BHARTIYA SHAKSHYA ADHINIYAM (B.S.A.

ANSWERS

Q.1) WHO IS AN ACCOMPLICE? WHAT IS THE NATURE, SCOPE AND

EVIDENTIARY VALUE OF HIS EVIDENCE IN CRIMINAL TRIAL?

ANS) The Bharatiya Sakshya Adhiniyam, 2023 has a provision regarding

accomplice under section 138. The Bharatiya Sakshya Adhiniyam, 2023 has
the following Adversarial criminal justice system and the role of evidence plays a
pivotal role in the process of trial, either for conviction or acquittal of an accused.

In legal contexts, particularly under Section 138 of B.S.A 2023, the term
‘accomplice’ plays an important role. An accomplice is someone who participates
in a crime alongside another person or group.

Accomplice is a person who along with others takes part in commission of crime.
He is a person who participate in commission of crime, either in commission of
offence before or after commission of offence, or by way of his presence at the
place of crime, even if he was absent from that place while it was committed
because he was responsible for abbetting or aiding the crime.

Although the Indian Evidence Act, 1872, and B.S.A 2023, does not explicitly
define the term ‘accomplice,’. It is generally understood in its ordinary sense. The
judiciary has attempted to define the term through various rulings. In the case of
R.K. Dalmia V Delhi Administration, 1962 an accomplice was defined as
someone who voluntary co-operates with or with the help of others in the
commission of the crime. He said to be “particeps criminis”, means a participator
in the actual crime.

Following persons are accomplice

1. person who commits the crime,

2. person who is present and assisting in preparation of crime
3. person who counsels, connives at encourages or procures the commission of
crime
4. person who knows that offence has been committed and who receives, comforts
or assists the offender to escape from punishment, rescues from arrest,
5. Bribe givers are accomplice

Followings persons are not accomplice

1. When a person committed an offence under threat, or compulsion, etc, because

in that circumstances he has not committed offence voluntarily.
2. A person who witness an offence, but does not inform the authorities or others
out of fear
3. Detectives or paid informers and trap or decoy witnesses are not accomplices

DEFINITION OF ACCOMPLICE
The Black Law's dictionary defines an "accomplice" as a person who has
participated in a guilty act and is liable in a criminal action, by being present
at the place where crime has been committed by aiding or abetting in it even
when he is absent from the place where crime has been committed, the person
participated having advised or encouraged it.

The Bharatiya Sakshya Adhiniyam, 2023 has a provision regarding accomplice

under section 138. The Bharatiya Sakshya Adhiniyam, 2023 has the following
Adversarial criminal justice system and the role of evidence plays a pivotal role in
the process of trial, either for conviction or acquittal of an accused.
CATEGORIES OF ACCOMPLICE
CATEGORIES OF
ACCOMPLICE

PRINCIPLE
OFFENDER
ACCESSORY
OF FIRST AFTER THE
DEGREE FACT

PRINCIPLE
OFFENDER OF ACCESSORY
SECOND BEFORE THE
DEGREE FACT

v Principal Offender of first degree is a person who actually commits the

crime.
v Principal Offender of second degree is a person who either abets or aids
the commission of crime.
v Accessory before the fact is a person who abets, incites, procures or
counsels for the commission of crime but does not himself participate in the
commission of that crime.
v Accessory after the fact is a person who receives or comforts or protects
persons who have committed the crime knowing that they have committed
it. If he helps the accused in escaping from punishment or helps him from
not being arrested, such a person is guilty of harbouring the accused.
ESSENTIAL FOR ACCOMPLICE

ESSENTIAL FOR
ACCOMPLICE

SHOULD BE
A PERSON
AWARE OF
WHO

CRIME COMPLETI
HAS
ON SEEN

PREPRATI NOT
ON SHOULD HAVE TRIED
CONSENTED TO
SUCH ACT
TO STOP

WHO IS AN ACCOMPLICE WITNESS?

Accomplice witness is someone who is both a witness to a crime and an

accomplice in that same crime. Witness to a crime who either as principal, or
accessory, was connected with the crime by unlawful act or omission on his or her
part, either before, at the time or after commission of the offence.

If the witness cannot be prosecuted for the offense with which the accused is
charged, then the witness is not an accomplice witness as a matter of law.
Moreover, a witness is not an accomplice witness merely because he or she knew
of the offense and did not disclose it, or even concealed it.
When an Accomplice Becomes a Competent Witness

Section 118 of the Indian Evidence Act deals with the competency of witnesses.
Competency is a prerequisite for examining a person as a witness and the sole
criterion for competency is that the witness should not be prevented by his age,
mental or physical state or disease from understanding the questions posed to him
or from giving rational answers.

Similarly, Section 133 of the Indian Evidence Act describes the competency of
accomplice witnesses, stating that they should not be co-accused under trial in the
same case and may be examined on oath.

WHEN IS AN ACCOMPLICE COMPETENT WITNESS?

If an accomplice is jointly indicted with his fellows, he is incompetent to testify,
unless he is tendered a pardon; or unless he has been discharged, acquitted or
convicted.
In other words, accomplice is a competent witness, if, at the time he is required to
give evidence, he is not an accused person in the case in which he is required to
testify.

