Bharatiya Sakshya Adhiniyam, 2023 (BSA)

1. Fact in Issue; Relevant Facts; Document

Sections Covered: Sections 2(7), 3, 4, and 17–21 (BSA, 2023)

Fact in Issue:
A fact in issue refers to those facts that are directly in question in a legal proceeding. They form the foundation of the dispute between parties. According to Section 2(7) of the Bharatiya Sakshya Adhiniyam, 2023, “facts in issue” are those facts, existence or non-existence of which determines the rights, liabilities, or legal relations of the parties.

Example:
In a murder case, whether the accused caused the death of the victim is a fact in issue.

Relevant Facts:
As per Section 3, relevant facts are those facts that are so connected with a fact in issue as to make their existence or non-existence probable. These facts help the court form conclusions regarding facts in issue.

Example:
If A is accused of murdering B, the fact that A purchased a knife on the same day may be a relevant fact.

Document (Section 4):
A document means any matter expressed or described upon any substance by means of letters, figures, marks, or electronic record intended to be used for recording that matter.
Examples include written contracts, digital messages, emails, or CCTV footage.

Case Law:

• R. v. Prabhakarrao (1975) – established that relevant facts are those connected by a logical nexus to facts in issue.
• Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) – digital and printed materials are both valid documents if they record matter intelligibly.

2. Evidence: Proved; Disproved; Not Proved

Sections Covered: Sections 2(9), 56, 57

Proved:
A fact is proved when, after considering the evidence, the court either believes it to exist or considers its existence so probable that a prudent person would act upon its supposition.

Disproved:
A fact is disproved when the court either believes it does not exist or finds its non-existence so probable that a prudent man would act upon the supposition that it does not exist.

Not Proved:
When a fact is neither proved nor disproved, it is said to be not proved.

Example:
If a witness says he saw A committing murder, and another witness says A was in another city, the court must decide which is more believable.

Case Law:

• State of U.P. v. Krishna Gopal (1988): Court held that proof must be beyond reasonable doubt in criminal cases.
• Narayan Govind Gavate v. State of Maharashtra (1977): distinguished between “proved” and “not proved” through the degree of belief.

3. May Presume, Shall Presume, and Conclusive Proof

Sections Covered: Sections 4–6

May Presume:
The court may presume a fact — it is discretionary. The court can either presume or call for further proof.

Shall Presume:
The court shall presume — a mandatory presumption unless disproved by evidence.

Conclusive Proof:
When one fact is declared by law to be conclusive proof of another, the court must regard it as proved and cannot allow any evidence to disprove it.

Example:

• “May Presume”: A letter duly posted is presumed to be delivered.
• “Shall Presume”: Possession of stolen goods soon after theft → presumption of guilt.
• “Conclusive Proof”: A certificate of marriage registration is conclusive of the marriage.

Case Law:

• State of Madras v. Vaidyanatha Iyer (1958): clarified presumptions of bribery.
• M.S. Narayana Menon v. State of Kerala (2006): cheque bounce presumptions under Section 118 N.I. Act illustrate “shall presume.”

4. Circumstantial Evidence

Definition:
Evidence that indirectly proves a fact by establishing circumstances leading to an inference of the fact in issue.

Principle:
Circumstantial evidence must form a complete chain pointing towards the guilt of the accused and excluding every hypothesis of innocence.

Conditions (as per Hanumant v. State of M.P., 1952):

1. Circumstances must be fully established.
2. They must point only to the guilt of the accused.
3. They must form a complete chain of evidence.
4. They must exclude every possible hypothesis except guilt.

Example:
A is seen buying poison; B dies of poisoning soon after; A’s fingerprints are on the bottle.

Case Law:

• Sharad Birdhichand Sarda v. State of Maharashtra (1984): Five golden principles for conviction on circumstantial evidence.
• Trimukh Maroti Kirkan v. State of Maharashtra (2006): Direct proof not essential if circumstantial chain is strong.

5. Relevancy and Admissibility; Res Gestae

Sections Covered: Sections 6–8 (Res Gestae), 3, 136

Relevancy:
A fact is relevant if it is logically connected to a fact in issue.

Admissibility:
A fact is admissible if the law permits it to be used as evidence.

All admissible facts are relevant, but not all relevant facts are admissible.

Res Gestae (Section 6):
Acts, declarations, or circumstances forming part of the same transaction are relevant, whether they occurred at the same time or shortly after/before.

Example:
If a victim shouts “A stabbed me!” immediately after being attacked, this is part of res gestae.

Case Law:

• Ratten v. R (1971): phone call made immediately before murder held part of res gestae.
• Sukhar v. State of U.P. (1999): statements made immediately after the incident were admissible.

6. Admission; Confession

Sections Covered: Sections 15–26

Admission:
A statement, oral or written, suggesting any inference as to a fact in issue or relevant fact, made by a party to the proceeding.

