YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

CHAPTER 8: BHARATIYA SAKSHYA ADHINIYAM

REGULATORY FRAMEWORK
The Bharatiya Sakshya Adhiniyam 2023

INTRODUCTION
The “Law of Evidence” is a system of ascertaining the facts, which are the essential elements
of a right or liability and is the primary and perhaps the most difficult function of the Court,
is regulated by a set of rules and principles known as “Law of Evidence”. The Bharatiya
Sakshya Adhiniyam 2023 an Act to consolidate and to provide for general rules and principles
of evidence for fair trial.

JUDICIAL PROCEEDINGS
1. The Bharatiya Sakshya Adhiniyam, 2023 does not define the term “judicial proceedings” but
it states that “any proceeding in the course of which evidence is or may be legally taken on
oath.
2. The word evidence in the Act signifies only the instruments by means of which relevant facts
are brought before the Court, viz., witnesses and documents, and by means of which the court
is convinced of these facts.
3. Evidence under Section 2 of the Bharatiya Sakshya Adhiniyam, 2023 may be either oral or
personal and documentary (documents produced for the inspection of the court), which may
be adduced in order to prove a certain fact (principal fact) which is in issue.

4. Facts are which form part of the same transaction, though not in issue, place or at different
times and places.

5. In general the rules of evidence are same in civil and criminal proceedings but there is a strong
and marked difference as to the effect of evidence in civil and criminal proceedings. In the
former a mere preponderance of probability due regard being had to the burden of proof is
sufficient basis of a decision, but in the latter, especially when the offence charged amounts
to serious crime, a much higher degree of assurance is required. The persuasion of guilt must
be beyond all reasonable doubt.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

RELEVANCY OF FACTS
1. Sections 3 to 50 of the Adhiniyam deal with relevancy of facts. A fact is also known as
Factum Probans or a fact that proves.
2. “fact” means and includes:
a. anything, state of things, or relation of things, capable of being perceived by the senses,
b. any mental condition of which any person is conscious. Thus facts are classified into
physical and psychological facts.

Illustrations:
i. That there are certain objects arranged in a certain order in a certain place, is a fact.
ii. That a person heard or saw something, is a fact.
iii. That a person said certain words, is a fact.
iv. That a person holds a certain opinion, has a certain intention, acts in good faith, is a fact.
Illustrations i, ii and iii, are the examples of physical facts whereas illustration iv are the
examples of psychological facts.
3. Evidence may be given of facts in issue and relevant facts.
4. According to section 3 of BSA, evidence may be given in any suit or proceeding of the existence
or non-existence of every fact in issue and of such other facts as are hereinafter declared to
be relevant, and of no others.
5. Section 3 shall not enable any person to give evidence of a fact which he is disentitled to
prove by any provision of the law for the time being in force relating to civil procedure.

Illustrations:
i. A is tried for the murder of B by beating him with a club with the intention of causing
his death. At A’s trial the following facts are in issue:
 A’s beating B with the club,
 A’s causing B’s death by such beating,
 A’s intention to cause B’s death.
ii. A suitor does not bring with him, and have in readiness for production at the first hearing
of the case, a bond on which he relies. This section does not enable him to produce the

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

bond or prove its contents at a subsequent stage of the proceedings, otherwise than in
accordance with the conditions prescribed by the Code of Civil Procedure, 1908.

IMPORTANT TERMS
Relevant Fact
A fact is said to be relevant to another when it is connected with the other in any of the
ways referred to in the provisions of this Adhiniyam relating to the relevancy of facts

Logical relevancy and legal relevancy

1. A fact is said to be logically relevant to another when it bears such casual relation with the
other as to render probably the existence or non-existence of the latter. All facts logically
relevant are not, however, legally relevant. Relevancy under the Adhiniyam is not a question of
pure logic but of law, as no fact, however logically relevant, is receivable in evidence unless it
is declared by the Act to be relevant.
2. Of course every fact legally relevant will be found to be logically relevant, but every fact
logically relevant is not necessarily relevant under the Adhiniyam as common sense or logical
relevancy is wider than legal relevancy.
3. A judge might in ordinary transaction, take one fact as evidence of another and act upon it
himself, when in Court, he may rule that it was legally irrelevant. And he may exclude facts,
although logically relevant, if they appear to him too remote to be really material to the issue.
Under Bharatiya Sakshya Adhiniyam, 2023, Legal relevancy is to be considered as against
logical relevancy.

Legal relevancy and admissibility

Relevancy and admissibility are not co-extensive or interchangeable terms. A fact may be
legally relevant, yet its reception in evidence may be prohibited on the grounds of public policy,
or on some other ground. Similarly every admissible facts not necessarily relevant.
Relevancy and admissibility are not co-extensive or interchangeable terms. A fact may be
relevant yet not admissible.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Facts in Issue
“Facts in issue” means and includes any fact from which, either by itself or in connection
with other facts, the existence, non-existence, nature or extent of any right, liability or
disability, asserted or denied in any suit or proceeding, necessarily follows.