An accomplice by accepting a pardon under section 306 of CrPC, 1973, becomes

a competent witness and may as any other witness be examined on oath, and the
prosecution must be withdrawn and the accused formally discharged under section
321, CrPC, 1973.

Under Art. 20(3) of the Constitution of India, 1950, no accused shall be compelled
to be a witness against himself. But an accomplice accepts a pardon of his free will
on condition of a true disclosure, in his own interest and is not compelled to give
self-incriminating evidence.

Under section 308(1) of CrPC, 1973, when a pardoned accused who is bound to
make full disclosure, fails to do so, either by willfully concealing anything
essential or by giving false evidence, not complied with the condition on which the
tender was made, such person may be tried for the offence in respect of which the
pardon was so tendered or for any other offence of which he appears to have been
guilty in connection with the same matter.
Evidentiary value of an Accomplice
When an accomplice makes a testimony, it is not seen as reliable evidence for a
conviction, and it has to be verified with other material evidence; this is called
corroboration.

According to Black law's dictionary, to corroborate means to strengthen, to make

a statement or testimony more credible by confirming facts or evidence.
Corroborative evidence, in a way, is a supplementary testimony to the already
given evidence and tending to strengthen or confirm; additional evidence of a
different character to the same point.

Corroboration does not mean that there should be independent evidence of all facts
which have been related by an accomplice. "Indeed, if it were required that the
accomplice should be confirmed, every detail of crime evidence would not be
essential in the case." To count as corroboration, it is not enough that a piece of
evidence merely supports that the accomplice is credible but must go a little further
and implicate the accused.

IMPORTANCE OF SECTIONS 119 AND 138, BSA, AND

NECESSITY OF CORROBORATION

Section 138 of the BSA, 1872, describes about competency of accomplice. It

provides: “An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice”.

Illustration (b) to section 119, BSA, states that an accomplice is unworthy of credit,
unless he is corroborated in material particulars.

Reading above two provisions, it is clear that the most important issue with respect
to accomplice evidence is that of corroboration.

Insistence upon corroboration is based on the rule of caution and is not a rule of
law.

Joint reading of both sections points out that: ‘a conviction based on the
uncorroborated testimony of an accomplice is not illegal, but according to
prudence it is not safe to rely upon uncorroborated evidence of accomplice and
thus judges must exercise extreme caution and care while considering
uncorroborated accomplice evidence’.

Accomplice evidence is untrustworthy and therefore should be corroborated

for the following reasons:

Ø An accomplice is likely to swear falsely in order to shift the guilt from

himself;
Ø An accomplice is a participator in crime and thus an immoral person;
Ø An accomplice gives his evidence under a promise of pardon or in the
expectation of pardon, if he discloses all he knows against those with
whom he acted criminally, and this hope would lead him to favour the
prosecution. Thus, by means of a pardon, he transfers himself from the
accused’s dock to the witness-box as an approver, to give evidence for
the state.

Appreciation of accomplice’s or approver’s evidence therefore, has to satisfy a

double test. His evidence must show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is satisfied the second test which still
remains to be applied is that the approver’s evidence must receive sufficient
corroboration. This test is special to the cases of weak or tainted evidence like that
of the approver [Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC
637].
 WITNESS
"Witness" as Bentham said: " Witness are the eyes and ears of justice. Hence, the
importance and primary of the quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the trial gets putrefied and
paralysed, and it no longer can constitute a fair trial. The incapacitation may be
due to several factors, like the witness being not in a position for reasons beyond
control to speak the truth in the court or due to negligence or ignorance or some
corrupt collusion.

Witnesses are very important in a criminal case because their statements can be
the main evidence for or against the accused, helping to ensure a fair judgment.
The Indian Evidence Act has rules about who can testify in court and what evidence
can be accepted. This article looks closely at the rules about witnesses in the Indian
Evidence Act.

The general rule is that all competent person can be compelled to give
evidence. But there are some people who cannot be compelled to give evidence,
like President and governor when they are in office. Common witnesses can be
forced to answer all questions. But there are some privileged witnesses who
cannot be compelled to give evidence.

Who is a witness?

In common legal parlance, any person appearing before a court or tribunal to

provide evidence or testimony is called a witness for or against any person
involved in it.

According to Black’s Law Dictionary ,“Witness is one who sees, knows or vouches
for something or one who gives testimony, under oath or affirmation in person or
by oral or written deposition”.

Witnesses play an important role in the criminal justice system of any country.

As a general rule of evidence, witness must only state the facts which he has seen,
heard or perceived and his personal opinion or belief holds no relevance in court
of law. It has been observed that, if a witness is allowed to state his opinion, it
would amount to delegation of judicial function. [Mubarak Ali Ahmed v. State of
Bombay, AIR 1957 SC 857]

Who is a witness?

Any person

Appearing before
court or tribunal
Any person
involved in it.

To provide evidence
or testimony For or against

Who can be a witness?

