Whether you are a law student, a judicial services aspirant, or someone fighting a court case, one question comes up again and again: what counts as proof in an Indian court? Since 1 July 2024, the answer lies in the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872. This guide explains the most important provisions in plain words.
- Evidence can be given only of facts in issue and facts the BSA declares relevant (Section 3).
- Electronic and digital records are admissible, but only if the conditions of Section 63 are met.
- A confession made to a police officer is generally not admissible (Section 23), subject to the discovery exception.
- The burden of proof lies on the person who would fail if no evidence were led (Sections 104–106).
- Always verify the exact wording, provisos and exceptions before relying on any section.
Overview: What Is the Law of Evidence?
Evidence law decides what a court may look at and who must prove what. Think of it as the rulebook for a trial. A fact may be true, but if it is not proved in the manner the law allows, the court cannot act on it. The BSA keeps the structure of the old Evidence Act but updates it for the digital age, with specific rules for electronic records, electronic signatures and electronic agreements.
Legal Provisions: The Sections You Must Know
The table below groups the most important provisions. Old Evidence Act equivalents are given in brackets where I am confident of them. Please verify the current provision before citing.
| Topic | BSA Section (old Act) | In Plain Words |
|---|---|---|
| Facts in issue and relevant facts | Sec. 3 (IEA Sec. 5) | Only these facts can be proved by evidence. |
| Same transaction (res gestae) | Sec. 4 (IEA Sec. 6) | Facts forming part of one transaction are relevant, even if they happened at different times or places. |
| Motive, preparation, conduct | Sec. 6 | Why and how an act was prepared can be relevant. |
| Admission | Sec. 15 (IEA Sec. 17) | Oral, written or electronic statement suggesting an inference about a fact. |
| Involuntary confession | Sec. 22 (IEA Sec. 24) | Confession caused by threat, inducement or promise is irrelevant. |
| Confession to police | Sec. 23 (IEA Secs. 25–27) | Generally inadmissible, except information distinctly leading to a discovery. |
| Expert opinion | Sec. 39 (IEA Sec. 45) | Opinions on science, handwriting, fingerprints and similar matters. |
| Primary and secondary evidence | Secs. 57, 58 (IEA Secs. 62, 63) | The original document is primary; copies are allowed only in specified cases. |
| Electronic records | Secs. 61–63 (IEA Sec. 65B) | Cannot be rejected merely for being electronic; Sec. 63 sets the conditions and certificate. |
| Burden of proof | Secs. 104–106 (IEA Secs. 101–103) | Whoever would lose without evidence must prove the fact. |
| Facts especially within knowledge | Sec. 109 (IEA Sec. 106) | The person who alone knows the fact must explain it. |
| Person not heard of for 7 years | Sec. 111 (IEA Sec. 108) | Burden shifts to the person asserting the person is alive. It does not fix the exact date of death. |
| Legitimacy of a child | Sec. 116 (IEA Sec. 112) | Birth during a valid marriage is conclusive proof of legitimacy, subject to the statutory exception. |
| Dowry death presumption | Sec. 118 (IEA Sec. 113B) | Court presumes dowry death when statutory requirements are established. |
| Competency of witnesses | Sec. 124 (IEA Sec. 118) | Everyone can testify unless unable to understand questions or answer rationally. |
| Number of witnesses | Sec. 139 (IEA Sec. 134) | No fixed number of witnesses is required. |
| Judge's power to question | Sec. 168 (IEA Sec. 165) | The Judge may ask questions or call for documents to discover proof. |
Key Judgments to Know
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020, Supreme Court): held that the certificate for electronic evidence under Section 65B of the old Evidence Act is a condition for admissibility of secondary electronic evidence. Courts now apply the same thinking to Section 63 of the BSA.
Pulukuri Kottaya v. Emperor (1947, Privy Council): explained that only the part of a statement that distinctly relates to the discovery of a fact is admissible. This is the foundation of the discovery exception now found in Section 23 of the BSA.
Sharad Birdhichand Sarda v. State of Maharashtra (1984, Supreme Court): laid down the conditions for a conviction based on circumstantial evidence and discussed the limits of the "facts within knowledge" rule.
Step-by-Step: How to Prove an Electronic Record in Court
- Identify the record. It may be a WhatsApp chat, email, CCTV footage, call recording or bank SMS.
- Preserve the original device or account. Do not delete, edit or forward the content before a copy is taken.
- Take a proper copy or printout from the device that stored or produced it.
- Get the certificate required under Section 63 (and the Schedule to the BSA), signed as the law requires. Verify the current format.
- File it with the pleading or application and list it in the list of documents.
- Lead evidence through the person in charge of the device or system, and an expert where needed.
- Be ready for cross-examination on how the record was created, stored and copied.
Documents Required
- Original device, or a properly made copy of the electronic record
- Certificate under Section 63 of the BSA
- Original documents (for primary evidence), or the basis for allowing secondary copies
- Certified copies of public documents (Section 75)
- Identity and address proof of witnesses
Common Mistakes to Avoid
- Filing a screenshot without the required certificate.
- Assuming a police confession can be used as evidence.
- Believing that a minimum number of witnesses is needed.
- Reading a section without its provisos, exceptions and explanations.
- Confusing the 7-year rule (burden on who says the person is alive) with proof of the exact date of death.
- Relying on entries in books of account alone to fasten liability (Section 28).
Practical Tips from Experience
- Revise by theme (relevance, confessions, documents, electronic evidence, burden and presumptions) rather than by section number.
- Always learn the old section number alongside the new one, because many judgments still cite the Evidence Act.
- For electronic evidence, secure the certificate at the same time the record is collected, not months later.
- For exams, remember that presumptions such as Sections 117, 118 and 120 apply only when the statutory conditions are first proved.
Two Simple Examples
Example 1: A tenant receives a rent-increase demand through WhatsApp and wants to use it in a civil suit. The chat on his phone is an electronic record. To rely on it, he must follow Section 63 and file the required certificate. A bare screenshot may be challenged.
Example 2: An accused tells the police he killed a man, and says he hid a weapon in a field. The confession as such is barred by Section 23. Only the part of the statement that distinctly leads to the discovery of the weapon may be proved.
Frequently Asked Questions
1. What replaced the Indian Evidence Act, 1872?
The Bharatiya Sakshya Adhiniyam, 2023, which came into force on 1 July 2024.
2. Is a WhatsApp message valid evidence?
It can be, as an electronic record, if the conditions of Section 63 and the certificate requirement are satisfied. Its weight is then decided by the court.
3. Can a confession to a police officer be used against the accused?
Generally no (Section 23). The exception is information distinctly relating to a fact discovered.
4. Who has to prove a case in court?
The person who would fail if no evidence were given on either side (Section 105). Some exceptions shift the burden, such as Section 108 for general and special exceptions.
5. How many witnesses are needed to prove a fact?
No particular number (Section 139). Quality matters more than quantity.
6. Does the 7-year rule mean a missing person is legally dead on a fixed date?
No. Section 111 only shifts the burden of proving the person is alive. It does not automatically fix the date of death.
Conclusion
The BSA keeps the core logic of evidence law and modernises it for electronic records. Mastering a handful of sections on relevance, confessions, documents, electronic evidence and burden of proof gives you a strong foundation. Always read each section with its provisos and exceptions, and verify current provisions before relying on them.
This article is for general information only and does not constitute legal advice. Please consult a qualified advocate for your specific case.