Illustration
A is accused of the murder of B. At his trial, the following facts may be in issue:
 That A caused B's death.
 That A intended to cause B's death.
 That A had received grave and sudden provocation from B.
 That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness
of mind, incapable of knowing its nature.
A fact in issue is called as the principal fact to be proved or factum probandum and the
relevant fact the evidentiary fact or factum probans from which the principal fact follows.

The fact which constitute the right or liability called “fact in issue” and in a particular case
the question of determining the “facts in issue” depends upon the rule of the substantive law
which defines the rights and liabilities claimed.

Facts in issue and issues of fact

Under Civil Procedure Code, the Court has to frame issues on all disputed facts which are
necessary in the case. These are called issues of fact but the subject matter of an issue of
fact is always a fact in issue. Thus when described in the context of Civil Procedure Code, it
is an ‘issue of fact’ and when described in the language of Evidence Act it is a ‘fact in issue’.

CLASSIFICATION OF RELEVANT FACTS

FUNDAMENTAL RULES
Fundamental Rules of Evidences
1. No facts other than those having rational probative value should be admitted in evidence.
2. All facts having rational probative value are admissible in evidence unless excluded by a positive
rule of paramount importance.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Note: Whenever it is provided by this Adhiniyam that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved or may call for proof of it.
3. According to section 2(1)(l) of BSA, whenever it is directed by this Adhiniyam that the Court
shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
For example:
a. Presumption as to genuineness of certified copies,
b. Presumption as to documents produced as record of evidence, etc.,
c. Presumption as to maps or plans made by authority of Government.

4. Presumption is an inference of the existence of some fact, which is drawn, without evidence,
from some other fact already proved or assumed to exist.
5. Presumption is either of a fact or law. All of these are always rebuttable.
6. The Adhiniyam also provides that when one fact is declared by this Adhiniyam to be conclusive
proof of another, the Court shall, on proof of the one fact, regard the other as proved, and
shall not allow evidence to be given for the purpose of disproving it.

CLOSELY CONNECTED FACTS

1. Relevancy of facts forming part of same transaction(Section 4): Facts which, though not
in issue, are so connected with a fact in issue or a relevant fact as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different
times and places.

Illustrations:
i. A is accused of the murder of B by beating him. Whatever was said or done by A or B or
the bystanders at the beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact.
ii. A is accused of waging war against the Government of India by taking part in an armed
insurrection in which property is destroyed, troops are attacked and jails are broken open.
The occurrence of these facts is relevant, as forming part of the general transaction, though
A may not have been present at all of them.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

iii. The question is, whether certain goods ordered from B were delivered to A. The goods
were delivered to several intermediate persons successively. Each delivery is a relevant fact.

2. Facts which are occasion, cause or effect of facts in issue or relevant facts (Section 5):
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or
facts in issue, or which constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant.
Illustration:
i. The question is, whether A robbed B. The facts that, shortly before the robbery, B went to
a fair with money in his possession, and that he showed it, or mentioned the fact that he
had it, to third persons, are relevant.
ii. Motive, preparation and previous or subsequent conduct (Section 6): Any fact is relevant
which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person, an offence against whom is the subject of any
proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto.

Illustrations:
i. A sues B upon a bond for the payment of money. B denies the making of the bond. The
fact that, at the time when the bond was alleged to be made, B required money for a
particular purpose, is relevant.
ii. The question is, whether A owes B ten thousand rupees. The facts that A asked C to lend
him money, and that D said to C in A's presence and hearing—“I advise you not to trust
A, for he owes B ten thousand rupees”, and that A went away without making any answer,
are relevant facts.

 Motive means which moves a person to act in a particular way. It is different from
intention. The substantive law is rarely concerned with motive, but the existence of a
motive, from the point of view of evidence would be a relevant fact, in every criminal case.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

That is the first step in every investigation. Motive is a psychological fact and the accused’s
motive, will have to be proved by circumstantial evidence. When the question is as to
whether a person did a particular act, the fact that he made preparations to do it, would
certainly be relevant for the purpose of showing that he did it.
 The Section makes the conduct of certain persons relevant. Conduct means behaviour.
The conduct of the parties is relevant. The conduct to be relevant must be closely connected
with the suit, proceeding, a fact in issue or a relevant fact, i.e., if the Court believes such
conduct to exist, it must assist the Court in coming to a conclusion on the matter in
controversy. It must influence the decision. If these conditions are satisfied it is immaterial
whether the conduct was previous to or subsequent to the happening of the fact in issue.

iii. Facts necessary to explain or introduce fact in issue or relevant facts (Section 7):
Facts are relevant if they help explain or introduce a key fact, support or oppose an
inference from a key fact, identify a person or thing involved, show when or where
something happened, or show how the people involved are connected—if needed for
understanding the main issue.