You may be asked to be a witness if you:

Ø are a victim of crime

Ø know something about a particular crime (e.g., you saw it taking place)
Ø have expert knowledge of a subject (called an 'expert witness’)
Ø know one of the persons involved in the case (called a 'character witness')

If you give a witness statement to the police, it may be some time before you know
if you'll need to go to court. This is because legal cases can take a long time to
prepare. If the case does go to court and your evidence is needed, you will be
contacted.

Who can be a
witness?

Any person

Victim of crime
Person involved
in this case

Know something
about particular Expert knowledge
crime of subject
Section 124 of BSA

Section 124 of the Bhartiya Sakshya Adhiniyam i.e,

BSA 2023 talks about who may testify? All person shall be competent
witness, unless the court considers that they can’t understand the
question or can’t give rational answer to the question which may be due
to-

1. Tender years (child)

2. Extreme old age
3. Disease of mind or body
4. Any other such cause

Explanation of section 124 says that generally a lunatic person does not
have the capacity to testify unless his lunacy does not prevent him from
understanding the question and give a rational answer and a small child
of even 6 or 7 years of age can testify if the court is satisfied that they are
capable of giving a rational testimony.

Case- DHANRAJ & ORS, SMT. VENUBAI V STATE OF MAHARASHTRA

,2002.

A child of class eighth was a witness to the event. The apex court
observed that a student of class eight standard these days is smarter and
has enough intelligence to perceive a fact and narrate the same.
Therefore, the court held that the statement of a child who is not very
small can give testimony for the same reason
 KINDS OF WITNESS

PROSECUTI EYE
ON

HOSTILE
DEFENC
E
DUMB

EXPERT

CHANCE
CHILD
INTEREST
ACCOMPLI ED
CE

1. Prosecution witness - A person called to court by the prosecution to support

their case.

2. Defence witness - A person who supports the defence and helps prove the
accused is not guilty.

3. Eye witness - A person who saw the crime happen and can describe it
accurately in court.

4. Expert witness - A person with special knowledge or skills that the court can
trust to help make a decision.

5. Hostile witness - A person whose statements seem untruthful or who does not
want to share the truth.

6. Child witness - A child who understands the court questions and can give
reasonable answers can testify in court.

7. Dumb witness - A person who cannot speak can give their statements in
writing, which the court will accept as evidence.

8. Chance witness - A person who happens to be at the crime scene by

coincidence.
 9. Accomplice witness - A person involved in the crime who gives statements in
court.

10. Interested witness - A person who has a personal stake in the case and hopes
to gain something from the outcome.

How can Dumb witnesses Provide evidence? (Section 125)

Every witness is important to the court because their statements about the crime
help the court deliver justice. If a witness cannot speak, then According to Section
125 of BSA 2023, a witness may give his evidence in any other manner in which
he can make it intelligible as by writing or by signs.. Written statements are
treated the same as spoken evidence. But such writings and sign must be made
in open court.

In the case of Lakhan v. Emperor, it was decided that if someone chooses to stay
silent for religious reasons, they must still provide written answers to all questions
and submit them as evidence in court.

State of Rajasthan versus Darshan Singh (2012)

In this case, it was held that if the witness can read and write, then his statement
should be taken in writing.

Queen Empress versus Abdullah(1885)

In this case, it was held that gestures can also be considered as oral evidence.

WITNESS PROTECTION SCHEME 2018

The Witness Protection Scheme, 2018 helps keep witnesses safe based on how
much danger they are in. The ways to protect them includes –

• Changing Their Identity,

• Moving Them to A New Place,
• Adding Security at Their Home, And
• Using Special Courtrooms.

There are three levels of witness protection based on the level of threat:
Category 'A': If there is a serious threat to the life of the witness or their family
during or after the investigation/trial.

Category 'B': If there is a threat to the safety, reputation, or property of the witness
or their family during or after the investigation/trial.

Category 'C': If there is a moderate threat that involves harassment or intimidation

of the witness or their family during or after the investigation/trial.

NEED FOR WITNESS PROTECTION SCHEME

A witness protection scheme is important to help witnesses feel safe when they
give information in court. It protects them from being harmed or scared while they
help the court with the case.

IMPORTANCE OF WITNESS

A witness knows important details about a crime and is key to the investigation.
They share what they saw and know, helping the court understand what happened
and assisting the judge in making decisions about the case.

THREATS TO THE WITNESSES

Witnesses face various threats, such as:

1. Being forced to lie or not testify at all.

2. Being offered money or gifts to change their testimony.
3. Being threatened with harm to themselves or their property.
4. Being threatened with harm to their family members.
5. Being prevented from getting to court.
 EXAMINATION OF WITNESS
Q.)
EXPLAIN AS TO HOW THE CREDIT OF A WITNESS
CAN BE IMPEACHED BY THE ADVERSE PARTY?
In any legal proceeding, the credibility of a witness can significantly impact the
outcome. The testimony of a reliable witness may sway the court’s decision, while
a questionable witness can cast doubts on the evidence presented. Section 158 of
the Bharatiya Sakshya Adhiniyam (BSA) focuses on concept of “Impeaching
the Credit of a Witness .”

