 (see Concept 38, Presumptions as to Certain Documents).
8. Weight: old official records made in the ordinary course (such as a school register) are strong evidence (Madhuri Patil).

Primary and secondary evidence compared

Point	Primary evidence	Secondary evidence
Section	B.S.A. s.57 (IEA s.62)	B.S.A. s.58 (IEA s.63)
What it is	The document itself, produced for the inspection of the court	Copies and accounts of the contents of the document
Includes	Each part of a document executed in several parts; certain electronic records	Certified copies, mechanical copies, compared copies, counterparts, oral accounts; under the B.S.A. also oral and written admissions and a skilled person's evidence
When used	The normal rule	Only in the cases listed in s.60 (IEA s.65)

Case

28. Exclusion of Oral by Documentary Evidence: B.S.A. ss.94–95 (IEA ss.91–92)

Concept

When the parties have put their agreement in writing, the writing is the best record of what they agreed. So the law does not allow one side to bring oral evidence (spoken words) to contradict, vary, add to or subtract from the written terms. This protects the certainty of written contracts and stops false claims.

Exam answer

1. Section 94 (IEA s.91): when the terms of a contract, a grant or other disposition of property, or any other matter required by law to be in writing, have been reduced to the form of a document, no evidence can be given to prove those terms except the document itself (or secondary evidence of its contents where secondary evidence is allowed).
   • Exceptions: (1) the appointment of a public officer in writing; (2) a will admitted to probate.
2. Section 95 (IEA s.92): when the terms have been proved by the document, no evidence of any oral agreement or statement made between the parties (or their representatives) can be admitted to contradict, vary, add to or subtract from its terms.
3. Exceptions: the six provisos to s.95 (see the table below).
4. Reason for the rule: the written document is the best evidence of the parties' agreement.

The six provisos to s.95 (IEA s.92)

No.	Hook letter	What may be proved
1	F (Fraud)	Fraud, intimidation, illegality, want of due execution, want of capacity, want or failure of consideration, or mistake. These show that the document is invalid.
2	S (Silent matter)	A separate oral agreement on a matter on which the document is silent, which is not inconsistent with its terms.
3	C (Condition precedent)	A separate oral agreement which is a condition precedent to the attaching of any obligation under the document.
4	R (Rescission or later change)	A distinct later oral agreement to cancel or change the document, except where the law requires the contract to be in writing or to be registered.
5	U (Usage)	A usage or custom by which incidents not mentioned in the contract are usually added to contracts of that kind.
6	L (Language)	Any fact which shows how the language of the document is related to existing facts.

29. Electronic Evidence: B.S.A. ss.61, 62, 63 (IEA ss.65A, 65B)

Concept

An electronic record is information created or stored on a computer, phone or any digital device: emails, WhatsApp messages, CCTV footage, call records, and audio and video recordings.

The B.S.A. treats electronic records as documents. They are admissible, but because they can be altered easily, the law requires a certificate and proof of reliability.

Exam answer

1. Section 61: an electronic or digital record shall not be denied legal effect, validity or enforceability, or admissibility as evidence, merely because it is in electronic form.
2. Section 62 (IEA s.65A): the contents of electronic records may be proved in accordance with s.63.
3. Section 63 (IEA s.65B): information contained in an electronic record (a printout, or a copy on optical or magnetic media or semiconductor memory) produced by a computer or communication device is deemed to be a document, and is admissible without production of the original, if the following conditions are met:
   • the device was regularly used to store or process information during the relevant period;
   • information of that kind was regularly fed into the device in the ordinary course of activities;
   • the device was operating properly throughout (or, if not, the fault did not affect the record); and
   • the information is a copy of, or is derived from, the information fed into the device.
4. Certificate (s.63(4)): a certificate must accompany the electronic record.
   • It must be in the form given in the Schedule to the B.S.A.
   • Part A is signed by the person in charge of the device (usually the party).
   • Part B is signed by an expert.
   • It identifies the record and the device, describes how the record was produced, and includes a hash value (a digital fingerprint showing that the file has not been changed).
5. Case law (Arjun Panditrao Khotkar): the certificate is a condition for admitting secondary electronic evidence (copies, printouts, CDs). It is not needed where the original device itself is produced and proved in court (primary evidence).
6. What is new in the B.S.A.:
   • electronic records are expressly "documents";
   • statements given electronically (by video) count as oral evidence;
   • certain electronic records count as primary evidence (s.57);
   • there is a standard Schedule form for the certificate, including an expert's certificate.

Copy or original: when is a certificate needed?

What is produced	Nature of evidence	Certificate under s.63(4) (IEA s.65B(4))
Copy: printout, CD or other copy	Secondary electronic evidence	Mandatory
The original device itself (phone, hard disk), produced and proved in court	Primary evidence	Not needed

Cases

Module IV: Accomplice Evidence

This module has one topic: the evidence of an accomplice, including an approver.

30. Accomplice Evidence: B.S.A. s.138 read with s.119(1)(b) (IEA s.133 read with s.114(b))

Concept

An accomplice is a partner in the crime: a person who took part in the offence. An accomplice who is given a pardon and turns witness for the State is called an approver.

An accomplice is a competent witness, but by nature an unreliable one. He is a guilty person with a reason to save himself, so courts look for corroboration (support from other, independent evidence) before believing him.

