Bharatiya Sakshya Adhiniyam 2023: Indian Rules for Evidence

Indian Law

• Summary of Bharatiya Sakshya Adiniyam (भारतीय साक्ष्य अधिनियम) BSA-2023
• Glossary of the Indian Evidence Act
• Indian Evidence Act 1872
• Rational Framework for Criminal Trial under Indian Evidence Law

The Bharatiya Sakshya Adhiniyam, 2023

Bill No. 175 of 2023

Effective Date: 1st July 2024

This Act may be called the Bharatiya Sakshya Adhiniyam, 2023.

Contents

PART I

CHAPTER I

PRELIMINARY

1. Short title, application and commencement.
2. Definitions.

PART II

CHAPTER II

RELEVANCY OF FACTS

3. Evidence may be given of facts in issue and relevant facts.

Closely connected facts

4. Relevancy of facts forming part of same transaction.
5. Facts which are occasion, cause or effect of facts in issue or relevant facts.
6. Motive, preparation and previous or subsequent conduct.
7. Facts necessary to explain or introduce fact in issue or relevant facts.
8. Things said or done by conspirator in reference to common design.
9. When facts not otherwise relevant become relevant.
10. Facts tending to enable Court to determine amount are relevant in suits for damages.
11. Facts relevant when right or custom is in question.
12. Facts showing existence of state of mind, or of body or bodily feeling.
13. Facts bearing on question whether act was accidental or intentional.
14. Existence of course of business when relevant.

Admissions

15. Admission defined.
16. Admission by party to proceeding or his agent.
17. Admissions by persons whose position must be proved as against party to suit.
18. Admissions by persons expressly referred to by party to suit.
19. Proof of admissions against persons making them, and by or on their behalf.
20. When oral admissions as to contents of documents are relevant.
21. Admissions in civil cases when relevant.
22. Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding.
23. Confession to police officer.

24. Consideration of proved confession affecting person making it and others jointly under trial for same offence.
25. Admissions not conclusive proof, but may estop.

Statements by persons who cannot be called as witnesses

26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
27. Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated.

Statements made under special circumstances

28. Entries in books of account when relevant.
29. Relevancy of entry in public record or an electronic record made in performance of duty.
30. Relevancy of statements in maps, charts and plans.
31. Relevancy of statement as to fact of public nature contained in certain Acts or notifications.
32. Relevancy of statements as to any law contained in law books including electronic or digital form.

How much of a statement is to be proved

33. What evidence to be given when statement forms part of conversation, document, electronic record, book or series of letters or papers.

Judgments of Courts when relevant

34. Previous judgments relevant to bar a second suit or trial.
35. Relevancy of certain judgments in probate, etc., jurisdiction.
36. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35.
37. Judgments, etc., other than those mentioned in sections 34, 35 and 36 when relevant.
38. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

Opinions of third persons when relevant

39. Opinions of experts.
40. Facts bearing upon opinions of experts.
41. Opinion as to handwriting and signature, when relevant.
42. Opinion as to existence of general custom or right, when relevant.
43. Opinion as to usages, tenets, etc., when relevant.
44. Opinion on relationship, when relevant.
45. Grounds of opinion, when relevant.

Character when relevant

46. In civil cases character to prove conduct imputed, irrelevant.
47. In criminal cases previous good character relevant.
48. Evidence of character or previous sexual experience not relevant in certain cases.
49. Previous bad character not relevant, except in reply.
50. Character as affecting damages.

PART III

ON PROOF

CHAPTER III
FACTS WHICH NEED NOT BE PROVED

51. Fact judicially noticeable need not be proved.
52. Facts of which Court shall take judicial notice.
53. Facts admitted need not be proved.

CHAPTER IV
OF ORAL EVIDENCE

54. Proof of facts by oral evidence.
55. Oral evidence to be direct.

CHAPTER V
OF DOCUMENTARY EVIDENCE

56. Proof of contents of documents.
57. Primary evidence.
58. Secondary evidence.
59. Proof of documents by primary evidence.
60. Cases in which secondary evidence relating to documents may be given.
61. Electronic or digital record.
62. Special provisions as to evidence relating to electronic record.
63. Admissibility of electronic records.
64. Rules as to notice to produce.
65. Proof of signature and handwriting of person alleged to have signed or written document produced.
66. Proof as to electronic signature.
67. Proof of execution of document required by law to be attested.
68. Proof where no attesting witness found.
69. Admission of execution by party to attested document.
70. Proof when attesting witness denies execution.
71. Proof of document not required by law to be attested.
72. Comparison of signature, writing or seal with others admitted or proved.
73. Proof as to verification of digital signature.

