1Relevance of Motive, Preparation, and Conduct in Section 6 of Bharitiya Sakshya Adhiniyam,

2023

• Section 6 of the BSA, 2023 outlines the relevancy of three key facts: Motive, Preparation, and
Conduct.
• Motive refers to the reason behind an act or conduct, which can be good or bad.
• Preparation refers to the actions taken by a party or agent to any party in relation to a suit or
proceeding.
• Conduct is relevant if it influences or is influenced by any facts in issue or relevant fact.
• The term "conduct" in this section does not include statements unless they accompany and
explain acts other than statements.
• Any statement made to a person or their presence and hearing that affects their conduct is
relevant.
• Motive is generally irrelevant to establish liability, but it is often of great importance in cases of
circumstantial evidence.
• Evidence of motive is important in all criminal cases, whether based on eyewitness testimony
or circumstantial evidence.
• Inadequacy of motive does not affect the cogent evidence but is important whether evidence is
doubtful.
• Absence of motive may not be relevant where there is overwhelming evidence against the
accused, but it is a plus point when evidence against him is only circumstantial.

Crime Preparation and Conduct in BSA, 2023

Preparation:
• Section 6, Para I of the BSA, 2023, states that any relevant fact constitutes a motive or
preparation for any fact in issue.
• Preparation involves arranging the means necessary for the commission of a crime.
• Every crime is necessarily preceded by preparation.
• Four stages in the commission of a crime/an offence: Intention, Preparation, Attempt, and
Accomplishment/Completed act.
• Intention is not punishable, while preparation is punishable in creation cases.
• Attempt is exempted from criminal liability in rare cases in respect of minor offences.

Conduct:
• The conduct of any party or agent to any suit or proceeding, in reference to such suit or
proceeding, or any fact in issue, is relevant if such conduct influences or is influenced by any
fact in issue or relevant fact.
• Conduct is different from the character.

1)
Bharatiya Sakshya Adhiniyam, 2023: Aim and Objectives

Introduction
• The Bharatiya Sakshya Adhiniyam, 2023 is a legislation aimed at consolidating and providing
general rules and principles of evidence for fair trial in India.
• The Adhiniyam aims to address the complexity, delays, and high costs of the Indian legal
system.
• The Adhiniyam emphasizes the importance of evaluating circumstantial evidence and
accepting the one in favor of the accused.

Objectives of the Adhiniyam, 2023

• The Adhiniyam aims to introduce more precise and uniform rules of practice in dealing with
facts and circumstances of the case.
• It includes provisions aimed at improving the quality of evidence presented in legal
proceedings, including the admissibility of electronic or digital records as evidence.
• The Adhiniyam incorporates the mode of recording evidence in both civil and criminal
proceedings.
• It provides a comprehensive framework for determining the relevancy of facts in legal
proceedings, ensuring only relevant facts are admitted as evidence.
• The Adhiniyam aims to ensure uniform application of the rules of evidence across all courts in
India, promote fairness and transparency, and protect the rights of all parties.
• It aims to improve the quality of evidence presented in legal proceedings, reduce litigation time
and costs, improve access to justice for all citizens, and bring clarity and uniformity in the rules
of evidence across all courts in India.
• The scope of secondary evidence has been expanded to include copies made from original by
mechanical processes, copies made from or compared with the original, counterparts of
documents as against the parties who did not execute them, and oral accounts of the contents
of a document given by some person who has himself seen it.

Newly added sections/clauses

• The Adhiniyam provides that electronic or digital records will have the same legal effect as
other paper records.
• The new clause of Joint Trial allows confessions made by one person to go against other
persons.
• Oral evidence must be direct, referring to a fact that could be seen, heard, perceived, or based
on an opinion.
• The scope of Primary Evidence has been expanded in Sec. 57 by adding more explanations.

2)
Understanding Definitions of Court, Fact in Issue, and Relevant Facts

Court Definition
• The term "court" includes all legally authorized individuals, including Judges, Magistrates,
arbitrators, and persons who administer justice.
• The term is not limited to regular courts but includes anyone who administers justice and is
authorized to take evidence.

Fact in Issue Definition

• Fact in issue refers to facts disputed between parties and constitutes the central point of any
suit or proceeding.
• It includes any fact from which the existence, non-existence, nature, or extent of any right,
liability, or disability is asserted or denied.
• Fact in issue are the substantive facts provided in substantive law, also known as "Factum
Probandum."

Relevant Fact Definition

• A fact is considered relevant if it renders the existence of fact in issue either probable or
improbable.
• The term'relevant fact' is defined under section 2(k) of BSA, 2023.
• Relevant facts are related to each other in ways that one fact makes the other probable.