Exam answer

1. Meaning: an accomplice is a "guilty associate in crime": a participant, abettor or receiver. An approver is an accomplice who accepts a pardon and gives evidence for the prosecution.
2. Section 138 (IEA s.133): an accomplice is a competent witness against an accused person. The wording on conviction has changed (see the table below).
3. Section 119(1)(b) (IEA s.114(b)): the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. Section 138 is read together with this presumption.
4. Rules from the cases:
   • The approver must first be found a reliable witness, and then his evidence must be corroborated in material particulars connecting the accused with the crime (Ravinder Singh).
   • An accomplice cannot corroborate himself by his own earlier statement (Haroon Haji Abdulla).
   • A co-accused's confession is a weak type of evidence and can only lend assurance to other evidence (Bhuboni Sahu).
   • A retracted confession of a co-accused can support an accomplice only if it is reliable and there is other independent support (Haroon Haji Abdulla).
   • A trap witness or decoy (a person who helps the police to catch a bribe-taker) is not an accomplice but an interested witness. His evidence is tested with care, and corroboration is looked for as a matter of prudence, not as a fixed rule (Basawan Singh).

IEA s.133 and B.S.A. s.138 compared

Point	IEA s.133	B.S.A. s.138
Competence of accomplice	Competent witness against an accused person	Competent witness against an accused person
Wording on conviction	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
Effect	Uncorroborated accomplice evidence could legally support a conviction; corroboration was looked for as a rule of prudence	Many commentators say the new wording makes corroboration necessary; some call it a drafting slip

Accomplice, approver and trap witness

Witness	Who he is	How his evidence is treated
Accomplice	A guilty associate in crime: participant, abettor or receiver	Competent witness; the court may presume he is unworthy of credit unless corroborated in material particulars (s.119(1)(b))
Approver	An accomplice who accepts a pardon and gives evidence for the prosecution	Two steps: first found reliable, then corroborated in material particulars (Ravinder Singh)
Trap witness or decoy	A person who helps the police catch a bribe-taker	Not an accomplice; an interested witness whose evidence is tested with care; corroboration as prudence, not a fixed rule; circumstantial support is enough (Basawan Singh)

Cases

Module V: Burden of Proof, Reverse Onus and Presumptions

This module deals with two questions: who must prove a fact, and where the law helps by presuming a fact.

31. Burden of Proof: General Rules (B.S.A. Sections 104–107; IEA Sections 101–104)

Concept

The burden of proof means the duty to prove a fact. The basic rule is that the person who asserts (claims) a fact must prove it.

There are two kinds of burden:

• Legal burden: the duty to prove the whole case. It stays on the same party from start to end.
• Evidentiary burden: the duty to bring evidence on a particular point. It can move from one side to the other during the trial.

Exam answer: the statutory rules

B.S.A. section	IEA section	Rule
104	101	Whoever wants the court to give judgment about a legal right or liability that depends on facts he asserts must prove that those facts exist. When a person is bound to prove a fact, the burden of proof lies on him.
105	102	The burden lies on the person who would fail if no evidence at all were given on either side.
106	103	The burden of proving a particular fact lies on the person who wants the court to believe in its existence, unless a law says that the proof of that fact lies on some other person.
107	104	The burden of proving a fact that must be proved to make evidence admissible lies on the person who wants to give that evidence.

Legal burden and evidentiary burden

Legal burden (burden of proof)	Evidentiary burden (burden of adducing evidence)
Duty to prove the whole case	Duty to bring evidence on a point
Fixed: it does not shift	Shifts from side to side
Decided by the law and the pleadings	Decided by how the evidence stands
Example: the prosecution must prove guilt beyond reasonable doubt	Example: after the prosecution proves possession of stolen goods, the accused must explain it

Standard of proof

Situation	Standard
Civil cases	Balance of probabilities (more likely than not)
Criminal cases (prosecution)	Guilt must be proved beyond reasonable doubt; the accused is presumed innocent
Accused who must prove something (such as an exception)	Only needs to show that it is probable

32. Shifting of Burden of Proof (B.S.A. Sections 104–109; IEA Sections 101–106)

Concept

The legal burden stays with the person who must prove his case. But as the case goes on, the evidentiary burden (the duty to bring evidence) can shift to the other side. When one side has proved enough facts to make out a prima facie case (a case good enough at first look), the other side must bring evidence to answer it. If he does, the burden may shift back.

Exam answer: the rules on shifting

1. General rule: the burden of proof (legal burden) lies on the person who asserts (Sections 104–106) and does not change.
2. What shifts: the burden of adducing evidence (evidentiary burden). When a party proves the basic facts, the burden moves to the opponent to rebut.

Stages of shifting

1. The plaintiff or prosecution proves the basic facts.
2. The burden shifts to the defendant or accused to explain or disprove.
3. If he brings evidence, the burden moves back to the other side.

What makes the burden shift

• Proof of a fact from which the law makes a presumption (for example, dowry death, Section 118).
• Facts especially within the knowledge of a party (Section 109).
• The exceptions for the accused (Section 108).

What does not shift

In a criminal case, the burden on the prosecution to prove guilt beyond reasonable doubt stays throughout. The accused only needs to raise a reasonable doubt.

33. Special Rules: Exceptions and Facts Especially within Knowledge (B.S.A. Sections 108–109; IEA Sections 105–106)

Concept

Two special rules change the normal burden:

1. If an accused claims an exception (such as self-defence, insanity or intoxication), he must prove that his case falls within that exception.
2. When a fact is especially within the knowledge of a person, he must prove it, because only he can easily do so.