Illustrations:
 The question is, whether a given document is the will of A. The state of A's property and
of his family at the date of the alleged will may be relevant facts.
 A sues B for inducing C to break a contract of service made by him with A. C, on leaving
A's service, says to A—“I am leaving you because B has made me a better offer”. This
statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in
issue.

iv. Things said or done by conspirator in reference to common design(Section 8): If there’s
reasonable belief that two or more people planned together to commit a crime or wrongful
act, then anything said, done, or written by any of them about that plan—after the idea
was first formed—can be used as evidence against all of them. This helps prove the
conspiracy and show who was involved.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Illustration
 Reasonable ground exists for believing that A has joined in a conspiracy to wage war
against the State. The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Kolkata for a like object, D persuaded persons to join the
conspiracy in Mumbai, E published writings advocating the object in view at Agra, and F
transmitted from Delhi to G at Singapore the money which C had collected at Kolkata,
and the contents of a letter written by H giving an account of the conspiracy, are each
relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it,
although he may have been ignorant of all of them, and although the persons by whom
they were done were strangers to him, and although they may have taken place before he
joined the conspiracy or after he left it.

v. When facts not otherwise relevant become relevant(Section 9): Facts not otherwise
relevant are relevant:
i. if they are inconsistent with any fact in issue or relevant fact,
ii. if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.

Illustration:
 The question is, whether A committed a crime at Chennai on a certain day. The fact that,
on that day, A was at Ladakh is relevant. The fact that, near the time when the crime
was committed, A was at a distance from the place where it was committed, which would
render it highly improbable, though not impossible, that he committed it, is relevant.

vi. Facts tending to enable Court to determine amount are relevant in suits for damages
(Section 10): In suits in which damages are claimed, any fact which will enable the Court
to determine the amount of damages which ought to be awarded, is relevant.
vii. Facts relevant when right or custom is in question (Section 11): Where the question is
as to the existence of any right or custom, the following facts are relevant:
i. any transaction by which the right or custom in question was created, claimed, modified,
recognised, asserted or denied, or which was inconsistent with its existence,

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 8
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

ii. particular instances in which the right or custom was claimed, recognised or exercised, or
in which its exercise was disputed, asserted or departed from.

viii. Facts showing existence of state of mind, or of body or bodily feeling (Section 12):
Facts showing the existence of any state of mind, such as intention, knowledge, good
faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing
the existence of any state of body or bodily feeling, are relevant, when the existence of
any such state of mind or body or bodily feeling is in issue or relevant.

Illustration:
 A is sued by B for fraudulently representing to B that C was solvent, whereby B, being
induced to trust C, who was insolvent, suffered loss. The fact that, at the time when
A represented C to be solvent, C was supposed to be solvent by his neighbours and by
persons dealing with him, is relevant, as showing that A made the representation in
good faith.

ix. Facts bearing on question whether act was accidental or intentional(Section 13): When
there is a question whether an act was accidental or intentional, or done with a particular
knowledge or intention, the fact that such act formed part of a series of similar occurrences,
in each of which the person doing the act was concerned, is relevant.

Illustration
 A is accused of fraudulently delivering to B a counterfeit currency. The question is, whether
the delivery of the currency was accidental. The facts that, soon before or soon after the
delivery to B, A delivered counterfeit currency to C, D and E are relevant, as showing that
the delivery to B was not accidental.

x. Existence of course of business when relevant(Section 14): When there is a question

whether a particular act was done, the existence of any course of business, according to
which it naturally would have been done, is a relevant fact.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Illustrations:
 The question is, whether a particular letter was dispatched. The facts that it was the
ordinary course of business for all letters put in a certain place to be carried to the post,
and that particular letter was put in that place are relevant.
 The question is, whether a particular letter reached A. The facts that it was posted in due
course, and was not returned through the Return Letter Office, are relevant.

ADMISSIONS AND CONFESSIONS

The general rule known as the hearsay rule is that what is stated about the fact in question
is irrelevant. To this general rule there are three exceptions which are:
Admissions and confessions Statements as to certain matters under certain circumstances by
persons who are not witnesses Statements made under special circumstances
i. Admissions and Confessions
Sections 15 to 25 lay down the exceptions to the general rule known as “admissions” and
“confessions”.

Admissions
1. An admission is defined in Section 15 as a statement, oral or documentary or contained in
electronic form which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and under the circumstances mentioned under Sections
16 to 18. Thus, whether a statement amounts to an admission or not depends upon the question
whether it was made by any of the persons and in any of the circumstances described in
Sections 16 to 18 and whether it suggests an inference as to a fact in issue or a relevant fact
in the case. Thus admission may be verbal or contained in documents as maps, bills, receipts,
letters, books etc.
2. An admission may be made by a party, by the agent or predecessor-in-interest of a party, by
a person having joint propriety of pecuniary interest in the subject matter (Section 16) or by
a “reference” (Section 18).
3. An admission is the best evidence against the party making the same unless it is untrue and
made under the circumstances which does not make it binding on him.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

4. An admission by the Government is merely relevant and non-conclusive, unless the party to
whom they are made has acted upon and thus altered his detriment.
5. An admission must be clear, precise, not vague or ambiguous. In Basant Singh v. Janky Singh,
The Supreme Court held:
i. “Section 15 of the Indian Evidence Act, 1872, makes no distinction between an admission
made by a party in a pleading and other admission. Under the Indian law, an admission
made by a party in a plaint signed and verified by him may be used as evidence against
him in other suits. However, this admission cannot be regarded as conclusive and it is open
to the party to show that it is not true.
ii. All the statements made in the plaint are admissible as evidence. The Court is, however,
not bound to accept all the statements as correct. The Court may accept some of the
statements and reject the rest.”

