Bhartiya Sakshya Adhiniyam 2023

History of Bhartiya Sakshya Adhiniyam 2023
- It replaces Indian Evidence Act 1872(which was established in Colonial era) by retaining its core structure while updating it for modern times.
- Key changes in the include updated definitions to include electronic records and new provisions to address modern legal and technological developments.

Is the BSA exhaustive
- No, the BSA is not exhaustive in itself, although it aims to be comprehensive. It does not cover all possible scenarios

Objectives behind the law of evidence
1. Find truth of diputed matter
2. Ensure fairness to parties
3. Guiding court
4. establishing reliability

Evidence

What is Evidence? is any fact or information that can prove or disprove the existence of a claim
Law of evidence governs the rules for admitting and evaluating such proof in legal proceedings
Appreciation of evidence: systematic and methodical evaluation of the evidence presented in a case
Relevancy of evidence: Logical connection between a fact and the issue in question
  Important rules regarding relevancy:
    1. Fact in issue and relevant facts. court can only receive evidence relating to the "facts in issue" or "relevant facts"
    2. Facts showing motive, preparation, or conduct
    3. Facts showing a relationship between facts
    4. Facts those are not direct evidence
  Cases:
    1. Ram Bihari Yadav v. State of Bihar: SC clarified that relevancy and admissibility are different(not same). Ram Bihari Yadav was convicted or murder of his wife(Shivratri Devi). Conviction was largely based on the dying declaration made by the deceased, Smt. Shivratri Devi. SC has to decide whether dying declaration was enough, which was challenged by ram bihari. Judegement: Dying declaration is admissibile but relevant when found true
    2. Sheikh Zakir v. State of Bihar: Complainant(woman from the Santhal tribe) alleged that Sheikh Zakir forcibly had sexual intercourse with her. She shown evidences to (P.W. 1, P.W. 2, Chanda Kisku, and Makbool) who came to the scene, and that semen stains and trampling marks on the ground. Verdict: Absence of a medical report and clothing evidence did not diregard the victim's statement
Admissibility of evidence: is whether that relevant fact is legally permitted to be presented in court

Types of Evidences

Documentary
  Any document presented in court to prove a fact, such as letters, contracts, photos, or electronic records. Before a document is admitted, its authenticity must be established.
  Primary: Original document, secondary: copies of original document also admissible if primary are unavialable.
Direct(eg: witness seeing a crime)
Real
Oral:
  Spoken or gestured testimony of a witness. Oral evidence must be direct, meaning it comes from the witness's own direct perception (seeing, hearing, etc.) rather than from a third party
  Modes of proof: Oral evidence, Documentary evidence(Evidence presented in the form of written or electronic documents), Electronic evidence(A type of documentary evidence, including records from computers, smartphones, and other devices)
  When not admissible? when other document, such as a contract or grant, is required by law
  Circumstances where oral evidence is allowed despite a document?
   if written document is shown invalid(due to fraud, mistake, coercion, or undue influence)
  ambigious language in written document
  decided oral aggrement
  oral agreement is rescinded or modified by a new oral agreement
Hearsay(inadmissible):
  Person1 stated the evidence, Person2 provided statement of person1 in court, which is inadmissible, but there are many exceptions that allow it to be used in court, such as a dying declaration or a statement made in the heat of the moment.
  Example: My neighbor told me he saw the defendant running from the scene." This is hearsay because the witness is repeating what their neighbor said, not what they saw themselves.
 Why it is generally inadmissible? person who made the original statement cannot be cross-examined in court
  Exceptions to the rule:
   Res Gestae(Spontaneous statements made during or immediately after an event)
   Dying declaration
   Confessions
   Statements against interest(Statements that are so contrary to the speaker's own interests Primary)
Secondary
Indirect
Circumstantial:
 What? Indirect proof that doesn't prove a fact directly but allows person to infer its existence indirectly. Examples include fingerprints at a crime scene or a person seen running from the area of a crime
  1. Case: 1992, (State of U.P. vs. Dr. Ravindra Prakash Mittal): Ravindra Prakash Mittal was Accused of murder & disappearance of evidence of his wife(Smt. Kamlesh) by State of UP. relationship between 2 were strained due to his alcoholism and suspicion of her fidelity. 1 night couple went to sleep in their exclusive room. The next morning, Smt. Kamlesh was found dead with extensive burns, and the room was smoky. Defence claimed suicide, but medical evidence revealed the burns were after death(in post-mortem report), indicating a clear case of killing. SC held Rajendra guilty.
  2. 1977. (Umedbhai vs. State of Gujarat) established the judiciary's power to re-evaluate evidence based on circumstantial evidence. Umedbhai was charged of murder of his wife, Minakshi. Gujarat HC found him not guilty, SC reopened the case and found fatal wounds, the absence of another perpetrator, and a motive of marital discord for murder case.