Section 108 (IEA Section 105): Proof of general and special exceptions

When a person is accused of any offence, the burden of proving that the case falls within any of the General Exceptions in the B.N.S. (or within any special exception or proviso in any part of the B.N.S., or in any law defining the offence) lies on him, and the court shall presume that no such circumstances exist.

Section 109 (IEA Section 106): Facts especially within knowledge

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

Illustrations

• (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is on him.
• (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Limit on Section 109

Section 109 does not remove the prosecution's burden. The prosecution must first prove the basic facts. Only then can the accused be asked to explain a fact that only he knows. Section 109 cannot fill gaps in the prosecution case (Dinesh Kumar, Concept 36).

Uses of Section 109

• Alibi
• Last seen
• Death inside a house

34. Reverse Onus (B.S.A. Sections 108, 117, 118, 120 and Special Laws; IEA Sections 105, 113A, 113B, 114A)

Concept

Onus means burden. The normal rule is that the prosecution proves guilt and the accused is presumed innocent. Reverse onus means the law turns this around and puts the burden on the accused to prove his innocence or a certain fact. Special laws have carved out exceptions in the form of reverse onus clauses (for example, the NDPS Act, and the dowry death and consent presumptions).

Normal rule

The prosecution must prove guilt beyond reasonable doubt. The accused is presumed innocent.

Reverse onus provisions

Some laws say that once the prosecution proves certain basic facts, the court must presume guilt or a guilty mind, unless the accused disproves it. Examples:

• Dowry death (B.S.A. Section 118) and absence of consent in rape (B.S.A. Section 120): "the court shall presume".
• Special statutes such as the Narcotic Drugs and Psychotropic Substances (NDPS) Act (presumption of culpable mental state and of possession) and the Prevention of Corruption Act.
• Exceptions in Section 108: the accused must prove the exception.

Why reverse onus is allowed

These crimes are serious and hard to prove, and the accused often alone knows the facts.

Safeguards

1. The prosecution must first prove the basic facts.
2. The accused has to show only that his version is probable; he need not prove it beyond reasonable doubt.
3. The court must still ensure a fair trial and a fair investigation.

Criticism

Reverse onus may go against the presumption of innocence and Article 21 unless it is reasonable and fair.

35. Plea of Alibi (B.S.A. Sections 9 and 109; IEA Sections 11 and 106)

Concept

Alibi is Latin for "elsewhere". The accused says: "I was at another place when the crime happened, so I could not have done it." It is a defence that the accused was not present at the scene. It is not one of the special "exceptions" in Section 108. The prosecution must still prove that the accused was there and did the act.

Meaning

A plea that the accused was at another place at the time of the offence, and so could not have committed it.

Legal basis

• An alibi is a fact inconsistent with the presence of the accused at the crime scene, so it is relevant under Section 9 (IEA Section 11).
• Because the accused knows where he was, he must bring evidence in support of it (Section 109, facts especially within knowledge).

Burden

The burden of proving guilt always stays with the prosecution, including the accused's presence at the scene. But the accused must bring proper evidence in support of his alibi. A bare statement is not enough.

Tests for a good alibi

• It should be specific and cover the time of the crime.
• It should be proved by reliable evidence (documents, records, independent witnesses).
• It should be raised at the earliest, and not as an afterthought.
• It must make the accused's presence at the scene impossible, or highly improbable.

Effect

• A proved alibi can lead to acquittal (Jayantibhai).
• A false alibi does not prove guilt by itself. It only removes a defence. It may be an extra circumstance if the prosecution has already proved a chain of circumstances.

36. Theory of Last Seen (B.S.A. Section 109 with Circumstantial Evidence; IEA Section 106)

Concept

When a person is last seen alive in the company of the accused, and soon afterwards is found dead, the court treats this as a circumstance against the accused. The accused is then expected to explain what happened afterwards, because it is a fact especially within his knowledge (Section 109). The theory is used in cases based on circumstantial evidence.

Meaning

If the deceased was last seen with the accused, and the time gap between the "last seen" and the discovery of the death is so small that no one else could have caused the death, it is a strong circumstance.

Legal basis

The law of circumstantial evidence, together with Section 109 (facts especially within the knowledge of the accused).

Conditions

• The "last seen" must be proved by reliable evidence.
• The time gap must be very short. If the gap is long, the value of the evidence goes down, because someone else may have caused the death.
• It is a weak link by itself. It cannot alone convict. It must be part of a complete chain of circumstances.
• If the accused gives no explanation or a false one, this can be an additional link, but only after the chain is otherwise complete (Santosh @ Bhure).
• Section 109 cannot be used to fill gaps in the prosecution case (Dinesh Kumar).

37. Particular Burdens of Proof (B.S.A. Sections 110–114; IEA Sections 107–111)

Concept

The B.S.A. fixes the burden for some particular situations: whether a person is alive or dead, who is the owner, whether a relationship continues, and whether a party in a position of trust acted in good faith.