6. Admission means conceding something against the person making the admission. That is why
it is stated as a general rule, that admissions must be self-harming and because a person is
unlikely to make a statement which is self-harming unless it is true evidence of such admissions
as received in Court.
7. These Sections deal only with admissions oral and written.
8. Oral admissions as to the contents of electronic records are not relevant unless the genuineness
of the record produced is in question. (Section 20)

CONFESSIONS
1. Sections 22 to 24 deal with confessions. However, the Adhiniyam does not define a confession
but includes in it admissions of which it is a species. Thus confessions are special form of
admissions. Whereas every confession must be an admission but every admission may not
amount to a confession. Proviso to section 23 and section 24 deal with confessions which the
Court will take into account.
2. A confession is relevant as an admission unless it is made:
i. Person in Authority by inducement, threat or promise - to a person in authority in
consequence of some inducement, threat or promise held out by him in reference to the
charge against the accused, or

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 11
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

ii. Police Officer or

iii. In custody of police officer without the presence of magistrate
3. Thus, a statement made by an accused person if it is an admission, is admissible in evidence.
The confession is evidence only against its maker and against another person who is being
jointly tried with him for an offence.
4. Section 24 is an exception to the general rule that confession is only an evidence against the
confessor and not against the others. The confession made in front of magistrate recorded is
admissible against its maker is also admissible against co-accused under Section 24.
5. The Privy Council in Pakala Narayanaswami v. Emperor, (1929) PC 47, observed that: No
statement that contains self-exculpatory matter can amount to confession, if the exculpatory
statement is of some fact which if true would negative the offence alleged to be confessed.
All confessions are admissions but not vice versa.
6. A confession must, either admit, in terms the offence, or substantially all the facts which
constitute the offence. An admission of a gravely incriminating fact, is not of itself a
confession. For example, an admission that the accused was the owner of and was in recent
possession of the knife or revolver which caused a death with no explanation of any other
man’s possession of the knife or revolver. A confession cannot be construed as meaning a
statement by the accused suggesting the inference that he committed the crime.
7. According to Section 22(1), confession caused by inducement, threat, coercion or promise is
irrelevant. To attract the prohibition contained in Section 22 of BSA the following six facts
must be established:
i. that the statement in question is a confession,
ii. that such confession has been made by an accused person,
iii. that it has been made to a person in authority,
iv. that the confession has been obtained by reason of any inducement, threat, coercion or
promise proceeded from a person in authority,
v. such inducement, threat, coercion or promise, must have reference to the charge against
the accused person,
vi. the inducement, threat or promise must in the opinion of the Court be sufficient to give
the accused person grounds, which would appear to him reasonable for supposing that by

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 12
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

making it he would gain any advantage or avoid any evil of a temporary nature in reference
to the proceedings against him.

8. To exclude the confession it is not always necessary to prove that it was the result of
inducement, threat, coercion or promise. It is sufficient if a legitimate doubt is created in the
mind of the Court or it appears to the Court that the confession was not voluntary. It is
however for the accused to create this doubt and not for the prosecution to prove that it was
voluntarily.
9. A confession if voluntary and truthfully made is an efficacious proof of guilt.

CONFESSIONS VS. ADMISSIONS

1. A confession, however, is received in evidence for the same reason as an admission, and like
an admission it must be considered as a whole. Further, there can be an admission either in a
civil or a criminal proceedings, whereas there can be a confession only in criminal proceedings.
2. An admission need not be voluntary to be relevant, though it may affect its weight, but a
confession to be relevant, must be voluntary.
3. There can be relevant admission made by an agent or even a stranger, but, a confession to be
relevant must be made by the accused himself. A confession of a co-accused is not strictly
relevant, though it may be taken into consideration, under Section 24 in special circumstances.
4. Confessions are classified as:
i. judicial, and
ii. extra-judicial
5. Judicial confessions are those made before a Court or recorded by a Magistrate after following
the prescribed procedure such as warning the accused that he need not to make the confession
and that if he made it, it would be used against him.
6. Extra judicial confessions are those which are made either to the police or to any person other
than Judges and Magistrates as such.
7. An extra-judicial confession, if voluntary, can be relied upon by the Court along with other
evidences. It will have to be proved just like any other fact. The value of the evidence depends
upon the truthfulness of the witness to whom it is made.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 13
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

8. In Ram Khilari v. State of Rajasthan, the Supreme Court held that where an extra-judicial
confession was made before a witness who was a close relative of the accused and the
testimony of said witness was reliable and truthful, the conviction on the basis of extra judicial
confession is proper.
9. In another case, the Supreme Court has further held that the law does not require that the
evidence of an extra judicial confession should be corroborated in all cases. When such
confession was proved by an independent witness who was a responsible officer and one who
had nothing against the accused, there is hardly any justification to disbelieve it. Also, where
the Court finds that the confession made by the accused to his friend was unambiguous and
unmistakably conveyed that the accused was the perpetrator of the crime and the testimony
of the friend was truthful, reliable and trustworthy, a conviction based on such extra-judicial
confession is proper and no corroboration is necessary.
10. Much importance could not be given to minor discrepancies and technical errors.