A witness is seen as living evidence. Their role is crucial for justice. However, the
information they provide may not always be trustworthy because it can be affected
by powerful people. It is essential to check if the witness is reliable to ensure
fairness and truth.

Impeaching a witness means questioning how trustworthy their evidence is. It

involves showing the witness's true character to convince the court that they cannot
be trusted, so the court should not depend on their testimony.

Examination of witnesses plays an important role in the presentation of the

evidence in a court of law irrespective of the civil or criminal case and
admissibility of evidence is also an important aspect which has to be decided by
the judges only.

The credit of the witness can be impeached by cross-examination and by other

independent pieces of evidence.
 METHODS OF
IMPEACHING
CREDIT

THROUGH
THROUGH CROSS-
INDEPENDENT
EXAINATION
WITNESS

REGARDI CALLING
NG THE TESTIMONEY
CREDIBIL PARTY OF
FORMER
ITY SEC-157 UNWORTHINE
INCONSISTE
SECTIO SS
SEC-143) NT
STATEMENT
SEC-158
REGARDING
(a)
WITNESS
CHARACTER SEC-158
WITNESS (c)
HAS
SEC-145 BRIBED
SEC-158 (b)
TO TEST THE
WITNESS
VARACITY AND
DAMAGE
SEC-149

What does it mean by Impeaching the Credit of a Witness ?

Impeaching the credit of a witness means challenging or questioning the
reliability and honesty of a witness’s testimony during a trial. Under Section 158
of the Bharatiya Sakshya Adhiniyam (BSA), the opposing party (or, with the
court’s permission, the party who called the witness) can challenge a witness’s
credibility in specific ways.
Q. ) FACTS WHICH NEED NOT TO BE PROVED
UNDER BSA.
As a general rule of law, the party to a suit is required to prove his cause before
the court either overly or documentary evidence which which includes electronic
evidence. However, uncertain scenarios provided under bharatiya sakshaya
adhiniyam, 2023 (bsa)where the party is suite and not required to provide
evidence in favour of their assertions or allegations or blaims.
The court gave relief to the parties, if if the facts of the case falls under the category
which are given under section 51 – 53, then the parties has not need to prove their
facts it deemed to be proved by the court itself.

The facts which not need to be proved are given below:-

1. Facts which are judicially noticeable.
2. Facts of which court must take judicial office.
3. Facts, which are admitted need not be proved.

WHAT FACT NEED NOT BE PROVED:-

Generally, the parties to a suit must produce evidence before the court to prove
their assertion and claims. However, there are certain cases under which admission
of evidence for the purpose of endorsement is unnecessary.
The provision related to unnecessary of production of evidences before the court
on certain facts have been provided under section 51-53 of the BHARTIYA
SAKSHYA ADHINIYAM, 2023.

WHAT DO YOU MEAN BY FACTS?

The term fact are given or defined under section 2(f) of the Bhartiya Shakshya
Adhiniyam, 2023 which define fact as:-
Section 2 (f) of the BSA states that:
• Fact means and includes—
• Anything,
• state of things, or relation of things,
• capable of being perceived by the senses.
• Any mental condition of which any person is conscious.
1. FACTS, WHICH ARE JUDICIALLY NOTICEABLE
NEED NOT TO BE PROVED (SEC- 51)
According to section 51 of the BSA, the facts of which the court will take
judicial notice need not to be proved.
This means that if the court is bound to take notice of a particular fact, the parties
do not have the burden of proving that fact. It is part of the judicial function to
know that fact. For example, the court is bound to know the various laws
and customs of the country. A party does not need to provide any proof
when stating any law.

This section has to be understood along with section 52 which enumerating the
instances when the court shall take judicial notice. Facts for which a court will take
judicial notice are specified in section 52, which includes laws. In info in India,
public acts of Parliament, local and personal acts et cetera.

MEANING OF JUDICIAL NOTICE:-

The meaning of judicial notice is that something are in existence or true without
having proof. Judicial notice is based upon reasons of convenience . Certain things
are commonly known that an ordinary person is aware of it and it is a waste of time
to seek prove for such things. For example, it is commonly known fact that certain
parts of MP, Bihar and Andhra Pradesh are nexalite affected area and Jammu and
Kashmir is a terror stricken area.

CASE - RAJA SIDHESHWAR HIGH SCHOOL VS STATE OF BIHAR,

1993,

In this case the court took judicial notice of the fact that education in the state was
virtually crumbled.
In another case, the court took judicial notice of fact that several blind persons
have acquired great academic distinction.
2. FACTS ON WHICH COURT MUST TAKE JUDICIAL
NOTICE . (SEC- 52)

According to section 52 of the BSA, The court ar bound to take judicial notice on
such matters. It is mandatory for the court to do so not a stationary power of the
court, just like section 51.
Section 52 lays down man facts under which the court must have to take judicial
notice which are given below:-
There are 13 facts mentioned under section 52 of the BSA under which the court
must take judicial notice. So here I mentioned few of them.

• All law in force in territory of India.