Differences Between Relevant Facts and Fact in Issue

• Fact in issue are disputed facts, while relevant facts are not directly disputed but decide the
existence or non-existence of fact in issue.
• The decision in a suit is based on the fact in issue, while relevant facts assist the court in
reaching the decision.

3)

Understanding Evidence and Types of Evidence in BSA, 2023

Definition of Evidence
• Evidence is the instrument by which relevant facts are brought before the court, including
witnesses and documents.
• Evidence includes all legal means excluding arguments that prove or disprove facts.
• Section 2(e) of BSA, 2023 defines evidence as all statements made by a witness and all
documents produced for court inspection.

Types of Evidence
• Documentary Evidence: Documents produced in a case support the case of the party
producing it.
• Oral Evidence: Statements by the witness in relation to the matter of fact under the inquiry.
• Real Evidence: Material objects produced for inspection, such as stolen property or weapons
used in the commission of the offence.
• Direct Evidence: Any fact that without intervention of any other fact proves the existence of the
fact in issue.
• Circumstantial Evidence: Circumstances that speak as forcefully as direct evidences.
• Hearing Evidence: The statement of a person who has not seen the happening of the
transaction himself but has heard of it from others.

Primary and Secondary Evidence

• Primary evidence is the presentation of the thing in original form.
• Secondary evidence is any other thing declared to be admissible by the Act of a proof of fact,
in absence of its primary evidence.

Substantive, Non-Substantive, and Corroborative Evidence

• Substantive evidence is that on which reliance can be placed for the decision of the case.
• Non-substantive evidence is that alone is not sufficient for the decision unless it is supported
by the corroborative evidences.

Role of Evidence in Undesirable Means

• The Supreme Court has clarified that where evidence offered comes within the meaning of its
definition, the court can act on it.
• Evidence obtained in investigation of other crimes is relevant and admissible for establishing
the charge in the present case.

Confessed Evidence
• The confession of co-accused is not evidence in the real sense of the word because he does
not make his statement on the oath and is not cross examined.
• The testimony of an approver is evidence because it is made on oath and cross examined.

Departmental Inquiry
• Evidence recorded in departmental enquiry is not evidence in a strict sense of words as per
the provision of the Indian Evidence Act.

Video Conferencing
• Recording of evidence through video conferencing has been approved by the Supreme Court.

4)

Understanding Presumption in Indian Evidence Law

Understanding Presumption
• Presumption is a legal rule that must be proven before a court can rely on it.
• In the Indian Evidence Act, courts can presume certain facts without proof, allowing them to be
considered.

Types of Presumptions
• Presumption of law (rebuttable or irrebuttable): Legal rules that cannot be overridden by
evidence.
• Presumption of fact: Inferences drawn from given facts without legal directions.
• Mixed presumption of law and fact: Inferences drawn by the mind naturally and logically
without the help of legal directions.

Differences Between Presumption of Law and Presumption of Fact

• Presumption of law: An artificial presumption created by law.
• Presumption of fact: An artificial presumption created by law.
• Discretion: The discretionary power of the court.
• Rebuttable nature: Both corroborative and opposing evidences are forbidden.

5)

Understanding Relevancy and Admissibility in Evidence

Relevancy and Admissibility:

• Relevancy is not defined under the Act, but it refers to the connection of events as cause and
effect.
• Relevancy is based on reason and human experiences, and is the capacity of a fact to be
admissible before the Court.
• Admissibility is the admission of any fact as evidence by the court, not based on logic or
probability.
• Relevant facts are admissible in evidence, but not necessarily admissible.
• Legal provisions can prevent any fact from being admitted, making it not admissible despite
being relevant.
• The question of relevancy should be decided as and when it is raised, not reserved until the
judgment date.
• If relevant evidence is mixed up with irrelevant evidence, the whole of the evidence is to be
rejected.
• The question of relevancy is a question of law and can be raised at any stage.
• If the evidence is relevant but the proof of it is improper and the evidence is admitted, no
objection can be taken afterwards.

6)

Understanding the Doctrine of Res-Gestae

• Res-Gestae, derived from Latin meaning "things done," refers to the facts surrounding an
event.
• Every fact is part of other facts, and every act or omission that reveals the nature of the
transaction should be part of the same transaction.
• Peter Murphy suggests that stating a fact or event in isolation without reference to its
antecedents can make it difficult to comprehend.
• The doctrine of res-gestae is impliedly contained under sections 4, 5, 6, 7, and 12 of the BSA,
2023.
• A transaction is a group of facts connected together, referred to by a single name as a crime,
contract, wrong, or any other subject of inquiry.
• Acts or omissions accompanying a transaction do not pose much difficulty. The nature of the
transaction itself indicates what should be its essential parts.