Illustrations:
 A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A
denies that rent was due from C to B. A statement by C that he owed B rent is an
admission, and is a relevant fact as against A, if A denies that C did owe rent to B.
 The question is, whether a horse sold by A to B is sound. A says to B— “Go and ask C,
C knows all about it”. C's statement is an admission.
 The question between A and B is, whether a certain deed is or is not forged. A affirms
that it is genuine, B that it is forged. A may prove a statement by B that the deed is
genuine, and B may prove a statement by A that deed is forged, but A cannot prove a
statement by himself that the deed is genuine, nor can B prove a statement by himself
that the deed is forged.
 A and B are jointly tried for the murder of C. It is proved that A said—“B and I murdered
C”. The Court may consider the effect of this confession as against B.
 A is on his trial for the murder of C. There is evidence to show that C was murdered by
A and B, and that B said— “A and I murdered C”. This statement may not be taken into
consideration by the Court against A, as B is not being jointly tried.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 14
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

ii. Statements by persons who cannot be called as witnesses

Statements (written or verbal) of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which under the circumstances of the case
appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:
 Statements relating to cause of death: When the statement is made by a person as to
the cause of his death, or as to any of the circumstances of the transaction which resulted
in his death, in cases in which the cause of that person's death comes into question. Such
statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
 Statement relating to Course of Business: When the statement was made by such person
in the ordinary course of business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary course of business, or in the
discharge of professional duty, or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind or of a document used in
commerce written or signed by him or of the date of a letter or other document usually
dated, written or signed by him.
 Statement against interest: When the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it would expose him or would have
exposed him to a criminal prosecution or to a suit for damages.
 Statement relating to the opinion as to existence of Public Right, Custom or matter
of Public or General Interest: when the statement gives the opinion of any such person,
as to the existence of any public right or custom or matter of public or general interest,
of the existence of which, if it existed, he would have been likely to be aware, and when
such statement was made before any controversy as to such right, custom or matter had
arisen.
 Statement relating to the existence of any relationship: When the statement relates
to the existence of any relationship by blood, marriage or adoption between persons as to
whose relationship by blood, marriage or adoption the person making the statement had

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 15
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

special means of knowledge, and when the statement was made before the question in
dispute was raised.
 Statement relating to the existence of any relationship with deceased
 Statement relating to expression feelings or Impression: when the statement was made
by a number of persons, and expressed feelings or impressions on their part relevant to
the matter in question.

Illustrations:
 The question is, whether A was murdered by B or A dies of injuries received in a transaction
in the course of which she was raped. The question is whether she was raped by B, or the
question is, whether A was killed by B under such circumstances that a suit would lie
against B by A's widow. Statements made by A as to the cause of his or her death,
referring respectively to the murder, the rape and the actionable wrong under consideration,
are relevant facts.
 The question is as to the date of A's birth. An entry in the diary of a deceased surgeon
regularly kept in the course of business, stating that, on a given day he attended A's
mother and delivered her of a son, is a relevant fact.
 The question is, whether A was in Nagpur on a given day. A statement in the diary of a
deceased solicitor, regularly kept in the course of business, that on a given day the solicitor
attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon
specified business, is a relevant fact.
 The question is, whether a ship sailed from Mumbai harbour on a given day. A letter
written by a deceased member of a merchant's firm by which she was chartered to their
correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed
on a given day from Mumbai port, is a relevant fact.
 The question is, whether rent was paid to A for certain land. A letter from A's deceased
agent to A, saying that he had received the rent on A's account and held it at A's orders
is a relevant fact.
 The question is, whether, and when, A and B were married. An entry in a memorandum
book by C, the deceased father of B, of his daughter's marriage with A on a given date,
is a relevant fact.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 16
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

iii. Statements made under special circumstances:

The following statements become relevant on account of their having been made under special
circumstances:
 Entries in the books of account, including those maintained in an electronic form, regularly
kept in the course of business are relevant whenever they refer to a matter into which the
Court has to inquire, but such statements shall not alone be sufficient evidence to charge
any person with liability.
 An entry in any public or other official book, register or record or an electronic record,
stating a fact in issue or relevant fact, and made by a public servant in the discharge of
his official duty, or by any other person in performance of a duty specially enjoined by the
law of the country in which such book, register or record or an electronic record, is kept,
is itself a relevant fact.
 When the Court has to form an opinion as to the existence of any fact of a public nature,
any statement of it, made in a recital contained in any Central Act or State Act or in a
Central Government or State Government notification appearing in the respective Official
Gazette or in any printed paper or in electronic or digital form purporting to be such
Gazette, is a relevant fact.
 When the Court has to form an opinion as to a law of any country, any statement of such
law contained in a book purporting to be printed or published including in electronic or
digital form under the authority of the Government of such country and to contain any
such law, and any report of a ruling of the Courts of such country contained in a book
including in electronic or digital form purporting to be a report of such rulings, is relevant.