Confession:
A voluntary admission of guilt by an accused in a criminal case.

Difference:

• Admission applies to both civil and criminal cases.
• Confession applies only to criminal cases.
• Admission may be used in favor or against a party; confession always against the maker.

Admissibility:

• Confession to police officer → inadmissible (Section 24).
• Confession in police custody → inadmissible unless made before Magistrate (Section 25).

Case Law:

• Pakala Narayana Swami v. Emperor (1939): defined “confession.”
• State of Punjab v. Barkat Ram (1962): confession to a customs officer not valid.
• Kartar Singh v. State of Punjab (1994): confession under TADA valid only with safeguards.

7. Dying Declaration

Sections Covered: Section 32(1)

Meaning:
A statement made by a person as to the cause of his death or circumstances leading to it, when the cause of death is in question.

Principle:
Nemo moriturus praesumitur mentiri – a dying man will not lie.

Admissibility:

• Can be oral, written, or in gestures.
• Need not be recorded by Magistrate, but preferable.

Case Law:

• Khushal Rao v. State of Bombay (1958): laid down principles for reliability of dying declarations.
• Laxman v. State of Maharashtra (2002): no need for medical certificate if statement appears voluntary and true.

8. Relevancy of Judgments

Sections Covered: Sections 35–40

Types:

1. Judgments in rem – affect the world at large (e.g., divorce decree, probate).
2. Judgments in personam – bind only the parties involved.

Relevant Judgments:

• When judgment relates to matters of public nature.
• When judgment is final and pronounced by a competent court.

Case Law:

• Satyendra Nath v. Nilima (1978): final judgment by competent court relevant under this section.
• Sheoparsan Singh v. Ramanandan Prasad Narayan Singh (1916): principle of res judicata and finality of judgments.

9. Opinion of Experts; Opinion of Third Persons

Sections Covered: Sections 39–45 (BSA, 2023)

Expert Opinion:
An expert is a person specially skilled in a particular field such as science, handwriting, fingerprint analysis, or medicine. The court relies on experts when the matter requires special knowledge beyond ordinary understanding.

When Expert Opinion is Relevant:
Under Section 39, the opinions of experts are relevant in the following cases:

1. Foreign law.
2. Science or art.
4. Finger impressions.
5. Electronic evidence (e.g., cyber forensics).

Opinion of Third Persons:
Opinions of persons other than experts are generally irrelevant unless they fall under exceptions (e.g., identity, handwriting recognition by acquaintances, or reputation in the community).

Illustration:
If the question is whether a document was written by A, and an expert compares the handwriting with A’s admitted writing, his opinion is relevant.

Case Law:

• State of H.P. v. Jai Lal (1999): Expert evidence is advisory and not conclusive.
• Murari Lal v. State of M.P. (1980): Handwriting expert’s opinion must be corroborated.
• Gopal Reddy v. State of A.P. (1996): Expert opinion must be based on proper scientific analysis.

10. Conduct and Character of Parties

Sections Covered: Sections 46–51

Conduct:
Conduct refers to the behavior of a person before, during, or after an incident which is relevant in determining guilt or innocence.

Relevant Conduct:

• When influenced by any fact in issue or relevant fact.
• When it influences any fact in issue or relevant fact.

Character:
Character includes both disposition (mental and moral qualities) and reputation (public perception).

In Criminal Cases:

• Character of the accused is relevant only if the accused himself introduces it.
• The prosecution cannot use bad character to prove guilt unless character itself is a fact in issue.

In Civil Cases:
Character is generally irrelevant unless the nature of the case makes it material (e.g., defamation or child custody).

Case Law:

• Kali Ram v. State of H.P. (1973): Good character of accused may raise presumption of innocence.
• State of M.P. v. Bala @ Bal Kishan (2005): Conduct immediately after crime (like absconding) may be relevant but not conclusive.

11. Judicial Notice

Sections Covered: Sections 56–58

Meaning:
Judicial notice means recognition of certain facts by the court without formal proof because they are so well known that evidence is unnecessary.

Facts Judicially Noticed:

• Laws in force in India.
• Public festivals, territorial divisions, official seals.
• Matters of public history or geographical facts.
• Court records and governmental notifications.

Discretion of Court:
The court may refuse to take judicial notice unless proper reference material (like official gazette) is produced.

Case Law:

• State of Bihar v. Radha Krishna Singh (1983): Courts cannot take judicial notice of private facts.
• Onkar Nath v. Delhi Administration (1977): Courts can take judicial notice of prevalent social customs.

12. Estoppel

Sections Covered: Sections 115–117 (old Act) → now Sections 80–82 (BSA 2023)

Meaning:
Estoppel prevents a person from denying the truth of a statement he has already made, when another has acted upon it. It’s a rule of equity ensuring consistency and fairness.