Res-Gestae and Hearsay Evidence in Court Cases

• Res-gestae is the principle that a statement should be made so soon before, after, or along
with the incident that there was hardly any time to deliberate and fabricate a false story.
• The principle has been applied in several cases, including Thompson v. Trevenion, R v.
Bedingfield, R v. Christie, Rutten v. Regina, State of Andhra Pradesh v. Panna Satyanarayana,
Sanwal Das v. State of Bihar, and R.M. Malkani v. State of Maharashtra.
• Hearsay evidence refers to the statement of a person who has not seen the happening of the
transaction but has heard of it from others.
• In R v. Foster, 1834, the witness had only seen the speeding vehicle but not the accident. The
injured person explained the nature of the accident to him, which was allowed to give evidence
of what the deceased said.
• In Shyam Nandan Singh v. State of Bihar, 1991, the Supreme Court stated that if a witness is
present at the scene of the occurrence, sees the whole event, makes a cry about the offence
being committed, and then goes to the police station and makes a FIR, the making of the FIR
was held to be relevant as res-gestae.
• The res-gestae doctrine has been criticized, with Professor Stone stating that no evidentiary
problem is a valid reason for a res-gestae.

7)

Understanding Admissions: Definition, Types, and Electoral Value

Definition of Admissions
• Definition of admission in terms of a statement, oral, documentary, or electronic form.
• Relevance of admission is only if made by any person specified in the Act.
• Relevance is only in circumstances mentioned in the Act.

Types of Admissions
• Formal or Judicial Admission: Made as part of a proceeding, recorded in the court's file.
• Informal or Casual Admissions: Made in the ordinary course of life, business, or casual
conversation.
• Written or oral admissions can occur in correspondence, letters, books, business diaries,
account books, passbooks, or other records.

Evidence of Admission
• Admissions can be shown wrong, but they are fully binding upon the parties that make them.
• Elective admissions, receivable at the trial as evidence, are not conclusive.

Admissions in Legal Cases

Admissions by Conduct:
• Active or passive conduct can be evidence of an admission.
• Examples include Moviarity v. London Leaham and Dover Ry. 1870, QB where the plaintiff
sued the railway company for personal injuries.
• Active conduct is considered an admission by the party that the case he is presenting is not
true.

Admissions by Silence:
• Silence can be an admission if a statement substantially affecting a person's material interest
is made in their presence and the circumstances are such that they would object if the
statement were incorrect.
• In Bessela v. Stern, 1877, the defendant's silence as to the promise of marriage was held to be
an admission.

Persons Who Their Admissions Are Relevant:

• Sections 16, 17, and 18 of the Baritiya Sakshya Adhiniyam, 2023 list the persons whose
admissions constitute evidence against a party.
• These include parties to the suit or proceeding, agents of parties authorized in this behalf,
representatives, third persons, persons whose position or liability is in issue, and the person
expressly referred to in this behalf.

Proving Admissions:
• Section 19 of the Baritiya Sakshya Adhiniyam, 2023 provides a method to prove admissions.

8)

Understanding Confession in India

Definition of Confession
• The Baritiya Sakshya Adhiniyam, 2023, and "Stephen's digest of the law of evidence" do not
define the term "confession."
• The Privy Council's definition of confession was accepted by the Supreme Court in Palvinder
Kaur v. State of Punjab, 1952.
Types of Confessions Carrying Inculpatory and ExcuLPatory Statements
• The Privy Council's definition was accepted by the Supreme Court in Palvinder Kaur v. State of
Punjab, 1952.
• The exculpatory part of the statement can be rejected if the exculpatory part is inheritably
improbable.

Kinds of Confession
• Judicial confessions are made before the magistrate or in court.
• Extra-judicial confessions are made by the accused elsewhere than before a magistrate or in
court.
• The value of a confession made outside the court is admissible only if it is voluntary.

Confession in Criminal Cases: Inducement, Threat, or Promise

• Inducement, threat, or promise must be from a person in authority.
• The confession should be in reference to the charge in question.
• Inducement will not vitiate a confession when the offered benefit has no bearing on the course
of prosecution.

Confessions and the Benefit of Temporal Nature

• Section 22 of BSA requires inducement, threat, or promise to be sufficient to give the accused
reasonable grounds to believe they would gain any advantage or avoid temporal evil.
• Moral or spiritual inducements do not vitiate a confession.

Confession after Removal of Impression Caused by Threat, Inducement, or Promise

• Section 22 of BSA states that when the impression created by threat, inducement, or promise
was no longer present at the time of confession, the concession would be relevant.

Confessesion to the Police Officer

• If confession to police were to be proved in evidence, it would force the accused to confess a
crime he might not have committed.

