Law for High Court Section Officer · Chapter 5

Evidence: The Bharatiya Sakshya Adhiniyam (Law of Evidence)

What to remember

The Bharatiya Sakshya Adhiniyam (BSA), 2023 replaced the Indian Evidence Act, 1872 from 1 July 2024. The BSA has 170 sections in 12 chapters. The older Act had 167 sections.
Evidence law decides what facts a court may look at (relevancy), who must prove them (burden of proof) and how they are proved (oral and documentary evidence).
The biggest change is electronic evidence. Electronic and digital records are now documents. Their proof needs a certificate with a standard format (the old Section 65B, now Section 63).

Basic ideas and terms

The law of evidence is a procedural law. It applies to judicial proceedings in or before courts. It does not apply to affidavits or to arbitration proceedings.

Term	Meaning
Fact	Anything that can be perceived by the senses, or a mental condition of which a person is conscious
Fact in issue	A fact on which the existence or non-existence of a right or liability depends
Relevant fact	A fact connected to a fact in issue in the ways the Act lists
Evidence	Statements of witnesses (including by electronic means) and documents (including electronic records)
Proved	The court believes the fact exists, or a prudent person would act on it
Disproved	The court believes it does not exist
Not proved	Neither proved nor disproved
May presume	The court may regard the fact as proved unless disproved
Shall presume	The court must regard the fact as proved unless disproved
Conclusive proof	The court must regard the fact as proved and cannot allow disproof

Documents now include electronic and digital records, such as emails, server logs, messages on smartphones and laptops, website content, location data and voice mail. Oral evidence includes statements given by electronic means, for example through video conferencing, if the court allows.

Relevancy of facts

Relevant facts are those that the Act itself says are relevant. A fact that is relevant is not necessarily admissible if another rule bars it.

1. Res gestae (facts forming part of the same transaction). Facts so connected with a fact in issue that they form part of the same transaction are relevant, even if they happened at different times and places.
2. Motive, preparation and conduct. Facts showing motive, preparation or conduct towards a fact in issue are relevant. Conduct after the event is also relevant.
3. Facts that make other facts probable or improbable and that show a system or course of conduct.
4. Admissions. An admission is a statement (oral, documentary or electronic) that suggests an inference about a fact in issue, made by a party or his representative. Admissions are relevant against the maker, but they are not conclusive proof. They may work as estoppel. An admission made by a party in a civil case is relevant.
5. Confessions. A confession is an admission made by the accused in a criminal case. The rules are:
A confession caused by inducement, threat or promise from a person in authority is irrelevant.
A confession to a police officer cannot be proved against the accused.
A confession made while in police custody is not provable unless made in the immediate presence of a Magistrate.
So much of the information given by an accused in police custody as leads to the discovery of a fact is provable, whether or not it amounts to a confession.
A confession of a co-accused affecting himself and others can be taken into consideration only with other evidence; it is not substantive evidence and is a weak support.
6. Statements by persons who cannot be called as witnesses. This includes a dying declaration (statement about the cause of death or circumstances of the transaction that resulted in death), statements made in the course of business, statements against the maker's interest, and statements about public rights or customs. A dying declaration is relevant even if the person was not expecting death when he made it. No oath is needed. A reliable dying declaration alone can support conviction, but courts check that it was voluntary and the person was fit to give it.
7. Statements in earlier proceedings are relevant for proving facts they state in later proceedings, if the witness is dead, cannot be found, or cannot be produced without unreasonable delay.
8. Judgments. The existence of a judgment is relevant for deciding whether a case can be tried again (res judicata) and other limited purposes. Probate, matrimonial, admiralty and insolvency judgments are judgments in rem (against all). Judgments are relevant only when the Act allows.
9. Opinions of experts. Opinions of experts on foreign law, science, art, handwriting, finger impressions and other specialised fields are relevant. The court is not bound by expert opinion and treats it as advice. Opinions of ordinary persons are relevant on handwriting they know, on usage, customs and the like.
10. Character. In civil cases character is relevant only if it affects damages. In criminal cases, the accused's good character is relevant. His bad character is not relevant, unless he himself has offered evidence of good character.

Facts that need not be proved

Facts of which the court takes judicial notice (such as laws in force in India, the course of nature, the seals of courts, the extent of territory of India) need no proof. Facts admitted by parties during hearing need not be proved, though the court may still require proof. Oral evidence must be direct: the person who saw, heard or perceived the fact must be the witness. Hearsay is generally excluded.

