Law of Evidence under the Bharatiya Sakshya Adhiniyam (BSA), 2023
Comprehensive study material and notes for law students and competitive exams
a) Primary Evidence
Primary evidence is the best form of evidence, meaning the document itself produced for inspection by the court. For example, an original signed contract is primary evidence of its terms.
b) Fact
A “fact” means anything capable of being perceived by the senses (e.g., something seen or heard) or any mental condition a person is conscious of (e.g., intention or opinion).
c) May Presume
“May presume” indicates a discretionary presumption. The court may regard a fact as proved unless disproved, or may call for further proof. It is a rebuttable presumption.
d) Admission
An admission is a statement (oral, documentary, or electronic) suggesting an inference about a fact in issue or a relevant fact. Admissions are not conclusive proof but can act as estoppel.
e) Confession
A confession is a statement by an accused acknowledging guilt. All confessions are admissions, but not all admissions are confessions.
f) Expert Opinion
An expert opinion is testimony from a person with specialized knowledge in a field such as science or art. Covered under Sections 39–45 of the BSA.
g) Hearsay Evidence
Hearsay evidence is indirect and generally inadmissible, as the original declarant cannot be cross-examined. Exceptions include Res Gestae and dying declarations.
h) Accomplice
An accomplice is a person involved in a crime. Under Section 138, an accomplice is a competent witness against an accused, though corroboration is usually required.
2A. Main Features of Bharatiya Sakshya Adhiniyam (BSA)
- Consolidation of Rules: Provides a unified framework for evidentiary principles.
- Focus on Relevancy: Only relevant facts are admissible.
- Best Evidence Rule: Prefers original (primary) evidence over copies.
- Classification of Evidence: Defines oral, documentary, direct, and circumstantial evidence.
- Exclusion of Hearsay: Only certain exceptions allowed.
- Competency of Witnesses: Lays down rules for witness eligibility and privilege.
2B. Res Gestae (Sections 4–6)
The doctrine of Res Gestae means “things done.” It allows facts forming part of the same transaction as the fact in issue to be admissible, even if otherwise hearsay.
Example: Statements made by bystanders or the victim immediately during or after a crime are admissible as part of the same transaction.
3A. Oral Evidence (Sections 54–55)
- All facts, except document contents, may be proved by oral evidence.
- Oral evidence must be direct — what the witness personally saw or heard.
Exceptions: Res Gestae, Admissions & Confessions, Dying Declarations, and Statements in Business Records.
3B. Dying Declaration (Section 26)
A dying declaration is a statement made by a person about the cause of their death or circumstances leading to it. It is admissible even though it is hearsay, based on the belief that a person will not lie at death’s door.
4A. Examination of Witnesses (Sections 140–168)
- Examination-in-Chief: Conducted by the party calling the witness.
- Cross-Examination: Conducted by the opposing party to test truthfulness.
- Re-Examination: Clarifies matters raised during cross-examination.
4B. Burden of Proof (Sections 104–107)
The burden lies on the person asserting a fact. In criminal cases, it lies on the prosecution to prove guilt beyond a reasonable doubt; in civil cases, on the plaintiff on the balance of probabilities.
5A. Estoppel (Sections 121–123)
Estoppel prevents a person from denying what they previously represented. It includes estoppel by record, deed, and conduct. Promissory estoppel applies when a promise induces reliance.
5B. Documentary Evidence (Sections 56–64)
Documentary evidence includes all written or electronic documents. Primary evidence is the document itself; secondary evidence includes certified copies and copies made by mechanical processes. Secondary evidence is admissible only when the original is unavailable or lost.
6. Validity of Evidence by an Intoxicated Accused
Voluntary intoxication is not a valid defense. The burden of proving involuntary intoxication lies on the accused. If voluntary, the plea fails.
7. Confession to a Police Officer
Under Section 23, confessions to police officers are inadmissible. Such evidence cannot be used against the accused in court.
8. Evidence by Co-Accused
An accomplice is a competent witness. However, courts seek corroboration before convicting based solely on an accomplice’s testimony.
9. Burden of Proof in Defamation
In a criminal defamation case, the initial burden lies on the complainant to prove the defamatory statement. If the accused pleads truth or public good, the burden shifts to them to prove the exception.
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