Section 23 (2) of BSA: Confession in Police Custody

• Confession in police custody is provable if made in conversation with anyone other than the
police officer.
• The fear of torture and forced confession is the basis of this section.
• Police custody refers to police control in various locations, not just prison walls.
• The court does not distinguish between lawful and unlawful police custody.
• If the accused confesses while in police custody but in the immediate presence of a
magistrate, the confession is valid.
• The section also allows confession to police in two situations: when the statement is made in
the immediate presence of a magistrate and when the statement leads to the discovery of a fact
connected with the crime.
• The proviso of section 23(2) is an exception to the preceding clauses dealing with confession
in police custody and other involuntary confessions.

Comparison of Section 23(2) and Proviso of 23(2)

• The Privy Council in Pulukuri Kottaya v. Emperor, 1947, PC explained the relationship between
section 23(2) and proviso of 23(2).
• The discovery of fact means something more than the produced thing.
• Only information distinctly related to the discovery is provable.

Confessions as Evidence
• Section 24 of BSA provides guidance on the relevance of a non-confessing co-accused
confession against all accused persons.
• The confession is only one element in the consideration of all the facts proved in the case.
• If the confessing co-accused was acquitted, the other accused raised the plea that the
confession of the confessing co-accused should cease to be admissible.

Evidiary Value of Confession

• Confessions are highly reliable as no rational person would admit against himself unless
prompted by his conscience to tell the truth.

9)

Understanding Dying Declaration in BSA

• Section 26 of BSA allows for a dying declaration, a statement related to the cause of death or
the circumstances leading to death made by a person before dying.
• The clause differs from English law, which only applies when the charge is murder or
manslaughter.
• The elements of a dying declaration under Section 26(a) of BSA include the person who made
the statement must have died, the case statement must be late to the cause of death or any of
the circumstances leading to it, the statement must have been made in a case where the cause
of his death came into question, and the nature of the preceding may be criminal or civil.
• The admissibility of a dying declaration is based on Maxim “Moriture Praesumntur Mentiri,”
meaning a person who is about to die would not lie.
• The court in Pakala Narayan Swami v. Emperor, 1939, PC ruled that a dying declaration can
form the sole basis of conviction, but each case must be determined on its own facts
considering the circumstances in which the dying declaration was made.

Understanding the Credibility of Dying Declarations in Court

• The court has discussed the relevancy and evidentiary value of dying declarations in various
cases.
• The court must consider the circumstances like the opportunity of the dying man of
observation, the capacity of the declarant at the time of the statement, the statement has been
consistent throughout, and it was made at the earliest possible opportunity.

WHERE IS MORE THAN ONE DYING DECLARATION?

• In Harbans Lal v. State of Haryana, 1993, SC, two declarations were presented, one recorded
by a doctor and the other written by a person and attested by Sarpanch.

Differences Between English and Indian Law on Dying Declarations

• English law only allows dying declarations in criminal cases, not civil ones.
• In India, dying declarations can be made in both civil and criminal cases.
• In English law, a dying declaration must be made under expectation of death, requiring 100%
confidence in the individual's death.
• A report about the cause of death or the circumstances leading to death is relevant as a dying
declaration under Section 26(a) of BSA.

10)

Understanding the Relevance of Judgment in Bharitiya Sakshya Adhiniyam

Types of Judgments
• Judgments in rem: Judgments affecting the legal status of subject matters, persons, or things.
These judgments are conclusive evidence against all parties, whether parties to them or not.
• Judgments in personam: Ordinary judgments not affecting the status of any subject matter,
any person, or anything. In such judgments, the rights of the parties to the suit or proceedings
are determined.

Differences Between 'JUDGMENT IN REM' and 'JUDGMENT IN PERSONAM'

• Judgments-in-rem are adjudication pronounced upon the status of a person or a thing by a
competent or a thing by a competent court.
• Judgments-in-personam are judgments of a court in exercise of probate, matrimonial, or
insolvency jurisdiction confirming or taking away any legal character.
• Judgments-in-personam are binding on all persons, whether they are parties to those
proceedings or not.

RELEVANCY OF CERTAIN JUDGMENTS IN PROBATE, ETC., JURISDICTION (SECTION 41)

• Section 35 of BSA deals with judgments-in-rem, which bind not only the parties and their
representatives but the whole world. A judgment-in-rem under Sec. 35 of BSA shall be
conclusive in civil as well as criminal proceedings.
Conditions for Application of Section 35
• The judgment should be final judgment, not an interim one.
• The court must be competent.
• The judgment must be in exercise of any of the four types of jurisdictions mentioned in the
Section viz. probate, admiralty, matrimonial and insolvency.

RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS OR DECREES, OTHER THAN

SECTION 35 (SECTION 36 of BSA)
• Judgments, orders or decrees other than those mentioned in Section 35 are relevant if they
relate to matters of public nature relevant to the enquiry.

Unit 3

11)

Primary and Secondary Evidences in Documents

Primary Evidence (Section 56 of BSA)

• Defined as any matter expressed or described on any substance by means of letters, figures,
or marks.
• The contents of documents must be proved either by primary or secondary evidence.
• No other method allowed by law for proving the contents of documents.

Primary Evidence (Section 57 of the BSA)

• The original document produced for the inspection of the court.
• Includes:
- The document itself produced for the inspection.
- Explanations for document execution in several parts.
- Explanations for document execution in counterpart.
- Explanations for documents made by one uniform process.
- Explanations for electronic or digital record creation or storage.
- Explanations for electronic or digital record produced from proper custody.
- Explanations for video recording stored in electronic form and transmitted or broadcast.
- Explanations for automated storage in a computer resource.

Secondary Evidence (Section 58 of the BSA)

• Includes:
- Certified copies given under certain provisions.
- Copies made from the original by mechanical processes.
- Counterparts of documents against parties who did not execute them.
- Oral accounts of the contents of a document given by a person who has seen it.
- Oral admissions.
- Written admissions.
 - Evidence of a person who has examined a document, which consists of numerous accounts
or other documents which cannot conveniently be examined in Court.

Allahabad High Court's View on Secondary Evidence

• The Allahabad High Court ruled that Sec. 63 (now Sec. 58 of BSA) is not exhaustive of
secondary evidence.
• The court allowed evidence of draft notes from which the final notice was prepared.
• The court noted that Sec. 58 of the BSA allows for cases that do not strictly fall within its five
clauses.
• The court must ensure that the document sought as secondary evidence is a faithful and
accurate reproduction or draft of the final document.
• Newspaper reports do not fall within the scope of secondary evidence.
• The court reiterated that mere admission of a document in evidence does not amount to its
proof.
• The court ruled that a Photostat copy of a letter alleged to have been written by the wife to her
father could be admitted as secondary evidence.
• The court emphasized that the court's obligation is to decide the question of admissibility of a
document in secondary evidence before making endorsement.
• The court ruled that the photocopy of the letter was inadmissible in evidence.

12)

Understanding the Concept of Burden of Proof

Understanding Burden of Proof

• S-104 of BSA states that a party must prove the existence of facts for a court to give judgment.
• The burden of proof lies on the party to whom it is imposed.
• The burden of proof can shift during a trial, depending on the party involved.

Onus of Proof
• In proper use, it means the party whose interest it is to prove a fact should introduce sufficient
evidence.
• The burden of proof shifts when a party admits a fact, and it is the party making the admission
to explain it away.

Civil Cases
• In civil cases, a defendant cannot take the same stand as an accused in a criminal case.
• The benefit of reasonable doubt is not necessarily given to the defendant.
• In tort actions for malicious prosecution, the plaintiff must prove that the criminal complaint was
lodged against him without any reasonable and probable cause.
• In a claim of damages for breach of contract, the complainant must show the basis on which
the damages were quantified.
Criminal Cases and the Burden of Proof

Burden of Proof in Criminal Trials

• The prosecution is responsible for proving the guilt of the accused beyond reasonable doubts.
• The prosecution cannot exploit the defense presented by the accused, even if it is false and
improbable.
• The prosecution must prove beyond reasonable doubt that the accused committed the
offence.
• The connection of the accused with the crime must be proven beyond a reasonable doubt.

The Basic Presumption in Criminal Law

• The fundamental presumption in criminal law and justice delivery system is the innocence of
the alleged accused.
• The charges should be proved beyond reasonable doubt on clear, cogent, credible, or
unimpeachable evidence.

More Serious Crimes and the Need for More Evidence

• For cases of serious crimes, more stringent evidence is required.
• For instance, the possession of a small quantity of psychotropic substance requires the
prosecution to prove its allegation of commercial possession beyond reasonable doubt.

The Plea of Aliibi (His Presence Elsewhere)

• In cases where the evidence is so inconclusive that a conclusion cannot be reached, the
benefit of doubt should be given to the accused.

Whom the Burden of Proof Lies

• Section 105 of BSA states that the burden of proof in a suit or proceeding lies on the person
who would fail if no evidence was given on either side.
• The burden of proof shifts as soon as the party adds sufficient evidence to raise a presumption
in their favor.