OPINION OF THIRD PERSONS

Generally opinion of third persons is irrelevant. However, in the below mentioned cases, opinion
of third person may be treated as relevant:
1. Opinions of experts (Section 39): When the Court has to form an opinion upon a point of
foreign law or of science or art, or any other field, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such foreign law, science
or art, or any other field, or in questions as to identity of handwriting or finger impressions
are relevant facts and such persons are called experts.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 17
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Illustration:
 The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A. The opinions of experts
on the question whether the two documents were written by the same person or by
different persons, are relevant.
 Further, when in a proceeding, the court has to form an opinion on any matter relating to
any information transmitted or stored in any computer resource or any other electronic or
digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A
of the Information Technology Act, 2000, is a relevant fact.

2. Facts bearing upon opinions of experts (Section 40): acts, not otherwise relevant, are relevant
if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

3. Opinion as to handwriting and signature, when relevant (Section 41): When the Court has
to form an opinion as to the person by whom any document was written or signed, the opinion
of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.
A person is said to be acquainted with the handwriting of another person when he has seen
that person write, or when he has received documents purporting to be written by that person
in answer to documents written by himself or under his authority and addressed to that person,
or when, in the ordinary course of business, documents purporting to be written by that person
have been habitually submitted to him.
4. Opinion as to existence of general custom or right, when relevant (Section 42): When the
Court has to form an opinion as to the existence of any general custom or right, the opinions,
as to the existence of such custom or right, of persons who would be likely to know of its
existence if it existed, are relevant.
5. Opinion as to usages, tenets, etc., when relevant (Section 43): When the Court has to form
an opinion as to:
i. the usages and tenets of any body of men or family,
ii. the constitution and governance of any religious or charitable foundation, or

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 18
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

iii. the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.
6. Opinion on relationship, when relevant (Section 44): When the Court has to form an opinion
as to the relationship of one person to another, the opinion, expressed by conduct, as to the
existence of such relationship, of any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact. However, such opinion shall not
be sufficient to prove a marriage in proceedings under the Divorce Act, 1869, or in prosecution
under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.
7. Grounds of opinion, when relevant (Section 45): Whenever the opinion of any living person
is relevant, the grounds on which such opinion is based are also relevant.

FACTS OF WHICH EVIDENCE CANNOT BE GIVEN (PRIVILEGED COMMUNICATIONS)

There are some facts of which evidence cannot be given though they are relevant, such as
facts are mainly covered under Sections 127 to 134 of the BSA, where evidence is prohibited
under those Sections. They are also referred to as ‘privileged communications’.
Types of privileged communications
i. Evidence of a Judge or Magistrate in regard to certain matters,
ii. Official communications,
iii. Communications during marriage,
iv. Source of information of a Magistrate or Police,
v. officer or Revenue officer as to commission of an offence or crime,
vi. Evidence as to Affairs of State,
vii. Professional communication between a client and his barrister, attorney or other
professional or legal advisor

Evidence of Judges and Magistrates

Under Section 127 of BSA, no Judge or Magistrate shall, except upon the special order of some
Court to which he is subordinate, be compelled to answer any questions as to his own conduct
in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court
as such Judge or Magistrate, He may be examined as to other matters which occurred in his
presence whilst he was so acting.
Communications during marriage

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 19
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Under Section 128 of BSA, communication between the husband and the wife during marriage
is privileged and its disclosure cannot be enforced. This provision is based on the principle of
domestic peace and confidence between the married couple. The Section contains two parts,
the first part deals with the privilege of the witness while the second part of the Section deals
with the privilege of the husband or wife of the witness.

Evidence as to affairs of State

Section 129 of the BSA applies only to evidence derived from unpublished official record relating
to affairs of State. According to Section 129, no one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State, except with the
permission of the officer at the head of the department concerned, who shall give or withhold
such permission as he thinks fit.

Professional communications
1. Section 132 of BSA deal with the professional communications between an advocate and a
client, which are protected from disclosure. A client cannot be compelled and an advocate
cannot be allowed without the express consent of his client to disclose oral or documentary
communications passing between them in professional confidence.
2. The rule is founded on the impossibility of conducting legal business without professional
assistance and securing full and unreserved communication between the two. Under these
sections neither an advocate nor his interpreter, clerk or employees can be permitted to disclose
any communication made to him in the course and for the purpose of professional employment
of such advocate or to state the contents or condition of any document with which any such
person has become acquainted in the course and for the purpose of such employment.
3. Further, under section 134, no one shall be compelled to disclose to the Court any confidential
communication which has taken place between him and his legal adviser, unless he offers
himself as a witness, in which case he may be compelled to disclose any such communications
as may appear to the Court necessary to be known in order to explain any evidence which he
has given, but no others.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 20
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

ORAL, DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCE

Oral Evidences
1. All facts, except the contents of documents may be proved by oral evidence
2. The contents of documents may be proved either by primary or by secondary evidence

Thus, the two broad rules regarding oral evidence are:

i. All facts except the contents of documents may be proved by oral evidence,
ii. Oral evidence must in all cases be “direct”.
Oral evidence means statements which the Court permits or requires to be made before it by
witnesses in relation to matters of fact under inquiry. But, if a witness is unable to speak he
may give his evidence in any manner in which he can make it intelligible as by writing or by
signs.

