INTRODUCTION Bharatiya Sakshya Adhiniyam 2023
The Bharatiya Sakshya Adhiniyam, 2023 ("BSA") repeals and replaces the Indian Evidence Act, 1872 ("IEA"). The Bharatiya Sakshya Bill, 2023 was introduced in the Lok Sabha on 11 August 2023.
Pursuant to the recommendations of the Standing Committee on Home Affairs, Rajya Sabha ("Standing Committee"), the Bharatiya Sakshya (Second) Bill, 2023 was introduced on 12 December 2023 in the Lok Sabha. The revised bill was passed by the Lok Sabha and the Rajya Sabha on 20 December 2023 and 21 December 2023 respectively. It received Presidential assent on 25 December 2023 and came into effect from 1st July 2024.
Section 2, 3 & 4 of the BSA 2023
Section 2. Definitions.
Section 2 (1) In this Adhiniyam, unless the context otherwise requires,—
Section 2 (1) (a) “Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence;
The word “Court” in the Bharatiya Sakshya Adhiniyam does not only mean the place where a judge sits. It includes:
- All Judges
- All Magistrates
- And any other person who is legally authorized to take evidence
But there is one exception → Arbitrators are not included in the definition of Court. Arbitrator means a neutral person chosen by the parties to settle their dispute privately, instead of going to court.
Section 2 (1) (b) “conclusive proof” means 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; Conclusive Proof means once a fact is proved under law, another fact must be accepted as proved, and no evidence can be given against it.
EXAMPLE:- Imagine a death certificate issued by the government. The law says this certificate is conclusive proof of a person’s death. So, once the death certificate is shown in court → the court must accept that the person is dead. No one can argue or give evidence saying, “No, that person is alive.”
Section 2 (1) (c) “disproved” in relation to a fact, means when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist;
Disproved means: A fact is said to be disproved when the Court, after looking at all the evidence, either:
Believes the fact does not exist, OR
Thinks it is so unlikely that any reasonable person would assume it does not exist.
In short: The Court is convinced that the fact is false.
EXAMPLE:- Suppose a person says: "I was in J&K on 1st January." But, the court sees train tickets, CCTV footage, and witnesses proving he was in DELHI on that day. The statement “He was in J&K” is disproved because evidence shows it’s false.
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 thosemeans, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
A document means any information recorded on something — using letters, numbers, marks, or any method — which can be used to show or record that information. It also includes electronic and digital records (like emails, PDFs, WhatsApp chats, etc.).
Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;
Section 2 (1) (e) “evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;
Evidence means two main things:
Oral Evidence → All statements made by witnesses in front of the Court about the facts of the case. This also includes statements given electronically (like video conferencing).
Documentary Evidence → All documents shown to the Court, whether on paper or digital. This includes electronic/digital records like emails, WhatsApp messages, CCTV footage, PDFs, etc.
EXAMPLES
Oral Evidence → A witness says in court: “I saw the accused at the crime scene.”
Oral Evidence (Electronic) → A witness giving testimony on video call in court.
Documentary Evidence (Paper) → A written contract, Aadhaar card, birth certificate.
Documentary Evidence (Digital) → WhatsApp chats, CCTV video, or an email.
Section 2 (1) (f) “fact” means and includes—
(i) any thing, state of things, or relation of things, capable of being perceived by the senses;
(ii) any mental condition of which any person is conscious.
A fact means:
1.Anything you can see, hear, smell, touch, or taste (things you can sense).
Example: It is raining outside → fact (because you can see and hear it).
2.Any mental condition that a person is aware of (what is in someone’s mind).
Example: A person is angry, happy, or afraid → also a fact, because the person is conscious of it.
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, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact;
Section 2 (1) (g) “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.
Facts in issue are those main facts that are directly in dispute in a case.
• They are the facts which the Court has to decide — whether they exist or not.
• These facts decide the rights, liabilities, or disabilities of the parties in a case.
In short: Facts in issue are the central questions the court must answer.
Illustrations. A is accused of the murder of B. At his trial, the following facts may be in issue:—
(i) That A caused B's death.
(ii) That A intended to cause B's death.
(iii) That A had received grave and sudden provocation from B.
(iv) 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;
Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.
Example
Suppose B files a case against A, saying: “A borrowed ₹1,00,000 from me and has not repaid.” The Court frames the issue: “Did A borrow ₹1,00,000 from B?” The fact to be proved or denied (borrowing of money) = Fact in Issue.
Section 2 (1) (h) “may presume”.—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;
When the law says the Court “may presume” a fact:
The Court has a choice → it may treat the fact as proved unless someone disproves it, OR
The Court may ask for more proof before accepting it. “may presume” = optional presumption (Court’s discretion).
EXAMPLE: Suppose a letter is properly addressed, stamped, and posted. The Court may presume that the letter was delivered to the person. But — this is not final. If the other party shows evidence that the letter was never received, the presumption can be rebutted.
Mangal Ram and Anr. VS State Of Madya Pradesh.
In this case the wife of the accused was living with her parents for many years and has not visited her matrimonial home for a long time. But within one month of returning to her matrimonial home, she committed suicide.
Therefore, the court presumed that the accused is responsible for the death of the lady. But the husband and her in laws proved that the death was not caused because of the reasons subjected to cruelty. The court in that matter said that the presumption was of rebuttable nature and the presumption can’t be sustained anymore, hence the accused acquitted.
Section 2 (1) (i) “not proved”.—A fact is said to be not proved when it is neither proved nor disproved;
Example Suppose A claims that B borrowed ₹1,00,000. A fails to bring enough evidence (no documents, no witness). B also fails to disprove it convincingly. In this case, the Court cannot say the fact is proved or disproved. It is simply not proved.