Exam answer: the particular burdens

B.S.A.	IEA	Rule	Burden lies on
Section 110	Section 107	A person shown to have been alive within 30 years is presumed alive; the one who says he is dead must prove it.	The person who affirms he is dead
Section 111	Section 108	If a person has not been heard of for 7 years by those who would naturally have heard of him, he is presumed dead; the one who says he is alive must prove it.	The person who affirms he is alive
Section 112	Section 109	When persons are shown to be partners, landlord and tenant, or principal and agent, the one who says the relationship has ended must prove it.	The person who affirms it has ended
Section 113	Section 110	A person in possession of anything is presumed to be the owner. The one who denies it must prove it.	The person who denies ownership
Section 114	Section 111	Where one party is in a position of active confidence towards the other (such as a guardian, trustee or lawyer), the party in confidence must prove that the transaction was in good faith.	The party in the position of confidence

38. Presumptions (General) and Presumptions as to Certain Documents (B.S.A. Section 2, Sections 78–93; IEA Section 4, Sections 79–90A)

Concept

A presumption is an assumption that the law allows or requires the court to make when a certain fact is proved. It saves the court from asking for proof of every fact.

There are three types in the B.S.A.:

• May presume: the court can assume, but does not have to.
• Shall presume: the court must assume until it is disproved.
• Conclusive proof: the court must assume and cannot allow any disproof.

The first two are rebuttable (they can be disproved). The last is irrebuttable.

Exam answer: what a presumption is

Types of presumption

Type	Section	What the court does	Can it be disproved?
May presume	Section 2	May regard the fact as proved, or may call for proof	Yes (rebuttable)
Shall presume	Section 2	Must regard the fact as proved unless it is disproved	Yes (rebuttable)
Conclusive proof	Section 2	Must regard the fact as proved and cannot allow evidence to disprove it	No (irrebuttable)

Presumptions as to certain documents (Sections 78–93)

The court presumes the genuineness of some documents without asking for proof, for example:

• Certified copies of public documents.
• Documents produced as records of evidence in judicial proceedings.
• Gazettes and newspapers, and official notifications.
• Maps and plans made by the authority of the Government.
• Powers of attorney executed before, and authenticated by, a notary or authority.
• Electronic records (such as messages and agreements in electronic form) and electronic signatures, in certain conditions.
• Documents thirty years old produced from proper custody (and electronic records five years old): the signature and execution can be presumed genuine.

These are mostly may presume or shall presume provisions, and they can be rebutted.

Other groups of presumptions

• Gender-violence presumptions (Sections 117, 118, 120): see Concepts 39–40.
• Presumption of facts (Section 119): see Concept 39.
• Irrebuttable presumption (Section 116): see Concept 41.

39. May Presume (B.S.A. Section 2 and Section 119, also Section 117; IEA Section 4, Section 114, Section 113A)

Concept

"May presume" is a soft presumption. The court has discretion (a free choice). It can accept the fact as proved until it is disproved, or it can ask for proof. The main provision is Section 119 (presumption of facts), which lets the court presume facts that it thinks likely to have happened, having regard to the usual course of nature, human conduct, and public and private business.

Meaning (Section 2)

Whenever it is provided that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or call for proof of it.

Section 119 (IEA Section 114): Presumption of facts

The court may presume any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business.

Examples under Section 119(1)

• (a) A man in possession of stolen goods soon after the theft is either the thief or has received them knowing them to be stolen, unless he explains how he came by them.
• (b) An accomplice is unworthy of credit unless he is corroborated in material particulars.
• (c) A bill of exchange was accepted or endorsed for good consideration.
• (d) A thing or state of things which has been shown to exist within a period shorter than the period in which such things usually cease to exist is still in existence.
• (e) Judicial and official acts have been regularly performed.
• (f) The common course of business has been followed.
• (g) Evidence which could be produced and is not would, if produced, be unfavourable to the person who withholds it (adverse inference).
• (i) When a document creating an obligation is in the hands of the person who owes it, the obligation has been discharged.

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

If a woman commits suicide within seven years of marriage, and her husband or his relative had subjected her to cruelty, the court may presume, having regard to all the other circumstances, that the suicide was abetted by him or them.

Rebuttable

A "may presume" presumption is rebuttable: the accused can disprove it.

40. Shall presume: B.S.A. s.2, ss.118 and 120 (IEA s.4, ss.113B and 114A)

"Shall presume" is a strong presumption. The court must treat the fact as proved unless and until it is disproved.

The law uses it mainly in serious crimes against women, to protect the victim where proof is otherwise very hard to get:

• Dowry death (s.118)
• Absence of consent in certain (aggravated) rape cases (s.120)

Model exam answer

1. Meaning (s.2)

Whenever the Act directs that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved.

2. Section 118 (IEA s.113B): Dowry death

When the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death 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.

Basic facts to be proved by the prosecution:

1. The woman died an unnatural death within seven years of marriage.
2. She was subjected to cruelty or harassment by the husband or his relatives.
3. The cruelty or harassment was for, or in connection with, a demand for dowry.
4. It took place "soon before" her death.

Once these basic facts are proved, the presumption arises. The accused may rebut it.

3. Section 120 (IEA s.114A): Absence of consent in certain rape cases

In a prosecution for rape under s.64(2) B.N.S. (the aggravated forms of rape), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman, if she says in court that she did not consent, the court shall presume that she did not consent.

4. Purpose

These are "reverse onus" presumptions (see topic 34, Reverse onus). Once the basic facts are proved, the accused must disprove the presumed fact.