Public documents

74. Public and private documents.
75. Certified copies of public documents.
76. Proof of documents by production of certified copies.
77. Proof of other official documents.

Presumptions as to documents

78. Presumption as to genuineness of certified copies.
79. Presumption as to documents produced as record of evidence, etc.

80. Presumption as to Gazettes, newspapers, and other documents.
81. Presumption as to Gazettes in electronic or digital record.
82. Presumption as to maps or plans made by authority of Government.
83. Presumption as to collections of laws and reports of decisions.
84. Presumption as to powers-of-attorney.
85. Presumption as to electronic agreements.
86. Presumption as to electronic records and electronic signatures.
87. Presumption as to Electronic Signature Certificates.
88. Presumption as to certified copies of foreign judicial records.
89. Presumption as to books, maps and charts.
90. Presumption as to electronic messages.
91. Presumption as to due execution, etc., of documents not produced.
92. Presumption as to documents thirty years old.
93. Presumption as to electronic records five years old.

CHAPTER VI
OF THE EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

94. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
95. Exclusion of evidence of oral agreement.
96. Exclusion of evidence to explain or amend ambiguous document.
97. Exclusion of evidence against application of document to existing facts.
98. Evidence as to document unmeaning in reference to existing facts.
99. Evidence as to application of language which can apply to one only of several persons.
100. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.
101. Evidence as to meaning of illegible characters, etc.
102. Who may give evidence of agreement varying terms of document.
103. Saving of provisions of the Indian Succession Act relating to wills.

PART IV

PRODUCTION AND EFFECT OF EVIDENCE

CHAPTER VII
OF THE BURDEN OF PROOF

104. Burden of proof.
105. On whom burden of proof lies.
106. Burden of proof as to particular fact.
107. Burden of proving fact to be proved to make evidence admissible.
108. Burden of proving that case of accused comes within exceptions.
109. Burden of proving fact especially within knowledge.
110. Burden of proving death of person known to have been alive within thirty years.
111. Burden of proving that person is alive who has not been heard of for seven years.

112. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.
113. Burden of proof as to ownership.
114. Proof of good faith in transactions where one party is in relation of active confidence.
115. Presumption as to certain offences.
116. Birth during marriage, conclusive proof of legitimacy.
117. Presumption as to abetment of suicide by a married woman.
118. Presumption as to dowry death.
119. Court may presume existence of certain facts.
120. Presumption as to absence of consent in certain prosecution for rape.

CHAPTER VIII
ESTOPPEL

121. Estoppel.
122. Estoppel of tenant and of licensee of person in possession.
123. Estoppel of acceptor of bill of exchange, bailee or licensee.

CHAPTER IX
OF WITNESSES

124. Who may testify.
125. Witness unable to communicate verbally.
126. Competency of husband and wife as witnesses in certain cases.
127. Judges and Magistrates.
128. Communications during marriage.
129. Evidence as to affairs of State.
130. Official communications.
131. Information as to commission of offences.
132. Professional communications.
133. Privilege not waived by volunteering evidence.
134. Confidential communication with legal advisers.
135. Production of title-deeds of witness not a party.
136. Production of documents or electronic records which another person, having possession, could refuse to produce.
137. Witness not excused from answering on ground that answer will criminate.
138. Accomplice.
139. Number of witnesses.

CHAPTER X
OF EXAMINATION OF WITNESSES

140. Order of production and examination of witnesses.
141. Judge to decide as to admissibility of evidence.
142. Examination of witnesses.
143. Order of examinations.