Burden of proof and presumptions

The burden of proof lies on the person who would fail if no evidence at all were given on either side. Whoever wants the court to believe a fact must prove it. When a fact is especially within the knowledge of a person, the burden of proving it lies on him. When an accused claims a general exception, the burden of proving that exception is on him.

Presumption	Effect
Child born during a valid marriage, or within 280 days after its end while the mother stays unmarried	Conclusive proof of legitimacy
Dowry death	Court shall presume dowry death when the woman was subjected to cruelty soon before death over dowry
Abetment of suicide by a married woman within seven years of marriage	Court may presume abetment, having regard to the circumstances
Rape cases when sexual intercourse is proved and the woman says she did not consent	Court shall presume absence of consent
Documents thirty years old, produced from proper custody	Court may presume signature and execution are genuine
Missing person not heard of for seven years	Presumed dead; burden is on the person who says he is alive

Estoppel stops a person from denying what he earlier made another person believe. A tenant cannot deny his landlord's title during the tenancy. A licensee cannot deny the licensor's title. A person who made a representation on which another person acted cannot later deny it. Estoppel arises from the party's own conduct and acts as a rule of evidence.

Oral and documentary evidence

Oral evidence must be direct and given by the witness who saw, heard or perceived the fact. For opinion, the person who holds the opinion gives it.

Documentary evidence: the contents of a document must be proved by primary evidence, that is, the document itself. Primary evidence includes the original document, its counterparts executed together, and, for electronic records, the original record and its prescribed copies and outputs where created together. Secondary evidence includes certified copies, copies made from the original by mechanical processes, copies compared with the original, counterparts against the party who did not execute them, and oral accounts of the contents by a person who has seen the document. Secondary evidence is allowed when the original is in the hands of the opposite party who does not produce it after notice, when it is lost or destroyed, when it cannot be easily moved, or when it is a public document.

Electronic records. A copy or output of an electronic record is admissible if it is accompanied by the certificate in the form given in the Schedule, signed by the person in charge of the device and by an expert. The certificate confirms how the record was produced and that the device was working properly. This replaced the old Section 65B.

Public and private documents. Public documents are acts and records of public bodies, courts and public officers, and public records kept of private documents. All other documents are private. Certified copies of public documents are accepted as proof.

Exclusion of oral by documentary evidence. When a contract, grant or other disposition of property has been reduced to writing, no evidence except the document can be given of its terms. Exceptions include fraud, intimidation, illegality, want of due execution, want of capacity and failure of consideration. Oral evidence cannot be used to contradict, vary, add to or subtract from the written terms, except as the proviso allows. Wills and documents required by law to be attested need at least one attesting witness called to prove execution.

Witnesses and examination

All persons are competent to testify unless the court finds they cannot understand the questions or give rational answers because of tender age, extreme old age, disease or a similar reason. A person who cannot speak can give evidence by writing or signs. The accused has a protected position and cannot be compelled to be a witness against himself.

Privileged communications:

Communications between spouses during marriage are protected.
Professional communications between an advocate and client are protected.
A judge or magistrate cannot be compelled to answer about his conduct in court.
Unpublished official records relating to affairs of State cannot be given in evidence without permission of the head of the department.

Accomplice. An accomplice is a competent witness against the other accused. Conviction based on an accomplice's uncorroborated testimony is legal, but as a rule of prudence courts look for corroboration. No particular number of witnesses is needed to prove a fact.

Order of examination: examination-in-chief by the party calling the witness, cross-examination by the opposite party, and re-examination by the first party, limited to explaining matters arising in cross. Leading questions (which suggest the answer) are not allowed in examination-in-chief or re-examination without the court's permission, but are allowed in cross-examination. A hostile witness is one who turns against the party calling him. With the court's permission the party may cross-examine his own witness. A witness can refresh memory from a document made at the time or soon afterwards. A judge may put any question he likes at any stage to find relevant facts.

Exam traps

Evidence is not the same as proof. Evidence is what is presented; proof is the result of believing it.
A confession to a police officer is not provable; a confession before a Magistrate can be.
Discovery of a fact on information from an accused in custody is provable, even if the statement is a confession.
An admission is not conclusive; estoppel can make it binding.
A dying declaration does not need an oath, and the declarant need not expect death.
Burden of proof stays on the prosecution; it shifts only in the cases the Act lists.
Primary evidence is the original; secondary evidence is permitted only in listed cases.
Hearsay is generally not allowed; leading questions are allowed in cross-examination.
The Act of 2023 has 170 sections; the old Act had 167. Do not confuse them.