Provision (B.S.A.)	IEA	Subject	Type of presumption
s.117	s.113A	Abetment of suicide	May presume
s.118	s.113B	Dowry death	Shall presume
s.119	s.114	Presumption of facts	May presume
s.120	s.114A	Absence of consent in certain rape cases	Shall presume

41. Conclusive proof: B.S.A. s.2 and s.116 (IEA s.4 and s.112)

Conclusive proof is the strongest kind of presumption. When the law declares one fact to be conclusive proof of another, the court must regard the other fact as proved and cannot allow any evidence to disprove it. It is irrebuttable (cannot be disproved).

The best example is s.116: a child born during a valid marriage is conclusively presumed to be the husband's legitimate child.

Model exam answer

1. Meaning (s.2)

When one fact is declared by the Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given to disprove it.

2. Section 116 (IEA s.112): Birth during marriage

The fact that a 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,

is conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

3. Purpose

• To protect the child from being called illegitimate (a "bastard").
• To protect the mother's honour.
• To keep families and inheritance stable.

4. Only way to rebut

Proof of non-access, that is, no opportunity for marital contact.

5. DNA and blood tests

• Courts do not order them as a matter of routine, because they can brand a child illegitimate (Goutam Kundu).
• But where the husband has a strong case and the truth is needed, the court may allow a DNA test (Dipanwita Roy).

6. Other examples of conclusive proof

A final judgment in rem (s.35), such as a divorce decree.

Leading cases

Point	Goutam Kundu	Dipanwita Roy
Proceeding	Wife's claim for maintenance	Husband's divorce petition on the ground of adultery
Test sought	Blood test of the child	DNA test of the child
Result	Refused	Allowed
Reason	No real ground; no strong prima facie case of non-access; request only to avoid maintenance	Specific and serious plea; DNA test is a reliable, scientific way to the truth
Refusal to give a sample	No person can be forced to give a blood sample	Court may draw an adverse inference against the person refusing

Module VI: Witnesses, competence and examination

This module deals with who can give evidence, and how witnesses are questioned in court.

42. Who can be a witness; child witness: B.S.A. s.124 (IEA s.118)

A witness is a person who tells the court what he knows about the case. The general rule is that everyone is competent (allowed) to be a witness.

The court refuses only when the person is not able to understand the questions or give sensible answers because of tender years (very young age), extreme old age, disease of the body or mind, or any similar cause.

A child witness is therefore competent if he understands the questions and gives rational answers. There is no fixed minimum age.

Model exam answer

1. Section 124 (IEA s.118): Who may testify

All persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to them, by:

• tender years;
• extreme old age;
• disease, whether 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 to them.

2. Child witness

• There is no minimum age.
• The court tests the child with a few simple preliminary questions and records its satisfaction that he understands the questions and can give rational answers.
• If the child is under 12 years of age and the court finds that he understands the duty to speak the truth but does not understand what an oath is, no oath is needed (Oaths Act, 1969, s.4). The child is still bound to speak the truth, and his evidence remains admissible.

3. Caution about child evidence

• A child can easily be tutored (taught what to say) and may imagine things.
• The court therefore examines the evidence with care and often looks for corroboration, as a rule of prudence (caution) and not as a rule of law.
• If the court finds the child to be a reliable and truthful witness, a conviction can rest on his evidence alone.

4. Competent and compellable

Term	Meaning
Competent	Allowed to give evidence
Compellable	Can be forced to attend and answer

Most competent witnesses are also compellable. Exceptions:

• the privileges in ss.127–134 (for example, communications between spouses);
• an accused cannot be compelled to be a witness against himself (Article 20(3)).

5. Vulnerable witnesses

The law wants vulnerable witnesses to give evidence comfortably, so courts use simple questions, proper interpreters and other help.

43. Dumb witness (witness unable to communicate verbally): B.S.A. s.125 (IEA s.119)

A person who cannot speak (a dumb or mute witness) is still a competent witness. The law allows him to give evidence in any other way in which he can make his answers understood, such as writing or signs.

• The writing or signs must be done in open court.
• The evidence is treated as oral evidence.

Model exam answer

1. Section 125 (IEA s.119)

A witness who is unable to speak (unable to communicate verbally) may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs. But the writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence.

2. Why the rule exists

A disability should not shut out a truthful witness.

3. Important points

• It is treated as oral evidence, so the witness can be cross-examined.
• The proviso to s.125 requires the court to take the help of an interpreter or a special educator in recording the statement, and the statement must be videographed.
• The court must satisfy itself that the witness understands the questions and that the interpretation is correct.
• The value of the evidence is judged by the same tests as for any other witness.
• The heading covers a witness unable to communicate verbally, and not only "dumb" persons. This wider heading was already given to IEA s.119 in 2013, and the B.S.A. keeps it.

44. Hostile witness: B.S.A. s.157 (IEA s.154)

A hostile witness ("hostile" means unfriendly) is a witness called by a party who turns against that party or does not tell the truth.

Normally a party cannot cross-examine his own witness. But s.157 allows the court, in its discretion, to let the party who called the witness put questions to him as if in cross-examination.

The word "hostile" is not used in the section. It is a name that courts give.

Model exam answer

1. Section 157 (IEA s.154): Question by party to his own witness

The court may, in its discretion, permit the person who calls a witness to put to him any question 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.

2. Meaning

A "hostile" or "adverse" witness is one who shows hostility to the party calling him, or does not want to tell the truth.