Direct Evidence
1. In Section 55 of the BSA, expression “oral evidence” has an altogether different meaning. It
is used in the sense of “original evidence” as distinguished from “hearsay” evidence and it is
not used in contradiction to “circumstantial” or “presumptive evidence”.
2. According to Section 55 oral evidence must in all cases whatever, be direct, that is to say:
i. if it refers to a fact which could be seen, it must be the evidence of a witness who says
he saw it,
ii. if it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it,
iii. if it refers to a fact which could be perceived by any other sense or in any other manner,
it must be the evidence of a witness who says he perceived it by that sense or in that
manner,
iv. if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 21
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Documentary Evidences
1. According to section 2(1)(d) “document” means any matter expressed or described or otherwise
recorded upon any substance by means of letters, figures or marks or any other means or by
more than one of those means, intended to be used, or which may be used, for the purpose of
recording that matter and includes electronic and digital records.
2. According to section 56, the contents of documents may be proved either by primary or by
secondary evidence.
3. So, the documentary evidences can further be classified in two ways i.e. Primary or Secondary.

Documentary Evidences
i. Primary Evidence
ii. Secondary Evidences

Primary evidence
1. “Primary evidence” means the document itself produced for the inspection of the Court (Section
57). The rule that the best evidence must be given of which the nature of the case permits
has often been regarded as expressing the great fundamental principles upon which the law of
evidence depends.
2. The general rule requiring primary evidence of producing documents is commonly said to be
based on the best evidence principle and to be supported by the so called presumption that if
inferior evidence is produced where better might be given, the latter would tell against the
withholder.

Secondary evidence
1. Secondary evidence is generally in the form of compared copies, certified copies or copies made
by such mechanical processes as in themselves ensure accuracy. Section 58 defines the kind
of secondary evidence permitted by the Sanhita. According to Section 58, “secondary evidence”
means and includes:
i. certified copies given under the provisions after section 58,
ii. copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies,

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 22
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

iii. copies made from or compared with the original,

iv. counterparts of documents as against the parties who did not execute them,
v. oral accounts of the contents of a document given by some person who has himself seen
it,
vi. oral admissions,
vii. written admissions,
viii. evidence of a person who has examined a document, the original of which consists of
numerous accounts or other documents which cannot conveniently be examined in Court,
and who is skilled in the examination of such documents.

Illustrations:
 A photograph of an original is secondary evidence of its contents, though the two have
not been compared, if it is proved that the thing photographed was the original.
 A copy compared with a copy of a letter made by a copying machine is secondary evidence
of the contents of the letter, if it is shown that the copy made by the copying machine
was made from the original.
 Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine-copy of the original, is secondary evidence of the original.

2. Further, section 60 provides the Cases in which secondary evidence relating to documents may
be given. Secondary evidence may be given of the existence, condition, or contents of a
document in the following cases, namely:
a. when the original is shown or appears to be in the possession or power:
i. of the person against whom the document is sought to be proved, or
ii. of any person out of reach of, or not subject to, the process of the Court, or
iii. of any person legally bound to produce it, and when, after the notice mentioned in
section 64 such person does not produce it.
b. when the existence, condition or contents of the original have been proved to be admitted
in writing by the person against whom it is proved or by his representative in interest,

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 23
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

c. when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce
it in reasonable time,

d. when the original is of such a nature as not to be easily movable,

e. when the original is a public document,
f. when the original is a document of which a certified copy is permitted by this Adhiniyam
or by any other law in force in India to be given in evidence,
g. when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the
whole collection.

3. Section 62 provides that the contents of electronic records may be proved in accordance with
the provisions of Section 63.
4. Section 63 is non-obstante clause which provides that any information contained in an
electronic record which is printed on paper, stored, recorded, which is produced by a computer
or any communication device or otherwise stored, recorded or copied in any electronic form
(hereinafter referred to as the computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings, without further proof or
production of the original, as evidence or any contents of the original or of any fact stated
therein of which direct evidence would be admissible.

PRESUMPTIONS
1. The Sanhita recognises some rules as to presumptions. Rules of presumption are deduced from
enlightened human knowledge and experience and are drawn from the connection, relation and
coincidence of facts and circumstances.
2. A presumption is not in itself an evidence but only makes a prima facie case for the party in
whose favour it exists.
3. A presumption is a rule of law that courts or juries shall or may draw a particular inference
from a particular fact or from particular evidence unless and until the truth of such inference
is disproved.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 24
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Three Categories of Presumptions:

 Presumptions of law, It is a rule of law that a particular inference shall be drawn by a
court from particular circumstances.
 Presumptions of fact, it is a rule of law that a fact otherwise doubtful may be inferred
from a fact which is proved.
 Mixed presumptions, they consider mainly certain inferences between the presumptions of
law and presumptions of fact.