Definition of Evidence

Jeremy Bentham: Use common-sense inferential reasoning
William Blackstone: Evidence clear or ascertain the truth
Pitt Taylor: Evidence are acceptable legal instruments and procedures (excluding argument) used in court

Fact

Fact: A statement that is true and can be verified
Fact in issue/principal fact/factum probandum: Type of fact that is disputed, essential to outcome(existence, non existence)
Relevant fact: fact that has a logical connection to a fact in issue

Fact Differences

Physical and Psychologoical fact

Positive and Negative fact

Presumption

Inference or assumption that a court makes about a fact based on certain established facts
BSA provides this through "may presume" and "shall presume" categories
  May Presume: Court has power to accept fact as proved or call for more evidence
  Shall Presume: Court will regard fact as proved until disapproved.
Presumption of innocence means every accused is presumed innocent until guilt is established

Types of Presumptions

1. Presumption of fact(Rebuttable): Inference made by the court from known facts. Rebuttable(proven false) means it can be disproven with evidence
2. Presumption of law(Rebuttable & Irrebutable): Rule established by law or judicial precedent. Assumes certain facts are true without proof unless contradicted.
3. Mixed presumption: Certain inferences which are considered as law but their application depends on facts

Admission

Voluntary acknowledgemnt(oral, written, or electronic) that fact can be used as evidence against them.
Kinds of Evidence:
1. Formal (judicial): Statements made in a court proceeding. They are considered formal and are not required to be proven again in court
2. Informal (extrajudicial): Statements made outside of court, often in casual conversation
3. Admission by Silence: In certain situations, a person's silence can be considered an admission if it is natural to expect a reply or denial and no response is given
When admission is relevant to be proved
a. An admission is relevant when it is used as evidence against the person who made it

Admissions cannot be proved by or on behalf of the person who makes them
- This means a party making admission cannot prove the truth of the matter in his favor.
- Exception to this Rule
  1. Death of the Maker: If the admission is of such a nature that had the person making it been dead

Confession

Statement by an accused person admitting to a crime. Its admissibility as evidence depends on being voluntary and made without coercion, threat, or inducement
Types of Confession
1. Judicial confessions: made in court
2. Extra-judicial confessions: made to a private person or police

When is a confession admissible as evidence? 1. if it is made voluntarily. Without Inducement(reward), Threat, Coercion(Pressure) 2. Mentally competent
Conditions for admissibility: Voluntary confession(with free will), Confessions to a magistrate, confession to a police officer is inadmissible, Extra-judicial confessions(A confession made to a private individual), Corroboration(evidence which confirms or supports a statement)

Can the court convict a accused solely on the basis of his confession
No. it must be supported by other independent, corroborative(serving to support) evidence

Cases
1. (1952)Palvinder Kaur v. State of Punjab. She murdered her husband and gave confession that death was accident & she disposed of her husband's body. Lower court only took part that she disposed the body and ignored it was accident. SC established confession cannot be taken as piecemeal.
2. Pyare Lal Bhargava v. State of Rajasthan: Pyare Lal Bhargava, a Superintendent in the Chief Engineer's office removing an official file from the Secretariat at the request of his friend, Ram Kumar. Appeal: temporary nature of his removal of the file did not constitute theft. SC Verdict:temporary deprivation of property can constitute theft, even if the property is intended to be returned later
3. Ramakrishna vs State of Kerala: documentary evidence (a school certificate) in proving rape, concluding that the evidence was sufficient for a conviction.