3. Procedure

• The party asks the court for permission, at the proper time.
• The court decides. It is a matter of the court's discretion, not a right of the party.

4. Effect on the evidence

The evidence of a hostile witness is not completely thrown away. The court can rely on the parts that are reliable and supported by other evidence (Santosh @ Bhure).

5. Earlier statements

The witness can be confronted with his earlier statements (for example, his statement to the police). If the aim is to contradict him with writing, his attention must first be drawn to the relevant parts (s.148†).

6. Caution

The evidence of a hostile witness is treated with care. The court looks for other supporting evidence.

Leading cases

45. Examination-in-chief, cross-examination and re-examination: B.S.A. ss.142–143† (IEA ss.137–138)

When a witness comes to court he is questioned in three stages:

1. Examination-in-chief: questions by the party who called him.
2. Cross-examination: questions by the opposite party.
3. Re-examination: further questions by the party who called him, to clear up matters raised in cross-examination.

This order ensures that the witness first tells his story, then the other side tests it, and then the first side can explain.

Model exam answer

1. The three stages (s.142)

Stage	Conducted by	Purpose	Rules
Examination-in-chief	The party who calls the witness	To bring out facts in favour of the party	Leading questions must not be asked (if the other side objects), except with the court's permission (s.146)
Cross-examination	The adverse party	(a) To test the truth of the witness; (b) to damage his credit (reliability); (c) to bring out facts that help the cross-examiner	Leading questions are allowed. It need not be limited to what the witness said in chief. Questions must be relevant and lawful. The witness may be asked about his previous statements in writing (s.148†)
Re-examination	The party who called the witness, after cross-examination	To explain matters referred to in cross-examination	Limited to explaining. New matter can be brought in only with the court's permission, and the other side may then cross-examine on it

2. Order of examinations (s.143†, IEA s.138)

Witnesses are examined:

1. first in chief;
2. then, if the adverse party so wishes, cross-examined;
3. then, if the party calling him so wishes, re-examined.

3. Related provisions

• A person called only to produce a document does not become a witness, and cannot be cross-examined unless he is called as a witness (s.144†).
• Witnesses to character can be cross-examined and re-examined (s.145†).
• The Judge can put any question he pleases, at any time, to find the truth (s.168).

4. Importance

Cross-examination is called the greatest engine for finding the truth. It also protects the accused's right to a fair trial.

46. Leading questions: B.S.A. s.146 (IEA ss.141–143)

A leading question is a question that suggests the answer which the person asking wants or expects. For example: "You saw Prince hit Farhan, didn't you?"

Such questions can make the witness simply say "yes". So they are not allowed in examination-in-chief and re-examination (if the other side objects), but they are allowed in cross-examination.

Model exam answer

1. Definition (s.146)

Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

2. Rule

Leading questions must not, if objected to by the adverse party, be asked in examination-in-chief or in re-examination, except with the permission of the court.

3. Exceptions

The court shall permit leading questions as to matters which are:

• introductory;
• undisputed; or
• in its opinion, already sufficiently proved.

Leading questions are also allowed, with the court's permission, to a hostile witness.

4. Cross-examination

Leading questions may be asked in cross-examination.

5. Reason for the rule

• In chief, the witness is the friend of the party calling him, so leading questions can put words in his mouth.
• In cross-examination, the witness is the opponent, so the danger is small, and leading questions help to test him.

6. Test

Ask whether the question suggests the answer, or can be answered by a simple "yes" or "no" that the questioner wants.

Stage of examination	Leading questions
Examination-in-chief	Not allowed if objected to, except with the court's permission; must be permitted on introductory, undisputed or already sufficiently proved matters
Cross-examination	Allowed
Re-examination	Not allowed if objected to, except with the court's permission; must be permitted on introductory, undisputed or already sufficiently proved matters
Hostile witness	Allowed with the court's permission

47. Corroboration: B.S.A. s.160 (IEA s.157)

Corroboration means independent evidence that supports the evidence of a witness.

• In general, a court does not need corroboration. No particular number of witnesses is needed to prove a fact (s.139†, IEA s.134), and one reliable witness is enough.
• In certain cases courts, as a rule of prudence, look for corroboration: for an accomplice, a child, and a doubtful dying declaration.
• Section 160 also allows a witness's former statement, made at or about the time of the event, to be proved to corroborate his later testimony.

Model exam answer

1. Meaning

Independent and reliable evidence that supports the testimony of a witness in a material (important) point and connects the accused with the crime.

2. General rule

No particular number of witnesses is required to prove any fact (s.139†). The court looks at the quality of the witnesses, not their number.

3. Where corroboration is needed or advised

Situation	Provision	Position
Accomplice	s.138 with s.119(1)(b)	Corroboration looked for (see topic 30, Accomplice evidence)
Co-accused's confession	s.24	Only lends assurance to other evidence
Child witness	s.124	As a rule of prudence (see topic 42 above)
Dying declaration	s.26(a)	Not compulsory if it is true and voluntary, but the court looks for support if it is doubtful (see topic 17, Dying declaration)

4. Section 160 (IEA s.157): Former statements of a witness to corroborate later testimony

To corroborate the testimony of a witness, any former statement made by that witness relating to the same fact may be proved, if it was made:

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

5. Limits

• The corroborating evidence must be independent.
• A person's own later repetition of his story cannot corroborate him.
• An accomplice cannot corroborate himself (Haroon Haji Abdulla).