One-liners

1. The BSA came into force on 1 July 2024.
2. The BSA has 170 sections in 12 chapters.
3. The BSA replaced the Indian Evidence Act, 1872.
4. Electronic records are documents under the BSA.
5. The certificate for electronic records (earlier Section 65B) is now Section 63.
6. A confession to a police officer cannot be proved against the accused.
7. Information leading to discovery of a fact is provable even from a person in police custody.
8. A dying declaration is relevant about the cause of death.
9. The burden of proof lies on the person who asserts a fact.
10. Presumption of legitimacy: birth within 280 days after the end of a marriage.
11. Leading questions are allowed in cross-examination.
12. Primary evidence means the document itself.

Practice questions

The Bharatiya Sakshya Adhiniyam replaced
1. the Code of Civil Procedure, 1908
2. the Indian Penal Code, 1860
3. the Indian Evidence Act, 1872
4. the Indian Contract Act, 1872
Answer
C. the Indian Evidence Act, 1872
BSA 2023 replaced the Evidence Act of 1872.
How many sections does the Bharatiya Sakshya Adhiniyam contain?
1. 358
2. 167
3. 511
4. 170
Answer
D. 170
BSA has 170 sections in 12 chapters; the old Act had 167.
The BSA came into force on
1. 1 January 2025
2. 1 July 2024
3. 26 January 2023
4. 2 October 2023
Answer
B. 1 July 2024
BSA came into force along with BNS and BNSS on 1 July 2024.
Under the BSA, a document includes
1. only paper writings
2. only printed books
3. only signed letters
4. electronic and digital records
Answer
D. electronic and digital records
The definition of document was widened to include electronic and digital records such as emails and server logs.
A certificate is needed for admitting an electronic record. The older Section 65B corresponds to which BSA section?
1. Section 100
2. Section 63
3. Section 3
4. Section 17
Answer
B. Section 63
The certificate provision for electronic records is now Section 63.
A confession made to a police officer
1. is admissible if made in a police station
2. is admissible if signed
3. cannot be proved against the accused
4. is always admissible
Answer
C. cannot be proved against the accused
A confession to a police officer is not provable against the accused.
Which statement made by an accused in police custody is provable?
1. A full confession of guilt
2. A statement of his motive only
3. Information that leads to discovery of a fact
4. An admission about his past life
Answer
C. Information that leads to discovery of a fact
The discovery proviso allows only that part of the information that distinctly relates to the fact discovered.
A dying declaration is relevant when it relates to
1. the declarant's property
2. the character of the accused only
3. a civil contract
4. the cause of the declarant's death or circumstances of the transaction resulting in death
Answer
D. the cause of the declarant's death or circumstances of the transaction resulting in death
A dying declaration is a statement about the cause of death or circumstances leading to it.
In Indian evidence law, a dying declaration
1. must be made on oath
2. need not be made on oath
3. must be recorded by a Judge only
4. must be made after the declarant has expected death for a week
Answer
B. need not be made on oath
No oath is needed, and the declarant need not expect death.
The burden of proof ordinarily lies on
1. the court
2. the person who is poorer
3. the person who asserts a fact and would fail if no evidence were given
4. the witness
Answer
C. the person who asserts a fact and would fail if no evidence were given
The burden is on the party who would fail if no evidence were given on either side.
A person who claims a general exception to an offence (such as private defence) has the burden of proving it. This is a rule about
1. res gestae
2. hearsay
3. judicial notice
4. burden of proof
Answer
D. burden of proof
When an accused pleads an exception, the burden of proving it lies on him.
Facts of which a court takes judicial notice
1. must be proved by two witnesses
2. need not be proved
3. must be proved by documents
4. are always inadmissible
Answer
B. need not be proved
Judicial notice makes proof unnecessary for such facts, for example laws in force in India.
Which term means the court must regard a fact as proved and cannot allow disproof?
1. Conclusive proof
2. May presume
3. Not proved
4. Shall presume
Answer
A. Conclusive proof
Under conclusive proof the court cannot allow evidence to disprove the fact.
A child born during a valid marriage, or within 280 days after its dissolution while the mother remains unmarried, is
1. presumed illegitimate
2. legitimate only if the father agrees
3. conclusively presumed legitimate
4. legitimate only after a court order
Answer
C. conclusively presumed legitimate
This is conclusive proof of legitimacy unless non-access is shown.
Leading questions are generally allowed in
1. examination-in-chief
2. dying declaration
3. re-examination
4. cross-examination
Answer
D. cross-examination