Confession of co-accussed

It is not considered substantive evidence but can be used as corroborative evidence to strengthen other evidence.
Sec30(Indian Evidence Act) a court may take into consideration a confession made by one accused person if it implicates another jointly accused in the same offense. However, the confession must be supported by independent evidence and cannot be the sole basis for a conviction.

Retracted(retract means draw back) confession

Statement by an accused person admitting guilt that they later withdraw during a trial. Instead, a court will examine the original confession and the reasons for its retraction to determine its credibility and voluntary nature.
Not automatically discarded: A retraction does not automatically make the confession inadmissible; it is considered an evidentiary matter for the court to weigh alongside all other evidence.

Cases:
1. Shankar v. State Of T.N: involved multiple murders linked to an organized crime ring engaged in brothel businesses. Shankar (A-1) and several others (A-2 to A-6) were accused of conspiring to commit and executing six murders. Judicial confessions made by A-1 and A-2, which were later retracted during the trial.The courts meticulously examined the circumstances of the confessions to ensure they were made voluntarily and were true

Cases on Confession

Of Coaccused

1. Kashmira Singh vs State of MP: Kashmira singh & other accussed killed 5 year old boy of Food Officer(LP Tiwari). Here one of co-accused made self confession while Kashmira denied.

Declaration

Dying Declaration

A statement made by a person who is about to die, explaining the circumstances of their death
Essential Conditions
  1. Declarant must be in actual danger of death
  2. He must be fully aware he is about to die
  3. Finally declarant must die
  4. Truthfulness and credibility: The declaration must be made honestly and without external influence, prompting, or tutoring. Can dying declaration form sole basis of conviction
Yes, if court finds the declaration to be truthful and credible, and it can be a stand-alone piece of evidence.

Cases:
1. State of Assam v. Mafizuddin Ahmed: Dying declaration was not sufficiently corroborated and was deemed insufficient to support a conviction
2. Ram Nath & Others vs. State of MP(1953): Ramnath, Pratap, Purshotham, Harishankar, and Chiddi were charged with the murder of Sunder, a goldsmith in MP. Sunder gave dying declaration alleging the convicts, but Court dimissed on basis of relevant facts to provide dying declaration trustworthy

Relevancy of a court's judgment

This means that a previous decision is considered in a current or future case because it has a connection to the facts at hand.
Relevancy
1. Case-specific nature: This means a judgment from one case is not automatically relevant to another, even if the facts seem similar
2. Distinct from admissibility: A judgment must be both relevant and admissible to be used as evidence

Cases:
1. Commissioner of Income Tax, Kanpur v. Kamla Town Trust(1995): Clarifies the criteria for distinguishing a public charitable trust from a private trust & hence eligibility for income tax exemptions. Trust was deemed private and ineligible for exemptions for the years 1949-50 to 1955-56. Also definition of a public charitable trust requires clear objectives for public benefit

Expert

Expert Definition: Sec39(BSA 2023) defines expert as a person with special skills in a specific field(science, art, foreign law, handwriting, or fingerprints etc) whose opinion is relevant when the court needs clarification on such matters. Opnion of expert is corroborative(serving to support) not conclusive.
When is their opinion relevant? case involves a technical or complex subject that is beyond the understanding of the average person

Provisions of BSA related to expert opinion
Sec39: Definition of expert
Sec45: Makes the opinion of an expert relevant when the court needs to form an opinion
Sec46: Includes facts that support or are inconsistent with the expert's opinion.

Cases:
1. Fakhruddin v. State of M.P. (1968): Established that a court must not solely rely on an expert's opinion, like a handwriting expert's, for a conviction. Expert opinion not conclusive and must be corroborated with other evidence. Fakhruddin was charged of forgery and cheating.

Character

Character refers to a person's moral qualities, reputation, and disposition. In criminal cases, evidence of an accused's good character is often relevant to suggest they are less likely to have committed a crime

Relevancy in legal proceedings
In civil cases: Character evidence is typically irrelevant.
In criminal cases: Evidence of the accused's good character can be presented to show they are less likely to have committed the crime.