Last-minute revision: key definitions and section map

A. Ten one-line definitions to write first

1. Fact: anything that can be perceived by the senses, or a mental condition of which a person is conscious (s.2).
2. Fact in issue: the fact that decides a right, liability or disability claimed and denied in the case (s.2).
3. Relevant fact: a fact connected with another fact in a way the Act recognises (s.2, s.3).
4. Relevant vs admissible: relevant means logically connected; admissible means the law allows the court to receive it. All admissible facts are relevant; not all relevant facts are admissible.
5. Proved / disproved / not proved:
   • Proved: the court believes the fact exists, or considers it so probable that a prudent man would act on it.
   • Disproved: the court believes it does not exist.
   • Not proved: neither proved nor disproved.
6. May presume / shall presume / conclusive proof: see the table below.
7. Admission (s.15): a statement that suggests an inference as to a fact in issue or relevant fact, made by the persons the Act names. Confession: an accused's statement admitting the offence.
8. Dying declaration (s.26(a)): a statement of a dead person about the cause of his death or the circumstances of the transaction that led to it.
9. Estoppel (s.121): a person who made another believe a thing and act on it cannot later deny it.
10. Corroboration: independent evidence that supports a witness on a material point.

Term	What the court does
May presume	May assume the fact
Shall presume	Must assume the fact unless it is disproved
Conclusive proof	Must assume the fact and cannot allow it to be disproved

B. Section map: B.S.A. and IEA

Topic	B.S.A.	IEA
Judge decides admissibility / Judge's questions	141 / 168	136 / 165
Relevancy of facts; evidence on facts in issue	3	5
Res gestae	4	6
Occasion, cause, effect	5†	7
Motive, preparation, conduct	6	8
Introductory, explanatory facts; identity	7	9
Conspiracy	8	10
Facts not otherwise relevant (alibi)	9	11
State of mind	12–13	14–15
Admissions	15–21, 25	17–23, 31
Confessions	22–24	24–30
Dying declaration	26(a)	32(1)
Judgments	34–38	40–44
Expert opinion / Handwriting / Custom, usage / Relationship	39 / 41 / 42–43 / 44	45 / 47 / 48–49 / 50
Character	46–50	52–55
Facts not needing proof	51–53	56–58
Oral and documentary evidence	54–77	59–78
Electronic evidence	61–63	65A–65B
Exclusion of oral by documentary evidence	94–95	91–92
Burden of proof (general)	104–107	101–104
Exceptions / Facts especially within knowledge	108 / 109	105 / 106
Particular burdens	110–114	107–111
Conclusive proof (legitimacy)	116	112
Abetment of suicide / Dowry death / Absence of consent	117 / 118 / 120	113A / 113B / 114A
Presumption of facts	119	114
Presumptions as to documents	78–93	79–90A
Estoppel	121–123	115–117
Privileged communications and affairs of State	127–134	121–129
Accomplice	138 with 119(1)(b)	133 with 114(b)
Child witness / Dumb witness	124 / 125	118 / 119
Examination-in-chief, cross-examination, re-examination, leading questions	142–149	137–146
Hostile witness	157	154
Corroboration (former statements)	160	157

Last-minute revision: case cheat-sheet

The leading cases of the subject, each reduced to a one-line rule for quick revision. The cases are grouped by topic and kept in their order of study.

Scope of the Act and relevant facts

Case	One-line rule
Dhakeswari Cotton Mills (1955)	Tribunals are not bound by the strict rules of evidence, but natural justice always applies.
R.K. Anand (2009)	Sting recordings were accepted as evidence; contempt proceedings are quasi-criminal.
Mukesh & Others (2017, Nirbhaya case)	Connected facts, dying declarations, DNA, electronic evidence and conduct, taken together, proved guilt.
R.M. Malkani (1973)	A tape recording is admissible if it is relevant, the voice is identified, and it has not been tampered with.
Jayantibhai Bhenkerbhai (2002)	A proved alibi makes the accused's presence at the crime highly improbable; the result is acquittal.

Conspiracy

Case	One-line rule
Mirza Akbar (1940, Privy Council)	A conspirator's statement made after the conspiracy has ended is not covered by Section 10 IEA (Section 8 B.S.A.).
Badri Rai (1958)	Acts and words of conspirators done or spoken for the common plan bind all of them.
Mohd. Khalid (2002)	Section 10 IEA (Section 8 B.S.A.) covers only statements made during the conspiracy, not statements made after arrest.

Admissions and confessions

Case	One-line rule
Bishwanath Prasad (1974)	A party's admission is substantive evidence, but it is not conclusive.
Aghnoo Nagesia (1966)	A confessional FIR made to the police cannot be used against the accused.
Pulukuri Kottaya (1947, Privy Council)	Under Section 27 IEA (now the proviso to Section 23 B.S.A.), only the part of the information that distinctly leads to the discovery is admissible.

Self-incrimination: Article 20(3)

Case	One-line rule
Veera Ibrahim (1976)	Article 20(3) applies only after a formal accusation; a voluntary statement made to Customs is valid.
Kathi Kalu Oghad (1961)	Giving specimen handwriting or thumb impressions is not "testimony".
Selvi (2010)	Forced narco-analysis, polygraph and brain-mapping tests violate Articles 20(3) and 21.