• All public acts passed by Parliament of UK.
• Articles of war of Indian Army, Navy, Air Force.
• The course of proceeding of the Constituent Assembly of India, of
Parliament of India and of the State Legislatures.
• The seals of all Courts and Tribunals.
• International treaty, agreement or convention with country or countries by
India, or decisions made by India at international associations or other
bodies.
• The existence, title and national flag of every country or sovereign
recognized by the Government of India.

CASE:- S. NAGARAJAN VS VASANTHA KUMAR (1987)

In this case the court held the accused guikty by taking judicial notice as per section
52 of the BNS,2023.

3. FACTS ADMITTED NEED NOT BE PROVED (SEC- 53)

According to section 53 of the BSA, the fact which which already admitted need
not to be proved. Section 53 state:-

• Where the parties are their agents, admit the fact

• At the time of hearing
• Before hearing through writing
• Which are deemed to be admitted
 • Under any rule of pleading

Proviso:- In this, the court has discretionary power that it can ask the opposite
party to prove the facts which have already been admitted, although there is a
general rule that the facts which have been admitted will be considered.
Q. ) ORAL EVIDENCE
The evidence is a certain reliable and relevant set of facts which proves are
obtained from proving any matter. There is a prescribed manner on which the cycle
of evidence Works, which has been divided into two main heads – oral evidence
or documentary evidence by the BSA 2023.

Evidence plays an important role in the trials. Oral evidence was not considered as
precise and clear as documentary, but its need and importance are constantly
growing rapidly. Oral evidence is also equally important as it is stimulate a person
and extract what a person has seen what he wants to say regards to the trial. Oral
evidence is comparatively easier to refer.

Oral evidence is dealt under section 54 and 55 of the bsa. The word oral itself
describe its meaning as something spoken or expressed by mouth so anything
which is accepted in the court in relation to the enquiry and expressed by any
witness who were called in the trial termed as oral evidence. Oral evidence also
include the statements made by people and science, and writing forms for those
who cannot speak.

MEANING OF ORAL EVIDENCE

The word oral itself describe its meaning as something spoken or expressed by
mouth so anything which is accepted in the court in relation to the enquiry and
expressed by any witness who were called in the trial termed as oral evidence. Oral
evidence also include the statements made by people and science, and writing
forms for those who cannot speak.

Oral evidence was not considered as precise and clear as documentary, but its need
and importance are constantly growing rapidly because it is stimulate a person and
extract what a person has seen what he wants to say regards to the trial. Oral
evidence is comparatively easier to refer.
DEFINITION OF ORAL EVIDENCE { (2 (1) (e)}

Section 2 (1) (e) define oral evidence. According to section 2(1) (e) the term oral
evidence means:-
• All statements
• Including given electronically
• Which the court permits, or
• Requires to be made,
• By witnesses in relation to
• Matter of fact under enquiry.

CASE:- QUEEN EMPRESS V ABDULLAH (1885)

In this case, it was held that statement given by gestures are also comes under oral
evidence.

PROOF OF FACTS BY ORAL EVIDENCE (SEC 54)

Under this, all, the facts and circumstances may be proved by oral evidence by
expressing or speaking accept the contents of documents and electronic records.
The contents of documents and electronic records cannot be proved by evidence.
It is held that if any person has to be called for proving their documents, then that
document becomes oral and documentary valence loses hits significance.

CASE :- BHIMA TIMA VS POINEER CHEMICAL CO.

In this case, it was held that the documentary evidence becomes meaningless if the
writer has to be called in every case to give oral evidence of its contents.

ORAL EVIDENCE MUST BE DIRECT (SEC- 55)

Section 55 of BSA talks about oral evidence shall in all cases must be direct. Oral
evidence must be direct in all cases. Indirect ways of oral evidence are HEARSAY
evidence, which is not considered under section 55 as a direct over evidence. The
word direct in all matters must means through their personal knowledge, and it is
not passed by any other person, which on the other hand will be in admissible.

• It refers to a fact which could be seen, it must be the evidence of a witness

who says he saw it –
It refers to evidence which has been given by the person who has actually seen or
observed the matter by their own eyes, This will be actuated as direct evidence.For
example: if A saw that B is hitting C. A will be an eyewitness to the crime scene
and his testimony will be that of direct evidence.

• It refers to a fact which could be heard, it must be the evidence of a witness

who says he heard it –

It refers to evidence which has been given by the person who was present and has
actually heard the matter by themselves, this will come under direct evidence. For
example: if A overheard B's conversation that stated; that he is going to kill C
tomorrow under the bridge, A's testimony will be that of direct evidence.

• It refers to a fact which could be perceived by any other senses or any other
manner,

Meaning such evidence that has been given by the person who has perceived it in
any other manner or by any other senses but it has been perceived by that person
itself. For example: through sense of smell or taste.

• If it refers to an opinion or to grounds on which that opinion is held, it must

be the evidence of the person who holds that opinion on those grounds -

It means when a person holds any opinion on any matter or incident, only his
testimony on the ground of which his opinion is formed will be admissible in the
court.For example A thinks that B is not a good guy, so his testimony of that
opinion will be termed under direct evidence.