Exception to the general rule of character
1. Character is a "fact in issue": The case is on a person's character.
2. Character affects damages:
3. Character appears from other relevant facts:

Judicial notice

Rule that allows a court to accept certain facts as true without formal proof. Eg: court can take judicial notice that "the sun rises in the east"

Categories of Judicial Notice
1. Matter of Nature
2. Geographical Facts: Locations of cities, boundaries of states, navigation of Waters
3. Historical Facts: Well-established historical events that are universally accepted
4. Scientific Facts: Are universally accepted (e.g., the laws of gravity, the properties of alcohol)
5. Official Acts: Legislative, executive, or judicial departments of government, such as public records and official gazettes

Estoppel

Legal principle that prevents a person from contradicting a previous statement or act
Estoppel is based on principle(Allegans contraria non est audindus) ie person alleging contrary facts will not be heard

Rationale to Rule
1. Promoting fairness: principle of fairness and justice, preventing a party from taking advantage of their own inconsistency
2. Ensuring consistency

Kinds of estoppel
1. estoppel by record: A party is prevented from denying the truth of facts that were decided in a prior case between the same parties.
2. Estoppel by deed: party is bound by a statement of fact made in a formal, written deed or contract
3. Estoppel in pais(by conduct): (Pais in french means act of notority) person from contradicting their previous words, actions, or silence
4. Promissory estoppel: prevents a party from breaking a promise
5. Collateral estoppel: Prevents a party from relitigating an issue already decided by a court.
6. Estoppel by election: person cannot take contradictory action after they have already made a choice. Eg: A person is given 2 choices car as gift or discount on price. He takes car and later asks money when he becomes bankrupt, this is not possible

Estoppel for tenants and licensees
Tenant cannot deny landlord's or licensor's title to the property at the start of their tenancy or license period, even after it has ended.

Burden of Proof

Legal obligation to prove a disputed fact
Criminal Cases: BOP lies on prosecution(Legal process to try to prove that an accused person is guilty)
Civil Cases: BOP lies on plantiff(a person who brings a case against another in a court of law)

Sections in BSA for BOP
Sec-107(Death): burden of proving that a person is dead is on the person who affirms it
Sec-108: Accused bears the burden to prove they fall under the exception.
Sec-112(Relationship): For relationship case, party denying the relationship bears the burden
Sec-114(Presumed fact): Burden on the party who disputes the presumed fact

Cases:
1. Narbada devi gupta vs birendra kumar jaiswal(2003): Case was about possession and tenancy rights of property where agreements and rent receipts were crucial.
2. Manager(RBI) vs. S. Mani: about wrongful termination of temporary workers by RBI. SC mentioned termination is illegal as it does not follow Section 25-F of the Industrial Disputes Act, 1947 regarding compensation of workers that worked 240 days

Witness

Competent Witness: Sec118(Any person who can provide evidence, unless they are unable to understand questions or give a rational answer due to factors like tender age, extreme old age, or mental or physical disease).

Can deaf or dumb person be competent witness?
Yes, if the court can understand their testimony through interpreters or other means

Can a judge or magistrate be a competent witness?
Yes, but only regarding their own conduct. They cannot be compelled to testify, but they are permitted to do so if the situation requires it.

Examination of Witness
This is generally conducted in three sequential stages: examination-in-chief, cross-examination, and re-examination.
1. Examination-in-Chief: initial questioning of a witness by the party who called them to testify.
2. Cross-Examination: Questions by (opposing) party
3. Re-Examination: subsequent examination of a witness by the party who called them, after the cross-examination.
Can party cross exam his own witness? A party is generally not allowed to ask leading questions from their own witness. However, under certain circumstances and with the permission of the court, a party may cross-examine their own witness. This usually occurs when the witness is declared "hostile"

Impeaching credit to witness
This means proving credibility of witness wrong and showing the court witness is not a trustworthy source of testimony. it can be done by the opposing party or, with court permission
Examples of impeaching a witness's credit:
1. Showing prior inconsistent statements
2. Proof of corruption or a bribe
3. Evidence of a bad reputation for truthfulness
4. Contradiction through other evidence

Refreshing Memory of Witness
This means act of helping a witness recall a forgotten fact by referring to a document. This can be done by reading a document written by self or other people
Provisions for refreshing memory:
1. Witness's own writing
2. Another person's writing
3. Copies of documents: With the court's permission, a witness can use a copy of a document
4. Expert witnesses: An expert may refresh their memory by referring to professional treatises.