Leading questions are not allowed in chief or re-examination without permission, but are allowed in cross.
The correct order of examination of a witness is
1. re-examination, cross-examination, examination-in-chief
2. examination-in-chief, cross-examination, re-examination
3. cross-examination, examination-in-chief, re-examination
4. examination-in-chief, re-examination, cross-examination
Answer
B. examination-in-chief, cross-examination, re-examination
The party who calls the witness examines first; then the opposite party cross-examines; then re-examination.
A hostile witness is one who
1. is dishonest to the court only
2. turns against the party who called him
3. gives evidence in a foreign language
4. is a police officer
Answer
B. turns against the party who called him
With the court's permission, the party calling a hostile witness may cross-examine him.
Primary evidence means
1. an oral account of the contents
2. a certified copy
3. a photocopy of a copy
4. the original document itself
Answer
D. the original document itself
The document produced for the inspection of the court is primary evidence.
Secondary evidence of a document is allowed when
1. the party wishes to save time
2. the original is available but inconvenient to produce
3. the original is lost or destroyed
4. a lawyer prefers
Answer
C. the original is lost or destroyed
Secondary evidence is permitted in listed cases such as loss, destruction, or non-production after notice by the opposite party.
A tenant is stopped from denying his landlord's title during the tenancy. This is an application of
1. estoppel
2. res gestae
3. hearsay
4. presumption of death
Answer
A. estoppel
A tenant cannot deny the landlord's title at the beginning of the tenancy.
The opinion of a handwriting expert
1. is binding on the court
2. is relevant but not binding on the court
3. is not allowed
4. is allowed only in civil cases
Answer
B. is relevant but not binding on the court
Expert opinion is advice to the court, which is not bound by it.
In criminal cases, the bad character of the accused is
1. always relevant
2. relevant only for sentencing
3. not relevant unless he has himself offered evidence of good character
4. relevant if the police say so
Answer
C. not relevant unless he has himself offered evidence of good character
Good character is relevant; bad character is not, except in reply.
Communications between husband and wife during marriage are
1. always open to disclosure
2. relevant evidence in all cases
3. admissible only in criminal cases
4. privileged from disclosure without consent
Answer
D. privileged from disclosure without consent
Such communications are protected from disclosure, subject to exceptions.
The rule that terms of a written contract must be proved by the document itself is called the
1. exclusion of oral by documentary evidence
2. rule of hearsay
3. rule of res gestae
4. rule of judicial notice
Answer
A. exclusion of oral by documentary evidence
When terms are reduced to writing, no evidence other than the document is allowed, with exceptions such as fraud.
Facts forming part of the same transaction, even if they occurred at different places, are relevant under the principle of
1. res gestae
2. judicial notice
3. burden of proof
4. estoppel
Answer
A. res gestae
Res gestae covers facts so connected with the fact in issue as to form part of the same transaction.
A confession caused by inducement, threat or promise by a person in authority is
1. relevant and binding
2. relevant only in civil cases
3. irrelevant
4. fully proved
Answer
C. irrelevant
Such a confession is irrelevant in a criminal proceeding.
An admission, unlike a confession,
1. can be made only by a police officer
2. is always conclusive
3. can be made in civil as well as criminal cases
4. is always written
Answer
C. can be made in civil as well as criminal cases
A confession is an admission by the accused in a criminal case; admissions are broader.
Statements about confession: 1. A confession to a Magistrate is not barred merely because of the police rule. 2. A confession to a police officer can be proved against the accused if signed.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
A confession to a police officer is not provable even if signed.
Statements on admissions: 1. An admission is conclusive proof of the fact admitted. 2. An admission may operate as estoppel.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
B. 2 only
Admissions are not conclusive, but can bind as estoppel.
Statements about dying declaration: 1. It can be the sole basis of conviction if reliable. 2. It must be made on oath.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
No oath is needed; a reliable declaration can alone support conviction.
Statements about evidence: 1. Documents include electronic records. 2. Oral evidence can include evidence given electronically.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
C. Both 1 and 2
Both are features of the BSA.