Meaning of Hearsay Evidence

All of us are aware of what hearsay is; hearsay is any information which is received
by any person from any other source. Hearsay means when a person does not have
a personal knowledge about a particular matter or incident and he has been
informed about that particular matter by any other person.
As oral evidence includes first-hand knowledge thus, Hearsay evidence is
excluded under the ambit of oral evidence because hearsay is not directly obtained
evidence.
EXCEPTIONS OF SECTION 54

The following are the exceptions of section 54

• Res gestae
• Admission and confession
• Dying declaration
• Expert opinion in treaties
• Section 27 and 28 of BSA
Q. ) DOCUMENTARY EVIDENCE
The evidence is a certain reliable and relevant set of facts which proves are
obtained from proving any matter. There is a prescribed manner on which the cycle
of evidence Works, which has been divided into two main heads – oral evidence
or documentary evidence by the BSA 2023.

Chapter 5 of BSA 2023, states the provision regarding documentary evidence.

Documentary evidence is any written or electronic record that can be presented in
court to support or refute a claim. It can include documents such as letters,
contracts, reports, and other written materials

Documentary evidence is different from oral testimony, which is when a person

sees, hears, or perceives something. Documentary evidence is a significant part of
civil and criminal litigation, as it is used to prove facts.

MEANING OF DOCUMENTARY EVIDENCE

Documentary evidence is any written or electronic record that can be presented in

court to support or refute a claim. It can include documents such as letters,
contracts, reports, and other written materials

Documentary evidence is different from oral testimony, which is when a person

sees, hears, or perceives something. Documentary evidence is a significant part of
civil and criminal litigation, as it is used to prove facts.

DEFINITION OF DOCUMENTARY EVIDENCE { 2 (1) (e)

}

Section 2 (1) (e) define documentary evidence. According to section 2(1) (e) the
term documentary evidence means:-

• All documents
• Including electronic or
• Digital records
• Produce for the inspection of the court
• Called documentary evidence.
Examples of documentary evidence
• Video conferencing
• Memory card
• Tape recording

CASE- RM MALKANI VS STATE OF MAHARASHTRA 1973

In this case, tape recordings are declared as a relevant form of documentary
evidence, and as a part of res gestae.

KINDS OF DOCUMENTS
1. PUBLIC DOCUMENTS (SEC 74 (1)
2. PRIVATE DOCUMENTS (SEC 74 (2))

WHAT ARE THE IMPORTANT LEGAL PROVISIONS RELATING TO

DOCUMENTARY EVIDENCE?
PRIMARY EVIDENCE (sec-57)
Section 57 of BSA defines primary evidence as the original document presented
for the court's inspection.
This encompasses documents executed in parts or counterparts, as well as those
produced through uniform processes such as printing or photography.
Importantly, electronic or digital records are recognized as primary evidence when
stored concurrently or sequentially across multiple files, and video recordings in
electronic form are also classified as primary evidence.

§ Illustration:

If a person is found in possession of several placards, all printed from the same
original at the same time, each placard can serve as primary evidence of the
contents found on any other placard. However, none of these placards can serve as
primary evidence of the original document's contents.
SECONDARY EVIDENCE (SEC 58)
Section 58 of BSA delineates secondary evidence, encompassing certified copies,
copies produced by mechanical processes, oral and written admissions, oral
accounts of document contents, and testimony from individuals who have
examined documents.

This applies particularly when the original consists of many impractical accounts
or documents to examine in court.
Secondary evidence is deemed relevant when the original document cannot be
presented for court inspection.

§ ILLUSTRATION:
A copy of a letter produced by a copying machine and compared with another copy
is considered secondary evidence of the letter's contents, provided it is
demonstrated that the copying machine originally copied from the original letter.

§ Section 60 of BSA deals with the cases in which secondary evidence relating
to documents may be given.
§ Section 62 of BSA provides that the contents of electronic records may be
proved in accordance with the provisions of section 63.

ADMISSIBILITY OF ELECTRONIC EVIDENCE(SEC 63)

1. COMPUTER OUTPUT :-
Any information contained in electronic
record, which is-
• Printed on paper
• Stored , recorded, or copied in optical or magnetic media oR
• Semiconductor, memory or
• Any communication devices or
• Copied in any electronic form
• produced by a computer
• Shall be deemed to be a document

2. CONDITION FOR ADMISSIBILITY OF COMPUTER RECORD:-

 • The computer must be must be use regular
• Information must have been regularly fed into the computer
• The computer must have been functioning properly during the relevant
period
• The information contained in electronic form produced by such
computer

3. SINGLE SYSTEM CONSIDERATION:

• At the time of creation

• Storage or processing
• Of such information
• Using multiple computers
• Considered as single computer.

4. CERTIFICATION FOR ADMISSIBILITY:

• Foreign electronic record to be admissible as evidence

• The certificate complying with subsection 4
• Is necessary,
• Which includes
• Identification of electronic record
• Particulars of any device involved in producing the electronic record.

CASE:- ARJUN PANDITRAO VS KAILASH KUSHAN RAO(2020)

In this case, the court held that a certificate u/s 34 is a condition president to the
admissibility of evidence for electronic record.

PROOF OF SIGNATURE (SEC 65)

• If a document is alleged
• To be signed or written
• By person
• The handwriting or signature
• Must be proven by that person.