13)

Burden of Proof in Specific Situations

Burden of Proving Fact Specially Within Knowledge

• Section 109 of BSA states that the burden of proof lies on the person who has knowledge of a
fact.
• This principle applies when the knowledge of the subject-matter is peculiarly within the
province of one party to a suit.
• The burden of proof must lie where a person was found in possession of gold with foreign
markings.
Burden of Proving Negligence and Res-ipsa-loquitur
• The burden of proving negligence always rests with the plaintiff, even when the maxim
res-ipsa-loquitur applies.
• Once the initial burden of showing the setting of the mishap is discharged, the plaintiff is
relieved of showing further evidence of negligence.

Burden of Proving Survival and Death (Section 110 & 111 of BSA)
• Section 110 of BSA states that if a person is proven to have been living within 30 years, it is
presumed that he is alive.
• Section 111 of BSA states that if a person has not been heard of for 7 years by those who
would naturally have heard of him if he had been alive, the burden of proving that he is living
shifts to the person who affirms it.
• There is no universal rule about the presumption of date of death.
• The presumption is the same in English and Indian Law.

Section 112 of BSA: Burden of Proof as to Relationship

• Applies to three types of relationships: Partners, Landlord and tenants, and Principal and
agent.
• The person affirming the relationship is the one who proves they do not stand or have ceased
to stand.

Section 113 of BSA: Burden of Proof as to Ownership

• The person in possession of something is presumed to be the owner, and the person affirming
that they are not the owner is the one who affirms they are not the owner.
• Possession is prima facie proof of title, and the possession of the plaintiff must not be unlawful.

Proof of Good Faith: Section 114 of BSA

• The good faith of a transaction between parties is the party in a position of active confidence.
• The burden of proving the good faith of a sale is on the party in a position of active confidence.

Presumption of Legislation: Section 116 of BSA

• This section deals with the question of law and fact.

Child's Legitimacy in Marriage and Access to Each Other

• Section 116 of BSA states that every child born during marriage is legitimate unless proven
otherwise.
• The presumption of legitimacy is based on public policy, not logical reasoning.
• The responsibility for the legitimacy of a new born child is the person to whom the mother is
married at the time of birth.
• The presumption applies to children conceived before marriage and those born after
dissolution of marriage, provided other prerequisites are present.
• The presumption of legitimacy depends on the presumed fact that the parties to the marriage
have necessary access to each other.
• The presumption applies with equal force even when the child is born within days or hours
after the marriage.
• The Madras High Court in Sethu v. Palani, 1925 ruled that the marriage of the mother to one
person is not considered proof of the lack of access to any other person.

Supreme Court's Interpretation of "Access"

• Kamti Devi v. Poshi Ram, 2001, SC Thomas J. ruled that "access" refers to the existence of
opportunity for marital intercourse.
• The Privy Council in KarapayaServai v. Mayandi 1934 PC affirmed that "access" only connotes
existence of opportunity for marital intercourse.
• The Supreme Court approved this legal principle in Chilukuri Venkateswarlu v. Venkata
narayana, 1954, SC.

Vasectomy Operation and Legitimacy Presumption

• Chandramathi v. Fazhetti Balan, 1982, ruled that a married woman's pregnancy after her
husband's vasectomy operation was not sufficient to overthrow the presumption of legitimacy.
• The court also held that the absence of sperms in the husband's semen after the vasectomy
operation does not displace the presumption of legitimacy.

DNA Test and Legitimacy Presumption

• The conclusive presumption under section 116 of BSA cannot be overthrown by DNA test.
Non-access should have been proved.
• The presumption applies even if the child is born within a few days or hours after the marriage.

Standard of Proof and Rebuttal of Presumption

• The Supreme Court observed that the standard of proof in such cases must be of a degree
between the two to ensure no possibility of the child being conceived through the plaintiff’s
husband.

Presumption of Abetment of Suicide: Section 117

• This section was inserted in the Indian Evidence Act, 1872 by virtue of Criminal Law Second
Amendment Act 1983.
• The section presumes that a married woman committed suicide within 7 years from her
marriage and was subjected to cruelty by her husband or relative.

14)

Estoppel in Law and Application

Understanding Estoppel
• Estoppel is the principle of law where a person is bound by representation or conduct.
• It prevents a person from denying the truth of a statement once the other person alters their
position based on the statement.
• The doctor's foundation is that a person cannot approbate and reprobate simultaneously.
Section 121 of BSA
• Estoppel is incorporated in section 121 of BSA.
• It states that if one person intentionally causes another to believe a thing to be true and act on
it, they cannot deny the truth of that belief.
• An example is provided to illustrate the principle, based on Pickard v. Sears, 1837.

Conditions for Application of the Doctrine

• There must be a representation that a certain state of thing is true.
• The person to whom such representation is made should have acted on the belief and altered
their position, and the alteration is such that it would be iniquitous to require them to revert back
to their original position.