Dying declarations

Case	One-line rule
Khushal Rao (1958)	A dying declaration that is true and voluntary needs no corroboration.
Laxman (2002)	A doctor's certificate is not compulsory for a dying declaration.
Sudhakar (2000)	A dying declaration must have a close link with the death.
Patel Hiralal Joitaram (2002)	A dying declaration stands even after a small slip that was corrected.

Account books, handwriting and hostile witnesses

Case	One-line rule
V.C. Shukla (1998)	Entries in account books alone cannot fix liability.
Ram Narain (1973)	The opinion of a handwriting expert is weak evidence; a conviction is safe if the court also compares the writing itself.
Santosh @ Bhure (2023)	(1) The corroborated part of a hostile witness's evidence is usable; (2) handwriting opinion needs care; (3) a false explanation is only an extra link.

Estoppel

Case	One-line rule
Sanatan Gauda (1990)	The University was estopped from withholding the result.
R.S. Maddanappa (1965)	There is no estoppel if the other party knew the true facts.

Privileged communications and State privilege

Case	One-line rule
M.C. Verghese (1970)	Section 122 IEA bars the spouse from disclosing; it does not bar other evidence.
State of U.P. v. Raj Narain (1975)	The court decides finally whether the State's claim of privilege is valid.

Documents, electronic records and witnesses

Case	One-line rule
Preeti Jain (2016)	The original recording device is primary evidence; family courts are not bound by Section 122 IEA.
Madhuri Patil (1995)	Old school records are strong evidence.
Ajai @ Ajju (2023)	The quality, not the quantity, of witnesses matters.
Arjun Panditrao (2020)	The Section 65B(4) IEA certificate (now Section 63 B.S.A.) is a must for copies; it is not needed for the original device.
Prafulla Desai (2003)	Evidence recorded by video conference is valid.

Accomplices, approvers and police witnesses

Case	One-line rule
Bhuboni Sahu (1949, Privy Council)	A co-accused's confession is weak evidence; an accomplice needs independent corroboration.
Basawan Singh (1958)	Trap witnesses are not accomplices, but their evidence is tested with care.
Haroon Haji Abdulla (1968)	An accomplice cannot corroborate himself.
Ravinder Singh (1975)	Approver: his evidence must first be reliable, and then be corroborated on material points.
Mukesh Singh (2020, Constitution Bench)	The fact that the informant is also the investigator does not automatically spoil an NDPS trial.

Last seen evidence

Case	One-line rule
Dinesh Kumar (2023)	"Last seen" evidence loses force when the time gap is long; Section 106 IEA / Section 109 B.S.A. cannot be used to fill the gaps.
Bodhraj (2002)	"Last seen" evidence needs a short time gap; Section 27 IEA (now the proviso to Section 23 B.S.A.) needs proof of the exact information given.

Legitimacy and DNA tests

Case	One-line rule
Goutam Kundu (1993)	No blood test is ordered as a matter of routine; the presumption under Section 112 IEA is rebutted only by proof of non-access.
Dipanwita Roy (2015)	A DNA test was allowed where the husband had a strong case.

Examination of witnesses

Case	One-line rule
Laloo Prasad (2002)	The court decides whether to permit a party to cross-examine its own witness; the permission must be asked for at the right time.

B.S.A. vs IEA: the key changes

The changes below are those confirmed from the text of the Act and from commentary. The list is not exhaustive.

Area	Change made by the B.S.A.	B.S.A. section
Electronic and digital records	Electronic and digital records are expressly "documents"; "evidence" includes statements given electronically.	Section 2
Electronic records as primary evidence	Electronic records are recognised as primary evidence.	Section 57
Admissibility of electronic records	General admissibility of electronic records.	Section 61
Certificate for electronic records	A standard certificate in the Schedule, with Part A (filled by the party) and Part B (filled by the expert), including the hash value.	Section 63
Experts	Experts in "any other field" are covered; the opinion of the Examiner of Electronic Evidence is also provided for.	Section 39; Section 39(2)
Confession	The word "coercion" is added to inducement, threat or promise.	Section 22
Accomplice	Section 138 now speaks of "corroborated" testimony; Section 133 IEA said "uncorroborated".	Section 138
Presumptions (with the accomplice rule)	Section 114 IEA is now split into two sub-sections: Section 119(1) keeps the presumptions as Illustrations (a) to (i), and the closing paragraph on the facts the Court must also consider becomes Section 119(2).	Section 119(1) and (2)
Secondary evidence	Widened to include oral and written admissions and the evidence of a skilled examiner of documents.	Section 58
Re-numbering	Almost every section has moved to a new number; Section 1 (short title and commencement) is still Section 1.	Whole Act

Re-numbering: examples to quote

Subject	IEA	B.S.A.
Certificate for electronic records	Section 65B	Section 63
Dying declaration	Section 32(1)	Section 26(a)
Discovery of a fact from information given by the accused	Section 27	Proviso to Section 23

Exam-day habits

1. Open with the definition and the section number. Write the B.S.A. section first and the IEA section in brackets.
2. Write in numbered points. Where possible, add one case with its rule in a single line.
3. Give a short example with named persons (for example, Prince and Farhan) to show that the rule is understood.
4. End with a one-line conclusion.
5. In problem questions, work through four questions in order:
   1. Is it relevant?
   2. Is it admissible?
   3. Who must prove it?
   4. Is there a presumption?