Example, in a case where X file a suit against Y based on promissory note for
₹50,000. Exclaims that why signed the note on June 22, 2024. Why must prove
that this is the device signature.
PROOF OF ELECTRONIC SIGNATURE (SEC 66)
If the electronic signature of any subscriber is alleged to have been fixed to an
electronic record, such electronic signature must be proof in accept in the case of
a secure electronic signature.

PROOF WHEN ATTESTING WITNESS DENIES THE

EXECUTION (SEC 70).
If the attesting witness -
• denies or
• does not recollect the document's execution
• its execution may be proved by other evidence.

PROOF OF DOCUMENTS NOT REQUIRED TO BE

ATTESTED(SEC 71)

If a document not required by law to be attested is attested (optional attestation),

it may be proved as if it was not attested.

COMPARISON OF SIGNATURE, WRITING OR SEAL

WITH OTHERS ADMITTED OR PROVED.(sec 72)

◦ To determine if a signature, writing, or seal is that of the person it purports to

be, the court may compare it with any signature, writing, or seal admitted or proven
to be made by that person, even if the compared items were not produced for other
purposes.

◦ Court can instruct any person present to write words or figures for comparison
with disputed ones.

◦ This section also applies to finger-impressions and provides a direct method

for comparison. It Is Applicable Only When A Matter Is Pending In Court.

STATE OF BOMBAY V. KATHI KALU OGHAD, AIR 1961:

Section 72 and the proviso to section 23 are not inherently violative of article 20(3)
of the constitution
PROOF AS TO VERIFICATION OF DIGITAL
SIGNATURE (SEC 73)
Production of Certificate: To verify a digital signature, the court may direct the
person, the Controller, or the Certifying Authority to produce the Digital Signature
Certificate.

Public Key Verification: The court may also direct another person to apply the
public key listed in the Digital Signature Certificate to verify the digital signature.]
Q. ) BURDERN OF PROOF

The Burden of Proof under the Bhartiya Sakshya Adhiniyam, 2023 (Indian
Evidence Act, 2023) refers to the responsibility of a party to prove or disprove
facts in a legal proceeding. This Act, which amends the Indian Evidence Act,
1872, is intended to update the rules governing the presentation and evaluation of
evidence in Indian courts.

The Bhartiya Sakshya Adhiniyam, 2023 (Indian Evidence Act, 2023) introduces
several modernizations, but the fundamental principles of the Burden of Proof
largely remain rooted in the original framework.

Burdern of proof uses into two senses i.e Legal burden and Evidential burdern.
The term legal burdern means burdern of proof as to pleading . It is an initial
type of burdern and never shifts. For ex:- plaintiff whatever mentioned in a plaint
, so they have to prove by the pliatiff itself .

The term evidential burdern means Onus of proof, it constantly shifts from one
party to another party.

MEANING OF BURDERN OF PROOF

The Burden of Proof under the Bhartiya Sakshya Adhiniyam, 2023 (Indian
Evidence Act, 2023) refers to the responsibility of a party to prove or disprove
facts in a legal proceeding. This Act, which amends the Indian Evidence Act,
1872, is intended to update the rules governing the presentation and evaluation of
evidence in Indian courts.

Burdern of proof uses into two senses i.e Legal burden and Evidential burdern.
The term legal burdern means burdern of proof as to pleading . It is an initial
type of burdern and never shifts. For ex:- plaintiff whatever mentioned in a plaint
, so they have to prove by the pliatiff itself .
The term evidential burdern means Onus of proof, it constantly shifts from one
party to another party.
TWO SENSES OF BURDERN OF PROOF

SENSES OF
BURDERN OF
PROOF

Legal burden Evidential burdern

PROVISION RELATED TO BURDERN OF PROOF

BURDERN OF PROOF (SEC- 104)

• Section 104 of the BSA states that the burden of proof lies on the party
who asserts the existence of any fact.
• This means that if a party claims that a certain fact is true, it is their
responsibility to provide evidence supporting that claim.

Section 104 is a general burden approve. It is upon the party who moves court
claiming right for himself or liability for the project party. It is permanent and non-
shifting burden approve and is also called primary burden of proof.

ILLUSTRATION

1. A desire support to convict B for a crime, A must prove that B committed

the crime.
2. In an election petition, the burden of proof lies with the person who
challenging the election.

ON WHOM BURDERN OF PROOF LIES (SEC- 105)

• Section 105 clarifies that the burden of proof in civil cases lies on the party
who would fail if no further evidence were presented.
 • This section emphasizes that the party making the claim must substantiate
it with adequate evidence, while the opposing party may only need to
counter the evidence presented.

Section 105 described shifting of burden. It always shift from one party to
another.

BURDEN OF PROOF AS TO PARTICULAR FACT (SEC- 106)

• Section 106 of BSA addresses situations where a party wishes to rely on a

particular fact that is not part of the general burden of proof.
• In such cases, the party must prove the existence of that specific fact.

The present section provide that the proof of one particular fact and not whole
of the facts. The Burden of proof as to any particular fact lies on that person who
wishes the court to believe in its existence unless the law provides that the proof
of the fact shall lie on any particular person.