Types of Estoppel:

1. By Record: Arising from judicial decisions.
2. By Deed: Arising from formal written documents.
3. By Conduct: Arising from representation or conduct.

Essential Conditions:

1. Representation made by one person.
2. Reliance by another person.
3. Change of position due to reliance.

Example:
A tells B that a property belongs to him, and B buys it relying on that. A cannot later deny ownership.

Case Law:

• Pickard v. Sears (1837): Classic case establishing principle of estoppel by conduct.
• L. Sreedhar v. K.M. Munireddy (2003): No one can approbate and reprobate simultaneously.
• Union of India v. Indo-Afghan Agencies (1968): Government also bound by promissory estoppel.

13. Means of Proof: Oral and Documentary Evidence

Sections Covered: Sections 59–73

Oral Evidence (Sections 59–60):

Oral evidence means statements made by witnesses in court about facts which they have personally seen, heard, or perceived.
Principle: Oral evidence must, in all cases, be direct.

Advantages: Immediate and direct form of evidence.
Limitations: Human memory and perception can be faulty.

Documentary Evidence (Sections 61–73):

Documentary evidence means any information recorded on any medium—paper, electronic, or otherwise—that can prove a fact.

Types:

1. Primary Evidence: The original document itself.
2. Secondary Evidence: Copies or oral accounts of the content of documents.

Public and Private Documents:

• Public Documents (Section 74): Records of sovereign, official acts, and judicial proceedings.
• Private Documents (Section 75): All other documents.

Exclusion of Oral by Documentary Evidence:

When a contract or transaction is reduced to writing, oral evidence cannot contradict, vary, or add to it (Section 94).

Case Law:

• Tomaso Bruno v. State of U.P. (2015): Electronic records are also documentary evidence.
• Roop Kumar v. Mohan Thedani (2003): Oral evidence cannot contradict written terms.

14. Burden of Proof

Sections Covered: Sections 101–114 (BSA 2023)

Meaning:
Burden of proof means the obligation on a party to prove the facts asserted by him in a case.

Two Aspects:

1. Legal Burden: Always lies on the party who asserts the affirmative.
2. Evidential Burden: The burden of producing evidence at a particular stage.

Principles:

• “He who asserts must prove.”
• In criminal cases, burden lies on prosecution; in civil, on plaintiff.

Shifting of Burden:
Burden may shift based on presumptions or evidence produced.

Special Cases:

• Section 106: Facts especially within knowledge of a person must be proved by him.
• Section 113A–B: Presumptions in dowry death and abetment of suicide.

Case Law:

• Woolmington v. Director of Public Prosecutions (1935): Golden rule — prosecution must prove guilt beyond reasonable doubt.
• M. Nanavati v. State of Maharashtra (1962): Once prosecution proves act, burden shifts to accused to prove exceptions.

15. Witnesses: Competency, Compellability, Examination, and Privileges

Sections Covered: Sections 118–166 (old Act) → Sections 83–122 (BSA 2023)

Competency of Witnesses (Section 83):

All persons are competent to testify unless they are incapable of understanding or communicating the truth due to age, illness, or mental incapacity.

Examples:

• A child may testify if he understands the obligation of speaking truth.
• A lunatic can testify during lucid intervals.

Compellability:

A competent witness may be compelled to testify unless protected by privilege (e.g., spouses in certain cases, state secrets, professional communication).

Examination of Witnesses (Sections 135–166 old Act → 97–122 BSA):

1. Examination-in-chief: Conducted by the party who calls the witness.
2. Cross-examination: Conducted by the opposite party to test veracity.
3. Re-examination: Clarifies matters raised in cross-examination.

Privileges:

1. State Privilege (Section 123 old → 107 BSA): Certain unpublished official records may be withheld for public interest.
2. Private Privilege:
   • Communication during marriage (Section 122 old → 104 BSA).
   • Professional communications between advocate and client (Section 126 old → 105 BSA).

Case Law:

• State of Punjab v. Gurmit Singh (1996): Cross-examination should not be oppressive.
• Queen Empress v. Abdullah (1885): Child witness testimony admissible if found reliable.
• v. Azam Khan (2000): Privileged communication cannot be disclosed without consent.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023), replaces the century-old Indian Evidence Act, 1872, introducing modern rules of evidence that align with today’s digital era. This comprehensive guide provides topic-wise notes, important sections, examples, and landmark case laws to help LLB students, judiciary aspirants, and legal professionals master the new law of evidence. Covering key concepts such as facts in issue, relevancy, presumptions, dying declaration, expert opinion, and burden of proof, this article explains every major provision in simple and exam-oriented language. Whether you’re preparing for LLB, CLAT, or Judicial Services, these Bharatiya Sakshya Adhiniyam 2023 notes are your one-stop resource for conceptual clarity and success.

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