Representation and Estoppel in Contract Law

Representation:
• Representation of a fact can arise from any action that creates a belief in the other's mind
about the fact.
• Representation can arise from a declaration, act, or omission.
• Examples include Sarat Chundra Dey v. Gopal Chandra Laha, 1892, PC, and Mehboob Shah
v. Syed Ismail, 1995, SC.
• Representation can also arise from an 'omission' to do an act that one's duty requires.

RELIANCE AND ALTERATION OF POSITION:

• To invoke estoppel, it must be proven that the representation has been acted upon.
• Estoppel can only arise if a party to a proceeding has altered their position on the face of a
representation or promise made by another.
• Examples include Govind Ji Jevat and co. v. Shree Saraswat Mills Ltd., 1982, Bom, and G.
Sarana v. Lucknow University, 1976, SC.

Promissory Estoppel:
• Found as an exception to the doctrine of consideration in the law of contract.
• A person holding out a promise of a favor or concession to another cannot later claim that his
promise was without consideration.
• Example: Central London Property Trust Limited v. High Trees House Limited, 1947,
[Link] Estoppel Doctrine Overview

• Promissory estoppel is a doctrine developed by equity to prevent injustice when a promise

made by a person is acted on by the person to whom it is made.
• The doctrine is not applicable against the exercise of the Legislative function of the State.
• The doctrine cannot be invoked to prevent the government from discharging its function under
the law or to act contrary to law.
• An officer of the government acting outside the scope of their authority cannot plead
promissory estoppel.
• An officer acting within the scope of his Authority under a scheme can be required to act
according to the scheme and the agreement or representation.
• The officer can change the terms of an agreement to the prejudice of the other party on special
circumstances.
• Actual detriment is not necessary, only that the promisee has altered his position.

Types of Estoppel:
• Estoppel by Record: Every party has a right to appeal against what they may consider a wrong
decision.
• Estoppel by Deed: Those who make themselves party to a deed cannot deny the actual basis
on which the deed was entered into.
• Estoppel by Conduct: A person takes a particular position by his conduct.

Limitations of Estoppel:
• No estoppel against law or statute: A rule of law cannot be nullified by resorting to the doctrine
of estoppel.
• No estoppel against the Sovereign acts: The Supreme Court has laid down that there cannot
be any estoppel against the Government in the exercise of its sovereign, legislative and
executive functions.
• No estoppel against unlawful transfer of property: A valid trust was created by the owner in
respect of his property.
• No estoppel when the court has no jurisdiction.
• No estoppel against minors.
• No estoppel where the facts were known to both parties.

15)

Legal Communication and Disclosure in India

Disclosure in Marriage Cases:

• Section 128 of BSA allows disclosure of communication in suits between married persons or
proceedings where one spouse is prosecuted for a crime committed against the other.

Section 129 of BSA:

• Protects unpublished state records from disclosure, requiring permission from the head of the
concerned department.
• Section 129 must be read in conjunction with section 165 of BSA, which allows a person to
produce a document despite objections.
• The final decision on permission to disclose rests with courts.

Professional Communications:
• Section 132 of BSA states that no barrister, attorney, pleader, or vakil can disclose any
communication made to him or the contents or condition of any document with which he has
become acquainted in the course and for the purpose of his professional employment.
• The Right to Information Act, 2005, does not obliterate the application of section 132 of BSA
for protecting communication between the lawyers and the clients.

Exceptions:
• Communication made in furtherance of illegal purpose: These communications are not
protected from disclosure.
• Crime or fraud taken place since employment began: If a lawyer finds in the course of his
employment that any crime or fraud has been committed since the employment began, he can
disclose such information.
• Disclosure within express consent of the client: Such communications can be disclosed within
the client's benefit.
• Information falling into the hands of a third person: If the communication is overheard by a third
person, they may be compelled to disclose it.
• Lawyers sue against the client: If the lawyer himself sues the client for his professional
services, he may disclose as much of the relevant information as is relevant to the issue.

16)

Examining Witnesses: Types and Order of Examination

Types of Examination:
• Examination-in-chief: The examination of a witness by the party calling them.
• Cross-examination: The examination of a witness by the opposite party.
• Re-examination: The examination of a witness, subsequent to the cross-examination by the
party who called him.

Order of Examinations:
• Section 140-168 of BSA regulates the order in which witnesses are produced.
• The order involves which party examines his witnesses first and in what order.
• In civil cases, the party with the right to begin examines his witnesses first.
• In criminal cases, the prosecution must examine its witnesses first.

Exclusion of Witnesses from Courtroom:

• Witnesses must be kept out of the court room when the evidence of a party begins.
• If a witness remains in the court-room while another witness is being examined, his
examination cannot be refused.