144. Cross-examination of person called to produce a document.
145. Witnesses to character.
146. Leading questions.
147. Evidence as to matters in writing.
148. Cross-examination as to previous statements in writing.
149. Questions lawful in cross-examination.
150. When witness to be compelled to answer.
151. Court to decide when question shall be asked and when witness compelled to answer.
152. Question not to be asked without reasonable grounds.
153. Procedure of Court in case of question being asked without reasonable grounds.
154. Indecent and scandalous questions.
155. Questions intended to insult or annoy.
156. Exclusion of evidence to contradict answers to questions testing veracity.
157. Question by party to his own witness.
158. Impeaching credit of witness.
159. Questions tending to corroborate evidence of relevant fact, admissible.
160. Former statements of witness may be proved to corroborate later testimony as to same fact.
161. What matters may be proved in connection with proved statement relevant under section 26 or 27.
162. Refreshing memory.
163. Testimony to facts stated in document mentioned in section 162.
164. Right of adverse party as to writing used to refresh memory.
165. Production of documents.
166. Giving, as evidence, of document called for and produced on notice.
167. Using, as evidence, of document production of which was refused on notice.
168. Judge’s power to put questions or order production.

CHAPTER XI
OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

169. No new trial for improper admission or rejection of evidence.

CHAPTER XII
REPEAL AND SAVINGS

170. Repeal and savings.

THE SCHEDULE

Bharatiya Sakshya Adhiniyam 2023

Select Bibliography

1. “Principles of Evidence” by Graham C. Lilly

• Publishing Date: 1983 (with later editions)
• Summary: This book provides an in-depth analysis of the principles governing the admissibility of evidence in legal proceedings. It covers key topics such as relevancy, hearsay, privileges, and the role of the jury in evaluating evidence. Known for its clarity, it is widely used in U.S. law schools.

2. “The Modern Law of Evidence” by Adrian Keane and Paul McKeown

• Publishing Date: First published in 1984 (latest edition updated regularly).
• Summary: A comprehensive guide to the English law of evidence, this book examines the rules, principles, and policies that determine what evidence is admissible in court. It includes discussions on burden and standard of proof, corroboration, and confessions, making it ideal for both students and practitioners.

3. “Evidence: Cases, Commentary, and Problems” by David A. Sklansky

• Publishing Date: First published in 2008, updated regularly.
• Summary: This textbook blends case law with detailed commentary and problem-solving exercises. It covers the Federal Rules of Evidence and incorporates real-world examples to illustrate key principles, making it a popular choice for law school courses in the U.S.

4. “The Law of Evidence” by Ian Dennis

• Publishing Date: First edition in 1991, updated editions available.
• Summary: A leading text in the UK, this book explores the theoretical and practical aspects of evidence law. It addresses issues like the presumption of innocence, the role of technology in evidence collection, and human rights concerns in criminal and civil cases.

5. “Wigmore on Evidence” by John Henry Wigmore

• Publishing Date: Originally published in 1904 (revised and expanded multiple times).
• Summary: This seminal treatise remains one of the most influential works on evidence law. Wigmore’s systematic approach to evidence classification and analysis is foundational, although some aspects have been modernized in subsequent editions and commentaries.

6. “McCormick on Evidence” by Charles Tilford McCormick (Revised by multiple authors in later editions)

• Publishing Date: 1954 (first edition), updated editions published regularly.
• Summary: A cornerstone in American evidence law, this text is highly regarded for its authoritative commentary on the Federal Rules of Evidence. It is frequently cited in judicial opinions and academic discussions.

7. “Cross and Tapper on Evidence” by Rupert Cross and Colin Tapper

• Publishing Date: First published in 1958 (new editions periodically).
• Summary: A key text in the study of English law of evidence, focusing on logical reasoning and fairness in the application of evidence rules. It is widely used by law students and practitioners in common law jurisdictions.

8. “The Law of Evidence in Canada” by Alan W. Bryant, Sidney N. Lederman, and Michelle K. Fuerst

• Publishing Date: First published in 1992 (subsequent updates available).
• Summary: This book provides a detailed overview of Canadian evidence law. It examines statutory rules, common law principles, and the influence of the Canadian Charter of Rights and Freedoms on evidence admissibility.

9. “Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials” by Roger C. Park and Aviva A. Orenstein

• Publishing Date: Regularly updated editions.
• Summary: A practical guide for law students, this book simplifies complex evidence rules through examples and hypotheticals. It is particularly useful for preparing for the bar exam or understanding courtroom applications.

10. “The Hearsay Rule” by Edmund M. Morgan

• Publishing Date: Originally published in 1948.
• Summary: This work offers a detailed analysis of the hearsay rule, tracing its origins, exceptions, and evolution in modern evidence law. It remains a valuable resource for understanding this crucial aspect of evidence.

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