Section 2 (1) (j) “proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;
A fact is said to be proved when: After considering all matters before it, the Court believes it to exist, OR The Court finds its existence so probable that a prudent man (a reasonable person) would act upon the supposition that it exists.
EXAMPLE A is charged with theft of B’s phone. Evidence: CCTV footage + eyewitness + recovery of phone from A. Court finds this so probable that a prudent man would believe A committed the theft. Therefore, the fact that A stole the phone is proved.
Section 2 (1) (k) “relevant”.—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;
A fact is relevant when it is connected to another fact in such a way that it helps the court understand the truth of the case.
In simple words, if one fact makes another fact more clear, believable, or understandable, then it is relevant.
EXAMPLE If someone is accused of murder, and a witness saw him near the crime scene at that time → that presence near the crime scene is relevant to the murder case. Relevant facts are like puzzle pieces — only the pieces that fit together and help in solving the puzzle are “relevant.”
Section 2 (1) (l) “shall presume”.—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.
“shall presume” it means:
The Court must treat that fact as true (proved),
Unless and until the other side disproves it.
So, the Court has no choice at the beginning — it must accept it as proved. But if evidence is shown against it, then the presumption can be broken.
EXAMPLE: If a person is found in possession of stolen goods soon after the theft, the Court shall presume he is either the thief or received the goods knowing they were stolen — unless he proves otherwise.
Section 3 BSA 2023
Section 3:- Evidence may be given of facts in issue and relevant facts.—
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.
In a case, evidence can only be given about:
1. Facts in issue – the main facts directly connected to the dispute.
2. Relevant facts – other facts which the law specifically says are connected to the case.
So basically: “Only facts that matter to the case (facts in issue) or facts the law considers connected (relevant facts) can be proved in court. Everything else is excluded.”
EXAMPLE:- A is accused of stealing a phone.
Fact in issue: Did A steal the phone?
Relevant facts: B (shopkeeper) saw A taking the phone. These can be given as evidence.
But if someone says: “A usually dresses in black clothes,” or “A doesn’t like the shopkeeper,” These are not directly connected to the case and are not admissible as evidence.
BSA does not recognize all facts which are logically relevant. It allows the party to prove only those facts which are expressly declared as relevant under section 3 to 50 of the BSA. So, only legally relevant facts are allowed to be proved and not logically relevant facts.
Explanation.—This section 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.
State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari (2013) 12 SCC 17
The Supreme Court clarified that under Section 5 of the Evidence Act(now section 3 of BSA), evidence is limited strictly to facts in issue and facts expressly made relevant by law. In the case of the Mumbai local train blasts of 11 July 2006, the Court treated the blasts as the primary facts in issue and stressed that only facts falling within the statutory framework of relevancy could be admitted.
Illustrations.
(a) 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.
(b) 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 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 (5 of 1908).
Section 4 BSA 2023
Section 4:- Relevancy of facts forming part of same transaction.—
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.
Even if a fact is not the main issue, it becomes relevant if it is so closely linked with the fact in issue that both together form one continuous story (same transaction). It doesn’t matter if the connected facts happened at the same time and place, or at different times and places. This is called the Doctrine of Res Gestae = “part of the same thing done.”
EXAMPLE:- A is attacked in a marketplace. While running for help immediately after the attack, A shouts, “B stabbed me!” The attack = fact in issue. The shout/statement = not in issue itself, but forms part of the same transaction → so it is relevant.
Doctrine of Res Gestae
Res Gestae is a Latin term which means “things done” or “part of the transaction.” Under Section 4 , facts that are not directly in issue but are so closely connected with the fact in issue that they form part of the same transaction, are admissible as evidence. In simple words: Spontaneous facts or statements made at the time of an event, which explain the event, are also relevant.
Essentials of the Doctrine
For a fact to be admitted under Res Gestae:
Same transaction – The fact must be connected with the main fact in issue.
Spontaneity – The statement/fact must arise naturally from the event, not after much time has passed.
Explanatory link – It must help explain the fact in issue.
Continuity of action – Time gap should not be so wide that it allows fabrication.
Ratten v. Queen
The victim (wife) had called the police for help, but before the operator could connect her to the police, her call was disconnected. Later, the police found her dead body in her house from where the call was made, and the time of death and the time of the phone call were almost the same. The call made to the police came under the purview of section 6( 4 of BSA), thereby defeating the accused husband’s defense that he accidentally fired at his wife.
R v Foster
The witness had seen only a speeding vehicle but not the accident itself. The person injured explained to him the nature of the accident. The witness was allowed to give an account of what the deceased said, although it was only a derived knowledge, yet part of Res Gestae.
Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130
The accused was tried for the offence of rape. The victim had immediately narrated the incident to her mother and other witnesses right after the occurrence. The defence argued that such statements were hearsay and could not be relied upon. The Supreme Court, however, held that the victim’s spontaneous disclosure formed part of the same transaction and was admissible under the doctrine of Res Gestae (Section 4 BSA). The Court observed that in cases of sexual offences, the immediate reaction or statement of the victim is of great evidentiary value, as it is natural, instinctive, and leaves little scope for fabrication. Thus, the Court upheld the admissibility of the victim’s immediate narration and convicted the accused.
R v. Bedingfield (1879)
The accused was charged with murdering a woman by cutting her throat. After the assault, the victim came out of a room with her throat bleeding and said, “See what Bedingfield has done to me.” The defence objected to the admissibility of this statement. Justice Cockburn held that it could not be admitted as part of the Res Gestae, because the statement was made after the incident was over and not while the act was being done.
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