Differences Between Examination-in-Chief, Cross-examination, and Re-examination:

• Examination-in-chief is the examination of a witness by a person calling to him.
• Cross-examination is the examination of a witness by the opposite party.
• Re-examination is the examination of a witness to remove inconsistency that may have arisen
during examination-in-chief and cross-examination.
• No leading question can be asked in examination-in-chief without court permission.
• Examination-in-chief is part of a judicial proceeding.

Order of Examination in BSA

• Witnesses are examined-in-chief, cross-examined, and re-examined if desired by the adverse
party.
• The order of examination and cross-examination must relate to relevant facts, but
cross-examination doesn't have to be limited to the facts the witness testified on.

Direction of Re-Examination
• Re-examination should explain matters referred to in cross-examination.
• If new matters are introduced, the adverse party can further cross-examine upon them.
• Cross-examination is not limited to matter proved in examination-in-chief, and even for formal
proof, it allows the cross-examiner to ask questions about the whole of his case.

Admissibility of Evidence with Unfinished Cross-Examination

• If evidence of a defendant was recorded on commission and cross-examination was only
partly held but the defendant's death occurred, his evidence is not inadmissible.
• The weight of the cross-examination should be decided considering other facts and
circumstances.

Effect of Not Giving Opportunity to Cross-Examine a Witness

• If no opportunity is given to cross-examine a witness, his evidence is excluded from
consideration.

Re-Examination
• The party who called the witness may re-examine him if necessary, confined to the explanation
of matters arising in cross-examination.
• New matters can be introduced by permission of the court, and the adverse party has the right
to cross-examine upon those points.

17)

Understanding the Concept of an Accomplice in Bhartiya Sakshya Adhiniyam

Who is an Accomplice?
• An accomplice is a person who has participated in the commission of a crime.
• The term 'accomplice' is defined as a person who participates in the actual crime charged,
either as a principal or as accessories, before or after the fact, or person committing, procuring,
or aiding and abetting.
• The House of Lords in Davis v. Director of Prosecution, 1954, and the Supreme Court of India
in RK Dalmia v. Delhi administration, 1962, followed this definition.

The Evidence of an Accomplice under Bhartiya Sakshya Adhiniyam, 2023

• Section 138 of the BSA declares an accomplice as a competent witness, and the court may
convict on such evidence.
• Section 119 of the BSA allows the court to presume that an accomplice is unworthy of credit
unless corroborated in material particulars.
• The court may presume that no reliance can be placed on the evidence of an accomplice
unless that evidence is corroborated in material particulars.

Corroboration as a Rule of Caution

• Corroboration is considered necessary due to the accomplice's criminal nature, faithlessness
towards his companions, and the state's favoritism.
• The principles to be followed were summed up by the House of Lords in Davis v. DPP, 1954.
• The evidence of one accomplice cannot be used for the corroboration of the evidence of
another accomplice.

Nature and Extent of Corroboration

• Corroboration does not necessarily require confirmation of all the circumstances of the crime,
but it is sufficient if there is confirmation as to the material circumstances of the crime and the
identity of the prisoner.
• The evidence of the approval implicating several accused persons in the commission of the
offense should be corroborated qua each accused by some independent credible evidence.

ACCOMPLICE AND CO-ACCUSED

• An accomplice is a guilty associate in a crime, while a co-accused is accused of having
committed a crime with another person.
• An accomplice accepts his participation in crime and tenders evidence that any co-accused
was also involved in the crime.

18)

Leading Questions and Lawful Questions in Court

Definition of Leading Questions

• Section 146(1) of BSA defines leading questions.
• Leading questions indicate the real or supposed fact that the examiner expects and desires to
be confirmed by the answer.
• The answer to leading questions is usually given by "yes" or "no."

Objections to Leading Questions

• If the opposite side makes any objection, leading questions cannot be put in
examination-in-chief or re-examination.
• If the Court overrules objection, leading questions may be put in cross-examination.

Misleading Questions in Cross-Examination

• A counsel cannot put question in cross-examination assuming some facts have been proved
or admitted.

Exclusion of Evidence in BSA Trials

• Section 156 of BSA excludes evidence to contradict answers to questions testing veracity.
• Evidence can be given in contradiction of a witness's statement when they depose to relevant
facts.
• A witness answering falsely can be proceeded against for giving false evidence under section
229 of the BNS.

Hostile Witnesses and Cross-Examination

• Hostile witnesses are those who do not want to tell the truth to the court.
• Hostile witnesses' evidence is not to be rejected in whole or in part, and can be used to
corroborate other reliable evidence.

Impeaching Credit of Witness

• Section 158 of BSA allows parties to give independent testimony as to the character of a
witness to indicate that he is unworthy of belief by the court.
• The credit of a witness can be impeached by the adverse party or with the court's consent.