Cases
1. Ratansinh Dalsukhbhai Nayak v. State of Gujarat(2004): Ratansinh was accused of murder and on the testimony of a child witness, whose evidence was found to be truthful after careful scrutiny he was given life imprisonment

Communication

Privileged communication: Court cannot force to reveal privileged communication that happened between an advocate and his client ie disclosing confidential communications without the client's explicit consent

Sec 132(Professional Communication): An advocate cannot disclose any communication made to them by a client for professional services, or reveal the contents of any document, or give advice given to the client, unless the client gives their express consent.
Section 133: Privilege not waived by volunteering evidence: A client does not automatically consent to the disclosure of privileged communications by giving their own evidence in a case.
Section 134: Confidential communication with legal advisers: This section reinforces the privilege for legal advisors, requiring the communication to be made in circumstances importing an obligation of confidence.

Provisions regarding PC
1. Attorney-client privilege
2. Spousal privilege: A spouse cannot be compelled to disclose any communication made to them during the marriage by the other spouse.
3. Doctor-patient privilege
4. Official Communication:

Accomplice

Accomplice means a person who helps another commit a crime.

Conditions for conviction based on accomplice testimony?
Competent witness: The accomplice must be a competent witness against the accused
Corroboration(evidence which confirms or supports a statement): The testimony must be corroborated by additional evidence that is independent
Circumstantial evidence:

Why Accomplice evidence is considered untrustworthy?
Because accomplices are participants in a crime and are often biased

Cases
1. Rameshwar vs state of rajasthan(1951): Rameshwar was convicted(decision given by court) of raping an 8-year-old girl. Verdict was given by High court on basis of Corroboration(evidence which confirms or supports a statement) given by child to her mother. He appeled in SC. SC standed with High Court's decision, conviction can stand on the uncorroborated testimony of a child if the judge is satisfied it is safe and reliable.

Leading Question

A question asked in cross-examination that has answer in it. it not allowed in examination-in-chief and re-examination
Example: "You saw the red car speed away from the scene, didn't you?" This suggests the witness should confirm seeing a red car that was speeding. A non-leading version would be: "What color was the car you saw?".

When can leading questions be asked?
1. During cross-examination: opposing party is generally allowed to ask leading questions to challenge the witness.
2. With court permission: During examination-in-chief and re-examination this can be asked with court's permission.

Ambiguity (Confusion)

Patent Ambiguity: A clear, apparent uncertainty on the face of a document that makes its meaning unclear. For example, a contract stating a price of "$1,000 or $2,000" is a patent ambiguity
Latent ambiguity: an uncertainty that is not apparent on the document's face but arises only when the document is applied to the actual facts. For example, a deed describing a property that does not exist at the specified location, but another similar property exists nearby

Terms

Proved: A fact is proved when the court believes it to be true
Disproved: A fact is disproved when evidence is presented that shows its falsehood
Not proved: A fact is not proved when there is no evidence to prove it
May Preresume: The court has the discretion to accept a fact as proven unless it is successfully disproven.
Shall Preresume: The court must accept a fact as true unless it is disproven

Document

Documents are any written or printed matter that can be used as evidence, including public and private records

Types of Documents
1. (Sec74)Public documents: records of sovereign authority, official bodies, and public officers (legislative, judicial, and executive)
2. Private Documents: which are not public
3. Electonic documents: information stored on semiconductor memory, smartphones, laptops, emails, and more

Disputed Handwriting

Methods of proving disputed handwriting
1. Opinion of a handwriting expert: if he gives verdict, that's considered relevant fact
2. Comparison by the court: court itself can compare the disputed writing with an admitted writing

Standard of Proof

Criminal Case: "beyond a reasonable doubt," a very high standard that requires the prosecution to prove guilt to the point where there is no reasonable doubt in the mind of the judge or jury
Civil Case: "preponderance of evidence" or "balance of probabilities," meaning the plaintiff must show that their claim is more likely true than not

Facta probanda and Facta probantia

Virender nath gautam vs satpal singh case
Virender Nath Gautam challenged the election results alleged violations during polling and counting, such as dual voting rights, discrepancies in electronic voting machine (EVM) records. High court rejected his plea. But SC reopened the case stating ground that the High Court improperly considered the evidence and replies rather than restricting itself to assessing if the petition disclosed a cause of action.