CASE:- DUDH NATH PANDEY VS STATE OF U.P.(1981)

In this case, it was held that the plea of alibi will only succeed if it is proved that
the queue was so far away from the place of occurrence, and he could not
possibly have been present when the crime took place.

BURDEN OF PROVING FACT TO BE PROVED TO MAKE EVIDENCE

ADMISSIBLE (SEC-107)
• Section 107 of BSA states that the burden of proving a fact that is essential
to the case lies on the party who wishes to rely on that fact.
• This section reinforces the principle that parties must provide evidence for
the facts they intend to use in their arguments.
ILLUSTRATION
1. If a person wants to prove dying declaration, he must prove that the
declarant had died, therefore, A must prove the death of B first.
BURDEN OF PROVING THAT CASE OF ACCUSED COMES WITH
EXCEPTIONS (SEC- 108)
• Section 108 of BSA states that when someone is accused of an offense, the
responsibility lies with the accused to prove that their actions fall under any
general or special exceptions outlined in the law.
• The court will assume that such exceptional circumstances do not exist
unless proven otherwise.

• This means the accused must actively demonstrate why their actions should
be considered exempt from typical legal consequences.

ILLUSTRATION
1. A, accused of murder, alleges that, by grave and sudden provocation, he
loses the power of self control. The burden of proof is on A.

BURDEN OF PROVING FACT, ESPECIALLY WITHIN KNOWLEDGE

(SEC-109)
• Section 109 of BSA states that in legal proceedings, if a specific fact is
something that only a particular person would know intimately, that person
bears the burden of proving such a fact.

• This principle ensures that individuals with direct, unique knowledge are
responsible for substantiating claims that only they can effectively explain.
Section 109 is only applicable only to parties to the suit. This section deal with
the word of proving of fact within the special knowledge of a particular person.
When any fact is especially within the knowledge of any person, The bottom of
proving the fact is upon him.

ILLUSTRATION
1. A is charged with travelling on railway without a ticket. The burden of proving
his innocence is on A as the fact that he was travelling with the ticket is in his
own knowledge only.
BURDEN OF PROVING OF A PERSON KNOWN TO HAVE BEEN
ALIVE WITHIN 30 YEARS (SEC-110)

• Section 110 of BSA states regarding questions of life and death, the legal
system has specific rules for establishing proof.

• If it can be shown that a person was alive within the past 30 years, anyone
claiming that the person is now dead must provide evidence to support that
assertion.

In this section when the question arises that whether a man is alive or dead, and
it is shown that he was alive within 30 years, then the burden of proof that he is
dead is on the person who are claiming.

BURDEN OF PROVING OF THAT PERSON IS ALIVE, WHO HAS

NOT BEEN HEARD FOR 7 YEARS (SEC- 111)

• Section 111 states if someone has not been heard from for seven years by
people who would typically be in contact with them (such as family or close
friends), the burden shifts to those claiming the person is still alive to prove
their existence.

The question arises that whether a man is alive or dead, and it was shown that
he had not been heard for last seven years by those who would naturally have
heard of him. He had been alive. Na the burden of prove that he is alive, is shifted
to the person who are claiming.

CASE:- MUHAMMAD SHARIF V BANDE ALI 1911

In this case, it was held that section 111, only presume the fact of that not the
timing.
BURDEN OF PROOF AS TO RELATIONSHIP IN THE CASE OF
PARTNERS, LANDLORD, AND TENANT, PRINCIPAL, AND AGENT
(SEC-112)

• Section 112 states that the law also addresses presumptions in certain
relationship contexts.
• When individuals have been demonstrably acting as partners, landlord and
tenant, or principal and agent, anyone claiming that such a relationship
does not exist or has ended must provide proof to support their claim.
• This approach prevents unnecessary disputes by placing the burden of proof
on the party challenging an apparently existing relationship.

This section deals with the burden of proof as to the discontinuance of

relationship in case of partners, landlord, and tenant or principal and agent.
When the question is whether persons are partners, landlord and tenant or
principal and agent, and it has been shown that they have been acting as such the
burden of proving that they do not stand or have to ceased to stand to each other
in those relationship, respectively, is on the person who are claiming.

BURDEN OF PROOF AS TO OWNERSHIP (SEC-113)

• Section 113 states that in matters of ownership, if someone is found in
possession of something, they are presumed to be the owner.
• Anyone challenging this ownership must provide evidence to prove that the
possessor is not the actual owner.
• This principle protects current possessors and provides a clear standard for
establishing ownership.
PROOF OF GOOD FAITH IN TRANSACTION, WHERE ONE PARTY
IS IN RELATION OF ACTIVE CONFIDENCE (SEC-114)

• Section 114 states that in transactions involving parties with unequal power
dynamics, particularly where one party is in a position of active confidence
(such as a fiduciary relationship), the burden of proving the transaction's
good faith falls on the party in the more powerful position.

• This rule helps protect vulnerable parties from potential exploitation by

requiring those with greater influence to demonstrate the fairness and
integrity of their actions.