ESTOPPEL
 When we see a man knocked down by a speeding car and a few yards away, there is a car
going, there is a presumption of fact that the car has knocked down the man.
 The general rule of estoppel is when one person has by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true and to act
upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative to deny the truth of that thing.
 However, there is no estoppel against the Statute. Where the Statute prescribes a particular
way of doing something, it has to be done in that manner only.

Principle of Estoppel
1. Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person alleging
contrary facts should not be heard. The principles of estoppel covers one kind of facts. It says
that man cannot approbate and reprobate, or that a man cannot blow hot and cold, or that a
man shall not say one thing at one time and later on say a different thing.
2. The doctrine of estoppel is based on the principle that it would be most inequitable and unjust
that if one person, by a representation made, or by conduct amounting to a representation,
has induced another to act as he would not otherwise have done, the person who made the
representation should not be allowed to deny or repudiate the effect of his former statement
to the loss and injury of the person who acted on it.
3. Estoppel is a rule of evidence and does not give rise to a cause of action. Estoppel by record
results from the judgement of a competent Court. It was laid down by the Privy Council in

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 25
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

Mohori Bibee v. Dharmodas Ghosh, that the rule of estoppel does not apply where the statement
is made to a person who knows the real facts represented and is not accordingly misled by it.
4. The principle is that in such a case the conduct of the person seeking to invoke rule of estoppel
is in no sense the effect of the representation made to him.
5. In Biju Patnaik University of Tech. Orissa v. Sairam College, one private university permitted to
conduct special examination of students pursuing studies under one time approval policy. After
inspection, 67 students were permitted to appear in the examination and their results declared.
However, university declined to issue degree certificates to the students on the ground that
they had to appear for further examination for another condensed course as per syllabus of
university. It was held that once students appeared in an examination and their results declared,
the university is estopped from taking decision withholding degree certificate after declaration
of results.

Different kinds of Estoppel

 Estoppel by attestation
 Estoppel by Contract
 Constructive estoppel
 Estoppel by election
 Equitable estoppel
 Estoppel by Negligence
 Estoppel by Silence

ELECTRONIC EVIDENCE (E-EVIDENCE)

The contents of electronic records may be proved in accordance with the provisions of section
63 of BSA.

Admissibility of electronic records

1. According to section 63, any information contained in an electronic record which is printed on
paper, stored, recorded or copied and which is produced by a computer or any communication
device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to
as the computer output) shall be deemed to be also a document, if the conditions mentioned

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 26
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

in this section are satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the original, as evidence
or any contents of the original or of any fact stated therein of which direct evidence would be
admissible.
2. As per section 63(2), the conditions in respect of a computer output are as follows:
i. the computer output containing the information was produced by the computer or
communication device during the period over which the computer or Communication device
was used regularly to create, store or process information for the purposes of any activity
regularly carried on over that period by the person having lawful control over the use of
the computer or communication device,
ii. during the said period, information of the kind contained in the electronic record or of
the kind from which the information so contained is derived was regularly fed into the
computer or Communication device in the ordinary course of the said activities,
iii. throughout the material part of the said period, the computer or communication device
was operating properly or, if not, then in respect of any period in which it was not
operating properly or was out of operation during that part of the period, was not such
as to affect the electronic record or the accuracy of its contents, and
iv. the information contained in the electronic record reproduces or is derived from such
information fed into the computer or Communication device in the ordinary course of the
said activities.

Treatment of activity regularly carried on over a period by means of one or more computers
or communication
Where over any period, the function of creating, storing or processing information for the
purposes of any activity regularly carried on over that period was regularly performed by means
of one or more computers or communication device, whether—
 in standalone mode, or
 on a computer system, or
 on a computer network, or
 on a computer resource enabling information creation or providing information processing
and storage, or

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 27
YES Academy for CA/CS/LAW Mindset is Everything… CS Executive – JIGL

 through an intermediary,
All the computers or communication devices used for that purpose during that period shall be
treated for the purposes of this section as constituting a single computer or communication
device, and references in this section to a computer or communication device shall be construed
accordingly.

Submission of certificate along with the electronic record

In any proceeding where it is desired to give a statement in evidence by virtue of this section,
a certificate doing any of the following things shall be submitted along with the electronic
record at each instance where it is being submitted for admission, namely:
i. identifying the electronic record containing the statement and describing the manner in
which it was produced,
ii. giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that the electronic record was produced by
a computer or a communication device.
iii. dealing with any of the matters to which the conditions mentioned in sub-section (2)
relate, and purporting to be signed by a person in charge of the computer or communication
device or the management of the relevant activities (whichever is appropriate) and an
expert shall be evidence of any matter stated in the certificate, and for the purposes of
this sub-section it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it in the certificate specified in the Schedule.
iv. Further, as per section 66 of BSA, except in the case of a secure electronic signature, if
the electronic signature of any subscriber is alleged to have been affixed to an electronic
record, the fact that such electronic signature is the electronic signature of the subscriber
must be proved.

Adv Chirag Chotrani ([Link], LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 28