Statements about hearsay: 1. Hearsay evidence is generally not allowed. 2. Oral evidence must be direct.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
C. Both 1 and 2
Direct evidence of the person who saw, heard or perceived is required.
Statements on burden of proof: 1. It generally lies on the prosecution in a criminal case. 2. It never shifts in any criminal case.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
Burden may shift in listed cases, such as claim of a general exception or facts especially within the accused's knowledge.
Statements about accomplices: 1. An accomplice is a competent witness. 2. Conviction on uncorroborated testimony of an accomplice is illegal.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
Such conviction is legal, though the rule of prudence requires corroboration.
Statements about judicial notice: 1. Courts take judicial notice of laws in force in India. 2. Facts admitted by parties during the hearing must always be proved again.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
Admitted facts generally need not be proved, though the court may require it.
Statements on witnesses: 1. A person who cannot speak may give evidence by writing or signs. 2. A child is incompetent in every case.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
Competence depends on understanding the questions and giving rational answers.
Statements on presumptions: 1. A person not heard of for seven years by those who would naturally have heard is presumed dead. 2. Documents thirty years old from proper custody are presumed genuine in certain respects.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
C. Both 1 and 2
Both are standard presumptions.
Statements about estoppel: 1. It arises from the party's own earlier statement or conduct. 2. It can be created by a court order only.
1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2
Answer
A. 1 only
Estoppel arises from the party's own conduct or declaration.
Match the term with its meaning: (a) Shall presume (b) May presume (c) Conclusive proof (d) Not proved (i) court must treat as proved unless disproved (ii) court may treat as proved unless disproved (iii) disproof not allowed (iv) neither proved nor disproved
1. a-iv, b-iii, c-ii, d-i
2. a-iii, b-iv, c-i, d-ii
3. a-ii, b-i, c-iv, d-iii
4. a-i, b-ii, c-iii, d-iv
Answer
D. a-i, b-ii, c-iii, d-iv
The standard definitions of the Act.
Match the privilege with its holder: (a) Spousal communications (b) Advocate-client (c) Unpublished State records (d) Confession to police (i) not provable against accused (ii) head of department's permission (iii) professional privilege (iv) marriage
1. a-i, b-ii, c-iii, d-iv
2. a-ii, b-i, c-iv, d-iii
3. a-iii, b-iv, c-i, d-ii
4. a-iv, b-iii, c-ii, d-i
Answer
D. a-iv, b-iii, c-ii, d-i
Each matches the rule in its category.
Match the evidence type with its description: (a) Primary evidence (b) Secondary evidence (c) Direct evidence (d) Hearsay (i) certified copy (ii) original document (iii) person who saw the fact (iv) what another person said
1. a-i, b-ii, c-iv, d-iii
2. a-ii, b-i, c-iii, d-iv
3. a-iii, b-iv, c-ii, d-i
4. a-iv, b-iii, c-i, d-ii
Answer
B. a-ii, b-i, c-iii, d-iv
Primary is the original; secondary includes copies; direct is first-hand; hearsay is second-hand.
Under the BSA, a copy or output of an electronic record is admissible when accompanied by
1. a stamp paper
2. a certificate in the prescribed Schedule format signed by the person in charge and an expert
3. an affidavit from any witness
4. a police report
Answer
B. a certificate in the prescribed Schedule format signed by the person in charge and an expert
The Schedule format certificate confirms the record's source and proper working of the device.
Which of these is a fact in issue in a murder trial?
1. The colour of the deceased's house
2. The weather on a previous year
3. The accused's religion
4. Whether the accused caused the death of the deceased
Answer
D. Whether the accused caused the death of the deceased
A fact in issue is one on which the right or liability depends, here causing death.
A written contract states that rent is Rs 5000. A party tries to prove orally that the rent was Rs 3000. This is generally
1. not allowed, as oral evidence cannot vary the written terms
2. allowed as of right
3. allowed if the judge likes it
4. allowed only for a dead witness
Answer
A. not allowed, as oral evidence cannot vary the written terms
Oral evidence cannot contradict written terms, except in cases of fraud, illegality and similar.
In a dowry death case, the court shall presume the death was dowry death when
1. the husband is absent
2. the woman was subjected to cruelty soon before her death in connection with dowry demands
3. she lived in a joint family
4. the families are poor
Answer
B. the woman was subjected to cruelty soon before her death in connection with dowry demands
Cruelty soon before death over dowry raises the presumption.

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